make it void 104. Note by the Justices where in a Praecipe quod reddat brought against Tenant for life he makes default and he in the Reversion is received he shall hear the Count made by the Tenant and shall answer presently and cannot have an Imparlance 105. Resolved by the Justices That Tenants in Comon cannot joyn in Waste against their Lessee but it is otherwise of Copartners or Joynt Tenants 106. In Debt the Defendant pleaded to Issue and afterwards brought a Writ of Priviledge out of the Exchequer because he was a person Priviledged there The Court dissallowed of the Writ because by his pleading he had affirmed the Jurisdiction of the Court. Hawle and Kirkbyes Case 107. Covenant upon an Indenture dated 20 April 4. E. 6. The Defendant pleaded in Bar a Release made 3 Eliz. of all Actions Suits Debts Executions and Demands which ever before he had or may have ab origine Mundi to the day of the date of the Release adjudged no bar because it was before the Covenant broken 108. A man leaseth Lands for years and afterwards by Deed Indented bargains and sells the same Lands to the Lessee and his Heirs without any word of guift or grant in the deed That nothing passeth if the deed be not Enrolled for without Enrollment the Freehold doth not passe and it is not any Confirmation The Lord Sands and Brays Case 109. A scire facias by the Lord Sands against the Defendant to have Execution of Lands whereof the remainder was entailed to his Ancestors by Fine The Defendant said The Plaintiff was within age and prayed The parol might demur till his full age The opinion of the Court was That the parol should not demur and by award of the Court the Defendant was put to Answer 110. A man bargains and sells his Land by deed Enrolled The bargainee by the same deed Covenants That if the bargainor or his Heirs pay to the bargainee or his Heirs 20 l. such a day that then the bargainee and his Heirs and all other seised should be presently seised to the use of the bargainor and his Heirs before the day the bargainor tenders the mony to the bargainee and he refuseth it Resolved that by the Tender the Covenant is not performed for the Covenant alters the use upon the payment and nothing rests in the bargainor till payment 111. It was Resolved by the Justices That if a man by deed Leaseth certain parcel of Lands and names them severally and afterwards the Lessor raseth the deed and puts one parcel out of the deed that the whole deed is void for the deed is entire in it self and cannot stand for part and be void for part But yet notwithstanding the Lease being of Lands the Lessee may plead it as a Lease parol Trinit 4. Eliz. 112. Tenant in tail the remainder in Fee Tenant in tail aliens and dyes without Issue he in the Remainder recovers in a Formedon brought being within age Adjudged he shall not be in Ward because a Right of remainder discended only to him and not a Remainder in possession 113. A man made a Lease for life and afterwards was bounden in a Recognizance and afterwards he granted the Reversion to another and the Tenant for life attorned and dyed the grantee entred and the Recognizee sued Execution against the grantee If the Execution was well sued upon the grantee Quaere the Justices were divided in opinion 114. Debt upon Obligation The Defendant pleaded that the plantiff by deed Indented betwixt them Covenanted and granted that if the Defendant paid him certain monies at a day certain the Obligation should be void and that at the day he tendred the money and he refused it The Court held the plea good without saying uncore prist 115. Debt upon Obligation the Condition was if the Defendant paid to the Plaintiff or his assignes 20 l. at such a day and place that then c. The Defendant said that the Plaintiff appointed one A. to receive the mony of him at the day and place and that he tendred the same accordingly to the said A. which he refused Resolved the plea was good without alledging payment in fact 116. A. made a Feoffment in Fee rendering rent with Clause of distresse and afterwards bound himself in a Statute and the day being incurred Execution was sued by the Conusee and the Sheriff returned the Conusor dead and that he had extended the Rent The Heir of the Conusor within age brought an Audita Querelâ— and adjudged it did well lye because there was an Exception in the Writ of Extent that if the Lands are discended to any Enfant that the Sheriff should surcease to extend 117. Debt against Executors at the Pluries Distring as they appeared and pleaded that they had fully Administred the goods of the Testators before any Notice given them of the Suit The Plaintiff said That upon the Original the Sheriff had returned them Summoned It was the opinion of the Court it was no Estoppel against them for it may be they were never Summoned notwithstanding the return of the Sheriff The Archbishop of Yoâ—ks Case 118. An action brought by him upon the Statute dâ— scandalis Magnatum against I. S. because he put in a slanderous Bill against him before the President of the Council of the North surmising that he was a Covetous and Malitious Bishop Resolved the words were not sufficient to maintain that Action 119. A. seised of a Mannor holden by Knights service devised 2. parts there of to 2. strangers severally and all the Residue he devised to his Heir in Tail the remainder over to another in Fee It was the opinion of the Justices that when he had devised 2. parts he had done all which he could by the Statute and the devise of the resiâ—ne was void but the devise shall enure to the Heir of a third part of the 2. parts that the devise which takes effect at the death of the devâ—sor may take effect and that especialle by reason of the Remainder and so the Heir shall have a third part of the 2. parts vide 3 H. 6. accordingly 120. A. made a Feoffment in Fee to the use of another in Tail the Remainder to the right Heirs of Tenant in Tail in Fee Cestuy que use in Tail before the Statute of 27 H. 8. made a Feoffment in Fee the Feoffee dyed It was the opinion of the Justices That when the Feoffee dyed during the life of Cestuy que use in Tail the first Feoffees could not enter for the discent was when they had no title of Entry for by the Feoffment the Feoffee had title during the life of Cestuy que use in Tail wherefore during his life they could not enter nor make claim But they agreed that the Heir of Cestuy que use in Tail had not any remainder but by the Entry of the Feoffees 121. A man made a gâ—ft entail upon Condition that if the Donee or his issue
had been upon condition that his last Will should be performed It had been otherwise 220. A man made a Lease for 30. years The Lessor Covenanted to Repair the House The Lesse granted parcel of the Term for 10 years It was holden that his Grantee should not have an Action of Covenant by the Statute of 32. H. 8. of Conditions for he is not Tenant to the first Lessor But if the Lessor ganteth his Reversion for years his Grantee shall have Covenant or benefit of the Condition with which the Lessee is charged for he is an Assignee within the Statute because the Lessee holdeth of him 221. If the Ancestor of the Husband Covenant to stand seised of Certain Lands to the use of the Husband and Wife in Consideration of Marriage and also for a Certain Sum of Mony If the Wife alien that Land after the death of the Husband It was said that the Heir of the Husband might enter by the Statute of 11. H. 7. for the Consideration of Marriage shall be preferred before the Consideration of Mony and then it shall be said the gift of the Ancestors of the Husband and within the Statute as it was said it was adjudged in Villiers Case The Lord Treasurer and Bartons Case 222. A man made a Lease for 100 years The Lessee made a Lease for 20. years rendering Rent with clause of Reentry the first Lessor granted the Reversion in Fee attonement was had the grantee purchased the Reversion of the Term It was holden and adjudged that he should not have the Rent not the reentry for that the Rent which was incident to the Reversion was extinct by the purchase of the Reversion in Fee 223. A man was Tenant by the Curtesie of a Mannor a Copy-hold came to his hands by forfeiture Afterwards he was bound in a Statute and afterwards demised the Copyhold Land again It was holden this Copyhold should be lyable to the Statute because it was once annexed to the Freehold of the Lord and bound in his hands Pasch 12. Eliz. 224. If the Lord grant to his Copyholder the Trees growing upon the Land and which afterwards shall grow and that it shall be Lawfull for the Tenant to cut and carry them away It was holden to be No forfeiture of his Copyhold because he hath dispensed with the forfeiture by his grant but he cannot cut the Trees which shall after grow for as to them the grant is void Brabrokes Case 225. I. D. 19. H. 8. gave the Mannor of N. to I. S. and A. and the Heirs of the body of the said I. S. on the body of A. remainder to a stranger in Tail the remainder in Fee I. S. Maried A. and after 26. H. 8. he suffered a Common Recovery with single voucher to the use of him and his Heirs the Statute of 27. H. 8. was made and after he in the remainder in Tail was attainted of Treason and 28. H. 8. It was Enacted in Parliament that all his Lands and hereditaments which he had or ought to have should be forfeited the Recovery was without any Original Afterwards I. S. gave the Mannor to I. D. and his Heirs who made a Joynture thereof to M. his Wife for life after the death of I. D. M. took to Husband the Plaintiff against whom Intrusion was brought It was adjudged against the Plaintiff for one moyety Hil. 14. Eliz. 226. The Earl of Oxon. Tenant for life of certain Mannors made a Copy in reversion to I. S. for life and dyed the Copyholder in possession dyed The Heir of the Earl demised the same by Copy to I. S. It was the opinion of all the Justices that the Copy in Reversion was not good But it was agreed If it come in possession during the Tenant for life then it is good 227. Two Acres discend to two Coparceners one of them before Partition grants a Rent Charge out of one of the Acres and upon Partition the Acre charged is allotted to the other Sister It was adjudged she should hold it discharged of the Rent Pledall and Pledalls Case 228. It was Adjudged in this Case That the Jurours are not to to take Notice of matters of Estoppel which are given in Evidence between the parties upon pain of Attaint for they are strangers to the Conclusions of the parties Evans Case 229. A man had issue two Sons and devised Lands to his youngest Son in Tail and dyed the eldest having Issue a Son the younger Son aliened the Land in Fee with Warranty and went beyond Sea and there dyed without Issue the Son of the eldest being within age It was the opinion of the Justices the same was a Collateral Warranty and without asserts was a bar to the Issue of the eldest Son notwithstanding his Nonage Muttons Case 330. A man seised of Land levyed a Fine to the use of himself and such Woman as he should after Marry and after their decease to the use of I. his daughter and the Heirs of her body afterwards he Married A. and dyed who entred It was the opinion of the Justices to A. for her life Appowel and Monnoux Case 231. A. seised of the Mannors and Rectories of B. G. and D. let the same except the scite of the Mannor of B. to I. S. for 25. years Reserving for the Mannor of B. 76 l. for the Mannor and Reversion of B. 30 l. for the Rectory of B. 14 l. and for the Rectory of D. and the Lands to it belonging â—3 l. payable yearly at â— Feasts in the Church of F. not parcel of the Premisses upon Condition if the said Rents or any of them were behind for the space of 7. Weeks it should be Lawfull for him his Heirs and Assignes to Reenter on all the premises and afterwards he bargained and sold the Scite of the Mannor of B. and the Reversion of all the Mannors and Rectories to I. D. and his Heirs who enfeoffed certain persons and granted the Reversion of all the Mannors and Rectory to have and hold the Scite of the Mannor of B. and the Reversion of the Rectory of D. to the use of himself and Eliz his Wife for their lives and the life of the Survivour of them the remainder to W. his Son and his Heirs for ever And to have the Reversion of all the other Mannors and the Rectories of B. and C. to the use of himself for life the Remainder to the said W. his Son and his Heirs I. S. the Lessee attorned I. D. dyed Eliz. his Wife held the Scite of B. and the Reversion of the Rectory of D. by Survivour W. seised of all the Mannors and Rectories as aforesaid granted the Reversion of a Messuage parcell of the Mannor of B. to W. D. and his Heirs to which grant I S. attorned and afterwards by Bargain and sale enrolled granted the Reversion of all the said Mannors and Rectories to H. I. and K. and their Heirs half a years Rent reserved for the Mannor
the Rent that the Lessor should not enter which being immediately sworn and the Records of the Outlawries against him produced the Justices dismissed the Lessee and that the Lessor should enter upon him Broughtons Case 269. Broughton a Justice of the Peace brought an Action upon the Case against the Bishop of Coventry and Lichfield because he wrote a Letter to the Earl of Leycester one of the Privy Council wherein he wrote That the Plaintiff was a Vermin in the Common wealth a false and corâ—upt man an Hypocrite in the Church of God a Dissembler He hath used many corrupt practises to work his VVill He procured my Register to be indicted of Extortion He willingly and wilfully hath boulstred out one Greenwood a Convict man of many offences and knowing him to be an Evil man maintaineth him against me without Law Conscience or Honesty Upon Not Guilty it was found for the Plaintiff and 300 l. Dammages It was objected the Action did not lye not being an overt Act but words written in a Letter Resolved the Act on did well lye being writ to a Stranger but otherwise if it had been written to the Party himself and it was also resolved That although but some of the words will bear Action yet the Dammages are well assessed because they are put in to increase the Dammages In this Case it was said if a slanderous Bill be exhibited in the Star Chamber against one the Action doth not lye because it is a Court of Justice and hath Jurisdiction to redress things but to exhibite a slanderous Bill into a Court waich hath not power to redress the thing is scandalous and an Action will lye for it Griffith and Clarks Case 170. A Writ of Disceit by the Lord of the Mannnor upon a Fine levyed of the Land within antient Demeasne The Defendants pleaded that the Lord of the Mannor in the time of E. 2. did release to one who was Tenant of the same Land de omnibus servitiis consuetudinibus salvis servitiis infrascriptis viz. pro una virgat terrae 2 s. rent suit of Court and Releife It was resolved The Custome of the Antient Demesne was extinct by the Release but the Rent Releife and suit of Court remained as parcel of the Seignory by the saving Ivors Keales Case 271. A. seised of Lands in Fee borrowed 20 l. of B. and they are agreed to assure Lands for it They went to the Land and A. there said to B. I am endebted to you 20 l. If I do not pay you at Michaelmas then I bargain and sell this Land to you and if I do pay you I am to have my Land again B. continued upon the Land a little space the Monyes was not paid at Michaelmas Adjudged the Land passed to B. upon a Condition subsequent for payment of the Mony by B. Mildmay and Standiskes Case 272. Action upon the Case for Slandering his Title In which the Defendant justified the Case was A. seised of Lands in fee had Issue 3. Daughters V. G. O. V. dyed without Issue The Father for love and affection and the better maintenance of G. and O. covenanted to stand seised to the use of himself for life the remainder to G. in tale of one Moyety the remainder to O. of the Moyety in Tail Provided it shall be Lawfull for the said A. for the payment of his Debts and Legacies and better preferment of his Servants and other good Considerations to devise the said Lands by his Last VVill and dispose of the same for lives or years and afterwards he devised the said Lands to F. and the said O. his wife for 1000. years and dyed wherefore the Defendant published the said Lands were assured for 1000 years upon which it was demurred It was said that the said V. might at any time determine any of the said uses and induce other Estates at his pleasure and the payment of his Debts and Legacyes with good considerations for the Leases But it was resolved for the Plaintiff because the Proviso was against the Law to enduce an Estate to a Stranger by way of Lease upon Covenant of Considerations to raise uses but such power might be good upon an Estate executed Or a Proviso good which did extend to determine the Estate but not to give another Estate to Lessees Veere and fâ—ofryes Case 273. It was Resolved That if the Metropolitan grant Administration where the Intestate had not bona notabilia indivers diocesses it is voidable only but not void But if a Bishop of a Diocesse grants Administration which belongs to the Metropolitan the same is void Russells Case â—74 Trover and Conversion of goods by the Executors of R. against Husband and Wife of the goods of the Testator which came to the hands of the Wife dum sola fuit The Defendant pleaded a Release of the Plaintiff after the death of the Testator and after the Trover and Conversion The Plaintiff said he was then within age It was adjudged that because there was no Consideration alledged for the Release it should not binde the Executor because it should be a Devastavit in him Twineos Case 275. Grandfather and Grandmother Tenants in special Tail before the Statute of 27 H. 8. the remainder to the right Heirs of the Grandfather The Father by deed enrolled Fine and Proclamation conveyed the Lands to the Queen and her Heirs and Successors in the life time of the Grandmother It was Resolved that by the Statute of 32 H. 8. by the Fine and Proclamation the Issue in Tail was Barred Vâ—ncent and Lees Case 276. It was adjudged in this Case That when a man devised that his Sons in Law should sell the Reversion of his Lands without naming their particular names and that some of them dyed That the Survivors could not sell the Land Sir Peter Carewes Case 277. It was Resolved in this Case That the Lord of a Mannor for life or a particular Tenant having interest in the Mannor might grant Copies in Reversion although they were not executed in the life of the grantor Moris and Franklyns Case 278. The Statute of 27 H. 8. which began 4. Feb. Anno 27. H. 8. and ended 14. April gave Monasteries of Petty value to the King The Abby of T. being of Petty value viz. 100 Marks per Ann. was mean between the 1. day and the last day Surrendred to the King It was holden the King should be in by the Statute and not by the Surrender Thorrowgood and Tarvors Case 279. In Trespasse The Defendent pleaded in bar the Release of the Plaintiff of all his right in the Land The truth was the Plaintiff was a man unlearned and the Release was read unto him only as a Release of the Arrerages of an Annuity It was the opinion of the Justices that he might plead Non est factum to it and it should nor bar him Dorrell and Thyns Case 280. Error was assigned in a Common Recovery That no Warrant of Attorny was
by voucher of him in the Remainder in tail who vouched the common Vouchee and if he in the Remainder in Fee were bound by the Recovery because the Statute of 14. Eliz. is That Recoveries suffered by Tenants for Life shall be void against him in Remainder or Reversion and the Proviso doth not extend to bind more of them in the Remainder then those who assent of Record It was adjudged in B. R. that the Remainder in Fee was bound as well as if the Tenant in tail had bin the first Tenant to the Precipe and upon Error brought the Judgment in the Exchequer Chamber was affirmed But because the Defendant in the first Action had pleaded the Recovery by a Writ brought de tenementis praedictis which was not the use in common Recoveries but especial to have the Recovery of so many Messuages so many Acres of Land Meadow Pasture c. in certain and because it did not appear by the Record before them that the Writ did contain any certainty of the Messuages or Acres c. the Judgment was reversed Rotheram and Stibbings Case 905. Action upon the case against an Executor upon Assumpsit of the Testator to pay 100 l. in consideration of Marriage of his Daughter the payment to be made when he should be required upon non Assumpsit Judgment was had in B. R. for the Plaintiff Error brought in the Exchequer Chamber and the Judgment was reversed because the Action did not lie against the Executor Maynard and Bassets Case 906. Trover and Conversion de 3000. cords of Wood the case was A. granted to B. so much wood in Buxsted Wood as would make 4000. cords to be taken by the appointment of A. B. before any appointment assigned his Interest to M. the Plaintiff afterwards A. granted to the Defendant as much wood in the said Wood as should make 6000. cords at the choice of the Defendant then A. appointed B. a certain quantity to satisfie the first Bargain which B. cut down and the Defendant by colour of his Grant took and carried away the same whereupon the Plaintiff brought his Action and had Judgment in B. accordingly And Error brought and assigned because the Declaration is not de bonis propriis 2. Because he sais he was possessed de 3000. cordis ligni and the Defendant cordas praedicti ligni cepit without saying any particular quantity and 3d. because the Declaration is vi armis but all the Exceptions were disallowed by the Court and the Judgment was affirmed Palmâ—r and Sherwoods Case 907. A Trespass for carrying away goods The Judgment in B. R. was that the Plaintiff should recover his Damages for part and the Defendant capiatur and that the Plaintiff sit in misericordia pro residuo transgressionis which is said to be Error and that the Judgment ought to have bin Quaerens nibil capiat per billam pro residuo transgressionis Sed non allocatur but the Judgment was affirmed Chamberlain and Nichols Case 908. In debt upon a single Bill for payment of money at a day the Defendant pleaded payment without an acquittance Issue upon it Judgment for the Plaintiff in B. R. Error assigned because the Issue was joyned upon a matter not material nor pleadable viz. payment without an acquittance but because it was after Verdict and the Error assigned in the Plea which the Defendant himself had pleaded The Judgment was assirmed Only and Font Le Roys Case 909. Debt being against an Executor he pleaded there was another Executor who administred and was alive and concluded Judgment si Action whereas he ought to have pleaded to the abarement of the Bill The Plaintiff replyed Billa cassari non debet It was objected to be Error out holden good notwithstanding the Bar of the Defendant would have concluded the Plaintiff Smithwick and Binghams Case 910. Error brought upon a Judgment in B. R. in Ejectione firme because the Plaintiff entituled himself to a Term for years by an Administration taken of the Arch-Bishop of Canterbury and did not alledge that the Intestate had goods in diverse Diocesses but the same was disallowed because it did not appear to the Court whether he had or not but if it had appeared to them they conceived the Administration taken had been void if the Inrestate had not goods in divers Diocesses Partridge and Turks Case 911. The case was A. seised of two Messuages in the Parish of St. Brides London demised them to the Parson and Churchwardens of St. Brides ad distribuend ' annuatim 5 s. of the profits to the poor of the Parish in honorem duplicationem omnium illorum annorum quibus Dominus noster Jesus Christus vixerat in terra and gave 20 s. to maintain a Priest and dyed and the Parson and Churchwardens were seised and the Jury found the Act of 1 E. 6. and that the King was seised ut Lex postulat and granted the same to I. S. in Fee who devised it to the Plaintiff for Life and that the Parson and Churchwardens reentred and were seised ut Lex postulat and so demised them to the Defendant The Question was whether Partridge the Plaintiff was in by disseisin or not It was adjudged in B. R. he was not in by disseisin Error was brought and it was adjudged that the gift of A. was good and the giving of 5 s. inter pauperes was no Superstitious use and where part is given to a good use and part to a Superstitious use the King shall have but that Rent which is given to the Superstitious use and the Land shall go to the Devisee 2. It was said the entry of Partridge was no Disseisin because no actual expulsion of the Parson and Churchwardens were found but the Court held that because it is found that Partridge when he made the Lease was seised prout lex postulat his Seisin shall be intended lawful and not by disseisin and it cannot be lawful because the Devise was good to the Parson and Churchwardens and therefore it was by disseisin and afterwards the Judgment was reversed Bucknel and Heys Case 912. Error brought upon a Recovery in Battery in B. R. and assigned that there was no Bail there and upon a Certiorari the Chief Justice certified Bail I. H. without addition and with a Blanck for the place of his Habitation The Judgment there was reversed because no bail for the party who was sued and so he was never in the custody of the Marshal nor could be sued there Turges and Beachers Case 913. In Assumpsit in B. R. the Declaration was That the Defendant was indebted to the Intestate 30 l. for the residue of 100 Quarters of Wheat sold to him by the Intestate The Defendant promised the Plaintiff being Administrator to pay it when he should be required Found for the Plaintiff there the Judgment was reversed because in the case Debt lay and not Action upon the case Ody and Yates Case 914. Note It was holden by all
day and at the time of the delivery there was not any Day written in the Deed but a space for it and that after the Delivery the Plaintiff put in a Day and so Non est factum It was conceived the Plea had been better to have set forth the special matter per quod scriptum praedict perdidit effectum and Judgement if Action 85. Lands were given to Husband and VVife in tayle The Husband by Fine and Deed inrolled aliened the Land and dyed Resolved That the VVife might enter by the Statute of 32 H. 8. although the words are Of Tenements being the Inheritance or Freehold of the Wife And it was holden That by the Entry of the VVife the Inheritance of the Heir should thereby be recontinued 86. A man made a Feoffment to divers persons that they should infeoffe the Son of the Feoffor and his Wife in tail the remaynder to the right Heirs of the Feoffor who made the estate accordingly and the Son dyed It was Resolved the same was a Joynture within the Statute of 27 H. 3. cap. 10. for although she did not clayme it by the Ancestor himself but by his Feoffâ—rs yet because the Feoffes derive their Estate from the Ancestors of the Husband it is within the Statute But if he had bargained and sold the same upon trust to make the Joynture it had not been within the Statute 87. Resolved That an Action upon the Case doth not lye for calling one Adulterer because that is not punishable at the Common Law but in the Spiritual Court 88. Two Joynt tenants make partition by word and for equality of the partition one assignes to the other a Rent It is void if he hath not a Deed of it 89. In a Praecipe quod reddat at the Nisi Prius the Tenant made default and Petit Cap. returned at which day he in the Reversion prayed to be Received and was so received by the Rule of the Court notwithstanding he did not require it at the Nisi Prius 2. By the Equity of the Statute of West 2. he in the remainder shall be received upon the default of the Tenant for life although the words of the Statutes be ad quos spectat reversio 90. Resolved by the Justices That the Coroner super visum Corporis cannot enquire of an Accessary after the Murder 91. Two were joyntly and severally bound in an Obligation in Debt brought the Defendent said the Plantiff recovered against the other the same Debt and had Execution and adjudged a good plea notwithstanding it was not shewed by what proces he had Execution because the Execution is on Record and shall be tryed by the Record but if he paid the monies in pais to the Plantiff and not in Court It is not an Execution of the Judgement 92. A Recordare was to remove a Plaint in Curia nostra and the plaint was in Curia Mariae Resolved that for this variance the Record was not removed for it could not be the plaint whereof c. 93. It was said If the Defendant will plead to the Writ matter apparent within the Writ he must begin his plea with Petit Judicium of the Writ but if he plead matter de hors as Joyntenancy or Nontenure c. he shall make the conclusion in such manner only and not the beginning 94. Ejectione firme Of a Lease made by the Prebendary Ecclesiae Beatae Mariae whereof the foundation was Ecclesiae Beatae Mariae de Thornton and Thornton being omitted the Leaser to make it agree entertayned the words de Thornton It was the opinion of the Justices That non est factum is no proper plea because it was once his deed but he is to shew the special matter and demand Judgment of Action vide before 95. A Rent was granted to I. S. for life the remainder to I. D. in Fee I. S. dyed the Rent was behind he in the Remainder destraind and avowd for the Rent and good for the grant was good to him in the remainder which took effect with the particular estate and so adjudged 96. One made his Will in this manner I have made a Lease for 21. years to I. S. paying but 10 s. Rent adjudged a good Lease at Will and the word I have shall be taken in the present tence 97. Replevin The Defendant avowed for a Rent charge granted to him but did not alledge any seisin of it within the years according to the Statute of 32 H. 8. Cap. 2. and yet holden good for the Statute is to be intended where seisin ought to have been alledged before at the Common Law 98. Dower The Case was The Husband made his Will thereby devised all his Lands to his Wife the now demandment during her Widdowhood and dyed the Wife entred by force of the Will and after took Husband It was the opinion of the Justices that this estate devised being as great an Estate for her life and her acceptance of it she not being Compellable to Marry was in the nature of a Joynter to her and a good barre of her Dower 99. Note by the Justices If a man seised of a Rent charge be bounden in a Statute and Execution be sued upon it the Rent shall be extended in Execution and yet the Statute de Mercatoribus speaks only of the Goods and Lands of the debtour and doth not speak of Tenements or other things 100. I. S. Tenant in tail by Indenture upon Consideration of Marriage Covenants to stand seised to his own use for life and after his death to the use of his Son and heir apparant Resolved there is no change of the use but only during the life of the Tenant in tail 101. A man seised of Land in the right of his Wife makes a Lease for life the remainder in Fee and afterwards he and his Wife recovers the same Land in a Writ of Entry against the Tenant for life Dyer held the Wife should be remitted and no act shall be adjudged in the Wife for the bringing the Writ shall be adjudged the sole act of the Husband and not of the Wife Quaere if she shall not be estopped by the Record 102. Note by the Justices That a Writ of Curia Claudenda lyeth of a Close which lyeth in a Field aswell as where there are 2. Messuages Courts oâ— Gardens adjoyning But after Imparlance in this Writ the Defendant shall not have the view 103. In a Quid juris Clamat after Issue joyned upon Ne dona pass at the Nisi Prius the Jury gave a privy verdict the Court being risen for the Defendant and had License to eat and drink and at another day when the Court was sitting they returned and gave an open Verdict for the Plantiff Resolved That Judgement should be entred for the Plantiff for the last Verdict which is given openly in Court is the Verdict in fact and not the first and the eating and drinking of the Jurours before the second Verdict given doth not
passed against the Plantiff who thereupon brought an Attaint and alledged that the Jurors to the Attaint had not the view of the Tenements in demand It was the opinion of the Court that after the Verdict given it cannot be alledged that the Jurours had not the View and Judgement was given without the View 177. In Dower the Defendant pleaded That the Husband of the demandant did not dye seised so that she could not have damages and because there were Woods upon the Lands she prayed a Writ of Estrepment Quaere if it doth Lie It was not Resolved Griffiths Case 178. Lessee for years suffered the Banks of the River of Trent which ran by the Lands let to be unrepaired so as the Water brake the Banks and drowned the Lands Adjudged That River was not so violent but that the Lessee by his Industry might repair the Banks and to make the water run in its Current and therefore adjudged it was Wast 179. Debt was against Executors upon an Obligation which was that if the Testator or his Executors at Mich. every year during the life of the Obligee delivered to the Obligee a Load of Dung that then the Defendants pleaded that they and their Testator had performed not shewing how which was found against them It was adjudged that for this false plea of the Executors Judgment should be against them de bonis propriis 180. One was named in the Original in Debt A. B. of C. in the County of Denbigh He appeared upon the Cepi Corpus and said that he was dwelling at D. at the time of the Action brought It was holden it was No plea that he was not dwelling at C. at the time of the Action brought unlesse he say Ne unque puis 181. Lands in London which by the Custom were deviseable came to the King by Escheat who granted them over to I. S. to hold by Knights service It was holden That notwithstanding the Statute the devise of the whole Land was good as it was by the Custome which is not taken away by the Statute 182. The King by his Letters Patents gave authority to his Surveyour to make Leases of certain Lands for life reserving the antient Rent He by Indenture between the King of the one part and I. S. of the other part Quod Dominus Rex dimisit c. and the Surveyour put his own Seal to the Deed. It was adjudged a void Lease for he ought not to have put his Seal to it but the Seal of the King and it cannot be the Lease of the King without his Seal 183. Grandfather Father and Sonne The Grandfather is Tenant for life the Remainder to the Son in tayl the Remainder to the right Heirs of the Grandfather The Grandfather suffers a Recovery and levyes a Fine with Proclamation to I. S. and after the Statute of 27 H. 8. is made and the Grandfather enfeoffeth the Sonne of the Land and dyeth Resolved that the entry of the Father upon the Son was lawful and he shall not be estopped by the warranty of the Grandfather for that the Warranty was gone by the reprisal of the estate and it was holden That although the 5. years were past in the life of the Grandfather yet when the Grandfather dyes the Father shall have other 5. years to make his Entry or clayme and that by the Statute of 4 H. 7. 184. Lessee for years rendering Rent upon Condition if the Rent be behind the Lessor to Reenter a Recovery in Debt is had against the Lessor and the Reversion and Rent extended by Elegit and given in Execution It is a good Execution and the Condition suspended so as if the Rent be behinde the Lessor cannot enter into the other moety 185. Two Tenants in Common of a Wood one Leaseth his part for years who cuts Trees and commits Wast he shall be punished for the moety of the Wast and the Lessor Recover the moety of the Land Wasted 186. The Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free Chapel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majesties Free Chapel of of the Castle of Windsor in the County of Berks. Resolved the Lease was good for although the King in the Act of Parliament call it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Newdigates Case 187. Lessee for life and he in the Reversion joyned in a Lease for years Lessee for life dyed the Lessee committed Wast Resolved that during the life of the Lessee for life it was her Lease and the Confirmation of him in the Reversion But when the Tenant for life dyed then it was the Lease of him in the Reversion and that he should have an Action of Wast ex divisione propria 188. A man hath 3. daughters and Covenants with I. S. that he shall have the disposition in marriage of one of them the Election is in the Father of which of the daughters the other shall have the Mariage and he is not to deliver the daughter till request but upon request he is to deliver the daughter to I. S. otherwise he cannot have the effect of the Covenant 189. In a Writ of False Judgment the Sheriff returned Quod accept is secum 4. legalibus Militibus de Com. suo accessint c. Et recordum illud habeo c. coram c. sub sigillo meo sigillis praedict Militum It was adjudged to be no good return nor the Record removed but it ought to be sub sigillis ex his qui Recordo illo intersuerant and not of the 4. Knights 190. It was holden by the Justices that if upon the Exigent the Defendant hath a supersedeas but doth not deliver the same before the 5th County so as he is returned Outlawed yet because the Supersedeas was upon Record the Justices held the Outlawry to be void 191. A Writ of Wast was Quod secit vastationem in the Land and assigned the Wast in cutting down of Trees It was holden that was not good but if he had assigned the Wast in digging of Clay or such other things it had been otherwise for that is Wast in the Land 192. A man devised his Lands to his eldest Son in Tail the remainder to his youngest Son in Tail the remainder to his Daughter in Tail and if they all dyed without Issue that then the Land should be sold by his Executors the eldest entred and dyed without Issue the younger Son entred and suffered a Comon-Recovery and after dyed without Issue and the daughter also dyed without Issue Resolved That the Executors could not now sell the Land 193. Note If an Enfant levy a Fine and take back an Estate for life or in Tail by render he shall not avoid after the Fine by
was adjudged Murder for the Malice which he had to Herbert 208. A man made a Lease for years upon Condition if the Rent was behind the Lease to be void the Rent is behind the Lessee continued possession for 3. years after the Lessor brought debt for the Rent for all the time Quaere if it doth lye the Justices were divided in opinion Moreton and Hopkins Case 209. In a second Deliverance by A. against H. the Defendant he made Conusance as Bayliff to I. S. and M. his Wife The Case was the Plainâ—iff 17 Octob. 4. 5. Mar. by deed granted a Rent of 10 l. to B. and to E. and W. the younger Son of the said A. Habend for the life of E. to the use of E. and gave seisin of it W. and E. so seised W. dyed E. took Husband I. S. who for 5 l. Rent arrere avowed The Plaintiff said That the said I. S. Z October 7. Eliz. acknowledged that he had received 5 l. of the Plaintiff of the said Rent It was adjudged that the said receipt and acquittance of I. S. the Husband was a good barre of the Conusans Howse and the Bishop of Elys Case 210. In Debt the Plantiff declared that the predecessor of the Bishop granted to him the Office of keeping the Mansion House of D. of the Bishop for the Term of his life with the Fee of 2 d. per diem to be issuing and paid out of the profits of the said Rents and Farme of D. by the Receiver of the Bishop and also an yearly Robe which grant was confirmed by the Dean and Chapter the Bishop dyed the Annuity and Robe was not paid for which the Plaintiff brought his Action against the Successor Bishop who pleaded that the Plaintiff did not exercise the said Office and because D. was within the Isle of Ely where the Kings Writ did not run a Venire was to the Sheriff of Cambridge from S. next adjoyning to D. in the said â—sle of Ely who found for the Plaintiff and he had Judgment to recover the Annuity and the Arerages and the Robe and that the grant did binde the Successor Luken and Eves Case 211. In Replevin The Defendant avowed for that A. was seised of the Mannor of D. in Fee and had a Leet within the Mannor to be holden in the Feast of c. and let the Mannor to the Defendant for years And that the Defendant held the Court Leet such a Feast and that the Plaintiff was an Inhabitant within the Leet at the time and being Summoned to appear at the said Leet did not appear which being presented by the Homage he was Amerced 5 s. which was afferred and for the Amercement the Defendant did destrain The Defendent pleaded that he was not a Resient within the Leet at the time which was found against him wherefore the Defendant was adjudged to have a Return of the Cattel and his damages Stephens and Clarks Case 212. Quare Imp. King Henry 8 seised of the Mannor of D. and the Advouson Appendent presented I. S. the Mannor with the Advouson by Discent came to the Queen who granted it to the Lord Stafford and his Wife and the Heirs of the body of the Lord the Lord Stafford dyed His Wife and eldest Son granted the Mannor and Advouson to I. D. and his Wife for their lives The Incumbent dyed who during the Avoydance granted the Advouson to the Plaintiff It was Resolved That the grant of the next Avoidance to the Plaintiff during the Avoidance was void in Law Playn and Crouches Case 213. A Villein was Regardant to a Mannor the Lord of the Mannor had not seisin of the Villein nor any of his Ancestors from 1. H. 7. to this time but they had seisin of the Mannor to which the Villein was Regardant and if seisin of the Mannor was seisin of the Villein was the Question The Issue in an Assise being upon the seisin Quaere It was not Resolved It was Conceived that in favore Libertatis the Lord could not now seise the Villein No Judgment was in the Case 214. If the Husband be seised of Land in the Right of his Wife the Husband makes a gift in Tail of it rendering Rent and afterward the Husband and Wife grant the Reversion by Fine It was holden it should bar the Wife of the whole but if they had granted the Rent only then the Wife after the death of the Husband might enter into the Land 215. A man Leaseth a Mannor for years rendring Rent with a Reentry a stranger recovers in Debt against the Lessor and hath Elegit upon the Judgment Resolved he shall have the moyety of the Reversion and the moyety of the Rent in Execution and the Condition is suspended for the whole vide before 216. Tenant in Tail makes a Lease for 21 years and afterwards makes a Feoffment in Fee with a Letter of Attorney to make Livery who enters and ousts the Lessee and make Livery Adjudged It was a discontinuance And it was said That it was adjudged in the Earl of Warwicks Case A man made a Lease for life and afterwards made a Feoffment in Fee and a Letter of Attorney to make Liver who ousted the Lessee and made Livery That it was a good Feoffment and if the Lessee for life reentred the Reversion remainder in the Feoffee 217. A maid Servant conspires with her Lover to rob her Mistrisse the Man comes in the night the Maid hides him and after the Man kills the Mistresse Adjudged Murder in the Man and Petty Treason in the Maid Servant Symonds Case 218 A. 24. H. 8. Covenants with I. S. that all persons who were Feoffees of Certain of his Land should be seised thereof to the use of the said A. for life and after his decease to the use of W. his Son and M. S. and the Heirs of their bodies begotten and for want of such Issue the remainder to the Right Heir of A. and after he makes a Feoffment to those uses W. and M. S. intermary A. dyeth After 27. H. 8. the Husband aliens the whole and dyeth his Wife enters into the whole Adjudged her entry into the whole was not Lawfull but only for a moyety and it was agreed that several moyeties may be of an Estate tail aswell as of a Fee simple between Husband and Wife 219. A man made a Feoffment to the use of a Woman for â—â—fe who was a Feme sole at the time the remainder to the right Heirs of their two bodies the remainder to his right Heirs in Fee after they intermarried and the Husband having Tenants at Will of the Lands Devised that the Wife should have the Reversion in Fee so as she pay his debts and Legacies and performe his Will and by his Will deviseth his Tenant should have the Tenements for life and dyeth the Wife takes another Husband who ousts the Tenants at Will It was Resolved the same was no forfeitute of her remainder But if the Will
of B. was behind for which the grantees destrained by their Bayliffs In this Case it was Resolved 1. That this demise and Lease was joynt and entire and so was the Condition of it notwithstanding the several Reservations of the Rents 2. That the grantee of parcell of the Reversion could not take advantage of the Condition but that the Condition as to the grantee was determined 3. That the bargainee was a sufficient Assigne within the Statute to take advantage of the Condition by the Statute of 27. H. 8. of uses which gives Cestuy que use the possession and the Estate of the Feoffees and all the advantages which the Feoffes might have and they agreed the Condition to be determined upon this difference viz. When it is entire one cannot divide it by his own act but by act of Law in may be divided and apportioned and so it was in this Case Hunks and Alboroughs Case 232. A man made his Will and gave divers Legacies and in the end of it he gave all the rest of his goods to his Wife who he made his Executor to pay his debts she took Husband who made the Defendant his Executor and dyed against whom the Wife Executrix brought Detinue of the goods of her first Husband and adjuged maintainable because she took the goods not as Legatee but as Executrix Harwell and Lucas Case 233. A. seised the Mannor of K. leased 6. acres parcel of it to I. S. for 21. years without any Remainder and after lets the 6. Acres to I. D. for 26. years to begin after the expiration of the first Lease rendring rent and afterwards made a Feoffment of the Mannor and all his Lands to the use of the Feoffees their Heirs upon Condition if they did not pay 10000 l. within 15. dayes then it should be to the use of himself and his wife the Reversion to their second Son in tayle with divers Remaâ—nders over the Remainder to his right Heirs Livery was made of the Land in possession and not in the 6. Acres the Money was not paid afterwards the first Lessee for years attorned the Husband and wife dyed the first Lease ended the second Lessee dyed his Wife married the Defendant The Son of A. distreyned for the Rent It was adjudged in this Case That although the reversion of the 6. Acres did not passe by the Livery without attornment yet the attornment of the first Lessee was sufficient and although the use to the Feoffees and their Heirs was determined before the attornment yet the attornment was good to passe the Reversion to the last contingent use and so the Title of the Sonne of A. to the Rent was good Cranmers Case 234. King Henry 8. made a Lease of Land for 21. years the Reversion came to E. 6. who Anno primo of his reign granted the same to Cranmer Bishop of Canterbury He 6 E 6. granted the Reversion to D. and C. to the use of the Bishop for life the Remainder for 20. years to the use of the Executors of the Bishop the Remainder in tayle to the Grantor the Remainder to his right Heirs The Bishop in time of Queen Mary was attainted of Treason and all his Lands and Chattels given to the Queen by Act of Parliament The Queen was possessed of the Term for 20. years and granted the same to I. S. It was adjudged That the term for years in remainder was never in the Bishop to forfeit but it was only an authority to nominate Executors in whom the Term should vest by purchase and because by reason of his Attainder he could not make Executors the Term for 20. years did never rise and so the Grant of it by the Queen Mary to I. S. not good See Dyer 310. contr Plastow and Batchâ—llors Case 235. Aâ—man brought a Formedon in Discender and pending it he brought a Writ of Estrepment which he delivered to the Defendant who notwithstanding the Writ afterwards committed Waste It was adjudged the Plaintiff should recover his Dammages and Costs Manwoods Case 236. Wast was brought and assigned in digging of Clay and selling of it and in plowing of Meadow and cutting down of 100. Oaks The Defendant pleaded Not Guilty as to all but cutting down of 6. Oaks which grew in a Hedge row which he said were Pollards not sufficient for building upon which it was demarred and adjudged for the Plaintiff Calthrops Case 237. Ejectione formae The Case was A. seised in Fee 26 H. 8. in consideration of Marriage between E. his Brother and F. the Daughter of W. and 200 l. of Money paid by W. covenanted to execute an Estate of the Mannor of N. to the uses following viz. of Lands of the value of 20 l. to the use of the said E. and F. for their lives and after carnal Copulation to the use of the Issues of their Bodyes with remainder over to E. and the Heirs of his Bodye the remainder to the right Heirs of A. and of the residue to the use of A. for life the remainder to E. F. for their lives and after carnal Copulation the remainder as before and afterwards he executed the estate by Fine and Recovery to the said uses The Marriage did not take effect but E. by another Wife had Issue 3. Daughters A. took a Wife and had Issue by her and dyed E. and F. dyed C. conveyed the Mannor to D. upon whom the eldest Daughter of E. entred and made a Lease of her part In this case It was resolved 1. That the use for the life of E. and F. did well rise although the marriage took no effect the use being declared upon an Estate executed which needs not any consideration but otherwise if it had been upon a Covenant to stand seâ—sed upon consideration of Marriage and Money for there without Marriage no use would rise although the Money was paid 2ly That the Election should go to him who was to take the use 3ly That the limitation was not void for the incertainty 4ly That in this Case although the Cestuy que use did not make the Election during his life yet he in the Remainder might after his death 5ly The Court doubted whether the Remainder did take effect because the Marriage did not take effect and they conceived it was not the intent of the Parties that should be advanced with so much Land if the Marriage did not take effect The matter was afterwards ended by Arbitrament Lane and Coopers Case 238. The Case was The Mannor of H. to make a Joynture was conveyed by a Deed in Latine to himself and his VVife for the Term of their lives the Reversion Seniori puero de corpore ipsius W. H. Haered de corpore suo legitimo procreato the Remainder to the general tayl to the Husband the Remainder to I. S. in fee thereof Afterwards by an Indenture between him and I. S. in English he covenanted that he and his wife should levy a Fine to B. and C. to
was deceived in her grant 2ly That the Patent a die Consectionis for life was void 3. Resolved That the Lessee for years could not be an Occupant against the Queen Banks and Whetstones Case 487. A Recovery and Judgment was in a base Court in a Plaint in detinue of 4 l. of mony the Judgment was Reversed because that Action nor a Replevin doth not lye of money Hawle and Vaughans Case 488. In a Writ of Entry in the Quibus brought in Wales the Defendant pleaded Non disseissivit pendant which plea the general pardon 35 Eliz. was made by which all Fines Amercements and Contracts were produced It was Objected the Defendant ought to have been Amerced because the general pardon did not discharge the Amercement Resolved the Original Cause of the Amercement was the Tort and contempt that he did not render the Land to the demandant and the Original Cause being pardoned the Amercement which is the Consequent of it is pardoned Oland and Burdwicks Case 489. A Woman who had her Widdowes estate of Copyhold Land sowed the Land and before severance took Husband The Lord took the Emblements and adjudged Lawfull because the estate of the Woman determined by her own Act. Short Tucker and others Case 490. In Replevin the Defendants avowed as Bayliffs of the Queen for an Amercement and then one of them dyed Adjudged the sute should not abate Harbin and Bartons Case 491. Two Joynt tenants in Fee one made a Lease for years to begin after his decease and dyed Resolved it was a good Lease against the survivor Vide Sharpner and Hardenhams Case adjudged in the Dutchy Chamber accordingly Gramminham and Ewres Case 492. The Condition of an Obligation was whereas the Obligee is bound in certain Obligations the Obligor is to deliver them to the Obligee before Mich. or else if the Obligor seal an acquittance to the Obligee such as the Councel of the Oblige shall devise then the Obligation to be void Resolved that the first part of the Condition was a Condition the 2d part of it gave an Election to the Obligor but if there be not any such devise of Acquitance yet the Obligor is to performe the first part if there be such devise of an Acquittance the Obligor hath his election but if the Councel devise no Acquittance it is no discharge of the whole Condition Castleman and Hobbs Case 493. Words viz. Thou hast stolen half an Acre of Corn innuendo Corne severed adjudged the words not actionable But if he had said he had stolen so many Loads or Bushels there the innuendo shall be intended Corn severed Wilson and Patemans Case 494. The next of blood sued to repeal Letters of Administration granted to a stranger pendant which the stranger sold the goods and afterwards the Administration was Repealed and granted to the Plaintiff It was Resolved that in this Action the Defendant was not Chargeable though he Converted the goods The Action was Trover and Conversion and the fale good for any thing appeareth in the Case Watsons Case 495. Debt against Executor who pleaded fully administred the case was the Wife of the Defendant was made Executrix and she by fraud to deceive the Creditors made a gift of the goods before her mariage with the Defendant and yet she kept them and took Husband the Defendant and dyed and the Husband had in his hands so much of the goods as were sufficient to pay the Creditors It was adjudged against the Defendant because he had confessed himself Executor by his plea of fully Administred and the property of the goods did not passe from the Wife by the grant the same being by fraud Richardson and Yardleys Case 496. A man devised Lands to his Wife for life and after to his Son and if he shall dye without Issue to the Child which his Wife goeth with she being great with Child and its issues in Tail And if my Wife dye and my Children without Issue of my Children living then Land to remain to I. S. and his Wife and after their death to the their Children The point was if I. S. had an estate Tail or an estate for life the remainder in Tail to his Children The Court was divided in opinion but the better opinion seemed to be that he had an estate Tail Quaere Reynolds and Claytons Case 497. Debt upon Obligation of 60 l. The Case was it was agreed between the Plaintiff and Defendant 14 December that the Plaintiff should lend the Defendant 30 l. to be repayed the first of June following and that the Plaintiff should have 3 l. for the forbearance if the Plaintiffs Son should be then living and if he died then to repay but 26. l. of the principal money It was Resolved that it was an Usurious contract within the Statute of 13. Eliz. of Vsury Roos and Awdwicks Case 498. In Ejectione firme the case was A. seised of Lands made a Lease to I. S. Habendum to him and his Assignes for his own Life and for the lives of two of his Sons the Lessee made a Lease at Will and died he in the Reversion entred upon the Tenants at Will Resolved It was a good Lease for three Lives against the Lessor and if the Lessee made an Assignment of it it shall be good for the three Lives but if he do not the Occupant shall have it for the two Lives after the death of the Lessee himself Wrights Case 499. Quare Impedit It was Resolved in this Case That if a Church become void by Cession viz. by making the Incumbent Bishop that the Queen shall have the Presentation and not the Patron Hide and the Dean and Canons of Windsors Case 500. Covenant The case was Lessee for years covenanted Reparare sustentare domus c. ad omnia tempora necessaria durante Termino and did not covenant for him and Assignes Upon Issue joyned it was found for the Plaintiff Error brought because the Issue is non permisit essem de casu and the Covenant is Reparare The Court held it no Error because non reparare is all one with permittere esse in decasu 2. It was Resolved that the Covenant did lie against the Assignee though Assignees were not named in it because it was a Covenant inherent to the Land Marshall and Vincents Case 501. In a Scire facias against the Bail he pleaded that the Plaintiff had arrested the party who was condemned in Execution in the Staâ—nary Court so as he could not render his Body Adjudged no Plea because he might remove his Body with a Corpus cum causa and so bring him into this Court. Sawyer and Hardys Case 502. A Lease was made to a Widdow for 40. years upon this Condition Si tamdiu vixerit vidna inhabitaret supra praemissa She died within the Term being a Widdow Adjudged the Term was not determined but should go to her Executors Otherwise if the Lease is made for 40. years if she shall so
liberty of Exemption was extinct by the Act of Parliament and the Kings intent was not to grant such a Liberty as was excinct and as to the non obstante it was not sufficient being general but if the Grant or non obstante had been particular there the Grant should have been good Matthew and Woods Case 449. Judgement was given in B. R. in an Action upon the case for words the Plaintiff there brought another Action in C. B. for the same words and had Judgment to recover Error was brough upon the Judgment in B. R. the Court was of opinion to confirme the Judgment in B. R. but they in discretion would not grant execution upon it but only upon the Judgment in their own Court Thimblethorps Case 550. Words viz. when wilt thou bring home my Husbands sheep which thou hast stollen adjudged actionable and the damages to be paid by the Husband Hilliard and Constables Case 551. Words spoken of the Plaintiff a Justice of Peace and Vice President of York viz. He is a blood-sucker and thirsteth after blood but if any man will give him a couple of Capons or a score of Weathers he will take them It was adjudged the words were not Actionable because he may thirst for blood in care of Justice Wheeler and Collyers Case 552. Assumpsit against an Administrator whereas the Intestate was in his life endebted to him 17 l. in consideration the Plaintiff would deliver to the Administrator 6. barrells of Beere he promised to pay the whole 20 l. being found for the Plaintiff Judgment was stayed because the action did not lye joynt for two sums of money Colmans Case 553. In consideration of 4 d. one promised to pay 10 l. upon non Assumpsit Damage shall be given to 10 l. and not to 4 d. adjudged Awder and Nokes Case 554. Lessee for years assigned over his Terme by deed to I. S. and Covenanted that I. S. and his assignes should enjoy the Land during the Terme without Interruption of any After I. S. assigned over his Terme by word and the Assigne being disturbed brought Covenant adjudged it did lye although the Assignement was but by word because there was privity of estate Paramoure and Darings Case 555. The Condition of an Obligation was to pay all Legacies which I. S. had bequeathed by his Will Adjudged the Defendant shall be estopped to say I. S. made no Will but he may plead he gave not any Legacies by his Will Grene and Bufkyns Case 556. The Statute of 31 H. 8. gave all Colledges dissolved to the Crown in which there is a Clause that the King and his Pattentees should hold discharged of Tythes as the Abbots held Afterwards the Statute of 1 Edw. 6. gave all Colledges to the Crown but there is in it no Clause of Discharge of Tythes The Parson Libelled in the spiritual Court and the Farmor of the Lands of the Colledge of Maidston in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of opinion that the King had the Lands of the Colledge by the Statute of 1 E. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands comming to the King by that Statute whether they should be discharged of Tythes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Edw. 6. for dicharge of Tythes but it was Resolved by the Justices that unity without Composition or Prescription was a sufficient discharge of Tythes by the Statute of 31 H. 8. 557. Action upon the case for that the Defendant made a Conigree in his own Lands and that the Conies entred into the Plaintiffs Land and destroyed his Corne Resolved that the Action did not lye because they were not the Defendants Conies when they were out of his Warren But in that case it was holden that the Erection of a Conigree or a Dove Cote was presentable in a Leet and finable there 558. Note Resolved in the Court of Common Pleas by the Justices there That an Information doth not lye upon the Statute for Tanning of Leather but only in the Courts of Record at Westminster and not in any other Inferior Courts The Queen and Hussies Case 559. Tenant in Tail of an Advowson the reversion to the King in 32 H. 8. granted it to the King and his Heirs the King granted the Advowson to the party presented Tenant in Tail dyed without Issue the Church became void Resolved that the Advowson did passe out of the Kings Reversion after the estate Tail was determined and that a Quare Impedit brought by the Queen did not lye But in this case it was Resolved That a double presentation would not put the Queen out of possession if she had had Right Nevill and Barringtons Case 560. After Issue joyned in an Ejectione firme and the Jury at the barre ready to try the Issue A Writ was brought to the Justices not to proceed Regina inconsulta in the Nature of Aide and after great debate the same was allowed by the Court Vide aide in personal actions 2 R. 313. Fennor and Plasketts Case 561. It was Resolved in this case That if the Husband distrain for Rent due to the Wife dum sola fuit and Rescous be made he alone may have a Writ of Rescous or at his Election joyne his Wife with him in the Writ 562. A Rescous was returned without shewing the place where Rescous was and the party was discharged Hinson and Baradges Case 563. If the Jury challenge the Sheriff and the challenge be confessed although the Jury be removed and a new Sheriff chosen Yet Resolved The proces shall go to the Coroners 564. It was Resolved in this case that Ejectione firme doth not lye de pecea terrae Hollman and Collins Case 565. A Judgment in the Court of Plimouth was reversed because the stile of the Court was Placita coram I. Majori c. and did not say secundum Consuetudinem villae nec per litter as Patentes c. Kelsick and Nicholsons Case 566. Two Executors were and one of them gave the Obligation to a Stranger for the payment of his own Debt and died The survivor brought Detinue It was adjudged the Action did not lie Sowel and Garrets Case 567. A devise was made to the Son and if he die without Issue or before his age of 21 years it shall remain to another the Son had Issue but dyed before 21. years Adjudged the Son should have the Land and not he in the Remainder and in that Case Ou was construed for Et. Buckler and Harvyes Case 568. The case is very long but this in effect Tenant for Life the Remainder in Fee Tenant for life made a Lease for years the Lessee entred Tenant for Life granted the Tenements to C. Habendum the Tenements from the Feast of Mich following for Life the Lessee for years attornes C. enters and makes a Lease at Will to whom the Tenant for Life
the Lands in question without mentioning of any estate after the death of his Wife and paying 10 l. a peece to his daughter when they enter and if any of the Sons marry and have Issue male of their bodies and dyeth before his enty in the Land then that issue to have his part D. takes a Wife and hath Issue male in the life of the Devisor and the Wife of the Devisor dyeth and he enters and pays the portion of 10 l. a year to the Daughters and after dyes B. the eldest brother enters upon the Issue male of D. It was adjudged in this case That D. had but an estate for life and not in Tail for there were three things precedent to the Tail the Mariâ—ge the having Issue male his death before his entry and when it appeareth he did not dye before his entry therefore he had no â—ail and by the word paying 10 l. to the Daughters he had not a Fee simple but that is intended to be for the estate which he had Grey and Willougbyes Case 626. The Venire bore date in December which was out of Terme but retornable at a day in the next Terme and the Issue upon distresse was afterwards tryed It was held the same was but a misconveying of proces which was helped by the Statute of Jeofailes but if the Agard upon the Roll had been had at a day out of the Terme then the Court held the same to be Error Tiping and Bunnings Case 627. Note It was adjudged that if a Copyhold be granted for life the remainder to another in Fee the admittance of the Tenant for life is the admittance of him in the Remainder because the Lord is not to have a new Fine upon the death of the Tenant for life Cheney and Hawes Case 628. Assumpsit to deliver to the Plaintiff in London certain monies when he delivers to the Defendant certain broad Cloathes there the Defendant pleaded Non Assumpsit The opinion of the Court was that the Defendant ought to have said by way of Answer that the Assumpsit was special have traversed the general Assumpsit in the Declaration Stowels Case 629. If there be two Joynt Tenants and one sole brings Trespas against a stranger who pleads Notguilty Resolved the defendant cannot give in evidence the Joynt Tenancy but he ought to have pleaded it Core and Hadgills Case 630. After Execution awarded supersedias issued quia improvidè emanavit executio but no cause of Restitution was in the supersedeas for which it was said that Execution was done before the supersedeas awarded The Court awarded a non supersedeas with a clause of Restitution in it Coles Case 631. He was Indicted of Burglary the Indictment was quod burglarit ' domum cujusdam Richardi fregit without naming his Sirname and the Judgment holden good Saundleys and Oliffs Case 632. A man was seised of a Messuage and granted the Messuage with all Commons appurtenant and in Trespas the Defendant did prescribe for Common and did aver that all the Farmors of the said Messuage in the place where c. and because it did appear that there was unity of possession of the Messuage and Land in which the Common was claimed the Common was extinct but if the grant had been all Commons usually occupied with the Messuage it would have passed the like Common and so it was adjudged Lewes and Bennets Case 633. The next Avoydance was granted to 2. the one Released to the other who brought a Quare impedit in his own name It was adjudged maintenable because it was before the Church was void Dover and Stratfields Case 634. King H. 7. gave Land in Tail to I. S. his Issue was disseised a stranger being in possession levyed a Fine with Proclamation and 5 years passed the Reversion remaining in the Crown It was holden that the Issue of him was only bound in whose time the Fine was Levyed and no other Issues and that by the Statute of 32 and 34 H. 8. 635. Action upon the case because for money he sold to him Tythes sciâ—ns that he had not any right in them Adjudged the Action did lye by the sciens though there was no direct saying that he had not any right in them Beamounts Case 636. He was taken upon an Excommunicato capiendo and the significavit did not mention that he was commorant within the Diocesse of the Bishop at the time of the Excommunication and for that cause the party was discharged Collins and Willies Case 637. The Father promised 10 l. in mariage with his Daughter the Daughter in consideration thereof promised to pay the 10 l. to the Father upon which promise action upon the case was brought against the Husband It was Resolved that ex rigore juris the Action was maintainable but if the Defendant had pleaded the Covin betwixt the Father and Daughter Popham said the action would have destroyed the Action However the Judgment for the practice was stayed Suliard and Stamps Case 638. Assumpsit that if he being Sheriff would execute a Writ of Execution that he would pay him his Fees due per leges Statuta Angliae and the Plaintiff shewed his Fee was 3 l. the Execution being 60 l. found for the Plaintiff Ir was moved in stay of Judgment that the Plaintiff ought to have shewed the Statute upon which the Fees are due but it was dissallowed because the Action is not an Action upon the Statute so as the Statute ought to be snewed Popworth and Arches Case 639. It was holden in an Accompt that the Defendant cannot wage his Law in accompt for the profits of 14. acres of Land for 6. years Hoe and Beltons Case 640. A Scire fac to have Execution of Damages The Defendant said that the Plaintiff had assigned the damages to the Queen and that the Sheriff by Process out of the Exchequer had extended his Lands for them It was adjudged a good Bar though the Sheriff had not retorned his Writ Hoe and Marshals Case 641. The Defendant was Bail for one F. at the Suit of the Plaintiff F. did not pay the money nor render his Body in a Scire facias against the Defendant the Bail he pleaded that the Plaintiff had released to him all actions after the Bail and before the Judgment It was adjudged the Release did not bar the Plaintiff because the Release was before any duty was due for no duty was by the Bail before the Judgment Coo. 1. part Griffin Lawrence and others Case 642. In Ejectione firme two of the Defendants were guilty and the other not he who was found not guilty died Resolved That the Plaintiff should have Judgment against the others for this Action is but in the nature of Trespass in which the death of one shall not abate the Action Garraway and Braybridges Case Ejectione firme the case was A had Issue F. his eldest Son and B. the Defendant his youngest and conveyed the Lands to the use
The Wife entred and elected one yard Land and a half A. entred upon her Resolved that the use for the Life of the Father did cease in it without entry into the Land of the Wife and that she should haue the Election The Lady Burghs Case 791. A seised of Land bargained and sold the same to B. and C. with power of Revocation by tender of 20. s. to them or one of them in the Hall of the Dean and Chapter of Westminster in Westminster A. tendred the 20. s. in the Hall none of the Bargainees being present nor having any notice of it Afterwards A. covenanted to stand seised to the use of I. S. her Nephew It was Resolved in this Case that the tender of the 20 s. was no performance of the Condition to avoid the Estate 2. That the conveyance by Covenant to stand Seisor for consanguinity should make void the former Conveyance containing the power of Revocation wherefore it was adjudged for the Plaintiff Paramour and Veralls Case 792. The Town of Sandwich did prescribe that if any Goods of any Freeman of that Town came to the hands of a Freeman and citizen of London the Mayor of Sandwich c. had used to write to the Mayor c of London to take good order for restitution and it they refused and did not return the Answer to the Mayor of Sandwich c. and did not make Restitution within 15. days then they of S. used to detain the Body of any Londoner which they should find there till restitution was made It was Resolved by all the Justices that such a Prescription was not good Diggs Case 793. The case is very long but this in effect A man seised of Lands in Fee for diverse considerations covenanted to stand seised thereof to the use of himself for Life and after to the use of his Son in tail Provided that at any time during his Life with consent of divers by Deed indented to be enrolled in any Court of the King to revoke the said uses and estates and to limit new uses and afterwards by Deed indented enrolled in the Chancery he revokes the uses in part of the Land and limits the same to him and his Heirs and afterwards by another Deed he declares that from the time of the enrollment of the Deed in the Chancery that all the first uses in the first Indenture shall be void and that the Land shall be to the use of himself in Fee and after he levyes a Fine of all the Land and after the Deed is enrolled in the Chancery In this case these points were Resolved 1. That he might revoke part at one time and part at another time but he could revoke one part but once 2. That where the Revocation is to be by Deed Indented to be enrolled it is as much as to say by Deed Indented Enrolled for it is no Revocation till enrollment 3. That there was not a compleat and perfect Revocation till the Deed was enrolled in the Chancery 4. That the Fine before the Enrollment had extinguished the power of Revocation 5. If the Fine had not been levyed then by the Revocation the ancient Uses had bin destroyed without entry or claim because he himself was Tenant for Life and he could not enter and Acts of Revocation are as strong as a claime 6. That by the same conveyance the ancient Uses might be recovered their Uses might be limitted Costard and Wingates Case 794. A Lay-man presented to a Benefice before the Statute of 13. Eliz. made a Lease for 60. years which was confirmed by the Patron and Ordinary After the Statute his Successor became bound in an Obligation that the Lessee should enjoy the Term and after he was absent from his Living 80. days It was adjudged the Obligation was not void by the Statute of 14. Eliz. because the Lease for years was good and the Bond for enjoyning it which the Successor cannot avoid 795. Resolved by the Justices of the Kings Bench that if the Sheriff hath a capias against one to find Sureties for the good behaviour he may break the House and enter and arrest the party as well as he may do upon a capias utlagatum Talbots Case 796. He was indicted for Recusancy That being of the age of 16. years and more non accessit ad Ecclesiam c. by the space of 6. months It was said the Indictment was not good for Existens aetatis 16. annorum shall be referred to the time of absence from the Church and not to the time of the Indictment but the Court held the Indictment to be good Lovegraves Case 797. A man sued in the Spiritual Court for calling him Goose Woodcock he being a Clerk A Prohibition was awarded and in this case it was said the High Commissioners could not hold Plea for slanderous words spoken of a Clerk but for laying of violent hands on him they might Binghams Case 798. The case was this Grand-father Father and Son the Grand-father held the Mannor of D. of B. as of his Mannor of S. by Knight-Service and levyed a Fine thereof to the use of himself for Life the remainder to the use of the Father in tail and after to the use of the Right Heirs of the Grand-father the Father died his Son within age B. the Lord suffered a Recovery of his Mannor of S. unto the use of himself and his Wife in tail the Remainder to the use of C. and his wife in tail the Remainder to the Right Heirs of B. B. and his Wife died without Issue C. entred into that Mannor the Grand-father died his Wife died the Son entred and made a Lease for years It was Resolved in this case that as long as the Grand-father lived no Wardship of the body or Land was due because the Reversion remained in himself and the mean man could not be in ward during the Life of the particular Tenant for Life and in case of a Subject as long as the Reversion remained in the Donor or his Heir the Issue in tail should not be in ward to the Lord Paramount when the Son in remainder in tail died his Heir within age â— 2. Resolved that a man shall never have the Wardship of the Heir when the Land was never in his Fee or Seignory of him or any of his Ancestors at the time of the death of the Tenant Bullock and Thornes Case 799. The case upon the matter was shortly this A man conveyed Land to the use of himself for Life and after to the use of divers of his blood with a future power of Revocation as after such a Feast and afterwards and before the power of Revocation began he for valuable consideration sold the Land to one and his Heirs It was Resolved that this bargaine and sale is within the Remedy of the Statute of 27. Eliz. of Fraudulent Conveyances for the Act will not that such voluntary conveyance originally subject to a power of Revocation should stand
Resolved it was a good Saving and that all Justices in their Sessions to be holden within the city might hear and determine Offences committed in the County but no offence done within the city though in the time of the Sessions Heydon Smith and others Case 857. Audita Querela The case was A. and B. seised of Capite Lands and P. seised of Soccage Lands they all three acknowledged a Statute of 8000 l. to R. A. and B. levyed two several Fines of their moyeties to C. and W. to the use of themselves and their heirs until default of payment was of certain Annuities and then to the use of C and W. they after default of payment sold the Lands to H. and D. H. released to D. who devised the Land in tail and died the Devisee in tail died without Issue the Wives of the Plaintiff were Heirs to D. to whom the third part of the Capire Land discended R. had extended the Lands upon Statute before the default of payment of the Annuities and before the Bargain and Sale and although he sued the extent against A. and B. and also P. yet the Sheriff extended the Lands of A. and B. and to defeat the extent and to have Restitution because the Land of P. was not extended the Audita Querela was brought The principal point in this case was if the Bargainee and those which claim under him should have no Audita Querela for the extent made before his time Another point was if the Coheirs should have an Audita Querela without the owner of the two parts all of them being Tenants in common and equally grieved with the extent The case is very learnedly argued pro con but not Resolved Salter and Botelers Case 858. A Rent was granted to A. his Executors and Assignes for the Life of B. out of Bl. acree A. died living a Cestuy que use The Executors of A. distreined for the Rent and averred the Life of B. It was adjudged the Distress was not lawfull because by the death of the Grantee the Rent was determined but if the Rent had been granted to the Grantee and his Heirs the Heir of the Grantee should have bin a special Occupant and he might distrein for the Rent Ewer and Moiles Case 859. In a Replevin by E. in the Kings Bench against M. M. being an Infant appeared there by Artorney also an Imparlance was entred Petit licentiam interloquendi usque and no day was named and Judgment being there given for these Errors the Judgment was reversed Boulton and Bastards Case 860. A. and his Wife seised in the Right of the Husband of the Mannor I. exchanged the same with S. and D. for the fourth part of the Mannor of S. A. died the Wife entred into I. and evicted it for her Life It was adjudged it was a defeating of the Exchange for ever because the exchange was of Land in possession and yet the Justices held that a Reversion might be exchanged for Lands in possession and Note It was said that unequall value or quantity in the one more then the other should not avoid the exchange but otherwise it is of unequality of Estate Stephen and Tots Case 861. T. and his Wife being divorced in the spiritual Court à thoro mensa The Father of the Wife devised a Legacy to her for which she sued the Plaintiff his Executor in the Spiritual Court he there pleaded the Release of the Husband which the Spiritual Judges would not allow of It was the opinion of the Justices in this Case that the Release of the Husband was good notwithstanding this Divorce Sparke and Sparkes Case 862. A man made a Lease for life and after made a Lease for 99. years after the death of Tenant for life if the Lessee for 99. years should so long live and if he dyed within the Terme the Lessor granted that the Land should Remain to his Excecutors and Assignes for 21. years after the death of the Survivor of both the Lessees The Lessee for 99. years granted the Lease for 21. years rendring Rent and dyed Intestate having survived the Lessee for life the Administrator brought Debt against the Assignee of the Terme for 21. years for the Rent It was adjudged that the action did not lye because the Contingent foe 21. years never vested in the Lessee for 99. years the Intestate nor ever was in him to dispose or grant Bridge and Atkins Case 863. Words viz. Thou art an old perjured Knave and that is to be proved by a stake between the ground of such and such adjudged that for these words the Action did not lye Bothes Case 864. He was arraigned of Felony for a second forgery after Cónviction of a former forgery in the Star Chamber upon the Statute of 5 Eliz. of writings concerning the Lands of I. S. In this Case Resolved that no Accessary can be in Forgery but all one principally 2. Resolved that for Felony the Kings Bench might commit one to the Fleet or unto any other Prison and also that a Prisoner who is condemned to perpetual Imprisonment was not Baileable nor Removeable Shaw and Norwoods Case 865. A man by his Will devised 40 l. to two Infants equally the Executrix delivered the money to one to whom the Defendant was Executor who made a Bill testifing he had received the 40 l. to the use of the Infants one of the Infants dyed Intestate his Administrator brought Debt against the Defendant the Executor of the Baylee It was adjudged the Action was maintainable and the specialty although it was not made to the Infants yet it was a sufficient Testimony of the debt Fort and Wards Case 866. A Copyholder had Common of Estovors in the Lords Woods appurtenant to his Copyhold and he purchased the Freehold of Inheritance in the Copyhold and had words in his deed of purchase of all Commons appertaining to the said Messuage Yet it was adjudged that the Common which he had to the Copy estate was extinct but if there had been special words in the Grant of the like Common as he had in the Copyhold before the surrender it had been good and as a new grant of Common Morgan and Slades Case 867. It was Resolved by all the Justices of England that an action upon the Case upon Assumpsit lyeth upon every contract Executory as well as an Action of Debt Seymayne and Greshams Case 868. G. and B. were Joynt Tenants of a house in Lond wherein they had several goods B. acknowledges a Statute and dyed a Writ of Execution came to the Sheriff of Lond. who came to the house with a Jury to extend the goods of B. G. seeing them and knowing the Cause of their comming to the intent to frustrate the Execution shut the Door of the house so as the Sheriff could not do Execution For which the Plaintiff brought his Action upon the Case and layd it to be to his damage of 2000 l. It was adjudged against the
Attorney to sue the principal in his name It was adjudged for the Plaintiff in B. R. and upon Error brought the Judgment was reversed because it was an insufficient Consideration Dickenson and Sheres Case 942. Upon the awarding of the Venire facias upon the Roll the day of the return of it was omitted this being assigned after verdict for Error was holden by the Court not to be Error 943. Note it was Resolved by the Justices that an action lyeth for the Rector of a Parsonage against the Parishoners for not seting forth of their Tythes although the Statute of a Edward 6. drâ—h not appoynt who shall have the action English and Bowers Case 944. Covenant upon an Indenture of demyse of the Rectory of S. in the County of O. The Indenture was made at London and the Venire Issued to the Sheriff of O. It was assigned to be Error but the Court held it good because it shall be of the County where the Land lyeth Heley and Rigs Case 945. A Bill was exhibited in the name of Rigs per Johannem Keeling attornaâ— ' suum and the Warrant of Attorny was posuit lcco suo Gulielmum Keeling the same was assigned for Error but the Justices caused it to be amended and affirmed the Judgement Maylard and Kesters Case 946. Assumpsit In Consideration the Plaintiff would sell and deliver to the Defendant pannos laneos pro funer alibus of a Clark he promised to pay him for them cum inde requisitus esset and alledged he sold and delivered divers Cloths to him viz. 31. yards of black Cloth for 19 l. and recited divers other particulars amounting to 160 l. upon Non Assumpsit found for the Plaintiff Error brought in Exchequer Chamber and the Judgment was reversed because Debt properly lay and not Assumpsit Wolley and Mosleys Case 947. Action of Assault and Battery in B. R. upon a demur the Plaintiff had Judgment to recover It was a Warded upon the Roll à Fierifac to enquire of damages returnable die Martis post tres Trinitatis and the Writ was in facto returned die Mercurii post tres Trinitatis which was the very date of the return upon the Roll and the Plaintiff had damages and Costs 40 l. Error was brought and assigned whereas by the Record of the Continuance the Plaintiff appeared by I. P. his Attorney that before that time he was dead The Court held that to be no Error because the Record is to be credited before the allegation of the party 2. Because there was variance between the Roll and the Writ the Court held that was amendable 3. That the Writ is executed the same day of the Return that was holden to be no Error and so it was said it was adjudged Mich. 37. and 38. Eliz. in Gawen and Ludlows Case In the Court of Wards The Queen and Savages Case 948. A. seised of Lands holden in Capity by Knight service by License 27 H. 8. conveyed the same to his Son and Heir apparent and F. and their Heirs in consideration of Marriage betwixt them who intermarried and 2 E. 6. by Fine regranted the Land to the Father who rendred it to the Son and his Wife and to the Heirs of their two bodies begotten the Father dyed the Son haveing Issue three Daughters dyed 5 Mar the eldest Daughter had Issue Fran. Mooâ—e and dyed 25 Eliz. F. took second Husband W. Savage and they 28 Eliz. Leased the Rectory of K. to I. S. for 60. years and after granted the Reversion of the Rectory and Leased the Mannor to A. Savage for the life of F. Afterwards a Common Recovery was had in which S. and his Wife were vouched The Queen prayed to have the Wardship of Fran. Moore and to have the primer seisin and profits of the Land after the death of the Wife W. Savage averred the Recovery was to the use of himself pretending thereby that the Issues in Tail of the Son of Agnes and F. were barred In this Case it was Resolved for the Queen for one moyety and that the first Feoffment by A. to his Son F. before Marriage was not within the Statute of 11 H. 7. but when they Reconveyed back the Land that was a Conveyance of each of them their parts and then the render of the whole to them in special Tail as to the moyety of the Son the gift of the Father to the Son and his Wife within the Statute of 11 H. 7. but as to the gift of the Wife by the Fine was not within the Statute but the Recovery as that should bind the Issue Fishers Case 949. It was found by Office that A. seised in Fee of divers parcells of Lands holden by Knight service in Capite 21. Eliz. by License conveyed them to I. S. and E. his Wife Daughter of the said A. and that afterwards by Indenture he Covenanted for Fatherly love and affection that after the sealing of the said Indenture he would stand seised of the premises to the use of the said I. S. and E. his Wife in Tail Remainder in Fee to a stranger It was not found when the said Indenture was sealed and delivered nor that I. S. and E. his Wife were seised in Tail nor was it found in the Office Sic inde Seisitus did Covenant Notwithstanding these Exceptions it was Resolved that the Office was sufficient wherefore a Travers was to the Office Gervoyes Case 950. A. seised of the Mannor of N. in the County of W. and of Lands called F. in the County of of S. in Consideration of Marrage and for a Jointure for his Wife Covenants that he and his Heirs shall stand seised of the Mannors Lands c. to the use of himself and his Wife for their lives after their deceases to the use of the Heirs of the body of A. The Lands in F. are recovered by verdict from A. only during the Coverture between them A. dyeth his Heir within age It was Resolved in this Case that the Wife should have recompence for the Lands which were Enrolled during the Coverture although she accepted of the Residue of her Joynture after the death of her Hâ—sband Forsters Case 951. The Husband seised of Land in the Right of his Wife which was holden in Knight service the Heir being in Wards committed wast in the Lands Resolved the Husband should be charged to the value of the Lands and lose the possession of the Lands so long as his Wife should live Georges and Stanfields Case 652. Lands by Act of Parliament were assigned to the Countesse of Bindon during her life the Reversion to her Daughter who was in Ward to the Queen the Viscountesse took Husband and she and her Husband committed wast in the Land For the punishing of which a Bill was exhibited in the Court of Wards Resolved that the Court of Wards could not adjudge treble damages for the wast in this Case and therefore the Case was dismissed to Law Bridges Case 953. A. bargained and
the Tenant in Dower shall not avoid it Hall and Fettiplaces Case 993. A man prescribed to make the first crop of the Hay in little Cocks that is no good prescription to discharge the Tythe of After-mouth but other it is of a Prescription to make it into great Cocks or to carry it into the Parsons Barn the same is a good Prescription Forster and Browns Case 994. Lessee for years devised his Term to his Wife for life the Remainder to A. for life if I. S. within two years after her death be not bound in 100 l. to pay 5 l. per an to the said A. for her life and if he do become bound he devised the Term to the said I. S. and the Heirs males of his body and if he dyed without Issue he devised the Remainders A. dyed within a Moneth I. S. never entred bond but dyed having Issue male and the Issue dyed during the Continuance of the Term It was in this Case holden 1. That it was a good Remainder 2. That the Remainder limited to I. S. upon this condition precedent was good and should take effect although he never entred Bond for he had time to do it within two years and then when A. dyed within the two years the Condition was discharged by the Act of God and so the Remainder was good Banks and Brownâ—s Case 995. Copyholder for life surrendred to the Lord of the Mannor in Tail the Reversion in the Crown the Tenant in Tail made a Lease for three lives the Lease to begin from the day of the Date and the old Rent was Reserved and more It was Resolved by the Justices that it was a good Lease within the Statute of 32 Hen. 8 if Livery was made after the day of the date Combes Case 996. It was Resolved by the Justices in this Case 1. That the omitting of a thing or Legacy out of a Will which is appointed to be inserted in it is not Forgery But if a man directs one who writes his Will to limit Land to one for life the Remainder to another in Fee and he leaves out the estate for life so as the Remainder takes present effect the same is Forgery 2. It a man writes a Will without direction and brings it to the Devisor who is non Compos mâ—nt is and he allowes of it the Will is void but it is not Forgery But if a man writs a Will with blanks and then the Devisor is not of perfect memory and the writer fâ—ills up the blanks though this be not Forgery yet it is a Misdemeanor punishable in the writer of it Stoâ—kwells Case 997. It was Resolved in the Star Chamber in this Case That a Purveyor or his Debuty cannot take any thing by way of purveyance without shewing of his Commission 2 That no Purveyor can take Wood or Trees growing upon the Land without agreement made with the owne of the Land 3. That no Purveyor can take any thing by Purveyance which is provided by the Owner for his own provision but of those who have the things to sell 4. That the King is to have the preemption of all things put to sale before others at reasonable Rate Bâ—llew and Brookes Case 998. The Plaintiff exhibited a Bill into the Star Chamber for the pulling up of 16 foot of hedging for putting of his Cattel to take Common there Both the Plaintiff and the Defendants were both Fined the Plaintiff for the Suit being to small a Ryot and the Defendants for the Act done Holloway and Pollards Case 999. A. bargained and sold Lands to B. and his Heirs for 500 l. upon Condition that if he paid 500 l. he should re-enter and be seised to the use of himself and his Heirs untill he should attempt to â—dien without the assent of the bargainee then to the use of the bargainee and his Heirs a Fine was Levyed to the uses the â—00 l. was paid A. aliened to I. S. and I. D. without the assent of the Bargainee Resolved that the use could not rise to the bargainee because the bargainor entring for the Condition broken was in of his old use and estate and the bargainor who came in by the use of the Fine could not â—tand seised to another use for then there should be an use upon an use which cannot be Springs Case 1000. In a Case of a Prohibition It was Resolved that a Parson cannot prescribe against the Composition made by the Vicar for things allowed to the Vicar upon Composition Heywards Case 1001. A. acknowledged a Statute and dyed Extent issued he was returned dead a new extent issued against his goods it was Returned that his Widdow Administratrix had sold them a new Extent Issued against her and her second Husband Andrews and Lord Cromwells Case 1002. In the Case of a Writ of Right it was Resolved That the demy mark may be tendred at the time of the appearance of the Jury 2. That the Tenant shall begin first to give evidence 3. That in this Action the Jury cannot finde a speciall verdict Reynolds Case 1003. Resolved by the Justices in the Case of a Prohibition That Tythes shall not be payd of the Lopping of Trees above the age of 20. years but Tythes shall be paid of Acorns Browne and Wottons Case 1004. In Trover and Conversion of Plate It was Resolved that it was was a good plea that the Plaintiff had brought Trover and Conversion against a stranger for the same plate and had Judgment But it is not so in Debt where a certain sum is demanded Richards Case 1005. He was sentenced in the Star Chamber for divers offences 1. That he took divers sums of mony from the Kings people affirming to them That the King had granted to him the penalty of penal Lawes for which he had Exhibited Informations whereas in truth he never had exhibited any Information and that he being a Deputy Purveyor had charged the people with so great sums of money for purveyance of Beans and Oates and to the purpose to take money for Composition which money he divided betwixt him and others and for divers the like Misdemeanors In this Case it was Resolved 1. That Purveyance was due to the King by Prerogative at the Common Law 2. Purveyors cannot take Trees growing nor transplant fruit Trees nor take without apprisement nor without shewing their Commission 3. That their deputies were under the same penalties as the Masters were and that the Masters should answer for the offences of their Deputies for all the wrong done to the subjects 4. That a Deputy could not make a Deputy 5. That the selling of things which the Purveyors took by way of Purveyance was Fellony The Countesse of Rutlands Case 1006. Information in the Star Chamber against divers Sâ—rjeants at Mace in London for arresting the body of the Countesse The case upon the matter appeared to be this A Capias was awarded against the Countesse out of Common Pleas In which Case
6ly That the Chapters are not of Capacity to take by Purchase or Guift without the Dean who is their Head 147. A man made his Will in this manner Item I give my Mannor of D. to my second Son Item I give my Mannor of S. to my said Son and to his Heirs It was resolved by the Justices that in the first he had but an Estate for life and the Item seems to be a new Guift to a greater Preferment in the second place for the amendment of the other 148. A man seized in Fee took a Wife and afterwards levyed a Fine of his Lands with Proclamation and 5. years passed in his life he dyed and after other 5. years passed Resolved That the Wife should be barred of her Dower because she did not claim it within the 5. years after the Title of Dower accrued 149. Assise against divers who pleaded Nul tort c. the Assise found that all the Defendants were Disseisors but that one of them did the Desseisin with force It was the opinion of the Justices That the Verdict was good for that the Force and Disseisin was two things for Force is not incident to every Disseisin for it should be enquired by the Assise if they or any of them had done the Disseisin with force and if Lessee for years be re-ousted with force and he in the Reversion bring an Assise and the Disseisin is found with force yet the Force is not punishable for the Force was to the Lessee for years 150. Nota. It was resolved by the Justices That if the Demandant do recover in an Assise he may enter and execute the Judgement without being put in seisin by the view of the Recognitors of the Assise but if he be disseised again he shall not have Re-disseisin but is put to his Writ of Post disseisin 151. Note It was agreed by the Justices That if Tenant in tayl discontinue and dyeth and an Ancestor Collateral in the life of the Tenant in tayle releaseth to the Discontinuee with warranty and dyeth and afterwards the Issue in tayle brings a Foâ—medon and is barred by the Collateral warranty if after that which was a Collateral warranty become a lineal warranty as it may yet he and his Heirs shall never have remedy against that Bar But if an Exchange be between Tenant in tayl and another and the Tenant in tayl dyeth and the Issue enter into the Lands taken in Exchange and afterwards brings a Formedon and is barred and dyeth yet his Issue may enter into the Lands exchanged or recover the same by Action notwithstanding the bar in the first Actâ—on for that is out a warranty in Law which is not so strong as a warranty in fact but he may disagree to the Exchange and enter or bring his Action at his Election 152. A man leaseth a Mannor to another with all the members and appurtenances To have and to hold all the members of the said Mannor to the Lessee for years It was holden It was a good Lease of the Mannor for years for the limitation of the word Member was void and so it was a good Lease of the Premisses without the Habendum Sutton and Robertsons Case 153. In Ravishment of Ward the Case was Lord and Tenant The Tenant enfeoffeth the Lord and another of the Tenancy and they reenfeoffed the Tenant It was resolved by all the Justices That the Seignory was extinct for by the Feoffment to them all the Seignory was suspended in their hands and then when they departed with the Lands discharged of the Seignory it was an Extinguishment of the Seignory and when the Lord joyned with his Companion in the Feoffment all passed by the Feoffment of any of them and if the Lord releaseth all his Right in one Acre of the Lands holden it is an Extingushment of the whole Seignory 154. A man by his Will deviseth his Lands to his Wife to imploy and dispose them upon herself and his Sons at her will and pleasure Resolved It was a good devise in fee to her but the Estate in her was conditional by reason of the words eâ intentione which makes a Condition in a Devise but not in a Feoffment Guift or Grant 155. A man recovered and sued forth a Capias ad satisfaciend to the Sheriff who arrested the Defendant and he after escaped and at the day the Sheriff did not return his Writ A Sicut alias issued to the Sheriff upon which the Sheriff arrested him again and the Defendant brought an Audita Querela Resolved the Writ did well lye for although the Parâ—y himself might have a false Imprisonment against the Sheriff because he had not returned his Writ and so was a Trespassor ab initio yet by the first taking in Execution the Arrest cannot be lost by the not returning of the Writ but having respect to the Party Plaintiff he is in Execution by the first taking presently And in this Case it was said That if a man be condemned in Debt or Trespass and be taken in Execution although he be chosen a Burgesse of Parliament he cannot have the Priviledge of Parliament to discharge him of the Execution Term. Pasc 6 Eliz. Broughton and Conwayes Case 156. Debt upon Obligation The Condition was whereas the Defendant had sold to the Plaintiff a Lease of the Mannor of S. that he should not do nor had done any act to disturb the Plaintiff of the possession of it but that the Plaintiff should hold enjoy it peaceably without the disturbance of the Defendant or any other and assigns a Breach That A. had brought a Writ of Dower against one B. of the said Mannor and had Judgment and Execution and so he was disturbed The Defendant said That the Recovery in the Dower was before the sale made to the Plaintiff Resolved The Plaintiff should be barred because the Defendant is not bound by the words of the Condition to warrant the peaceable possession to the Vendee but only for acts by himself done or to be done and here no act was done by him 157. It was holden by the Justices That in an Action brought upon the Statute De Malefactoribus in parcis That notwithstanding that the Queen pardons the offence yet by the Statutee the Party hath remedy for the Trespass done to him 158. A man made a Feoffment in Fee upon Condition that if the Feoffor paid certain Monyes to the Feoffee before such a day or to his Executors or Assignes then he might enter before the Day the Feoffee made the Feoffor his Executor and by his Will gave all his Goods and Chattels to his Wife and dyed Brown Justice held That by making the Feoffor Executour the Debt was released because the Executor could not pay the Debt to himself But the better opinion was that the Feoffee was to pay the Money being a thing Testamentary to the Wife as an Assignee of the Feoffee Quaere the Case was not resolved to whom the payment should
the use of himself and his wife for their lives the Remainder to the use of the eldest Child of the said W. H. and the Heirs of the body of such eldest Child the Remainder over A Fine was levyed accordingly and after his wife died without issue and W. H. married another woman and by her had issue a Daughter his eldest Childe and a Sonne his younger It was a Question which of them should have the Remainder It was the opinion of the Justices That the Daughter should have the Remainder and not the Sonne for that was the intent of the Ancestour as they conceived though puero in Latine is intendable rather to an Issue Male than Female and yet they said That many Authors have taken the word indifferently to extend to both Sexes Mich. 17 18 Eliz. Andrews Case 239. Q. Imp. The Case was A Tenant in Tayle the Remainder to the Lord Mountjoy in fee of a Mannor with an Advowson appendant bargained and sold the same by Indenture not enrolled to I. S. and his Heirs rendring 42 l. rent with Clause of Distress and Nomine pene and covenanted for further assurance to levy a Fine to the Bargainee Proviso that the Bargainee grant the next Avoydance to A. for life and if it happen not void then one life to his Executors A and I. S. afterwards levyed a Fine with the render of a Rent of 42 l. to A. in tayle the remainder to I. S. in fee B. in his life did not grant the Advowson to A. and dyed the Church became void A. entred for the Condition broken It was in this Case resolved 1. That the Proviso made a Condition 2ly That the Fine levyed had not extinguished the Condition 3ly That no time being limited for the regrant the Bargainee was bound to regrant it without request at his peril during the life of the Bargainor if he were requested in the life of the Bargainor and because the Bargainor dyed the Condition was broken Fox and Colliers Case 240. Ejectione firme the Case was E. G. Bishop of York 6. Nov. 18. had made a Lease from the date of the Indenture of Lands for 21. years to the Plaintiff which Lease was confirmed by the Dean and Chapter at which time there was unexpired 4. years of an antient Lease made for 40. years Afterwards E. G. was removed to Canterbury and S. elected Bishop of York the 4. years expired the Plaintiff entred The Defendant upon a Lease made to him by S. after the 4. years ended put him out It was resolved by all the Justices and Barons in the Exchequer Chamber That the Lease made to the Plaintiff was good yet they agreed it should be void if it was not for the Confirmation 2ly They held that the Lease now in Question being to commence presently in Estoppel but not in Interest was not void by the Statute of 1 Eliz. neither within the letter nor the intent of the Statute not within the letter because it is not prejudicial to the Successor and the Statute is satisfied in the intent it not being a Lease longer than 21. years and having the Confirmation of the Dean and Chapter it is now good although it was not good by the Statute of 32 H. 8. Knowles and Lines Case 241. Ejectione firme The Case was Sir Francis Englesfield was seised in the right of K his wife of the Mannor of S. whereof a Messuage and Lands in question were Copyhold demiseable for 3. lives 1 Eliz. Sir Francis Englefield went beyond Sea with license for 3. years after his Licence expired the Queen sent a Privy Seal to him commanding him upon his Allegiance to return he spretis Mandatis of the Queen continued there and adhered to the Queens Enemies This being retorned a Commission issued to seize his Lands upon which the said Mannor of S. was seized The Queen at the Suit of K. his Wife for her Releif granted the Mannor to St. John and Fetiplace the Friends of K. for her Releife quamdiu in manibus nostris fore contigerit who entred and were thereof possessed accordingly and then the Statute of 13 14 Eliz. of Fugitives was made After which the Defendant procured a Warrant from the Lord Treasurer to C. and F. joynt Stewards for the Queen to hold Court within all the Lands of Sir Francis Englefield and to grant Copyes according to the Custom of the Mannor C. alone executed the Grant and granted the Messuage and Lands to the Defendant's being Copyhold In the Case was two points 1. If the Statute of 13 14 Eliz. of Fugitives had taken away the Estate of St. John Fetiplace and reduced the Mannor again to the Queen 2ly If the Court holden by C. only being a joynt Grant of Stewardship was good Resolved 1. That the Statute of 13 14 Eliz. of Fugitives was made in affirmance of the Common law and did not give the Queen any new thing but added only some Circumstances to it and therefore the Grant made to St. John and Fetiplace stood good so as the Queen could not oust the Patentees and so by consequence the Grant of the Copyhold to Lines the Defendant was not good 2ly They held that the Court holden by C. only was good For it was said a Disseasor c. might hold Courts and make admittance and take surrenders and the like because he is but an Instrument of Conveyance but he could not grant Copyhold estates 242. Note by the Justices If a man be to make sufficient proof it may be made by Witnesses produced as by Jury 243. A man seised of Lands parcell Copyhold and of Lands at the Comon Law and by Licence of the Lord makes a Lease of them for 21. years Provided if the Lessor or his Wife or his Heirs or Assignes or any of them give warning to the Lessee that the Husband or Wife or their Heirs will dwell there that then the Lessee should avoid Except that the Lessor or his Heirs shall pay to the Lessee then 20 l. The Lessor and his Wife dyes and the Reversion of one part discendeth to the eldest Son and the Reversion of the other to the youngest and the youngest purchaseth the Reversion of the eldest and then the youngest gives warning to the Lessee It was the opinion of the Justices that the warning given by him was good and that the Law which hath severed the Reversion hath severed also the Condition although at the begining they were entire and so for one part as Heir and for the other part as Assignee he shall take advantage of the Cndition 244. A man makes a Lease of Land and of an House for years reserving one Rent for all and afterwards the Lessor grants the Reversion of all the Lands saving the Reversion of the House to himself Resolved that by agreement betwixt the Lessor and grantee in the Reversion in pays the Rent may be apportioned if it be according to the quantity and quality of the Land
of the Justices that for want of Certainty no use is created by the said Covenant and Consideration but the same amounts to a Covenant and no more and the words Discend come and remain cannot create an Use but to the Heir apparant only 254. In Trespas the Case was The Custom of a Mannor was Quod quilibet tenens per Copiam poterit dimittere terras suas for life in Fee or alâ—ter and that a Woman Cooperta viro poterit devise her Copyhold Lands to any other or to her Husband by the assent of the Husband The Court held that the custome was not unreasonable but because it was poterit devisorre where it should be usi sunt devisorre and also because it appeared that the Plaintiff was Tenant in Common with the Defendant It was adjudged against the Plaintiff 255. A seised in Fee of a Messuage and of divers Lands time out of minde occupied with it let parcel of the Lands to a stranger for years and afterwards made his Will in this manner viz. I will and bequeath to my Wife my Messuage with all the Lands thereunto belonging in the occupation of the Lessee and after the decease of my Wife I Will that it with all the rest of my Lands shall remain to my Younger Son It was the opinion of the Justices that the Wife should not have the whole but only that which was Leased before and therefore that the remainder thereof could not be in the Younger Son till after the death of the Wife and that till the death of the Wife the Eldest Son Heir at Law should enjoy it 256. A man bound himself in an Obligation that he and his Wife would levy a Fine upon reasonable request of the Obligee he made the Request the Wife being very sick so as she could not travail Resolved that her sicknesse did save the Obligation from being forfeited 257. A Copyholder in Fee by License of the Lord made a Lease for years Rendring Rent and having Issue a Son and a Daughter by one Woman and a Daughter by another dyed his Son within age who before any Rent incurred or any admittance dyed Adjudged The Eldest Daugter should have the Land and that the discent of the Reversion is possessio fratris quae facit sororem esse haeredem Kenrick and Burges Case 258. A Lease in Reversion for years was granted to I. S. who dyed Intestate his Wife assigned it to B. and afterwards took Letters of Adminâ—stâ—ation and made an Assignment of it to the Plaintiff Resolved that the last Assignee should have it Trinit 25. Eliz. in Exchequer The Queen Her Almoner and Coxeheads Case 259. The Case was I. S. Anno 9. of the Queen took the Office of Bayliff of the Hundred of A. and 11. Eliz. became indebted to the Queen by Obligation and 13. Elz. he being seised of Land Covenanted with C. in Consideration of Mariage with his daughter to stand seised to the use of himself for life and after to the use of C. and the Daughter in Tail and afterwards he took the Office of Woodwardship of the Mannor of S. and became indebted for that also and then granted a Rent Chaâ—ge for years out of the Land and then C. and I. S. joyned in a Fine to the use of the said I. S. for life the remainder to C. and afterwards I. S. having purchased the Rent and possâ—ssâ—d of goods and Chattells because Felo de so for which his Lands and goods were seized It was the opinion of the Justices the Almonor had no title to his goods because the Patent did not extend to the goods of a Felo de se against the Queen for her debt because it wanted the Words Licet tanget nos and that the Lands and goods of the said I. S. were chargeable as well for the debts which were due by the Obligation as also upon the accompt aswell before the Conveyance as after Wherefore C. paid the Queen her debts and had the Lands cleered Newtons and Barnardines Case 260. A. had Issue 3. Sons F. R. and G. F. dyed his Wife with Child The Father A. devised in this manner viz. To the Child my Son F. his Wife now goeth with 28 l. yearly to be paid to the use of the Child for 20 years And if my Son R. dyeth before he hath Issue of his body so as my Lands discend to G. before he come of the age of 21. years then my Executors shall occupy it till G. be of the age of 21. years the Father dyeth R. enters a Daughter is born who enters and lets the Land to the Defendant rendering Rent It was adjudged That R. in this Case had an estate Tail by Implication of the words of the Will and that the entry of R. was a Lawfull eviction of the Terme and destroyed the Rent Hâ—dons Case 261. It was Resolved by the Justices in this Case An Abbot made a Lease for 8. years of Lands of the possession of the Abby a Copyhold estate being in esse at the time that it was an estate in being as did make the Lease for years void by the Statute of 31 H. 8. of Monasteries The Case of the Skinners of London 262. In Intrusion the Case was A. a Cittizen and Freeman of London seised of divers Messuages and Tenements of the yearly value and profit of 30 l. 6 s. 8 d. by his Will before the Statute of 1 E. 6. devised the same to the Corporation of Skinners and that 42 s. 8 d. thereof should be imployed upon an Obit and 12. Marks yearly thereof upon the Priest and the Residue to be imployed upon poor men of the Corporation decayed by misfortune who inhabited the said Messuages and Tenements and appointed the said poor men to pray for his soul and further with the profits to repair the Messuages and Tenements and after the Statute of 1 E. 6. of Chauntries was made It was the opinion of the Court 1. That Lay Corporations are Excepted out of the Statute for their Lands which they have to increase their Treasure for the good of the Corporation but not for Lands which they have to imploy to superstitious uses 2. Resolved that all the money which was given for the Obit and the finding of the Priest was a superstitious use and given to the King by the Statute but that which was given for the maintenance of the poor men and although it was appointed them to pray for his soul which was a precept suteable for that time and which was given for the Reparations of the Messuages c. was not given to the Crown by the said Statute and Turnors Case was vouched to be adjudged Where Land was given to the intent that his Feoffees should keep an Obit with so much of the profits of it as they should think fit in their discretions that the Land thereby was not given to the Crown but so much of the yearly Rent as the Feoffees imployed to that purpose
Lawfull before he had a discharge of this Office or perfect notice of a new Sherff Johnson and Smiths Case 318. Action upon the Case for slandring of his Title and declared That he was seised of Lands by discent from hâ—s Father and was agreed with I. S. for a sale of the same Lands and I. S. went to the Defendant being an Attorney and prayed his advice for the making the Assurance and that the Defendant said to I. S. that he had heard that the Father of the Plaintiff had granted a Rent Charge out of the Lands in Fee by reason of which words I. S. refused to buy the Lands and all other persons for fear of the said Incumbrance to his damage c. The Defendant said he was an Attorney at Law and I. S. came to him for Counsell in secret he said the words spoken in the Declaration It was strongly urged that although he was an Attorney that would not excuse him because an Attorney is allowed to give Counsell and the utterance of the words in private did not excuse being spoken to the buyer himself But it was Resolved the Action did not lye and adjudged against the Plantiff Dawbney and Goores Case 319. In Disceit D. G. and G. were Joynt Merchants they made F. and S. their Factors in Barbary G. and G. conspired with S. to demand allowance of 1000 l. which was allowed them upon accompt by which D. was damnified for that the money was not due and the truth was S. only made the Account The poynt was if one Factor might make an Account for both and if the two Merchants might take an Account for them all three It was said that they all ought to joyn in Account but one solely might Assigne Auditours to take the Account on the other side it was said there was no Joynture in Merchandize and that one Merchant shall have an Account against his Companion Quaere the Case was not Resolved Hill and Morses Case 320. It was Resolved in this Case That a Copyhold without a special Custome could not be entailed 321. An Enfant acknowledge a Fine before the Cheif Justice but the Conusee would not have the Fine ingrâ—ssed till his full age The Enfant came now with the Note of the Conusance and prayed a Wriâ— of Error and examination of his age which the Justice agreed unto and that an Entry be made thereof and by that save to him his advantage 322. A man sold his Land and Covenanted to save the Vendee harmlesse upon request It was said if the Land be extended by force of a Statute before the request the Covenant is not broken for that now the Covenant is become impossible by the negligence of the Covenantee himself but if he had made request before the extent there the Covenant should be broken for default of saving harmelesse Foreman and Bobâ—ams Case 323. Repâ—evin The Defendant avowed for a Rent charge of 3 s. 4 d. â—issâ—ing out of the place where c. which was one parcell of the Mannor of W. of whâ—ch Mannor I. S. was seised in Fee and 33 H. 6. made a Feoffment of the said Close rendering Rent with distresse and dyed seâ—sed and it discended to his Son who bargained and sold the Mannor with all Lands Rents Reversions services and herediraments which are parcell or had been deemed reputed or taken as part parcell or member of the Mannor and the Defendant as Bayliff of the Heir of the Bargainee made Conusans for the Rent and whether the Rent did passe as parcell of the Mannor was the Question by the bargain and sale It was said it did nâ—t passe by the word parcell but it passed by the words reputed parcell if it were so reputed parcell at the time of the grant Quaere the Case is not Resolved in this Book but vide Pasch 26 Eliz. in B. R. Leon. 1. part 13. there the Judgment was given against the Avowant Justice Windhâ—ms Case 324. A Lease was made reciting that whereas he had made a Lease of one Close to the Lessee for â—0 years rendring 8 s. Rent and another Lease of another Close to the same Lessee for 40 years now he demised to the same Lessee both the said Closes for 40. year from and after the determination of the several demises It was a question if the last Lease was good because there is not any certain time of the begining of it Resolved the Lease was good and the Law shall make an Interpretation of the demise reddendâ— singula singulis how the Terme shall begin Vide Cook 5. part the same Case Dolman and Vavasors Case 325. A. seised in Fee of Lands 15 Eliz. suffered a Common Recovery to B. which Recovery was executed by Habere facias seisinam After the Recovery had it was declared by Indenture between the parties that the Recovery should be to the use of the said A for life without impeachment of Waste the remainder to the first begotten Child of his body and the Heirs male of such first begotten Child and so to his 9. Issues and for want of such Issue to V. the Tenant or Defendant and the Heirs male of his body and if these Indentures were sufficient to declare the uses of the Recovery was the Question It was Resolved that these Subsequent Indentures were sufficient to declare the uses of the said Recovery for so was the Intent of the parties as appeareth by the Indentures and it was adjudged that the declaration by the subsequent Indentures should stand good because there was not any other declaration of any other use Scroggs and Lady Greshams Case 326. Debt upon an Obligation against the Defendant Executrix of Sir Thomas Gresham The Defendant pleaded several Obligations made by the Testator to the Queen amounting to 8000 l. solvendum eidem Doâ—inae Reginae quando requisitus â—uisset ultra quam non habet upon which the Plaintiff demurred because the Obligation not being upon Record but taken in paâ—s was not good for that the Queen could not take but by matter of Record and also the solvendum is not to the Queen and Successors and the Queen is not to have the preferment of payment of her debts unlesse they be debts upon Record But yet in such Case if the Queen first sue she shall be preferred although she hath Judgement after another who sueth The Lord Pagetts Case 327. The Case was the Lord Pageâ—t seised of divers Mannors by deed Indented Covenanted with I. S. and others that in consideration of discharge of his Funerals payments of his Debts and Legacies and advancement of his Son and others of his blood to stand seised of the said Mannors to the use of the said I. S. and others for the Life of the Lord Pagett and after to the use of C. P. and other for 24. years and after the expiration of the said Term of 24. years to the use of William Pagett his Son in tail Afterwards the Lord Pagett
was attainted of Treason The first Question was If the Uses limited to I. S. and others were good or not Resolved they were void because they wanted a good consideration but if he had made them Executors and chargeable to the payment of his debts then the same had been good Second point If the use limited to William Pagett should begin presently after the death of the Lord Pagett or should expect untill the 24. years were incurred after the death of the Lord Pagett or not at all Resolved That the use should be in William Pagett presently before the 24. years were expired Wiseman and Barnards Case 328. The case was Tenant in tail for the advancement of his Blood Name and Issue covenanted to stand seised to the use of himself in tail the remainder to the Plaintiff in tail the remainder to the Queen in see and died his issue entred and suffered a common Recovery and died without issue he in the remainder entred Resolved That the consideration that the Land should continue in his Name and Blood was no consideration to raise the use to the Queen 2. Resolved that he in the Remainder was barred by the common Recoverie and the Remainder not preserved by the Statute of 34. H. 8. because it was not of the Provision of the Queen but of a common person Chenyes Case 329. A seized of Lands made a Lease for years thereof to B. and C. upon confidence for the preferment of the wife of A. and afterwards he made a Feoffment to B. and others to certaine uses of the same Lands the point was If the Lease for years were extinguished by the Feoffment Resolved That the Terme was not extinct but was saved by the Proviso in the Statute of 27. H. 8. of uses which preserved all Interest which the Feoffees had in the Lands to their own uses and here B. had the Term to his own use and therefore not extinguished Pimbs Case 330. A committed Treason 18. Eliz. and was attainted 26. Eliz. In the interim he was Conusee of a Fine levied by I. S. which fine was to the use of the said I. S. and his wife Afterwards I. S. and his wife bargained and sold the Land for money to Pimb It was conceived that the Land was in the Queen upon the discovery of the Treason and Attainder which intitles the Queen to all the Lands which Traitors had at the time of the Treason or after so as the estate of I. S. and his wife was thereby destroyed by the Relation of the Attainder Wherefore Pimb sued to the Queen and she granted him the Land by her Letters Patent Beckwiths Case 331. Husband and Wife seized of Lands in the right of the Wife levied a Fine The husband detained the uses solie one way and the Wife detained the uses upon the Fine another way It was resolved that both the Declaration of the uses were void and so by consequence the uses upon the Fine should be to the use of the Wâ—te and her Heirs The Lord Mountjoys Case 332. The Case was this A Mannor which did consist of Free Rents of 7. l. copyhold Rents of 3. l. and of domaines which had used to be devised for several Rents and Farmes to which Mannor an Acre of waste parcel of the Mannor of the yearly value of 12. d. Heriotts Court Baron Leet and perquisits of Court which never were devised for Life years or otherwise did appertain and were incident was by a private Act of Parliament given to A. and B. in tail with diverse remainders over and the Donees were restrained Quod non facerent aliquid ad Nocumentum or disinheritance of the Tenant in tail or them in remainder and that they should have power to make a Lease for Life Years or at Will rendring the true and ancient Rent of the said Tenements to be demised and that all other acts should be void Tenant in tail accepted of a fine from a stranger of the Mannor by which they granted and rendred the Mannor for 300. years rendring rent yearly amounting to the free Rents Copy rents and Farme Rents and 18. d. more and 12. d. for the waste to be paid at two Feasts whereas the ancient Rent was paid at four Feasts Tenant in tail died and if the Lease for 300. years was to be avoided by the clause of Restraint was the Question It was Resolved 1. That although by the purview of the Act That all Estates restrained by the Act should be void yet the same should not avoid the Lease as to the Tenant in tail himself but it should be avoided by the Issues in tail 2. Resolved That in respect the Acre of waste was never devised before that the Rent which is entire reserved out of the whole cannot be said the true and antient Rent 3. Resolved That the reservation of the Rent at two Feasts where the antient Rent was payable at four Feasts made the Grant and Render void for that was to the hurt of the Issues in tail for it was more beneficial to have the Rent at four Feasts then at two Feasts and all beneficial Qualities of the Rent ought to be observed and for these causes and others the Lease for years was to be avoided by the Issue in tail Knights Case 333. The Case was a Prior seised of divers houses with the consent of his Covent made a lease of them for years rendring rent of 5. l. 10. s. 11. d. at four usual Feasts upon condition that if the Rent was behind in part or in all at any of the said Feasts he and his Successors to reenter The Priory came to the King by surrender the King by his Letters Pattents under the Great Seal granted one of the houses to the Lessee and another in Fee and afterwards it was found by Commission under the Exchequer Seal that parcel of the said Rent was behind at one of the said Feasts the King before the Commission returned granted the residue of the houses to I. S. in Fee It was resolved in this case amongst other things That although without Office found the Lease was not void and although the Office was not returned before the date of the Letters Pattents made to I. S. yet forasmuch as the Office was found before the Grant and afterwards it was returned of Record that the grant was good and that in this case of Reentry without seisure the Lease was void Owens Case 334. Upon a Fine levyed the Lands were rendred to A. and to his wife and to the Heirs of the body of A. A. suffered a Recovery with Voucher in the life of his wife and afterwards died the wife died It was resolved in this case that the Recovery suffered by the Husband only did not bind him who was in the Remainder for betwixt husband and wife there are no moyeties and the joynt estate was not severed by the Recovery against the Husband only and the husband was not the only Tenant to the
Praecipe but the Recovery as to the estate of the Husband took effect only by way of Estoppel but it was no bar as to him who was in Remainder and in this case it was said That if Lands be given to husband and wife and the heirs of their two bodies and the Husband alone suffers a common Recovery that the same should not bind the Estate tail although the husband doth survive the wife Martin and Wilks Case 335. It was adjudged in this Case in B. R. That Land in Antient Demesne is extendable upon a Statute Staple or Statute Merchant Hill 11. Jac. in t C. B. Cox and Barnesbyes Case adjudged accordingly Wolstan Dixies Case 336. A seised in Fee of Lands in London made a Lease to I. S. for years and after by Deed enrolled in the Chancery he sold the reversion to Dixie and his wife and afterwards the Rent was behind and he brought debt against I. S. The Defendant said That after the Lease and before the Sale to Dixie A. the Lessor by Deed enrolled in London bargained and sold the Land to him It was adjudged a forfeiture of the Term and judgment was for the Plantiff Rudhall and Milwards Case 337. Rudhall Serjeant at Law Cestuy que use before the Statute of 27. H. 8. Devised the use to C. his younger Son and the Heirs Males of his body the Remainder to I. his eldest Son and his Heirs upon condition that C. should not alien nor discontinue but for the Joynture of his Wife and only for the life of such wife C. after the death of his Father entred and levyed a fine to a stranger and declared the use to himself and his wife and to the Heirs Males of his own body the Remainder to the right Heirs of his Father afterwards C. having Issue male died the Wife died the Heir of I. the eldest Son entred upon the Lessee It was adjudged that because the Statute of 27. H. 8. gave the possession in quality and condition with the use and also gave to Cestuy que the same advantages as the Feoffees had that the said Heir was enabled to take advantage of the Condition be it a Condition or a Limitation The Vis-Countess Bindons Case 338. The Executors of Viscount Bindon brought Detinue against the Widdow of the deceased Viscount and declared upon the Detainer of certain Jewels The Defendant did justifie the Detainer of them as her Paraphronalia It was agreed in this Case by the Chief Baron and others That Paraphronalia ought to be allowed to a Widdow having regard to her Degree and in this Case the Husband of the Defendant being a Viscount that 500. Marks was but a good allowance for such a matter Mich. 28 Eliz. in Cur. Wardor Mounsons Case 339. A Commission in the Nature of Diem clausit extremum after the death of Robert Mounson issued to Enquire what Lands and Tenements he had the day of his death of whom by what services the yearly value of them who was his next Heir and of what age he was It was found that the Father of Robert was seised of the Mannor of B. in Fee and gave the same to Robert in tail the remainder to G. brother of Robert the Remainder to the right Heirs of the Father That G. died in the Life of Robert and Robert died without Issue and that F. the Son of G. was within age and the Lands holden of the Queen in Capite and that Robert long before his death was seised in tail of H. Farm and N. and 17. Eliz. levied a Fine to the use of himself in tail the Remainder to F. the Son of G. in tail and died such a day without Issue of his body and upon this Office one Mounson the Heir general prayed a new Office for it was said that the said Office was insufficient to entitle the Queen to the Wardship of F. the Son of G. It was the opinion of the Court that the Office was good to entitle the Queen to the Wardship of F. the Son of G. But if it was not then a Melius inâ—quirendum should issue forth and not a New Office Branches Case 340. In the Case of a Prohibition It was Resolved that an Union of Copyhold Lands and of the Parsonage in the hands of the Parson as Parson Impersonce was no discharge of the Tythes of the Copyhold Lands and in this Case also it was adjudged That a Farmer of Lands might prescribe in modo Decimandi but not in non Decimando Moor and Williams Case 341. Assumpsit The Case was Lessee for years the reversion to M. the Lessee in defence of the Plantiffs Title spent such a Sum money and prayed contribution or recompence Moor said in consideration thereof he should have the like Lease after the expiration of the Term which Williams the Defendant required and the said Lessor refused to make upon which Williams brought Assumpsit Resolved it did not lie because the Consideration was executed before the promise Stanley and Bakers Case 342. A man possessed of a Lease for years devised the same to his eldest Son and the Heirs of his body and if he died without issue to his youngest Son and the heirs of his body and for want of such Issue that the Term should remain to his Daughters he died having two daughters and afterwards another daughter was born The eldest Son sold the Term and died without Issue the youngest Son died without Issue the three daughters entred It was adjudged they all three should have the Term although the youngest Daughter was not born at the time of the death of the Devisor Owens Case 343. Tenant in tail the Remainder in tail Tenant in tail bargained and sold to him and his Heirs and levied a Fine which was not alledged to be with Proclamation It was adjudged that the Bargainee was not such a Grantee of the Reversion as should maintain Wast because it was no discontinuance and but for the Life of Tenant in tail Higham and Harwoods Case 344. A man had houses and Land which had bin in the tenure of those who had the Houses and he devised his Lands with the appurtenances It was adjudged That the Lands did pass by the words with the appurtenances for that it was in a Will in which the intent of the Devisor shall be observed Watkins and Ashwels Case 345. A seised in Fee made a Feoffment upon condition that if he or his Heirs paid such a sum such a day to reenter He died his Son and Heir within the age of 14. years The Mother of the Infant without the privity of the Infant and who was not Guardian in Socage in the name of the Infant tendred the mony at the day It was resolved it was an Insufficient tender otherwise if she had been his Guardian in Socage Carewas Case 346. The Abbot of M. was seised and made a Lease for years De scitu Manerii Rectoriae suae de omnibus aedificis
c. de Decimis eidem pertinent spectant Habendum dectum scnum cum pertinenciis The question was what estate the Lessee had in the Tythes at Will or for years It was the opinion of Manwood Chief Baron that he had an Estate in them for years and not at Will for where several things are in a Grant and after the Habendum comes to limit the Estate it is superfluous to recite the particular things in the Habendum and the Tythes being particularly recited shall therefore pass by the Habsndum which limits the Estate for years Crops Case 357 A man made a Lease for years reserving Rent at Mich. and the Annunciation and if it be behind by the space of a month to reenter The next day after Mich. the Lessor sent the Rent by his Servant to the house of the Lessor who tendered it to his person and he refused it and afterwards upon the last instant of the day it was demanded upon the Land It was adjudged a good tender and the Lessor could not enter Beverley and the Bishop of Canturburyes Case 348. A seised of an Advowson in gross presented K. who was Inducted the Advowson afterwards desdended to B. and C. Coparceners B married I. S. C. married T. B. and had Issue C. died T. B. the Plantiff being Tenant by the Curtesies the Church became void by the deprivation of K. and because they could not agree in the presentment the Clerk of B. the eldest Sister was received by the Bishop which was since dead so the Plantiff Tenant by the Curtesie presented and being disturbed brought the Writ The Incumbent being presented by the Queen pleaded thae K. being inducted accepted a second Benefice of the value of 8. l. and so the Church was void by the Statute of 21. H. 8. of Pluralities It was adjudged for the Plantiff for that the deprivation of K. and the Plurality of the Clerk of the eldest Sister since dead were not denied after the acceptance of the second Benefice Saunders Case 349. Information upon the Statute of 1. E. 6. for landing of goods at Ratcliff Custom not paid nor agreed for It was pleaded in a Bar A. was seized of the Mannor of S. in Sussex and had wreck of the Sea appertaining to his Mannor by Prescription and that the Mannor Contigue adjâ—câ—t mare altum and said the goods were wreck and cast upon the land of the Lord and that he seized them and so justified Qu. If a good Justification Morris and Wâ—â—bors Case 350. The Case in effect was this A man was divorced Causa â—rigiditatis and afterwards took another wife and had issue It was argued by the Civilians and also by the Justices if the Issue was Bastard or not It was adjudged that the Issue by the second wife was not a Bastard For that by the Divorce the Marriage was dissolved â— vinculo Matrimonii and each of them might marry again But admitt that the second marriage was voidable yet it stands good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue Term. Hill 29. Eliz. Fanshaws Case 351. In Ejâ—ctione firme the Case was shortly thus King Henry the Seventh erected and Founded an Hospital by the name of Mâ—ster and Chaplains of the Hospital of King Henry the Seventh de le Savoy And afterwards in the time of Queen Mary a lease was made of Lands parcel of the Hospital by the name of Master of the Hospital Henrici nuper Regis Angliae septimâ— vocat le Savoy and if it was a good Lease or not was the Question The Case was first argued in the Exchequer and there adjudged that the Lease was void by the Judgment of two Barons Afterwards a Writ of Error was brought in the Exchequer Chamber there the Case 3. Eliz. was argued again but it was not adjudged but afterwards the Case was compounded but the better opinion of the Justices there seemed to be that it was a good Lease and that the words De le Savoy vocat le Savoy were idem sensu Crosman and Reads Case 352. Debt against the Defendant Executrix of T. R. her former husband upon an Obligation of 200. l. The Defendant pleaded fully administred It was found she had Asserts to the value of 80. l. parcel of the 200. l. and that the said T. B. borrowed of F. R. her late Husband 60. l. and that the Defendant being Executrix to T. B. took the said F. R. to Husband who died the Court gave Judgment that the Plantiff should recover the 80. l. and for the residue in misericordia pro falso clamore so as the Court conceive the 60. l. was not Assetts in her hands Rous and Artois Case 353. A man was Tenant for another mans life of a Mannor Cestuy queuse died The Tenant continued possession of the Mannor and held Courts and made voluntary Grants by Copy It was adjudged he should not bind the Lord for he was but Tenant at Sufferance who had not any Interest and so he was a Disseisor of the Mannor Broke and Smiths Case 354. The Case was Lord and Tenant the Tenant levied a Fine to the King who afterwards gave the Land Tenendum of the King by Knights Service The Lord distreined the Patentee for the Rent and Services If the Seignory was revived was the Question It was conceived it was and that it was suspended only for the time in the King Qu. It was not resolved Knowles and Powels Case 355. The Queen seized in Fee made a Lease for years to one who was Out-lawed at the time of the Lease made and afterwards the person was Out-lawed again and before seizure came a generall Pardon of all goods and chattels forfeited In this Case Resolved First that a man Out-lawed was capable of a Lease from the Queen as a Farmer to the Queen and that the Pardon with restitution was sufficient to revive the Term forfeited Secondly That a man Outlawed and Pardoned had property in his goods Bonds Case 356. Bond erected a Pigeon-House upon certain Lands which he held in Lease for years the reversion in the Queen being parcel of her Mannor of F. in the County of S. It was the opinion of Manwood Chief Baron and Gent. That none could erect a Dove-house but the Lord of the Mannor or the Parson and said that in ancient time it was accounted a Common Nusance presentable in the Leet 357. Note by Manwood Chief Baron where it is ordained by the Statute that for doing misdoing or not doing of a thing the Offendor shall forfeit such a Sum not expressing to whom there the forfeiture shall be intended to be to the Queen unless the penalty be assessed for taking Goods Chattels or other things in which the Subject hath a Property and then he which hath the loss shall have the forfeiture Warrams Case 358. A Protection was granted to him by the Queen and it was Quod Praerogativa
extends to Fines ritè Levatis and that a Fine is not ritè Levatus when partes finis nihil habuerunt To all which it was Answered and Resolved That the Issue in tail is not excepted in those Statutes and therefore is bound by the very Letter of the Acts 2. Although the Issue in tail was not bound by any Fine by his Ancestors untill 4. H. 7. yet in such Case he was ousted to add Quod partes finis nihil habuerunt being privy as Heir to him who levyed the Fine first 3. That a Fine may be said ritè Levatus although partes finis nihil habuerunt and it may be ritè Levatus although it be a Fine meerly by Conclusion Elmer and Goales Case 383. In Ejectione firmae the Case was The Abbot of West was seised and let the Lands for 60. years to a Stranger the Abby was dissolved and King Henry 8. united it to the Bishoprick of London The Bishop 12. Eliz made a Lease for three Lives the Lease for 60. being in being for 16. years which Lease was confirmed by the Dean and Chapter the Lease for 60. years expired the Lessees for three Lives entred and were seised untill the Bishop entred upon them and made the Lease upon which the Action was brought The point was if the Lease for three Lives were good It was Resolved it was good and stood good because the Statute of â— Eliz. which made Bishops Leases was not pleaded and the Statute being a private Act of Parliament the Judges were not to take nâ—tice of it if it were not pleaded Butler and Babers Case 384. The Case was A. seised of the Mannor of Toby in Fee and A. and his wife seised of the Mannor of Hinton to them and the Heirs of their bodies the Reversion to A. in Fee Toby amounting to the value of two parts and Hinton to the third part both holden in capite A. by his Will devised the Mannor of Toby to his Wife for life upon consideration that she should not take her former Joynture in Hinton with divers remainders over the Wife in pais disclaimed and waved her Estate in Hinton and agreed to the Mannor of Toby and entred upon it and if the Devise was good for the whole Mannor of Toby or for two parts only was the Question It was Resolved in this Case by the greater part of the Justices upon argument in the Exchequer Chamber that the waving of the Joynture by the Wife made an immediate discent by Relation to the Heir and that the Devisor was not such a person having Lands as could dispose of it according to the Statute and in this Case it was agreed by the Justices That if one deviseth Land in which he hath nothing and afterwards he purchaseth the lands that the same is not a good Devise within the Statute of Wills because he is not a person having c. Priscot and Chamberlains Case 385. In a Replevin the Case was Tenant for Life the Remainder in Tail jâ—yned in a Lease for years afterwards he in the Remainder in the life of Tenant for life suffered a Common Recovery the Recoverers sued execution upon the Lessee for years and afterwards enfeoffed Lincoln Colledge in Oxon to whom the Son and Heir of the Tenant in Tail in the life of his Father released with Warranty the Lessee for years reentred the Tenant for Life and he in the Remainder in Tail both died the Son of the Tenant in Tail had issue who by his Bayliff distreined the Chattel of the Lessse for years as damage Feasants upon the Land and he brought a Replevin The point was if by the common Recovery oâ— the Release of the Issue in tail with Warranty the tail was barred It was agreed by all the Justices that the Issue in tail was not barâ—d by the Recovery nor by the Warranty but whether he should avoid this Recovery in this Action being a possessarie Action or put to a rent Suit was the doubt whâ—ch was not resolved The Case was adjourned Hennage and Curtes Case 386. Trespass for breaking his Close in Hainton The Defendant justified that there was a Foot way leading through the said Close from Haâ—mon to the Foot-way of Horn-Castle for all persons travelling from Hainton to Horn-Castle they were at Issue upon the Prescription and because the Venire was de Hainton only whereas it ought to have bin from Hainton and Horn-Castle It was said that the Tryal was erroneous and the Judgment was reversed Bonnet Halsey and others 387. The Plaintiff was taken in Execution at the Defendants Suit by the Sheriff of B. and by an Habeas Corpus he was brought to Smithfield by the Goaler of B. and there at Eight of the Clock of night the Prisoner went into Southwark and there continued all night and the next morning he returned to Smithfield to his Keeper and there continued with him till the return of the Writ at which day he brought him to the Lord Chief Justices Chamber at Serjeants-Inn and he returned his Writ and the Chief Justice committed him to the Marshalsey It was judged it was no Escape in the Sheriff and adjudged upon an Audita Querela brought by the Plaintiff for the Defendants Wray Street and Coopers Case 388. The Prior of M. was seised of three Messuages in the Borough of Southwark and held them of the Bishop of Canterbury as of his Borough of Southwark The Priory came to King Henry 8. by surrender Afterwards the Bishop gave the Burgage to the King which Gift was confirmed by the Dean and Chapter The King anno 36. gave the said three Messuages and others to C. and D. Tenendum libero Burgagio by Fealty only and not in Capite and C. and D. gave the Messuages to W. and his Wife W. died his Wife survived King Edward 6. gave Totam Burgagiam de Southwark to the Mayor and Burgesses of London In the time of Queen Mary the Wife W. dyed by which the Messuages escheated Queen Mary gave them to one who gave them to A. who gave them to the Defendants The Mayor and Burgesses of London entred The Question was if the Tenure should be in Capite or in Burgage and if they passed to the Mayor and Burgesses by the Grant of Edw. 6. of Totam Burgagiam de Southwark It was adjudged against the Mayor and Burgesses of London because there could not be several Tenure foâ— these parcels Tenendum ut de Burgo and another Tenure for the Residue of the Lands in other places which could not be holden de Burgo and also because the Patent having two intents the besâ— shall be taken for the King Pasch 30. Eliz. The Queen and Bishop of Lincolns Case 389. Quare Imp. The Case was The Bish of Lincoln Patron and Ordinary collated to a Benefice in 8. Eliz. The Incumbent took another Benefice without Qualification by which the first was void The Successor Bishop 18. Eliz. presented one E. but non constat if
with a Proviso that if the rent be not paid at a day limited that the Lease should cease without making mention that it should be paid at the Receit and if it should cease before Office was the Question It was Resolved by Manwood Cheif Baron and all the Barons in the Exchequer That ipso facto upon default of payment the Lease was determined according to the purport of the Contract and that immediately without Office For the Proviso shall be taken to be a limitation to determin the estate and not a Condition to undo the estate which cannot be deserted but by an Office in the Case of the Queen Green and Edwards Case 419. A Lease was made by a Man for 80. years if his Wife should so long live and if she dye that the Son should have the Land for the Residue of the Terme then to come It was adjudged void as to the Son for that there is no residue of a Terme which is before determined Hicks and Palingtons Case 420. Complaint was in the Court of Request for average of a Ship spoyled of certain goods shipped from Bristol to Galicia in Spaine The goods were taken by a Pyrat by violence It was decreed Average should be paid because the Merchants had assented to pay it after the Ship was robbed The Queen and Vaughans Case 421. In a Quo Warranto the using of Liberties c. the Defendant pleaded That an Abbot was seised of Waifes and estrayes by prescription and that he used and exrcised to have Catalla fellonum within 3. moneths before the suppression of the Abby but did not shew by what Title Grant or Charter and so by the Statute of 32 H. 8. and by Patent de tot talia tanta Consimilia Libertates he concluded that eo Warranto he claymed the Liberties It was Resolved by the Justices that he ought to shew the grant made to the Abbot and also what estate the Abbot had in them Because the Statute doth not revive other estate in the Liberty but which came to the Crown by the dissolution of the Abby But Resolved that the Conclusion eo Warranto was good because it shall be taken distributive that he used those which might be appurrenant as appurtenant and the other by the other title Smith and Vewes Case 422. Debt upon mutuat as of 5 l. 6 s. 8 d. and because the several summes in the Declaration did not amount to the sum in demand the Judgment given in it was reversed Sherrot and Holloweyes Case 423. Replevin The Case was a Feoffment was made by Indenture rendering 3 l. rent which clause of distresse and the Feoffor Covenanted to make further assurance of the Land the Feoffer levyed a Fine to the Feoffee who rendred 3 l. rent It was Resolved he might avow for the first rent notwithstanding the Fine and that the Remainder is not a grant of a new rent but a Confirmation of the old rent Mead and Cheneys Case 424. A recovery is had in Debt against an Administrator and a Scire facias de bonis of the Intestate upon which a Devastavit was returned It was adjudged that an Elegit lyeth de bonis propriis of the Administrator which he had the day of the Judgment Barton and Andrewes Case 425. Note this Case was the very Case agreeing verbatim with Bennet and Halseys Case which see before Sect. 387. Hil. 33. Eliz. Degoze and Rowes Case 426. Debt against the Desendant as Heir to his Father upon an Obligation the Defendant pleaded his Father was seised in Fee and Covenanted with I. S. and others to stand seised to the use of himself for life the remainder to the Defendant in tail the remainder to his daughter in tail the remainder in Fee to his right Heirs with a Proviso of Perpetuity and that the Father dyed and he entred and so had nothing by discent Upon a special verdict the Case was The Father caused certain Indentures to be written and engrossed comprehending uses betwixt I. S. and one M. and him but would not M. should be acquainted with it till I. S. had agreed to it But he delivered the deed to a Scrivenor to the use of I. S. and M. so as I. S. would agree to it the Scrivenor went with the Deed to the house of I. S. but could not speak with him and after I. S. dyed never having notice of the Deed It was adjudged in this Case that the Father never Covenanted because the agreement of I. S. was a Condition precedent to the essence of the Deed and so there was no Deed to raise the uses and therefore it was adjudged against the Defendant Halme and Jees Case 427. The Case was Grandfather Father and Son the Grandfather Tenant in tail made a Feoffment in Fee rendering rent to him and his Heirs and dyed the Father excepted the rent the Feoffee levyed a Fine with Proclamation and 5. years passed It was adjudged the Son was not barred because the acceptance of the rent was but a Conclusion but did not extinguish the Reight and so the Son was not barred by the Fine and 5. years which encurred in the life of the Father Fulwood and Wards Case 428. Tenant for years determinable upon the Life of the Lord Pagett by deed granted a Rent of 10 l. issuing out of the Land with Clause of distresse the Lord dyed It was Resolved that by his death the Rent was not determined but Election did remain in the grantee to make it either a Rent or Annuity Cornwalls Case 429. He was Indicted that he was Communis publicator secretorum Dominae Reginae and of other persons impannelled with him to enquire for the body of the County de diversis Feloniis against his Oath in that behalf taken and because it was not found that he was sworn to keep secrets nor that the secrets which he discover did touch his Oath the Judgment was adjudged insufficient Langles and Hayres Case 430. Debt upon the Statute of 2 E. 6. for treble damages for not setting forth of Tythes the Declaration recited the Statute to be in 2 and 3 E. 6. which could not be in 2. years of the said King therefore after verdict the Judgment was stayed Welden and Bridgwaters Case 431. It was adjudged in this Case that he who had but Vesturam terrae viz. the Crop at his Lot every 2. or 3d. year might maintain an Action Quare Clausumfregit Ashley and Harrisons Case 432. Debt the Defendant pleadedan Outlawry of the Plaintiff at the Suit of I. S. the Plaintiff pleaded the Pardon of 31 Eliz. It was demurred to because it was not alledged that he was any of the persons excepted out of the Pardon Resolved the Pardon was allowable to make any one to answer the Plaintiffs action but not against the Queen for she is not bound by the allowance of it Sir Francis Englefields Case 433. The Case in effect was this A. seised in Fee by Indenture in
Consideration of Blood Covenants with B. his brother to stand seised to the use of himself for life and after the use of B. in tail the remainder to the right Heirs of B. Provided that if A. by himself or by any other during his Natural life tender to B. a Gold ring to the intent to make void the said use that then the said uses should be void Afterwards A. 26 Eliz. is attainted of Treason and Outlawed for it and the King makes a Lease of the Lands to C. and D. for 40 years The attainder is confirmed by Act of Parliament and Enacted That the said Act shall not extend to make any Lease void made by the K. after the said Treason Also Enacted that all persons which claim an estate or interest in Land not enrolled since 18 Eliz. shall within 2. years after the Session of that Parliament shew and bring into the Court of Exchequer his or their Grant or assurance to be void The King reciting the Proviso and benefit thereof given him by Act of Parliament authorizeth E. to deliver the Gold ring to B. to the Intent to make void the uses he reads the Patent to B. and makes a tender to him which he refuseth to accept of E. certifies the same into the Exchequer This Case was very largely and Learnedly Argued by all the Serjeants and others at the â—arre which vide in the Book at Large afterwards it was argued by all the Barons in the Exchequer and there amongst other things it was Resolved by them That the Condition in the principal Case viz. the tender of the Gold ring was not annexed to â—he person of A. but that any one might make the tender and thaâ— it was given to the King by the Act of Parliament and when a Statute gives a Condition to the King the performance of it which is the substance and which is not inseparably annexed to the person is given to the King 2. That the Tender and Certificate of it was good without Office found 3. That presently by the tender the uses were determined and the Land vested in the King by force of the Act of Parliament The Earl of Northumberlands Case 434. A. 15 June 22 Eliz. bargained and sold the Mannor of D. to the Earl of Northumberland and his Heirs who because the Land was holden in Capite 3. Sept. the same year purchased a License of Alienation in Octob. the same year a Fine was Levyed for further assurance and in Novemb. the same year the Deed was enrolled The Queen seised the Lands for a Fine for Alienation without License It was adjudged the Queens hands should be removed from the Land because the bargainee was now in by the Fine and not by the bargaines and sale and also because the Licence did precede the Fine the Alienation was not made without License Yardley and Prestwood and others Case 435. In a Quare Impedit It was holden by the Justices in this Case That a double usurpation upon the Queen did put her out of possession of Advowson and put her to her Writ of Right of Advowson But the Law hath been taken since that time and so adjudged that a double usurpation did not put the Queen out of possession of her Advowson Vide 33 Eliz. Hassies Case Tr. 4. Jac. The King and Champians Case accordingly Isabell Mordants Case 436. An Enfant Levyed a Fine to the Queen The Queen granted the Lands to Bowes Treasurer of Barwick Error brought to reverse the Fine Bowes pleaded in Barre the Statute of 18 Eliz. It was Resolved that notwithstanding that Statute the Writ of Error did lye for that Statute did not extend to make grants good of such persons who could not make grants by the Common Law as Enfants persons of Non sane Memorie c. Sir Mayle Finch and Hen. Finches Case 437. The Mother of Sir Moyle Finch and the Defendant in her Widdowhood levyed a Fine to the use of her self for life and after her death to the use of her Executors for 5. years and after to Sir Moyle in Tail with divers remainders over and afterwards she maried I. S. and she with I. S. granted the Terme of 5. years to Sir Moyle and after that she and her Husband levyed a Fine to Sir Moyle and I. D. and after that the Wife with her Husbands assent made her Will and made the Defendant her sole Excecutor and dyed the Defendant entred It was agreed by the Justices 1. That the use limited to the Excecutors was good 2. That the Wife could not grant it in her life time 3. That it was extinguishable in the Wife by a Fine come ceo c. but not by a Release 4. That the Fine sur Conusans de droit c. had extinguished the Terme and the said Fine had made such a disturbance of the possession that the use being future at the instant of her death in the Excecutors could never rise 5. That a Feme Covert with the assent of her Husband might make a Will but not thereby to dispose of Legacies 6. It was adjudged for the Plaintiff because the Wife who had the estate for her life had levyed a fine sur Conusans de Droit c. 438. Action upon Indebitatus Assumpsit solvere It was Resolved the Plaintiff could not give in evidence matter of specialty to prove his debt but he might give in Evidence matter of Contract Fitzherberts Case 439. He was Arrested in Execution by the Sheriff of Derby the 3. day of Feb. at 7. of the Clock in the Morning and the same day at 10. of the Clock he was elected a Burgesse of Parliament for the Borrough of New Castle It was agreed in Parliament because he was arrested before he was chosen Burgesse he could not have the Priviledge of the House Hunger and Freys Case 440. A man had recovered in Debt and had Judgment and an Elegit and had an extent delivered him and Nihil as to goods Afterwards he suggested the Defendant had more Lands goods and chattells in the same County and had a New Elegit and upon that he had a Lease for years in Execution and no other Land was found It was adjudged that the sale of the Lease for years by the Sheriff and delivery in Execution was good Townsend and Walleys Case 441. A man had 6 l. Land in possession and Lands in Peversion upon an estate for life and by his Will he deviseth all his Lands to his Excecutors for 10. years to pay his Debts and perform his Will and after the 10. years ended that his Executors or one of them or the Executors of his Excecutors or any of them should sell his Lands and he made diverse Excecutors and gave 40 l. Legacies by his Will and dyed After the 10. years 2. of the Executors sold the Land 1. Resolved that the Land in reversion might be sold as well as the Land in possession 2. That the sale by the 2. Executors was
a good sale by the intent of the Will 3. Resolved that the devise that his Excecutors might sell was a good sale within the Statute of Wills though the words of the Statute are That a man having Lands holden in socage might devise two parts of it and that by the Equity of the Statute Yelverton and Yelvertons Case 442. A man seised of Lands Covenanted to stand seised thereof to the use of his eldest Son and also of all the other Land which he after should purchase he Covenanted that he and his Heirs would stand seised to the use of his eldest Son Afterwards he purchased Lands to him and his Heirs by bargain and sale Adjudged that the purchase could not be intended to other use then to him and his Heirs Sir Hugh Cholmeleys Case 443. The Case is very long but is this in effect viz. Tenant in Tail the remainder in Tail he in the Remainder bargained and sold his Remainder to A. for the life of the Tenant in Tail and after his death the remainder to the Queen in Fee Tenant in Tail in possession suffered a Common Recovery The Queen granted her remainder to Tenant in Tail and his Heirs Afterwards he in the remainder bargained and sold his remainder to B. the remainder to the Queen upon Condition another Recovery was had Tenant in Tail dyed without Issue It was Resolved in this Case that he in the Remainder and all Claiming under him were barred by the Recovery 2. That the Common Recovery did bar the Tenant in Tail and the estate of A. in the remainder although the Remainder was in the Queen 3. That the grant of the Queen to the Tenant in Tail and his Heirs was a good grant Corbett and Marshes Case 444. Error brought upon a Recovery in Dower because the Tenant was not summoned by 15. dayes nor Proclamation made thereof at the Church door Because the party had remedy against the Sheriff the Court would not allow of the Error Crispe and Fryers Case 445. Copyholder in Fee rendring Rent at Mich. and our Lady-day The Lord at the last instant of the day of payment demands the Rent upon the Land and the Copyholder is not there to pay it Qu. If it be a forfeiture the better opinion of the Justices was that it was a forfeiture Paramour and Verwolds Case 446. False Imprisonment the Defendant justified by a Recovery in Debt in Warda de F. London and a Writ of Execution in Sandwich in Kent absque hoc that he was culpable in London The Plaintiff said that he was culpable at London absque hoc that there is tale Recordum in Sandwich Adjudge the Yraverse upon the Traverse was good because the place is material Pannell and Fens Case 447. A man seised of Lands and possessed of a Term devised all his Lands and Tenements to his Executors untill they had paid all his Debts and Legacies and levied all charges which they should expend against I. S. or others in Execution of his Will and made two Executors and died the Executors entred generally into the Land and Term and one of them sold the Term to one man and the other sold it to another It was adjudged they took the Term as Executors and not as Devisees and yet they took the Freehold as Devisees and they said that the words of the Will as to the Term was no more then the Law gave and that they should have it as Executors Blackwell and Eyres case 448. Issue was joyned betwixt the Lessee of the Plaintiff and the Defendant in an Ejectione firme which was to be tryed at the Assizes The Defendant in consideration the Plaintiff and his Lessee should forbear to enforce their Title and give slender evidence against the Defendants promised to pay a certain Sum of money to the Plaintiff Vpon Non assumpsit it was found there were two Issues joyned in the Suit and the Defendants had not joyned but one of them had pleaded the general Issue and the other a special Plea It was adjudged for the Plaintiffs because the common Speech is the Parties have joyned issue Walker and Harris Case 449. It was adjudged in this Case That although Lessee for years assignes over his Term yet Debt lyeth against himself for the Rent by the Lessor or his year Moss and Packs Case 450. A Recoverie was had against the Executor of I. D. of debt and damages And Fire fac issued de bonis testatoris si si non damna de bonis propriis the Executor dyed the Sheriff did execution of the Goods of the Testator before the Return of the Writ and adjudged good Portman and Willis Case 451. It was adjudged in the Case that by a Devise of omnia bona a Lease for years did pass if there be not other circumstances to guide the intent of the Devilor 2. Resolved That if a Copyholder for life or years surrender to an use that the surrender is good and the use void as a surrender rendring Rent with Warranty shall be a good Surrender and the Rent and Warranty void Beswick and Combdens Case 452. Action upon the Case for not keeping a Bank by reason of which the River drowned his Land It appeared upon the evidence that it was levyed and kept before by one who enfeoffed the Defendant Yet it was adjudged that the Action did lye against the Feoffee for the continuance of it Fuller and Fullers Case 453. The Case was A man had four Sons and devised his Land to his youngest Son named R. and the Heirs Males of his Body with the Remainder successively to the other three and the Heirs Males of their Bodies the first Devise dyed in the life of his Father having Issue Male After which the Father said I will that my Will stand good to the Children of R. as if he had over lived me but the words were not put in writing The point was If the Children did take by the devise or by discent Quaere The Court was divided in opinion The Dean and Canons of St. Pauls and others Case 454. King Edward the Fourth by his Letters Patent granted to the Dean and Canons and their Successors that they should be discharged of Purveyance the Charter was confirmed by King Henry the Seventh and also by King Henry the Eight The Statute of 27. H. 8. was made That Purveyors assigned by the Kings Commission for provision for him his Queen and Children might provide all Victual Corn c. as well within Liberties as without any Grants or Allowances to the contrary Queen Mary granted that no Purveyance should be taken of the Dean and Canons and their Successors against their Wills notwithstanding the Statute of 27. H. 8. and Queen Elizabeth reciting all the Patents granted to the Dean and Canons doth confirm them It was Resolved That the Charter granted to them was good Wherefore that they should be discharged from all Composition for Provisions for the Queen Preston and Hinds Case 455. Error
That if the Bargainor paid a certain sum of money at a certain day and place that the Bargainee and his Heirs would stand seised of the Land to the use of the Bargainor and his Heirs and entred Recognizance to performe the Covenants The Bargainor paid the money before the day at another place and after day tendred a deed to be sealed by the bargainee containing the receit of the mony and also a Release of all his right in the Land the Bargainee refused to Seal it The Court doubted if by the Refusal the Recognizance was forfeited because he was not bound to Seal the Deed not being pertinent to the Assurance of the Land But the Court conceived that the acceptance of the money before the day was sufficient to excuse the forfeit of the Recognizance Isams Case 480. Three Women and the Husband of one of them recovered Debt in C. B. the Record was removed by Error in B. R. where the Judgment was affirmed the Husband dyed The Women sued forth a Capias against the party without first suing a scire facias It was adjudged that there ought to have been a scire facias first sued forth because the Defendant perhaps had a Release of the Husband who was dead to plead Morgan and Williams Case 481. An Administrator brought debt and declared That Administration was Committed to him by A. B. sacrae Theologiae praefessorem and doth not say loci illius Ordinarium and for that cause the Judgment was reversed Sheffield and Rises Case 482. Assumpsit In consideration that the Plaintiff had submitted himself to the Arbitrament of I. S. the Defendant ad tunc ibidem assumpsit It was said the Action did not lye because it was upon a Consideration executed But adjudged for the Plaintiff because the words ad tunc ibidem extend to the time of the Assumpsit Sir John Perrots Case 483. In Intrusion against the Lady Dorothy Perrot and James Perrot the Case though very long was thus in effect Sir John Perrot 26 Eliz. before his Attainder seised of diverse Mannors by Indenture tripartite Reciting that whereas he had 2. Sons viz. F. and W. by diverse venters for Love and affection which he bore to his said 2. Sons and such other Issue male as should be of his body and for the Love which he boâ—e to I. his reputed Son and other Considerations Covenanted that he his Heirs and Assigns and all other persons who had Interest in the said Mannors should stand seised thereof to the use of himself for life without impeachment of Wast and after to the use of W. for life and after to the use of the first Son of the said first Son for life and after to the use of all the Sons and Issues male of the said W. by his first Wife which he should Marry one after the other in such Course and forme as they successively ought to discend by due course of Law for the terme of the lives of the said Sons and Issues males and for want of such Issue Then he limited the remainder in use to F. for life and after to his first Son for life and so further as the same was limited to W. and for want of such Issue to I. and for want of all such Issue the remainder to himself and his Heirs and Assignes There was a Proviso for the making of Joyntures to the Sonnes Wife Proviso That Sir John by any Writing signed and sealed with his hand and seal might revoke alter change any use estate or limitation in the said tripartite Indenture that then the said Sir John and all other seised and all assurances aforesaid should be of such estate or in such manner as by such Revocation enlargement or limitation should be declared W. dyed without Issue male Sir John Perrot afterwards 35 Eliz. by writing under his hand and seal did limit the Lady Dorothy his Wife the Defendant for her Joynture a third part of the Mannors in 3. equal parts to be divided 36 Eliz. T. dyed seised in possession and Dorothy entred and took the 3d. part of the profits of the said Mannor and averred the Feoffment was by writing with and under the proper hand of Sir John and traversed the Intrusion upon which it was demurred There were many points in this Case both upon the pleading and matter in Law 1. If all the estates perpetually limited in Freehold for life to all the Sons were void or which of them were good which void 2. If Sir John in making of the Feoffment had duly pursued the Authority limited to him by the Proviso 3. If Sir John in the Assignment of the Joynture to Dorothy his Wife which is the principal title by which she Justifies had duly pursued the Authority limited to him by the other Proviso for making of Joyntures The Case was very Learnedly oftentimes argued at large and Tr. 38 Eliz. It was adjudged for the Queen against the Defendants not upon the matters in Law but upon a poynt of pleading only For it was said by the Barons that they did not take plea sufficient that he did enfeoffe such person Habend to them and their Heirs to the uses in the Indentutres unlesse it had been pleaded the Feoffment was by writing or so averred to be which shall not be intended so to be without special pleading or averment of it King and Hunts Case 484. Tenant in Tail enfeoffed his Son of full age and afterwards disseised and levyed a Fine with Proclamation before the last Proclamation the Son entred and made a Feoffment the Father and Son dyed the Feoffee made a Lease for years to a stranger and dyed seised The Issue in Tail brought a Formedon and recovered by faint pleader It was adjudged in this case because it appeared by the plea That the Fine was levyed to the Lessee for years himself and not averred it was to other uses the Terme was extinct and so he could not falsifie the Recovery East and Hardings Case 485. Note It was adjudged by the whole Court in this Case That if a Copyholder cut down Trees without a Custome it is a forfeiture unlesse it be for Reparations Barwicks Case 486. Intrusion the Case was That the Queen made a Lease to Barwick of a Mannor for 21. years he surrendered the same to the Queen Anno 23. and the Queen in Consideration of the surrender granted him the Mannor a die Confectionis of the Patent for the life of I. S. and the Lessee pur auter vye devysed the same to him for 40. years and averred the life of I. S. The Plaintiff said That after the Lease made by the Queen to him for 21. years that he granted all his estate in a part of the Mannor to a stranger and afterwards in Consideration of the surrender the Queen made the Lease pur auter vye Resolved the 2d Lease made by the Queen was void because all in the first Lease was not surrendered and so the Queen
Pat. 30. Jan. 3â— Eliz. had granted to C. and his Wife the said Writing Obligation and sum of 1000 l. in the same contained ita ut praefertur forisfact and that at the suit of C. in the Name of the Queen Judgment was given that the Queen should have Execution of 1000 l. prout per Recordum Judicii c. Now to the intent that C. should have the said Obligation The Queen ex certa scientia c. granted praedict Scriptum Oblig summam 1000 l. totum advantagium Judicii praedict to the said C. and his Wife with power to sue in her Name It was Resolved in this case that the Queen was deceived in her grant because she recites she had granted before the Obligation by her Pat. 33 Eliz. whereas in trueth nothing passed by that Patent for want of true Recital of the Condition Turner and Oldfields Case 588. A Prohibition to the Admiralty because they Libelled in the Admiral Court upon a Charterparty to have the third part of goods taken upon the Sea by Letters of Mart whereas the matter was tryable upon the Land and not in the Admiralty by reason of the Indenture of Charterparty Lutterells Case 589. It was Resolved by the Justices in this Case If one be seised of Lands to which another hath right of Entry and the Tenant in possession levyes a Fine with Proclamation That he who hath right ought to enter in possession or make a special Warrant to one to enter for him and a stranger cannot enter in his name and avoid the Fine Gybon and Bowyers Case 590. Upon Recovery an Ejectione firme in the Court of Ancient Demesne a Writ de Execuâ—â—me Judicii was awarded to the suitors who returned they did not execute the Writ because the Land was Franck Fee as appeared to them by the Transcript of a Fine shewed to them the Return was dissallowed by the Court because the parties allowed the Jurisdiction of the Court at first and that the Lands in Frank Fee ought to have been pleaded so as the other party might answer to them Vicary and Farthings Case 691. The Issue was upon full age and 2 Church bookes were given in evidence whereof one was delivered to the Jury in Court the other was delivered to the Jury by the sollicitor of one of the parties without the Assent of the other and that was endorsed upon the Postea The Court was divided in opinion if the verdict was good or nor Wentworth and Russells Case 592. Two Tenants in Common of a Mannor brought a Parco fracto and it was adjudged maintenable without shewing how they were Tenants in Common Maine and Scots Case 593. A man made a Lease for years by Indenture and Covenanted with the Lessee upon surrender of his Lease to make to him during the Terme a new Lease The Lessor accepted of a Fine sur Conusans dedit come ceo and by that Fine rendred the Land to the Conusee for 80. years It was adjudged that the Lessor had disabled himself to make the Lease and therefore the condition was broken and Covenant did lye without a Surrender Partrrdge and Naylors Case 594. Judgment was against 3. persons in an Action brought against them upon the Statute of 1. and 2. Phil. and Ma. for Impounding a distresse in several Pounds and damages assessed which were trebled by the Court and 5 l. a piece forfeitures because there ought to have been but one 5 l forfeiture because all the 3. Defendants offended in a joynt offence Hollins and Connards Case 595. Debt upon Obligation to performe Covenants which was That the Obligor should make assurance before such a day of Land to the Obligee and his Wife at the Costs of the Obligee but there was no request in the Covenant It was adjudged that in this Case that the Obligor having election what manner of Assurance he will make ought first to give notice to the Obligee that he would make such an Assurance and then the Obligee is to pay the Costs of it Monday and Levices Case 596. In a Prohibition it was adjudged it was not a good prescription that Inhabitants have used to pay Calves and Lambs and 1 d. for every Milch Cow in satisfaction of all Tythes of Lambs Calves Milch Kine and all barren and rother beasts and Agistments Linch and Spencers Case 597. Ejectione firme the Case was Sir R. B. was seised of Lands in Fee and thereof enfeoffed W. and others upon condition that that they should regrant it to him and his Wife in Tail the remainder to the right Heirs of Sir R. B. who regranted it accordingly Sir Robert and his Wife had Issue A. B. Sir Robert dyed A. B. levyed a Fine with Proclamation to Sir G. B. the Lessor to him and his Heirs to the use of him and his Heirs Tha Mother afterwards leâ— the Land to the Defendant for life and dyed Sir G. B. entred upon the Defendant pretending his entry to be Lawfull by the Statute of 11 H. 7. It was Resolved 1. That Sir G. B. was such a person who might enter for the forfeiture within the Statute and that by this Fine Levyed by A. B. in the life of his Mother the estate Tail is barred thereby and the remainder in Fee passed by that Fine to Sir G. B. so as he had the remainder at the time of the discontinuance made and the wronges done to him and then he is within the words and intent of the Statute to take advantage of the forfeiture The Countesse of Northumberlands Case 598. In a Quare Impedit brought by divers the Defendant pleaded the Release of one of them depending the Writ It was Resolved 1. That it should go in Bar against him only 2. Resolved That a presentment alledged in the grantee of the next Avoydance and not in the grantor himself was a good title for the grantor and his Heirs in a Quare Impedit Harvey and Oswalds Case 599. A man let Land rendring rent upon Condition that the Lessee should not demyle it without the assent of the Lessor he demysed part of it the Lessor without Notice accepted the whole rent of the first Lessee It was adjudged he might enter for the condition broken notwithstanding the acceptance because he had not notice of the condition broken contra if he had notice of it although the condition was Collateral Blinco and Marsons Case 600. A Vicar Libelled in the Spiritual Court to have Tythes of the gleab of the Parson and a prohibition was granted for that the gleab shall pay no Tythes Kirton and Hoptons Case 601. In Appeal of Mayhem the Defendant pleaded to the Writ and pleaded over to the Mayhem It was adjudged that he ought not to plead over to the Mayhem but only where life is in Jeopardy wherefore a venire was to try the Issue of Notguilty Coote and Lighworths Case 602. False Imprisonment the Defendant had justified that he had a Warrant to arrest I. D.
Sons the Remainder to C. and his Heirs B. never had any Son afterwards but dyed having Issue a Daughter his sole Daughter and Heir Afterwards C. dyed having Issue It was Resolved in this case that it shall be intended in the Limitation of the use that after the death of B. without Issue Male that C. should have the Land as well where no attempt is to alien as where there is an attempt because the words are and immediately after his decease then to the first Son c. by which they conceived that the use which should rise upon the attempt to alien is only restrained to the use of B. for Life 2. Resolved that by the words If it fortune the Fourth Son to die without Issue then to C. and in truth B. never had a Son that the use should rise to C. 3. Reâ—olved when the render was made to B. for 80. years if he should so long live and after his Decease to his first Son c. with the Remainder to C. that all the Remainders were void because the Estate of the Freehold during the Life of B. did not pass by the Render out of the Conusees but the Inheritance compleat did remain in the Conusees 4. Resolved That the Conusance of the Fine is of necessity to be intended to the use of the Conusees because they otherwise could not render by the Fine but if the Render had bin void in all as it is in part then they conceived the use should go according to the Render but not in this case because the Render for 80. years was good and so the use remains in the Conusees The Lord Buckhursts Case 656. The case it self is very long being upon several Conveyances Settlements of very many great Mannors Lands in several Counties within the Realm of England and by her last Will to several persons or to their uses or to her Executors for the performance of her last Will upon which diverse matters of Law did arise which were very largely and Learnedly argued by Council but not Resolved some points in Law were agreed upon and Resolved which vide in Coo. 1. Reports in rhe Lord Buckhursts Case and were these in Substance viz. 1. If a man grant Land for him and his Heirs to another and his Heirs that is a general Warranty because it is not restrained to any person certain 2. If a man seised in Fee-simple hath diverse Evidences some containing Warranty and some not and convey the Land to another without Warranty upon which he may be vouched the Purchaser shall have all the Charters and Evidences as well those which contain the Warranty as the other for in as much as the Feoffor hath conveyed his Estate absolutely and is not bound to Warranty it is reason that the Feoffee for his better assurance have all his Charters as incidents to the Land although they are not granted to him by express words 3. If the Feoffee in the case aforesaid make a Feoffment with Warranty so as he is bound to render in value in such case without express Grant the Feoffee shall not have any Charters which comprehend Warranty upon which the Feoffor may have his Waranty paramount for the Feoffee hath not taken upon him to defend the Title but the Feoffee shall have the Evidences which do concern the possession 4. If A. enfeoff B. with Warranty to him his Heirs and Assignes and B. enfeoff C. with Warranty although that C. may vouch A. as Assignee yet he shall not have the first Deed for B. hath made a Warranty to him and may be vouched and therefore he shall have the first Deed. 5. If A. be seised of a Seignory Rent Advowson or any thing which lies in Grant and grants the same over to B. with Warranty and B. grants the same over to C. with VVarranty C. shall have the Charter although that B. is bound to VVarranty for that it is for his necessity to make his Title and without it he cannot make any defence against A. or any claiming by him 6. If a man maketh a Feoffment in Fee with VVarranty and dieth the Heir of the Feoffee shall have all the Charters which the Feoffor himself may have although the Heir hath nothing by discent for the possibility of discent after Barker and Bornes Case 657. Debt against the Heir upon an Obligation of his Father and Judgment is given against him upon nihil dicit the Judgments shall be general and not only of the Lands special which discend but extend to his own Lands Thompson and Butlers Case 658. An Annuity is granted to a woman for Life she takes Husband the Husband during the Coverture by express words releases the Annuity Resolved that the Release of the Husband doth not extinct the Annuity but that if the VVife survive she shall have it 659. It was Resolved by all the Justices That if the Clerk of the Market do take a Fee of a peny for view only of Vessels which are not defective and doth not Seal them or if he Seal them he take 2 d. upon every Vessel the same iâ— extortion 660. Resolved upon the Statute of 33. H. 8. 28. 23. Eliz. That if Tenant in tail become Recusant is convict but not by Judgment upon Tryal or Confession and dieth and his Lands seized that the Issue shall avoid it because it is not a debt by Judgment as the Statute of 33. H. 8. requires The Lady Willoughbyes Case 661. Sir Francis Willoughby died his VVife with Child P. W. who had married the Daughter of Sir Francis and had a great part of the Possessions setled upon him for want of Issue Male of Sir Francis attempted to suffer a Common Recovery to the intent to bar the Issue Male of Sir Francis and disinherit this Issue in ventre of his VVife to stop the Recovery she pretended she was with Child P. W. prayed a VVrit de Ventre inspiciendo which was granted and the Sheriff of London came to the Ladies House and brought a Jury of women whereof two were Midwives and they searched the Lady and the Sheriff returned that she was with Child Clark and Hardwicks Case 662. Scire fac upon Recognizance in Chancery acknowledged by H. to M. of 200 l. The VVrit was brought by the Plaintiffs Executors of M. the Sheriff returned Mortuus whereupon a new scire fac issued against the Heir and Terrae-Tenants The Sheriff returned K. Terre-Tenant of certain Lands and C. Terre-Tenant of the Mannor of D. K. made default C. appeared and pleaded a Joynt-tenancy with two other who were alive not named in the Writ nor Returned It was adjudged that upon this Return and Plea of Joynt-Tenancy that the Scire facias should abate and a new Scire facias was awarded Davy Matthew and Binfields Case 663. 3 â— Eliz. Ejectione firme The Case was Husband and wife seised for the Life of the wife made a Lease of a Mill to B. the Defendant for 17. years who 34.
life and after to the use of his Son and his Heirs The point was if the same did after the use because the Father afterwards devised the Land to his younger Son this Case was argued only and adjorned Collins and Hardings Case 691. A man seised of Freehold and Copyhold by License made a Lease of both at one entire Rent the Lessee assigned his Terme and afterwards the Lessor Released all demands to the first Lessee Afterwards the Lessor granted and surrendred the Reversion of the whole to a stranger who brought Debt against the Assignee for Rent It was Resolved that the Rent was not determined by the Release because the Release was after the assignment of the Terme in which case it was in the Election of the Lessor to charge the Lessee or Assignee but for Rent due before the Release that was extinct by the Release But whether the whole Rent should issue out of the Freehold or should be apportioned the Justices were divided in opinion Cooper â—nd Langworths Case 692. A man sued forth an Elegit upon a Recognizance in Chancery but nothing was done nor Returned upon it Resolved that he might sue a Fieri fac upon the same Recognization and so if a man hath Recovered debt upon a Obligation he shall have another Action of debt if he hath not sued forth Execution Marsh and Edmonds Case 693. Debt upon an Obligation to be such a day at the Kings head in D. and there to choose two Arbitrators to joyne with others to arbitrate all matters betwixt them The Defendant said he was there at the last instant of the day to make the Choice adjudged no plea for he ought to have been there in such time that they might have chosen Arbitrators Bolls and Smiths Case 694. A man made a Feoffment in Fee to the use of himself and Wife for their lives and after to the use of B. their eldest Son and after his decease to the use of him who should be his eldest Son at the time of his death in Tail the Remainder to C. in Tail the Remainder over in Fee the Feoffor dyed the Wife made a Lease to B. for years who enfeoffed a stranger the Wife dyed C levyed a Fine to the Feoffee with Proclamation afterwards B. dyed having issue a Son at his death who entred the Feoffee having granted a Rent charge the grantee distrained and avowed It was adjudged that the Feoffment of B. and the Fine of C. had prevented the future use to rise in the Son of B. and so it was adjudged in Ards and Terringhams Case Stebbing and Goswells Case 695. By the Custome of the Mannor the Copyholders had used to have the tops and loppings of the Trees upon their Copyhold the Lord cut down all the Trees Adjudged that Trespas did lye by the Copyholder against the Lord. Drove and Shorts Case 696. A Jurour delivered to one of his Companions an Escrowle for Evidence which was not given in Evidence at the Tryal Adjudged no Cause to stay Judgment unlesse it appear he received it from one of the parties which did not appear Hewleys and Brices Case 697. A man devised all his Lands whereas but two parts passed the devisee entred and let the whole for years the Heir without actual entry Levyed a Fine to a stranger of a third part the Conusee made a Lease for life to a stranger the Remainder to the Queen by deed enrolled upon condition to be void upon tender of money to the Tenant for life Resolved in this Case that the entry of the devisee into the whole and his making a Lease of the whole for years was no disseisen to the Heir 2. That the Tender of the money to the stranger should devest the Remainder out of the Queen because the condition was not performable to the Queen but to the Tenant for life Markham and Gomastons Case 698. Action upon the Case Whereas the Plaintiff for the debt of I. S. was bound with I. S. in Recognizance to F. and I. S. and F. his servant became bound to the Plaintiff to save him harmlesse in which the first Bond was recited with a blank for the Christian name and dwelling place of T. the Defendant after the sealing and delivery of the Counter bond and before the Plaintiff agreed to it filled up the blank so as in debt brough against F. he pleaded non est factum and the Plaintiff was compelled to be Nonsuit It was holden that the action did well lye against the Defendant Elston and Brets Case 699. Execution was sued upon a Statute in Chancery and the Liberate executed by the Conusee himself being Sheriff and the proper name was not endorsed but only Vic. It was adjudged erroneous and void Mills and Parsons Case 700. Tenant in Tail for 1000 l. bargained and sold by deed enrolled certain Lands to I. S. and Covenanted in consideration of the said 1000 l. and of a Rent then after to be granted by the bargainee that if he sold any other part of his Lands which he held in Fee that the bargainee should have the offer of them before another and if he attempted to sell without offer and notice to the bargainee then he and his Heirs for those considerations would stand seised to the use of the said I. S. and his Heirs of all he should attempt to alien without notice or offer I. S. dyed K. being his Heir the bargainor sold other Land without notice or offer to another and he sold the Land to one who had notice of the Covenant It was in this Case Resolved that the Consideration to raise the use in the other Land was good although but one of the things was performed viz. the payment of the money 2. If the Heir shall have benefit of the contingent use not Resolved Terrâ—ll and Darcyes Case 701. Accompt against the Defendant as Bailiff of Cloathes the Defendant said for part he was Bailiff to the Plaintiff and a stranger joyntly and for the Residue he was as Bailiff to render accompt It was found he was Bailiff for 16 Cloathes but there was no mention if the 16. were to them joyntly or not It was in Co. B. adjudged for the Plaintiff and upon Error brought the Judgment was affirmed Scrogs and Spencers Case 702 A Distringas to the Coroners was returned by them with subscription of their names but not Coronatores It was adjudged Error for both the Sirnames and names of Office ought to be subscribed Medcalfes Case 703. Two shooting at Butts having both but one shott to winne the game waged 40 l. one with the other for the upshot he who won brought Assumpsit against the other for the 40 l. upon nihil dicit Judgment was for the Plaintiff It was holden the action was maintainable Ardes and Watkins Case 704. A. seised of Land made a Lease for 30. years the Lessee made a Lease for 28. years rendring 30 l. rent and afterwards he Devised 28
l. of the râ—nt to 3. persons divisim viz. to each of them a full 3. part which was 9 l. 6 s. 8 d. One of the devisees brought debt for his part against the Lessee It was the opinion of the Justices that the Rent was apportionable and that the Tenant is chargeable without attornment by the devise to each of the devisees for the 3. part of the Rent Winters Case 705. It was said by Popham Chief Justice that Clergy is allowable upon the standing Mute for such a Felony for which Clergy is allowable if the party be found guilty and therefore he allowed Clergy to Winter who stood Mute upon an Indictment of Felonious taking of goods 706. The Case was a man robs one in the high way in one County and is apprehended with the goods in another County and indicted for the goods and found guilty to the value of 10 d. The question was if by the Statute of 25 H. 8. he shall have Judgment of death or be whipt It was the opinion of the Justices the Case being put to them at Serjants Inn that he shall be but whipt and that the Statute of 25 H. 8. doth not extend but to those who demand Clergy which they shall be denyed if it be found by examination to be done with Robbery Lever and Heyes Case 707. The Father of the daughter promiseth to the Father of the Son that if he will give his consent to the Marriage and assure 40 l. Land to his Son that the Father of the Daughter will pay 200 l. to the Son in Mariage It was Resolved in this case that if the Father of the daughter do not pay the 200 l. that the Son shall have the Action upon the promise and not the Father Egertons Case 708. Egorton the Queens Sollicitor was commanded by Writ to attend upon the Lords in the upper House of Parliament After he attended there 3. dayes he was chosen Burgesse for the Borough of Reading and Returned The Commons came to the upper House and demanded that he might be dismissed from his attendance there and be sent them into the Lower House but upon Consultation he was retained there still because he being neither Inhabitant not Free of the said Town might choose if he would serve at their Election or not which he expresly refused to do 2. Because he was first attendant in the upper House 3. Because the Queen had power to prefer him to the upper House aswell as she had power to command him The Bishop of Norwiches Case 709. The Bishop pleaded a private Act of Parliament and mistook the day of the Commencement of the Parliament It was adjudged against the Bishop for although the Judges are not to take notice of the private act yet of the beginning of the Parliament they are to take notice of Helgor and Whiteacres Case 710. Replevin The Defendant avowed that a Parsonage was parcell of the Prebendary the Prebend before the Statute of 13 Eliz. was Leased for 50. years in Reversion to I. who assigned it to B. who assigned it to C. who assigned it to H. the Lease in possession ended H. enâ—red and made the Lease to the Plaintiff The Plaintiff confessed the Lease to I. and the Assignments but said that I. so possessed took to Husband T. who before the assignment to B. assigned the Terme to I. S. who dyed possessed absque hoc that the said I. assigned her estate and Interest to B. It was adjudged for the Avowant because when the Plaintiff confessed and avoided he ought not to have traversed but might have prayed Judgment without Travers and so by reason of the Travers it was adjudged against the Plaintiff Vavisoâ—s Case 711. Resolved That if the Sheriff makes his Warrant to a Corporation who have return of Writs to arrest I. S. they may make a Bailiff to arrest by perol only Robes Bent and Cocks Case 612. A a villain purchased the Inheritence of a Copyhold in the name of B. and another in Trust B. surrendred his moyety to the use of his own Son the other dyed seised The Son of B. and the Heir of the other for mony sold the Copyhold to C. for 50 l. being of the value of 80 l. A sued the Son of B. and the Heir of the otherand C. in Chancery for the 80 l. It was Decreed the A. should recover the 50 l. only from B. and the Heir of the other and C should be discharged of it The Lord Hunsdons Case 713. In a Monstrance de droit for certain Lands in ward to the Queen for the Nonage of B. upon Jury returned the Array was challenged by the Queens Attorney because it was Returned by the Sheriff of Kent who was also Tenant to the Plaintiff A Counterplea was thereunto that he was Tenant to the Queen It was the opinion of the Justices that the Counterplea was little material for although he was Tenant to both yet he who takes the Challenge shall have advantage thereof Afterwards the array was Quashed and a venire de novo awarded Lady Russell and Gulwells Case 714. The Lady demised Lands to the Defendant by Indenture Defendant entred bonds to performe the Agreements in the Indenture Debt brought by the Lady for breach of Covenants and assignes the breach in disturbance of her in the occupation of certain Lands excepted in the Indenture out of the demyse and adjudged against the Lady for that it was breach neither of Covenant nor agreement 715. Nore by Egerton Lord Keeper if there be Tenant for life the remainder for life the remainder in Fee and the Tenant for life committeth Wast so as he is dispunishable by the Common Law yet upon Complaint he in the remainder in Fee may have an Injunction against him not to do Wast Penner and Cromptons Case 716. In a Prohibition It was holden that none shall be chargeable for contribution to Church Reckonings if he do not Inhabite there or to consent to them Powle and Veeres Case 717. A. made a Lease to B. of the Mannor of S. for life which was executed by Livery with these words that if it fortune B. to marry any Woman during his life who shall happen to overlive him then the Land to remain to such Woman for her life Proviso If B. do not declare by writing sealed â—or his last Will that he Wills she shall have it then it shall not remain to her B. before any marriage makes a Feoffment to I. S. to whom a Fine is levyed and a Recovery suffered Afterwards B. takes a Wife and declares she shall have the Remainder and after D. and his Wife Levy a Fine to the Heirs of I. S. and afterwards B. makes another declaration that the Land shall remain to the Wife and then B. dyes and the Wife enters It was adjudged her entry was not Lawfull because the Remainder if it was ever good was destroyed by the Feoffment and the Freehold supplanted before the Remainder took
Large At last it was Resolved That that Ordinance although it had the Warrant of a Charter was against the Common Law because it was against the Liberty of the subject for every subject by the Law hath Freedom and Liberty to put his Cloth to be dressed by what Clotheworker he pleases and cannot be restrained to any persons for that in effect would be a Monopoly Creswell and Holms Case 756. Debt upon Obligation the Condition was If the Obligee his Heirs and assignes shall and may Lawfully hold and enjoy a Messuage c. without the let c. of the Obligor or his Heirs or of every other person discharged or upon reasonable request saved harmlesse by the said Obligor from all former guifts c. the Defendant said no request was made to save him harmlesse It was adjudged for the Plaintiff because the Defendant hath not answered to all the Condition viz. to the enjoying of the Land and there were 2. Conditions viz. the enjoying and the saving harmlesse Chowley and Humbles Case 757. A Covenanted to make a Feoffment within a year to the use of himself for life the Remainder to H. his younger Son and the Heirs males of his body which remain over and if he did not make the Feoffment he Covenanted for those uses for the Continuance of the Land in his name and Blood Proviso if H. or any Heir male make a Feoffment or Levy a Fine his estate to cease as if he were dead and then the Feoffees to stand seised to the use of such person to whom the Land should Remain No Feoffment was made within the year A. dyed H. the Son levyed a Fine to the Defendant Resolved 1. That the Proviso to cease the estate was repugnant upon his estate for life 2. That his estate could not cease when he had levyed a Fine because then he had no estate 3. That the Feoffees and their Heirs could not stand seised to the use of the person next in discent or Remainder because no Feoffment was ever made Nevil and Sydenhams Case 758. In valore Moritagii The opinion of the Justices seemed to be That a tender was not material but that the value of the mariage was due withot a Tender Atkins Case 759. The Father devised his Land to his Son and the Heirs of his body and further I will that after the decease of my Son John the Land shall remain to G. Son of John Adjudged John had Tail and his Wife should be endowed Carter and Cleypales Case 760. All-Soules Colledge made avoid Lease by the Statute of 13 Eliz. because no Rent was reserved It was a Lease only to try title and Judgment Error was brought and assigned after that the Lease was void The Judgment was affirmed because the party did not plead the Statute for otherwise the Judges are not to take Notice of it Clarke and Dayes Case 761. A man devised Lands to his daughter for life And if she marry after my death and have issue of her body then I will that her Heir after my Daughters death shall have the Land and to the Heirs of their bodies begotten the Remainder in Fee to a Stranger It was adjudged she had not tail but only for Life and the Inheritance in his Heir by purchase and therefore in this case it was Resolved the Husband of the wife could not be Tenant by the Curtesie Deacon and Marshes Case 762. A seised in Fee of a house and possessed of Goods Devised in these words The rest of my Goods Lands and Moveables after my Debts paid c. To my three children B. C. and D. equally to be divided amongst them Adjudged they had but an Estate for Life in the House and that they were Tenants in Common of it and not Joynt-Tenants Smith and Mills Case 763. Adjudged that a Sale made of his goods by a Bankrupt after a Commission of Bankrupt is awarded is utterly void Gibons and Marltiwards Case 764. A. devised certain Land to B. and C. his wife who was the daughter of A. upon condition that they within 10. years should give so much of the Land as was of the value of 100 l. per an to F. F. and that he should find a Preacher in such a place and if they failed their Estate to cease and that then his Executors should have the Land to them and their Heirs upon trust and confidence that they should stand seised to the same uses B. within the 10. years made a writing of Gift Grant and Confirmation but no Livery nor Enrolment of it till after the 10. years The Executors refused to take upon them the Execution of the Will yet it was adjudged they should take the Land by the Devise and that the words upon Trust and Confidence made not a condition to their Estates Arrundells Case 765. In Indictment of Murder the Murder was alledged to be apud Civitatem Westm in Com. Middl. in Parochia St. Margaret and for Tryal a Jury was retorned de Vicineto Civitate Westm Resolved the Tryal not good for the Visne ought to have bin of the Parish and not of the city for a Parish is to be intended more certain then a city and when a Parish is alledged to be in a city the Visne shall come out of the Parish Alderion and Mans Case 766. Assumpsit In consideration the Plaintiff would give his good Will and furtherance to the Marriage the Defendant promised after the Marriage had to give him 20 l. he alledged he had given his good Will and that he did further it but did not show particularly how yet the Court held it to be a good consideration and adjudged the Action did lie Savage and Brookes Case 767. Upon an Indictment of Murder It was Resolved by the Justices that the Queen could not challenge Peremptorilie without shewing cause of her challenge 768. Note It was Resolved by the Justices That if a man buy Corn and converts it to meal and afterwards sells it it is not an ingrossing within the Statute of 5. E. 6. Staffords Case 769. Debt upon Obligation the Condition to make such further assurance as the Council of the Obligee shall Devise The Obligor comes to the Obligee and shews his Council had advised him to make to the Obligee a Lease for years which he required him to do and he refused It was adjudged the Obligation was forfeited otherwife if it were to make such assurance as the Council should devise for then the Council ought to draw and engross it ready to be sealed Plaine and Binds Case 770. Assumpsit 11. Septemb. to deliver certain goods to him if no claime be made to them before 14. September and alledged no claime was made post 11. diem usque 14. Septemb. It was said in stay of Judgment that the Declaration ought to have been that no claim was made after the Assumpsit until the 14. day and not post 11. diem The Court adjudged the Declaration good because the
especial matter upon the division of the day ought to come on the other side otherwise it shall not be intended Bullock and Bibleys Case 771. A Woman Copyholder in Fee took Husband who without his Wife surrendred to the use of a Stranger who was admitted and surrendred to the use of D. the Defendant who was admitted the Husband died the wife survived and died the Heir before admittance made a Lease to trie the Title It was adjudged that the Surrender of the Husband alone made no discontinuance of the Copy-hold of the wife 2. Resolved that the Lease was good before Admittance otherwise it was of a Surrender before Admittance Gooles and Granes Case 772. An Infant surrendred Land which was Copyhold to the use of a Stranger who was admitted It was adjudged that the Infant at his full age might enter because it was no bar nor discontinuance Ford and Holborns Case 773. A. let the Mannor of D. to H. for 17. years rendring yearly to D. G. 10 l. and he was bound in an Obligee to A. to pay the said Rent to D. G. if she so long lived and the said H. or his Assignes should or might so long enjoy the Premises In Debt by the Executors of A. against H. he pleaded that after the Lease to him he himself surrendred the Lease to A. which he accepted and that till the Surrender no Rent was unpaid It was adjudged for the Plaintiff because the acceptance of the Surrender was no conclusion against the collateral payment to a Stranger and H. but for his own Act might have enjoyed the Land still Savage and Bechams Case 774. In Action upon the case for an Escape against the Prisoner brought by the Plaintiff Sheriff It was Resolved that upon a voluntary escape the Sheriff should not maintain an Action against the Prisoner but otherwise upon a negligent escape West and Blackwells Case 775. A. Outlawed after Judgment was taken upon the Capias utlagatum and afterwards escaped Resolved that he was not in Execution for the party without prayer Williams and Beathles Case 776. Debt upon an Obligation after Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition It was holden Error and the Judgment for that cause reversed Wells and Dennyes Case 777. Upon a Recovery in Debt of 400 l. upon 2 Fieri fac 100 l. was levyed and returned Afterwards a Capias ad satisfaciend issued for the whole 400 l. It was the opinion of the Court it ought to issue forth but 300 l. and the Judgment for Execution was reversed May and Middletons Case 778. After Debt brought the Plaintiff attached in London a debt due by another man to the Defendant and had Judgment to recover Adjudged a good bar to the Action for so much Bufkin and Edmonds Case 779. It was adjudged in this Case That a Rent payable off the Land upon Cesser of an Estate ought to be demanded where no entry may be Hughton and Princes Case 780. Resolved Tythes shall not be paid of Turkies nor their Eggs nor of tame Patridges or Pheasants quia ferae naturae Beswick and Cundens Case 781. It was adjudged in this case That the Feoffee shall have Action upon the case for a Nusance continued though it was erected before his time Sharington and Fleetwoods Case 782. It was Resolved if a Parson Libells for Tythes and a Prohibition is granted and after he libelleth for the Tythes of another year the first Suit not being determined an Attachment upon Prohibition lieth against him Hall and Vaughans Case 783. If the Jurors eat and drink at their own proper costs before Verdict after their departure from the Bar it is fineable only but it shall not make their Verdict void Adams and Albons Case 784. Resolved that if a Venire facies bears date the day it is retornable it is amendable by the Roll. Gregory and Blasâ—fields Case 785. An Action upon the Statute of 4. and 5. Philip and Mary for using the Trade of a Clothier not having bin bound an Apprentice for seven years was brought by Plaint in the Court of Ludlow and Judgment there The Judgment was reversed because first it ought to be by Original or Information and Secondly because it ought to be brought in the Courts of Record at Westminster and not in Borough Courts Varrel and Wilsons Case 786. Conspiracy The Defendant pleaded his goods were Feloniously Stollen and he found them in the possession of the Plaintiff for which he Indicted him and gave evidence against him and upon the Tryal the Plaintiff was acquitted and traversed the Conspiracy aliter vel alio modo It was adjudged a good Justification because the finding of the goods in his possession was a sufficient cause of Suspition Marrow and Tarpins Case 787. Debt against two Administrators for Rent behind after the death of the Intestate they pleaded that before the Rent behind one of the Administraters assigned all his Interest to I. S. of which the Plaintiff had notice and accepted of the Rent by the hands of the Assignee before the day in which the Rent in arrear was due It was Resolved that the privity of contract as to the Action of debt was determined by the act of the Lessee and therefore the action of Debt after the Assignment did not lie against the Administrator Smith and Johnsons Case 788. Error of a Judgment in Action upon Assumpsit in the Court of Reding The certificate was Plita c. ad Cur. Dominae Reginae Burgisui de Reding tenend per consuctudinem Libertat Major Burgensibus concess I without saying per consuetudinem ex antiquo usitot or alledging by what person the Liberties were granted and for this cause the Judgment was reversed Corbet and Corbets Case 789. A seised of Lands for real affection covenanted to stand seised to the use of himself for Life and after to the use of R. and the Heirs Males of his Body the Remainder to C. and the Heirs Males of his Body Provided if R. or any Heir Male of his Body shall intend or go about any act to cut off the Estate tail then it shall be lawful for him that is next to enter A. died R. suffered a common Recovery Resolved the Proviso was repugnant to the Estate tail and that the Cesser of the Estate tail as if the party had bin dead was impossible and the going about it such a secret thing that an Issue cannot be upon it Grar Marshal and Marshals Case 790. A. levyed a Fine of five yard Land to the use of himself for Life the Remainder to the use of his eldest Son who was the Plaintiffs husband and the Plaintiff and the Heirs of the Body of the Husband Proviso if the Husband died living A. his Father then G. the Plaintiff his wife should have yard Land and a half for her Life in possession without shewing which Land the Husband died
A. granted a Rent to B. and his Heirs for the Life of I. S. B. devised the Rent to I. D. The Rent was behind I. S. died I. D. avowed for the Rent It was Resolved in this Case that by the Common Law such a Rent was not deviseable but by the Statute of 32 and 34 H. 8. it was though but a Freehold discendable 2. Agreed that no general Occupant could be of it and they held that if it be deviseable by Custome the devise did prevent the Occupancy Web and Webs Case 814. It was Decreed in Chancery in this Case That the Terre-Tenant should be compelled to pay a Rent seck devised by Will out of Land notwithstanding no seisin was had of it Sir Charles Rawleighs Case 815. A. seised of Curson Park executed an estate of it to the use of himself for Life and to the use of D. his Wife for life so long as she should be effectually ready to demise it to his Heir at 50 l. Rent when she should not dwell on ir her self and for so long as she should not dwell upon it A. dyed B. his Son entred because D. did not dwell upon it but removed with Sir Charles Rawleigh her Husband into Darset sheet and did not demise the Park to him 50 l. Rent There were many points in this Case but none of them particularly Resolved 1. If the Husband D. had taken was bound to performe the demise 2. If her taking of Husband had disabled her to make the demise 3. If she being a Feme Covert had made the demise which was void in Law if she had performed the Condition 4. If the Husband and Wife had joyned in a demise if that had been a performance of the Condition the words extending to her alone 5. If the Heir B. ought to demand the demise or D. the Wife ought to offer it 6. If the demand ought to be by word or by tender of a Writing with a Reservation of 50 l. Rent Agars Case 816. It was agreed in this Case That the Queens Attorny might have an Information in the Star Chamber against a Receiver of the Queens Rent for a perjury supposed in advantage of the Queen and so might any other person assigne perjury in an Oath for the advantage of the Queen if he be greived by it 2. That perjury is assignable at an Inquest of Office as a Misdemeanor but not upon the Statute of 5 Eliz. Wants Case 817. It was holden in Star Chamber in this Case by the Justices That a Libeller is punishable there although that the matter of the Libell be true and so is he who disperseth Libells although he doth not know the effect of them nor ever heard them read 818. Note it was said and agreed That if one exhibits an Information in the Star Chamber but as a Common Informer for a Misdemeanor although he hath not any particular grief and dyeth his Executor or administrator shall not Revive it by a Bill of Reviver but the Kings Attorney may Revive the Bill Carewes Case 819. A Justice of Peace was censured in the Star Chamber because he going to a place to view Riotors and to remove the force and the offenders being gone before his comming he was requested to go to the House where they were and he refused to do it Gellibrand and Habards Case 820. Gellibrand was sentenced in the Star Chamber for levying a Fine by the name of Gellibrand who was then beyond the Seas affirming himself to be the same person and the sentence of the Court further was that the Fine so levyed by him should be vacated upon Record 821. The Case was King Hen. 3. Anno. 41. of his Raign by Letters Patents did recite whereas R. N. held of him by money Rent Corne Cheese and Soccage Tenure he granted to him that from thence forth he should hold by 4 s. Rent and by Knights service for all services The point was if this acceptance of the Patent should make a Tenure by Knight service It was the opinion of the Justices that it did not unlesse the estate of the Land was then in the King because the King might discharge the services either in part or in all by his Patent but could not reserve services of a new nature where he did not give the Land Anthony Mildmay and Mildmays Case 822. Sir Walter Mildmay the Father in consideration of Love and Affâ—ction Covenanted to stand seised of Lands to the use of himself for life without impeachment of wast the remainder to A. his Son and the Heirs males of his body the remainder to H. and the Heirs males of his body Provided if any of the said partes shall go about to resolve determine or devise to do any act or shall consent to any act whereby the estates of them in remainder shall be aliened discontinued barred c. then his remainder shall cease as if he were naturally dead The Father dyed A. entred and suffered a Common Recovery Resolved that the Proviso was against Law and an estate Tail could not cease as if Tenant in Tail were naturally dead Wells and Fentons Case 822. A. seised in Fee executed an estate to the use of himself and his Wife for life the remainder to such Woman as he should afterward marry which should survive him the remainder to B. his Son in Tail his Wife dyed he took another Wife and they both reciting the former Conveyance granted the Lands to I. S. for 40. years by Fine if A. and his Wife or any of them should so long live Afterwards A. dyed the Wife entred It was the opinion of the Court That the Wife was barred of the possibility by Estopel and yet they agreed the Case that if a Lease be made for life the remainder to the right Heir of I. S. and the Heir Levies a fine in the life of his Father the same shall not bar the possibility Peck and Channells Case 823. A. seised in Fee devised the same to a Woman for life the Remainder in Tail to B. his Cosen the Remainder to his right Heirs the Woman and B. entermarried and levyed a Fine with Proclamation with a Render to them and the Heirs of the body of the Husband and after they suffered a Common Recovery of the Husband and his Heirs who enfeoffed the Defendant and dyed without Issue Resolved the Fine did not make any discontinuance because the Conusor was not seised in Tail in possession but in the right of his Wife and the Recovery did not bar the Issue in Tail nor the Remainder because the Tenant was in of another estate to whom the recompence was and not of the estate Tail anciently devised Rayman and Golds Case 824. A man possessed of a Terme for 80. years devised that after the death of his Wife who he made his Executrix his two Sons B. and C. shall have the whole profit of my Farm and the longest liver of them shall appoint who shall have the
took him upon the Capias Utlegatum and returned Cepi and after suffered him to Escape It was adjudged an action of Escape lay against the Sheriff by the party and that the Jury are to give him the value of his debt and the damages Web and Hargraves Case 835 Debt upon Obligation the condition was where W. was Patron of a Benefice with Cure then void if he presented the Defendant and if the Defendant continued Incumbent for a year and after the year all time within three moneths after Notice and request was ready to resigne and did resigne the Benefice to the Ordinary to be presented thereunto again by W. and should not before Resign that then c. the Defendant pleaded the Statute of 13 and 14 Eliz. that Obligation and Covenants for enjoyage of Lease were void and pleaded that after he was Inducted he made a Lease to the Plaintiff W. of the benefices for 21. years and avered the Obligation was made for the enjoying of the Land by the Lease upon which the Plaintiff demurred It was the opinion of the Court that the plea was good but that the averment was not sufficient It was adjudged against him Williams and Greens Case 136. Debt upon a single Bill the Defendant pleaded he delivered it to the Plaintiff as an Escrowle upon Condition that if he delivered him a horse at such a day it should be his deed otherwise not It was the opinion of the Court that the Plea was not good because a Deed cannot be delivered to the party himself as an Escroale Hungate Mease and Smiths Case 837. Debt upon an Obligation to perform an accord of all Controversies betwixt the parties from the beginning of the World to the 30. of August 4 Eliz. so as the Award be pronounced and delivered utrique parti ante 14. diem Augusti and shewed that he awarded that all Suits should cease and they should be friends and that the Defendant should pay to the Plaintiff 7 l. and that the Award was pronounced to the parties before 14. Augusti upon nihil debet all the said matter was found only that the pronouncing of the Award was to Mease and not to Smith It was adjudged against the Plaintiff because he ought to have pronounced the Award to each of the parties Defendants and also it was void it was but an Award of one part also void that all Suits should cease which could not be without Non-suit Retraxit or discontinuance of the parties Dogett and Vowells Case 838. Assumpsit In consideration the Plaintiff had lent to the Defendant 20 l. the Defendant promised to lend the Plaintiff 10 l. quando requisitus c. It was adjudged no good consideration because consideration of a thing past is not sufficient to ground Assumpsit Parhan and Nortons Case 839. Replevin The Defendant avowed for a Relief by the death of I. S. late Tenant The Plaintiff said the Land discended from I. S. to his two Daughters who enfeoffed the Plaintiff and that the Lord accepted the Rent of him Adjudged that the acceptance of the Rent from a new Tenant was no bar of the Reliefe due by the former Tenant Lord Berkley and Countess of Warwicks Case 840. Before the Statute of West 2. Lands are given to Husband and Wife in Frankmarriage the Remainder to the Heirs of the Husband if it be tail Quaere not adjudged vide 25. Eliz. Webb and Potters Case Guy and Brownes Case 841. A Farmor of the King of a capital Messuage made a Conduit to convey the water to his House over the Land of a Copy-holder of the Mannor afterwards the Mannor is granted to one and the Copyhold to another Resolved the Farmer may amend the Pipes in the Land of the Copyholder without Trespass Worleys Case 842. A. lent B. a 100 l. for a year and took an Obligation of him for 10 l. Interest Interest being then 10 l. per cent payable 5 l. at the half year and 5. l. at the end of the year Adjudged it was not Usury within the Statute Hainsworth and Prettyes Case 843. A seised in Fee having four Sons and a Daughter by Will devised 20 l. to each of his younger Sons and his Daughter to be paid by his eldest Son at their ages of 21. years and if the eldest Son do not pay he devised the Land which he had before devised to his eldest Son and his Heirs to the younger and the Daughter and their Heirs It was Resolved 1. That the eldest Son took by discent and not by the Devise 2. The breach of payment to one of them should give the estate to them all and the eldest Son should lose the Land for not payment of the Fourth and they should have the Lands as Joynt-Tenants 3. That the entrie of one of them in the name of the rest was good because they are Joynt-Tenants More and Morecombs Case 844. The condition of an Obligation was to deliver all the tackle of a ship mentioned in an Inventory under the hands of four men or in default thereof to pay so much mony to the Plaintiff before such a Feast as the four men shall value the tackle at the Defendant said they did not value the tackle Adjudged no Plea because the Defendant had Election to do two things and if he cannot do the one for any default of a Stranger or other he is to do the other and in this case he at his peril is to procure the men to value the tackle Walter and Pigotts Case 845. Debt upon an Obligation de Septingentis Libris The condition was Septuagintis Libris Adjudged he was to pay 400 l. not 70 l. and the Bond good Bibell and Dringhowses Case 846. A. conveyed Lands to the use of himself in tail with divers Remainders in tail with a Proviso it should be lawful for him to make Leases for Life or years afterwards he made a Lease for the Life of D. the Defendant After the death of A. the Plaintiff in the â—ight of his Wife in Remainder entred The points were 1. If the Demise generally made unto was Tenant in tail in Interest and who had Authority by the Proviso to make Leases shall be constâ—ued to be made by his Interest or his Authority without declaring his Election the Court doubted of this point 2. Because the Deed did comprise as well Fee simple Land and Lands in tail if it shall enure by way of Interest for the Fee simple Land only and by Authority for the Land in tail Quaere also But they Resolved the Proviso to make Leases was good 847. Note Upon the Statutes of 13 Eliz. Cap. 4. and 39 Eliz. Cap. 7. upon Sale made by the Queen upon Accomptants and Debtors Lands That if any Officer be Tenant in tail the Remainder over and afterwards the Officer dieth without Issue before any sale made by the Queen and he in the Remainder enters and is in by force of his Remainder which was created before the
condition that if there should be default made of Reparations upon Warning given within 6. Months the Lessor to reenter Resolved the warning in this Case must be given to the person and not at the place and both to the person of the Lessee as the person of his Assignee Wilmot and Knowles Case 884. A. and his Wife seised of Land to them and the Heirs of the Husband bargained and sold them to I. S. upon Condition if they or any of them or the Heirs or Assignes of the Husband pay 500 l. at such a day to I. S. it shall be Lawfull for the Husband and Wife and the Heirs of the Husband to enter and to hold in their former estate and that after the payment all Fines and Assurances should be to the use of the Husband and his Heirs and to no other use A Fine was Levyed before the enrollment of the Deed the Husband dyed having a daughter married to I. D. who in the right of his Wife payed the money and entred The Defendant in the Right of the Wife of A. entred It was adjudged his entry was Lawfull because upon the point the use was revested in the Wife as it was before the Fine and the last part of the Fine declaring the use to the Husband and his Heirs was void Atkins and Longviles Case 885. King H. 8. Anno. 33. of his Raign bargained and sold Land to the Ancestor of the Defendant without any words of grant It was adjudged it was good enough by the Expresse words within the Statute of 31 H. 8. of Monasteries which makes all Patents Indentures and writings made by the King after 4. Feb. Anno 27. of Monastery Land to be made within 3. years after the Act to be good 886. In Trespas the Record of Nisi Prius was of a Trespas 12 Jan. 25 Eliz. whereas the Declaration was of a Trespas 12 Jan. 45 Eliz. found for the Plaintiff I was adjudged the Plaintiff could not have Judgment nor the Record of Nisi Prius amendable by reason of this variance Fitzwilliams Case 887. A. suffered a Recovery to the use of himself and his Wife with a Remainder to their Son Provided it shall be Lawfull for him and his Wife by their joynt Deed sealed and delivered before three Credible Witnesses to alter change revoke determine and make void any use estate or estates limited in the said Deed and to limit new uses and from thence forth the Recovery shall be to the new uses A. and his Wife made a Deed and by the same declare That it was their intent to alter change and determine revoke and avoid all the former uses to their Son and thereupon without more words they limited new uses It was adjudged it was a good revocation of the old uses and a good limitation of the new uses Vide Cook 6. part 33. Brown and Nichols Case 188. It was Resolved in this Case that a Conduit to carry Water to an house shall passe with the house by the word Appertenant and the owner may come upon the Land of another to mend it so it be done at a convenient time and that without either Prescription or Grant Pudsey and Neusons Case 889. The Condition of an Obligation was that if the Obligor make all reasonable acts c. which shall be for assurance c. to be required by the Obligee before sueh a day c. Adjudged a general request is sufficient and the Obligor at his perill is to make it otherwise if it had been to be devised by the Obligee or his Councell there he must shew that he had required such a particular Assurance viz. a Fine or a Feoffment c. Milliner and Robinsons Case 890. Ejectione firme A Lease was made by two Coparteners the Declaration was Quod demiserunt ruled not good because it is a several Lease of each of them or his part The Case further was A. devised his Land to his brother I. and if he dyed having no Son that the Land should Remain to W. for life and if he dyed having no Son to Remain to the right Heirs of the Devisor Resolved I. had an estate Tail but W. had it but for life or at least to his Heirs Females for having no Son is meer Contingent Frewwater and Rois Case 891. Tenant in Tail the Remainder in Tail Remainder to the right Heirs of Tenant in Tail Tenant in Tail Covenanted to stand seised to the use of himself and his Heirs untill marriage and after to the use of himself for life the Remainder to his Wife for life with divers Remainders over in Tail and after he suffered a Recovery and dyed It was adjudged it was a bar of the Ancient Tail because by the Covenant to stand seised there was not any alteration of the estate of the Tenant in Tail 892. A Parson sued for Tythes of Fodder the Parishioners prescribed in Non decimando because the Fodder was for their Cattell which manured their Land It was holden no good Prescription but it was agreed Tythes should not be paid for Agistments nor for Wood for hedgwood to enclose the Corne nor for Fewell Rye and Fuliambs Case 893. A. was divorced from his Wife for Incontinency he after took another Wife living the first Wife Adjudged the second Marriage was void because the Divorce was but à Mensa Thoro and not à Vinculo Matrimonii Ward and Sudmans Case 894. The Case was The Bishop of Exeter in Consideration of service and other Considerations gave Lands to T. his Servant and to S. his Kinswoman in Tail Quaere if it was a Joynture within 11 H. 7. because no Consideration was expressed but service and the Consanguinity is but a Consideration implyed The Court doubted of it The Case was not Resolved Errors Short and Hellyars 895. Trespas Quare clausum fregit blada tritici ad valent ' 40 l. messuit conculcavit consumpsit nec non herbam ad valent ' centum solid ' pedibus ambulando conculcavit Consumpsit found for the Plaintiff Error assigned 1. Because the Venire facias was returned upon Sunday which was not dies juridicas 2. Because he supposed the Continuance of the Trespas inâ—depasturatione herbae whereas the Trespas is not supposed in the pasturing but only in conculcatione consumptione herbae pedibus ambulando The Court held the first was amendable by the Statute of 18 Eliz and for the second they said it was but surplusage Sir George Hennage and Curtis Case 896. Trespas for Trespas done in his Close in H. the Defendant justified and prescribed by reason there was a Common Foot way from H. thorow the said Close unto another Foot way from H. to K. in the same County Issue was upon the Prescription the Venire facias was only of H. whereas it ought to have been of H. and K. and for that cause the Judgment was reversed Holt and Tilcocks Case 897. Assumpsit against the Defendant
Administratrix of W T. her Husband and that W. T. by his Bill such a day c. promised for him and his Executor to deliver to the Plaintiff 5000. Tyles before the Feast of All-Saints and to pay to the Plaintiff tantum quantum incrementuÌ„ and gaines which the Defendant should receive of the said Tyles for a year and averred the said W. T. received of the gaines 8 l. and that the Defendant in consideration the Plaintiff would suffer the Defendant to take and have the sole and only Administration of the goods of her Husband and give her day for the payment as well of the 8 l. as of the 5000. Tyles promised to pay the mony and deliver the Tyles upon request all which the Plaintiff did and yet the Defendant had not performed her promise Judgment upon Nihil dicit against the Defendant Error was brought it was adjudged that the consideration was insufficient because by the Law the Administration was to be counted to the Wife and it doth not appear that the Plaintiff had any Administration committed to him or that he exhibited any Caveat into the Spiritual Cour to hinder the Wife of the Administration and as to the giving day of payment that was not good because the Defendant was not his debtor nor chargeable in Law to pay him and for these causes the Judgment was reversed Hog and Blocks Case 898. Assumpsit The Defendant was indebted to the Plaintiff 10 l. and in consideration the Plaintiff would not sue him for the said 10 l. he promised to deliver to the Plaintiff 14. Quarters of Barley upon request Issue was joyned the Clerk of the Assizes returned the Postea and therein put John Puckering before a Serjeant which was omitted which was assigned for Error but the Court held it no Error and the Judgment was affirmed Levine Vanvive and Michael Vanvies Case 899. Debt upon Obligation to perform the award of A. and B. of for and upon all Actions and other Demands whatsoever had stirred depending having been between the parties till the date of the Obligation The Arbitrators awarded the Defendant should deliver to the Plaintiff before the last day of June next six Kentish cloaths which were battered by I. S. for the thred of the said Levine Issue was upon the deliver of the cloaths and found for the Plaintiff Error brought and assigned the arbitrament was of a thing out of the Submission It was adjudged it was within the Submission and the party was tied to the performance of it The Judgment was affirmed The Lord Mordant and Bridges Case 900. Action upon the case for these words viz. The Lord Mordant did know that Proud robbed Shotbolt and at such time as Proue should be arraignes therefore be willed Bridges to compound with Shotbolt for the same Robbery and told Bridges he would see him satisfied therefore if it cost him 100 l. It was found for the Plaintiff and damages a 1000 l. and the Lord Mordant had Execution by elegiâ— of the Lands of Bridges Bridges died the Administrator broughâ— Error in the Exchequer Chamber the Lord pleaded in abatement oâ— the Writ of Error his Execution by elegit and so the Administraton could not have Error Resolved the Writ of Error did lie for the Administrator because it might be the Land might be evicted and then the Plaintiff might resort to the Goods 2. It was assigned foâ— Error that words were not actionable in themselves for it waâ— said that one may compound for a Robbery knowing of it but noâ— for the Felony and the words are not to compound for the Felony Also it was said that it doth not appear in the Declaration that thâ— Lord was a Justice of Peace at the time of these words spoken tâ— Bridges although he was at the time that Bridges spake the words oâ— him in the Declaration upon the Writ of Error it doth not appeâ—â— if the words were actionable or not for it doth not appear in the boâ—â— that the Judgment in B. R. which was given for the Lord was affirmed or Reversed ideo quaere Callard and Callards Case 801. Ejectione firmae in B. R. The Case was E. C. seised of Lands in Fee in consideration of Marriage of Eustace his Son and Heir apparent being upon the Land spake these words to Eustace viz. Stand forth Eustace I do here reserving an Estate for my own and my Wives Life give unto thee and to thine Heirs for ever these my Lands and Barton of S. And afterwards he enfeoffed R. his younger Son in Fee with Warranty and died Eustace entred and demised to the Plaintiff It was there holden that the words did amount to a Feoffment and Livery being spoken upon the Land and the use to be to the Feoffor and his wife for their Lives and after to Eustace and his Heirs upon that Judgment Error was brought in the Exchequer Chamber and there the former Judgment was reversed for that the greater part of the Justices agreed that it was not any Feoffment executed because the intent was repugnant to Law to pass an Estate Eustace reserving any particular estate to himself and his wife and an use it could not be for the purpose was not to raise but use but by an Estate executed which took not effect and they all agreed if it was an use it could not rise upon natural affection without a Deed. The Judgment was reversed Westby Skinner and Catchers Case 902 A. was in Execution severally under the Sheriffs of London at the Suits of B. and C. the old Sheriffs delivered the body of A. by Indenture in which the Execution of B. was only mentioned and the other was omitted A. in the time of the new Sheriffs escaped It was adjudged in B. R. that the old Sheriffs should be charged in an Action for the Escape They brought Error in the Exchequer Chamber and the Judgment was affirmed because it was not found that the new Sheriffs were Sheriffs at the time of the delivery of A. to them and because they did not give notice to the new Sheriffs of all the Executions which were against A. Sacksord and Phillips Case 903. Assumpsit A. was endebted to the Plaintiff 460 l. the Defendant in consideration the Plaintiff would forbear to sue A. for the said Debt promised to the Plaintiff to pay it before Michaelmas next Upon non assumpsit it was found for the Plaintiff But in the postea the Verdict was not certified that the Plaintiff sustained damage by reason of the not performance of the promise for 460 l. for which the Plaintiff had judgment That was assigned for Error and also because the Declaration did not mention the forbearance of Suit at the Defendants request the Court ordered the postea to be amended and affirmed the Judgment Wiseman and Jennings Case 904. The case upon the matter in Law was this Tenant for Life the Remainder in tail the Remainder in Fee Tenant for Life suffered a common Recovery
of the moyety of her Companion if he should live so long which is but a possibility and not grantable and it was Resolved if one Joynt Tenant Covenant to stand seised of the moyety of his Companion it is a void Covenant although he survive Baxter Wâ—odyard and others Case 1016. Action upon deceit for deceiving the Plaintiff at Cards at the game of Mountsant by bringing in a Card called the Bum-card by which they devised that the Plaintiff should have but such games as they pleased by which Cosenage they deceived the Plaintiff of 16 l. Upon Noâ— guilty it was found for the Plaintiff and damages Assessed It was said the Action did not lye no more then for false Dâ—ce Buâ— Resolved the Action did lye and so it was said it was adjudged in one Richmons Case who recovered 100. damages upon such a Cosenage Waltâ—â—m and Mulgars Case 1017. The Case was the Owner of a Ship in the time of Queen Eliz. furnished it to Sea with Letters of Marque to take the goods of the Spaniards the Queens Enemies The Mariners and souldiers without his directions took a French Ship and the goods in it the Frenchmen being then in Peace with the Queen The point was if the Owner of the Ship should answer for those goods It was said by Popham Chief Justice That where the Master sends his Servant to do an unlawfull act there the Master shall answer for the Servant not where he sends his Servant to do a Lawfull act as here the taking of the goods of the Queens enemies there although he mistakes and takes the goods of the Queens Friends the Master shall not answer for the goods Quaere for that the Civil Law is that the Master shall answer in all publike Cases Closes Case 1018. The Case was a man who was presented by Simony Libelled in the Spiritual Court for Tythes The Question was whether the Simony should be tryed in the Spiritual Court or by the Common Law The point is not Resolved Note there Simony is defined to be Studiosa volupt as emendi vel vendendi Spiritualia vel Spiritualibus annexa and it is either Mentalis or Conventuâ—lis of both which the Spiritual Law may Judge but the Temporal Court only of Coventual Simony Talentiâ—e and Dentons Case 1019. The Bishop of Caâ—lisâ—e was seised in Fee of Tythes in the right of his Bishoprick and he made a Lease of them for three lives rendring the Ancient Rent the Tythes having been usually demised for the same Rent It was Resolved that the Lease was not good against his successor because he had not remedy for the Rent by distresse or action of Debt otherwise it had been only a Lease for years for there debt lyeth for the Rent The Lord Sâ—râ—tton and the Lord Mordanes Case 1020. The said Lords by Writ under the Great Seal were commanded upon their Faith and Allegiance that quacunque causa excusatione cessante to come to the Parliament and there to attend the Affairs of the Parliament which are ardua Regni they made divers frivolous excuses It was presumed that they had notice by some of the Gun-powder Traitors they being of their Kindred and Alliance to absent themselves and therefore to avoid the danger of their persons they absented themselves which if they knew of any Danger they ought to have made the same known to the King or his Council and upon Presumption also because they were very conversant with some of the Gunpowder Traitors and were often in their company and divers Papists in their houses and for this their contempt in not coming to the Parliament they were Sentenced and Fined in the Star-chamber and it was said in this case that for the disobeying of the Kings Commands under his Privy Seal several persons Lands and Estates by Commission have been seised into the Kâ—ngr Hands as the Earl of Cornwalls case 4 H. 3. The Bishop of Winchester case 3 E 3. and Sir Francis Eglesfields Case Stockwith and Norths Case 1021. It was Resolved by the Justices that the setting to Farm and sale of Offices was not malum prohibitum against the Statute of 4 H. 4. c. 5. but malum in sese and therefore because the Sheriff of Nottingham took mony for the Goaleâ—ship and the Bayliwick of the said County for one year he was fined in the Star-chamb Bâ—rd and Smiths Case 1022. S. was deprived by the High Commissioners for not conforming to the Canons of the Church it was general quia refactarius but no particular Canon mentioned The King by reason of the said Deprivation presented B who was induced but S. would not yield up the possession of the Parsonage-house A Writ of Vi laica issued out of the Chancery the Sheriff came to the House but could not apprehend the parties B. finding the House empty entâ—ed peaceably S. made an Affidavit in B. R. that he was ousted by the Sheriff with force and B. put into possession the Court of B. R. thereupon granted a Writ of Restitution he having an Appeal depending of the Deprivation In this case these points were Resolved 1. That the Writ de vi laica removenda is not returnable unless the Sheriff find the force 2. That the Kings Bench cannot award Restitution upon an Affidavit but there ought to be a Return of the Writ of vi laica c. in the Chancery and upon Affidavit made there that the Sheriff by vertue of the Writ hath removed one and put another in possession Restitution is awardable 3. Resolved That upon a Deprivation by the High Commissioners no appeal lieth because the Commission is ground upon the Prerogative of the King in the Ecclesiastical Government and therefore the Commissioners being immediate from the King and possessing his person no Appeal lieth 4. Resolved that the Canons of the Church made by the Convocation and the King without Parliament shall bind in all matters Ecclesiastical as well as an Act of Parliament In the principal case it was adjudged untill the Deprivation was repealed and adjudged it stood good and so B. had good Title to the Church Sydenham and Caps Case 1023. Tenant in Tail made a Lease for Life to a Feme Covert the Husband surrendred and then Tenant in Tail made a Lease for three Lives and died the wife after the death of her Husband entred It was adjudged that it was a good Lease for three Lives within the Statute of 32 H. 8. and the issue in Tail should not avoid it Crosâ— and Evetts Case 1024. The case was A. A Popish Recusant intending to disinherit the Plaintiff his Heir being a Protestant and to confer the Profits of the Lands upon such persons as were of his own Religion by Indenture conveyed the Lands to divers persons being Popish Recusants and their heirs upon hope trust and confidence and to the intent they should and would after the decease of him and Jaâ—e his wife yearly for ever give bestow and imploy all the
The Spanish Ambassador and Plages Case 1040. Plage was pressed with his Ship at Lisbone to carry the King of Spains Soldiers to such a Port and had their Letters from the Vice-Roy of Portugal to trade to Brasil he performed the Service of Transportation and 14 months after traded at Brasil and freighted his Ship there for the transportation of Goods to Hamborough and was bound with Sureâ—ies in the Custom-house of Brasil to pay the customes due to the King of Spain at St. Michaels the Ship by tempest was forced into England and did not touch at St. Michaels The Spanish Ambassador pretending the Goods to be forfeit to the King of Spain sued for them in the Admiralty here and a Sentence was there for the King of Spain to have the Goods Plage sued to the Lord Chancellor here to have an Appeal from that Sentence and an Appeal was granted him Sir Thomas Palmers Case 1041. Sir Thomas Palmer who was attainted of Treason in the time of Ed 6. for natural affection 7 Ed 6 by Indenture covenanted to stand seised to the use of himself for Life the remainder to I. S. for Life the remainder to the first Son of the said I. S. in tail the remainder to his eighth Son he was attainted before I. S. had any Son It was Resolved that by the Attainder the Son of I. S. was barred which was afterwards born and the Fee-simple was in the Crown discharged of all the Remainders Jepps and Tunbridges Case 1042. The Defendant delivered a brief of the cause to some of the Jâ—rors impannelled before they appeared for their Instructions This was adjudged an offence for which he was Sentenced in the Star-chamber And in this case it was Resolved that the Plaintiff and Defendant himself may labor the Jurors to appear but a stranger cannot so do 2. That the writing of a Letter or a request by wordâ— by one not a party to the Suit to the Jurors to appear is Maintenance 3. It is not lawful for the party himself to instruct the Jurors either by writing or by word nor to promise them any Reward for their appearance for it is Embracery in them aswell as in a stranger Sis Tho. Dâ—wbridgecourt and Sir Anthony Ashleys Case 1043. The Defendant was decreed â—n Chanceâ—y to pay 1000 l. to the Plaintiff after the Decree the Defendant procured the Son of Sir Thomas by a Letter of Attorney which he had from his Father to agree only the Suit for 200 l. whereof 100 l. was paid in hand and the rest to be paid at a day certain to make a Release which the Son did in his own name but not in the name of his Father It was the opinion of the Justices and also of the Lord Chancellor that this Release was void Crew and Vernons Case in the Star-chamber 1644 Sir Randolph Crew and all those whose Estate c. he had in the Mannor of Crew time out of mind c. had had Turf to born in the House of Crew-hall in a great Waste called Okehanger Moor being interâ—upted he sued in the Exchequer at Chester whereupon Affidavit of the possession 60. years his possession was established After the hearing of the Cause there Vernon interrupted the servants of Crew and with Harrows tore the Turffs for which cause a Bill was exhibited in the Star-chamber against the said Vernon and others they put in a scandalous Answer saying that the Judge at Chester ought not in Justice have made such an Order and called the Affidavit an equivocating Affidavit and affirmed the owners of the Mannor of Crew had taken the Turff but by License and Vernon affirmed to the Court that he had a Release to shew for the discharging of the Prescription but no such Prescription could be shewed nor was but a Grant of Turff to be there taken In this case it was Resolved by the Court the Prescription was not determined by the new Grant but the Grant enured as a confirmation and so the title of Prescription remained 2. Resolved that the words spoken of the Court of Chester were very scandalous and the Affidavit which he called an equivocating Affidavit was approved by the whole wherefore the Defendants were sentenced and fined by the Court and the defendants were to acknowledge their offence to the Court of Chester Sir Anthony Barkers Case 1046. I. S. exhiâ—ited a Bill in the Star Chamber against Sir Anthony Barker and divers other Gentry of Credit and charged the Defendants with the forging of the Will of M. P. and with many undue practices in drawing the said M. P. to make such a Will At the hearing of the Cause the Plaintiff relinquished the Forgery confessing it was no Forgery but would have insisted upon the practices of the Defendants for drawing the said M. P. to make the Will The Court refused to permit the Plaintiff to insist upon the practices for if he would have insisted upon the practices he ought to have confessed the Will and then have shewed the undue practises used to draw her to make such Will Wherefore the Plaintiff was fined 200 l. to the King and the Court gave Damages to each of the Defendants and the reason why they gave damages they declared to be because the Bill being scandalous no action lay for the Defendants at Law because the Bill was prefered before competent Judges to punish the Offences if there had been any and therefore it was reason by reason of such defect of the Common Law in giving damages the Court having Jurisdiction of the Cause supplied the said defect Goodricks Case 1047. Goodrick at a Tavero said to D. being a Master of Arts at Cambridge That there was late a great Contestation befor the King betwixt the Archbishop of Canterbury and the Earl of Northampton Lord Privy Seal because the Archbishop enformed that since the said Lord had been Warden of the Cinque Ports there were more Jesuites and Seminary Priests come into the Realm then before which he said was the Newes of the Court Another offence was That Ingram a Merchant had heard at Ligorne in Florence by two Students out of the Colledge at Rome that the Earl of Northampton writ a Letter to Cardinal Bellaâ—ine to pray him that no answer should be made to his book which he had Written upon the Treason of Garnet the Jesuite because he writ it only ad placandum Regem faciendum populum The Defendants were found Guilty upon their Confessions It was Resolved by the Justices it was a slander within the Statute of Z. R. 2. which moved sedition betwixt the King and his Nobles and that although the publisher did produce his author of such false newes yet he himself was punishable and if one saith there is common Rumor that such a one hath done such an act an action upon the Case lyeth although he doth produce his Author And in this Case it was agreed that if one sayes to another the effect of
with the Son of the third part and that the entry of the Wife vested such a possession in Common with the Son to make a possessio fratris in the Sister of the whole blood to inherit against the younger Son Henningham and Burrowes Case 1137. Trespass in K. The Defendant justified by a title as parcell of the Mannor of Stamford Hall in W. and one venire was of awarded from K. and W. both and holden good Anderson and Robinsons Case 1138. The Habeas corpora was returned album breve without any Endorsment Curia advisare vult if it shall be amended Hill 12 Jac. Wilby and Gumys Case was vouched where it was ruled it should not be amended but a venire de novo awarded Marshall and Stewards Case 1139. Action for words viz. The Devil appeareth to thee every night in the likeness of a black man riding upon a black horse and thou conferrest with him and whatsoever thou doest ask he doth give it thee and that is the reason thou hast so much money and this I will justifie Adjudged the Action maintainable for these words thou conferrest with him for that is Felony by the Statute of 1. Jac. The Weavers of Newburies Case 1140. They were incorporated 1. Jac. with power to make By-laws They made an Ordinance that none should exercise the Trade of a Weaver within the Town unlesse he had bin an Apprentice within the Town seven years before upon pain of 5 l. They brought Debt for a penalty of 5.l Resolved the Action did not lie for being incorporated within time of memory and after the Statute 5. Eliz. they had not power to make By lawes also because the By-law was unreasonable Skaifes and Nelsons Case 1141. Action against Husband and Wife for slanderous words spoken by the Wife and verdict being for the Plaintiff Judgement was against the Husband and Wife and that the Wife should be amerced upon which Error was brought for that both should be amerced but because the Paper book of the Atturney was plain without resure that they should be both amerced It was said to be the Omission of the Clarke and the Record was amended Digby and Fitzherberts Case 1142. Quare impedit The Plaintiff Counted that A. was seised in fee of the Advowson and presented B. and afterward granted to him the next avoidance and that B. dyed and the Defendant did disturb him to present The Defendant said that Sir Tho. Fitz. was seised in Fee of the Advouson and granted it to Rich. Fitz. who gave it to A. for the life of one I. S. by force of which A. presented B. and then granted the next Avoidance to the Plaintiff and I. Fitz. having the rmainder in Fee limited to him after the death of A. granted the same to the Defendant after which B. dyed and the Defendant presented A. absque hoc quod A. tempore concessionis of the next Avoidance of the Plaintiff was seisitus of the Church in Fee the Plaintiff maintained his Title and Traversed absque hoc that A was seised for the life of I. S. upon which it was demurred The Court was divided in opinion Warberton and Winch said the last Traverse was Idle because the Plea had confessed and avoided it Nicholas and Hobart contrary The better opinion seemed to be that to confesse and avoid and also to Traverse is the most sure way of pleading vide Newman and Mores Case Trin 13. Jac. in C. B. Pas 37 Eliz. Cootesale and Woodroses Case in a quare impedit accordingly and Sherley and Bowyers Case If the thing which is Traversed is a point material the Traverse is well added to the Plea otherwise if it be of a thing idle and trivial Brown and Goldsmiths Case 1143. The Dean and Chapter made a Lease of the Mannor of D. to I.S. excepting the Courts and perquisits of Court It was Resolved that the Exception was void as to that Court but as to the perquisits of Court the Exception was good and it was Resolved That for the perquisites of Court no distresse was to be had but Debt did lie for them but in this Case it was Resolved that the King might Lease a Mannor excepting the Courts and such Exception was good Day and Savages Case 1144. Trespass for taking a bag of Pepper The Defendant Justified as servant to the Mayor and Commonalty of London for Wharfage The Plaintiff said that the Custome did not extend to him being a Freeman who ought not to pay Wharfage The Defendant said the Custome did extend to him as well as strangers upon which Issue was joyned Resolved that the Custome should not be tryed by the Certificate of the Recorder as the usuall course is but should be tryed by the Country because the Mayor Comonalty were parties and that the venire fac should not Issue to the Sheriff of London or Middlesex because the Tryals there are by Freemen but should be to the County adjoyning viz. Surrey and Wendates Case 40. Eliz. was vouched to be adjudged accordingly Stoner and Gibbons Case 1145. Debt against an Administrator after demurment Admistration was repealed and granted to another Resolved that he should not plead that Plea after a demurrer but after Issue joyned such a Plea was good Seal and Oxonbridges Case 1146. Wast The Plaintiff made Tittle that I. S. infeoffed another to the use of the Plaintiffs and his Heirs but did not say that he enfeoffed the other and his Heirs and yet it was holden to be good Bird and Haines Case 1147. Debt upon an Obligation acceptance of a Bill sealed after he Obligation was pleaded in Bar for the same Debt and adjudged no Plea The Chancellor and Scholars of Oxford and the Bishop of Norwich and others Case 1148. Quare impedit The Plaintiff Counted upon the Statute of 3 Jac. that I. S. being owner of an Advouson 2. Jac. was a Recusant convict and that after the Church became void and so they by the Statute ought to present One of the Defendants pleaded That the Advouson was Appendant to a Mannor and that two parts of the Mannor were seised into the Kings hands by proces out of the Exchequer and that the King by his Letters Pattents granted the two parts to the Defendant with the appurtenances and granted also all heriditaments but Advousons were not mentioned in the Letters Pattents and so said the presentation did belong to the Defendant It was Resolved that the Advouson did not passe by the word appurtenances without mention of Advouson or words Adeo plena integrè in tam amplo modo forma as the Recusant had the Mannor Wood and Sherlyes Case 1149. The Husband Tennant in Tail the remainder to his Wife for life he made a Feoffment to the use of himself and his Wife for the Joynture of the VVife and after dyed without issue Adjudged the Joynture pleaded was no Bar in Dower brought by the Wife because the Wife was remitted and in of her former
estate Comyn and Brandlyns Case 1150. A Term for years upon an Elegit was apprized at 100l and delivered in Execution to that value A. scire fac brought to have restitution of the Term because the Plaintiff had levyed the 100l of the profits of the Lands Resolved he should not have restitution but if at the time of the Apprisement and before the delivery he had tendred the money either in Court or in paire he might have Audita Querela Girryes Case 1151. A sentence was given definitive in the spiritual Court in a suit there for Tythes pro triplici valore A Prohibition was prayed A speciall Prohibition was awarded That they should not proceed to the Execution of the Sentence as to the treble value because that Court is not to give the treble value but the double value onely Whitlock and Hardings Case 1152. A man devised his Lands for 99. years and after in the Will were these words viz. Item I give to A. my Daughter all my Lands of inheritance if the Law will permit It was adjudged that A. had a Fee-simple in the Lands although there wanted the word Heirs and the words shall go to the Lands and not to the estate in Construction and it cannot be intended an estate for life which is of no value after 99. years Sir Tho. Simonds Case 1153. The wife libelled against the Husband for Alimony because he beat her so as she could not live with him a Prohibition was prayed but denyed by the Court and it was holden in this Case that the Wife might have the peace against her Husband for unreasonable correction Guy and Sedgwicks Case 1154. A Prohibition was awarded to the Counsell of York because they held plea there by English Bill of a Debt due upon an Obligation which is against the Law and Liberty of the Subject and the King in such case loseth his fine The King and Bishop of Lincolne and Kings Case 1155. The King seised of an Advowson in the right of his Dutchy of Lanc. presented to it under the Great Seal and not under the Seal of the Dutchy And Resolved that the presentation was good for the presentation is but a fruit fallen from the tree and the King may present by word because a presentation is but a commendation of the Clark to the Ordinary Case of the Coheirs of Sir William Rider 1156. Resolved by the two Chief Justices and Chief Baron in the Court of Wards That if a man makes his Will in writing and saies then he will adde to it or alter it it is not his Will because not compleat nor published for his Will But if a man makes his Will and publisheth it and after it comes in his mind to adde to it or alter it and sayes he will so do but dyeth before any addition or alteration of it the first Will shall stand Walter the Dean and Chapter of Norwiches Case 1157. The Case was the Dean Chapter 37. H. 8. made a Lease for 50. years 8. Eliz they made a Lease to I. S. for 99. years to begin after the determination of the Lease for 50 years which expired 38. Eliz. In 42. Eliz. they made a Lease to the Plaintiff for 3. lives reserving rent and a Letter of Atturney to make Livery and Covenanted the Plaintiff should enjoy the Lands against the Lease made to I. S. and all claiming under him Livery was made by the Atturney after 3. Rent dayes encurred Resolved that the Lease was good and the Livery well executed by the Atturney who is not confined to any time to make it 2. Resolved that the Lease for 3. lives was not void by the Statute of 13. Eliz. because the Dean and Chapter who made the Lease for 3. lives were alive and in being and therefore they being evicted by a Judgment upon the Lease made to I. S. Covenant brought by the Plaintiff against the Defendant did well lie and Judgment was for the Plaintiff Adams and Curwins Case 1158. Lessee for years died Intestate the Lessor entred and made a Feoffment Administration was granted to I. S. who entred It was adjudged a good Attornment though at the time of the Feoffment there was no Administrator in esse Hill and Hills Case 1159. The Husband made a Lease for years rendring rent during his Life and the Life of his Wife It was adjudged a good Reservation and shall be during the Life of the Survivor of them 1160. Words spoken of a Jury-man sworn upon Life and Death viz. Thou art a Jury man amd hast been the overthrow of a 100. men by thy subtile and false means It was adjudged that the words were actionable Wilkins and Perrotts Case 1161. A Rent was granted to A. and his Heirs Habendum to him and his Heirs to the use of him and his Heirs during the Life of I. S. It was adjudged but an estate for Life discendable and not a Fee-simple Chaworth and Phillips Case 1162. It was Resolved in this case that if a Lease be made upon condition to be void if 10 l. be not paid at a certain day that the Grantee of the Reversion shall not enter for such a condition because it is collateral 2. If Lessee for Twenty years makes a Lease for Ten years upon condition and the Lessee for Twenty years surrenders to him in the Reversion he in the Reversion shall not take advantage of the condition because he is in of another Estate Watbrooke and Griffiths Case 1163. Action upon the case against an In-keeper he pleaded that it was the custom of the Realm that if a man put his horse to Livery to an Hostler and the horse staid there so long that his meat amounted to the value of the horse that he might call four of his Neighbors and value the horse and if they conceived the meat did amount to the value of the horse that he might detain the horse as his own It was adjudged against the Defendant because there is no such general custom within the Realm but only in London and Exeter Winscomb and Pulisons Case 1364. Quare Impedit The case was the Incumbent lying sick of a dangerous Disease and in apparent perill of death it was corruptly and by Symonie agreed betwixt the Patron and S. that for 90 l. the Patron should present S after the death of the Incumbent or should cause him to be presented the 90 l. was paid and for the Security of the Presentation the Patron granted the next Avoidance to I. S. a person nominated in trust for S. I. S. presented S. who was Instituted and Inducted The King presented the Defendant by reason of the Statute of 31 Eliz. which made the Presentation upon the Symonaical contract void It was adjudged that the Presentation of the King of the Defendant was good by the Statute and that the Grant of the next Avoydance was but in pursuance of the Symonaical agreement I. S. being nominated in trust for S. 2. It was holden in
this case that if S. had died and no other was instituted by the Patron but the Church remained void that the King might Present otherwise it had been if the Patron had presented a new Parson to the Church before the King presented Pym and Gorwins Case 1165. It was Resolved by the Justices in this case that one cannt prescribe for a Seat in the body of the Church for that the Seats there are disposable by the Parson and Churchwardens but for a Seat in an Isle of the Church a man may prescribe because it may be presumed that he or his Ancestors who had house and lands within the Parish had edified and built the said Isle and so it was said it was adjudged in the Lady Grays case Norris and the Hundred of Gawtrys Case 1166. Debt against the Hundred upon a Robbery 9. Octob. 13 Jac. the Teste of the original was 9 Octob. 14 Jac. It was said the Action was not brought within the year for there is but one ninth of October within the year It was the opinion of the Justices that in this case a Fraction of a day should be by devision of time in a day viz. the Robbery committed 9 Oct. 13. post meridiem is within the year of the bringing of the Writ 9 Octob. 14 Jac. in the morning Vide Ludford and Grettons Case Plowd Com. 491. Dawks and Hills Case 1167. Upon an Information upon the Statute of 5 E. 6. an Ingrosser of Chattel justified for a certain number of Chattel and sold upon two several Licenses without distinction how much upon the one and how much upon the other and upon a Demurrer it was adjudged for the Plaintiff Middleton and Lawtes Case 1168. Two Patrons pretended title to present the one presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after there he obtained Institution and Induction by the Arch-Bishop Afterwards the inferior Bishop instituted and inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction for that would determine the Incumbency which is tryable at the Common Law Stewkley and Butlers Case 1169. In Trespass the case was A. seised of the Mannor of D. made a Lease of the Scite and Demeans to the Defendant for three Lives except all Tymber-trees and covenanted that his Lessee should take all Woods Afterwards the Lessor bargained and sold to the Lessee all those the Trees Woods and Under-woods growing within the Mannor viz. within the Grounds called A. B. and C. Habendum una cum omnibus aliis arboribus within the Mannor which may conveniently be spared and the Bargainor covenanted that it should be lawful for the Barganee at all times within five years to enter and cut the Trees and Woods and convert them to their own uses In this case it was Resolved 1. That the Viz. was void for a Viz. may explaine or distribute a thing precedent but not restrain it 2. Resolved that the una cum aliis arboribus in the Habendum should make a new Grant of the other Trees 3. Resolved that the words which followed the una cum cest ' una cum omnibus arboribus within the Mannor which could be spared was void for the uncertainty and there is no means agreed betwixt the parties here to reduce the same to a certainty 4. Resolved that the Covenant of the Bargainor that it should be lawfull for the Bargainee to take the Trees and Woods within five years was not a Condition but a meer Covenant and the difference was taken where one sells all his Trees to be taken within 5 years after there the Vendee shall not take them after 5 years ended but if the time of taking of them be by way of Covenant there it shall not restraine the party to take them at all times as well after the five years as within the five years but the parties are to have their remedy by an Action of Covenant upon the disturbance Yet it was said by Hatton that if one grants his Corn growing and the Grantee doth not take it in convenient time so as the Grantor receive detriment thereby the Grantor shall have Action upon the case against him Hansons Case 1170. He was cast over the Bar because he gave direction in writing to an Under-Sheriff what persons he would have him return upon a Pannel for tryal of an Issue and named others who he would not have to be retorned Kingswell and Crawleys Case 1171. Replevin The Defendant avowed for Rent for that I. S. held of him by Fealty and Rent whose Estate the Plaintiff had The Plaintiff said I. S. enfeoffed I. N. who made a Lease to the Plaintiff for Life absque hoc that he had the estate of I. S. Resolved that the Traverse was void for after the Statute of 21 H. 8. the party is to avow upon the Land and then it is not material what Estate the Tenant had so he occupied the Land but before the said Statute it had bin a good Plea so as the Statute hath changed the Law for the Traverse in pleading although there is not any word of it in the Statute Andrews and the Bishop of Yorks Case 1172. It was Resolved that is a good Plea in an Assize of Darrien Presentment that the Plaintiff hath a Quare Impedit depending the same avoidance 1173. Words viz. He hath stollen my coâ—n out of my Barns Adjudged per curiam the words were actionable Hall and Wingfields Case 1173. The Defendant acknowledged a Recognizance before the Lord Hobart at Serjeants-Inn in Fleet-street London which Recognizance was enrolled in the Court of common Pleas The Plaintiff brought debt upon this Recognizance in the Common Pleas and layed his Action in London Whether it ought to be brought in Middlesex where the Record of the Judgment was or in London was the Question The Justices were divided in several opinions Winâ—h it ought to be in Middlesex where it is enrolled because the Debt is consummate Warberton it may be in any County where the party pleaseth Hutton it lieth where the Record is Hobert if no mention had bin made upon the Inrollment of the Recognizance before the Chief Justice at Serjeants Inn it ought to have bin brought in Middlesex but now it was in the Election of the Plaintiff to bring it either in London or Middlesex vide this case more at large Hob. Reports 195. where the case seems to be Resolved Lea and Pains Case 1175 Debt upon Obligation to stand to an Award The Plaintiffs in January submitted themselves to stand to the award of I. S. for all Quarrels Debates Questions stirred moved or depending I. S. in April made an Accord that the Defendant should pay to the Plaintiff should pay Twenty Nobles in
discharge of all Quarrels c. It was objected the Award was void because the Submission did not extend but to Quarrells depending at the time of the Submission which was in January and the Award is of all Quarrels c. which shall be intendable at the time of the Award It was adjudged for the Plaintiff for that it doth not appear that there were any new Quarrels risen between the Submission and the Award and if there were any such it ought to have been shewed on the Defendants part Heard and Baskervills Case 1176. Rplevin The Defendant avowed for Rent granted 12 E. 1 and shewed the discent to such an one whose Heir he is but did not shew how he was Heir It was the opinion of the Court that he is not to shew how Heir in the Writ but in the Declaration and the shewing how Heir is but matter of Form because not traversable but Heir or not Heir is only Issuable and therefore upon a general Demurret it is helped by the Statute of 27 Eliz. But not pleading of the Deed of the Rent shewed in Court or hic in curia profert is matter of substance not aided by the Statute Speak and Richards Case 1177. The Plaintiff sued Execution upon a Recognizance of 2000 l. acknowledged to him in Chancery by I. S. and others and upon two Nihils retorned upon two Scire fac in Middlesex a Levari issued to the Sheriff of S. the Defendant who retorned he had levyed 500 l. towards the satisfaction of the Plaintiff and that he had it ready to deliver to the Plaintiff and because upon this Return upon request of the Plaintiff he had not paid it him he brought Debt against the Sheriff The Defendant as to part of the 500 l. viz. 300 l. pleaded nihil debet to the 200 l. he pleaded payment and thewed an Acquittance the Plaintiff demurred Judgment was given for the Plaintiff for the 300 l. and for the 200 l. nihil capiat per breve because the Recept and the Acquittance is confessed by the Demurrer Davison and Barkers Case 1178. Information upon the Statute of 5 Eliz. for using the Trade of a Bakes within the city of Norwich not having been an Apprentice seven years It was said that no penalty did rise to the Informer for a penalty which did accrue within the city of N. by reason of this branch in the Statute viz. All Amercements Fines Issues and Forfeitures which arise within any City or Town corporate shall be levyed gained and received by such persons as shall be appointed thereunto by the Mayor c. to the use of the same Cities The Justices were divided in their opinions vide Croke 1. part 130. and Hob. Reports 183. where this Case seems to be Resolved Rynes and Mophams Case 1179. Action upon the case that he lent the Defendant his Mare at C. to plow the Defendants Land at P. and safely return her two days after and the Defendant overwrought her so that she died The Venire was of C. only where the Mare was delivered and not where she was labored and therefore the Judgment was reversed Harbin and Greers Case 1180. Action upon the case A custom was alledged That all the Inhabitants of certain Messuages holden of the Bishop of S. had used to grind their Corn which they used to spend in their houses or should sell at certain Mills called the Bishops Mill in S. and not elsewhere without the License of the Bishop It was adjudged the custom is void and unreasonable to grind all their Corn which they should sell Dembyn and Browns Case 1181. A Rent was jointly granted to husband and wife the husband died the wife took Administration of his Goods and as Administratrix brought Debt for the Arrearages incurred in the Life of her husband Adjudged the Arrearages were due to her in jure proprio and the naming of her Executrix of her Husband was Surplusage Wolley and Davenants Case 1182. A Scire fac against the Bail he pleaded that the Principal reddidit se Adjudged it shall be tried by the Record and not by the Country and if the party render himself at the Bar and the Attorney of the Plaintiff is not there to pray him to be committed he shall be committed ex officio by the Court. Roberts Case 1183. A man 25 H. 8. seised of an House and Lands made his Will in these words viz. I bequeath to L. my wife my house in P. with all the Lands thereunto belonging during her Life and after her decease I make A. B. C. and D. Feoffees in the said House and Lands to see the house kept in reparations and the rest of the profits of the same Rents after the discretion of the said Feoffees to be bestowed yearly upon the Reparation of the High-ways of W. and the Town The Devisor and his wife being both dead It was a Question the Will being made before the Statute of 32 H. 8. and the Land not in use whether it be an appointed Limitation or Assignment within the Statute of 43 Eliz. of Charitable uses It was Resolved that the said intended Devise was a Limitation or an appointment to a Charitable use to be relieved within the said Statute of 43 Eliz. Sir Tho. Middletons Case 1184. Sir Thomas Middlenon received 3000 l. from Queen Eliz. for the payment of the Soldiers which returned in the voyage made by Sir Francis Drake and Sir John Hawkings The Captains Mariners ane Soldiers made a voluntary constitution that every Mariner and Soldier should abate so much a month out of their pay to be imployed for the relief of the Mariners and Soldiers which were maimed or hurt in that Service of which abatement there was 300 l. in the hands of Sir Thomas Middleton It was Decreed upon a commission upon the Statute of 43 Eliz. that this 300 l. was a charitable use within the Statore and Sir Thomas was decreed to pay the money to the said use Rivers Case 1185. A Copyholder in Fee devised 14 Acres of his Copyhold Lands to his Son and his Heirs upon condition to employ the profits thereof for the Relief of the poor of S. for ever and died no surrender being made to the use of his Will either before or after I. S. purchased this Copyhold Land upon a Commission upon the Statute of 43 Eliz. this charitable Use was found and that the profits had not been employed accordingly It was decreed that the Purchasor having notice of the said charitable use should pay 12 years arrearages according to the value of the Land at 7 l. 10 s. per annum to be paid for ever by the Purchasor and his Heirs for the relief of the Poor and that he and his Heirs should hold and enjoy the Lands for ever Vochel and Dancastels Case 1186. In Debt for Rent upon a Lease for years the Defendant pleaded that the Lease was made to one H. and the Defendant and that H. his Companion 1