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
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
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
himself his boy and his horse Item The Defendant is to deliver the said house to the Plaintiff with all the appurtenances thereto belonging or in any wise appertaining Tenantable and in good repair Item The Defendant is to make as good a Lease as can be devised by Councel unto the Plaintiff and his Assigns And the Defendant pleaded performance of these Articles Plea Replication The Plaintiff did reply that the said 23 of April 1610. there was not any Demise made by the said John Sowdley of the said Mannor-house and of the houses called Sowdley Hall and of the Land lately in the Tenure of the aforesaid Reynold Sowdley and that the Plaintiff since the making of the said Articles viz. 9 Maii 10 Jacob. at great Sowdley aforesaid did require the Defendant to make a Lease of the said Mannor-house and houses with the aforesaid Land late in the Tenure of the said Reynold Sowdley scituate in great Sowdley aforesaid in the Parish aforesaid and in the County aforesaid to one Walter Welden Thomas Welden and John Welden for their lives according to the effect of the said Articles and that the said Walter Thomas and John were there and then ready to accept of the said Demise of the premisses of the Defendant and yet the Defendant did refuse to make the said Demise of the premisses to the said Walter Thomas and John Demurrer Vpon which the Defendant demurred in Law And I conceive that the Plaintiff ought to have Iudgment And fist to answer the Objections that are made against the Plaintiff upon the Articles Object 1 That the Lease ought to have been made to the Plaintiff himself for three lives and not to any other Answer I answer The words are plain That the Lease shall be made to the Plaintiff or his Assigns in the disjunctive and therefore it is in his election either to take the Lease to himself for three lives or to take it to his Assigns for three lives and so should it be if the words were to the Plaintiff and his Assigns as it is resolved in the Comment fol. 288. Chapman against Dalton where a man did let Land to another and did covenant at the end of the term to make such another Lease to the Lessee and his Assigns the Lessee made his Executor and dyes and the Executor does make his Executor and dyes and there it was adjudged that the Lease ought to be made to the Executor of the Executor for he is the Assignee in Law to the first Testator and the word and shall be taken for the word or and there it is clearly agreed that if the Lessee had named any in his life-time to take the said Lease it ought to be made to him and so as it is there said if I be obliged to make a feoffment to you or your Assigns such as you name to take the feoffment are your Assigns indeed and so in our Case these three persons named by the Plaintiff are his Assigns to whom the Lease ought to be made 21 Ed. 3. 29. Object 2 The other Objection is that the Lessee named by the Plaintiff ought to be ready upon the Land to take the Lease for a Lease for life cannot be made off the Land Answer I answer That when a man is bound to infeoff the Obligee and no time is limited he ought to do this upon request 27 H. 8. 6. B. and the same Law of a feoffment upon condition to re-infeoff him 44 Ed. 3. 9. 14 H. 8. 21. 18 Assis 18. 17 Assis 20. but yet the Obligor at his peril ought to do it during his life otherwise the condition is broken So in our Case the Plaintiff ought first to require the Defendant to make the Lease and this of necessity ought to be done where he can finde the Defendant for it is impossible to do it on the Land unless the Defendant be there and the Plaintiff cannot compel him to be there But when the Plaintiff hath made his request the next action is then to be done by the Defendant and therefore he ought to go to the Land and to be ready there to make the Lease And in the 22 Ed. 4. 43. A. is bound to B. on condition that C. shall infeoff B. by such a day and did shew that C. was there ready on the Land and B was not there to receive the Feoffment and there it was argued whether the issue should be upon the being of C. upon the Land who ought to make the Lease or of B. who was to take the Lease and in fine it was adjudged that the issue should be whether C. were there or not for he ought to be there or else the Bond was forfeit So that the Defendant upon request ought to go to the Land and there to attend a convenient time to make the Estate and then if the persons named do not come thither he is excused but when he goes not to the Land but does utterly refuse to make the Estate it is to no purpose for the Assigns to come to the Land and admitting the Law would enforce them to attend there then I demand how long they ought to attend for in all places where the attendance of one is required in a place certain by the Law the time of his attendance is limited 18 and 19 Eliz. Dyer 354. The third Objection is that the Article for making of the Lease Object 3 is to make a Lease of the said Mannor whereas no Mannor is mentioned before and the request is to make a Lease of the houses and of the Land late in the Tenure of Randolph Sowdley To this I answer That the Demise in the first Article Answer is of the Mannor-house and all the Lands which were in the Tenure of Randolph Sowdley with all the appurtenances thereto belonging then when he agrees to make a Lease of the said Mannor it shall be intended the Mannor mentioned before and although it be not in verity a Mannor yet in reputation it may be a Mannor and that is enough to make it to be put in the agreement 22 H. 6. 39. a. where one pleaded a Feoffment of eight Acres of Land by the name of the Mannor of D. and adjudged by the Court to be a good Feoffment although the acres were not set forth and in the 27 of H. 6. 2. a Plough-land may pass by the name of a Mannor The request is made too late for the time limited to enter is the Object 4 Anunciation 1612. and the request is not until the ninth of June next after and that is too late for the Lessor ought to have 20 l. fine upon the entry and making of the Lease and therefore the request ought to be made at the time that the entry was to be made and for that purpose Andrews Case and the Lord Cromwels Case in L. Cooks Rep. were cited To which Objection Cook and all the Court did seem to incline But I
13. H. 4. 17. B. If one makes a Feoffment in Fee rendring Rent upon condition to re-enter for non-payment and dies the Rent being arrear the Heir cannot demand the Rent or enter for non-payment because that the Rent is not due to him and as he cannot dispence with the Condition for acceptance of the Rent so cannot he enter for non-payment thereof And I argued this Case again on Fryday being the first day of Trinity Term 14. Jac. 31. Maii at which day Daston did also argue for the Defendant but the Court did not then give any direct Opinion but seemed to incline very much for the Plaintiff And Hil. 14. Jac. the case was argued by Chilborne Serjeant for the Plaintiff and Davenport for the Defendant at which time all did agree that the Lease continued But Davenp took exceptions to the replication For he said that the marriage of Jane with Rob. Hawkins is alledged to be 21. of No. 39. Eli. and the death of William Agborrow her first Husband the 20. of Febr. 39. Eliz which is after the marriage but that was held not materiall for it is said that William Agborrow died the twentieth of Febr. 39. Elizab. and that atferwards viz. the one and twentieth of Novemb. 39. Eliz. Jane did marry Thomas Hawkins so that the afterward is sufficient Trin. 37. Eliz. Rot. 206. Butler against Wallis In a Trespasse the Defendant justified by vertue of an Extent upon a Statute and did shew the Extent and that the 28. of Febr. a Liberate was awarded by vertue whereof the Sheriff the 27. of Octob. delivered the land to him c. yet adjudged sufficient for when he said Virtute brevis the mistake of the day afterward is not materiall And at last in the said Term of S. Hillary Judgment all the Court agreed that the Lease continued good against the Survivor and cannot be avoided by him and that the acception to the pleading was not materiall And thereupon Iudgment was given for the Plaintiff Rot. 668. Pasch 11. Jacob. Between Thomas Palmer Knight Plaintiff Richard Greenwill and Edward Greenwill Executors of John Greenwill Defendants IN an Action of Debt on a Bond of fifty pound entred into by the Testators the 20. of Novemb. 5. Jac. The Defendant demanded Oyer of the Bond and Condition which was that if the Testator his Heires Executors and Assignes did perform all the Covenants comprised in certain Indentures bearing date with the Obligation made between the Plaintiff on the one part and the Testator of the other part that the Obligation shall be void And the Defendant pleaded that the Plaintiff by the said Indenture did let to the Testator a House and the moyety of his land amounting to about thirty Rods of land in Pollicote to have c. from Michaelmas last past for seven years rendring twenty pounds Rent and shewed that the Testator did covenant by the same Indenture for him his Executors and Assignes with the Plaintiff his Heires and Assignes within two years after the beginning of the said Lease to deliver or cause to be delivered to the Plaintiff or his Assigns a Map or Plot made in distinct manner by men of skill as well of all the land in little Pollicot as was then in his occupation and in the occupation of Thomas Cocker and John Crooke parcell of the Demise of the Plaintiff in Pollicot aforesaid as of all the land in the occupation of the Testator by a lease of Lincoln Colledge in Pollicot aforesaid which are all the Covenants c. And pleaded that the Testator in his life time and the Defendants after his death had performed all the Covenants c. Replication The Plaintiff replied that the Testator within two years after the beginning of the Lease did not deliver or cause to be delivered to the Plaintiff or his Assignes a Map or Plot made in distinct manner by Surveyors and men of skill of all the land in little Pollicot aforesaid in his occupation and in the occupation of the said Thomas Cocker and John Crooke parcell of the aforesaid Demise of the Plaintiff in Pollicot aforesaid Secundum formam effectum Indenturae praedict Vpon which Replication the Defendants demurred in Law And I conceive Iudgment ought to be given for them against the Plaintiff First the Plaintiff replies that the Testator did not deliver the Plot and it may be that it was delivered by the Defendants who were his Executors which is a good performance of the Covenant and if so then the Plaintiff has no cause of action and where the matter is left doubtfull in the Replication it shall be taken most strongly by the Plaintiff who pleads it And in the Comment 104. a. Fulmerstone against Steward If a man be bound to pay twenty pounds about Christmas it is no plea for him to say he hath paid it but he must shew when or otherwise it shall be intended that he paid it after the Feast and before the Suit And so in a Dum fuit infra aetatem if the Tenant do plead a Release of the Demandant it is no plea without saying that he was of full age for the plea shall be taken most strong against himself and that is that it was made when he was within age and 3. H. 7. 2. If the Defendant in a Trespasse does plead a release it is not sufficient without shewing that it was made after the Trespasse for otherwise it shall be taken to be done before And 26. H. 8. Pleading 147. If in a Praecipe quod reddat the Tenant does plead Warranty collaterall of the Ancestor of the Demandant and he replies that he entred and so does avoid the Warranty it is not good without saying that he entred in the life of the Ancestor for otherwise it shâ—ll be intended that he entred after the descent of the Warranty and in Dyer 89. and 96. The Plaintiff in an Ejectment declared on a Lease for years to begin at Michaelmas after the death of Thomas Boydon and M. his Wife and set forth that they died and he entred and adjudged insufficient for it might be that he entred after this death and before Michaelmas and Dyer 28. H 8. 27. A Covenant that the Lessee and his Assigns shall pay all Rents pleading that the Lessee hath paid them is not sufficient because the Assignes are omitted In his Occupation are words uncertain sc whether they shall be referred to the Plaintiff who iâ— last named or to the Testator 7 H. 7. 7. Ed. 6. Dyer 84 a. In a Trespasse brought by the Husband and Wife for breaking their Close bona sua capt and pleaded of a Trespasse made to the Woman Dum sola fuit for which the Writ abated The Plaintiff ought to shew that â—ome land was in the possession of Kocker and Crooke for otherwise it is impossible that a Map should be made thereof 12. H. 7. 8. a. 6. H. 7. 6. a. If I am bound to
But it may be objected That there is no place mentioned where the payment or acceptance was Answer I answer that it is not material for it is not issuable but onely evidence to prove the fraud which is the substance of the Plea and that is proved by the said Case of Turner And 42 Ed. 3. 14. Conspiracy shall be brought where it was done and not where the Indictment was And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is although the Plea be held in another County 1 H. 7. 15. B. Payment with Acquittance pleaded in an Action of Debt upon a Bond is not double because that acquittance onely is issuable and the payment is but evidence Then the Recognizance is no cause of the retaining the 100 l. as in Cook R. 5. Harrisons Case Green brought an Action of Debt upon a Bond of 40 l. against H. Administrator of Thomas Sydney the Defendant pleaded that the Intestate was bound in a Statute besides which he had no goods c. The Plaintiff replyed that there was an Indenture of Defeasance for performance of Covenants which hitherto were performed whereupon the Defendant demurred and it was adjudged against him for a Debt upon a Bond shall be payd before a Statute to perform Covenants when none of them then were nor perhaps ever shall be broken but are future and contingent things and therefore such possibilities which peradventure shall never happen shall not bar present and due Debts upon a Bond. And although the Condition of the Recognizance be to pay mony yet is it to be payd to a stranger and therefore it is not any Debt but the Debt is onely by the Recognizance Also it is not to be payd but upon a contingency to wit if the Infant comes to full age but if he dye before it shall never be payd 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage or 21 years of age and she dyed before marriage yet it shall be payd 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes and further that she had not sufficient c. The Plaintiff replyed that for one of the Statutes a lesser sum was accepted in satisfaction and as to the other that it was for performance of Covenants and that none was broken and the Defendant demurred and adjudged for the Plaintiff and that the general averment of payment and acceptance and that the Statute was for performance of Covenants was good because the Plaintiff was a stranger thereto And this case was argued again by me for the Plaintiff and by Crook for the Defendant Saturday the 24 of May Pasch 15 Jacob. at which day Mountague Doderidge and Haughton did agree that for the first matter Iudgment ought to be given for the Plaintiff but as to the last Mountague held for the Defendant but the other two on the contrary And Doderidge and Haughton agreed that the Plea of the Defendant was naught because he said that a Condition was annexed to the Recognizance and did not say that it was upon condition and Mountague replyed not Vide Com. Browning and Beestons Case 21 Ed. 4. 49. 28 H. 6. 3. Hillar 12 Jacob. Robinson against Greves Rot. 744. IN an Action of Trespass for that the Defendant the 6 of May 12 Jac. the House and several Closes of the Plaintiff did break and enter c. ad damnum c. The Defendant pleaded Not guilty The Iury found that the said Tenements were Copyhold parcel of the Mannor of Ecclesfield grantable time out of minde by the Lord or his Steward by Copy in Fee in Tayl or for life or years according to the Will of the Lord and according to the Custom of the Mannor And that before the Trespass Thomas Shercliff was seised in fee at the will of the Lord according to the custom c. And that the first of January 14 Elizab. by the hands of Nicolas Shercliff and Thomas Jepson two of the Customary Tenants Gilbert Earl of Shrewsbury then and yet being Lord of the said Mannor out of Court and according to the Custom of the said Mannor did surrender to the use of Nicolas Stanniland and his Heirs which Surrender at the next Court 11 Janua 40 Elizab. by the hands of the said N. S. and Tho. J. was delivered into the said Court and there by the homage of the said Court was presented and by William West then Steward was accepted and entered in the Rolls of the said Court and that a Copy of the Surrender under the hand of the said Steward was delivered to the said Nicolas Stanniland which Copy was found verbatim viz. Ad hanc curiam compertum est per homagium quod Tho. S. sursum reddidit ad usum N. St. haeredibus suis but they said that the said N. St. was no otherwise admitted By force of which the said Nicolas entered and the 6 Decemb. 1 Jac. out of Court by the hands of Thomas Jepson and Richard Shercliff did surrender according to the custom of the Mannor to the use of the said N. St. for life the remainder to William Stanniland and his Heirs which Surrender at the Court of the Mannor held the 17 May 14 Jac. was delivered into Court by the hands of the said Thomas Jepson and Robert Shercliff and was presented by the homage at the said Court and was there accepted and entered in the Roll by the Sheriff and that a Copy of the said Surrender under the hand of the Steward was delivered to the said N. St. which Copy was found verbatim in the said words with the former and found that there was no other admittance The sixth of November 2 Jacob. Nicolas St. dyed Thomas Shercliff entered at the Court 6 Maii 12 Jacob. did surrender to the use of the Plaintiff for ten years and payd his Fine and was admitted c. whereby the Plaintiff did enter upon whom the Defendant by the commandment of William Stanniland did enter and made the Trespass c. And so prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And in this case are two matters considerable First if this Presentment of the Lord and the entry into the Roll and the delivery of a Copy entred by the Steward be any admittance or not And I conceive that it is no admittance For an admittance is a ceremony requisite to make a Copyhold Estate and is so necessary that before admittance he to whose use the Surrender is made hath no Estate as in Bracton 2. cap. 8. Si ipse ad alium transferre voluerit prius illud restituet domino vel servienti si dominus praesens non fuerit de manibus illorum fiat translatio ad alium c. And before admittance this is no perfect assurance but onely begins then as in Peryams Case Cook 5
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
Sir William the Remainder to the said Elizabeth for life the Remainder to the Plaintiff in Fee as the Defendants alledged and so they were at Issue And the Iury found the Lease and the descent of the Reversion and the Fine 33 Eliz. and the use and the death of John Parsons ut supra And that the one and twentieth of September 5 Jac. Sir William Ligon and Elizabeth his wife did make a Deed of Indenture of the said Tenements in these words This Indenture made c. between them of the one part and the Plaintiff on the other part whereby Sir William for seven hundred pounds before the ensealing and delivery paid to Sir William by the Plaintiff did covenant that he and Sir William before Christmas next should levy to the Plaintiff a Fine with Proclamations of the said Tenements which Fine and all Fines and Assurances to be had within seven years should be to the use of the Plaintiff and his Heirs upon Condition that if Sir William and Elizabeth or any of them or the Heirs or Assigns of Sir William should pay to the Plaintiff or his Assigns nine hundred forty three pounds at the Annunciation 1611. that the Estate of the Plaintiff should cease and that Sir William and Elizabeth and his Heirs should enter and the Fine should be to the use of Sir William and Elizabeth and the heirs of Sir William And Sir William covenanted with the Plaintiff that he and his Heirs untill the nine hundred forty three pounds be to be paid should have and enjoy to their use under the said Condition and according to the meaning of the said Indenture and if default of payment should be made then after such default the Premisses and the Rents and Profits thereof if such default should be shall be taken and enjoyed to their use without any interruption of Sir William and Elizabeth c. and discharged and saved harmlesse of all Incumbrances c. made by Sir William c. except the said Lease and Sir William covenanted that if the nine hundred forty three pounds should be paid to pay to the Plaintiff the charge of the assurance Pasch 5 Jac. The Fine was levied by Sir William and his wife to the Plaintiff and they found that the sixteenth of April 6 Jac. the Conusance of the Fine was made at M. in the County of Wilts and that after the said Conusance and before the said fifth of September Pasch 20. Martii 5 Jac. the said Sir William made another Indenture between him and his wife of the one part and the Plaintiff of the other part whereby Sir William and Elizabeth for seven hundred pounds before paid to them by the Plaintiff Sir William and Elizabeth did bargain sell and grant to the Plaintiff and his heirs the said Tenements upon the like Condition as aforesaid and Sir William did covenant that he and his wife should make a further assurance by Fine c. and that all such assurances should be to the Plaintiff and his Heirs under the said Condition untill default of payment and after such default to the use of the Plaintiff and his heirs absolutely and if payment be made to the use of Sir William and Elizabeth and the heirs of Sir William and the Plaintiff did covenant that Sir William and Elizabeth and their heirs untill the Annunciation 1611. should have all the Rents and Profits of the Premisses without interruption of the Plaintiff or his heirs That the eighth of December 6 Jac. Sir William Ligon died after whose death scil the aforesaid time quo c. the Defendants as Bayliffs to Elizabeth did take the said Oxe in the said place for the said seventy eight pounds six pence of the said Rent for three quarters ending at Christmas 9 Jac. But whether the Distresse was well or not they prayed the advice of the Court c. And upon this Verdict it was adjudged in the Common Pleas after many Arguments that the Plaintiff should recover For all the Iustices did agree that the said Fine was to the use of the Plaintiff and his Heirs whereupon the Defendant brought this Writ of Error and assigned the Error in the point of Iudgment only And it was objected by the Councell of the Plaintiffs in the Writ of Error that that it was apparent upon this assurance that it was made for the assurance of the payment of seven hundred pounds lent by the Plaintiff to Sir William and Sir William was to repay nine hundred forty three pounds which was full Interest according to the rate of ten in the hundred and then by the expresse Covenant in the first Indenture the Defendant in the Writ of Error was to have the Rents and Profits of the Land also whereby Worfeild should have more then ten pounds in the hundred and then the assurance is void by the Statute of Vsury then although by the last Indenture it is provided that Sir William and his wife should have the Rents and Profits untill the day of payment yet this shall not bind the wife for it is found expresly that she did disagree to this Indenture But I conceive that the Distresse was not well taken but that the Fine was to the use of William Worfeild and his heirs and so the Rent belonged to him And first as to the Objection that the assurance is void by reason of the Statute of Vsury that cannot be 1. Because it was not found that there was any lone of mony or usurious Contract and therefore it may be and so it shall be intended that the seven hundred pounds was paid bona fide after the purchase of this conditionall Estate made to William Worfeild 2. The Consideration is for seven hundred pounds paid before the ensealing and delivery of the Indenture so that if it be admitted that the seven hundred pounds was lent as Interest yet it may be that this was tent so long before the making of the Indenture that the nine hundred forty three pounds to be paid with the Profits of the Land does not exceed the principall debt according to the rate of ten pounds in the hundred And that Vsury shall not be intended without it be expresly found by the Iury vide Coke 10. Rep. the Case of the Chancellor of Oxford fol. 56. Covin shall not be intended or presumed in Law unlesse that it be expresly averred and so was it agreed in the Case between Tyrer and Littleton in the Common Pleas for the taking of an Oxe The Defendant pleaded Not guilty and the Iury found that Thomas Tyrer held certain Land of John Littleton by Rent and Herriot and the 42 of Eliz. did enfeoff John Tyrer his Son and heir who made a Lease to Thomas Tyrer for forty years if he should so long live to the intent that Joyce whom he intended to marry should not have her Dower during his life Thomas died possessed of the Oxe and the Defendant took it for a Herriot And they found
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