upon the Evidence Notwithstanding that the number set down in the plaint be by the plea of the Defendant quodam modo admitted and the lesser number surmised and the contrary not proved shall go in mitigation of the damages and the Iury shall conform their verdict in the right of damages according to the proof of the number notwithstanding that the number set forth in the plaint be not by the Plea denied by the Defendant and so it was put in ure in this Case for the Plaint was of the taking of one thousand Cattle but the proof extended but to eight hundred sixty five Note also in the same Plea it was holden that whereas one Chock was returned upon several Iuries in two several Courts at Westminster and both the Iuries are adjourned to one day now in which of the said two Courts the said Chock was sworn he shall be discharged of his attendance at the other Court the same day LV. Carters Case Mich. 28 29 Eliz. In the Common Pleas. CArter brought an Action upon the Case against I.S. and declared Assumpsit that A. was possessed of certain Lands for years the Inheritance thereof being in the Wife of the Plaintiff upon which Lease a Rent was reserved The Defendant in consideration that the Plaintiff would procure the said A. to assign the said Lease to the Defendant promised to pay the said Rent to the Plaintiff for all the residue of the Term It was objected that upon this matter the Action doth not lie because that the Plaintiff hath a higher remedy scil an Action of Debt or Distress but the opinion of the whole Court was that the Action did lie for here upon the promise an Action is given to the Husband alone in his own right whereas the Rent is due to the Husband in the right of his Wife in its nature and the Rent is also to be paid for the Land. But upon this Assumpsit it is payable to the person of the Husband And afterwards Iudgment was given for the Plaintiff LVI Kimpton and Bellamyes Case Mich. 28 29 Eliz. In the Common Pleas. GEorge Kimpton brought a Replevin against Wood and Bellamy Replevin who make Conusance as Baylies to George Burgain for Damage Feasance The Plaintiff in Bar of the Conusance sheweth That he himself and all those whose estate he hath in one hundred and forty Acres of Land time out of mind c. have had common for all manner of Cattle in six Acres of Lands whereof the place where c. is parcel and so put in his Cattle c. against which the Defendants say that the Plaintiff c. had common in forty Acres of Land whereof the said six Acres are parcel all lying in Communi campo and that the Plaintiff a long time before the taking had purchased two Acres parcel of the said forty Acres c. upon which there was a demurrer in Law It was argued by Serjeant Shuttleworth that the Replication to the Bar to the avowry is not good for in the Bar to the Avowry the Plaintiff hath shewed that he hath common in six Acres and the same shall be intended common in six acres only for common in forty acres cannot be the common in six acres as 35 H. 6. 38. In Debt for Rent reserved upon a Lease for years the Plaintiff declared that he leased to the Defendant ten acres of Land rendring the Rent in demand the Defendant pleaded that the Plaintiff leased to him the said ten acres and also such a Rectory rendring the same Rent the same is no plea without traverse absque hoc that he leased the ten acres only See Dyer 29 H. 8. 32. And the whole Court was clear of opinion that for want of such traverse Traverse the plea is not good for by Periam the Common supposed in the bar to the Conusans out of the six acres cannot be intended the Common supposed in the Replication scil out of the forty acres And by him if in Trespass the Defendant justifie by reason of Common in six acres of Land upon which the parties are at issue and the Defendant in Evidence shews that he hath common in forty acres whereof the said six acres are parcel the same doth not maintain his title but the issue shall be found against him Post 80 81. But by the Lord Anderson because that this Demurrer is general the other party shall not take advantage of that defect of pleading for the want of the Traverse and that by reason of the Statute of 27 Eliz. For Traverse is but matter of form and the want of the same shall not prejudice the other party in point of Iudgment but the Iudges ought to judge upon the substance and not upon the manner and form of the pleading And as to the matter of the Common Extinguishment the Court was clear of opinion that by the purchase of the said two acres the whole Common was gone LVII Knights Case Mich. 28 29 Eliz. In the Common Pleas. KNight brought Debt against three Executors and now surmised by his Counsel that one of the Executors is dead pendant the Writ Debt and prayed the opinion of the Court if the Writ should thereby abate or not for by some it is not like where a Writ is brought against two Executors Abatement of Writ for there if any of them dieth pendant the Writ it shall abate for now the plural number is gone for there is but one Executor but in our Case the plural number continues But notwithstanding that the Court was clear of opinion that the Writ should abate Wherefore the Plaintiff seeing the opinion of the Court prayed that upon his surmise aforesaid he might have a new Writ by Iourneys Accounts which was granted to him The Queen and Middletons Case Mich. 28 29 Eliz. In the Common Pleas. Quare Imped THe Queen brought a Quare Impedit against Middleton and counted that W. Lord Say was seised of the Manor of Bedington in the County of Hertford to which Manor the advowson of the Church was appendant ad Ecclesiam praedict praesentavit Coo Clericum suum and afterwards died seised having issue two Daughters Mary married to the Earl of Essex and Ann to the Lord Mountjoy who make partition and the said Manor of Bedington inter alia was allotted to the said Mary for her part and afterwards the said Earl and Mary died having issue Ann who took to Husband the Marquess of Northampton and afterwards 33 H. 8. a Fine was levyed of the said Manor inter c. Querent and the said Marquess and Ann Deforceants by which Fine the said Manor was granted and rendred to the said Marquess for term of his life the remainder to the said Ann his Wife in tail the remainder over to Hen. the eighth in Fee the Marquess is attainted of High Treason by which the King seised and afterwards Ann died without issue after which
petit quod inquiratur per patriam praedict Brett similiter It was moved that the parties should replead for this matter upon which they are at Issue scil the appearance is not triable by Iury but by the Record And the Court was clear of opinion that the parties should replead for the cause aforesaid And it was moved by the Lord Anderson that if A. be bound to appear in the Kings Bench at such a day and A. at the said days goe to the Court but there no process is returned then the party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance And by Nelson we have an acient form of entry of such Appearance in such Cases Ad hunc diem venit I. S. propter indemnitatem suam Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur And see for the same 38 H. 6. 17. And afterwards the Lord Anderson inspecto Rotulo ex assensu sociorum awarded a Repleader And so by Nelson it hath been done oftentimes here before and put in ure The same Law is where at the day of appearance no Court is holden or the Iustices do not come c. he who was bound to appear ought to have an Appearance recorded in such manner as it may be and if the other party pleadeth Nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court cannot write to the Iustices of the Kings Bench for to certifie a Record hither CXV Baxter and Bales Case Mich. 29 30 Eliz. In the Common Pleas. Debt not extinct by administration BAxter brought Debt upon a Bond as Executor of I. against Bale who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default upon which the Ordinary committed Letters of Administration to the Defendant by force of which he did administer so the debt is extinct c. but the whole Court was clear of opinion that the debt was not extinct for now by the probate of the Will the administration is defeated and although the Executor made default at the day which he had by the Citation before the Ordinary yet thereby he is not absolutely debarred but that he may resort to the proving of the Will whensoever he pleaseth But if he had appeared and renounced the Executorship it had been otherwise and the debt is not extinct by the Administration in the mean time CXVI Mich. 29 30 Eliz. In the Common Pleas. IN a Franchise the parties are at Issue upon a matter triable out of the Franchise And it was moved if now the Record should be sent into the Common Pleas and there tryed and after trial sent back into the Franchise Which Periam and Anderson utterly denied and by Periam there is no reason that we should be their Ministers to try Issues joyned before them And it is not like 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands in such cases we shall determine the Warranty but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said that such an Issue was tryed here of late Quod nota CXVII The Earl of Arundel and the Lord Dacres Case Mich. 29 30 Eliz. At Serjeants Inne PHilip Earl of Arundel and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres And now came Francis Lord Dacres as heir male of the said Family and claimed the Inheritance c. And after long sute betwixt both parties they submitted themselves to the award of Gilbert Lord Talbot and of Arthur Lord Grey of Wilton and Windham and Periam Iustices And before them at Serjeants Inne the matter was well debated by the Council learned on both sides and as unto Greistock Lands parcel of the Lands in question the Case was That Tenant in tail makes a Feoffment in fee unto the use of himself for his life the Remainder in tail to his eldest Son with divers Remainders over with a Proviso that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance that then the use limited to such person should cease and go to him who is next inheritable And afterwards Tenant in tail dieth his eldest Son to whom the use in tail was first limited entreth and doth an Act against the said Proviso and yet held himself in and made Leases the Lessees enter the Lessor dieth seised his Heir being within age and in ward to the Queen It was holden by Shutleworth Serjeant Yelverton Godfrey Owen and Coke who were of Council with the Heirs general of the Lord Dacres that here is a Remitter for by this Act against the Proviso the use Remitter and so the possession doth accrue to the enfant Son of him to whom the use in tail was limited by the Tenant in tail Then when the Tenant in tail after his said Feoffment holds himself in this is a disseissin for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance But admit that he be but a Tenant at sufferance Hâ—b 255. Dy. 54. yet when he makes Leases for years the same is clearly a disseisin and then upon the whole matter a Remitter and although the Enfant taketh by the Statute yet the right of the tail descending to him afterwards by the death of his Father doth remit him as if Tenant in tail maketh a Feoffment in fee to the use of himself for life the Remainder in tail to his eldest Son inheritable to the first intail notwithstanding that the eldest Son takes his Remainder by the Statute and so be in â—â— force thereof yet when by the death of his Father the right of the Entail descends to him he is remitted CXVIII Butler and Ayres Case Mich. 29 30 Eliz. In the Common Pleas. Dower BUtler and his Wife brought a Writ of Dower against Thomas Ayre Son and Heir of Bartholmew Ayre first Husband of the said Margaret Wife of the Plaintiff and demanded Dower of Lands in A. and B the Tenant pleaded never seised que Dower and the Iury found that the said Bartholmew was seised during the Coverture de omnibus tenementis infra script preterquam the Tenements in sic ut dicta Margareta dotari potuit Exception was taken to this Verdict because that this preterquam c. doth confound the Verdict To which it was said by the Court that the preterquam is idle and surplusage for it is of another thing than that which is in demand and the seisin of the first Husband of Lands in A. and B. is confessed and the preterquam works nothing Another matter was objected because here the Iury have assessed damages
good will of I.S. which he cannot obtain the same remainder is not good And if one covenant to stand seised to the use of Salisbury plain for the life of I. S. and after the remainder to A it is a plain case That he in the remainder shall take presently 37 H. 6. 36. Cestuy que use willed That his Feoffees should make an estate to A. for life the remainder to C. in fee A. would not take the estate C. shall have a Subpoena against the Feoffees after the death of A. See there the case And if Land deviseable be devised to one for life the Remainder over to another in Fee and the Devisee for life doth refuse Quaere if the Devisee in Remainder shall enter presently See Fitz. Subpoena And also he put the Case where Land is devised to a Monk for life the Remainder over to another in Fee he in the Remainder shall enter presently see the same Case in Perkins 108. for the Monk never took any thing by the devise notwithstanding that there is not any particular estate upon which a Remainder can depend yet the intent of the Devisor shall be observed in as much as it may and the particular estate limited to the Monk is meerly void of which every stranger shall take advantage c. And it was resembled to a Case in Baintons Case where an use in Remainder limited upon good consideration shall be good in Law although the particular use be not grounded upon good consideration so faileth And he urged a Case alleadged by Popham in the Case of the Earl of Bedford that if in Cranmers Case the estate for years limited to the Executors 2 Leâ— 5. 6. had been limited to Administrators it had been meerly void and the use in tail limited in tail should begin presently that was by reason of the interval betwixt the death of Cranmer the taking of the Letters of Administration in which mean time there is not any person capable and therefore the Remainder shall vest presently which is a fit case to prove the Case at Bar And he remembred that in the Argument of Cranmers Case Lovelace Serjeant would have an Occupancy in the Case of such a Term limited to Administrators quod omnes Justiciarii negaverunt and in the said Case of Cranmer it was holden that the Lease for years being void the estate in the Remainder did begin presently without expecting the effluxion of the years c. And truly a Term imports in it self an Interest but if the limitation had been after the Term of twenty four years c. the same implyeth but a bare time And to that purpose he cited the Case 35 H. 8. Br. Exposition 44. A. Leaseth to B. for ten years it is covenanted betwixt them that if B. pay unto A. within the said ten years one hundred pounds that then he shall be seised to the use of B. in Fee B. surrenders his Term to A. and within the said ten years pays the one hundred pounds to A. here B. shall have Fee for the years are certain contrary if the Covenant had been If he pay within the Term. Popham Attorney General Contrary The use shall not go beyond the Contract here the Term doth not vest in that it was Limited for want of sufficient consideration of the Lord Paget the intent was not that his son should have possession of the land before the term of 24. years expired Use what it is A use is a thing in Conscience according to confidence to be guided by the intent of the parties upon such Case at the Common Law W. Paget should not have a Subpoena before the years expired and this word Term doth not alter the Case and there is a great difference betwixt an use raised by Feoffment and an use raised by Covenant For in the first case the Feffor doth dipossess himself utterly if it takes not effect to one purpose it shall take effect to another purpose But in the Case of a Covenant it is otherwise for the use riseth according to the contract not otherwise here the Contract is That W. Paget shall have the Land not immediatly after the death of his Father but after the 24 years expire Owen Serjeant It hath been agreed of both sides That every use shall go according to the intent of the parties and here it appeareth That it was the intent of the Lord Paget to put all the use out of himself and I see not any difference betwixt an use raised by Covenant and a use raised by Feoffment For a use limited utrovis modo to Pauls Steeple for the life of A. and after to the use of B. in Fee the first use is void but the second good and here the meaning of the Lord Paget plainly appears for there is a Proviso in the Indenture That after the said debts and legacies paid the use limited for 24 years shall cease and it is exprestly averred that they are paid 11. H. 4. A. leaseth for life the remainder in tail to himself the Remainder over to a stranger in Fee the mean Remainder limited by A. to himself is void and the remainder over shall be immediate to the estate for life Egerton The words of the Indenture and the intent of the parties are the rules of uses The first use is void For the intent of the Lord Paget was void because contrary to the Law and Eusal to whom the use for years was limited could not take presently for his estate is limited to begin after the death of the Lord Paget and there is a great difference betwixt uses raised by Covenant and by Feoffment For when a use is raised by Feoffment there all is out of the Feoffor the land is gone the use is gone the trust is gone nothing remaineth but a bare authority to raise uses out of the possession of the Feoffees being new uses there although some of them be void yet the other shall stand but where a use is raised by way of Covenant there the covenantor continues in possession there the uses limited if they be according to Law shall raise draw the possession out of him but if not the possession shall remain in him until a lawful use shall arise which before its time shall not rise for any defect in the precedent use And here is no Term therefore no end for that which hath not a begining hath no ending And if there be no estate then no Term if there be so then it is to be taken for the time of 24. years which is not as yet expired and then was there in the Lord Pawlet an estate descendable for 24 years which by the Attainder doth accrue unto the Queen And he cited the Case of 13 Eliz. Dyer 300. Feoffment to the use of himself for life and afterwards to the use of a woman which he entendeth to marry until the issue which he
I do Allow of the Reprinting of These Four Parts of Leonards Reports Febr. 20. 1685 / 6. EDWARD HERBERT REPORTS AND CASES OF LAW Argued and Adjudged in the Courts at Westminster In the Times of the Late QUEEN ELIZABETH AND KING JAMES In Four Parts The Second Impression carefully Corrected with the Addition of Many Thousand of References never before Printed Collected by a Learned Professor of the LAW WILLIAM LEONARD Esquire Then of the Honourable Society of GRAYS-INN Published by William Hughes of Grays-Inn Esquire With Alphabetical TABLES of the Names of the Cases and of the Matter contained in each Part. LONDON Printed by William Rawlins Samuel Roycroft and Miles Flesher Assigns of Richard and Edward Atkins Esquires For H. Twyford H. Herringman T. Basset R. Chiswell B. Griffin C. Harper T. Sawbridge J. Place and S. Keble MDCLXXXVII Academiae Cantabrigiensis Liber TO THE READER Courteous Reader THese Cases were Collected and taken in the French Tongue by William Leonard Esquire sometimes of the Honourable Society of Grays-Inn a Learned Professor and Practiser of the Common Law in the time of the Reign of the late Queen Elizabeth One Copy of some of these Cases many years past came into the hands of Sir Robert Hitcham Knight afterwards Serjeant at Law Another Copy of other of these Cases came then into the hands of Humphry Davenport Serjeant at Law afterwards Sir Humpry Davenport Knight late Lord chief Baron of the Court of Exchequer Both which said learned persons approved of them and made use of them in the course of their several Practice Some other Copies of some of these Cases are now dispersed abroad and are in the hands of divers Practisers and Students of the Law who make the like use of them The Originals themselves of all these Cases amongst many others of the said Mr. Leonards collecting all of them under his own hand-writing are now in my hands having been delivered to me by a worthy Gent. of the said Society of Grays-Inn who had them out of the Library somtimes belonging to the said Mr. Leonard These Cases having been lately truly and carefully Translated by me out of the Original French Copy into English have since the Translation thereof been perused and approved of by many Eminent Professors of the Law. Wherefore I finding that the same do contain many excellent Matters and Points of Law which have not heretofore been Printed or published do here offer the same unto thy Judgment upon a serious consideration hoping they may be of some use and benefit to thee in the like course of thy study and practice of LAW From my Study at Grays-Inn Novemb. 20th 1658. Will. Hughes The Names of the Learned Lawyers Serjeants at Law and Judges of the several Courts at Westminster who argued the cases and were Judges of the several Courts where the Cases were argued viz. A. ANderson Lord Chief Justice of the Common Pleas. Anger Altham afterwards one of the Barons of the Exchequer Atkinson Ayliffe Justice of the Kings Bench. B. BEamount Serjeant at law afterwards Judge of the Common Pleas. Bromley Lord Chancellor of England Barkley C. COok after Lord Chief Justice of the Common Pleas. Clench one of the Judges of the Kings Bench. Cooper Serjeant at Law. Clark Baron of the Exchequer D. DAniel Serjeant at Law after Judge of the Common Pleas. Drew Serjeant at Law. Dyer Lord Chief Justice of the Common Pleas. E. EGerton Solicitor of the Queen after Lord Chancellor F. FLeetwood Serjeant at Law Recorder of London Fuller Fenner Serjeant at Law after Judge of the Kings Bench. G. GAwdy Judge of the Kings Bench. Golding Serjeant at Law. Glanvile Serjeant at Law after Judge of the Common Pleas. Gent Baron of the Exchequer Godfrey H. HAughton Serjeant at Law after Judge of the Common Pleas. Hammon Serjant at Law. Harris Serjeant at Law. Heale Serjeant at Law. Hobart K. KIngsmil Judge of the Kings Bench. L. LAiton M. MEad Serjeant at Law after Judge of the Common Pleas. Morgan Manwood Lord Chief Baron of the Exchequer Mounson Justice of the Common Pleas. O. OWen Serjeant at Law after Baron of the Exchequer P. POpham Attorney General of the Queen after Lord Chief Justice of B. R. Periam Judge of the Common Pleas. Pepper Attorney of the Court of Wards Plowden Puckering the Queens Serjeant at Law. R. RHodes Judge of the Common Pleas. S. SNag Serjeant at Law. Shuit Judge of the Kings Bench. Shuttleworth Serjeant at Law. TAnfield Serjeant at law after Lord Chief Baron of the Exchequer Topham W. WRay Lord Chief Justice of the Kings Bench. Windham Judge of the Common Pleas. Walmesley Serjeant at Law after Judge of the Common Pleas. Y. YElverton Serjeant at Law after Judge of the Kings Bench. The Names of the Cases Note 1. P. stand for Principal Case 2. B. stand for a Vouched Case A. Sect. ALlington and Bails Case 34 p Albany and Bishop of Saints Asaphs Case 39 p Ashpool and Inhabitants of Everinghams Case 72 p Arden and Gents Case 75 p Arundel and Morris case 98 p Allen and Palmers case 133 p Atkinson and Rolfs case 141 p Atkins and Hales case 192 p Askew and Earl of Lincolns Case 196 p Ashegel and Dennis case 272 p Arundel and Bishop of Gloucesters case 278 p Alexander and Greshams case 306 p Askew and Fuliambs case 310 p Austin and Smiths case 441 p Lord Abergavennies case 469 p Anonimus 2 p 8 p 15 p 17 p 38 p 40 p 45 p 61 p 73 p 75 p 81 p 83 p 86 p 94 p 104 p 108 p 109 p 116 p 132 p 145 p 150 p 157 p 173 p 220 p 221 p 222 p 224 p 226 p 266 p 285 p 290 p 296 p 308 p 335 p 349 p 350 351 252 353 354 355 356 357 358 359 360 361 365 371 386 390 392 393 396 397 400 401 408 418 443 444 451. B. Bornford and Packingtons case 1 p Benicomb and Parkers case 31 p Bedows case 32 p Braybrooks case 51 p Bullers case 64 p Bishop of York and Mortons case 69 p Bunny and Wright and Staffords case 77 p Bonefant and Sir Richard Greenfields case 78 p Beverleys and Cornwallis case 84 p Bracebridge Baskarviles case 87 p Barker and Pigets case 89 p Blaunchstower and Friars case 91 p Basset and Kerns case 92 p Bret and Auders case 95 p Brook and Kings case 99 p Baldwin and Cocks case 101 p Bret and Shepherds case 114 p Baxter and Bales case 115 p Butler and Ayres case 118 p Bushies case 122 p Birds case 125 p Branchers case 139 p Bear and Underwoods case 142 p Beverley and Bawds case 148 p Beares case 154 p Bronker and Robothams case 162 p Brook and Doughties case 173 p Bilford and Foxes case 189 p Burgesses of Southamptons case 199 p Lord Buckhurst and Bishop of Winchesters case 213 p Brookesley and Wickams case 232 p Bowâ—y and Popes case 234 p Bedel and Moors case 238 p
Bulleyn and Grants case 244 p Boyton and Andrews case 259 p Bunbury and Birds case 265 p Bradstocks case 288 p Bagshaw and Earl of Shrewsburies case 292 p Bishop and Harecourts case 295 p Byne and Playns case 303 p Blaygrave and Woods case 309 p Bownsel and Tylers case 314 p Beal and Tailors case 320 p Blunt and Whitacres case 327 p Bishop of Lincolns and Cowpers case 336 p Bennet and Frenches case 339 p Bracebridges case 355 p Bishop and Redmans case 375 p Baskervile and Bishop of Herefords case 379 p Bedingfield and Bedingfeilds case 385 p Burgess and Fosters case 395 p Barret and Kings case 412 p Bighton and Sawls case 428 p Bond and Richardsons case 432 p Beares case 440 p Beal and Carters case 462 p Bond and Bails case 464 p Burchets case 466 p Birchleys case 466 p C. CAters case 12 p Cham and Dovers case 19 p Cordel and Gibbons case 22 p Carters case 55 p Case of the Mannor of Wadhurst 70 p Cooke and Songats case 137 p Sir Julius Caesars case 144 p Cibelt and Hills case 149 p Charnock and Worsleys case 157 p Carter and Booths case 170 p Colborn and Mixtons case 176 p Chamberlain and Thorps case 178 p Chamberlain and Stantons case 193 p Carie and Dennis case 201 p Chapman and Hursts case 208 p Lord Conniers case 228 p Creckmere and Patersons case 242 p Churchwardens of Fetherstons case 248 p Cheney and Langleys case 252 p Cockshall and the Mayor of Barltons case 269 p Collman and Sir Hugh Portmans case 273 p Cranmers case 279 p Castle and Ouldmans case 282 p Cottons case 297 p Cheney and Smiths case 298 p Lord Cobham and Browns case 299 p Chamberlains case 302 p Cook and Huets case 317 p Cleypools case 369 p Carriton and Godburies case 372 p Caries case 380 p Cole and Friendships case 391 p Crisp and Goldings case 405 p Collet and Andrews case 417 p Carter and Cleycocks case 427 p Corbets case 434 p Crossman and Reads case 448 p Cole and Walls case 463 p Cony and Barhams case 444 p Crew and Bayles case 465 p Lord Cromwel and All Souls case 467 p Corbet and Cleers case 467 b D. DUke of Northumberlands case 27 p Dayrel and Thynns case 28 p Sir Wolston Dixies case 125 p Docton and Priests case 136 p Dellabay and Hassalls case 167 p Dorrington and Dorringtons case 179 p Lord Dudley and Lacies case 195 p Sir Ed. Dyers case 203 p Degory and Roes case 211 p Dean and Cannons of Windsors case 228 p Dove and Williots case 243 p Dethicks case 337 p Danvers case 180 p Lord Darcie and Sharps case 381 p Lord Dacres case 394 p Darsley and Nevills case 414 p Dennis and Saint Johns case 453 p Dormers case 132 p E. EStops case 33 p Earl of Warwick and Lord Barckleys case 68 p Earl of Arundel and L. Dacres case 117 p English and Pellitories case 169 p Earl of Lincolns case 238 p Edwards and Tedburies case 268 p Erbery and Lattons case 270 p Estons case 341 p Englishes case 157 p Earl of Leicester Tanfields case 377 p Elmes and Medcalfs case 426 p Evesq of Coventry and Liechfields case 427 p F. FOrman and Bohans case 18 p Floud and Sir John Perrots case 35 p Fullwood and Fullwords case 74 p Fordleys case 88 p Ferrers case 146 p Foster and Thorns case 173 p Sir George Farmer and Brooks case 199 p Fox and Collins case 205 p Fisher and Boys case 228 p Fish and Browns case 253 p Fenwick and Mitfords case 256 p Foster and Pitfalls case 347 p Ferrand and Ramseis case 362 p Flemings case 403 p Fabian and Windsors case 425 p Frend and Batts case 450 p Foster and Wilsons case 458 p G. GIlbert and Sir George Harts case 5 p Gray and Jets case 63 p Gamock and Cliffes case 78 p Gill and Harewoods case 80 p Gellibrand and Harts case 83 p Gunerston and Hutchers case 103 p Gerings case 107 p Glosse and Haymans case 110 p Sir Thomas Greshams case 113 p Gates and Holliwels case 130 p Lord Greys case 156 p Gage and Paxtins case 158 p Gatefould and Penns case 174 p Gomersal and Bishops case 175 p Sir Henry Goodiers case 185 p Geslin and Warburtons case 187 p Gibbs case 225 p The Gild of Bostons case 228 p Galliard and Archers case 267 p Greenwood and Weldens case 294 p Green and Edwards case 300 p Gawton and Lord Dacres case 301 p Gore and Dawbneys case 316 p Greenliff and Bakers case 317 p Green and Pendletons case 318 p Guilfords case 322 p Gallery and Bunburies case 328 p Geofries and Coites case 329 p Greens case 348 p Gibbs and Rowleys case 367 p Gerrard and Sherringtons case 388 p Gravenor and Masseys case 398 p Glanvil and Mallaries case 421 p Gillam and Lovelaces case 435 p Greeves case 436 p Green and Hundred of Bucklechurches case 456 p H. HAddons case 10 p Harvy and Hervyes case 26 p Hungerfords case 36 p Higham and Harewoods case 42 p Henly and Broads case 53 p Hudson and Leighs case 65 p Heydons case 96 p Hawkes and Mollineux case 100 p Hamington and Ryders case 120 p Howel and Trivanians case 121 p Hudsons case 121 p Higham and Reynolds case 123 p Haithsome and Harvies case 166 p Hoskins and Jones case 177 p Hunt and Gilborns case 182 p Hedd and Challoners case 204 p Hayes and Allens case 210 p Hawkins and Lawses case 214 p Huson and Webbs case 229 p Hambleden and Hambledens case 230 p Hauxwood and Husbands case 249 p Howe and Connys case 254 p Holland and Franklyns case 257 p Hill and Hills case 321 p Hill and Lockhams case 331 p Harvy and Thomas case 332 p Hartopps case 342 p Henningham Windhams case 346 p Hales case 374 p Huddy and Fishers case 377 p Hollingshed and Kings case 384 p Harris and Bakers case 417 p Hare and Okeleys case 439 p Hudsons and Leighs case 447 p Hoskins and Stapers case 468 p I. SIr Henry Isleys case 102 p Jerome and Neales case 143 p Jerome and Knights case 146 p Jennings and Winches case 214 p Ivory and Fryers case 216 p Isleys case 264 p. James case 264 p Jones case 281 p Jennings and Gowers case 311 p Jeofry and Coites case 329 p Johnson and Bellamies case 330 p Jennor and Hardeys case 383 p K. KEmpe and Hollingborns case 25 p Kimpton and Bellamies case 56 p Knights case 37 p Kinters case 59 p Kempe and Carters case 70 p Keys and Stedds case 105 p Knight and Footmans case 124 p Kinnersly and Smarts case 206 p Kirdler and Leversages case 209 p Kimpton and Dawbennets case 227 p Knight and Savages case 260 p Kirby and Eccles case 261 p Kensam and Redings case 334 p Kellet and Kellets case 355 p Kempton and Coopers case 437 p Knightly and Spencers case 467 p L. LEndel
and Pinfolds case 24 p Lodge and Luddingtons case 26 p Lassels case 28 p Lepur and Wrothes case 44 p Lewknor and Fords case 62 p Leigh and Hamwers case 67 p Liveseys case 106 p Littleton and Perns case 186 p Lee and Maddox case 235 p L. Lumley and Fords case 263 p Long and Hemmings case 289 p Lancasters case 291 p Linacres case 313 p Lancaster and Lucas case 316 p Lacies case 363 p Lodges case 376 p Lees case 387 p Lee and Curetons case 412 p Lacy and Fishers case 413 p Loves case 421 p Lemons case 427 p Leigh and Okeleys case 438 p M. MOore and Farrands case 6 p Manies case 7 p Marquess of Winchesters case 18 p Marsh and Smiths case 33 p Molleneux case 39 p Marquess of Northamptons case 44 p Mascals case 82 p Moile and Earl of Warwicks case 85 p Martin and Stedds case 111 p Mounson and Wests case 112 p Mitchel and Hides case 119 p Lord Mountioys case 157 p Musket and Coles case 168 p Mebb and Friends case 178 p Mounson and Wests case 181 p Lady Mallories case 189 p Mallet and Ferrers case 191 p Marsh and Astreys case 203 p Marriot and Pascalls case 228 p Mustid and Hoppers case 241 p Matthew and Hassals case 245 p Mills and Snowbals case 287 p Matheson and Trotts case 293 p Martingale and Andrews case 319 p L. Mortdant and Vaux case 330 p Mordants case 207 p Manning and Andrews case 345 p Maunser and Annesleys case 374 p Mayor of Lynns case 404 p Maidwel and Andrews case 429 p Marshes case 433 p Mitchel and Hares case 452 p Marshes case 459 p Marbery and Worrels case 466 p N. LOrd Norris and Braybrooks case 28 p Nash and Edwards case 155 p Nash and Mollins case 325 p Norwood and Dennis case 455 p O. OLdfeild and Wilmers case 194 p Osbon and Kirtons case 258 p Offley and Sattingstons case 321 p Ognel and Underwoods case 339 p Ognel and Sheriffs of London 374 p Oglethorp and Hides case 430 p P. LOrd Paget and Sir Walter Ashtons case 4 p Lord Paget and the Bishop of Coventries case 9 p Punsany and Leaders case 14 p Parmort and Griffins case 47 p Partridge and Patridges case 48 p Pendleton and Gunstons case 60 p Potter and Steddals case 66 p Parson of Facknams case 67 p Prowse and Caries case 131 p Pearl and Edwards case 134 p Pawlet and Lawrences case 138 p Peirce and Leversuches case 163 p Page and Jordans case 165 p Piers and Hoes case 171 p Pierce and Howes case 179 p Palmer and Smalebrooks case 180 p Provost of Queens Colledge case 183 p Park and Mosses case 200 p Pexhals case 156 p Palmer and Thorps case 239 p Palmer and Knowles case 247 p Petty and Trivilians case 276 p Pagets case 284 p Palmes and Bishop of Peterboroughs case 312 p Pet and Basdens case 318 p Page and Fawcets case 328 p Pendleton and Haw's case 175 p Pawley and Siers case 370 p Penruddock and Newmans case 378 p Perry and Alleins case 420 p Pett and Callys case 422 p Piggot and Harringtons case 445 p Q. QUeen and Lord Vaux case 49 p Queen and the Bishop of Londons case 50 p Queen and Middletons case 58 p Queen and Lewes and Greens case 162 p Queen and Bishop of Canterburies case 190 p Queen and Buckberds case 207 p Queen and the Bishop of Canterburie and Fanes case 280 p Queen and the Bishop of Yorks Case 307 p Queen and Braybrooks case 364 p Queen and the Dean of Christchurch case 399 p R. REaresby and Rearesbies case 16 p Richards and Bertletts case 23 p Rumney and Eves case 128 p Rivet and Rivets case 159 p Read and Nashes case 205 p Read and Johnsons case 217 p Rockwood and Rockwoods case 275 p Rigden and Palmers case 277 p Russel and Pratts case 278 p Randal and Browns case 339 p Russell and Handfords case 368 p Rotchesters case 380 p Rolston and Chambers case 382 p Ruddoll and Millers case 409 p Rawlins case 416 p Rider and Cobbams case 447 p S. STonely and Bracebridges case 10 p Sutton and Dowses case 13 p Smith and Peazes case 21 p Stacie and Carters case 30 p Lord Sturtons case 33 p Searches case 93 p Smith and Kirfoots case 97 p Savell and Woods case 122 p Sulhard and Everets case 126 p Stebbs and Goodlacks case 127 p Saint John and Pettits case 129 p Staffords case 151 p Samford and Wards case 152 p Stamp and Hutchins case 153 p Stone and Withypolls case 156 p Smith and Smiths case 159 p Stretton and Taylors case 161 p Skipwiths case 163 p Severen and Clarks case 164 p Leonard Sturtons case 171 p Stransham and Medcalfes case 177 p Stephens case 188 p Smith and Bustards case 198 p Schollers of All-souls and Tamworths case 212 p Seaman and Brownings case 223 p Slywright and Pages case 231 p Same 's and Paines case 233 p Salloway and Lusons case 236 p Smith and Lanes case 237 p Sherly and Albanies case 240 p Sweeper and Randalls case 250 p Slugge and the Bishop of Landaffs case 255 p Smith and Edmunds case 291 p Steed and Courtneys case 265 p Smalwood and the Bishop of Lichfeilds case 284 p Sutton and Hallowaies case 286 p Somes case 297 p Sheldens case 326 p Sly and Mordants case 333 p Strait and Braggs case 338 p Sherewood and Nonnes case 339 p Sybthorp and Turners case 206 p Smith and Hitchcocks case 340 p Shaw and Nortons case 362 p Lord Staffords case 396 p Short and Shorts case 389 p Southcotes case 395 p Symms and VVestcotes case 410 p Stile and Millers case 411 p Scovel and Cavells case 446 p Stevensons case 457 p Sovers case 461 p Sutton and Danses case 467 p T. TReshams case 11 p Tringe and Lewes case 20 p Taylor and Moores case 41 p Troublefield and Troublefields case 46 p Tacker and Elmers case 90 p Toff and Tompkins case 172 p Tempest and Mallets case 246 p Thetford and Thetfords case 274 p Thetford and Thetfords case 283 p Tillocks and Holts case 323 p Trupenies case 330 p Thomas and VVards case 331 p Tedcastel and Halliwells case 344 p Tooly and Prestons case 406 p Trivilians case 414 p Tracy and Ives case 431 p Trussels case 460 p U. VPton and Wells case 202 p Vandrink and Archers case 304 p Vaughan and Alcocks case 305 p Underhil and Savoyes case 442 p W. WAde and Bemboes case 3 p Withy and Sanders case 29 p Wates and Jourdains case 37 p Watkins and Astwichs case 43 p Wilshalge and Davidges case 52 p VVood and Fosters case 54 p VValker and Nevills case 71 p Wiseman and Wisemans case 73 p Wakefords case 135 p VVilks and Prestons case 140 p VVheeler and Twogoods case 160 p VVaynemans case 172 p VVignal and Brookes case 177 p VVooden and Hazells case 184 p VVard and Blunts case
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
K. his Wife the Tenant demanded Iudgment of the Writ upon special shatter and concluded so is the said K. our Wife and not the Wife of A. So in a Cui invita by B. and C. his Wife the Tenant pleaded never accoupled in loyal matrimony the same is no answer to the Wife for she demanded in her own right and if he who aliened was her Husband in possession the Wife could not have other Action for Assize doth not lie because he was her Husband in fact at the said time in possession And see also 50 E. 3. 20. adjudged according to the opinion of Belknap And see also 39 E. 3. As to the marriage in right as the case in question is for upon such marriage if the Husband be murdred before disagreement the Wife shall have an Appeal of Murder and a Writ of Dower so where Appeal is brought of the Rape of his Wife although she be his Wife but in possession and not in right 11 H. 4. 13. by Hulls 168. and by Littleton if the Wife be of the age but of nine years she shall have Dower which see also 35 H. 6. and yet Dower shall never accrue but in case of marriage in right for there never coupled in marriage is a good Plea See 12 R. 2. Dower 54. In Dower the Tenant pleaded that the Husband at the time of his death was but at the age of 10 years and the Demandant now but 11 years and yet Iudgment was given for the Demandant for by Charleton the same was a marriage in right until disagreement See 22 Eliz. Dyer 369. A woman at full age marrieth a Husband of 12 years who dieth before the age of consent the same is a good marriage and so ought to be certified by the Bishop and 7 H. 6. 11. by Newton a woman married within age of consent may bring an Action as a feme sole and the Writ did abate Stamford Prerogat 27. 19 E. 3. Judgment 123. In a Writ of Ward the Iury found that the Infant was of the age of 10 years and no more but they did not know whether she was married or not but de bene esse if she be married assess damages one hundred pounds and if not five pounds upon which it appeareth that marriage at such an age is such a marriage upon which the Lord shall recover damages See 13 H. 3. gard 148. such marriage in the life of the Ancestor infra annos nubiles if there be no disagreement shall bind the King And after the death of the Ancestor the heir shall remain in custodia Domini Regis usque ad aetatem ut consentiat vel dissentiat 45 E. 3. 16. In a Writ of Ward the Infant was found of the age of 12 years and the Iurors gave damages 300 marks if he were married and 27 H. 6. gard 118. 47 E. 3. Br. Trespass 420. and Fitz. Action upon the Statute 37. Trespass de muliere abducta cum bonis viri where the wife is within the age of consent and if I be bounden unto another in an Obligation upon condition to pay a sum of mony upon the marriage day of I S. now if I S. be married within the age of consent I am bound to pay the mony the same day although afterwards the parties do dissent and the Wife after such marriage shall be received in a Plea real upon the Default of her Husband and the words si dicta Eliz ad id condescendere agreare vellet are to be understood of an agreement at the time of the marriage and here the time is limited for the solemnization of the marriage scil at or before they shall have accomplished their several ages of 21 years makes the matter clear For it is in the election of Hanmer the Father to procure this marriage scil that his Son shall take to Wife the said Elizabeth at which of the two times he will scil at or before c. to the marriage before c. is as effectual in respect of the performance of this condition as if the marriage had been had after and as the case is the condition could not be better performed for if the marriage had been stayed till after 14 years c. although the marriage doth not ensue yet the Obligation had been forfeited and that the marriage be solemnized just at the age of both of 14 years was impossible for Thomas Hanmer was the elder by 2 years than the said Elizabeth and therfore they ought to be married at such time which might stand with the condition and the same is done accordingly And as to that which hath been objected That now by disagreement the marriage is determined we ought to observe that Hanmer was bounden for the performance of the Covenant and that his son and heir apparent maritaret in uxorem duceret dictam Eliz. ud vel ante c. which is executed accordingly and he is not bounden for the continuance of the said marriage but the continuance of the same ought to be left to the law which giveth to the parties liberty to continue the marriage by agreement or to dissolve it by disagreement And therefore if I am bounden to you that I S. who in truth is an Infant shall levy a Fine before such a day which is done accordingly and afterwards the same is reversed by Error yet notwithstanding the condition is performed c. and afterwards Iudgment was given against the Plaintiff LXVIII The Earl of Warwick and the Lord Barkleys Case Pasch 29 Eliz. In the Common Pleas. AMbrose Earl of Warwick and Robert Earl of Leicester brought a Writ of Partition against the Lord Barkley Partition Challenge in which the parties pleaded to issue And now at the day of the Enquest the Defendant did challenge that in the whole Pannel there were but two Hundreders and at the first it was doubted by the Court if upon the Statute of 27 Eliz. cap. 6. by which it is Enacted That no further challenge for the Hundred shall be admitted if two sufficient Hundreders do appear the Enquest shall be taken But at length the whole Court was clear of opinion that the said Statute did extend but to personal Actions but this Action of Partition is a real Action and Summons and severance lieth in it but not process of outlawry and therefore here four Hundreders ought to be returned so in an Action of Wast although it be in the personalty and therefore the Council of the Plaintiffs prayed a Tales LXIX The Archbishop of York and Mortons Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assize of Novel disseisin against one Morton before the Iustices of Assize 3 Len. 159. Error upon recovery in Assize upon which Iudgment Morton brought a Writ of Error before the Iustices of the Common Pleas and after many motions at the bar it was adjudged that a Writ of Error upon the said Iudgment
depending the Writ shall not abate it vid. 21 H. 6. 8. 2 R. 3. 20. Another matter was moved by Anderson because the Defendant had pleaded a Recovery by confession had against her without Averment that it was a true Debt in which Case Covin is presumed Windham and Periam were of opinion that the matter of Covin ought to come in on the part of the Plaintiff which Anderson denyed vid. 9 E. 4. 13 14. 33. tâ—e Cardinalls Case XCII Basset and Kerns Case Roll. Tit. Election Debt by Executors 1 Cro. 819 In Communi Banco Intrat Mich. 26 27 Eliz. Rot. 12. BAsset the Executor of Moris Sheppheard brought debt upon a bond against Kerne the Case was That Kerne was bound to Moris in a Obligation upon Condition that the said Kerne should pay to the said Morris his Executors 1 Roll. 446. Tit. Condition c. at the choice and election of the said Morris within a month after the death of the Lady Kerne thirty pounds or twenty Kine Election to which the Defendant pleaded that the Plaintiff within the month after the death c. did not make any choice or election upon which the Plaintiff did demur in Law And the Court was clear of opinion that it was a good Plea in Bar for the Obligor is not bounden to make a tender of both viz. of the mony and the Riâ—e but the Obligee himself is bounden at his peril to make election within the time limited As if I be bounden to you to make unto you such further assurance within such a time by Fine or Feoffment as you shall chuse it behoveth you to make election of your assurance Fine or Feoffment and in the principal Case the election of the Plaintiff ought to precede the tender of the Defendant vid. the Lord Lisles Case 18 E. 4. 15. 17. 20. 21. Where the Defendant was bound to the said Lord to shew his Evidences touching such a House to the said Lord or his Council the election was to the Defendant to whom he would shew them and there by Brian if I be bound to you to marry your Daughter or to go to York on your Businesses upon request before you require me to marry your Daughter I may do it or go to York which Coke granted vid. 13 E. 4. 4. Where the condition is in the disjunctive before the day of performance the Election is to the Defendant but if at the day he make default the Election is to the Obligee vid. 9 E. 4. 36 37. And by Windham if I be bound unto you in an Obligation of ten pounds to pay to you such a day ten pounds in Gold or Silver if you do not make your election before the day yet the duty remains payable for the thing to be paid is parcel of the penalty quod fuit concessum And as to the principal Case the Court was clear of opinion that upon this matter the Plaintiff should be barred See before this Term Forteleyes Case XCIII Searches Case Mich. 29 30 Eliz. In Communi Banco Antea 68. Habeas Corpus A Habeas Corpus issued forth out of the Court of Common Pleas to the Steward and Marshal of the House c. for one Wil. Search which was returned in this manner viz. quod Domina Regina per litteras suas Patentes suscepit in protectionem suam regiam Johannem Mabbe and his sureties and of her further grace by the said Letters voluit that if any person should arrest or cause to be arrested the said John Mabbe or any of his sureties that then the Marshal of her House or his lawful Deputy might arrest every such person and detain them in Prison until such person should answer before the Privy Council for the contempt And that the said William Search caused one John Preston one of the said sureties of the said John Mabbe to be arrested c. And upon that return the said William Search was discharged And also because that after the said discharge the parties caused the said William Search to be arrested again for the same cause that is by colour of the said protection An Attachment was granted against them Note that the same Term Mich. 29 30 Eliz. Another Habeas Corpus was directed to the Steward and Marshal of the Marshalsey for one Howel Habeas Corpus who made return that the said Howel was committed to his custody per mandatum Francisci Walsingham Militis Principalis Secretarij unius de privato concilio Dominae Reginae and that return was by the Court holden insufficient because the cause upon which he was committed was not set down in the return and therefore day was given to amend the return and now they returned the Writ in this manner ss infra nominatus Johannes Howel commissus fuit c. ex sententia mandato totius concilii privati Dominae Reginae Ita quod corpus ejus habere non possumus c. And that return was also holden by the Court to be insufficient for by whatsoever person or by what means soever he was committed the conclusion of the return ought to be Corpus tamen ejus paratum habeo and if it shall seem good to the Court that the Prisoner shall have his Priviledge and shall be dismis't he shall be discharged but if not then he shall be remanded And the Court took a difference where one is committed by one of the Privy Council for in such case the cause of the committing ought to be set down in the return But contrary where the party is committed by the whole Council there no cause need to be alleadged XCV Bret and Audars Case Mich. 29 30 Eliz. In Communi Banco BRet brought Debt upon an Obligation against Audar Debt upon a Bond to perform Award Owen 7. the Condition of which Obligation was that the Defendant should stand to the Award c. And the Arbitrator awarded that the Defendant should pay unto the Plaintiff ten pounds without naming day or place And as to that the Defendant pleaded that he was always ready and yet is c. without shewing any tender And it was moved That although that would have been a good Plea in debt upon an Arbitrament as the Case is 7 H. 4. 97. See 21 E. 4. 40 41 42. Yet now by the Obligation and the Condition of it the sum is payable in another manner than it was before see the pleading of the Case 21 E. 4. In Debt upon an Obligation to perform the Award That the Award was made between the Terms of Pasch and Trinity and he the eighth of September after tendred the twenty pounds and the Plaintiff refused it And the Lord Anderson put a difference between the Case in 22 H. 6. 57. Tender and the Case at the Bar for in our Case the Obligation doth precede the duty which accrueth by the Award subsequent but in the former Case the duty did precede
Plaintiff for certain Beasts which he wrongfully took from the Plaintiff that then c. And he said in facto That the said I. S. had stolen the said Beasts from the Plaintiff Condition against Law. and thereof he was endicted c. and so the condition being against the Law the Obligation was void upon which the Plaintiff did demurr in Law. And it was argued by the whole Court That where the condition of an Obligation shall be said against the Law and therefore the Obligation void the same ought to be intended where the condition is expresly against the Law in express words and in terminis terminantibus Post 103. and not for matter out of the condition as it is in this case And Iudgment was given for the Plaintiff C. Hawks against Mollineux Mich. 29 30 Eliz. In Communi Banco IN a Replevin by Hawks against Mollineux who avowed for Damage-fesant The Plaintiff in Bar of the Avowry pleaded that Sir Gervase Paston Knight was seised of a Messuage and twenty Acres of Land And that always those whose estate Repleviâ— Yelv. 185. Prescription c. have used to have Common in the place where c. for all their Cattel commonable in this manner viz. If the said Land be sowed by assent of the Commoner then no Common until the Corn be mowed and when the Corn is mowed then Common until the Land shall be sowed again by assent of the Commoners And this Prescription was found by Verdict and exception was taken to this prescription because against common right so as a man cannot sow his Land without the leave of another But the exception was disallowed by the Court for the prescription was holden to be good by the whole Court for by the Law of the Land the Owner of the Land cannot plow the Land where another hath Common but here is a benefit to each party as well for the Owner of the Land against the Commoner as for the Commoner against the Tenant of the Land for each of them hath a qualified Interest in the Land. CI. Baldwin and Cocks Case Intr. Pasch 29 Eliz. Rot. 1410. In Communi Banco Replevin Owen 52. Post 225. 1 Inst 225. 2. BAldwin was Plaintiff in a Replevin against Cocks and upon the pleading the Case appeared to be this That Sir Richard Wayneman was seised of the place where c. and leased the same to one Truepeny and one Eliz. Reade for term of 21 years if the said Truepeny and Eliz. or any child or children betwixt them begotten should live so long Eliz. within the term died without issue If now the term for 21 years be determined was the Question And the Lord Anderson conceived that the estate for years is not determined by the death of Elizabeth And it was argued by Shuttleworth Serjeant that upon the matter the term is determined And he put the Case of the Lord Bray 3 Eliz. Dyer 190. Where the Lord Bray sold unto four great Lords the marriage of his Son and Heir to the intent to be married at the appointment and nomination of the said Lords the Lord Bray died one of the said Lords before any marriage 5 Co. 9 1 Brown. 31. 46 47. 80. 101. 2 Br. 83. 148. or appointment or nomination died the Son is married by the appointment c. of the surviving Lords That marriage is not within the intent of the Covenant and adjudged that upon that marrriage no use shall accrue And also he cited this Case adjudged in the Kings Bench. The administration is committed to one durante minore aetaâ—e of two Infants one of them becomes of full age the power of the Administration is determined which Walmesley Serjeant granted for it is but an authority but here in the Case at Bar is a matter of interest And by Anderson all the construction of this lease and grant rests upon this point if this word Or either shall be taken as disjunctive as it is in its nature or as a conjunctive and if it be taken as a disjunctive if it make the whole sentence in the disjunctive as if the limitation had been if the Husband or Wife or any Child c. And Fenner put this Case out of 17 E. 3. as he cited it Land is given to I. S. in Fee so long as A. B. hath issue of his body A. B. dieth without issue his Wife priviment enâ—â—ent Now the estate is determined and upon birth of the issue after shall not revive which Rhodes and Anderson denied for in many Cases the Law shall respect the existency of the child in the mothers belly And see 7 Eliz. Plow 289. where a Copulative shall be taken in the disjunctive as a covenant with B. to make a lease for years of such Lands to the said B. and his Assigns Exposition of words in deeds 244. Post 251. 1 Roll. 444. the same shall be construed or his Assigns And it was clearly agreed by the other parties that if the words had been If Truepeny Elizabeth or any child or children c. so long c. upon the death of any of them the interest is determined And by Rhodes Periam and Windham in the principal Case the lease shall endure as long as any of the persons named in the Proviso shall live and so seemed to be the meaning of the parties And Anderson haesitavit in the words of the limitation i. the Habendum to the said Truepeny and Eliz. for 21 years a festo Sancti Johannis Baptist post terminum annorum the expiration of a former term if the said Truepeny and Elizabeth or any child c. And he conceived that the limitation did go to the commencement of the lease only and not to the expiration or determination as if the lease should not begin if they all were not alive at the commencement of the lease And all the other Iustices were clear of the contrary opinion for by them this limitation shall go and shall be referred to the determination of the Lease and not to the commencement of it Anderson If any cause should be for which the lease should endure untill the years be encurred notwithstanding the death of the Husband or Wife it was because the lease was intended a common advancement to both for it should be in vain to name the Wife in the lease if the lease should cease by the death of the Husband And afterwards after many arguments on both sides it was adjudged that by the death of Elizabeth the lease was not determined for the disjunctive before Child makes all the limitation in the disjunctive CII Zouch and Bamfields Case Mich. 29 30 Eliz. In Communi Banco THe Case between the Lord Zouch and Bamfield was now argued by the Iustices And Rhodes the puisne Iustice argued 1 And. 165. 3 Co. 88. that the Lord Zouch the Demandant should be barred Four Exceptions have been taken to the bar First because it is not shewed in
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
word Children a good name of purchase But the whole Court was against that conceit for these words in the case At the Assignment of Friendship are not void but shew what person should take if the intent of the party should take effect i. he who the Father by Assignment should enable for no Child shall take but he who the Father shall assign that is part of the contract and although by such Assignment no title accrues to the Child assigned yet without Assignment no Child is capable for by the Lease the Father hath such Liberty that he may assign what Child he will And by Wray If the words of the Lease had been at the assignment of the Father within one month and the Father surcease his month Antea 275. the Interest should not vest in any of the Children And by Ayliff Iustice If the words of the Lease had been to the Husband and wife and their Son John where his name is William nothing should vest And peradventure in this case at the Bar if the Father had assigned his Son then born and had assigned him before or at the time of the Lease i. the delivery of the Lease it had been well enough Note that this Action was brought by Cole Lessee of the Son of the Husband and VVife born at the time of the Lease made And afterwards Wray with the assent of all the rest of the Iustices gave Iudgment that the Plaintiff Nihil capiat per Billam CCCXCII Pasch 26 Eliz. In the Kings Bench. Execution where joynt where several NOte It was agreed by the whole Court and affirmed by the Clerks That if Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath judgment to recover that a joynt Execution ought to be sued against them both But if the suit were by one Original and several Praecipes execution might be sued against any of them CCCXCIII Trin. 26 Eliz. In the Kings Bench. Replevin IN a Replevin The Defendant doth avow for Damage Feasant and shewed that the Lady Jermingham was seised of such a Mannor whereof c. and leased the same to the Defendant for years c. The Plaintiff said That long befor King H. 8. was seised of the said Manor and that the place where is parcel of the said Manor demised and demisable by copy c. and the said King by his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by copy in fee c. upon which it was demurred because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the Bar to the Avowry ought to have concluded and so was seised by the custom until the Avowant praetextu of the said Term for years entred And so it was adjudged CCCXCIV The Lord Dacres Case Trin. 26. Eliz. In the Kings Bench. Ante 227. Stewardship of a Manor Office of Trust Grants per Copy Deputy Steward IN Ejectione firmae the case was That the Lord Dacres was seised of the Manor of Eversham and that I.S. held the place where of the said Manor by copy for term of his life and the said Lord granted the Stewardship of the said Manor to the now Marquess of Winchester who appointed one Chedle to be his Deputy to keep a court ad traden dum the said Lands I.S. being now dead to one Wilkins by copy for life afterwards the said Chedle commanded one Hardy his Servant to keep the said court and grant the said Land by copy ut supra which was done accordingly the copy was entred and the Lord Dacres subsigned it confirmed it It was further found That Hardy had many times kept the said court both before and after and that the custom of the Manor was that the Steward of the said Manor for the time being or his Deputy might take Surrenders 1 Co. 48. 49. and grant estates by copy And if this estate so granted by Hardy were good or not was the question because by the Servant of the Deputy whereas the custom found did not extend further than the Deputy It was argued that the estate granted ut supra was void for a Deputy cannot transfer his authority over for it is an office of trust See 39 H. 6. 33 34. 14 E. 4. 1. and 6 Eliz. it was adjudged That the Duke of Somerset had divers Stewards of his Lands and they in the name of the said Duke made diverse Leases of the Lands of the said Duke rendring Rent and the Duke afterwards assented to the said Leases and received the Rents reserved upon them and yet after the death of the said Duke the Earl of Hertford his Son and Heir avoided them So here the assent and the subsignment of the copy by the Lord Dacres doth not give any strength to the copy which was void at the beginning against which it was said That to take a Surrender and to grant an Estate by copy is not any judicial Act but meerly an Act of service and no matter of trust is transferred to Hardy for trust is reposed in him who may deceive which can't be in our Case for here is an express commandment which if Hardy transgress it is absolute void for nothing is left to his discretion And the admitting of a Copy-holder is not any judicial Act for there need not be any of the Suitors there who are the Iudges And such a Court may be holden out of the Precinct of the Manor for no Pleas are holden which was concessum per totam Curiam And by Ayliff Iustice If the Lord of such a Manor makes a Feoffment of a parcel of his Manor which is holden by copy for life and afterwards the Copy-holder dyeth although now the Lord hath not any Court yet the Feoffee may grant over the Land by copy again And the whole Court was clear of opinion That the grant for the manner of it was good especially because the Lord Dacres agreed to it And Iudgment was given accordingly CCCXCV Burgesse and Fosters Case Trin. 26. Eliz. In the Kings Bench. IN Ejectione firmae the case was 1 Cro. 48 49. That the Dean and Chapter of Ely were seised of the Manor of Sutton whereof the place where c. is parcel demised and demisable by copy according to the custom and by their Deed granted the Stewardship of the said Manor to one Adams to execute the said office per se vel legitimum suum Deputatum eis acceptabilem Surrenders Afterwards Adams made a Letter of Deputation to one Mariot ad capiendum unum sursum redditionem of one I. W. and I. his Wife and to examine the said I. aforesaid ea intentione that the said I.W. and A. might take back an estate for their lives the Remainder over to one John Buck in Fee Note the Surrender ought be de duobus Messuagiis Mariot took two several