206 Lord Cheneys case Cases of Usury fol. 208 Buttons case Claytons case fol. 208 Hoes case St. Johns case fol. 209 Williams case Case of Orphanes of London Wymarks case fol. 210 Cliftons case fol. 211 Pilkintons case Earl of Pembrooks case Pagets case fol. 212 Boothes case fol. 213 Samons case Grayes case Fitz Herberts case fol. 214 Fords case Case of of customs Snellings case fol. 215 Case of Market Overt Perimans case Sir Henery Knevits case fol. 216 Pennrins case Cases of Executions Blumfields case fol. 217 Garnons case fol. 218 Frosts case fol. 219 Hoes case fol. 220 Semaynes case fol. 221 Barwicks case fol. 223 Goodalls case Countesse of Northumberl case Buries case fol. 224 Flowers case Rookes case fol. 225 Penruddocks case fol. 226 Windsors case Hungats case fol. 227 Bakers case Boulstons case fol. 228 Aldens case Sir Henry Constables case fol. 229 Foxleyes case fol. 230 Malaries case Wades case fol. 232 Foliambs case Olands case Pynners case fol. 233 Edriches case fol. 234 Whelpdales case Longs case fol. 235 Saffins case De libellis Famosis fol. 236 Palmers case Caudreys case fol. 237 The Sixth Booke BReuertons case fol. 239 Markals case fol. 240 Sir John Molins case fol. 241 Wheelers case Ferrers case fol. 242 Spencers case fol. 243 Gentlemans case Morrices case Cases of Pardon fol. 244 Arundels case fol. 245 Treports case Edens case Colyers case fol. 246 Wildes case Sir Edward Cleers case fol. 247 Packmans case fol. 248 Gregories case Michelborns case fol. 249 Butler and Goodalls case Ambrosia Gorges case fol. 250 Marquesse of Winchester his case Reades case Helyars case fol. 251 Ruddocks case Sharps case fol. 252 The case of Souldiers Vicont Mountagues case fol. 353 Greenes case fol. 254 Boothies case Fitz Willams case fol. 255 Bishop of Baths case fol. 256 Dean and Chapter of Worcesters case fol. 257 Bellamyes case Henery Finches case fol. 257 Sir Anthony Mildmay Blakes case fol. 258 Higgins case Dowdales case fol. 259 Boswels case fol. 260 Countesse of Rutlands case fol. 261 Lord Chandows case Bredimans case fol. 262 Gatewards case fol. 263 Catesbies case fol. 264 Sir Moyle Finches case fol. 265 Lord Darcies case fol. 266 Burrels case Sir Drue Druries case fol. 267 Sir Gorge Cursons case fol. 268 Bullens case Lord Abergavennies case Sir Edward Phittons case fol. 269 The Seventh Booke CAlvins case fol. 271 Bulwers case fol. 273 Sir Miles Corbets case fol. 274 Gendils case fol. 275 Milbornes case Earle of Bedfords case Oghtreds case fol. 276 Englefields case fol. 277 Case of Swannes fol. 279 Sir Thomas Cecills case Lord Andersons case fol. 280 Butts case fol. 281 Cases of Quare Impedit Halls case fol. 282 Sir Hugh Portmans case Baskervills case fol. 283 Mauds case Discontinuance of processe by the death of the Queen fol. 284 Case of a Fine levied by the King fol. 285 Nevils case Penall Statutes fol. 286 Lillingtons case Bedels case fol. 287 Beresfoeds case Kenns case fol. 288 The Eighth Booke THe Princes case fol. 291 Calyes case Paynes case fol. 293 Barretry Greysleyes case fol. 294 Whittinghams case fol. 295 Jehu Webbs case fol. 296 Sims case fol. 297 Roger Earl of Rutlands case fol. 298 Beechers case fol. 299 Swaines case Sir William Fosters case fol. 300 Lovedayes case Crogates case fol. 301 Trollops case fol. 302 Whitlocks case Greenlyes case fol. 303 Lord Staffords case fol. 305 Wiat Weilds case fol. 306 Vinyors case Sir Richard Pexals case fol. 307 Buckmers case fol. 308 Frauncis case fol. 309 Foxes case fol. 310 Mannings case fol. 311 Baspoles case Sir Richard Lechfords case fol. 312 Talbots case fol. 313 Doctor Bonhams case fol. 314 Case of the City of London Case of Thetford Schoole fol. 316 Turnors case fol. 317 Shiplyes case Sir John Nedhams case fol. 318 Sir Francis Barringtons case fol. 319 Doctor Druries case fol. 320 Davenports case The Six Carpenters case fol. 321 Edwards Althams case fol. 323 Arthur Blackamores case fol. 324 Cases in the court of wards Myghts case fol. 326 Digbies case Earl of Cumberlands case Paris Stoughters case fol. 327 Toursons case Sir Gerard Fleetwods case fol. 328 Hales case Sir Henry Constables case fol. 329 Virgill Parkers case fol. 336 The Ninth Booke DOwmans case fol. 331 Anna Beddingfields case fol. 332 Case of Avowry fol. 333 The Abbot of Strata Marcella his case fol. 334 Bucknals case Henslowes case fol. 336 Earle of Shrewsburies case fol. 339 Hickmots case fol. 340 Batens case fol. 341 The Poulters case Aldreds case fol. 342 Lambs case fol. 343 Bradshawes case Mackallies case fol. 344 Peacocks case fol. 346 Doctor Husse case fol. 347 Combs case fol. 348 Petoes case fol. 349 Agnes Gores case Coneys case fol. 351 Pinchons case fol. 352 Banes case fol. 354 Sir George Reynels case fol. 355 Podgers case fol. 356 Treshams case fol. 357 Marys case fol. 358 Lord Sanchars case fol. 359 Cases in the Court of wards Lawes case fol. 360 Floyers case fol. 362 Sondayes case Quicks case fol. 363 Bewleys case Holts case fol. 364 Menes case fol. 365 Ascoughs case fol. 366 Thorogoods case fol. 367 Beaumonts case fol. 368 The Tenth Book THe case of Suttons Hospitall fol. 371 Portingtons case fol. 374 Lampets case fol. 375 Case of the Chancellor Masters Scholars of the University of Oxford fol. 378 Bishop of Salisburies case fol. 379 Whistlers Case Church-wardens Case of St. Saviours in Southwark fol. 381 The Case of the Marshalsea in false imprisonment fol. 382 Loveis Case in Ejectione ferme fol. 384 Doctar Leyfields Case fol. 387 Seymors Case fol. 389 Bewfages Case fol. 391 Denbawds Case in Error fol. 396 Lofields case in debt upon bond fol. 397 Legats Case fol. 398 Pilfolds Case fol. 399 Cheyneyes Case fol. 400 Case of the Major and Burgesse of Lin fol. 401 Cluns Case fol. 402 Osborns Case fol. 403 Read and Redmans case fol. 404 Richard Smiths Case fol. 405 Cases upon the Commissions of Sewers Case of Chester Mille Keighleys case fol. 406 The Case of the Isle of Elie fol. 407 Scroops Case fol. 409 The Eleventh Book THe Lord Delawares case fol. 411 Auditor Curles case fol. 412 Sir John Heydons case fol. 413 Priddle and Nappers case fol. 414 Doctor Grants Case fol. 416 Sir Henry Nevils case fol. 417 Doctor Ayrays Case fol. 417 Henry Harpurs case fol. 418 Henry Pigots case fol. 420 Alexand. Poulters case fol. 420 Metcalfes case fol. 423 Richard Godfreyes case fol. 425 Richard Lifords case fol. 426 The Taylors of Ipswich case fol. 428 Edward Savels case fol. 429 Benthams case fol. 429 Doctor Fosters case fol. 429 Magdalen Colledge case fol. 432 Lewis Bowles case fol. 34 The Case of Monopolies fol. 436 The Earle of Devonsh case fol. 437 James Bagges case fol. 438 THE FIRST BOOK The Lord Buckhursts Case 40. El. fo 1. IF a man for him and his heires do warrant Land to one and his heires this is a generall warrantie because there is not
part and Sir Gilb. Ger. and others on the same part for the advancement of the Heires Males of the said Earle the Earle did covenant c. to convey the said Mannor amongst others to the said Lord Burgleigh Sir Gilb. Gerrard and others or to any of them before the Feast of the Annunciation of our Lady next ensuing which Assurance should be to the use of the said Earle Edward and the Heires Males of his body and for want of such issue to the use of the Heires Males of Thomas Earle of Rutland with divers remainders over and in the same Indenture the said Earle Edward did Covenant c. to stand seised to the uses contained in the second Indenture No fine or other assurance was leavyed or made by the said Earle Edward before the end of Trinity Tearme Afterwards Viz. 17. Septemb. next following the said Earle Edward acknowledged a note of a fine of the said Mannor of Eikering onely to Sir Gilb. Gerrard and Thomas Ho and the Heires of Sir Gilb. And the 18. day of the said Moneth acknowledged another â—ote of a fine of the said Mannor of Eckering amongst many other Mannors mentioned in the later Indenture to the Lord Burghley Sir Gil. Gerrard and other parties to the later Indenture and both fines were entered in Octabis Mich. next after And it was proved by diverse testimonies that the said Earle Edward as well before the Indentures as after the fine leavyed said that the said Countesse should have the Mannor of Eckering And it was resolved by Popham chiefe Justice and all the Court. First although the Indenture being made for declaring of uses of a subsequent fine recovery or other conveyance to certaine persons and within a certaine time and to certaine uses yet they are but onely directory and doe not binde the estate or inerest of the Land yet if the fine recovery or other assurance be persued according to the Indenture there cannot be any averrment made against the Indentures taken in this Case that after the making of the Indentures and before the assurance by mutuall agreement of the parties was concluded and agreed that the assurance should be to other uses but if other agreement or limitation of uses be made by writing or by other matter of as high or higher nature then the later agreement should stand for every contract or agreement ought to be dissolved by matter of as high nature as the first was Nil tamconveniens est naturali aequitati quam unum quodq dissolui eo ligamine quo ligatum est Also it was very inconvenient that matters in writing should be controuled by averrment of parties to be proved by incertaine testimony of slippery memory and should be perillous to purchasors Farmers c. 2. It was resolved that if the forme of the Indentures be not pursued as for quantity of Land the time within which the fine should be leavyed c. Averrment without writing may be taken that the fine c was to other use then was contained in the Indenture by reason of a new agreement subsequent which in this case may be as well by word as writing 3. It was resolved that although the indentures be not pursued in circumstance of time quantity person c. yet if no other meanes new agreement be proved the fine c. in judgement of Law shall be to the use named in the Indenture The fines cannot be directed by both the Indentures although perhaps it was the meaning of the parties because the directions and declarations of the first Indenturs were controuled and frustrated by the said second Indentures Cases of Executors Russells Case 26. Eliz. fo 27. banco regis A Release by an Infant Executor under the Age of 21. yeares is no bar but upon payment or satisfaction to an Infant Executor he may acquite and discharge the Debt for so much as he receiveth All things that he doth according to the Office and duty of an Executor shall binde him an Executor may release before probate of Testament for although he may not have an Action yet the Interest of the Action is in Law in him at the time of the release Middletons Case 1. Ja. in com banco fo 28. IT was adjudged betweene Middleton and Rymot that an Executor before probate may release action although that before the probate he may not have action for the right of the Action is in him but if A. release and after take administration that shall not barr him for the right of the Action was not in him at the time of the release Two Executors prove the Testament the third refuseth yet he may release Littlet 117. if one be bound to pay a summe of money at a day to come a release of actions before the day is a Bar and yet before the day he could have no action Harrisons Case 40. Eliz. fo 28. com banco IT was adjudged that a judgement upon Debt due by obligation shall be paid before a Statute made for performance of Covenants which are things in contingency and in future or other Statutes or recognizances for Debt vide Sadlers Case in the Fourth Booke although the judgement be after the acknowledgment of the Statute Piggots Case 40. Eliz. com banco fo 29. ONe bringeth Debt as administrator Durante minore aetate of one whhom he averr'd to be within age and he doth not say that he was within the age of 17. yeares and the Plaintiffe was barred because at that age the Administration ceaseth Princes Case 41 42. Eliz. com banco fo 29. AN Infant is made Executor Administration durante minori etate may be committed to the Mother or other Friend of the Infant which shall cease and be voyd when the Infant is at the age of 17. yeares and this administrator may not sell any goods of the Decest unlesse it be for necessity of payment of Debts for he hath his Office of administrator Pro bono commodo Infantis and not for his prejudice also he cannot assent to pay legacies unlesse there be assents to pay Debts c. and if it be a Woman under the age of 17. yeares and take a Husband of full age the Administration ceaseth Where one hath goods solely in an inferior Dioces yet the Metropolitan of that Province pretending that he had Bona notabilia in diverse Diocesses committed the Administration c. this Administration is not voyd but voidable by sentence because the Metropolitan hath Jurisdiction in all places within his Province but if the ordinary of one Diocesse commit the administration of goods when the party hath Bona notabilia in diverse Diocesse this administration is meerly voyd as well for his goods within the Diocesse as without vide Vere Jeffrays Case 22. Eliz. in banck le roy there cited and so adjudged Caulters Cose fo 30. 40. 41. Eliz. banco regis AN Executor in his owne wrong ought not to retaine goods in his owne hands to satisfie
AN EXACT ABRIDGMENT IN ENGLISH Of the eleven Books of Reports of the Learned Sir Edward Coke Knight late Lord Chiefe Justice of ENGLAND and of the Councel of Estate to His Majestie King JAMES Composed by the Judiciouâ— Sir Thomas Ireland Knight late of Grayes Inne and an Ancient Reader of that Honourable SOCIETIE Wherein is briefly contained the very substance and marrow of all those Reports together with the Resolutions on every CASE Also a perfect Table for the finding of the Names of all those Cases and the principall matters therein contained Very usefull for all men especially the Students and Practisers of that Honourable Profession Brevitas Memoriae Amica LONDON Printed by M. Simmons for Matthew Walbancke at Grayes Inne Gate and H. Twyford in Vine-court in the Middle Temple 1650. To the Reader Gentle Reader THE Abridger of these Reports was not onely a Learned Lawyer but also was very conversant with the Author of them For my part I was onely entreated by many Friends to view and correct the Copy from the Presse If any faults be you may blame the Printer If I should commend the Original work I should disparage the Author who all learned Lawyers know that never any man wrote like him and for the excellency of this Abridgement it hath in it the very pith and substance of the Reports at large and so I rest It is an abuse that the lawes usages of the Realm with their Causes are not written whereby they may be knowne so that they may be understood of all Mirrour Justice fol. 225. An exact Table of all the Cases in each severall Book The First Booke of the Lord Coke LOrd Buckhursts Case Pelhams Case fol. 1 Porters Case fol. 2 Altonwoods Case Capels Case Archers Case fol. 3 Bredons Case fol. 4 Corbets Case fol. 5 Shelleyes Case fol. 6 Albaines Case fol. 7 Chudleighs Case fol. 8 Anne Mayowes Case fol. 11 The Rector of Chedingtons Case fol. 12 Digges Case fol. 14 Mildmayes Case fol. 16 The second Booke of the Lord Coke MAnsers Case fol. 19 Goddards Case Thoroughgoods Case fol. 20 Wisemans Case fol. 21 Lanes Case fol. 22 Baldwins Case fol. 23 Case of Bankrupts fol. 24 Bettisworths Case fol. 24 Doddingtons Case fol. 25 Sir Rowland Heywards Case fol. 26 Bishop of Winchesters Case fol. 29 Arch-Bishop of Canterburies Case fol. 31 Sir Hugh Cholmleyes Case fol. 33 Buckleyes Case fol. 34 Beckwiths Case fol. 36 Winningtons Case fol. 37 Westcots Case fol. 38 Tookers Case fol. 39 Lord Cromwels Case fol. 40 Binghams Case fol. 45 The Third Booke of the Lord Coke THe Marquesse of Winchesters Case fol. 49 Copledikes Case fol. 53 Heydons Case fol. 54 Borastons Case fol. 56 Left out Dowties Cass and Sir Willam Harberts Case Walkers Case fol. 58 Butler and Bakers Case fol. 61 Ratclifts Case fol. 68 Bontons Case fol. 71 Sir George Browns Case fol. 72 Rigewaies Case fol. 73 Lincoln Colledg Case fol. 74 Pennants Case fol. 77 Westbies Case fol. 80 Deane and Chapter of Norwich's Case fol. 81 Fermors Case fol. 83 Twines Case fol. 86 The Case of Fines fol. 89 The Fourth Book of the Lord Coke VErnons Case fol. 95 Bevils Case fol. 98 Actions of Slander the Lord Cromwels Case fol. 101 Cutler and Dixons Case fol. 102 Sir Richard Buckley and Woods Case fol. 103 Stanhop and Blyths Case fol. 104 Hext Justice of Peace against Yeomans fol. 104 Birchleyes Case fol. 105 Weaver and Caridens Case fol. 105 Stukley and Bulheads Case fol. 106 Snagg and Gees Case fol. 106 Baton and Allens Case fol. 106 Anne Davies Case fol. 106 Jeames Case fol. 107 Oxford and his wife against Crosse fol. 108 Sir G. Gerrard Master of the Rolls against Mary Dickinson fol. 108 Barhams Case fol. 109 Britteridges Case fol. 110 Palmer and Thorps Case fol. 111 Coppi-hold Cases fol. 111 Brownes Case fol. 111 Rivets Case fol. 113 Deale and Rigdens Case fol. 113 Bullock and Dibleyes Case fol. 113 Gravenor and Teds Case fol. 114 Fitch and Huckleyes Case fol. 114 Clark and Pennifathers Case fol. 114 P. 26. of the Queene fol. 115 Rous and Arters Case fol. 116 Murrell and Smyths Case fol. 116 Kite and Queintons Case fol. 117 Melwich and Luters Case fol. 118 Neales Case fol. 120 Clifton and Molineux Case fol. 120 Taverner and Cromwels Case fol. 120 Hubbard and Hamonds Case fol. 121 Westwick and Wyars Case fol. 122 Bunting and Lepingwels Case fol. 123 Downes and Hollakins Case fol. 124 Harm and Sayes Case fol. 125 Shaw and Tompsons Case fol. 126 Hoe and Taylors Case fol. 126 Frenches Case fol. 127 Foyston and Crachrodes Case fol. 128 Myttons Case fol. 129 Bozouns Case fol. 130 Terringhams Case fol. 132 Cases of Appeales and Indictments Brookes Case fol. 135 Wetherell and Darly's Case fol. 135 Youngs Case Walkers Case Heydons Case fol. 136 Hume against Ogle Hudson and Lees Case Syers Case fol. 138 Bibiths Case Vauexs Case fol. 139 Wrote and Wigges Case fol. 140 Waits Case fol. 142 Hill 30. of the Queene Ognels Case fol. 143 Rawlins Case fol. 145 Wardens Commonalty of Sadlers Case fol. 148 Forse and Hemblings Case fol. 149 Harlakendens Case fol. 150 Fulwoods Case fol. 152 Hindes Case fol. 154 Boroughes Case Palmers Case Hollands Case fol. 156 Case of Corporations fol. 157 Digbies case fol. 158 Nokes case Sir Andrew Corbets case fol. 159 Southcots case fol. 160 Luttreles case fol. 161 Druries case fol. 162 Slades case fol. 163 Adams and Lamberts case fol. 164 Actons case fol. 166 Dumpors case fol. 167 Bustards case fol. 168 Beverleys case fol. 169 The Fifth Booke CLaytons case Elmers case fol. 171 Jewels case Lord Mountioyes case fol. 172 Justice Windhams case Brudenels case fol. 173 Hensteads case Ives case fol. 174 Saunders case Rosses case fol. 175 Countesse of Salops case fol. 176 Case of Ecclesiasticall persons Covenants c. concerning Leasees Assurances c. fol. 177 Slingsbyes case Rosewels case fol. 180 Higginbottoms case Stiles case Sir Anthony Mayns case fol. 181 Laughters case Hallings case Matthewsons case fol. 182 Lambs case Broughtons case fol. 183 Deane and Chapter of Windsors case Sir Thomas Palmers case fol. 184 Earl of Rutlands case fol. 185 Cases of Executors Russels case Middletons case Harrisons case fol. 188 Piggots case Princes case fol. 189 Caulters case Hargraves case Pettifers case fol. 190 Robinsons case Reades case fol. 191 Ployters case fol. 192 Walcots case Baynhams case Gardiners case Bishops case fol. 193 Teys case fol. 194 Dormers case Rowlands case fol. 195 Countesse of Rutlands case Godwels Case Nichols case Bohuns case fol. 196 Freemans case Gages case Cookes case fol. 197 Franklins case Gilbert Littletons case Drywoods case fol. 198 Vaughans case Wyrrels case Biggens case fol. 199 Halls case Pages case fol. 200 Knights case fol. 201 Specots case fol. 202 Fosters case fol. 203 Gooches case fol. 204 Sparries case Case of By-Lawes Chamberlain of Londons case fol. 205 Clerks case Jeffrayes case fol.
such a Feast if you make a Feoffement to another of this Mannor before the same Feast you have forfeited the obligation although that you purchase the Land againe before the said Feast because that you were once disabled to make the feoffement If a man Lease a Mannor for yeares and the Lessee covenanteth to uphold the Houses and to leave the same Mannor in as good an estate as he found it and during the terme the Lessee maketh wast in Houses and cutting of Tymber c. the Lessor may have a Writ of Covenant before the end of the Tearme for cutting the Timber for it was impossible that the Covenant should be performed after for the Timber but otherwise of the Houses Fitz Na. br fo 145 K. It was also resolved that if a man seised of Lands in Fee covenant to infeoffee I. S. upon request and after he maketh a feoffement of the same to a Stranger in this Case I. S. may have an Action of Covenant without request Laughters Case 37. Eliz. fo 21. Banco regis WHere a condition of an obligation consisteth upon two parts in the disjunctive and both possible at the time of the obligation made and after one of them becomes impossible by the Act of God the obligor is not bound to performe the other part for the condition is made for the benefite of the obligor and shall be taken most beneficiall for him and he had an Election eyther to performe the one or the other for the saving of his Obligation but now Impotentia excusat legem Hallings Case 38. Eliz. Com. banco fo 22. ONe Covenanteth to make an estate in Fee at the costs of the Covenantee the Covenantor is to doe the first Act Idest to Notifie what assurance he will make that the Covenantee may know what summe to tender Mathewsons Case 39 Eliz. fo 23. Com. banco SEverall persons make severall Covenants in one Indenture or Writing the Seale of one of them is broken away that shall not avoyd the Covenant of the rest but onely the Covenant of him whose Seale is so debrused or defaced Vide Piggots Case in the 11th Report because severall Covenants otherwise if joynt Lambes case 41. Eliz. fo 23. com banco A. Is bound unto B. to give unto B. such a release c. before the 22. day of October next as by the Judge of the Prerogative Court is thought fit In this Case A. must procure the Judge to doe it or devise it for the Judge is a stranger to the condition and the condition is for the benefite of the Obligor and he hath taken upon him to performe the same at his perill but it is otherwise if the Obligee or his Councell should devise it Broughtons case 43. Eliz. fo 24. Banco regis IN an Action of Debt by Broughton Plaintiffe against Pretty upon an Obligation with condition where the Plaintiffe was bound in an obligation of 200. l. for the Defendant for the payment of 100. l. to C. if therefore the Defendant should save and keepe harmlesse the said Broughton from all Suites quarrells and Demands touching the said Obligation c. that then the Obligation to be void c. at the day of payment of the 100. l. the Plaintiffe commeth to the place where the 100 l. ought to be paid and perceiving there not any person present to pay the 100. l. for the Defendant Broughton to save the penalty of the Obligation paid the money to C. and brought his Action upon the Counter-bond and it was adjudged that the Plaintiffe should recover for the payment of the 100. l. is damage and harme And it is not necessary whither the Plaintiff was arrested or sued c. Terror of suite so as he dare not goe about his businesse is Damnification although he be not arrested Deane Chapter de Winsors Case 44. Eliz. fo 24. Banco regis A Man Leased a House by Indenture for yeares the Lessee Covenants and grants for him and his Executors with the Lessor to repaire the house at all times necessary the Lessee Assignes over and the Assignee suffereth the house to decay the Lessor brought an Action of Covenant against the Assignee and it was adjudged per Popham and all the Court that the Action lyeth although the Lessee had not Covenanted for his Assignes because in respect thereof the rent is the lesse which is for the benefite of the Assignee Qui sentit commodum sentire debet onus If a man grant one Estovers to repaire his house this is appurtenant to the house Fitz H. nat br 181.28 H. 8.28 Sir Thomas Palmers Case 43. El. fo 24. banco regis SIr Thomas Palmer seised in Fee of a great Wood. Did bargaine and sell to one Cornford and his Assignes 600. cords of Wood to be taken by Assignement of Sir Thomas Cornford assignes his interest to one Basset and afterward Sir Thomas sells to one Maynard such quantity of Wood as will make 4000. cords at Election of the Vendee and afterwards Sir Thomas assignes to Basset 600. cords of Wood to be taken by him who doth fall the same and Maynard did take them away and converted them c. an Action upon the case was brought by Basset and iudgement was given for him for Corneford had an interest which he might assigne over and not a thing in action or a possibility for it was resolved if Sir Thomas did not assigne them to Cornford upon request Cornford might take them without assignment for the Grantor cannot by his owne act or default eyther subvert or derogate from his owne grant Therefore it ensueth that Cornford had an interest that he might assigne over If A. have a house and Land and reasonable estovers in the Woods of another by view and livery of the Bayliffe c. if A. take estovers without view or livery c. he is a trespassor although he take lesse then he ought to have by livery But if A. demand his estovers and the Owner or his Bayliffe will not deliver to him he may have an Assize 2. If the Assignement were voyd yet the Defendant cannot take Trees cut by another but out of the residue of the Wood. The Earle of Rutlands case 2. Ja. fo 25. banco regis EDward Earle of Rutland seised of the Mannor of Eykering by Indenure dated 10. March Anno. 21. El. for augmentation of the joynture of Issabell his Countesse did Covenant with Sir Gilb. Gerrard and Thomas Houlcroft his Brother that before the end of Trinity terme then next following he would assure by fine or other conveyance the said Mannor to the said Sir Gilb. Gerrard and Thomas in Fee which syne or other conveyance should be to the use of the said Earle and Issabell his Wife and the Heires of the said Earle which Indenture was acknowledged and inrolled in the Chancery the 28. of the same Moneth of March by another Indenture betweene the said Earle on the one part and the Lord Burleigh on the other
or Ignominious Signes as Gallowes c. The Punishment is by Indictment as in the Starre-Chamber Palmers Case 8. Jac. fo 126. banco regis THe Gardian in Chivalry shall have the single value of the Marriage of the Heire without tender otherwise the Heire may defeate the Lord by Marriage or goe beyond the Sea and so prevent the Lord of any tender if it were requisite Caudreyes Case 33. Eliz. in Trespasse THe Jury found the Statute of 1. Eliz. cap. 1. and cap 2. and that the Plaintiffe was deprived for Preaching against the Booke of Common Prayer by the Bishop of London una cum assensu c. Resolv 1 The deprivation was good for the first offence because the Act of 1. Eliz. for uniformity of Common Prayer doth not abrogate 1. Eliz. for Ecclesiasticall Jurisdiction without negative words and by an expresse proviso the Jurisdiction of the Bishop is saved Resolv 2. That sentence given by the Bishop by assent of his Collegues ought to be allowed by our Law Resolv 3. The Commissioners shall be intended Subjects borne c. Stabitur praesumptionj c. Also it is found that the King authorized them Secundum formam Statuti Resolv 4. The Act of 1. Eliz. for Ecclesiasticall Jurisdiction was onely declaratory for the King being an absolute Monarch and head of the body politick had plenary power to minister justice to his Subjects in Causes Ecclesiasticall and temporall See Circumspecte agatis 13. E. 1. and Articulj Clerj 9. E. 2. Reges sacro oleo uncti sunt spiritualis jurisdictionis capaces See there diverse judgements Lawes and Acts of Parliament cited to prove the Kings supremacy in Causes Ecclesiasticall The End of the Fifth Booke THE SIXTH BOOK Where Services intire shall be Apportioned Bruertons Case 36. Eliz. In the Court of Wards Fol. 1. LORD and Tenant of three Acres by Homage Fealty a hawke and Suite of Court the Tenant makes a Feoffement of one Acre the Feoffee by the common Law shall hold by all intire services annuall and casuall and the Statute of Quia emptores Terrarum doth not extend to intire services but by the Statute of Marlebr c. 9. the Feoffees shall make but one Suite and he who doth it shall have Contribution against the others if they are severally infeoffed otherwise if jointly 2. Intire services shall be multiplied by the Act of the Tenant and extinct by the Act of the Lord as if he purchase part 3. By Act of the Lord intire service for his private benefite is extinct otherwise if it be for the publick good for works of Charity Devotion or administration of Justice 4. If part comes to the Lord by act in Law yet the intire service remaines except in Case where Contribution is to be made for the Lord shall not contribute 5. If part comes to the Lord by Act in Law and of himselfe as by recovery in a Cessavit all the intire services are gone Where the Paroll shall demurre for the nonage of the Demandant and where the Tenant shall have his Age. Markals case 35. Eliz. com banco fo 3. IN a Formedon in the remainder by an Infant of a remainder limitted to his Father and his heirs the tenant cannot pray that the parol may demur but in a Formedon in the reverter he may In actions auncestrell the Tenant may pray that the parol may demurre because a right onely discends to the Infant and the Law will not suffer him to sue for feare that he may loose for want of understanding but in possessory Actions he cannot because then every one will put Infants out of possession and it would be mischevious if they should not regaine their possession untill full age So it is in all Writs where the cause of action happens in the time of the Infant And as to Actions auncestrell they are of two sorts Droiturell and possessory the first is where a right onely discends from the Auncestor and the Infant ought to lay the explees in the Auncestor and there the Tenant without plea pleaded may pray that the paroll may demurre but if the Auncestor were never in possession as in this case he was not and the Infant himselfe is the first in whom it vests there without plea pleaded hee shall not pray that the Parol may demurre but if a right discend from an auncester who was in possession although the Action doth not discend the Tenant may pray that the parol may demurre as if Non compos mentis alien and dye In actions auncestrell possessory the parol shall not demurre without plea but if at the common Law the Tenant had pleaded a feoffement of the auncestor then he may pray c. but the Statute of Gloucester cap. 2. aideth that in writs of Cosinage Besaiell and aiell but this extends not to other actions in a Formedon in the discender where an Infant recovers but a limitted estate the Parol shall not demurre without plea in an Assize or assize of Mortdauncester the Parol shall not demurr because the Jury is to appeare the first day and try all things The Statute of Westm 1. cap. 46. Age is taken away in entry upon disseisin where fresh suite is made but an Infant shall have his age in all reall Actions where he is in by discent and the Action is not founded upon his owne wrong except in Nuper obijt and Partitione facienda where both are in possession or attaint for the mischiefe of the death of the Petty Jury The Statute of West 2. cap. 40. Ousteth the age of the Vouchee in cuj in vita and Sur cuj in vita although that the Tenant will answer if the parol ought to demurre yet the Court ought to award that the parol shall demurre Sir John Molyns Case 40. Eliz. in Scaccar fo 5. KIng Edward the third Lord Abbot of Westminster Mesne and C. Tenant C is attainted of Treason the King grants to Sir Jo. Mo. Tenendum de nobis álijs capitalibus dominis feodi illius per servitia c. the Mesnalty is revived Obj. 1. That the tenure shall be Per servitia inde debita at which time no service was due to the Mesne 2. An expresse tenure of the King is limitted and it cannot be immediatly holden but of one To the first it was answered that there are sufficient words to renew the Mesnalty because the intention of the King appeares to be so and it is reasonable that the Mesne who offended not should not suffer losse 2. It shall be holden imediatly of the Abbot and mediatly of the King Wheelers Case 43. Eliz. in Scaccario fo 6. THe King grants Land Tenendum by a Rose Pro omnibus servitijs this is Socage in chiefe and the tenure shall be by fealty and a Rose and Pro omnibus is to be intended of other services which the Law doth not implie Resolutions and Diversities when a barre in one action shall be a barre in another Ferrers Case 41. Eliz. Com.
none will buy their Wardships 5. After Tender and refusall if the heire be made Knight and marry he shall not forfeite the double value because he is out of Ward but immediatly the Lord shall have a Writte de valore maritagij This was the last Case that Sir John Popham chiefe Justice of England c. ever Argued Sir George Cursons case 7. Jac. Cur. Wardor fol. 75. SIr W. L. seised of a reversion expectant upon taile made to his sonne of land in Capite Covenants to stand seised to the use of his neece the sonne dyeth the King shall not have primier seisin 1. Resol It was Collusion apparent within the Statute of Marlebr cap. 6. to infeoffe the heire apparent and if he infeoffe others upon Collusion averrable but no averrement shall be where the remainder or reversion is left in a stranger or upon a Devise 2. Or otherwise to dispose in the Statute of 32. H. 8. have relation to wills onely for before the Statute every man might dispose of his lands by act executed 3. The Clause in the said Statute which saveth primier seisin to the King hath relation onely to acts executed for the King shall have without that primier seisin of the third part not devised but without that he shall not have it of any part conveyed by act executed 4. If the grandfather convey land to the sonne living the father this is out of the Statute otherwise if the father be dead and so a gift to a Collaterall Kinsman who is not heire apparent is out of the Statute for none will by intendment disinherit his heire to defeate the King of the Wardship or primer seisin and so is the experience of the Court of Wards Bullens case 5. Jacobi Com. Banco fol. 77. THe Lord may have a certeine summe pro certo letae for it shall be intended it was granted at the first by purchase of the Leete for the ease of the Tenants and in consideration of the Lords claiming of it at his owne costs every Eyre The issue was if the plaintiffe was a chiefe pledge and by speciall verdict he was found a Resiant and certified by the chiefe pledges to be a chiefe pledge and was amerced for his default It seemeth he was not Sed materia praedicta consopita fuit in arbitrio See 30. E. 3.23 of franke pledges Lord Abergavenies case Com. Banco fol. 78. A Judgement in an action of Debt is had against a joyntenant for life who afterwards releaseth to his companion all the right c. yet that moytie is liable to the Judgement and so it is of a rent charge during the life of the Releasor Sir Edward Phyttons case Com. Banco fol. 79. EXecutors may take benefit of the Kings generall pardon by which is enacted that all Subjects of the King their heires Successors Executors and Administrators shall be acquitted and discharged of all offences contempts c. and that shall be expounded most beneficially for the Subject And further doth give and grant all goods Chattells Debts c. forfeited And prohibiteth any Clerke to make out any Writte c. Provided that every Clerke may make forth cap. ut at the suite of the plaintiffe against persons outlawed to the intent to compell them to answer and that the partie shall sue forth a scir fac before the pardon in that behalfe shall be allowed which is as much to say having regard onely to the plaintiffe But in regard of the King it is an absolute pardon and grant of his goods and he is a person inabled against the King but not against the partie plaintiffe And every person by himselfe or his Atturney may plead this act for discharge Executors shall have restitution upon the Statute 21. H. 8. Also Administrators shall have a Writt of error upon the Statute 27. El as was adjudged in the Lord Mordants case 36. El. And yet these Statutes speake onely of the partie and not of the Executors or Administrators because no Writt can be against Executors they may plead it without Processe The End of the Sixth Booke THE SEAVENTH BOOK Postnati Calvins case 6. Jacobi Banco Regis fol. 1. R C. By his gardian bringeth an assize the defendants say the plaintiffe ought not to be answered Quia est alienigena natus 5o. Novembris Anno Domini Regis Angliae c. tertio apud E. infra regnum Scotiae ac infra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. c. the plaintiffe demurreth The Case was Adjourned into the Exchequer Chamber and was argued by two Justices every day and by the Chancellour and resolved by the Chancellour and all the Justices except Walmesley and Foster that the plaintiffe ought to be answered For these six demonstrative Conclusions drawne from the Law of Nature the Law of the Land Reasons of State and Authorities of Records and Booke Cases 1 Every one that is an Alien by birth may be or might have been an Enemy by accident but C. could never be an Enemy by any accident whatsoever ergo no Alien by birth 2. Whosoever are borne under one naturall ligeance due by the Law 〈◊〉 nature to one Soveraigne are naturall borne Subjects But C. was borne under one c. ergo a naturall borne Subject 3. Whosoever is borne within the Kings protection is no Alien But C. was borne under c ergo he is no Alien 4. Every stranger borne must at his birth be either amicus or inimicus but C. at his birth could neither be amicus nor inimicus because he was subditus ergo no stranger borne 5. Whatsoever is due by the Law of man may be altered but naturall legeance of the Subject to the Soveraigne cannot be altered ergo not due by mans Law Lastly whosoever at his birth cannot be an alien to the King of E. cannot be an alien to any of his Subjects of E. but C. at his birth could be no alien to the King of E. Ergo he cannot be an alien to any of the Subjects of E. the Maior and Minor both be Propositiones perspicuè verae and although Alienigena dicitur ab aliena gente yet that is all one as Alienae ligeantiae and arguments drawne from Etymologie are feeble for Saepenemero ubi proprietas verborum attenditur sensus veritatis amittitur yet when they agree with Law Judges may use them for Ornament and dâ—verse inconveniences would follow if the Plea against the Plaintiffe should be allowed For first it maketh legeance locall wereupon should follow first that legeance which is universall should be confined within locall limits 2. That the Subject should not be bound to serve the King in Peace or in Warre out of those bounds 3. It should illegitimate many which were borne in Gascayne Guyan Normandy c. and diverse others of his Majesties Dominions whilst the same were in actuall obedience And lastly this strange and new devised Plea inclineth too much to
countenance that dangerous and desperate error of the Spencers viz. That Homage and Oath of legeance was more by reason of the Kings Crowne that is of his politique capacity then by reason of the person of the King which was condemned by two Parliaments one in the Reigne of E. 2. called Exilium Hugonis le Spencer and the other in 1. E. 3. cap. 1. No one Opinion in all our Bookes is against this judgement The Lord Chancellour and 12. of the Judges concurred in one opinion herein and not in any remembrance so Honourable and Intelligent an Auditory as was at this Case Bulwers Case 27. Eliz. fol. 1. H. H. recovered against the Plaintiffe in the common place and dyeth the Defendant in the name of H. Outlawed the Plaintiffe who brings an Action of the Case in N. where the first Action was brought and recovered for there was the visible torte when matter in one Câ—unty dependeth upon matter in another County the Plaintiffe may choose in which County to bring his Action except that the Defendant upon generall issue pleaded may be prejudiced of his Triall as if two conspire in one County to Endite one in another County and doe it an Action may be brought in either but if he be indited but not by them there it shall be brought where the conspiracy was If Manasse be made in E. whereby my Tenants recede into L. an Action shall be brought in E. if an action be founded upon two things materiall and traversable in two severall Counties an action may be brought in any of them An Annuity granted in one County to be paid in another the Action shall be brought where the grant was he who is robbed may have an appeale of felony in every County where the goods came but of robbery where the fact was done onely A lease for yeares in one County of Land in another Debt shall be brought where the Lease was made and wast where the Land lyeth every Action which concerneth the life of a man shall be brought where the offence is committed Every issue which ariseth upon an Action in which Land shall be recovered shall be brought where the Land lyeth as in right of ward of Land or body or intrusion of ward and forfeiture of Marriage Valore maritagij and Quare impedit but ravishment of ward where the ravishment was and a Quare non admisit where the refusall was before the Statute of 7. R. 2. c. 10. an Action for Land in diverse Counties or for common in one County appendant to Land in another County shall be brought by severall Writs in both Counties but now In confinio comitatuum a per quae servitia shall be brought where the note of the fine is levyed Sir Miles Corbets case 27. Eliz. in Scaccario fol. 5. REsol That the speciall manner of Common in Norf called Shacke to be taken in arrable land after harvest untill sowing begin is good Resol also if in D. there are fifty acres and in S. 100. l. who ought to intercommon for vicinage D. cannot put in more in their Common then it will depasture and so to escape reciprocally for the originall cause of this Common was onely to prevent suits in Champian Countries Cases upon the Statute of 13. E. 1. of Winchester upon hue and cry Sendills case 27. Eliz. in Com. Banco fol. 6. A Robbery for which the Hundred must answer by force of the said Statute is to be done openly so as the Country may take notice thereof themselves but a Robbery done secretly in the house the Country cannot take notice thereof for every one may keepe his house as strong as he will at his perill For it was adjudged in Ashpoles case that the partie robbed needed not to give notice thereof to the Country For it may be that the partie robbed was bound or maimed c. so as he could not make hue and cry to give notice A robbery was done in January presently after the Sunne setting during day-light and it was adjudged that the Hundred should answer for the same for it was a convenient time for men to travell or to be about their businesse One was killed in the Evening and escaped and by the common Law the Towne was amerced for that was accounted in Law parcell of the day and not of the night But by the Statute 27. El. ca. 13. none shall have action upon the said Statute except the partie robbed so soone as he may give notice of the same to any of the Inhabitants of any Village Towne or Hamlet next to the place where the robbery was done and if they in pursuite apprehend any of the offenders that will excuse the Towne Mibornes case 29. Eliz. in Com. Banco fol. 6. A Robbery was done in the morning ante lucem the Hundred shall not be charged Cum quis felonicè occisus fuit per diem nisi felocaptus fuit tota villata illa amercietur The Earle of Bedfords Case 29. Eliz. fol. 7. 1. REsol If tenant in taile make a voydable lease for yeares and dyeth his heire in ward to the King or other Lord the Lord shall avoyde this lease but if an infant make a feoffment the Lord by Escheate shall not avoyde it but a gardian shall because he doth it in right of the infant 2. This avoidance is but during the interest of the Lord for afterwards the heire may make it good But if he who hath a particular estate avoideth an act in all after his Interest determined it shall not be made good as if a feme be indowed of an appropriation and her clerke inducted the appropriation is defeated for ever so if a feme Covert as a feme sole levy a fine and the Baron enters and dyeth the Conâ—see shall not have the land for the estate is wholly defeated Vghtreds Case 33. Eliz. fol. 9. THe M. of W. granted the Captainship of a Fort to the plaintiffe and for exercising of the said office and for finding a Master Gunner and six Souldiers granted to him an Annuity of 32. li. per annum the plaintiffe brings an Annuity 1. Except It doth not appeare by the Count that the M. had power to grant this office Non allocatur 2. The plaintiffe doth not averre the exercising of the said office Non allocatur for if he had not used it that shall come in on the other part because this is a condition subsequent and not precedent but if one be to have a thing in consideration of an act to be done by him there he must shew the performance because that amounts to a condition precedent as in debt for salarie but if each party had equall remedy one for the money and the other for the act to be done there the Count shall be without shewing the performance as if one Covenant to serve c. and the other Covenants to give money c. But although that an interest vested is to be devested by non feasance
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney
he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
causa frigiditatis and that his wife for three yeares after the marriage Remansit virgo intacta propter perpetuam impotentiam generationes in viro quod vir fuit inaptus ad generandum and in this speciall verdict all the examinations of the Witnesses upon which the Judge in the spirituall Court was moved to give his sentence by which the perpetuall disabilitie of Bury ad generandum was manifest were reade and by which it was pretended that the issue which he had by a second wife was illegitimate and this was the doubt of the Jury And it was adjudged that the issue of the second wife was lawfull for it is cleare that by the Divorce causa frigiditatis the marriage is dissolved a vinculo matrimonij and by consequence either of them might marry after then admitting that the second marriage was avoydable yet it remained a marriage untill it was dissolved and by consequence the issue that is borne during the coverture if no divorce be in the life of the parties is lawfull Et homo potest esse habilis inhabilis diversis temporibus and Judgement affirmed in Error Flowers case 41. El. Banco Regis fol. 99. AN indictment of perjury upon 5o. El. for giving false evidence to the great Inquest is not within the Statute for it must be in matter depending in suite by Bill Writt action or information vide le Statut. Plus peccat author quam actor Rookes case 40. Eliz. fol. 99. THat the Commissioners in the Cōmission of Sewers ought to tax all which are in damage or in danger of damage for non-repaire of the Bancks and not onely him which hath the Land next adjoyning to the River The Commission is grounded upon the Statute 6. H. 6. cap. 5. for if the Law were otherwise great inconvenience might follow for it might be that the rage and force of the water might be such that the value of the Land adjoyning would not serve to amend the Bancks and therefore the Statute would have all in perill and which take commoditie by the making of the Bancks to be contributory for qui sentit commodum sentire debet onus ipsae leges cupiunt ut jure regantur And notwithstanding by the words of the Commission authoritie is given to the Commissioners to doe according to their discretions yet their proceedings ought to be limitted and bounded with the rule of the Law and reason For discretion is a knowledge or understanding to discerne betweene right and falshood truth and wrong shadowes and substances equity and colourable glosses and pretences and not to doe according to their wills and private affection For a learned Man saith Talis discretio discretionem confundit Penruddocks case 40. Eliz. fol. 100. IN a quod permittat betweene Clarke assignee of Thomas Chichley plaintiffe and Ed Penruddock and Mary his wife defendants assignee of one John Cock for that Cock 2o. 8 bris 1o. Mariae erected upon his freehold a house in St. Johns streete so neere the Curtelage of an house of Thomas Chichley that Domus illa super pendet Anglice doth overhang magnam partem videlicet 3. pedes curtilagij the plaintiffe sic quod aquae pluviales de eadem domo decedentes solum ejusdem curtilagij conterunt magnopere ac indies magis magisque consumunt Devastant ac ea ratione curtilag ' praed quolibet pluviale tempore humectat ' inundat existit quod praedictus Henricus Clarke inhabitans in eodem Messuagio nullum proficuum seu easiamentum de eodem curtilagio percipere possit ad necumentum liberi tenuenti praed ' c. And it was resolved that the distilling of the waters in the time of the Feoffee or assignee is a new wrong and this Writ lyeth after request of amendment but not before but it lyeth against him that did the wrong without request and the action good c. Windsors case 41. Eliz. fol. 102. IN a quare impedit by Windsor against the Archbishop of Canterbury for the Church of Buscott in the County of Bark It was adjudged that if two have title to present by turne and the one present who is admitted instituted and inducted and afterwards is deprived for Crime Heresie c. yet that Patron should not present againe but that shall serve for his turne So likewise if he present a meere Laicus which was admitted instituted and induced although it be declared by sentence that he was incapable and therefore voyd ab initio yet because the Church was full untill the sentence declaratory be pronounced yet that shall serve for his Turne But when the admission and institution are meerely void then that shall not serve for one Turne as if a presentee be once admitted instituted and inducted but hath not subscribed to the Articles c. according to the Statute of 13. El. by which in this case the admission institution and induction are voyde 23. El. Dier pl ' ult ' acc Hungatts case 43. El. Com. Banco fol. 103. HVngatt brought an action of debt upon an Obligation against Mese and Smith the condition was to performe an award between the plaintiffe on the one partie and the defendants on the other Ita quod arbitrium praed fiat deliberetur utrique partium praed before such a day the arbitrament before the day was delivered to the plaintiffe and to Mese but not to Smith Judgement was given against the plaintiffe It was resolved that if two be of one partie and two of another and the words are Ita quod deliber utrique partium That the delivery of the arbitrament to one of the one part and another of the other partie is not sufficient For the partie is to be intended of the whole partie for one is as well within the penaltie and danger of the Obligation as the other and uterque is taken sometime Discretive sometimes Collective Secundum subjectam materiam but here it is taken Collective Bakers case 42. Eliz. fol. 104. IF a plaintiffe in evidence shew any matter in writing or record or any sentence in the Ecclesiasticall Court whereupon Law doth arise and the defendant offer to demurre in Law upon the same the plaintiffe cannot refuse to joyne or wave his evidence and so on the other partie and the reason is for that matter in Law shall not be put in the mouth of Lay-men but the King in this case is at libertie Boulstons case 40. El. in communi Banco fol. 104. IT was adjudged that if a man make Cony-borrowes in his owne Land and the Conies encrease to so great a number that they destroy his Neighbours ground adjoyning The Neighbours may not have an action of the case for presently when the Coneys come into his Neighbours ground hee may kill them because they are ferae naturae And in this case it was resolved that none may newly erect a Dove-house but the Lord of a Mannor and if any doe he may be punished in
the Leete But no action of the case lyeth for any particular man for the infinitnesse of actions that might be brought And of this opinion touching the new erecting of a Dove-cote was Sir Roger Manwood chiefe Baron and the Barons of the Exchequer in the Exchequer chamber Aldens case 43. Eliz. Com. Banco fol. 105. AUncient demise is a good plea in an Ejectione firmae although it is not in trespas because by intendement the freehold may come in debate and the interest of the Land is bound auncient demesne is extendable upon a Statute by Elegit but in an assise by tenant by Elegit auncient demesne is a good plea. 22. Ass Pl. 45. Sir Henry Constables case 43. El. in banco le roy fo 106. NOthing shall be said Wreccum maris but such goods onely which are cast or left upon the Land by the Sea Flotsam maris is when a Ship is drowned or otherwise perish and the goods flote upon the Sea Jetsam maris is when a Ship is in perill of drowning and for disburthening thereof the goods are cast into the Sea and after notwithstanding the Ship perish Lagan vel potius Ligan is when the goods so cast out of the Ship and the Ship perish and such goods are so ponderous that they sinke to the bottome and the marriners to the intent to finde them binde thereunto a Boy or a Corke or other such thing to finde them againe Et dicitur Ligan a Ligando and none of these words which are called Flotsam Jetsam or Ligan are called wreck so long as they remaine in or upon the Sea But if any of them be cast upon the Land by the Sea then it is said to be wreck and by the Statute 15. R. 2. ca. 3. the Lord Admirall shall not have conusance or jurisdiction of wreck of Sea but of the other three hee hath for wreck is when the goods are cast upon the Land and so within some County whereof the Common Law may take conusance But the other three are upon the Sea Magis proprie dici poterit wreccum si Navis frangatur ex qua nullus vivus evasit maxime si dominus rerum subversus fuerit quicquid inde ad terram venerit erit domini regis wreck may by prescription belong to the Lord of a Mannor It was resolved also that the soyle upon which the Sea doth flow and reflow scil Between the high water marke and the low water marke may be parcell of the Mannor of a Subject 16. El. Dier And it was resolved that when the Sea doth flow ad plenitudinem maris the high Admirall shall have jurisdiction of every thing done upon the water between the high water marke and the low water marke as felony c. No proofe is allowable by the Law but the verdict of twelve men part of the goods were wreck and part not damage assessed intirely ergo Judgement given for the defendant The King shall have flotsam upon the Sea because within the ligeance of the King Foxleys case 43. El. Banco Regis fol. 109. IT was resolved if a Felon steale any goods and leave them in a Mannor or Towne or in his house or in the house of another or hide them in the earth or any other secret place and afterwards fly these goods are not forfeited nor waife goods in the Law for waife is where a felon in pursuite waveth or leaveth the goods or for feare to be taken thinking that pursuite was or is made having the goods with him in his possession flyeth away and leaveth the goods In these cases the goods shal be said waved in Law But if he had not the goods w th him when he did fly being pursued or for feare of being apprehended the goods are not waved nor forfeited but the owner may take them againe when he will without any fresh suite But if the Felon in his flying wave them the goods are forfeited by the Common Law If the Felon upon fresh suite be not attaint at the suite of the owner of the goods And the reason that wave is given to the King is for default of the owner that he doth not make fresh suite after for to apprehend the felon Wherefore the Law doth impose the penaltie on the owner Bona fugitivorum are the proper goods of him that flyeth away for felony But it is to be observed that if a man fly for felony his goods are not forfeited untill they be found by indictment or otherwise lawfully found of record upon his acquitall that he fled for the felony they cannot be claimed by prescription because that things forfeited by matter of record cannot be claimed by prescription But waife stray treasure trove wreck of the Sea c. which things may be gained by usage without matter of record there a man may prescribe to have Bona catalla felonum in some cases bona catalla felonum shall be forfeited by conviction and sometimes without conviction but alwayes when any forfeiture is of any goods of felons it ought to appeare of record and that is the cause that such goods cannot be claimed by prescription Deodanda are goods which cause the death of a man by misadventure and are not forfeited untill they be found of record therefore cannot be claimed by prescription the Jury that presents or finds the death ought to finde and apprise the Deodandum also omnia quae movent ad mortem sunt deodanda Bona catalla in exigendo positorum are when any be appealed or indicted of felony and he withdraw or absent himselfe for so long time as an exigent is awarded against him for his absenting which is a flying away in Law he shall forfeite all his goods and chattells which he had at the time of the exigent and after be found not guiltie 22. Lib. Ass Looke the Statute 21. H. 8. ca. 11. concerning goods waved and for restitution c. Mallaryes case 43. Eliz. fol. 111. REndring rent to one and his heires and to one or his heires are all one But a Feoffment tenendum to one or his heires is but during the life of the Feoffee Nemo potest plus juris in alium transferre quam ipse habet this case consisteth much upon atturnements vide le case Wades case 43. Eliz. in Communi Banco fo 114. A Man was bound to pay 250. li. Legal monet Angliae on a day certaine the last time of the day that so much money can be numbred is the best time so that it be before the setting of the Sunne and the most convenient time by Law that both parties may meete five shillings in Spanish money and two pistolets in gold were tendered It was resolved that the Spanish silver was lawfull money of England by Proclamation in tempore Philippi Mariae and so French Crownes for the King by his Prerogative and Proclamation may make any forreigne coyne lawfull money of England That if a man