THE FOURTH PART OF THE REPORTS OF SEVERAL CASES OF LAW Argued and Adjudged in the several COURTS at WESTMINSTER In the Time of the late Queen ELIZABETHS Reign Collected by a Learned Professor of the Law WILLIAM LEONARD Esq Then of the Honourable Society of GRAYES-INN PUBLISHED BY WILLIAM HVGHES of Grayes-Inn Esq With TABLES of the Names of the CASES and of the Matters contained in the BOOK LONDON Printed by the Assigns of Richard and Edward Atkins Esquires For Henry Herringman Ben. Griffin Charles Harper and Samuel Keble MDCLXXXVII Cum Gratia Privilegio Regiae Majestatis THE NAMES OF THE Principal Cases Reported in this BOOK A. ACton and Pitcher Pag. 51 Anderson and Heywood 30 Applethwaite and Nertley 56 The Scholars of All Souls and Tamworth 178 Archbishop of York's case 168 214 Arden and Goads 243 Ashpoole and the Inhabitants of Weringham 218 Lord Audleys case 166 210 B. BAbingtons case 123 Bakers case 122 Barkers case 60 Barlow and Pearson 102 Barnard and Trusser 186 Barton and Edmund 5 Bartace and Hind 185 Baspoells case 35 Baxter and Bartlet 156 Bedfield and Rouse 198 Bedingfields case 89 Beechers case 190 Bell and Langley 230 Bettuans case 22 Bills Case 238 Bingham and Squire 61 Bishop of Rochesters Case 23 Bishop of Londons Case 80 214 Bishop of Exeter and Sir Henry Wallop 247 Blaby and Estwick 15 Blithe and Colegate 88 Bluets Case 18 Bluet and Cooke 241 Box and Mounslowe 230 Brookhouses Case 3 Brasiers Case 104 Broome and St. Johns Case 96 Browne and Stulsbye 43 Browne and Peters 144 Browne and Tucker 241 Buckhursts Case 2 Bulwer and Smith 52 Burgess and Foster 215 Bussey and Milfield 61 Butler and Lightfoot 9 C. CAnnon and Osborn 49 Capells Case 150 Chomley and Conges 88 Christian and Adams 54 Clemp and Clemp 8 Clark and Kempton 91 Clarks Case 11 Sir Gervaise Cliftons Case 199 Clinton and Bridges 79 Cook and Sengate 31 Cooks Case 245 Collier and Collier 194 Connies Case 37 Connies Case 20 Lord Cromwell and Townsend 203 Crane and Parkins 249 Cursons Case 10 Curtis's Case 51 Corpus Christi Colledge Case 223 D. LOrd Dacres and Fines 97 Daubney and Gores 194 Dean and Chapter of Christ-Church 190 Doylies Case 101 Dolemans Case 86 Doughty and Prideaux 101 Dowhall and Catesby 113 Duke and Smith 238 Duffams Case 86 Duncombs Case 293 Dutchess of Suffolks Case 196 E. EArl of Derby's Case 42 Earl of Northumberlands Case 91 Earl of Huntington and the Lord Mountjoyes case 147 Earl of Rutland and Spencer 243 Earl of Arundel and Bradstock 186 Edwards and Watton 240 Egertons case 249 Englefields case 135 169 F. FItch and Peirce 121 Foles and Griffin 94 Frice and Foster 14 Fullers case 4 Fullers case 208 G. GArdians of the Monastery of Otleries case 117 Germies case 82 Germin and Ascott 83 Gerrards case 7 Sir Henry Gilfords case 156 Glascocks case 238 Glover and Archer 247 Godboults case 33 Goram and Fowkes 150 Goore and Winkfield 208 Greens case 85 Greindall and Archbishop of Yorks case 182 Grey and Edwards 110 Grenden and Albany's case 133 Grubhams case 246 H. HAltens case 8 184 Harris and Whiting 91 Harris and Coverley 98 Harris's case 112 Harvy and Harvy 12 Harvy and Thomas 15 Haselwoods case 114 Hawkins and Chapman 9 Hern and Crow 122 Hegger and Helston 111 Hide and Hill. 110 Higham and Cook. 144 Hills case 187 Hinds case 21 Sir Baptist Hix and Fleetwood 248 Holland and Hopkins 8 Hobbies case 5 Hore and Bridleworth 15 Hoo and Hoo. 78 Sir William Hollis's Case 119 Hollingshead and King. 182 Houtiers case 106 Hoven and Gerrard ibid. Hodges case ibid. Hunt and Sim's 13 Hunt and Gonnel 24 Hungerford and Watts 181 J. JAckson and Darcy 40 Jerons case 149 Johnsons case 193 Josselin and Josselin 19 K. KEenes case 121 Sir Thomas Kemp and Windsor 41 The King and Cotton 7 39 Kirkman and Reignot 3 Knevit and Cope 59 Knightly and Knightly 102 L. LAuntons case 1 Sir Richard Lee and Arnold 27 Sir Francis Leake and Hollis 24 Lees and Lord Stafford 58 Sir Rich. Lewknors case 162 225 Limver and Ivery 68 Long and Hemoning 216 Lukes case 32 M. MAnning and Andrews 2 Mayes case 7 Mansors case 62 Megett and Davis 60 Michel and Norden 201 Milborne and the Inhabitants of Dunmore 191 Morgen and Cox. 40 Morris's case 92 The Lord Mountjoy and Barker 73 Mounjoy and Andrews 150 194 N. NEals case 96 219 Newman and Sheriff 25 Marquess of Northamtons case 17 O. OGnell and Underhill 115 Onions Case 36 Old and Cony 7 Owen and Morgan 26 93 222 P. LOrd Pagetts Case 6 Par Marquess of Northamptons Case 17 Parry and Herbert 5 Paston and Townsend 97 Pelhams Case 33 Sir William Pelham 114 123 Peake and Pollert 121 Peirs and Levesuch 48 Penhalls Case 49 Penson and Higbed 99 Pophams Case 4 Pouley and Siers 208 Prowes Case 47 Provost of Queens Colledge Case 85 President of Corpus Christi Colledge Case 223 Price and Atmore 246 Q. QUeen and Earl of Shrewsbury 19 Queen and Lord Vaux 26 Queen and Painter 32 Queen and Paine 81 Queen and Bishop of Lincoln 95 Queen and Sir John Savile 104 Queen and Faine Archbishop of Canterbury 107 Queen and Due 197 Queen and Bishop of Norwich 217 R. RAtcliff and Shirley 121 Ratcliff and Chaplain 242 Rawlins and Somerford 116 Robinsons Case 55 Sir Henry Rolls and Osborne 250 Ropers Case 47 Rowson and Browne 3 Ruithbrooke and Pusaine 16 Russels Case 24 197 Russel and Pratt 44 S. SAer and Bland 24 Sandersons Case 12 Sapland and Ridler 238 Savages Case 88 Savage and Knight 78 Lord St. John and Sir John Gray 22 Scotts Case 51 Scott and Scott 39 70 Seamar and Browning 122 Seixtbank and Peirces 85 Shrewsbury and Inhabitants c. 18 Smith and Babb 193 Spring and Lawson 77 Starkeys Case 61 Mark Stewards Case 106 Lord Stafford and Sir Rowland Haywood 55 Strangborough and Warner 3 Strangdon and Burnett 4 106 Stroads Case 40 Countess of Sussex and Wroth 65 T. TAylors Case 31 Taylors Case 22 186 209 Terrets Case 51 Thetford and Thetford 50 Townsend and Pastor 52 Trecarham and Friendship 64 Trivilians Case 195 Tutor and Norton 6 Tyrells Case 92 V. VErney and Verney 207 Vernon and Sir Tho. Savile 191 W. WAite and Cooper 207 Sir Walter Wallers Case 44 William Wallers Case 169 Walsgrave and Somerset 167 Wards Case 239 Wards Case 241 Wath and King 57 Webbs Case 110 Weshbournes Case 49 Wheelers Case 240 Willet and Wilkinson 7 Windham and Meede 96 Wingate and Sands 202 Wood and Chivers 179 Wroth and Capell 197 Y. YOung and Taylor 94 THE FOURTH PART OF THE REPORTS OF SEVERAL Excellent Cases Argued and Adjudged in the several COURTS of Law at WESTMINSTER In the time of the Late Queen Elizabeths Reign Hil. 20 Eliz. I. Launtons Case A. Is bound in an Obligation Emblements that B. shall enjoy a Lease of black Acre immediately after his death The Land
existen ' ut praefatur ad Warrantiam obligetur aut obligari debeat aut si idem Gilbertus aliquid pro nobis habeat aut dicere scivit quare Breve nostrum de Procedendo praefatae Eliz. in ea parte minime concederetur Qui quidem Gilbertus adtunc ibidem dixit quod praefat ' Tho. Norden non informavit praedict Gilbertum de aliquo per quod praedict Tristriamus in custodia nostra existen ' ullo modo obligetur ad warrantizand ' eidem nihil dixit aut dicere scivit potuit quia praedict Breve de Procedendo eidem Eliz. in ea parte concederetur Nos inde nolentes eidem Eliz. justiciam ulterius differre in hac parte Vobis Mandamus quod si coram vobis in placito praedict taliter sit processum allegat ' tunc in placito illo in redditione Judicii in eodem placito cum ea celeritate quam de jure secundum Legem Consuetudinem hujus Regni nostri Anglioe poteritis procedatis partibus praedict plenam celerem c. dicta allegatione non obstante Teste me ipsa c. Et super hoc eadem Eliz. petit Judicium Seisinam suam versus praedict Thomam Norden de tertia parte Tenementorum praedict cum pertinentiis Super quo visis c. Consideratum est c. Quod praedict Elizabetha recuperet seisinam suam versus praefatum Thomam Norden de tertia parte Tenementor ' praedictor ' Et quod idem Thomas expectet si praedict ' Tristriamus Tenementa praedict unde c. ei warrantizari debeat pro recompensatione valentiae tertiae partis praedict ' versus eundem Tristriamum ratione Warrant ' illius habend ' durant ' minore aetate sua Et donec manus dict' Dominae Reginae à possessione terrae ipsius Tristriami amoveantur Virtute Brevis istius mihi direct ' ultimo die c. habere feci infranominat ' Eliz. plenariam seisinam de tertia parte Messuagii viz. de una Aula parcell ' Messuagij praedict ac de una Camera sive Conclave in Messuagio praedict existent ' necnon de uno Solario ac de una parcell ' ambulatorij vocat ' a Gallery alia parcell ' dict' Messuagii necnon de tertia parte unius Molendini viz. de integro Molendino praedict ' per quemlibet tertium mensem quolibet anno durante vita c. occupand ' gaudend ' c. CCCXXIV Hil. 25 Eliz. In the Kings Bench. Traverse IN an Action upon the Case the Plaintiff declared upon certain Corn which came to the hands of the Defendant and that he converted it and supposed the coming to be to his hands in London The Defendant said That he was seized of certain Lands in R. in Berks and that the Plaintiff did thereof him disseise and sowed the Lands and before severance he himself re-entred and took away the Corn as was lawful for him to do absque hoc that any Corn came to his hands in London and by the Opinion of the whole Court the Traverse was holden to be good Hil. 25 Eliz. In the Common Pleas. CCCXXV Wingate and Sands Case EJectione firmae by Wingate against Sands It was moved upon Evidence That a Fine was levied and in one Term three Proclamations were made and before that the fourth Proclamation was made the Term was adjourned so as the fourth Proclamation could not be made the said Term It was agreed by the whole Court That by that adjournment the fourth Proclamation was not executed but should be supplyed the next Term in which the fifth Proclamation was to be made Trin. 29 Eliz. In the Star-Chamber CCCXXVI The Lord Cromwell and Townsends Case HEn Lord Cromwell Exhibited a Bill in the Star-Chamber against Roger Townsend Esq for that the said Townsend in an Action between James Tavernor Plaintiff and Ja. Cromwell Firmor of the said Lord Cromwell Defendant in Trespass in the favour or unlawful maintenance of the said Tavernor did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Tavernor was a Copyholder of the said Lord Cromwell and that the said Lord pretending that the said Tavernor had forfeited Copyhold caused the said Ja. Cromwell to make an Entry in the right of the said Lord upon the said Tavernor upon which Entry Tavernor brought an Action of Trespass against the said Ja. Cromwell in which Action the parties were at Issue upon the Forfeiture and before any Venire Facias issued Tavernor hearing that one Steward who was Bayliff of the Liberty under the Earl of Arundel and who ought to have made the Pannel c. was purposed to have made the said Pannel not duly viz to have retorned in the same great Gentlemen of the Country who were Lords of Manors in favour of the said Lord Cromwell That he went to the said Roger Townsend who was then one of the principal Servants and Agents of the said Earl and shewed unto him That if those great Persons and Lords of Manors be returned for the trial of the said Issue peradventure they would not so easily appear for the Expedition of the said Parties as Gentlemen of an Vnder-Condition and also many of them being Lords of Manors and having customary Tenants and therefore not indifferent to try that Issue and prayed his Order to the said Steward for the making of an indifferent Pannel Vpon which said Conference with the said Steward for the making of an indifferent Pannel and shewing unto him that in doing and making of the same there was not convenient nor any equal course to retorn Knights Esquires or Lords but rather such sufficient Persons for the greater Expedition of Iustice and Indifference of Tryal And afterwards the said Tavernor exhibited a Petition shewing all the special matter and prayed him to give order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the Earl by the said Townsend in the name of the said Tavernor upon which the said Earl referred the said Matter and the ordering of the same to three of his chiefest Agents and Counsellors viz. Dicksey Townsend and Chrell and delivered to them the Book of the Freeholdry within the said Liberty who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwell in the right of the said Lord And if that intermedling of Townsend with the Matter ut supra c. especially his conference with the Bayliff be maintenance or not was the Question And by Anderson and Wray it was said for Law That because the said Townsend was in a manner a Servant to the said Earl who had the retorn of the Writs and one of his principal Counsellors and Agents and hearing ex insinuatione of the said Tavernor the misdemeanour of the
Praepositus Socii Scholares Collegii Reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that Lease it was found for the Plaintiff It was objected in Arrest of Iudgment That this word Gardianus ought to be in the Plural Number Gardiani for the Colledge doth consist of many persons and every one of them capable and not like to Abbot and Covent The Court was all of Opinion that the Exception is not to be allowed but that as well the Lease as the Declaration were both good for the Colledge is a Body and as one Person and so it is as well Gardianus 30 Eliz. In the Common Pleas. CLXXX Greens Case AN Action upon the Statute of Huy and Cry was brought by Green The Case was Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain monies to carry the same from Bristol to London in which journey the Servant was robbed upon which matter the Master brought his Action It was moved That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a person able to bring this Action because he was not examined twenty days before the Action was brought but the Exception was disallowed for the Court was clear of Opinion that the Master should not be examined but the Servant CLXXXI 30 Eliz. In the Common Pleas. THis Case was moved upon the Statute of 1 and 2 Phil. and Mary cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford and Queen Mary by her Letters Patents made the said Town a County And now a Distress was taken in the residue of the said Hundred and brought into the Town of Coventry and if that be within the Statute was the question It was holden by the Court clearly That now the Town of Coventry is exempted out of the Hundred aforesaid and is a thing by it self and it is a good challenge for the Hundred of Offley that the Iuror challenged dwells in the Town of Coventry for now it is not parcel of Offley as to the King But as to the Lord of the Hundred the said Town remains parcel of it notwithstanding the Queens Grant. And the Citizens of Coventry shall do suit at the Court of the Hundred but in an Action upon the Statue of Hue and Cry of a Robbery committed in the residue of the Hundred the Citizens shall not be charged 25 Eliz. In the Common Pleas. CLXXXII Dolmans Case A. Seized of a Mannor to which two parts of the Advowson was appendant presented and afterwards aliened the Manor cum pertinentiis the Alienee presented and purchased the third part of the Advowson and presented again one J. S. Chaplain to the Earl of Rutland who had a dispensation and took another Benefice and was inducted 1 Eliz. and died 11 Eliz The Queen presented for Lapse and her Clerk was instituted and inducted the Alienee Lord of the Manor died seized inter alia this Manor was allotted to the Wife of Dolman for her part and he brought a Quare Impedit It was moved If Dolman should not joyn in this Quare impedit with her who had the third part and by Walmsley he need not Vide 22 E. 4. 8. By Brian If an Advowson descend to four Coparceners and they make Partition to present by turns and the third presents when the second ought for that time his presentment is gone but when it comes to his turn again he shall present which proves that they are several Tenants CLXXXIII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right It was moved in the Common Bench If a Precept may be made and awarded out of the said Court for the Execution of the said Recovery and to put him who recovered in possession with the Posse Manerii Posse Manerii Comitatus differ as in such Case at the Common Law with Posse Comitatus it was resolved clearly that force in such Cases is not justifiable but by Mandate out of the Kings Courts Hil. 29 Eliz. In the Common Pleas. CLXXXIV Anne Bedingfields Case DOwer was brought by Anne Bedingfield against Thomas Bedingfield the Tenant brought out of Chancery a Writ de Circumspecte agatis containing this matter that it was found by Office in the County of Norfolk that the Husband of the Demandant was seized of the Manor of D. in the County of Norfolk and held the same of the Queen in Chief by Knight Service and thereof died seized the Tenant being his Son and Heir apparent and of full age by reason of which the Queen seized as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre as they came to her hands it was commanded them to surcease Domina Regina inconsulta It was resolved that although the Queen be intituled to have Primer Seisin of all the Lands whereof the Husband died seized yet this writ cannot extend to any Manors not found in the Office for by the Law the Queen cannot seize more Lands than those which are found in the Office and therefore as to the Land found in the Office the Court gave day to the Tenant to plead in chief And it was argued by Gawdy Serjeant for the Tenant that the Demandant ought to sue in the Chancery because the Queen is seized to have her primer Seisin And cited the Case 11 H. 4. 193. And after many Motions the Court clearly agreed that the Tenant ought to answer over for the Statute of Bâ—gamis cap. 3. pretends that in such Case the Iustices shall proceed notwithstanding such Seisin of the King and where the King grants the Custody of the Land it self 1 H. 7 18 19. 4 H. 7. 1. Ã multo fortiori against the Heir himself where he is of full age notwithstanding the Possession of the King for his Primer Seisin by the Statute of Bigamâ—s where the Heir was of full age there the wife could not be endowed in the Chancery But now per Prerogativa Regis cap. 4. Such women may be there endowed si Viduae illae voluerint And after many Motions the Court Awarded that the Tenant should plead in Chief at his peril for the Demandant might sue at the Common Law if she pleased Vide Cook 9. Part Acc. CLXXXV Savages Case ONe Savage was presented to a Benefice and afterwards took another and then purchased a Dispensation which was too late and then was qualified and afterwards accepted of the Archdeaconry of Gloucester and Underhil who had the Archdeaconry libelled against the said Savage in the Spiritual Court. Vide the Case reported in the first Part of Leonards Reports Sect. 442. Ideo Quaere there CLXXXVI Pasc 26 Eliz. In the Kings Bench. HVsband and wife Copyholders for Life the Husband surrendred to the Lord who granted the Land over by Copy to a Stranger
A. who is admitted he shall not hold the Land charged and so it was adjudged in the Court of Common Pleas. CCXXXVII Mich. 23 Eliz. In the Common Pleas. IT was holden by all the Iustices in the Common Pleas That the Queen might be put out of possession of an Advowson by two Vsurpations and shall be put to her Writ of Right of Advowson as a common person shall be for it is a thing transitory and if the Queen after such Vsurpations grant the Advowson the Grant is void and so it was adjudged CCXXXVIII Mich. 23 Eliz. In the Common Pleas. THe Case was Tenant in tail the remainder over to another in Fee makes a Lease for life according to the Statute and afterwards dyes without Issue and afterwards he in the Remainder grants his Remainder by Fine before any Entry and by Fenner the Conusee cannot now enter upon Tenant for life nor avoid his lease for by the Livery to the Tenant for life a Freehold passeth which cannot be avoided without an Entry As if a Parson makes a lease for life rendring rent and dyeth the Successor accepteth the rent now the lease is affirmed vide 18 E. 4. 25. and then when before any Entry he in the remainder grants his remainder the Grantee shall have it but as a remainder and so the Estate of the Tenant for life which before was voidable is now made good and so it was holden by Windham and Periam But by Mead and Dyer by the death of Tenant in tail without Issue the lease for life is become void for the Estate out of which the Estate for life is derived is determined by the dying without Issue Ergo c. Vide 21 H. 7. 12. A lease for life is made upon condition That if the Lessor pay to the Lessee at such a day 20 l. that his Estate shall cease now by the performance of the Condition the Estate is determined without any Entry CCXXXIX 32 H. 8. In the Common Pleas. NOte by all the Iustices of the Common Pleas That if a man holds of the King in chief by Knights Service and also holds of another Lord by Knights Service and dyeth his heir within age and the King seizeth the Wardship of the Body and Land and afterwards the heir cometh of full age and before Livery sued the other Lord grants over his Seignory to another and the heir Attorns It is a good Attornment and also Seisin of the Services had by such Lord by the hands of such an heir before Livery sued is good enough and shall bind him afterwards in an Avowry c. Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL Sir William Hollis Case SIr William Hollis brought a Quare Impedit against the Bishop of Coventry Godfrey Fuliamb Kt. and William Waltham Clark The Case was Sir Ralph Langford Kt. was seized of the Manor of D. to which the Advowson was appendant and presented to the same Church one A. his Clark who was admitted c. And afterwards the said Sir Ralph granted the next Avoidance of the same Church to Sir Godfrey Fuliamb James Fuliamb George Fuliamb and William Walton eorum uni conjunctim divisim afterward the said Sir Ralph granted by fine the said Manor with the Advowson to Sir William Hollis in Fee the Church became void the said Sir Godfrey Fuliamb presented the said Waltham his Clark who was admitted c. And upon Argument at the Bar and Bench It was adjudged against the Plaintiff and the Presentment of Sir Godfrey sole without the others was good Notwithstanding also that Waltham the Presentee was one of the Grantees of the next Avoidance Tr. 31 H. 8. Rott 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Case lately Reported in Sir George Mores Reports by the name of Sir Godfrey Fuliambs Case CCXLI. Temps Roign Eliz. NOte by Hind and Hales the Kings Attorney Iustices of Assize in the County of Essex in the Case of the Bishop of London and one Heron Keeper of Cronden Park if the Keeper of my Park or any of his Servants without his assent of their own heads and without my commandment kill my Deers within the said Park being within his keeping or abateth or pulleth down any house within the Park or Barn for to lay Hay for the Deer there or cutteth any Trees Wood or Vnderwoods there growing and sells the same or gives it to another that in all these cases the Keeper of the Park shall forfeit his Office And it was agreed by them That such a Keeper hath not any estate or possession in the Park or in the Lodge but the possession remains always in the Owner of the Soil of the Park and the Keeper hath but the occupation and keeping and the surveying of the same for such a Keeper cannot justifie the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park but it was agreed that he who hath the inheritance in such an Office shall not forfeit his Office for the causes aforesaid Hil. 29 Eliz. In the Common Pleas. CCXLII. Fitz and Pierces Case IN Ejectione firmae by Fitz against Pierce Pierce was outlawed and now came and shewed by way of Plea that the outlawry was erronious in this videlicet ad Com' meum tent ' 30 Jan. 29 Eliz. whereas the said day was Dies Dominicus and so there was no County Court It was the Opinion of Windham that the same matter did well lye in Plea for it is matter apparent within the Record as in the case of Brecket and Fish Plowd Com. 266. Rhodes and Periam were of a contrary Opinion and said the case cited is not like to the case at Bar for there it appeareth to the Court as Iudges when every Term beginneth and endeth but it is otherwise in our case si 30 die Januarii be dies Dominicus necne for it shall be tryed by the Country c. Trin. 32 Eliz. In the Kings Bench. CCXLIII Keenes Case RAlph Keene Vicar of B. was Indicted for stopping quandam viam valde necessariam Indictment Nusance for all the Kings Subjects there passing Exception was taken to it because it wanted the word Regiam and the word necessariam doth not imply any matter for a Foot way is necessary Addition Also here the Party hath not any addition It is R. K. but it is not said Clarke and for these causes the Party was discharged Trin. 32 Eliz. In the Kings Bench. CCXLIV Peake and Pollorts Case ACtion upon the Case by Peake against Pollort Words upon these words Thou art a malicious and sedicious man and movest the Queens Subjects to Sedition It was the Opinion of the Court that the words were not actionable for they were too general for it may be that the Defendant hath stirred up the Tenants of a Manor to Tumults and Sedition which is not any great Scandal And the Statute of
for 21 years to begin at Michaelmas before and in pleading it was shewed That virtute cujus dimissionis posterioris the Plaintiff entred fuit possess crastino Michaelis which was before the making of the Lease and the Plaintiff in his Declaration declared That the Defendant in consideration that the Plaintiff had assigned to him the said Leases had promised to pay to him 630 l. It was found for the Plaintiff Cook For where the Plaintiff in an Action upon the Case declares upon two Considerations in such Case although the one be void yet if the other be good and sufficient the Action is maintainable but the Damages shall be given without respect had to the Consideration insufficient and the Plaintiff was to declare upon both Considerations for the Assumpsit upon which the Action is conceived was in consideration that both the Leases were assigned to the Defendant and our Declaration ought to be according to the Assumpsit and it was not material although that one of the Considerations was utterly void Another Exception was taken Because the Lease is set forth to be made 18 October and that by virtue thereof the Plaintiff entred Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Disseisor and then being in by disseisin he could not assign his Interest to another and that appears clearly to the Court upon the whole matter But Cook said That shall not hurt us for it is but matter of surplusage to say Virtute cujus c. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration that the Trespass for which the Action was brought commenced 10 H. 6. with a Continuando until the day of the Action brought viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris Anno 17 H. 6. And Exception was taken to the Declaration because the continuance of the time was not put in certainty But the Exception was not allowed for it is certain enough before the viz. the day of Writ brought and so the viz is void and all that which follows upon it And so here this Clause Virtute cujus est totum sequitur est omnino void 7 H. 4.44 Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit illud solvere recusavit Exception was taken to the repugnancy for it would not be carried away if it were not paid before yet the Writ was awarded good and the first word Toloniam asportavit holden void So here in the principal Case As to the other Exception it is clear That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease for there was a Communication betwixt the Parties of such a Lease to be made or of such an Assignment and peradventure the Entry was by assent of the other part and then no Disseisin And posito it should be a Disseisin yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit according to the consideration and delivered to the Defendant both the Indentures of Demises and so he hath granted all that which he might grant And if it be a void Assignment or not is not material for quacunque via data the Consideration is good and then the Assumpsit good also Egerton Solicitor contrary In every Action upon the Case upon Assumpsit three things ought to concur Consideration Promise and breath of Promise and in this Case the Assignment of the Lease to begin after the death of the Lessor is void being but Tenant for life and no Consideration upon the confession of the Plaintiff himself And upon the second Consideration it appeareth the Lessor viz. the Wife who held for life had but a right to the Land demised for she was disseised for he to whom the Land was after let entred before the Lease was made for it doth not appear that he entred by force of any agreement made before the Lease therefore by his Entry he was a Disseisor It was also moved That here was not any sufficient consideration for by a bare or naked delivery Nihil operatur and here is not any word of Give or Grant. To which it was answered That the delivery of the Indenture was not a bare Bailment but a Delivery to the use in the Indenture and so it is pleaded and therefore thereby an Interest passed for such a delivery cannot be countermanded An Indenture with an Averment shall never make an Estoppel Clench Iustice If I deliver any thing to one for his proper use an Interest passeth but if it be to the use of another no Interest passeth The party may have usum but not proprietatem CCLVII Mich. 18 Eliz. In the Kings Bench. Contract IF a Contract be made betwixt two here in England scil that one of them shall carry certain Goods of the others to Burdeux in France and sell them there and with the mony thereof coming shall buy other Goods for the use of him who was the owner of the first Goods and safely them deliver to him in London If now the party sell them in Burdeux and buyeth others with the monies thereof and brings them into England and there converts them to his own use upon this matter an Action lyeth at the Common Law for the Contract and the Conversion being the cause of the Action was made in England But if the Contract only was in England and the Conversion beyond the Seas the Party at his Election may sue at the Common Law or in the Court of Admiralty And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him and to Merchandize with them for his use if the Factor receiveth them and converts them to his own use the Father shall be sued in the Admiralty 25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Case IT was agreed by the two Lord Chief Iustices 1 And. 308. upon conference had with the other Iustices in the Case between the Earl of Huntington and the Lord Mountjoy That where the Lord Mountjoy by Deed indented and inrolled bargained and sold the Manor of Camford to Brown in Fee in which Indenture a Clause was Proviso semper and the said Brown covenants and grants cum and with them the Lord Mountjoy his Heirs and Assigns That the said Lord his Heirs and Assigns might dig for Ore in the Wasts of Camford And also to dig Turf there to make Allom and Copperice without any contradiction of Brown his Heirs and Assigns that now here is a new Grant of an Interest to dig to the said Lord and his Heirs in the Lands aforesaid and not a bare Covenant and it was holden also that the said Lord could not divide the Interest granted to him in form aforesaid viz. To grant to another to dig one part of the said Waste c. But they were of Opinion That Brown his Heirs and Assigns notwithstanding
Bayliff of his Lord could not do better than admonish the said Bayliff of his duty for it concerned the Honour of his Master and also his Inheritance in the said Liberty But if the said Townsend had been a meer stranger to the said Earl so as no such privity had been betwixt them the same had been clearly Maintenance in Townsend as it was lately adjudged in that Court in the case of one Gifford where the parties being at Issue and a Venire Facias to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to do in that cause according to his Conscience and the same was adjudged Maintenance And afterwards upon full hearing of the cause the said Townsend by the Sentence of the Court was acquitted of any Maintenance with great allowance and approbation of many Lords of the Counsel there present Bromley Cancellario tantum exclamante CCCXXVII Mich. 15 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid the Plaintiff counterpleaded the Aid upon which Issue was joyned and found for the Plaintiff It was the Opinion of the Court That it was peremptory for the Defendant And the Plaintiff shall have the Partition scil Quod fiat Partitio and the reason thereof is for the delay of the Plaintiff and for the vexation of the Country who are to try it otherwise it had been if it had been adjudged against the Defendant upon a Demurrer CCCXXVIII Mich. 21 Eliz. In the Kings Bench. IN a Formedon of a Manor the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that Issue was joyned and found for the demandant Vpon which a Writ of Error was brought and Error assigned in this That whereas upon Ioyntenancy pleaded by Fine the Writ ought to abate without any Averment by the Demandant against it the Averment hath been received against the Law And by Southcote at the common Law If the Tenant plead Ioyntenancy by Deed the Writ should abate without any Averment but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law for he hath punishment enough in that because by that Plea if it be false he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger the Writ shall abate without any Averment of Frank-estate for the Law intends that the Tenant will not enthrawl himself without cause Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred c. And if Tenant in Fee-simple be impleaded and he saith he is Tenant for life the Remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant the day of the Writ brought was seized in Fee. Note That in this Fine Ioyntenancy was pleaded but for parcel and it was holden by â—ray and Southcote That the whole Writ should abate as in a Writ against many the misnosmer of the one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the Land in demand if the Land in demand be one entire thing it shall abate the Writ in all In this Case the Demandant ought to have in his Writ a Foreprise of the Land parcel of the Land in demand whereof the Ioynt-tenancy by Fine is pleaded for this dismembring of the Manor and destruction of the Land whereof the Ioyntenancy is pleaded is peravail and beneath the Gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore it ought to be demanded accordingly with a Foreprise But if A. gives to B a Manor except 13 Acres in Tail there if after upon any Discontinuance the Issue in Tail is to have a Formedon in such Case there needs not any Foreprise for the said 10 Acres were never severed from the Manor upon the Gift But if Land in demand be several as 20 Acres but two this Foreprise is not good Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat ' terrae except a Selion and the Writ was abated for every demand ought to be certain but a Selion is a parcel of Land uncertain as to the quantity in some places it is an Acre in some more and in some less Another point was That because that the Tenant hath admitted and accepted this Averment scil Sole Tenant as the Writ supposeth if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ And Wray conceived that it might for it is a possitive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without Challenge or Exception yet the Court shall abate the Appeal 10 E. 4. 7. And Vide the principal Case there Non ideo puniatur Dominus And if an Action be brought against an Hostler upon the common Custom of the Realm and in the Writ he is not named Common Hostler and the Defendant doth accept of such a Writ without any Exception unto it yet the Court shall abate the Writ ex Officio Vide 38 H. 6. 30. CCCXXIX Mich. 21 Eliz. In the Kings Bench. NOte this Case A. makes a Feoffment in Fee to B. and binds himself only to warranty without more B. is impleaded and voucheth A. who enters into the Warranty and loseth so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth It was the opinion of the Court that B. should have Execution in value against the Heir of A. CCCXXX Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life In that case the wife is remitted and it is not like Townsends Case Plowd Com. 111. for in that case the Entry of the Wife was not congeable for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband Periam Iustice cited Siâ—enhams case Baron seized in the right of his Wife for the term of the life of the Wife They both surrendred and took back the Land to them and a third person And it was holden that the Wife was not presently remitted but after the death of her Husband