made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
say per scriptum obligatorium and to conclude that it was secundum formam statuti will not help it but in a Verdict it was agreed to be good 76. pl 117. Apothecary brought an action upon the case upon a promise for divers wares medicines of such a value the Desendant pleads in bar that he payed to the Plaintiff tot tantas denariorum summas as the medicines were worth and shews no sum in certain and therefore naught 77. pl. 120. A. and B. were bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make A. brought an action against B. and pleaded that the Counsel of the King of the said Court made such order and decree and that the Defendant did not observe it the Defendant pleaded that the King and his Counsel did not make the decree which is naught 78. pl. 126. Where a bad plea shall be made good by Verdict See Title Verdict 2. If a man plead an affirmative plea as that he hath saved the Plaintiff harmless and doth not shew how it is naught otherwise of a negative plea as non damniâ—icatus c. 121. pl. 200. What shall be said to be an argumentative plea what not 207. pl. 247. Pleas of the Crown Bayliffs endeavour to break open a house to serve an Execution upon the owner who not desisting upon his threats he shot and killed one of them it is not murder but man-slaughter 3 pl. 7. Many notable resolutions upon the Statutes of Winchester and 27 Q. of Robberies 10 pl. 28. Pledges Judgement reversed for want of Pledges 17. pl. 40. In a Replevin brought in an inferior Court and no Pledges de retorno habendo taken by the Sheriff according to the Statute of W. 2. ca. 2. upon the plaint removed into the Kings Bench that Court may find Pledges and that any time before Judgement 46. pl. 72. Presentments in Courts Presentments taken in an Hundred Court were quashed because that it is not the Kings Court and therefore coram â—on judice 75. pl. 115. Priviledge If the Clerk of a Court be elected into any office which requâ—res his personal constant attendance as Churchwarden or the like he shall have his priviledge otherwise not as for watching and warding and the like 30. pl. 65. Ordered by the upper House of Parliament 16 Caroli that onely menial servants or such as tend upon the person of a Knight or Burgess should be priviledged from arrest 92. pl. 157. Debt against a husband and his wife as executrix who are sued to the Exigent and at the retorn of it the husband being an officer in the Exchequer came into Court and demanded his priviledge and whether as this case is he shall have it or not quâ—ere 149. pl. 219. Prohibition A man libelled in the Ecclesiastical Court against one for these words Thou art a drankard and usest to be drunk thrice a week upon which a Prohâ—bition was prayed and granted 6. pl. 11. 66. pl. 103. If the Ecclesiastical Court proceed upon a Canon which is contrary to the Common Law Statute Law or Custom a Prohibition lies 22. pl. 50. 67. pl. 74. Two joynt Tenants of Tythes the one sues in the Ecclesiastical Court without the other or a Feme Covert solely for deâ—amation this is no cause of Prohibition 25. pl. 26. pa. 47. pl. 112. See pa. 93. pl. 112. Upon a Petition to any Ecclesiastical Judge without suit there no Prohibition lies 45. pl. 70. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but upon a Libel there to repair a highway a Prohibition lies 45. 70. Tenant in Taâ—l levyed a Fine to the use of himself for life the Remainder in see to I. S. and died the Counsel of the Marches wou'd settle the possession upon the Heir of the Tenant in Taâ—l against the purchasor upon which a Prohibition was granted 51. pl. 79. Libel for Tythes for barren Cattle upon a suggestion that the party had no cattle but for plough and pale Prohibition was granted the same Parson libelled for Tyth of Coneys upon which a Prohibition was also granted 58. pl. 87. No Prohibition after sentence in the Ecclesiastical Court 73. pl. 111 92. pl. 156. Many men recover Costs in the Spiritual Court one of them releases the others sue there for their costs this is no came of Prohibition Baron and Feâ—â—e recover costs there for defaming the wife the Baron releases this will not baâ— the wife 73 pl. 112. See pa 25. pl. â—6 pa. 4â— pl. 〈◊〉 Contract betwixt the Vicar and a 〈◊〉 shiâ—ner to pay so much for 〈…〉 Tythes the Vicar dies his 〈…〉 in the Ecclesiastical Court for them 〈◊〉 on which a Prohibition was granted by reason of the real contract which is a temporal thing 8â— l. 1â—0 Libel in the Ecclesiastical Court for these words 〈…〉 upon which a Prohibition was granted 89. pl. 144. Where the Ecclesiastical Court hath conâ—sance of the cause though they proceed erroneously a Prohibition will not lie 92. pl. 152. See pa. 98. pl. 169. 〈◊〉 The Ecclesiastical Courts may hold plea of an excuse for not going to Church and no Prohibition lies 93. pl. 162. Where there are several Moâ—â—ses there several Prohibitions shall be granted where one Moaâ—s onely though divers parties all shall have but one Prohibition 94. pl. 163. If the Ecclesiastical Court proceed against a man without Citation where they have Jurisdiction no Prohibition lies the remedy is by way of Appeal 98. pl. 169. See pa. 92. pl. 152. 〈◊〉 Legatee may sue an executor in the Spâ—ritual Court for to assent to a Legacy Assets or not Assets may be tried by them and no Prohibition lies 96. pl. 167 A woman Libelled against another for calling of her lade upon which a Prohibition was granted but for Whore or Eawd no Prohibition lies quaere whether or not for Quan 99. pl. 1â—0 If a man be sued in the Court of Requests to account there a Prohibition lies See Title Sâ—â—â—â—stratica 1. 2. A man exhibited a 〈◊〉 in the Court of Requests for moneys due upon an account upon which a Prohibition was granted for that it is no 〈◊〉 than Debt upon an account further they referred the 〈…〉 the 〈◊〉 to â—â—â—ers which 〈…〉 of Prohibition 102. pl. â— 5 〈…〉 If a Ship â—e taken at Sea whether b Letters of Mart or by â—itacy if it be sold infra coâ—pus conitatus and the party Libels against the vendee in the Admiralâ—y a Prohibition lies 110. pl. 188. Upon deciding of Actions in an inferiour Court a Prohibition lies 141. pl. 214. Property In Trover and Conversion for a Hawk if he doth not say that it was reclaimed the Action will not lie for that it doth not appear he had a property in it and to say that he was possessed of it ut de bonis suis propriis will not
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
thing cannot be apportioned 100 pl 172. Where an Arbitrament shall be said to be incertain where not 13. pl. 42. Where an Award shall be said to be according to the submission where not 77. pl. 122. The submission of an Infant to an Arbitrament is void 111. pl. 189. 141. pl. 215. Arrerages Grantee of a Rent charge in see distraines for Arrerages and then grants it over whether the Arrerages are lost or not quaere 103. pl. 178 Assent and Consent An Executor is compellable in the Ecclesiastical Court to assent to a Legacy 96 pl. 167. What shall be said a good assent to a Legacy and where an assent after the death of the Devisee shall be good where not 137. pl. 209. Assets Where Assets or not Assets may be tried by the Spiritual Court See Tit. Iâ—risdiction Assignee Assignments A Feme sole conveys a terme in trust and marries the Husband assignes it over the trust passes not the Estate 88. pl. 141. Assumpsit Where there is a mutual and absolute promise he that brings the Action needs not to say qâ—od paratus est to do the thing which he promisâ—d and that the other refused to accept it otherwise where the promise is conditional 75. pl. 114. Promise not to exercise ones Trade in such a Town is good otherwise in case of a Bond. 77. pl. 121. 191. pl. 238. Promise made to an Attorney of one Court for Sollicitation of a Cause in another Court is a good consideration upon which to ground an Assumpsit 78. pl. 123. Promise is an entire thing and cannot be apportioned See Tit. Apportionment Attachment An Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. See more of Attachments in Title Contempt Attorney Infant cannot be an Attorney 92. pl. 154. An Administrator brought a writ of Error to reverse the Outlawry of the intestate for murder and allowed to appear by Attorney 113. pl. 190. An Attorney at Common Law is an Attorney in every inferiour Court and therefore cannot be refused 141. pl. 214. Audita querela In an Audita querela the Law doth not require such strictness of pleadiâ—g as in other Actions 69. pl. 108. Averment Where and in what Cases an Averment shall be good and necesâ—ary and where not 1. pl. 3. 15. pl. 37. 19. 62. pl. 96. Avowry Grantee of a Rent charge in Fee distrains for Arrerages and then grants it over whether he ought to avow or justifie quaere 103. pl. 178. Bailiff SHeriff of a County makes a Mandat Balâ—vis suis to take the body of a man and the Bailiffs of a Liberty retorn a Rescous and good 25. pl. 58. Bankrupts An Inholder is not within the Statutes of Bankrupts Copyhold Land is No Inholder at the time of the purchase but afterwards not within the Statutes 34 pl. 67. Baron Feme What things of the Wives are given by the Law and the intermarriage to the Husband what not and what things he shall gain by Letters of Administration after her decease 44. pl 69. Baron and Feme cannot joyn in a Writ of Conspiracie in what other Cases they may joyn 47. pl. 75. See 212. pl. 249. Whether Trover and Conversion against a Baron and Feme and a count of a conversion ad usum 〈◊〉 be 〈◊〉 or not quaere 60 pl. 94. Seâ— 82. pl. 134. Feme â—ole conveys a 〈…〉 her Husâ—and that shall â—e covenants with her 〈◊〉 to intermeddle with it and yet after marriage assignes it over the Feme shall have remedy in Equity 88 pl. 141. Baron and Feme present to a Church to which they have no right this gains nothing to the Feme otherwise when they enter into Land or when the Feme hath right 90. pl. 146. One said of the Wife of another that she was a Bawd and kept a Bawdy-house for which they joyned in Action and declared ad damnum ipsorum and held good 212 pl. 249. Bar. Bar in one Ejectione firme â—is a Bar another brought for the same Ejectment but not for a new Ejectment 59. pl. 93. Plea in bar incertain is naught See Tit. Pleadings c. Tenant for life the Reversion to an Ideot an Uncle heir apparent to the Ideot levyes a Fine and dyes Tenant for life dyes the Ideot dyes whether the Issue of the Uncle who levied the Fine shall be barred by it or not quaere 94. pl. 164. 146. pl. 216. Certiorari UPon a Certiorari to remove an Indictment of â—orcible entry denier of one shall not 〈◊〉 the others of the benefit of the Certiorari they offering security according to the Statute of 21 Iac ' and the Sureties being worth ten pounds cannot be reâ—used and after a Certiorari brought and tender of sufficient sureties the Justices proceedings are coram non judice 27. pl. 63. A. and B. were indicted for a murder B. flies and A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Certiorari lies to remove the proceedings of the Commissioners of Sewers See Title Sewers Cessante causa cessat effectus Outlawry reversed the Original is revived for Cessanto cause c. 9. pl. 21. Chancery After Execution and Moneys levied the Lord Keeper cannot order the Money to remain in the Sheriffs hands or that the Plaintiff shall not call for it 54. pl. 81. Charter of Pardon Whether a Pardon of the King of Felony homicide c. doth pardon murder or not quaere 213. pl. 250. Commission Commissioners Commissioners execute a Warrant with a stranger to the Warrant yet good 92. pl. 155. Confirmation Baron and Feme Donees in special Tailâ— the Baron levies a Fine and dyes he in the Reversion confirmes to the Wife her Estate to have to her and her Heirs of her body by the Husband-ingendred what is wrought by this Confirmation quaere 146. pl. 216. Consideration What shall be said a good Consideration upon which to ground an Assumpsit what not 55 pl. 86. 78. pl. 123. Contempt Attachment ought not to be granted against the Sheriff for Contempt of his Bailiffs 54. pl. 81. Upon Error brought notice ought to be given to the Sheriff otherwise he shall not incur a Contempt for serving execution 54. pl. 81. No Attachment without an Affidavit in-writing 129. pl. 208. Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. Copyhold Copyholds not granted in Reversion except by Custom 6. pl. 13. Copyhold is within the Statutes of 13 Q. 7. and 1 Iac. 1. of Bankrupts 36. The King grants a Copyhold for life generally whether this destroys the Copy-hold or not quaere Descent of a Copyhold shall not take away an entry 6. pl. 13. Coram non judice After a Certiorari brought to remove an Indictment of forcible entry and tender of sufficient sureties according to the Statute of 21 Iac. the proceedings of the Justices
paid may inforce a Distribution or not quaere 65. pl. 102. 93. pl. 158. Double Plea Where two things are alleadged and the one of necessity onely or by way of inducement and the party relies onely upon the other that is no double Plea 55. pl. 84. 74. pl. 113. Ejectione Firme Ejectone Firme de uno repositorio nought for the incertainty 96 pl. 166. Ejectione Firme de tanto unius messuagii c. qâ—aâ—tum â—â—at super ripam is nought for the incertainty and so where the Tâ—over of the Jury is such it is nought 97. pl 168. Elegiâ— Upon an Elgit there needs no Liberate otherwise upon a Statute Note the Elegit excepts averia Caruâ—â— 117. pl. 194. Equity Certain special Cases where there shall be remedy in Eqâ—ity where not pa 83. pl. 1â—8 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1â—1 102 pl. 175. 105. pl. 182. 106. pl. 183. 129. pl. 207. Errors In Error to reverse a Judgement in Debt upon an Arbitrament Judgement was reversed first because that in the reference to the Arbitrament there was no word of the submission Secondly because that the entry of the Judgement was considâ—ratum est and per Curiam omitted 7. pl. 16. In an Actâ—on for words Judgement was reversed because that it was averred that the words were spoken inter diversos ligeos and doth not say Cives of the place where they have such an acceptation as also for that the Judgement was Consideratum est and per Curiam Omitted 15 pl 37. In Trespass the Defendant justifies by a special Custom by Vertue of which he did it and doth not say quae est eadem transgressio for which Judgment was reversed 16. pl. 38. Judgment was reversed for want of Pledges 17 pl. 40. Outlawry was reversed because it did not appear where the party outlawed was inhabitant as also for that it did not appear that Proclamations were made at the Parish-church where c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney 24. pl. 53. Oâ—tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum â—bm ' c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed that if he would relinquish Administration at the request of C. and permit A. to Administer that A. would c. in Assumpsit by B. he shewed that he renounced Administration and permitted A. to Administer but doth not shew that it was at the request of C. by Barkley Just. it is Error 55. pl. 86. Judgement ought not to be judged erroneous by implication 56. pl. 88. 61. pl. 95. A Writ of Error upon Dower well lies before the Retorn of the Writ of Enquiry of damages but whether a Writ of Error lies in an Ejectione firme before Judgment given upon the Writ of Enquiry quaere 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit is Error and not amendable 121. pl. 201. 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought otherwise where is bears Teste before Judgment 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 armis but it wanted in the Count and whether this is error or amendable or not quaere 140. pl. 213. Escape Upon mean Process if the Sheriff retorn a Cessi and Rescous no Action lies against him for the escape otherwise in case of Execution 1. pl. 1. Estoppel Morgager makes a Lease for years by Deed indented after performs the condition and makes a Feoffment in â—ee the Feoffee claiming undeâ— the Estoppel shall be bound by the Lease 64. pl. 99. If a man bind himself to deliver any thing he is estopped to say that he hath it not 74. pl. 113. Estoppel binds only parties 105. pl. 180. Evidence to an Inquest upon Issues joyned Depositions taken in the Ecclesiastical Court cannot be given in evidence at Law though the parties were dead 120. pl. 198. Executions prayer in execution A second Execution cannot be granted before the retorn of the former 47. pl. 73. Where a man is imprisoned for the Kings Fine and upon a Habeas coâ—pus it is retorned that he is in Execution also for the Damages of the party it ought to be intended at the prayer of the party 5a pl. 80. Executor Administrator An Executor or an Administrator may maintain an Action for any Coâ—tâ—â—ct made to the Testator or Inâ—estate or for any thing which riseth ex contractu 9. pl. 23. Administrator of an Executor shall not sue a Scire Faâ— ' upon a Judgement given for the Testator 9. pl. 24. A Sheriff levies moneys upon a Fâ—â—ri Fas ' and dies Debt will lie against his Executors 13. pl 33. Whether the Executor of a Phâ—llizer shall have the profits of the Writs which are to â—e subscribed with his name or his Successor quaere 90. pl. 147. Expositors of Statutes The Judges are the sole Expositors of Acts of Parliament though they concâ—rn Spiritual matters 90 pl. 148. Extinguishment and Suspension Three covenant joyntly with two severally after one of the covenantors marries one of the covenantâ—es whether the covenant be good or not 103. pl. 176. Fine to the King IF a Carrier spoil the High-ways by drawing a greater weight than is warrantable by the Custom of the Realm he is â—inable to the King 145. pl. 210. Fines of Lands Disseisee levies a Fine to a stranger this doth not give the right to the Disseisor 105 pl. 180. Tenant for life the Reversion to an Ideot an Uâ—cle Heir apparant to the Ideâ—â— levies a Fine and dies Tenant for life dâ—eth the Ideâ—t dies whether the Issue of Uncle who levied the Fire â—â—albe barred by this or not quaere 4. pl. 164. 146. pl. 216. Forcible Entry Restitution cannot be awarded to the Plaintiff if it doth appear that he hath seisin yet the King shall have his Fine and if the Indictment be adtunc adhuc the Defendant keeps the possession forcibly where the Plaintiff was in possession Re-restitution shall be awarded 6. pl. 12. Forgery To forge a Will in writing though without a Seal is forgery within the Statute of 5 Q. ca. 14. Freehold What shall be said a grant of a Freehold to commence at a day to come what not 31. pl. 66. Gardeins of a Church WHere the Custom is for the Parishoners to chuse the Churchwardens the Person by colour of the Cannon cannot chuse one and if the Minister of the Bishop refuse to swear one of them chosen by the Parish a Mandat lies to inforce him to it and if the Parson thereupon doth Libel in the Ecclesiastical Court a Prohibition lies 22. pl. 50. 67. pl. 104. The Gardeins of a Church in London are a Corporation and may purchase Lands to the use of the Church and in the Country they are a Corporation capable to purchase Goods to the
a difference where the party comes in by act of Law and where by the act of the party he who comes in by act of Law shall not be put to his Scire facias for so he should be without remedy and if that should be permitted it should a be subtile way for the conusor to avoid the possession of the conusee and then he himself to take benefit of it and that should be a fine way to defeat the Statute Besides by this way if the Statute should be satisfied by casual profit or if the time should be expired and the Statute satisfied by effluxion of time if in that Case the grantee should be permitted to distrein the beasts of the conusee for a great Rent perhaps before that the Conusee by possibility might remove from the Land it would be a great disturbance to the Conusee Besides if a stranger enter upon the conusee the conusee upon his regress may hold over but not so in this Case where the grantee of the Rent distreins and that should be also a great prejudice to the conusee But it was objected that the grantee of the rent could not have a Scire facias and therefore if he might not distrain he should be without remedy To which he answered that if it should be so it is his own fault for he might have provided for himself by way of covenant But he conceived that he might have a Scire facias for he said that it is a Judicial Writ issuing out of the Rolls which might be framed and made according to the case of any man and it is not enough to say thâ—â— there was never such a Writ granted in the like case but he ought to shew where it was ever denied besides it is not always necessary that he that shall have this Writ should be party to privy to the Record as appâ—areth by these Books 46 Ass. Scire facias 134. 32 E. 3. Scire facias 101. and 38 E. 3. 12. Br. Scire facias 84. Again it is not necessary that the Scirâ— facias should be either ad computandum or ad rehabendum terram as it was objected for as I have said before it may be framed according to the case of any man and vary accordingly wherefore he prayed Judgment for the Plaintiff and note that at this time Justice Heath seemed to incline for the Plaintiff Thorne against Tyler in a Replevin 231. THe Plaintiff shewed that the Defendant took certain Beasts of the Plaintiff such a time and place and detained them against gages and pledges c. The Defendant as Baily of the Mannor of the Lord Barckley made conusance of the taking of the cattle and said that long time before the taking of them the Lord Barckley was seised in see of a Mannor in Gloucestershire within which there were Copy-hold-Tenants time out of mind demiseable for one two or three lives that there was a custom within the same Mannor that if any copyhold-copyhold-tenant did suffer his messuage to be ruin'd for want of repairing or committed waste that is presented by the homage that such tenant so offending should be amerced and that the Lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such customâ—ry tenements levant and couchant upon such customary tenements for such amercement and further said that one Greening was tenant for life of a customary tenement within that Mannor and made a Lease unto the Plaintiff for one year and that 15 Car. the homage did present that Greening had suffered his Barn parcel of the customary Tenements aforesaid to fall for want of repair for which he was amerced to ten shillings and that in Iuly 16 Car. the Defendant as Bayly of the Lord Barckley did distrein the Plaintiffs cattle being under-tenant for the said amercement upon the said customary tenement and so he made conusance and justified the taking of the beasts as Bayly of the Lord Barckley The Plaintiff confessed that Greening was tenant and that he made a Lease to the Plaintiff for a year and further he confessed the want of repairing and presentment and the amercement upon it but he denied that there is any such custome upon which they were at issue and the Jury found for the Defendant that there was such a custom and it was moved in arrest of Judgment that the custom was not good because it was unreasonable for here the Tenant offended and the under-tenant is punished for it which is against all reason that one should offend and another should be punished for it Besides the under-tenant here is a stranger and the custom shall never extend to a stranger and therefore the custom to punish a stranger who is not a Tenant of the Mannor is a void custom Further it was said that the amercement properly falls upon the person and therefore being personal it cannot be charged upon the under-tenant But notwithstanding all these Objections it was resolved by all the Justices upon solemn debate that the custom was good and therefore that the avowant should have Judgment Justice Mallet custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua vel averia subtenentis levant and coucbant upon the customary tenement is a good custom I agree that a custom cannot extend to a stranger who is not within the Mannor and therewith agreeth 3 Eliz. Dyer 194. b. pl. 57. Davis Rep. 33. a. 21 H. 6. and many other Books but the matter 〈◊〉 is whether the Plaintiff be a stranger or not and I conceive that he is no stranger but a good customary tenant and he shall have any benefit or priviledge that a customary tenant shall have although he holdeth but for one year and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge for Qui sâ—ntit commoduin sentire debeâ— â—nus and by the general custom of England every Copyholder may make a Lease for one year as is resolved in the 4 Rep. 26. â— and it is good and if so then the Plaintiff here cometh in by custom and is no stranger but a good customary tenant and therefore the custom may well extend to him as there is Dominus pro tempore so there is tenens pro tempore and such is the Plaintiff here and he held that the wife that â—ath her widows estate according to the custom of the Mannor is a good customary tenant A woman Copyholder for life where the custom is that the husband shall be tenant by the curtesie dieth I hold the husband in that case a good customary tenant In Gloucester where this Land is there is a custom that Executors shall have the profits for a year and I conceive them good customary tenants Besides this under-tenant here is distrainable by the Lord for the rents and services reserved by the Lord or otherwise
benefit of the Church 67. pl. 104. Good behaviour A man was bound to his good behaviour for suborning of Witnesses 11. pl. 30. Grants of common persons Grant of all Tythes in C. is a good grant for it is not absolutely general but a general in a particular 31. pl. 66. Where a Grant shall be good notwithstanding a false recital ibidem The King may grant an Office in Reversion without Custom but not a Common person or a Bishop 42 43. Where a Trust is grantable over See Tit. Assignee Assignments 1. An Executor grants omnia bona catalla sua this shall pass the Goods which he hath as Executor 205. Grants of the King The King may grant an Office in Reversion without Custom 42 43. Grants of the King need not recite Leases not of Record nor Coppyholds 206. pl. 246. Habeas Corpus UPon a Habeas Corpus if all the causes retorned shall be adjudged for the Prisoner but one yet he ought to be remanded for this one 53 54. Hariots Copyholder for life where the Custom is that if the Tenant die seised that he shall pay a Hariot the Lord grants the Seigniory for 99 years if the Tenant should so long-live and after makes a Lease for 400 years Tenant for life is disseised and dies who shall have the Hariot quaere 23. pl. 52. Hue and Cry What Hue and Cry shall be sufficient upon the Statute of Winchester and 27 Q. of Robberies Ieofail NO Venire Fac ' is helped by the Statute of Jeofailes but not an erroneous one 26. pl. 60. If a man plead an affirmative plea as that he hath saved one harmless and doth not shew how it is naught See pa. 49. and is matter of substance and therefore not helped by the Statute upon a general Demur 121. pl. 200. See pa. 49. Implicative Implie Judgment ought not to be judged erroneous by implication 56. pl 88. 61. pl. 95. Incertainty Trover and conversion of two Garbs and counts of a conversion of two Garbs Anglicè Sheafs of Rye the count is incertain and void and the Anglicè doth not help it 60. 94. Where a Verdict incertain shall be void 97. pl. 168. Ejectione Firme de tanto unius meâ—nagii c. quantum stat super ripam is naught for the incertainty ubi supra Indictment Upon an acquittal and removal of the Indictment into the Kings Bench the Court refused to grant a Copy of it to the party acquitted that he might bring a conspiracy except it did appear that there was malice in the prosecution 26. pl. 61. Moved to quash Indictments for not paving of doors because it was not shewn that they oâ—ght to pave tâ—em which the Court would not grant without a Certificate that the doors were paved Indictments quashed because joynt where they ought to be several 45. pl. 71. Indictment of Rescous quashed because it was not shewn where the Arrest was as also for that vi armis wanted in the Indictment 67. pl. 105. Exceptions to an Indictment of Murder all disallowed by the Court. 79. pl. 127. One not retorned of a Jury causeth himself to be sworn in the name of one that was and gives Verdict he may be indicted for this misdemeanor 81. pl. 132. Infant Grant of an Office of Truff to an Infant to execute by Deputy is good or a grant to him in Reversion is good for it may be granted in see and so descend to an Infant or a Feme Covert may have such an office because that by possibility she may have a husband which may execute it 38. pl 63. Where an Action shall lie against an Infant where not 39 40 41 42. Infant cannot be an Attorney because he cannot be sworn 92. pl. 154. Infant cannot submit to an Arbitrament and if he doth it is void 111. pl. 189. 141. pl. 215. Informations Information lies against a Carrier for spoiling the highways by drawing an extraordinary weight contrary to the custom of the Realm upon which he shall be fined and imprisoned 135. pl. 210. Inrolments Where a man in pleading of a bargain and sale ought to plead an inrolment 〈◊〉 where not 62. pl. 97. 69 pl. 1â—â— Instance Instant Copyholder for life 〈…〉 grants the Seigniory for 99 years if the Tenant should live so long the Tenant dies whether the Grantee for 99 years shall have the Heriot by force of this instantany title or not quaere 23. pl. 52. Intent Intention Where an Estate shall pass by way of raising of a use and where by way of transmutation of possession according to the intention of the party 50. pl. 78. Ioynder in Action A promise is made to a Baron of a Feme Executrix in that right as Executrix whether they may joyn in action or not quaere 72. pl. 110. Three covenant with two severally they cannot joyn in action 103. pl. 176. One said of the wife of another that she was a bawd and kept a bawdy-house upon which they joyned in action and good 212. pl. 249. Baron and Feme cannot joyn in conspiracy 47. pl. 75 Issues joyned In Trespass the Defendant justifies and sayes quod habâ—it viam non solum ire equitarâ— averâ—a sua fugare verum etiam carucâ—s carreragiis carriare c. the Plaintiff Traversed it in the words aforesaid and it was resolved that the Issue was well joyned 55. pl. 83. What words are sufficient upon which an Issue may be taken what not 207. pl. 247. Iurisdiction 〈◊〉 Courts at 〈…〉 may hold Plea 〈…〉 3. pl. 5. If a particular and limitted Jurisdiction hold plea of a thing out of their Jurisdiction all is coram non judice and void 8. pl. 20. The Jurisdiction of the Council of the Marches of Wales of what things they may hold plea of what not and of what value See Title wales 1 2 3. Court which hath Jurisdiction of the principal shall have Jurisdiction of the accessory also 52. pl. 80. 66. pl. 103. See Tit. Distribution 1. pa. 201. If a man be sued in the Ecclesiastical Court for not coming to Church and pleads in excuse of it according to the Statute the Ecclesiastical Court may hold plea of the excuse 93 pl. 162. Legatee may sue an executor in the Spiritual Court for to make him assent to a Legacy and if it be issuing out of a Lease for years they may order the Lease to be brought in Court though it be in the hands of a third person but this binds onely the Defendant and Assets or not Assets is triable by them 96. pl. 167. In false imprisonment brought against an Officer of an inferiour Court if he justifies the arrest by vertue of a Warrant directed to him out of the Court he ought to intitle the Court to jurisdiction or otherwise his plea is naught and the action will lie against him 117 pl. 195. Iustification In Trespass if the Defendant justifies for part and saith nothing