he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
206 Lord Cheneys case Cases of Usury fol. 208 Buttons case Claytons case fol. 208 Hoes case St. Johns case fol. 209 Williams case Case of Orphanes of London Wymarks case fol. 210 Cliftons case fol. 211 Pilkintons case Earl of Pembrooks case Pagets case fol. 212 Boothes case fol. 213 Samons case Grayes case Fitz Herberts case fol. 214 Fords case Case of of customs Snellings case fol. 215 Case of Market Overt Perimans case Sir Henery Knevits case fol. 216 Pennrins case Cases of Executions Blumfields case fol. 217 Garnons case fol. 218 Frosts case fol. 219 Hoes case fol. 220 Semaynes case fol. 221 Barwicks case fol. 223 Goodalls case Countesse of Northumberl case Buries case fol. 224 Flowers case Rookes case fol. 225 Penruddocks case fol. 226 Windsors case Hungats case fol. 227 Bakers case Boulstons case fol. 228 Aldens case Sir Henry Constables case fol. 229 Foxleyes case fol. 230 Malaries case Wades case fol. 232 Foliambs case Olands case Pynners case fol. 233 Edriches case fol. 234 Whelpdales case Longs case fol. 235 Saffins case De libellis Famosis fol. 236 Palmers case Caudreys case fol. 237 The Sixth Booke BReuertons case fol. 239 Markals case fol. 240 Sir John Molins case fol. 241 Wheelers case Ferrers case fol. 242 Spencers case fol. 243 Gentlemans case Morrices case Cases of Pardon fol. 244 Arundels case fol. 245 Treports case Edens case Colyers case fol. 246 Wildes case Sir Edward Cleers case fol. 247 Packmans case fol. 248 Gregories case Michelborns case fol. 249 Butler and Goodalls case Ambrosia Gorges case fol. 250 Marquesse of Winchester his case Reades case Helyars case fol. 251 Ruddocks case Sharps case fol. 252 The case of Souldiers Vicont Mountagues case fol. 353 Greenes case fol. 254 Boothies case Fitz Willams case fol. 255 Bishop of Baths case fol. 256 Dean and Chapter of Worcesters case fol. 257 Bellamyes case Henery Finches case fol. 257 Sir Anthony Mildmay Blakes case fol. 258 Higgins case Dowdales case fol. 259 Boswels case fol. 260 Countesse of Rutlands case fol. 261 Lord Chandows case Bredimans case fol. 262 Gatewards case fol. 263 Catesbies case fol. 264 Sir Moyle Finches case fol. 265 Lord Darcies case fol. 266 Burrels case Sir Drue Druries case fol. 267 Sir Gorge Cursons case fol. 268 Bullens case Lord Abergavennies case Sir Edward Phittons case fol. 269 The Seventh Booke CAlvins case fol. 271 Bulwers case fol. 273 Sir Miles Corbets case fol. 274 Gendils case fol. 275 Milbornes case Earle of Bedfords case Oghtreds case fol. 276 Englefields case fol. 277 Case of Swannes fol. 279 Sir Thomas Cecills case Lord Andersons case fol. 280 Butts case fol. 281 Cases of Quare Impedit Halls case fol. 282 Sir Hugh Portmans case Baskervills case fol. 283 Mauds case Discontinuance of processe by the death of the Queen fol. 284 Case of a Fine levied by the King fol. 285 Nevils case Penall Statutes fol. 286 Lillingtons case Bedels case fol. 287 Beresfoeds case Kenns case fol. 288 The Eighth Booke THe Princes case fol. 291 Calyes case Paynes case fol. 293 Barretry Greysleyes case fol. 294 Whittinghams case fol. 295 Jehu Webbs case fol. 296 Sims case fol. 297 Roger Earl of Rutlands case fol. 298 Beechers case fol. 299 Swaines case Sir William Fosters case fol. 300 Lovedayes case Crogates case fol. 301 Trollops case fol. 302 Whitlocks case Greenlyes case fol. 303 Lord Staffords case fol. 305 Wiat Weilds case fol. 306 Vinyors case Sir Richard Pexals case fol. 307 Buckmers case fol. 308 Frauncis case fol. 309 Foxes case fol. 310 Mannings case fol. 311 Baspoles case Sir Richard Lechfords case fol. 312 Talbots case fol. 313 Doctor Bonhams case fol. 314 Case of the City of London Case of Thetford Schoole fol. 316 Turnors case fol. 317 Shiplyes case Sir John Nedhams case fol. 318 Sir Francis Barringtons case fol. 319 Doctor Druries case fol. 320 Davenports case The Six Carpenters case fol. 321 Edwards Althams case fol. 323 Arthur Blackamores case fol. 324 Cases in the court of wards Myghts case fol. 326 Digbies case Earl of Cumberlands case Paris Stoughters case fol. 327 Toursons case Sir Gerard Fleetwods case fol. 328 Hales case Sir Henry Constables case fol. 329 Virgill Parkers case fol. 336 The Ninth Booke DOwmans case fol. 331 Anna Beddingfields case fol. 332 Case of Avowry fol. 333 The Abbot of Strata Marcella his case fol. 334 Bucknals case Henslowes case fol. 336 Earle of Shrewsburies case fol. 339 Hickmots case fol. 340 Batens case fol. 341 The Poulters case Aldreds case fol. 342 Lambs case fol. 343 Bradshawes case Mackallies case fol. 344 Peacocks case fol. 346 Doctor Husse case fol. 347 Combs case fol. 348 Petoes case fol. 349 Agnes Gores case Coneys case fol. 351 Pinchons case fol. 352 Banes case fol. 354 Sir George Reynels case fol. 355 Podgers case fol. 356 Treshams case fol. 357 Marys case fol. 358 Lord Sanchars case fol. 359 Cases in the Court of wards Lawes case fol. 360 Floyers case fol. 362 Sondayes case Quicks case fol. 363 Bewleys case Holts case fol. 364 Menes case fol. 365 Ascoughs case fol. 366 Thorogoods case fol. 367 Beaumonts case fol. 368 The Tenth Book THe case of Suttons Hospitall fol. 371 Portingtons case fol. 374 Lampets case fol. 375 Case of the Chancellor Masters Scholars of the University of Oxford fol. 378 Bishop of Salisburies case fol. 379 Whistlers Case Church-wardens Case of St. Saviours in Southwark fol. 381 The Case of the Marshalsea in false imprisonment fol. 382 Loveis Case in Ejectione ferme fol. 384 Doctar Leyfields Case fol. 387 Seymors Case fol. 389 Bewfages Case fol. 391 Denbawds Case in Error fol. 396 Lofields case in debt upon bond fol. 397 Legats Case fol. 398 Pilfolds Case fol. 399 Cheyneyes Case fol. 400 Case of the Major and Burgesse of Lin fol. 401 Cluns Case fol. 402 Osborns Case fol. 403 Read and Redmans case fol. 404 Richard Smiths Case fol. 405 Cases upon the Commissions of Sewers Case of Chester Mille Keighleys case fol. 406 The Case of the Isle of Elie fol. 407 Scroops Case fol. 409 The Eleventh Book THe Lord Delawares case fol. 411 Auditor Curles case fol. 412 Sir John Heydons case fol. 413 Priddle and Nappers case fol. 414 Doctor Grants Case fol. 416 Sir Henry Nevils case fol. 417 Doctor Ayrays Case fol. 417 Henry Harpurs case fol. 418 Henry Pigots case fol. 420 Alexand. Poulters case fol. 420 Metcalfes case fol. 423 Richard Godfreyes case fol. 425 Richard Lifords case fol. 426 The Taylors of Ipswich case fol. 428 Edward Savels case fol. 429 Benthams case fol. 429 Doctor Fosters case fol. 429 Magdalen Colledge case fol. 432 Lewis Bowles case fol. 34 The Case of Monopolies fol. 436 The Earle of Devonsh case fol. 437 James Bagges case fol. 438 THE FIRST BOOK The Lord Buckhursts Case 40. El. fo 1. IF a man for him and his heires do warrant Land to one and his heires this is a generall warrantie because there is not
such a Feast if you make a Feoffement to another of this Mannor before the same Feast you have forfeited the obligation although that you purchase the Land againe before the said Feast because that you were once disabled to make the feoffement If a man Lease a Mannor for yeares and the Lessee covenanteth to uphold the Houses and to leave the same Mannor in as good an estate as he found it and during the terme the Lessee maketh wast in Houses and cutting of Tymber c. the Lessor may have a Writ of Covenant before the end of the Tearme for cutting the Timber for it was impossible that the Covenant should be performed after for the Timber but otherwise of the Houses Fitz Na. br fo 145 K. It was also resolved that if a man seised of Lands in Fee covenant to infeoffee I. S. upon request and after he maketh a feoffement of the same to a Stranger in this Case I. S. may have an Action of Covenant without request Laughters Case 37. Eliz. fo 21. Banco regis WHere a condition of an obligation consisteth upon two parts in the disjunctive and both possible at the time of the obligation made and after one of them becomes impossible by the Act of God the obligor is not bound to performe the other part for the condition is made for the benefite of the obligor and shall be taken most beneficiall for him and he had an Election eyther to performe the one or the other for the saving of his Obligation but now Impotentia excusat legem Hallings Case 38. Eliz. Com. banco fo 22. ONe Covenanteth to make an estate in Fee at the costs of the Covenantee the Covenantor is to doe the first Act Idest to Notifie what assurance he will make that the Covenantee may know what summe to tender Mathewsons Case 39 Eliz. fo 23. Com. banco SEverall persons make severall Covenants in one Indenture or Writing the Seale of one of them is broken away that shall not avoyd the Covenant of the rest but onely the Covenant of him whose Seale is so debrused or defaced Vide Piggots Case in the 11th Report because severall Covenants otherwise if joynt Lambes case 41. Eliz. fo 23. com banco A. Is bound unto B. to give unto B. such a release c. before the 22. day of October next as by the Judge of the Prerogative Court is thought fit In this Case A. must procure the Judge to doe it or devise it for the Judge is a stranger to the condition and the condition is for the benefite of the Obligor and he hath taken upon him to performe the same at his perill but it is otherwise if the Obligee or his Councell should devise it Broughtons case 43. Eliz. fo 24. Banco regis IN an Action of Debt by Broughton Plaintiffe against Pretty upon an Obligation with condition where the Plaintiffe was bound in an obligation of 200. l. for the Defendant for the payment of 100. l. to C. if therefore the Defendant should save and keepe harmlesse the said Broughton from all Suites quarrells and Demands touching the said Obligation c. that then the Obligation to be void c. at the day of payment of the 100. l. the Plaintiffe commeth to the place where the 100 l. ought to be paid and perceiving there not any person present to pay the 100. l. for the Defendant Broughton to save the penalty of the Obligation paid the money to C. and brought his Action upon the Counter-bond and it was adjudged that the Plaintiffe should recover for the payment of the 100. l. is damage and harme And it is not necessary whither the Plaintiff was arrested or sued c. Terror of suite so as he dare not goe about his businesse is Damnification although he be not arrested Deane Chapter de Winsors Case 44. Eliz. fo 24. Banco regis A Man Leased a House by Indenture for yeares the Lessee Covenants and grants for him and his Executors with the Lessor to repaire the house at all times necessary the Lessee Assignes over and the Assignee suffereth the house to decay the Lessor brought an Action of Covenant against the Assignee and it was adjudged per Popham and all the Court that the Action lyeth although the Lessee had not Covenanted for his Assignes because in respect thereof the rent is the lesse which is for the benefite of the Assignee Qui sentit commodum sentire debet onus If a man grant one Estovers to repaire his house this is appurtenant to the house Fitz H. nat br 181.28 H. 8.28 Sir Thomas Palmers Case 43. El. fo 24. banco regis SIr Thomas Palmer seised in Fee of a great Wood. Did bargaine and sell to one Cornford and his Assignes 600. cords of Wood to be taken by Assignement of Sir Thomas Cornford assignes his interest to one Basset and afterward Sir Thomas sells to one Maynard such quantity of Wood as will make 4000. cords at Election of the Vendee and afterwards Sir Thomas assignes to Basset 600. cords of Wood to be taken by him who doth fall the same and Maynard did take them away and converted them c. an Action upon the case was brought by Basset and iudgement was given for him for Corneford had an interest which he might assigne over and not a thing in action or a possibility for it was resolved if Sir Thomas did not assigne them to Cornford upon request Cornford might take them without assignment for the Grantor cannot by his owne act or default eyther subvert or derogate from his owne grant Therefore it ensueth that Cornford had an interest that he might assigne over If A. have a house and Land and reasonable estovers in the Woods of another by view and livery of the Bayliffe c. if A. take estovers without view or livery c. he is a trespassor although he take lesse then he ought to have by livery But if A. demand his estovers and the Owner or his Bayliffe will not deliver to him he may have an Assize 2. If the Assignement were voyd yet the Defendant cannot take Trees cut by another but out of the residue of the Wood. The Earle of Rutlands case 2. Ja. fo 25. banco regis EDward Earle of Rutland seised of the Mannor of Eykering by Indenure dated 10. March Anno. 21. El. for augmentation of the joynture of Issabell his Countesse did Covenant with Sir Gilb. Gerrard and Thomas Houlcroft his Brother that before the end of Trinity terme then next following he would assure by fine or other conveyance the said Mannor to the said Sir Gilb. Gerrard and Thomas in Fee which syne or other conveyance should be to the use of the said Earle and Issabell his Wife and the Heires of the said Earle which Indenture was acknowledged and inrolled in the Chancery the 28. of the same Moneth of March by another Indenture betweene the said Earle on the one part and the Lord Burleigh on the other
part and Sir Gilb. Ger. and others on the same part for the advancement of the Heires Males of the said Earle the Earle did covenant c. to convey the said Mannor amongst others to the said Lord Burgleigh Sir Gilb. Gerrard and others or to any of them before the Feast of the Annunciation of our Lady next ensuing which Assurance should be to the use of the said Earle Edward and the Heires Males of his body and for want of such issue to the use of the Heires Males of Thomas Earle of Rutland with divers remainders over and in the same Indenture the said Earle Edward did Covenant c. to stand seised to the uses contained in the second Indenture No fine or other assurance was leavyed or made by the said Earle Edward before the end of Trinity Tearme Afterwards Viz. 17. Septemb. next following the said Earle Edward acknowledged a note of a fine of the said Mannor of Eikering onely to Sir Gilb. Gerrard and Thomas Ho and the Heires of Sir Gilb. And the 18. day of the said Moneth acknowledged another â—ote of a fine of the said Mannor of Eckering amongst many other Mannors mentioned in the later Indenture to the Lord Burghley Sir Gil. Gerrard and other parties to the later Indenture and both fines were entered in Octabis Mich. next after And it was proved by diverse testimonies that the said Earle Edward as well before the Indentures as after the fine leavyed said that the said Countesse should have the Mannor of Eckering And it was resolved by Popham chiefe Justice and all the Court. First although the Indenture being made for declaring of uses of a subsequent fine recovery or other conveyance to certaine persons and within a certaine time and to certaine uses yet they are but onely directory and doe not binde the estate or inerest of the Land yet if the fine recovery or other assurance be persued according to the Indenture there cannot be any averrment made against the Indentures taken in this Case that after the making of the Indentures and before the assurance by mutuall agreement of the parties was concluded and agreed that the assurance should be to other uses but if other agreement or limitation of uses be made by writing or by other matter of as high or higher nature then the later agreement should stand for every contract or agreement ought to be dissolved by matter of as high nature as the first was Nil tamconveniens est naturali aequitati quam unum quodq dissolui eo ligamine quo ligatum est Also it was very inconvenient that matters in writing should be controuled by averrment of parties to be proved by incertaine testimony of slippery memory and should be perillous to purchasors Farmers c. 2. It was resolved that if the forme of the Indentures be not pursued as for quantity of Land the time within which the fine should be leavyed c. Averrment without writing may be taken that the fine c was to other use then was contained in the Indenture by reason of a new agreement subsequent which in this case may be as well by word as writing 3. It was resolved that although the indentures be not pursued in circumstance of time quantity person c. yet if no other meanes new agreement be proved the fine c. in judgement of Law shall be to the use named in the Indenture The fines cannot be directed by both the Indentures although perhaps it was the meaning of the parties because the directions and declarations of the first Indenturs were controuled and frustrated by the said second Indentures Cases of Executors Russells Case 26. Eliz. fo 27. banco regis A Release by an Infant Executor under the Age of 21. yeares is no bar but upon payment or satisfaction to an Infant Executor he may acquite and discharge the Debt for so much as he receiveth All things that he doth according to the Office and duty of an Executor shall binde him an Executor may release before probate of Testament for although he may not have an Action yet the Interest of the Action is in Law in him at the time of the release Middletons Case 1. Ja. in com banco fo 28. IT was adjudged betweene Middleton and Rymot that an Executor before probate may release action although that before the probate he may not have action for the right of the Action is in him but if A. release and after take administration that shall not barr him for the right of the Action was not in him at the time of the release Two Executors prove the Testament the third refuseth yet he may release Littlet 117. if one be bound to pay a summe of money at a day to come a release of actions before the day is a Bar and yet before the day he could have no action Harrisons Case 40. Eliz. fo 28. com banco IT was adjudged that a judgement upon Debt due by obligation shall be paid before a Statute made for performance of Covenants which are things in contingency and in future or other Statutes or recognizances for Debt vide Sadlers Case in the Fourth Booke although the judgement be after the acknowledgment of the Statute Piggots Case 40. Eliz. com banco fo 29. ONe bringeth Debt as administrator Durante minore aetate of one whhom he averr'd to be within age and he doth not say that he was within the age of 17. yeares and the Plaintiffe was barred because at that age the Administration ceaseth Princes Case 41 42. Eliz. com banco fo 29. AN Infant is made Executor Administration durante minori etate may be committed to the Mother or other Friend of the Infant which shall cease and be voyd when the Infant is at the age of 17. yeares and this administrator may not sell any goods of the Decest unlesse it be for necessity of payment of Debts for he hath his Office of administrator Pro bono commodo Infantis and not for his prejudice also he cannot assent to pay legacies unlesse there be assents to pay Debts c. and if it be a Woman under the age of 17. yeares and take a Husband of full age the Administration ceaseth Where one hath goods solely in an inferior Dioces yet the Metropolitan of that Province pretending that he had Bona notabilia in diverse Diocesses committed the Administration c. this Administration is not voyd but voidable by sentence because the Metropolitan hath Jurisdiction in all places within his Province but if the ordinary of one Diocesse commit the administration of goods when the party hath Bona notabilia in diverse Diocesse this administration is meerly voyd as well for his goods within the Diocesse as without vide Vere Jeffrays Case 22. Eliz. in banck le roy there cited and so adjudged Caulters Cose fo 30. 40. 41. Eliz. banco regis AN Executor in his owne wrong ought not to retaine goods in his owne hands to satisfie
countenance that dangerous and desperate error of the Spencers viz. That Homage and Oath of legeance was more by reason of the Kings Crowne that is of his politique capacity then by reason of the person of the King which was condemned by two Parliaments one in the Reigne of E. 2. called Exilium Hugonis le Spencer and the other in 1. E. 3. cap. 1. No one Opinion in all our Bookes is against this judgement The Lord Chancellour and 12. of the Judges concurred in one opinion herein and not in any remembrance so Honourable and Intelligent an Auditory as was at this Case Bulwers Case 27. Eliz. fol. 1. H. H. recovered against the Plaintiffe in the common place and dyeth the Defendant in the name of H. Outlawed the Plaintiffe who brings an Action of the Case in N. where the first Action was brought and recovered for there was the visible torte when matter in one Câ—unty dependeth upon matter in another County the Plaintiffe may choose in which County to bring his Action except that the Defendant upon generall issue pleaded may be prejudiced of his Triall as if two conspire in one County to Endite one in another County and doe it an Action may be brought in either but if he be indited but not by them there it shall be brought where the conspiracy was If Manasse be made in E. whereby my Tenants recede into L. an Action shall be brought in E. if an action be founded upon two things materiall and traversable in two severall Counties an action may be brought in any of them An Annuity granted in one County to be paid in another the Action shall be brought where the grant was he who is robbed may have an appeale of felony in every County where the goods came but of robbery where the fact was done onely A lease for yeares in one County of Land in another Debt shall be brought where the Lease was made and wast where the Land lyeth every Action which concerneth the life of a man shall be brought where the offence is committed Every issue which ariseth upon an Action in which Land shall be recovered shall be brought where the Land lyeth as in right of ward of Land or body or intrusion of ward and forfeiture of Marriage Valore maritagij and Quare impedit but ravishment of ward where the ravishment was and a Quare non admisit where the refusall was before the Statute of 7. R. 2. c. 10. an Action for Land in diverse Counties or for common in one County appendant to Land in another County shall be brought by severall Writs in both Counties but now In confinio comitatuum a per quae servitia shall be brought where the note of the fine is levyed Sir Miles Corbets case 27. Eliz. in Scaccario fol. 5. REsol That the speciall manner of Common in Norf called Shacke to be taken in arrable land after harvest untill sowing begin is good Resol also if in D. there are fifty acres and in S. 100. l. who ought to intercommon for vicinage D. cannot put in more in their Common then it will depasture and so to escape reciprocally for the originall cause of this Common was onely to prevent suits in Champian Countries Cases upon the Statute of 13. E. 1. of Winchester upon hue and cry Sendills case 27. Eliz. in Com. Banco fol. 6. A Robbery for which the Hundred must answer by force of the said Statute is to be done openly so as the Country may take notice thereof themselves but a Robbery done secretly in the house the Country cannot take notice thereof for every one may keepe his house as strong as he will at his perill For it was adjudged in Ashpoles case that the partie robbed needed not to give notice thereof to the Country For it may be that the partie robbed was bound or maimed c. so as he could not make hue and cry to give notice A robbery was done in January presently after the Sunne setting during day-light and it was adjudged that the Hundred should answer for the same for it was a convenient time for men to travell or to be about their businesse One was killed in the Evening and escaped and by the common Law the Towne was amerced for that was accounted in Law parcell of the day and not of the night But by the Statute 27. El. ca. 13. none shall have action upon the said Statute except the partie robbed so soone as he may give notice of the same to any of the Inhabitants of any Village Towne or Hamlet next to the place where the robbery was done and if they in pursuite apprehend any of the offenders that will excuse the Towne Mibornes case 29. Eliz. in Com. Banco fol. 6. A Robbery was done in the morning ante lucem the Hundred shall not be charged Cum quis felonicè occisus fuit per diem nisi felocaptus fuit tota villata illa amercietur The Earle of Bedfords Case 29. Eliz. fol. 7. 1. REsol If tenant in taile make a voydable lease for yeares and dyeth his heire in ward to the King or other Lord the Lord shall avoyde this lease but if an infant make a feoffment the Lord by Escheate shall not avoyde it but a gardian shall because he doth it in right of the infant 2. This avoidance is but during the interest of the Lord for afterwards the heire may make it good But if he who hath a particular estate avoideth an act in all after his Interest determined it shall not be made good as if a feme be indowed of an appropriation and her clerke inducted the appropriation is defeated for ever so if a feme Covert as a feme sole levy a fine and the Baron enters and dyeth the Conâ—see shall not have the land for the estate is wholly defeated Vghtreds Case 33. Eliz. fol. 9. THe M. of W. granted the Captainship of a Fort to the plaintiffe and for exercising of the said office and for finding a Master Gunner and six Souldiers granted to him an Annuity of 32. li. per annum the plaintiffe brings an Annuity 1. Except It doth not appeare by the Count that the M. had power to grant this office Non allocatur 2. The plaintiffe doth not averre the exercising of the said office Non allocatur for if he had not used it that shall come in on the other part because this is a condition subsequent and not precedent but if one be to have a thing in consideration of an act to be done by him there he must shew the performance because that amounts to a condition precedent as in debt for salarie but if each party had equall remedy one for the money and the other for the act to be done there the Count shall be without shewing the performance as if one Covenant to serve c. and the other Covenants to give money c. But although that an interest vested is to be devested by non feasance
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney