where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
this Thomas Plain was seised in his Demesne as of Fee of a Messuage in S. and so seised did let it to the Defendant for divers years yet to come rendring Rent payable at four usuall Feasts of the year the Lessee entred accordingly after which the said Plain by Bargain and Sale enrolled conveyed the Reversion therof to the said Humble and his Heirs and before the Feast of the Annunciation of our Lady 35 Eliz. to wit the 1. day of February in the same year the said Oliver assigned over his whole Term to one Southmead who before the same Feast entred accordingly and for the Rent due at the Feast the Annunciation of our Lady the Plaintiff brought this Action And it was agreed by the whole Court that the Action would not lie against him for although Plain if he had not aliened the Reversion over might have had this Action against the said Oliver notwithstanding that he had assigned over his Term before for the privity of contract which was between them in as much as they were parties to it of either part yet the Grantee of the Reversion shall not have advantage of the privity he being a meer stranger to the Contract and now was but privy in Law by the Bargain and therfore now he hath no remedy but against him who had the Estate at the time when the Rent hapned to be due and this is Southmead and not Oliver The Roll of this case is in the Kings Bench Hill 36. Eliz. Rot. 420. Mich. 36 37 Eliz. In the Kings Bench. Button versus Wrightman 1. IN an Ejectione firmae between John Buâ—ton Plaintiff and Etheldred Wrightman Widow and other Defendants for a House and certain Lands in Harrow The Case upon a speciall Verdict was this The Dean and Chapter of Christs Church in Oxford were incorporated by K. H. 8 by his Letters Patents dated 4. Novemb. 38 H. 8. by the name of the Dean and Chapter of the Cathedrall Church of Christ c. Oxford of the Foundation of King Henry the 8th and so to be called for ever after which the said Dean and Chapter was seised in their Demesne as of Fee of the said House and Land and so being seised by the name of the Dean and Chapter Ecclesiae Cathedralis Christi in Accademia Oxon. ex fundatione Reg. H. 8. enfeoffed Edward late Lord North therof by their Deed hearing date the 21. day of April 1. E. 6. who afterwards dyed and the now Lord North entred and did let it to the Plaintiff who was ousted by the Defendant claiming the said House by a Lease made by the said Dean and Chapter in the time of Queen Elizabeth for divers years yet to come and whether his entry were lawfull or not was the question and all depends upon the mis-naming of the Corporation But it was found that the City of Oxford and the Vniversity of Oxford were all one and that the Town of Oxford was made a City by the Charter of King H. 8. And by Fennor the Feoffment made to Edward Lord North for the misnaming of the Corporation was void for he said that Accademia villa de Oxford are divers in name and divers in nature for the Vniversity is to the Schollars and learned men there and the Town for the Inhabitants and the name of a place is a principal thing in a Corporation which in a new Corporation ought to be precise according to the very Letter of the Charter therof And therfore in the case of Chester it was agreed that Cestria being omitted the Charter for the Dean and Chapter there had been void But by Popham Gawdy and Clench this is not such a mis-naming as to the place which shall make the Feoffment void for suppose it had been Decanus Capitalis Ecclesiae Cathedralis Christi in Civitate Oxon. it had been good for Oxon. Civitas Oxon. are one and the same So it is if an Hospitall be erected by the name of the Hospitall of S. Johns in S. Clements and they make a Grant by the name of the Hospitall of S. Johns in the Parish of S. Clements it is good for it appeareth to be the same And here if a man will say that it shall go to the Vniversity of Oxford this every one conceives to be the Town of Oxford and so of Cambridge and therfore in 8 H. 6. it was agreed to be a good addition for the place in an Action personall against such a one Chancellor of the Vniversity of Oxford and so it is against J. Rector of the Parish Church of Dale without any other addition for the place yet the Statute is that it ought to be named of what Town Hamlet or place the party is And by Popham the place in a Corporation may well be resembled to the Sur-name of a man and as a Grant made by any persons Christian name as John Thomas c is not good so in a Corporation it is not good to say Dean and Chapter Mayor and Comminalty and the like without saying of what place And anciently men took most commonly their Surnames from their places of habitation especially men of Estate and Artizans often took their names from their Arts but yet the Law is not so precise in the case of Sur-names and therfore a Grant made by or to John Son and Heir of I. C. or Filio juniori I. S. is good But for the Christian name this alwaies ought to be perfect So in the case of a Corporation it sufficeth to have a sufficient demonstration of the place where the Corporation is albeit it be not by the precise words comprised in the Charter as in naming Accademia Oxon. pro Villa Oxon and it is common of which I have seen divers Charters where a Town was incorporated by the name of Mayor and Comminalty of such a Town as Bristoll Exeter and others which afterwards have been made Cities and yet Charters made to them and Grants made by them by the name of Mayor and Comminalty of the City is good but more precisenesse is vsed in the body of the name of a Corporation before the place to which they are annexed and yet in them that which is but an ornament to the name comprehended in the Charter shall not hurt the Grant as of Chapiter of S. George of Windsor if it be of S. George the Martyr and the like the Grant by such a name is good because the Martyr is but an addition of Ornament to the name comprised in the Charter and it is no other but the same in re vera So here if it had been Domini nostri Jesu Christi because it is the same and is but an ornament to the word Christ comprised in the Charter and so should it be also if it had been Christi filii Dei Salvatoris nostri because it is but a true addition to the same wherupon Iudgment was given for the Plaintiff as appeareth in the Kings Bench Pas
in his custody and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff but would hâ—ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody but the new Sheriff refused to receive him unlesse Dabridgecourt would deliver him into the common Gaol of the County which was in the Town of Warwick wherupon afterwards the Prisoner escaped And Dabridgecourt was charged with this Escape and not the new Sheriff for he is not compellable to take the Prisoners of the delivery of the old Sheriff but in the common Goal of the County and the old Sheriff remains chargeable with the Prisoner untill he be lawfully discharged of him and if the Sheriff dies the party shall be rather at a prejudice then the new Sheriff without cause charged with him And in such a case the party who sued the execution may help himself to wit by the remaining of the body by a Corpus cum causa wherby he may be brought to be duly in execution and this under a due Officer And Anderson Periam and other Iustices were also of opinion that the said Skinner and Catcher are to be charged with the escape in the principall case wherupon Iudgment was given for the Plaintiff which was entred Hillar 34 Eliz. Rot. 169. in the B. R. Fulwood versus Ward 2. IN a Writ of Annuity brought in the Common Pleas by George Fulwood Plaintiff against William Ward Defendant the Case was thus The Queen was seised of a Barn and Tithes of Stretton in the County of Stafford for the life of the Lord Paget and being so seised demised it by Letters Patents dated 21. June 29 Eliz. to the said William Ward for 21. years wherupon the said Ward by Writing dated 30. Iune 29 Eliz. granted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing payable yearly upon the 8. day of November with clause of Distresse The Lord Paget died the first day of March 32 Eliz. and for the Arrearages after his death the Plaintiff brought this Writ of Annuity and for the difficulty therof in the Common Pleas the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet where it was agreed by Walmsley Fennor and Owen that the Annuity was gone by the determination â—â— his Estate in the Land who made the Grant for they said that presently upon the Grant made as before it was a Rent-charge for by such a Rent granted in Fee the Fee shall be in his Heirs albeit the Grantee dies before any Election made and such a Rent is payable from the beginning at the Land as appeareth by 12 E. 4. And by grant of Omnia terras tenementa hereditamenta such â— Rent will passe ergo it is a Rent-charge and not an Annuity untill the Election made and by the determination therof in the nature of a Rent the Election is gone as by Babington and Martin 9 H. 6. by the recovery of Lâ—nd charged with such a Rent by elder Title the Annuity is gone as it seeâ—s by their opinion and by them and by Littleton upon a Rent-charg◠〈◊〉 with Proviso that he shall not charge the person of the Grantor 〈…〉 exclude the charge of the person which proves that the Land is charâ—â—â— Originally and not the person for otherwise the Proviso would be void for the repugnancy And if so whensoever the Land is discharged as by 〈…〉 â—â—â—cent or the like the person therby is also discharged and therfore â—he Iuâ—gment here shall be that the Plaintiff shall be barred But by the chief Iustices chief Baron and all the other Iustices and Barons the Plaintiff ought to have Iudgment in this case to recover the Annuity for the Law gives him at the beginning an Election to have it as a Rent or an Annuity which matter of election shall not be taken from him but by his own Deed and folly as in case where he purchase part of the land charged in which case by his own Act he hath excluded himself of his Election But if a Feoffee upon condition grant a Rent-charge and presently break the Condition wherupon the Feoffor re-enter shall not the Feoffee be charged by Writ of Annuity surely it shall be against all reason that he by his own act without any folly of the Grantee shall exclude the Grantee of his Election which the Law gives at the beginning And they denied the opinion of 9 H. 6. to be Law But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the Disseisen by his re-entry before the Annuity brought the Annuity is gone for this was his own act yet in effect all of them agreed that Prima facie it shall be taken as a Rent-charge of which the Wife shall be endowed as hath been said which passe by grant of Omnia hereditamenta and which is payable at the Land but the reason is because it is expresly granted out of the Land and also for the presumption of Law that it is more beneficiall for the Grantee to have it in such a degree then in the other But neither the presumption of Law nor the expresse Grant therof as a Rent shall not take away from the Grantee the benefit of his Election where no default was in him but that upon his Election he may make it to be otherwise as ab initio And therfore by Popham If a Rent-charge be granted in tail the Grantee may bring a Writ of Annuity and therby prejudice his Issue because that then it shall not be taken to be an Intail but as a Fee-simple conditionall ab initio And if a Termer for two years grant a Rent-charge in fee this as to the Land is but a Rent charge for two years and if he avow for it upon the determination of the Term the Rent is gone but by way of Annuity it remains for ever if it be granted for him and his Heirs and assets descend from him who granted it And if a Rent-charge be granted in fee and doth not say for him and his Heirs if the Grantee brings his Writ of Annuity the Heir shall never be charged therwith yet if he had taken it as a Rent-charge the Land had been charged with it in perpetuity And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good is because the person is not expresly charged by such a Grant but by operation of Law But in such a case a Proviso that he shall not charge his Land is meerly void for the repugnancy because there the Land is expresly charged by precised words and therfore if it be expresly comprised in such a Grant that the Grantee may charge the Land or the person of the
E. 6. with the assent of the Dean and Chapter and by Writing indented demised the said Prebend to the said William Sydall for 43. years from the Feast of the Annunciation of our Lady in the year of our Lord 555. at the yearly rent of 361. William Sydall assigned over his term and died making the said Thomas his Executor Henry Sydall also died and afterwards the Plaintiff was made Prebend and for the rent arrear in his time and after the assignment this Action is brought against the Executors in the Debet and Detinet And it was alledged that in Hillary Term 36 Eliz. Rot. 420. in the case between Glover and Humble it was adjudged in the Kings Bench that the Grantee of the Reversion shall not maintain an Action of Debt upon a Lease for years against the Lessee himself for any arrears of Rent incurred after that he had made an assignment of his Term over to another and alledged also that in Hillary 29 Eliz. in a case between it was adjudged that an Action of Debt lyeth for the Lessor himself against the Lessee for arrearages of Rent reserved upon the Lease and accrued after the Lessee had assigned his Term over and both these cases were adjudged accordingly in the Kings Bench and the reason in the first case was because that by the Grant of the Reversion over the privity of contract which was between the Lessor and the Lessee is dissolved and the Grantee of the Reversion as to it but a stranger But in the last case the privity of contract is not dissolved between the Lessor and the Lessee notwithstanding the Lessee hath passed over his Term neither is the contract therby determined between the parties But Fennor said that in this case the privity in Deed is gone by the death of the Lessee and therfore the Executor who is but privy in Law is not subject to this Action unlesse in case where he hath the Term in which case he shall be charged as he who hath Quid pro quo which is not in the case here And he said further that a Lease made by a Prebend is good no longer then his own life but is meerly void by his death and therfore shall not be said to be a contract to bind further then his life and therfore also he said that the Action will not lye in the said case for the Successor But Gawdy said that here the Lease is confirmed and therfore good during the Term but it seemed to him that the Executor who is but in privy in Law shall not be chargable with this action for the arrearages due after the assignment over and yet he agreed that the Heir the Successor and the Executor of the Lessor shall have debt against the Lessee himself for the arrearages which accrues to be due after the assignment over of the Lease But he said that the Action of Debt against the Executor upon a Lease made to the Testator and for the arrearages due in the time of the Executor ought to be in the Debet and Detinet and that for the occupation of the Term wherby he hath Quid pro quo which is not in this case Popham said that for the time that the contract shall bind in nature of a Contract there is not any difference between thâ— Heir the Successor and the Executor of the Lessor and the Executor or Administrator of the Lessee for the one and the other are equally privy to the Contract and a Contract or Covenant especially being by writing binds as strongly the Executor or Administrator as the Testator or the Iâ—testate himself who made it For these are privies indeed to the Contract and as to it represent the person of the Testator or Intestate himself And he agreed that the Action of Debt against the Executors for the arrearages of Rent of a Lease which he occupies as Executor and accrued in their own time shall be in the Debet and Detinet The reason is although they have the Land as Executor yet nothinâ— ther of shall be â—mpâ—â—yed to the Execution of the Will but such Prâ—fits as are above that which wâ—s to make the Rent and therfore so much of the Profits as is to make or answer the Rent they shall take to their own use to answer the Rent and therfore they having Quid pro quo to wit so much of the Profits for the Rent the action ought to be brought against them in such cases where they are to be charged in Debt for Rent upon a Lease made to the Testator and have not the Profits of the Lease it self nor means nor default in them to come to it the action of Debt ought to be against them in the Detinet only and this is the case here and therfore the action being in the Debet and Detmet doth not lye And further he agreed in this case to the opinion of Fennor that the action here doth not lye for the Successor of the Prevend who made the Lease for no more then the Successor in this case shâ—ll be bound by the Contract of his Predecessor no more shall he take advantage by this Contract for it is the consideration which makes him to be bound and not only the Câ—ntract and so the Successor in such cases is but privy in Law and not in Dâ—ed tâ— the Contract of his Predecessor But otherwise it is â—f the Successor of a Bishop and the like which Leases are not void against the Successor but voidable Case of Armes 2. VPon an assembly of all the Iustices and Barons at Sergeants-Inne this Term on Munday the 15. day of April upon this question mâ—ved by Anderson chief Iustice of the Common Bench Whether men may arme themselves to suppresse Riots Rebellions or to resist Enemies and to endeavour themselves to suppresse or resist such Disturbers of the Peace or quiet of the Realm and upon good deliberation it was resolved by them all that every Iustice of Peace Sheriff and other Minister or other Subject of the King where such accident happen may do it And to fortifie this their resolution they perused the Statute of 2 E 3. cap. 3. which enacts that none be so hardy as to come with force or bring forcâ— to any place in affray of the Peace nor to go or ride armed night nor day unlesse hâ— be Servant to the King in his presence and the Ministers of the King in the execution of his Precepts or of their Office and these who are in their company assisting them or upon cry made for Weapons to keep the Peace and this in such places where accident happen upon the penalty in the same Statute contained wherby it appeareth that upon cry made for Weapons to keep the Peace every man where such accidents happen for breaking the Peace may by the Law arme himself against such evill Doers to keep the Peace But they take it to be the more discreet way for every one in such a case
Living And Mountague chief Iustice said that this word Bribing doth not import that he took a Bribe and therfore this word and all the other words but corrupted Knave are idle but these words impeacheth him in his Office for it hath reference to that and therfore is actionable And Iudgment was given accordingly The same Term in the same Court Sir Baptist Hickes Case in the Star Chamber SIr Baptist Hickes having done divers Pions and Charitable Acts to wit had founded at Camden in Glocestershire an Hospitall for twelve poor and impotent men and women and had made in the same Town a new Bell tunable to others a new Pulpit and adorned it with a Cushion and Cloath and had bestowed cost on the Sessions House in Middlesex c. one Austin Garret a Copyholder of his Mannor of Camden out of private malice had framed and writ a malicious and invective Letter to him in which in an ironicall and deriding manner he said that the said Sir Baptist had done these charitable works as the proud Pharisee for vain-glory and oftentation and to have popular applause and further in approâ—rtous manner taxed him with divers other unlawfull Acts And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law for he cannot prove his case to wit the publishing of it but because Where a private Letter is punishable as a Libell it tends to the breach of the Peace it is punishable in this Court and the rather in this case because it tends to a publike wrong for if it should be unpunished it would not only deter and discourage Sir Baptist from doing such good Acts but other men also who are well disposed in such cases and therfore as the Arch-bishop observed this was a wrong 1. To Piety in respect of the cost bestowed on the Church 2. To charity in regard of the Hospitall 3. To Iustice in consideration of the Session House and these things were the more commendable in Sir Baptist because he did them in his life time For as Mountague chief Iustice observed they who do such acts by their Will do shew that they have no will to do them for they cannot keep their Goods any longer And he only took a diversity where such a Letter concerns publike matter as they did or private in which case it is not punishable But the Lord Coke said that it was the opinion of the Iudges in the Lord Treasurers case when he was Attorney that such a private Letter was punishable in this Court and therupon he had instructions to exhibit an Information but the Lord Treasurer Jacens in extremis was content to pardon him and so it was resolved between Wooton and Edwards And Sir Francis Bacon Lord Chancellor said that the reason why such a private Letter shall be punished is because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice and for fear that the other party would publish it so that this compulsary publication shall be deemed a publication in the Delinquent and in this case the party was fined at 500 l. The same Term in the same Court. Bernard versus Beale AN Action upon the case was brought for these words viz. That the Words That the Plaintiff had two Bastards 36. yeaâ—s since Plaintiff had two Bastards 36. years ago upon the report wherof he was in danger to have been divorced And it was resolved that for Defamation there was no remedy but in the Spirituall Court if he had no temporall lesse therby and therfore it is not sufficient to ground an Action to say that he was in danger to be diverced but thâ—t he was De facto divorced or that he wâ—s to have a presentment in marriage as it is in Anne Devies case Co. lib. 4. The same Term in the same Court. Brabin and Tradums Case THe Case was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church wherupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his A Prohibition for a Seat in the Church Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the person but to the house for otherwise when the person goes out of the Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabola In the same Term in the same Court. Fulcher versus Griffin THe Parson of D. covenanted with one of his Parishoners that he should A Parson covenant that his Parishoners shall pay no Tithes pay no Tithes for which the Parishoner covenanted to pay to the Parson an annuall summ of money and afterwards the Tithes not being paid the Parson sued him in the Court Christian and the other prayed a Prohibition And it was agreed that if no interest of Tithes passe but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this case was that this was a bare Covenant and that no interest in the Tithes passe The custody of a Copyholder that was a Lunatick was committed to Darcies case in the Common Pleas. I. S. and for Trespasse done upon his Land it was demanded of the Court in whose name J. S. should bring the action and their opinion was that it should be in the name of the Lunatick Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case THe Earl of Northumberland being seised of the Mannor of Thistleworth in which he had a Leet to be holden twice a year to wit within a moneth after Easter and a moneth after Michaelmas and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet which was presented at the Leet for a common Nusance for which Devell was amerced 40 s. and was commanded to remove it upon pain of 10 l. for the which a Distresse was taken by Henry Sanders and others as Bailiffs to the said Earl wherupon Devell brought a Replevin and they made Avowry and justified as Bayliffs and prescribed that they used to make by-laws to redresse common Nusances and also prescribed in the Distresse And the point in question was whether the new erecting of a Dove-coat by a Free-holder were a common Nusance punishable Whether the erecting of a Dove-coat be a common Nusance in the Leet And it was resolved by the whole Court upon