infeoff another of all the Lands whereof my Father died seised in an Action agâ—inst me I ought to set forth the certainty of the Land whereof he died seised And although the Executor does represent the person of the Testator yet the Act of the Executor is not the Act of the Testator not like to the Case of an Attorney 32. Ed. 3. Bar 264. If one be bound to enfeoff another it is sufficient if the Attorney be ready to make the Feoffment and so in the 19. H. 6. the same Law to confesse an Action but when an Executor does an Aâ—â— for the Testâ—tor it is otherwise as if the Executor sell Land it must be so pleaded for a dead person cannot sell Land And afterwards the Plaintiff discontinued his Suit Hillar 13. Jac. Norris Plaintiff against Henry Baker and Elizabeth Baker Defendants IN an Action of Trespasse for that the Defendants the 28. Octob. 13. Jac. by force and armes c. upon one Thomas Davis and Nicholas James Servants and Workmen of the Plaintiff did make an assaâ—â—t and them there labouring in the service of the Plaintiff did wound c. whereby the Plaintiffs lost their Service to his damage of forty pounds c. The Defendants as to the forme and according did plead not guilty whereupon issue was joyned And as to the residue of the Trespasse they say that at the time of the Trespasse the said Henry was and yet is possessed of an ancient House with the appurtenances in Worcester for divers years to come the which house doth joyn to a void peice of land in Worcester against the South and that at the time wherein c. and also time out of mind there were ancient Windows or Lights in and upon the South-side of the aforesaid house against the said peice of land through which the light did enter into the said house and the said Henry did enjoy great and necessary Easements and Commodities by reason of the open Ayre and light shining and entring into the said house by reason of the said Windows and Lights aforesaid and the said Thomas Davis and Nicholas Jones maliciously plotting and intending to deprive the said Henry of all the Easement and commodity of the aforesaid Windows and Lights Et Messuagium illud horrida tenebritate obscurare the said day and year did intend to build a house upon the said peice of land and did there then erect divers peices of Timber for the building of the said house which house if it had been built the said Henry should have lost the said easements and commodities wherefore the said Henry and the other Defendant who was his Servant by his commandment the said time wherein c. being in the said house did hinder the said Thomas Davis and Nicholas Jones from building the said house and the Defendants with a Staff did thrust down the said peices of Timber wherewith the said Thomas Davis and Nicholas Jones would have built the said house and did thrust and put away the said Thomas Davis and Nicholas Jones least they should build the said new house Prout eis bene licuit which is the same Assault and Battery of the said Thomas Davis and Nicholas Jones whereof the Plaintiffs complain Vpon which Plea the Plaintiffs demurred in Law And I conceive the Iudgment ought to be given for the Plaintiff Because the Defendants have made no answer to the first matter of the Action which is the losing of the Service for it is not shewne throughout the Bar that the said Davis and Jones did make the building as Servants to the Plaintiff or by his commandment and 2. H. 6. 13. In a Trespasse for cutting of Trees where the Defendant pleaded that the place where c. was the Freehold of I. S. who let the same to the Defendant at Will and adjudged no plea by the Court unlesse he had said by which he entred and cut the Trees and so justified the Action 3. H. 6. 54. In a Trespasse for beating of his Tenant the Defendant said he was his Servant and the Issue was whether he was his Servant or not 31. H. 6. 12. B. 5. H. 7. 3. 20. H. 7. 4. and 20. H. 7. 5. A Master shall not have an Action for beating of his Servant unlesse he saies Per quod servitium amisit The cause of Iustification is because the Servants did endeavour to erect a Building which is not issuable There is no cause of Iustification for how can the Defendant know that the building will be to his hurt or nusance to him untill the building be erected and if it be to his nusance he may abate the same by Law The Plea is double for first they set forth that they had Lights c. and then they alledge that the new house was built for the word if is wanting and 33. H. 6. 26. In an Action on the Case the Writ was good Cum ipse habeat quoddam Cheminum ratione tenurae c. the Defendant levavit murum per quod querens Cheminum habere non potest c. It was holden by Prisoit that the Writ was not good by reason of the Repugnancy And this Case was argued again by Barcley for the Defendant and by me for the Plaintiff Judgment Tr. 14. Jac. And all the Court held the Plea in Bar to be insufficient for which Iudgment was given for the Plaintiff Rot. 256. Hillar 13. Jacob. Edward Smith for the King and himself against Stephen Bointon IN an Information because the Defendant between the twentieth of June 12. Jac. and the fourth of July next after at Westminster in the County of Middlesex did buy ingrosse and obtain into his hands by buying and contracting of divers persons unknown three hundred quarters of Barley of the value each quarter of twenty pounds a hundred quarters of Beans of the value of twenty pounds every quarter Ad revendendum contra formam statuti c. whereupon an Action accrued to the King and the Informer to have of the Defendant foure hundred pounds viz. the value of the Barley and Beans whereof the Informer prayed a moyety c. The Defendant as to the Ingrosment between the twenty second of May 13. Jac. and the said fourth of July next after pleaded not guilty And as to the Ingrosment between the said twentieth day of July 12. Jac. and the said twenty second of May next after The Defendant saith that before the exhibiting of the said Information sc the twenty second of May 13. Jac. one Robert Beadow did exhibite an Information in the Exchequer for the King and himself against the Defendant because the Defendant between the first of June last and the day of the said Information did ingrosse five hundred quarters of Wheat of price every quarter thirty pounds five hundred quarters of Barley of price every quarter twenty pounds five hundred quarters of Oates of price every quarter twenty shillings and five hundred quarters of Beans and Pease
April And whereupon the Defendant demurred in Law And I conceive that the Action will not lie for the Arbitrement is bond because the Arbitrators have exceeded their authority First because they have no power to discharge any action or duty accrued to any of the parties as Administrators Secondly because that by the Release the Obligation it self to stand to the Arbitrement is discharged Cook 10 Rep. 131. where Moor brought an Action against Bedell upon a promise to stand to the Arbitrement of A. and B. concerning all matters then in difference between them and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant in consideration of this submission did assume that he would not sue any Execution upon a Iudgment And the Plaintiff there assigned two Breaches one that he did not Release the other that he sued Execution And this was found for the Plaintiff upon a non assumpsit and entire damages given and then after it was reverst by Error because that the agreement as to the Release was voyd and therefore the damages being entire the Iudgment was erroneous And Michaelm 11 Jacob. Rot. 155. Staires against Wilde wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters c. And they made an Award that one should pay to the other 3 l. and that each should release all Actions and Demands and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all because it was to release all Actions at the time of the Release which is not within the submission And Pasch 42 Eliz. Rot. 211. Knap against Mâ—w where the condition was to perform an Award of certain things c. who did award that one should pay 20 l. to the other and that each should release all Actions and Demands and the breach was assigned in non-payment of the mony and it was adjudged that the Award was voyd And at last all the Court agreed that the Award was good as to all that was submitted to and voyd for the others and that the breach being assigned in a matter submitted to does give a sufficient cause of Action to the Plaintiff Wherefore it was adjudged that the Plaintiff should recover c. Hillar 13 Jacob. Smith against Whitbrook IN an Action on the Case for words viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou meaning the Plaintiff art a Traytor and an Arch-traytor and I meaning the Defendant will hang thee or be hang'd for thee and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton Knight and Robert Castle Esq two Iustices of Peace of the said County for Oyer and Terminer c. and did complain to the said Iustices that the Plaintiff had said and published divers Traytorous words of the King by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices and there was imprisoned and did so remain until the next Sessions of Peace of the said County holden the 4 of Octob. 12 Jacob. before Robert Bell Knight Robert Payn Knight and other Iustices c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions to answer to such things as should be objected against him on the behalf of the King and in the mean time to be of good behavior c. At which next Sessions holden the 10 Janu. 12 Jac. before the said Iustices and other Iustices the Plaintiff did appear upon which the Defendant the same day and year in the publique Sessions did say of the Plaintiff I meaning the Defendant do accuse Robert Smith meanining the Plaintiff absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices and there remained in prison for the space of a month whereas the Plaintiff did never speak and Traytorous words against the King nor had committed any Treason against the King and this he layd to his damage of 1000 l. The Defendant pleaded that before the time wherein the said words are supposed to be spoken viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King did speak of him these Traytorous words The King meaning our Lord the King is a scupry King and so justified the several words and also the procurement of the Plaintiff to be brought before the said Iustices The Plaintiff by Protestation saith that he did not speak the said words of the King and for plea did demur in Law and the Defendant joyned Judicium And after Iudgment was given for the Plaintiff without reading the Record or having any argument because that the justification was insufficient and the Record was not read because it imported Scandal to the King Cooper against Smith IN an Action on the Case for words scil Thou and Waterman did kill thy Masters Cook meaning one Yarnton late Servant of Francis Dingley Esq and thou wast never tryed for it and I will bring thee to thy Tryal for it The Defendant pleaded Nor guilty and it was found for the Plaintiff and it was moved in Arrest of Judgment that it was not averred that the Plaintiff had a Master and that Francis Dingley was his Master but resolved that it need not be aveâ—â—â—d for if he had no Master yet it is a Scandal as if one should say Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse and if everment be necessary it is averred here when he said Thy Masters Cook and there it is averred that the Cook was servant to Francis Dingley and it follows also that Francis Dingley was Master to the Plaintiff Judgment Wherefore Judgment was given for the Plaintiff Trinit 14 Jacob. Weal against Wells IN an Action on the Case for that the Defendant the 22 of Novemb. the 13 of King James crimen Felonie querenti false malitiose imposuit and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant and caused him to be brought before Sir Thomas Bennet one of the Iustices of Peace c. and out of malice also at the Sessions of Peace at the Guild-hall London before the Major and other the Iustices of Peace c. did cause him to be indicted maliciously and falsly for the Felony of stealing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage c. 100 l. and did aver the matter in the indictment to be false The Defendant said that the 18 Novemb. 13 Jacob. he was possessed
difference in such case between a Lease for years ib. Entry and Claim Where the heire shall not enter for Rent reserved by the Ancestor 45 Error In Dower for not demanding in certain 56 Where the writ is suspended by making a Lease for the term 57 What Certificate ought to be of a writ of errour and the mannor of it ib. What persons shall have a Writ of error 71 72 Execution Where upon a Capias pro Fine or ad satisfaciendum the Defendant shall be said to be presently in execution without prayer of the party and where not 7 Executors Administrators and Assignes Vid. Devises Who shall be adjudged an Assignee in Law to take a Lease 40 Executor of Executor is the Assignee in Law of the first Testator to take a Lease ib. Felony IN a false imprisonment for felony the Defendant who justifies must shew some matter in fact to induce his suspition 62 What shall be a good suspition to apprehend one for felony 62 Forests Woods and Parks Definition of a Forest and what makes a Forest 26 Subject can have no Forest ibid. Prescription to have a Park in a Forest how good ibid. Park in a Forest not sufficiently inclosed how forfeited 27 New fees to a Keeper of a Park not good against the Successor 31 32 Fraud Covin Vsurious Contracts Fraud Covin or usurious Contracts although proved yet must be found to be so by the Jury or else not good 112 Habendum WHere void for contradiction of former words of grant 101 Infant WHat persons shall take advantage of Infancy to avoid the estate made by an Infant 44 Feoffment by Infant none shall avoid it but himself and his heirs 44 45 Appearance for an Infant by Attorney not good 73 How he shall sue and how defend and who shall be his Guardian 74 By whom he shall appear 75 What things are voidable made by him and who shall avoid them ibid. Joyntenants and tenants in Common What Act shall binde the surviving Joyntenant and what not 43 Rent Charge on condition preceding the estate shall not bind the survivor ibid. What Rent the surviving Joynt-tenant shall have Vid. Rents Where the entry of one is the entry of both 129 Where the Assignment of Dower by a Joynture to his wife shall binde his companion 130 Issue joyning Where the Issue shal not be joyned because the Counties cannot joyn 62 Where the Issue is of matter of Record or of matters done in two Counties the issue shall be upon one only 63 Jury Jury not guilty of Conspiracy for finding any person guilty of felony because they be upon their oaths 131 Leases WHat agreement makes a lease for years without the word Demise and grant 13 Lease for years no time to begin begins presently 21 The Stat. 1 Eliz. concerning Leases made by Bishops expounded 29 30 License Vid. Authority Limitation Vid. Condition Master and Servant WHat things a Master shall answer for his servant 128 Obligations BOnd for payment of money and no day of payment no damages without demand 20 Occupant WHat things shall go to an occupant and what not 94 How the occupant shall plead ibid. Park Vid. Forest Parson and Patron Vid. Ecclesiastical persons Payment satisfaction and demand BOnd for payment of money and no day appointed no damages without demand 20 Vid. Obligation Where generall averment of payment and satisfaction shall be good 81 Release of all demands how far and the large extent of it 124 Pleading Where a Declaration in an Action on the case ought to be particular and where general 5 Matter doubtfully pleaded most strong against him that pleads it 46 Release pleaded in Dum fuit infra aetatem Vid. Releases To what time the word Existence shall be applied 68 Non tenure where the tenant may plead it and where not 73 Prescription and limitation Prescription to kill and hunt Conies for preservation of Common not good 11 Where unreasonable and void 11 12 Of a Common in a Forest not good 26 Of profit or Common in land excluding the owner not good ib. For a Park in a Forest Vid. Forest Releases and Revocations AUthority to revoke how strictly to be observed 21 Stat. 27. Eliz. concerning Revocations explained 22 Pleading of a Release by the Defendant in a Dum fuit infra aetatem 46 Release in Trespass not good without shewing it was before the trespass ibid. Where the first clause in the Release shall make the Release good although a subsequent sentence make it but conditional 102 Of all Demands the best Release and what is thereby released 124 Rents Where the wives acceptance of the Rent makes the Lease made by the Husband to be good 43 Surviving joyntenant shall not have the Rent reserved on a Lease made by his Companion 44 Where the Devisee of a Rent shall lose the Rent by becomming Executor 54 Reversion Grant of a Reversion at a day to come void and why 109 Statute Merchant and of the Staple FOrm of the Statute Merchant 17 The scope and signification of the Statute Merchant and why made with explanation thereof and the way of proceeding therein 19 20 No day of payment exprest good presently 20 Release to Conusor of a Statute of all right in the Land no bar 124 Statutes 27. Eliz. Concerning Revocations 22 5. Ed. 6. For Ingrossing 6 11. Hen. 7. 20. Concerning Estates Tail expounded 28 1. Eliz. Concerning Leases made by Bishops expounded 29 â—0 31. 32 H. 8. Concerning dissolutions of Religious houses explained 32 33 39. Eliz. 2. For conversion of Tillage expounded 89 5. 39. Eliz. For rating Servants wages 119 23. 28. Eliz. Concerning Recusants expounded 122 The Statute 11. H. 7. 20 expounded 28 Taile WHere the heir in Tail shall be bound by a Lease made by his Father and where not 27 28 65 Where the heir of tenant in Tail shall be remitted and where not 103 Tenant in Common Vid. Joyntenant Tenant at will Makes a Lease and the Lessee enters the Lessee is only Disseisor otherwise of a Feofment 14 Testator Vid. Devises Trespasse Where a man for the publick good may justifie a Trespasse 11 Trust and Confidence An excellent President of a Decree in Chancery declaring where one Trustee shall be answerable for the other and where not 35 36 37 Two Trustees and one assigneth over the Assignor shall be answerable 38 Tythes Any man may hold land discharged of Tythes 33 Lease by a Parson of his Gleab he shal have his Tythes notwithstanding ibid. Vsurious Contracts Vid. Fraud Warranty COllaterall Warranty binds the right but only till the Warranty be defeated 77 Waste Grant to the Tenant that he shall not be impeachable of Waste he shall not plead this in Bar but only have an Action of Covenant thereupon 117 Wills Vid. Devises Woods Vid. Forests FINIS
bargain and sell 10 l. Land parcel of the Mannor no use is changed for the incertainty Trinit 18 Jacob. Ponesley against Blackman IN an Ejectment upon a Lease made by Richard Perriam the 19 of May 18 Jacobi of a Messuage and Land in Thacham and Colthrop in the Parish of Thacham Habendum from the Annunciation last past for three years whereupon the Plaintiff entered and was possest until the Defendant the 20 of May in the same year did Eject him ad dampnum c. The Defendant pleaded Not guilty The Iury gave an Especial Verdict viz. That before the Ejectment John Curre was seised in fee of the said Lands and the seventh of January 10 Jac. for 300 l. did bargain and sell the same to William Perriam and his Heirs upon Condition that if the said John Curre his Heirs Executors or Assignes should pay to the said William his Heirs or Assignes at the house of C. B. in Westminster 300 l. in manner following viz. 10 l. the 9 of July then next coming 10 l. the 9 of January next after which shall be in the year 1613. 10 l. the 9 of July 1614 10 l. the 9 of January next after 10 l. the 9 of July 1615. 10 l. the ninth of January next after 10 l. the ninth of July 1616. 10 l. the 9 of January next after 10 l. the 9 of July 1617. and 210 l. the 9 of January next after that then the Indenture should be voyd Proviso semper And it was agreed by the said Indenture and the said parties that the said William Perriam his Heirs and Assigns shall not take and intermeddle with the actual possession of the said Tenements or with the receit of the Rents issues or profits thereof until default were made of the payment of the said 300 l. or any part thereof contrary to the limitation in the said Indenture And they found likewise that the said William Perriam did not enter into the said Tenements And that afterwards and before the first day of the payment the said Curre did demise the said Tenements to William Dibley and Richard Carter by two several Demises habendum for six years and an half rendering Rent That the said Dibley and Carter by vertue of the said several Demises did enter and take the profits during the said term claiming nothing but by the said several Demises and that they payd the Rents during all that time to Curre and that at the end of the said term they surrendered the Estate to Curre That 11 Octob. 16 Jacobi William Perriam made his Will in writing and thereby did Demise the said Tenements c. to Richard Perriam and dyed That the said Richard Perriam the 19 Maii 18 Jac. did enter and made the Lease to the Plaintiff who entered and was possest until the Defendant did Eject him That the said Richard Perriam was yet living But whether the Defendant were guilty or not they prayed the advice of the Court and if it seemed to the Court that he was guilty then c. It was argued on behalf of the Plaintiff That this agreement by Indenture that the Bargainee shall not meddle with the possession is a Lease for years to the Bargainor Admitting it to be no Lease for years yet is the Bargainor Tenant at will and when he makes a Lease for years and the Tenant enters he is a Disseisor and then when the Bargainor enters he is Tenant at will again and so the Bargainee may very well Demise the Land And as to the first point to make a Lease the Law does require but the agreement of the parties that the Lessee shall enjoy the Land and take the profits and it is not necessary to have any precise words of a Demise or Grant as in 5 H. 7.1 by Frieux If I make one Bayliff of my Mannor for certain years and that he shall have the profits without interruption this is a Lease for years But it was objected that there is no express words that the Bargainor Object 1 shall have the Land or the profit but onely that the Bargainee shall not have it But it was answered that the words did amount to so much Respons for when the Land is sold to the Bargainee by the Law he ought to have the possession and profits but when by the same Deed it is agreed that he shall not intermeddle with the Land it follows that the Bargainor shall have it for he had it before and there was nothing to exclude him but onely this Deed and although by the Deed the Land is conveyed to the Bargainee yet when by the same Deed it is agreed that he shall not have the possession it follows that the possession shall remain in the Bargainor in whom it was before the making of the said Deed for no alteration is made thereof as to the possession As in the 8 Assis 34. one made a Feoffment on condition that if such an act were not done that the Land should return c. and the Feoffor re-entered for the condition broken and there it was objected that his entry was not congeable because he must recover the Land by Action but it was adjudged that his entry was good and the same Law if the words were that for not performing the Feoffor should retake the Land But it was objected That it could be no Lease for the intertainty Object 2 of the time It was answered that notwithstanding it was a good Lease Respons for first it is certain to continue until the time limited for the first payment and if that be done then it is a good Lease until the second payment and is like to the Case where one lets Land for a year and so from year to year as long as both parties shall please this is a good Lease for one year and for every year after when he hath entered before any disagreement And as to the second Point it is clear that the Bargainor is in at the will of the Bargainee because he enters by his agreement and then when the Tenant at will makes a Lease for years and the Lessee enters he is the onely Disseisor but if the Tenant at will infeoffs a stranger then both are Disseisors by the Statute of Westm 2. Cap. 25. And in the 12 Ed. 4. 12 B. If Tenant at will makes a Lease for years this is a Disseisin And the reason hereof is apparent for the Tenant at will hath no Estate in the Land and therefore he hath nothing to transfer to another And in the 23 H. 8. B. If I let anothers Land for years and the Lessee enters he is a Disseisor And 21 H. 7. 26. a. If Tenant at will makes a Lease for years and the Lessee enters this is a Disseisin to the first Lessor And if the Tenant at will be outed by the Disseisor and re-enters he hath reduced the Estate to the Lessor as in the Lord Abergevenies Case reported briefly by the Lord Dyer
themselves Breach 2 And that after Viz. the ninteenth day of June 13 Jacob. at a Port called Cape Corants beyond the Seas one Matthew Navale did joyne with the Defendant and the sayd Commissioners and they together did saile to the Coast of Champeach in the West-Indies and did there put a shoare the said Hope-well and three other Ships and there then upon the high Sea by force and arms did take and spoyl another Spanish Frigot laden with 100 Hides which Ship and the goods in her was the Ship and goods of divers persons subject to the King of Spain then and yet in league with the King And that after to wit the 20 Junii 13 Jacob. at the Town of River Breach 3 de Garta in the West-Indies the said Defendant and the others c. by force and arms did take and spoyl another Spanish Frigot laden with 150 Hides which Ship and goods were the Ship and goods of divers persons subject to the King of Spain then and yet in league with the King And that also then the said persons by force and arms did take and Breach 4 spoyl a certain Town beyond the Seas and from thence did take and carry away twenty Iars of Hony of the Goods and Merchandize of the Inhabitants of the said Town being subjects of the King of Spain and then and yet in league with our King And also there by force and arms did take and spoyl another Spanish Breach 5 Frigot laden with 63 Chests of Coucheneal and 700 Hens c. of the goods of divers persons being subjects of the said King of Spain then and yet in league with our King And that the Defendants did not come to the Port of London after their return c. And concluded that the Defendant did not keep his Covenant to make no spoyl or to do any act whereby any detriment should come c. ad damnum 3000 l. c. The Defendant as to the said five first Breaches did demur in Law because they were not alledged in such manner as any issue or tryal may be had And as to the other he pleaded that the Plaintiff did prohibit him from coming to London And it seems that Iudgment ought to be given upon the demur against the Plaintiff For first there is no covenant to binde the Defendant for the words are praedictus State-General doth covenant and there is no other name in the Covenant given to the Defendant and that is not sufficient to binde him 1. Because he is not named State-General before but Naute Stratageneral 2. This is no parcel of his name before or addition but is as his title or is a pronomen and that is not sufficient for the pronomen is but as an alius dictus 5 Ed. 4. 141. Alexander Cock Clericus alius dictus A. C. nuper de D. in Comitatu c. Clerico is no good addition because there is no addition but in the alius dictus And Dyer 119. Robert Thrower brought an Action of Debt upon a Bond by the name of Robert Thrower otherwise called Robert Throner Keeper of the Kings Gaol at Ludgate and the Defendant pleaded the Statute of 23 H. 6. 1. And it was adjudged that it shall not be presumed that he was Gaoler for it may be false As a Bond of I. S. Son and Heir of I. S. yet he may be a Bastard and a Bond by A. the Wife of I. S. who is sole is good notwithstanding And Dyer 304. B. in an Ejectment the Plaintiff declared of a Lease of 100 acres of Land by the name of the Mannor of D. habendum the Mannor and the premisses c. whereupon he entered into the Mannor and premisses Quaere If it be good and agreed to be sufficient by the word premisses There is no breach assigned for as to the first breach that is onely that D. E. and his company did take c. a Spanish Frigot and that is no breach of covenant in the Defendant for that the covenant is not several as in the 5 Rep. Slingsbies Case If a Lease be made of W. acre to I. S. and a Lease of B. acre to I. D. and the Lessor covenants with them and either of them that he is owner c. each of them shall have an Action of Covenant according to their several interests so in case of a warranty but otherwise where the interest is joynt Vide 5 Rep. Mathewsons Case And so here the Covenant of the Defendant doth extend onely to himself and his Ship and not to D. E. and his company and the allegation that the Defendant and his company did come to the said Island and divided the goods is nothing to the purpose for it may be they bought a moyety thereof or any part of them and so they might lâ—wfully divide them 27 Assis 69. In an Appeal for that one did receive stoln goods knowing of the Felony adjudged not good And as to the second breach it is not alledged that the spoyl was made during the Voyage and if it were not during the Voyage it is no breach and in as much as the Plaintiff hath not set forth that it was done during the Voyage it shall be taken most strongly against himself 26 H. 8. Pleadings 6. 3 H. 7. 2. Dyer 89. And so in all the other three breaches it is not alledged that it was done during the Voyage It does not appear that these goods thus taken were the goods of the Subjects of the King of Spain at the time of the taking of them but onely quod fuerunt bona which doth denote a time past and doth not import any present property and it may be very probable that they were their goods and that they were bought of them by some persons under the obedience of a King not in amity with our King and then it is no breach for fuerunt is so uncertain that it may be 20 or 40 years past Also it is declared Quod fuerunt bona diversarum personarum existentium subditorum Regis Hispaniae the which word existens doth refer to the time of the Declaration and not to the time of the taking for although in the 27 of H. 8. 15. and 28. that the word existens in Deeds may in respect of the subject matter be applyed to the future time yet in all course of pleading it shall be taken for the present time as in an Indictment upon the Statute of 8 H. 6. for forcible entry into Land Existens liberum Tenementum I. S. is not good because it doth refer to the time of the Indictment and not of the entry And so in the 21 H. 7. 30. A condition to discharge one of all Escapes of all Prisoners in the Goal this shall extend onely to Prisoners at the time of the Oligation made And it may very well be that they were the Subjects of one who was not in league with the King at the time of the taking and yet may be
defrauded for if no information be for the conversion within one year after or if the Convertor pay the penalty of 20 s. for the converting he may let it out to another And by pretence of the Defendants Councel he shall not be subject to penalty for the continuance But the Court agreed that he who made the conversion should be punished and so should every other occupyer of the Land who does not keep the Land in tillage Rot. 386. Michaelm 12 Jacob. Perryn against Audrey Barry IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn in Debt upon a Bond of 100 l. made the 28 of April 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond and of the Condition which was That if the Defendant Iohn Perryn his Executors and Administrators should perform the Award of Thomas Clyff Roger Glover Robert Goodwin and Thomas Piborn Arbitrators as well for the said Perryn as the said Audrey Barry elected to Arbitrate of for and upon all and all manner of Actions cause and causes of Actions Suits Trespasses Debts Duties c. and all other demands whatsoever which between the said parties at any time until the date of the Obligation have been had moved or now depending so that the same Award c. of the said Arbitrators or any three of them of the premisses be made and given up in writing indented under their hands and seals on or before the last of May next that then the Obligation shall be voyd And the Defendant did plead that the said Arbitrators did not make any Award The Plaintiff did reply that the said Roger Glover Robert Goodwin and Thomas Piborn three of the said Arbitrators the 30 of May. fifth of King James did make their Award by writing indented That the Defendant should pay to the Plaintiff 57 l. viz. upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. upon condition to pay 6 l. at certain days that the said Obligation should be to the Plaintiff in force as then it was and that she should have such benefit thereby as she might have had before and that the Plaintiff should acquit and save indemnified the Defendant from all Debts Duties and mony for which the Defendant with the Plaintiff was indebted or bound to Dingley Numan Clark Cater or any of them And that all Actions depending between the parties in any of the Kings Courts and all other Actions and causes of Action for any matter between them except the matters contained in the Arbitrement and the Obligation to perform the Award should cease c. And that if any controversie or doubt should happen between the parties for or about any word sentence or thing in the Arbitrement or of or touching the Award or any thing contained therein that the parties and their Executors shall perform such explanation and construction thereof as the said three Arbitrators should make in writing under their hands concerning the same And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the parties the same day And although the Plaintiff did perform all yet the Defendant did not pay the 10 l. the 16 of June next And hereupon the Defendant demurred in Law and the Plaintiff joyned and Iudgment given for the Plaintiff whereupon the Defendant brought this Writ of Error And assigned the first Error because the submission was to four and Error 1 the Arbitrement was by three onely But all the Iustices and Barons did hold that the Agreement was well made notwithstanding for it shall be taken now to be a submission to four or any three of them and so was it agreed in the Kings Bench where this point hath been argued at the Bar oftentimes The second was that the Arbitrators did not make any Award for Error 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant upon condition to pay 6 l. at certain days and the submission is conditional sc That the Award be made of all things c. and therefore they ought to have determined these matters For it may be that this was the principal cause why the Plaintiff did submit himself to the Award sc to be discharged of this Bond which perhaps was forfeited for not performing the condition with the penalty whereof he shall be now charged And although the Bond was made by the Plaintiff and another yet was it a cause of action depending between the Plaintiff and Defendant for she may sue him 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them the Arbitrators may make an Award of all matters which the three had against the other joyntly and of each matter which every one of the three hath against the fourth and may award that every one of the three shall pay mony to the fourth Vide Comment 389. Chapmans Case 21 H. 7. 296. In debt by a woman as Executrix the Defendant said that I. S. her husband and the Defendant did refer themselves to Arbitrament who made an agreement and the husband dyed and the Court held that the debt of the woman as Executrix was extinct by this Arbitrement The clause that the now Defendant should acquit the Plaintiff of Error 3 all Debts wherein he was bound with the Defendant to Dingley c. is insufficient because there is no Christian name The breach is assigned for that the Defendant did not pay the 10 l. Error 4 upon the sixth day of June whereas the Award was that it should be payd upon or before the 16 day of June But all did agree that this was well assigned because that when it is alledged that it was not payd upon the 16 day it was not payd before the day The Arbitrators have awarded that the parties shall stand to their Error 5 Award for construction of the Arbitrement and of all things in the Award and of all matters concerning them for the future which is not in their power for all the Award ought to be made before the last of May. They award 6 s. 8 d. to be payd by Audrey to George Write for ingrossing Error 6 of the Award which is not within the submission 1. Because Write is a stranger 2. Because it is a thing agreed on after the submission Judgment And Hill 14 Jac. The Iudgment was affirmed and they agreed the last agreement to be void but that was not materiall for the Award was void only for that and good for the residue Rot. 100. Hillar 13 Jacob. Mande against French IN
way Cum sepibus Januis and did not say praedict so that it might not be of the same Gates in the Declaration and that is there said to be a fault incurable And although we are not in the nature of a Plea in our case but of a speciall Verdict yet as I have shewed before that is all one where it wanteth matter of substance Thirdly the Confirmation is utterly defeated and avoided by the Remitter to Sir Richard Knightley and therefore the Fine cannot revive it 14. Assise 3. Tenant in Taile doth charge the Land and dies and the Issue does enfeoff a stranger he shall hold the Land discharged because the Land was once discharged by his Entry and so shall the Issue do that re-purchaseth the Land 19 Ed. 3. Resceit 112. Tenant in tail acknowledgeth a Statute and dies and the Issue enfeoffs a stranger against whom the Conusee sues out execution and adjudged there good but yet it was denyed in 11 H. 6. 26. b. by Paston and Comment 437. Smith and Stappletons case And Trin. 15 Jac. This Case was argued by Sir Tho. Coventry the Kings Solicitor for the Plaintiff by Sir Hen. Yelverton the Kings Attorney for the Defendant And Hil. 15. Jac. by Serjeant Chidborn for the Plaintiff and by Serjeant Harvy for the Defendant And Pasch 16. Jac. without any argument by the Iudges agreed for the Plaintiff and thereupon Iudgment Judgment was given that the Plaintiff should recover Mich. 14 Jac. Ashfeild against Wrendford IN a Writ of Error to reverse a Judgment given in the Common Pleas for the now Defendant against the Plaintiff in an Action of Debt upon a Bond of two hundred Marks made the first of October 9 Jac. In which the now Plaintiff then Defendant did plead that Gregory Havard was possessed of five Cowes thirteen Sheep and of certain Hay Wheat Rye Pease Barley Oates and Fetches not Threshed And some speech being had between the said Gregory and one John Ashfeild for the buying thereof whereupon the said Gregory did affirm the same to be twenty Loads of Hay thirty of Wheat a hundred of Rye c. whereupon before the making of the Bond viz. the last of September the 9 Jacob. It was agreed between the said Gregory and the said John that the said John should pay for the said goods seventy five pounds and that a Bond should be made in which should be contained that the said now Plaintiff with the said John Sturet were bound to Cuidam Edward Wrensford in two hundred Marks upon condition for the payment of the said seventy five pounds which writing was to be delivered to the said Gregory as a Schedule to be kept upon condition that the said Gregory before the said day of payment should go to the house of the said John in Pixley to account with him for the said Goods and if thereupon any of the said Goods should be wanting if the said Gregory shall be content to make the same up that then the Writing should be delivered to the said Edmund otherwise it should remain as a Schedule whereupon the said Writing mentioned in the Declaration was made and sealed and delivered to the said Gregory upon condition aforesaid And after the measuring of the Hay there wanted eight Loads c. and the said Gregory did not come to the House of the said John c. And so pleaded it was not his Deed. And found for the Defendant c. And I conceive that Judgment ought to be reversed For Cuidam Edward Wrensford cannot be intended the Plaintiff in the first Action but a stranger of that name as in Dyer 5 Ed. 6. Case of Isham and Wither And then the aforesaid Edward to whom the Obligation is made and who joyned Issue and appeared at the tryall and at the return of the Postea and for whom Judgment was given ought to be referred to Cuidam Edward Wrensford whereof mention is last made in the Plea and not to the Plaintiff in the Action and so Issue is joyned by a stranger and Judgment given for him and not for the Plaintiff Judgment confirm'd But all the Court held that the Issue shall be intended to be joyned by the Plaintiff himself and upon the Bond whereon the Declaration is made wherefore Judgment was affirmed c. Hil. 14 Jac. Newsham against Carew Knight In the Exchequer IN an Ejectment the Case was this A Bishop makes a Lease of a Rectory to I.S. for 21. years and dies the Successor before the Statute 1 Eliz makes a Lease of this to I. N. habend from the 20. Decemb. 1. Eliz. being the day of the date for 56. years from thence next ensuing the end of the Lease to I S. and dies and the 56. years are expired from the 20. of Decemb. 1 Eliz. And if this second Lease be ended or not is the Question And I conceive that the Lease shall begin from the 20 of December and so it is ended before the Lease made to I. S. For the argument of which case the true sence and meaning of this ill pen'd Habendum is to be considered for thereupon all the difficulty of this case doth depend and as to that I conceive there are but four ways to expound this Habendum and if it be taken in any of these constructions this Lease shall begin by computation from the 20 of December 1 Elizab. and so shall end the 20 of December 12 Jacob. which is before the Lease made to the Lessor of the Plaintiff And the first way is to observe the first part of the Habendum scil from the 20 day of December then next following to be onely material and good and the last part being repugnant thereto is voyd The second way is to take the first words of the limitation of the begining of the Estate to be voyd and the last words scil next following the determination and end of the term of I. S. c. to be good The third way is to construe as well the first as the last words of the Commencement to be voyd by reason of the direct repugnancy in them And the fourth and last construction is to make such construction as all these words by a reasonable exposition may agree together And according to any three of these constructions viz. the first the third or the fourth it is apparent that the Lease to I. N. under whom the Defendant claims did end the 20 of December 12 Jacob. which was before the entry of Anthony Rudd the last Bishop and the Lease made to the Lessor of the Plaintiff and then this Lease is good and therefore my endeavor is to prove that this Habendum ought to be taken in any of these three ways viz. the first third or fourth and to disprove that it cannot be taken in the second way For the argument whereof I shall speak to the first and second together for that that I will speak of the first will be a manifest
disproof of the second And as to this I conceive that it is a Rule infallible in the exposition of Deeds that when two clauses are contained in a Deed the one contradicting the other the first shall be good and the last voyd 2 Ed. 2. Feoffments and Deeds 94. One gave Land to R. with A. his daughter in Frank-marriage habendum to R. and his Heirs with warranty to him and his Heirs they dyed and their Son brought a Mortdancestor and because the first clause was in Frank-marriage and the other in Fee the Iustices doubted to which of them they should have regard and at last adjudged that when there were several or two clauses in a Deed repugnant or of divers natures that more regard ought to be taken to the first then to the last But otherwise in Wills for there the last part of a Will shall controul the first as if one first doth devise Land to A. and after devise this to another and it is to both in fee yet the last devise shall stand 19 Ed. 3. Tayl 1. In a Writ of Ad Terminum qui praeteriit the Tenant pleaded a Gift in Frank-marriage to his Father and Mother by Deed which was thus that is to say habendum to them for their lives and resolved that the Gift in Frank-marriage being first that it is good and the Habendum being contrary is voyd and there the same rule is given where two clauses are contained in a Deed and the one is contrary to the other And in Tracy and Throgmortons Case Comment 153. It is a ground in Law that if the Habendum in a Deed be contrary to the Estate given by the premisses the Habendum shall be voyd as if a Grant be made to one and to his Heirs Habendum for life the Habendum is voyd 13 H. 7. 23. and 24. and Dyer 272. A Termor does grant his term to another Habendum after the death of the Grantor adjudged that the Habendum is voyd And 2 Ed. 4. If one release all his right in B. acre which he purchased of I. S. and in truth he did not purchase it of I. S. but of another or else had it by descent yet is the release good for the first clause shall stand and the other shall be voyd And Dyer 292. b. One having a Close called Callis lying in Hurst in the County of Wilts does make a Lease of his Close called Callis in the County of Berks and adjudged that it shall pass for the first words shall be and the other shall be voyd And Dyer 32 H. 847. 6. a Lease was made for life without impeachment of waste and if it happen him to make waste that then it shall be lawful for the Lessor to enter Shelley conceived there that the condition was voyd because it was repugnant to the former Grant but some conceived that the Grant shall be intended that he shall not be punished by action Whereupon I collect that if the condition in the last clause cannot agree with the first the last is voyd and so Dyer 56. 6. If I release to A. all actions which I. S. hath against him the Release is good and the words viz. which I. S. hath against him are voyd for by words subsequent a Deed may be qualified and abridged but not destroyed And as to the third manner of exposition viz. to construe all the words of the limitation as well the first as the last to be voyd There is a Rule in Law that when words in a Deed Plea or Record are so repugnant that the true sence thereof cannot be known to the Court what is to be judged or construed upon them that all shall be taken to be voyd as appears by divers Books 33 H. 6. 26. In an action on the Case wherein the Writ was that whereas the Plaintiff had a way by reason of his tenure the Defendant had levyed a Wall whereby his way was stopped and there Prisot said that the Writ was not good for the repugnancy and 9 H. 7. 3. a. One pleaded Null tiel Record hoc paratus est verificare per idem Recordum this was adjudged insufficient because the Plea is repugnant viz. the first part which is not a Record and the last that there is such a Record and Dyer 70. 5 Edw. 6. And so here if these two limitations in the begining of this Lease are so repugnant one to the other that they cannot consist together then both shall be adjudged voyd and then there being no certain time put for the beginning of the Lease the Lease shall begin presently as in 3 Ed. 6. 6. A man made a Lease for years to commence after the end of a Lease made to I. S. and in truth I. S. had no Lease the Lease shall begin presently And as to the fourth manner of exposition I conceive that these ambiguous words shall be construed if it may be that all may be good as to a reasonable exposition and that is that the 56 years shall begin from the 20 Decemb. 1 Eliz. but the Lease does not take effect in possession until the end of the other Lease for terminus annorum hath two significations scil one the time or number of the years and the other the Estate or interest of the term and therefore if one does grant his term the Estate does pass thereby and this diversity is taken and explained the 35 H. 8. 6. and in Cooks 1 Rep. Cheddingtons Case So that I conceive that the first words in the Habendum here ought to be applyed and referred to the time or number of years according to the first definition of the term and the last shall be applyed to the last definition and shall be taken onely as words explanatory put in for better caution by the Bishop to avoyd contention between the Lessees viz. That the last Lessee shall not meddle with the possession until the end of the first term and by this construction and no other may all the words agree together Dyer 9 Eliz. 261. 6. Abbot and Covent did make two Leases of two parcels of Land to two persons 1531. for 31 years and after the successor 1535. reciting both the Leases did make a new Lease to the other in these words Noveritis nos praedict Abb. c. dictis 31 annis finitis complet concessise to the Lessee the said Land holden from the day of the making of these presents termin praedict finitis until the end and term of 31 years from thence next following And the Iustices of the Common Bench held that it shall commence to take effect in possession at the end of the former term and not before and from the day of the making of these presents is but a declaring of the first sentence which is obscure to some intents and if it were not so exprest the Lessee shall have but a Lease for four years which was not the intent of the parties as it should seem but the
5 Rep. fol. 64. 2. In regard of the quality and therefore it is much debated in Wagons Case if the penalty of 5 l. were reasonable or not but here no certain penalty is set down but left to the discretion of any of the Shoomakers of Exeter and that is against the course of all Laws for when a Law is made it is necessary that the penalty thereof should be known to the end men might not offend But admitting this Order to be good yet have not the Defendants pursued the same in the taking of this Distress and that for two Reasons They have distrained before their time for the Order is That if any refuse to pay the sum assessed that then upon due proof thereof they may distrain c. and then they plead that the refusal of the Plaintiff to pay the same was duly proved before the Master and Wardens which is insufficient for when it is said upon due proof this is intended upon proof by Verdict as in 10 Ed. 4. 11. On a Bond with condition that if the Obligor proves that it was the will of A. that B. shall make an Estate to the Obligor c. this proof must be by Verdict but if it be to be proved before J. S. there it is sufficient to produce witnesses that will testifie the same and so in the fourth and fifth of Queen Mary where Buckland was bound to the Lord Ewers to produce before the said Lord sufficient witnesses to discharge a certain debt due by B. to the Lord and he pleaded that he produced W. and A. before the said Lord and that they proved that he did not ow the said Debt and agreed to be no good Plea because he did not shew how the proof was made before the said Lord. So that this Plea is utterly insufficient 1. Because no such proof can be made before the Master and Wardens as is intended by the Order 2. Because the Defendants have not shewn how the proof was made so that the Court might judg whether it were sufficient or not and so in 22 Ed. 4. 40. the Lord Lisles Case upon a Bond that if the Defendant shewed sufficent discharge of a Rent c. who pleaded that he did offer to shew a sufficient discharge and agreed to be no Plea for he ought to shew what discharge that the Court might judg thereof So in the ninth Report Case of the Abbot of Strata Marcella fol. 34. in a Quo Warranto the Defendant pleaded that the Abbot had and used divers liberties which he could not have without a Charter and resolved no Plea unless by reason of the Statute of the 32 of H. 8. cap. 20. for reviving of Liberties The Order is That upon refusal to pay the penalty and upon proof thereof the Master c. may enter into the House Booth Shop Ware-house or Cellar of the Offendor and there to distrain any of his goods c. And the Defendants have not averred that these goods were taken in any of the said places but onely at the City of Exeter Judgment And at last it was adjudged that the Plea was not good A TABLE OF THE PRINCIPAL MATTERS Contained in this BOOK Action and what words bear Action ACtion brought by a Master for beating his servant not good without saying per quod servitium amisit 48 Where no particular averment need to be in a Declaration for scandalous words 60 Thou and Waterman did kill thy Masters Cook good action ib. Grant to one against whom an action lies not to sue him within a year not good 117 Advowson The nature of it and how and in what manner to be granted 95 96 Affinity and Consanguinity Who shall be taken to be proximus Consanguinieus in a Devise 15 Appearance Where to be in person and where by Attorney 73 74 Where the Husband shall appeare alone and where with his Wife 74 Arbitrement Where the Arbitrement in part shal be a good award for that part although the agreement be to end all controversies 90 91 Authority and Licence To revoke how to be performed 21 Authorities and Licenses strictly to be performed 114 115 License not to be assigned over ib. Ayd Who shall have ayd of the King 87 88 89 Baron and Feme WHere the Husband shall appear alone his Wife being within age and where she shall appear by her Guardian with her husband 74 75 Vid. Appearance Buying and selling Things sold and warranted by the Vendor to be good In what cases good 127 Diversity between things necessary and not necessary as to the warranting of them 128 By-Law How a Custom to make By-Laws to restrain a legal Trade or Art shal be good and how not 140 141 Common WHat priviledge the Owner of the soil hath in a Common and what priviledge the Commoner hath 5 10 Vid. Prescription Remedy for him that is disturbed of his Common 10 Commoner may distraine damage feasant ib. Prescription to hunt and kill Conies in a Common not good 11 Prescription of Common in a Forest Vid. Prescription Condition and Limitation WHat time shall be limited in Law to make an estate upon Condition 41 Conspiracy Where Jurors cannot be said to be guilty of Conspiracy Vid. Jury Conspiracy cannot be where the Indictment is insufficient 132 Copyhold What shall be taken to imply an admittance 82 Copyholder necessary to be admitted and what estate he hath without admittance 82 83 Where the estate surrendred remains until admittance 84 Court and Processe in Courts Records of a Court the effectuall proofs of the Law of things tried in that Court 21 Presidents and Costome of a Court makes a Law in that Court ib. Devises Testator and Executor c. WHere words of limitation comming after the estate in a Devise shall abridge the estate devised 1 2 3 Devise to a man and his heirs quod si contingat c. where those words shall make a limited fee or estate Tail or other estate 3 Where the Act of the Executor shal not be said to be the Act of the Testator 47 Where an Executor shall not have choice to take as a Devisee 54 Where the assent of the Executor to the devise of the Land shall not be accounted any Execution as to the Devise of the Rent out of the same Land and where otherwise 55 Where a perpetual charge devised to be paid out of Land shall make the party that is to pay the same tenant in fee-simple 85 How far the intent of the Devisor shall be admitted and how largely observed 85 105 106 135 Dower Certainty ought to be in the demand of Dower as wel as in the writ 56 Ecclesiastical Persons WHere the confirmation of the Patron and Ordinary of a charge made by the Incumbent is good and where not 95 Leases made by the Incumbent and confirmed by Patrons or others where good and where not ib. Leases made by the Incumbent which are void and what are voidable and