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
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
817 Wells and Fentons case 822 Web and Hargraves case 835 Williams and Greens case 836 Worleys case 842 Walter and Pigotts case 845 Whetstone and Mintons case 852 Webster and Allens case 873 Ward and Lakings case 876 Wilmot and Knowles case 884 Ward and Sudmans case 894 Westby Skinner and Catchers case 902 Wiseman and Jennings case 904 Wilcoks and Hewsons case 920 Wilcocks and Greens case 934 Wood and Bucklâ—ys case 936 Waâ—ley and Mosleys case 947 VVortesleys case 956 Worleys case 959 Williams Vaughans case 1014 Whitlock and Hartwells case 1015 Waltham Mulgars case 1017 Sir Will. Walter and Hangers case 1055 VVheeler and Heydons case 1056 VVrights case 1064 VVorral and Harpers case 1065 Eliz VViimots case 1093 VVhite and Halls case 1097 VVeaver and VVards case 1126 VVindham Kemps case 1134 The VVeavers of Newberries case 1140 VVood and Shirleys case 1149 VVhitlock and Hardings case 1152 VValter and the Dean and Chapter of Norwiches case 1157 VVilkings and Perrotts case 1161 VVatbrooke and Griffiths case 1163 VVinscomb and Pulisons case 1164 VVolley and Davenants case 1182 VVray and Clenches case 1203 Y. YArdley and Prestwoods case 435 Yelverton and Yelvertons case 442 Yelding and Fays case 458 Yotes and Goths case 882 Yelland and Fiches case 1026 Yardley and Ellices case 1107 Z. ZOuch and Bampfields case 382 ☞ THere is newly extant an ABRIDGEMENT of the Three Volumes of the REPORTS of Sir George Croke Kt. of all such Select Cases as were adjudged in the Courts of Kings Bench and Common Bench during the Raigns of Q. Elizabeth King James and King Charles Collected by the Author of this Abridgement AN ABRIDGEMENT OF THE REPORTS OF Sir FRANCIS MOORE Knight Serjeant at Law Mich. 1. Hen. 7. Capell and Churches Case A Writ of Right Patent in the Court of the Castle of Rising of the King was directed Balivis suis de Rising whereas the proceedings were senatoribus Curiae held good because the Paylifs are to make the Sommons and the suitors Justice Capell and Aprices Case 2. Replevin The Defendant avowed That A. and B. held the Mannor of H. and divers Lands of the Bishop of London parcel of the Bishops Castle of S. by Homage Fealty Escuage and by the Rent for Castleguard pro reddit auxil Vic. The Defendant pleaded That the Castle was utterly decayed and as to the auxil Vic. demurred in Law The Plantiff was Nonsuit but the Rents are still paid to the Bishop though the Castle be decayed Cleydon and Spensers Case 3. Resolved That if an Executor with his own proper monies pay a debt due by the Testator he may retain so much of the value of the goods of the Testator in his hands Case of the Sheriffs of London 4. The Custome of London is That if a Villein remaineth in the City by the space of a year and a day without any Claime made of him he may all time during his life live in the City Free 5. Resolved by the Justices That that which is written after the words In cujus rei Testimonium is parcel of the deed aswell as that which is written before it 6. Resolved It is no principal Challenge That a Juror is endebted either to the Plaintiff or Defendant 7. Resolved In a Replevin That one of the Jurors was Steward of the Mannor to the avowant is a principal Challenge 8. Two are bound each to other to stand to the award of Arbitrators They award that the one shall make a Lease for years to the other rendering Rent to the Lessor the Lease is made the Rent is not paid adjudged the Bond is not forfeit because Distresse or Debt are proper remedies for the Rent contr if it be awarded the Lessee should pay the Rent 9. Debt for not performance of an Arbitrament Adjudged It is no plea generally That he hath performed it but he must show how he hath performed it 10. Resolved It is a good Challenge to one of the 4. Knights who come to impannel the Grand Assise that one of them is maried to the Plantiffs daughter and the other 3. shall try it 11. If a submission be de jure titulo possessione of certain Lands The Arbitrators cannot award that one of the parties shall procure the Lord of the Mannor to grant a Copy holdor that a stranger shall release because out of the submission Frances Case 12. Resolved That the King by his Letters Patents cannot grant the Lands of a Lunatique to another to take the profits to his own use because the King himself is not entitled to them for his own use but for the use of the Lunatique his Issues Wife c. Otherwise it is of an Ideot for then the King hath the profits to his own use making allowance to the Idiot for his keeping Levet and Lewknors Case 13. An Executor recovered in Debt and then dies Intestate and the Ordinary commits Administration de bonis non c. Resolved the Administrator shall not have a scire fac upon the Judgement but a new Action of Debt as Administrator to the first Intestate Sir Godfrey Foliambs Case 14. Quare Imp. The Case was A. seased of the Mannor of D. to which Mannor an Advouson was Appendent granted the next Avoydance to B. and D. eorum cuilibet conjunctim divifim haered executor assignis suis The Church voyd B. presents D. to the Church adjudged That the presentment of him was good though he was one of the Granters 15. The Husband is entitled to Land in the Right of his Wife Resolved The Husband alone without joyning the Wife in the Writ shall have an Action upon the Statute of 8. H. 6. because the words of the Statute are Expulit disscisivit 16. A man was indicted for a Robbery done in the Foot way leading from London to Islington Resolved That he should have his Clergy because the Indictment is not of a Robbery in alta via regia nor in the High way but in a Foot way Vaughan and Lord Burghs Case 17. In a Writ of Prohibition there wanted the word Ostensurus Resolved though after Issue joyned that the Writ was amendable by the Statute Baker and Brooks Case 18. A Parson granted an Annuity of 5 l. issuing out of his Rectory pro Consilio impenso to I. S. Habend recipiend to the said I. S. and his Assignes The said I. S. granted it over to I. D. Resolved That the grant of the Annuity was good and the Assigne may have Debt for it 19. Wast was brought against Lessee for years He pleaded in Barre an Accord which was executed Adjudged to be a good plea. 20. Resolved by the Justices That the Master cannot Sollicite Counsel nor give Mony to Counsel in an Action brought against his Servant for his Servant but yet he may give what is due to his Servant for his Wages to Counsel for their Fees and it is not maintenance 21. Resolved That the Lord in Ancient Demesne shall
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
his Heirs A scire fac issued against the Heir and Terre Tenants who made default and Judgment was given against the Heir aswell of his own proper Land as of those which he had by discent It was said by Cook that although the Heir upon default shall be charged above his Assets but that was where a man bound him and his Heirs in the Recognizance but here the Heir should not be charged because the words of the Recognizance are no obligation against the Heir but only upon the Land and therefor he prayed contribution against the other Feoffes The Court refused to grant it and said that one purchasor shall have contribution against another but the Heir shall not have it but shall be in the same degree as his Ancestors was Bantings Case 288. In Trespas the Case was John Banting contracted himself to Agnes A. after Agnes was Maried to F. and Cohabited with him Banting sued Agnes in the Court of Audience and proved the Contracts and sentence was there pronounced that she should Marry the said Banting and Cohabit with him which she did and they had Issue Charles Banting and the Father dyed It was argued by the Civilians that the Marriage betwixt Banting and Agnes was void and that Charles was a Bastard But it was Resolved by the Justices that Charles the Issue of Banting was Legitimate and no Bastard 289. The Case was Lessee for years assigned the Terme to the Wife of the Lessor and a stranger and afterward the Lessor bargained and sold for Mony by deed Inrolled the stranger dyed the the Wife claimed to have the residue of the Terme not expired Whether by the Bargain and sale the Terme of the Wife was extinct or not was the Question it was said it was not but Contrary if the Husband had made a Feoffment in Fee with Livery Quaere the Case was not Resolved Vide Plowdens Commentary Amy Townsends Case Treshams Case 290. Tenant in Capite made gift in tail to I. S. upon condition that if he aliened that it should be Lawfull for him to enter I. S. aliened Tenant in Tale entred for the Condition broken It was adjudged That a Fine for the Alienation of the Tenant in Tail was due to the Queen and that the Queen might charge the Lands in whose hands so ever they came for this Fine and the duty was not discharged by the entry of the Tenant in Tail for the Condition broken but the Tenant of the Land was Chargeable for the same 291. Debt against an Executor for 100 l. in C. B. Afterwards Debt was brought against the same Executor for 100 l. in B. R. in which he confessed the Action and pleaded the same to the first Action and that he had fully administred all but the said 100 l. The Court inclined to be of opinion that the plea was not good but that the Executor was chargeable to the first Judgment Quaere because not Resolved 292. A. for mony sold to B. all the Butter which should be made of his Cowes in a year and when he had made Butter he sold the same to C. C. paid his money and set his mark upon the Barrells and left them in the Custody of A. and afterwards A. delivered them to B. the first vendee C. brought a Replevin and B. claimed the property in the Butter by the first sale It was said that the property of it was in C. for the first Contract betwixt A. and B. was but a Covenant and agreement that A should sell the butter when it should be made for before that he could not sell it and before the making of it there was no property in it and so no contract and the second alienation was a change of the property and so B. hath no remedy for it but his Action upon the Case against A. Quaere not Resolved The Earl of Huntington and Lord Mountjoyes Case 293. The Lord Mountjoy bargained and sold Lands by deed enrolled Proviso that it is Covenanted granted and agreed that it shall be Lawfull for I. S. who was a stranger to dig in the Lands for Mynes It was adjudged in this Case that although the word Proviso absolutely taken be a Condition yet when it is coupled with other Words subsequent It shall be construed to be a Covenant and not a Condition Crocook and Whites Case 294. Debt upon an Obligation the condition was That if the Defendant Warrant and defend an Oxgange of Land to the Plaintiff against I. S. and all others that then c. It was Resolved the word defend shall be taken and shall not imply any other sense but a defense against Lawfull Titles and not against Trespasses and this Case was put by Anderson Chief Justice If one Covenants to make a Lease of all his Lands in D. and in D. he hath aswell Copyhold Land as Freehold Land he is not by the Covenant to make a Lease of the Copyhold Land for that he cannot Lawfully Lease without License and the for the Law shall construe the Covenant to be of Lands dimiseable and not of other Lands Roberts Case 295. The Bishop of Batb and Wells granted to King E. 6. by Deed enrolled all his Farmes and Hereditaments of W. in W. in the County of S. Habend to the King and his Heirs and in W. the Bishop had a Rectory which extended into the County of D. It was holden in this Case that the word Farme did not include the Rectory without a special averment that the same was in Lease before but the word Hereditament was sufficient to passe the Rectory 296. A Statute is Continued during the Will of the King It was Resolved that the Demise of the King had determined his Will 297. Note it was Resolved by the Justices that if Lands are devised to 2. men and to the Child with which the Wife of the Devisor is ensient It is a good Devise and the Child shall take by the Devise but if he shall be Joynt or Tenant in Common with the other Quaere Grises Case 298. A. gave Lands to his Son and his Wife for life the remainder to the Heirs of A. the Son dyed having Issue within age A. dyed Living the Wife It was adjudged that the Issue of the Son should not be in Ward for the Remainder notwithstanding the Statute of 32 H. 8. Wests Case 299. West went beyond Sea and wrote a Letter that his Land should go in such a manner It was adjudged to be a good Will and Devise Cooks Case 300. It was agreed by the Justices in this Case that if Lessee for years during his Terme set up Posts for out-doores and hangs doores upon them by Engines that he cannot take them away at the end of the Terme but otherwise they conceived if it be of Indoors within the house Mollineux Case 301. A. bound himself in an Obligation upon condition that if he did pay to the Obligee the sum of 20 l. within 40. dayes after his personal
abate upon the Plaintiffs own suing Strowde and Willis Case 521. Debt upon an Obligation The Condition was If the Obligor shall pay the Rent of 37 l. yearly at two Feasts according to the intent of certain Articles of Agreement made between the Obligor and Obligee during the Term that then c. The Defendant pleaded the Articles did contain That the Obligor Dimisit ad forman tradidit to the Defendant omnia talia domus tenementa terras in Parochia de Y. in quibus the Obligee had an Estate for Life by Copy according to the custom of the Mannor Habendum for 21. years if the Obligee should so long live rendring to the Obligee during the Term 37. l. to be paid at the Castle of C. and further pleaded That at the time of the making of the Articles the Obligee had not any Estate in any Lands Houses c. in Y. for term of Life by Copy upon which Plea the Plaintiff demurred There were two points in the case 1. If nothing passed by the Articles and so the Reservation of the Rent is vod 2. If the Obligation for payment of the Rent was void It was Resolved upon the first point That no Rent is reserved for the Lease did never begin and therefore the Rent should not For the second point the Court differed in opinion Fenner Justice held the Condition of the Bond is to pay the Rent according to the Articles which is That if the Lessee have not the Land the Lessor shall not have the Rent Papham cont That the Obligor is bound to pay it although nothing was dimised to him for that by the Bond he hath made it a Sum in gross and it is altered from the nature of a Rent and he is bound to pay the Rent or Sum and if this be either of them he must pay it Qu. There is no Judgment in the Case upon that point Alsop and Claydons Case 522. Assumpsit That the Defendant upon good consideration promised to pay the Plaintiff 5 l. when he should be required The Jury found that the Defendant promised to pay but found no Request wherefore it was adjudged against the Plaintiff Perin and Corbets Case 523. In an Appeal the Defendant was acquitted of the Murder and found guilty of Man-slaughter It was agreed in that case that the Plaintiff could not be Nonsuit Brown and Brinckleys Case 524. The Plaintiff declared that he was produced for a Witness the Defendant said he was disproved before the Justices of Assize by the Oath of K. innuendo that he was disproved in his Oath Adjudged that the Action did not lie for the innuendo cannot supply such intendment Adderby and Bouthbyes Case 525. Assumpsit in consideration the Plaintiff would be Bail for one F. in a Plaint that Adderby had brought in London against F. the Defendant did promise to save the Plaintiff harmless touching the Bail and shewed a Recovery was against F. and 2. Cap. returned non est inventus upon which Process issued against the Bail who paid the money and the Defendant had not saved him harmless It was found upon Non assumpsit the first Action was entred by the name of Adderby and the Bail accordingly and that the Decleration was by the name of Adderley It was adjudged that although the Jury found the Assumpsit yet the special matter proves the Plaintiff had no cause of Action for he was not damnified by reason of the Bail at the Suit of Adderby for which the Assumpsit was but he was wrongfully taken if he was Bail for Adderley against whom the Recovery was had whereas in truth he was not Bail for him wherefore it was judged against the Plaintiff Austin and Twins Case 526. The Patronages of two Churches adjoyning within one mile were belonging to one Parson and both being void and of the value of 7 l. in the Queens Books the Ordinary made an union of them at the request of the Patron which was afterwards confirmed by the Patron and the Queen Qu. If a good union Tusking and Edmonds Case 527. A Lease was made of Tythes rendring Rent at a place out of the Parish with clause to be void upon non payment Adjudged the Lessor is to make his demand of the Rent at the place and for not payment the Lease is void Broughton and Mulshoes Case 528. False Imprisonment The Defendant justified that he was Constable and the Plaintiff being in the presence of a Justice of Peace not having opportunity to examine him commanded he Dedant to take the Plaintiff into his custody till the next day which he did accordingly It was adjudged a good Justification though not alledged what cause the Justice had to imprison the Plaintiff Megs and Griffins Case 529. Words viz. I. S. told me that he heard say That thou didst poyson thy first Husband and that he died of that poyson with an averment that I. S. near told the Defendant so Yet adjudged that neither words nor the averment of them were sufficient to maintain the Action Brokes Case 530. Words spoken of a Merchant viz. He is a false man and I will prove it and be keepeth a false Debt-book for he charged me with a Piece of three Piled Velvet which I never had Adjudged the Action did not lie without saying That by disswasion of Customers or other they did not deal with him nor that they would not trust him The Lord de la Ware and Pawlets Case 531. Words spoken of the Plaintiff in open Sessions viz. You have perverted Justice and to your shame and dishonour I will prove it adjudged the words actionable Weekes and Taylors Case 532. Words viz. he hath laid in wait to rob and was one of them that would have robbed me adjudged actionable though he was not robbed Carters Case 533. Words viz. Carter is a proging pilfring Merchant and hath pilfred away my coâ—n from my Wife and my Servants and this I will stand to adjudged the words are not actionable Bowyer and Jenkins Case 534. Action upon the case for words spoken at B. in the County of S. the Defendant justified that he spake the worda at C. at a Tryal there being produced as a Witnesse by Subpoena and sworn The Plaintiff said de injuria sua propria and found for the Plaintiff and because the venire was from B. whereas it ought to have been from C. where the Justification was It was adjudged Error Penniman and Rawbanks Case 535. Action for slandring his Title That the Plaintiff was seised of Land and put it to sale and the Defendant said I wish not any man to deal with the Land for I know one that hath a good Title to it and the parties will not depart with their interest for any reason The Defendant Justified that he had a Lease in Reversion of it and at will of other part It was replied de injuria sua propria and found for the Plaintiff Resolved by the Justices If
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.
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
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
Presidents cited to that purpose Apsleys Case 1067. He was brought by a Habe as corpus to the Bar It was returned that he was committed by the Court of Chancery for a contempt to the Court Resolved he should be discharged vide 9 Eliz. Astwicks case accordingly vide 13 Jac. Allen and Woods case Allen was committed to the Fleet by the Lord Chancellor for a contempt in not performing of a Decree and upon that Retorn the Court refused to deliver him Deytons Case 1068. He was committed to the Fleet by the High Commissioners for not performing of the Orders in the Common Prayer and for refusing to answer to Articles exhibited by the Commissioners unless he might have a copy of the Articles Resolved he should be delivered because the Statute upon which he was sued in that Court is penal and also because perhapps the High Commissioners had not jurisdiction of the cause Brokes Case 1069. He was committed by the High Commissioners to the Fleet because he refused Alimony to his wife and that being returned upon an Habeas corpus he was delivered Isaack and Clerks Case 1070. Action de Trover and Conversion The case was A recovery was against A. in the Court of E. and a Precept in the nature of a Fieri fac directed to the Defendant Bayliff of the Court who took three Butts of Sack in Execution The Plaintiff came to the Defendant and delivered him 22 l. in a bag as a pledge that the three Butts should be delivered to the Defendant the next Court day there upon Request if the Plaintiff who recovered should not in the mean time be satisfied at the next Court the Butts were not redelivered nor the first Plaintiff satisfied nor any Report made It was Resolved that there was no Conversion in this case for although prima facie Denyer is a conversion of money yet when the mony is delivered as a Pledge it is a special bailment and Denyer in such case is no conversion 2. That the Plaintiff had no cause of Action because the three Butts being not Re-delivered the Defendant might detain the 22 l. and the Bag for ever 3. There needs no request in this case because the Plaintiff at his peril is to cause them to be delivered before he is enabled to have his mony again It was adjudged for the Defendant Ford and Hoskins Case 1071. Action upon the case that the custom of the Mannor of B. was that every Copyholder might name who should have his Copyhold and that the Lord ought to admit the Copyholder so named after the death of the Nominator which the Lord refused to do It was Resolved the action did not lie for that the Nominatee hath no right at all the Interest being in the Lord and the Nominatee hath neither jus ad rem nec in re and he shall not draw an Interest to himself from the Lord against his Will and if one hath the Nomination and another hath the Presentation to a Benefice if he who hath the Presentation will not present an Action upon the case will not lie against him Brownlo Cop and Mitchells Case 1072. Assise against the Defendant for a Disseisin made to the Plaintiff of the profits of the Office of making Supersedeas The King directed his Writ to the Justices reciting that he by his Letters Patent had granted the making of Supersedeas to the Defendant and required the Justices not to proceed Rege inconsulto It was argued that the Writ did not lie because the King had not any title to the thing in demand nor could any prejudice come to the King On the other side it was said That in common Right it belonged to the King to make Grants of Offices Ministerial and Judicial unless another made Title to the same by Charter or Prescription and if the Plaintiff had title to the Office or not it is matter of Title for which the King is to have search in Chancery and if nothing be found for the King against the Prescription made by the Plaintiff then a Procedendo shall issue out of the Chancery otherwise if title be found for the Patentee against the Prescription Afterwards the Supersedeas was allowed by the Court and afterwards the matter was ended by composition Keckwichs Case 1073. It was holden by the Justices If an Infant brings Error to reverse a Fine levyed by him and he is inspected and witnesses produced to prove his Infancy though he dieth after before his full Age his Heir may reverse the Fine Gold and Deaths Case 1074. Debt upon an Obligation the Condition was That if the Apprentice shall lose and embessel any of the Goods of his Master and the Master prove the same to be true by confession or other then if the Obligor pay all Sums as the loss shall amount unto the Obligation to be void In the case the Master brought in the confession of the Apprentice himself under his Hand and Seal It was adjudged that it was a good and sufficient proof and it was holden the proof might be in the Action brought Phelps and Winscombs Case 1075. In False Imprisonment The Question was whether a Constable may make a Deputy to arrest one by a Warrant to him directed by a Justice of Peace the constable himself being sick and whether upon the Defendants pleading in such case of the Statute of 7 Jac. cap. 5. he shall have double costs It was Resolved he may make a Deputy and a Deputy is within the meaning of the Statute for he is a Constable pro tempore Smith and Bulls Case 1076. In Assault and Battery The Defendant justified that the Plaintiff entred his Close and that he molliter imposuit manus upon him It was said he ought to shew what estate he had in the Close and that the Plaintiff came there to eject or disseise him otherwise the Justification is not good 1077. Tenant in Tail made a Feoffment in Fee to the use of himself and his Heirs and afterwards made a Lease for years rendring rent and died and the Issue accepted the Rent It was adjudged that the acceptance of the Rent did not continue the Lease because the Issue was remitted to the Tail by discent Roe and Woods Case 1078. It was holden by the Court that whereas the name of the Sheriff was not endorsed upon the tales de circumstanubus that was no cause to stay Judgment because the Statute which gives tales doth not provide for such Retorn and also because it is done in the face and view of the Court and of the Judges and therefore not to be doubted but the Sheriff made the Return Luke and Clerks Case 1079. If the Defendant challenge the Array for Consanguinity of the Sheriff which is found against him and after he challenge the Poles Resolved he must shew cause of challenge of every one of them presently Blandford and Blandford Case 1080. The Grandfather possessed of a Term for years devised the same to his Wife
be of the Castle The Court held it to be a Mis-tryal although it was tryed for the Defendant who moved the Exception Cooper and Andrews Case 1120. Prohibition upon a Modus Decimandi in a Park the Viccar had 2s yearly and the Shoulder of every third Dear killed in the Parke the Parke being Dis-parked the Viccar sued for Tythes in kind The Court was divided in opinion Nichols and Hobart Justices that notwithstanding the Dis-parking the Modus did remaine Winch and Warburton Justices that by the Dis-parking the prescription as to the Modus Decimandi was determined that Tythes should be paid in kind Quere Cuddington and Wilkins Case 1121. Action upon the Case for calling the Plantiff Theif the Defendant justifies that he had stollen the Sheep of I. S. the Plaintiff said that before the words were spoken he was pardoned by the general pardon and pleaded the Pardon adjudged the Action did lie by reason of the Pardon Pope and Skinners Case 1122. The Case was more fully reported in Hobarts Reports 73. and was this In a Replevin the Defendant avowed as a Commoner taking the Cattle dammage feasants The Plaintiff said that A. was seised of an House and Land wherein he had Common and devised the same to him the 30th of March 11. Jac. to hold from the Feast of Annunciation next for a year The Avowant traversed the Lease modo forma Issue was taken and found thereupon That A. made a Lease to the Plaintiff 25 of May. for a year thence next ensuing It was holden that although this be not the same Lease that the Plaintiff pleaded Yet the Court gave Judgment for the Plantiff for the substance of the Issue is whether the Plaintiff have such a Lease from A. or not as by force thereof he might have Common which appeared he had and the modo forma in the rest is not material but yet it was said he must not depart altogether from the forme of this Issue for if it had been found that he had right of Common by a Lease from another it would not have served his turn for that had been clear out of the Issue both for matter and form 1123. Debt upon an Obligation The Obligation was in Octogefimis Libris Yet the Court held the Obligation to be good Sparke and Parnells Case 1124. A. seised of Gavelkind Land had issue 3. Sons and devised to each of his Sons a several part and if any of them dyed without Issue the other should be his heir It was adjudged Tail in each of them and the Fee simple by the word Heir in the other Slawny and Elbridges Case 1125. It was Resolved in this Case That the Ordinary cannot take an Obligation of the Administrator after the Debts and Legacies paid but the residue of the goods shall remain at the appointment of the Ordinary Weaver and Wards Case 1126. Batterie the Defendant justified that he being a Training at a Common Master as a Soldier discharged his Gun per insortunium hurt the Plaintiff and traversed that he was guilty aliter vel alio modo adjudged the Justification was not good because he ought to have further said that he could not otherwise avoid the fact and when he justifieth the whole fact there needs no traverse Pye and Cookes Case 1127. Two persons exhibited two several informations against an Ecclesiastical person for taking a Lease for years contrary to the Statute of 21. H. 8. It was the opinion of the Court they being exhibited at one time and for one thing the Defendant was not Answer to any of them Pits and James Case 1128. The Case was The Hospital of Donnington in the County of Berks was founded by the name of Minister Dei pauperis domus de Donnington and they made a Lease of parcell of the Lands of the Hospital in English Minister of the Almeshouse of God of Donnington besides Newbury in the County of Berks. It was holden the seeming variance did not hurt nor avoid the Lease for if they do agree in Common understanding it shall be good vide the same Case Hil. 43. Eliz. in Banco Regis Sherborn and Lewis Case Robins and Barnes Case 1129. In a Quod permittat for erecting of an Newsance 20. foot in length and 8 in bredth It was Resolved by the Court that if one be owner of 2 Houses and one doth a Newsance to the other and the owner sells the house which makes the Newsance that the vender shall never abate the Newsance 1130. Words spoken of I. S. he was in prison for stealing of Horses adjudged an Action lyeth for the words otherwise it is if but for suspition 1131. In an Assise the Writ was Recognitionem illum where it should have been illum It was amended Lampleigh and Braithwaits Case 1132. Assumpsit B. having killed a man required the Plaintiff to do his endeavor to get his pardon for which he went to the King to Royston and obtained the pardon In consideration the Plaintiff had done his endeavour the Defendant promised him 200l It was said it was no good consideration because the consideration was executed before the promise But Resolved the Action did well lie because there is a Request before the endeavor had and then the Assumpsit subsequent after the Consideration executed is sufficient Tasker and Salters Case 1133. Batterie The Defendant Justified that he was a Copyholder and that the Lord of the Mannor for him and his Copyholders had a way over the Land of the Plaintiff who was also a Copyholder of the Mannor and that he going in the way was resisted by the Plaintiff for which Molliter he laid his hand on him upon which they were at Issue It was agreed by the Court that the Lord of the Mannor could not have a way over his own Land 2. Agreed although the verdict passed upon a void Issue the same was not remedied by the Statute of 32. H. 8. Wherefore a Repleader was awarded VVintham and Kemps Case 1134. Quare Impedit the Plaintiff counted that he was seized of a Mannor with an Advouson appendant viz. to present every first Turn It was said the viz. was void and made the Count insufficient because crossed the premises but the Court Resolved that the Count was good Coxes Case 1135. Words spoken of an Atturney viz. Thou art a Common maintainer of Suites and a Champerter I will have thee thrown over the Barre the next Terme Adjudged the words were Actionable Small and Dales Case 1136. A. seised of Lands in Copitie had Issue B. his Son and Heir and E. a Daughter by one woman and two Daughters by a second Wife and W. a Son by a third Wife and devised all his Lands to his Wife durante viduitate and dyed the Wife entred and dyed B. before any entred dyed It was Adjudged the Will was void for a third part and that the entry of the Wife in the whole made her seised but of two parts in Common