have a Writ of Disceit after a Fine levyed and the Kings Silver paid 22. If one comes to a Justice of Peace and complains that I. S. is a Felon and hath stolen certain goods and the Justice commands the party who complaines to be at the next Sessions and prefer a Bill of Indictment against the Felon and give Evidence against him who doth accordingly Adjudged That neither he nor the Justice shall be punished in Conspiracy although I. S. the Felon be acquitted 23. A man made a Lease for 40. years by Deed and in the Deed Covenanted and granted to the Lessee that he might take Convenient Housebote Firebote c. in his whole Wood called S. within the Parish of S. which Wood was other Lands and not parcel of the Land Leased Resolved the grant was good and the Lessee should have it during the Term and his Executors shall take the same as his Assignes and the grant shall not restrain him but that he shall have Housebote Firebote also in the Lands Leased to him 24. A man seised of a Mannor parcell in Demesne and parcell in service deviseth to his Wife for life all the Demesne Lands and all the services and chief Rents for 15. years and deviseth the whole Mannor to another after the death of the Wife Resolved That the Deviser should not take any effect for any part of the Mannor till after the death of the Wife and that the Heir of the devisor after the 15. years spent and during the life of the Wife should have the services and cheif Rents 25. Tenent in Dower makes a Lease for years rendring Rent and takes Husband the Rent is behind the Husband dyes Adjudged his Executos shall have the Rent 26. A man destrains for 10 l. Rents due at Mick Cattel which were not of the value of 40 s. and afterwards destrains for the Residue Adjudged he cannot avow for the distresse is not good and it was his folly so to distrain But if a man be behind of hiâ— Rent at several dayes and he take a distresse for one day at one time anâ— for another day at another time it is good 27. Resolved That a Custome That a Lessee for years may hold the Land for half a year after his Term ended is no gâ—oâ— Custome But the Lord of a Copyhold may by Custome Lease thâ— same for life and 40. years after and it is good 28. Upon an Extent the Sheriff returned that he hath extended a Tenement at 20 s. paid but doth not make mention of any House Land nor pasture which should make the Tenement Adjudged the nor Extent was void for the incertainty 29. If a man be Robbed and afterwards for mony he agreeâ— with the Felon that he will not give evidence against him for which the Felon Escapes It was doubted whether he was accessary to the Felon But it was agreed That if after the Robbery hâ— pursue the Felon and take his goods of which he was Robbed and so suffer the Felon to escape the same is a Concealment of the Felony but he is not Accessary to it 30. A Women Tenent in Tail makes a Lease for years to her Husband and dyes The Husband being Tenent by the Curtesie surrenders to the Issue Adjudged the Issue shall avoid the Lease 31. A man says I will you shall have a Lease for 21. years of my Land in D. paying 10 s. Rent make a Lease in Writing and I will seal it Adjudged It is a good Lease in years by paroll though no Writings be made of it 32. Land was let to I. S. Habend to him for life and for the lives of I. his Wife and his Son Quaere What estate I. S. shall have and if there shall be an Occupancy in the Case It was not Resolved 33. If my keeper of my Park will not serve a Warrant which I send him nor suffer it to be served Resolved it is no forfeiture of his Office but only a Disobedience and a Misfeasance which is not a forfeiture But cutting down of Trees is a forfeiture of his Office 34. A man made a Lease for years the Leasor sold the Trees growing upon the Lands the vendor cut them down The Cattel of the Lessee which were in the Close destroyed the springs Resolved That the Leaser could not take the Trees growing upon the Land and it was a wrong in him to cut them down and it is not reason that he should by his own wrong should compel the Lessee to enclose the Lands wherefore Adjudged it was no Wast 35. In a Replevin the Plantiff being Lessee for years prayd in aid of his Leasor and upon Issue joyned upon a false verdict it was found for the Avowant The Plantiff and the prayee in aid joyned in Attaint and pendent the Attaint the prayee in aid which was his Lessor dyed Resolved That the Writ should abate for the prayee is dead who ought to recover the Reversion by the Attaint and his Heir should be at great mischief If the Attaint be found against the then Plaintiff who then should louse his Reversion 36. Resolved by the Court That if an Obligation or a grant be raised after the ensealing of it it is void but it is otherwise of an Indenture if it agreeth in words with the other Indenture and it was agreed If a man be bounden in an Obligation which is rased and the Obligation is endorsed with a Condition to perform the Covenants in an Indenture and the Indenture expresserh the debt notwithstanding the rasure of the Obligation the Plantiff must shew the Indenture to prove the Bond good 37. Action upon the Case for words viz. Thou art a False Knave a Wretch and a Whoremonger Adjudged actionable although for the word Whoremonger he might have his remedy in the Spiritual Court 38. A man hath Issue a Bastard and after marryes the same Woman and hath Issue by her divers Sons and then deviseth all his Goods to his Children Quaere If the Bastard shall take by the Devise But if the Mother of the Bastard make such a Devise It is clear the Bastard shall take because he is known to be the Child of the Mother 39. Lessee for years Proviso he shall not assign the Term nor any parcel of it without the assent of the Lessor Resolved He cannot give grant or sell it without assent of the Lessor But agreed That the Executors of the Lessee may assign it without assent of the Lessor 40. Resolved That if the Lessor makes a Letter of Attorney to his Lessee for years to make Livery of the Land in Lease to a Stranger who doth it accordingly That it is not a surrender of his Term for he doth not make the Livery in his own right but as Servant to his Lessor and by his authority 41. Resolved That if the Lessor infeoff a Stranger and makes Livery the Lessee for years being upon the Land who agrees to it It shall enure as an
be 159. Dower brought the Defendant pleaded that he had assigned to the Wife 20 acres of Corn out of the Land in recompence of her Dower and adjudged a good barr as well as of Rent or any other profit out of the Land 160. Three Coparceners Daughters the one of them and her Husband enter into the whole the other being supposed out of the Realm in the right of his Wife and afterwards the other two return and release to the Husband and Wife and their Heirs It was holden that the Release should enure only to the Wife and her Heirs because the same enures only by way of Extinguishment and the Baron is seised in the right of his Wife But admit the Husband and Wife both enter and are Disseisors then the Release shall enure to them both and then when the Wife survives the Husband she shall have the whole 161. It was held by the Justices upon the Statute of 31 H. 8. of Monasteries That if a Woman who hath a Widdows estate of Lands holden by Copy whereof the Inheritance was in the Abby That if the Abbot will make a Lease of the same in reversion it is no good Lease by that Statute but otherwise it is of a Lease at will by the Common-law 162. Note by the Justices If Issue be joyned if a Church be void by a Cession Deprivation or Resignation it shall be tryed by the Country because it is a thing mixt for the Avoydance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en loyal Matrimonie shall be tryed by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the VVrit shall be tryed by the Country 163. VVords spoken of an Attorney of the Common-Pleas viz. He is the falsest Knave in England and by Gods blood he will cut thy Throat Adjudged Actionable 164. A man devised his Land to his wife for life the Remainder to another for his life and after their deaths he devised that the same Lands should be sold by his Executors or the Executors of his Executors he dyed after the Wife and he in the Reversion dyed and during their lives one of the Executors dyed intestate It was the opinion of the Justices That the Executors of one Executor should not make the sale for they had authority joyntly and if one of them fail the other cannot execute the Testament and so it was said it was adjudged in Franklyn's Case where a man devised that I. S. and I. D. by advice of the Parson of D. should make sale of his Lands after his death and before the sale the Parson dyed the other two could not sell the Lands 165. Wast assigned in a Marsh for that the Lessee suffered a Sea wall adjoyning to the Marsh to be ruinous by which by the flowing of the Sea the Marsh was drowned The Court conceived That if it was a small breach in the Wall and the Lessee did not repair it but suffered it to continue it was waste bet if it was suddenly done by the violence of the water the Defendant might plead that matter in barr Sir Edward Bray and Andrews Case 166. Action for words viz. My Master was not content to take my Living from me but sent his Man Andrews to kill me Resolved the Declaration was not good for the incertainty for the words My Master comprehends a generality and doth not refer to any Person certain and therefore it cannot be intended the Defendant intended to tax the Plaintiff more then any other Person and it may be he had at that time many Masters and it ought to appear to the Court of what Person certain the Defendant intended the words 167. An Action upon the Statute of Apparel The Writ was Ad respondendum Dominae Reginae quam I. S. Resolved the Action was not well brought because the Queen and the Party cannot joyne in the Action but they ought to have several Actions viz. the Queen shall have an Action for her part and the Informer for the other part For although by the Premises of the Statute it is an entire duty yet the sequel of the Statute determines how the penalty shall be taken and it is as several forfeitures The Earl of Northumberlands Case 168. Resolved one cannot have a VVrit of Forfeiture of Marriage without a Tender made to the Heir contra of a Writ De Valoâ—e Maritagii 169. Upon an Exigent a Writ of Proclamation issued which was returned served but the Name of the Sheriff was not to the Writ Quaere if it be Error The Court would advise of it Felton and Capells Case 170. In a Formedon in the Discender the Tenant vouched to Warranty I. S. who entred into the Warranty and vouched I. D. It was the opinion of the Justices That is a good Counter plea that the vouchee nor any of his Ancestors had any thing after the guift so as he could enfeoff him who vouched him 171. In Debt upon an Indenture the Defendant pleaded that it was rased after the delivery by the Plaintiff But he cannot plead That it is not his deed and give in Evidence the rasure but he ought to plead the special matter 172. A Bishop made a Lease for years which was confirmed by the Dean and Chapter and after he let the same Land to another for 20. years and afterwards before any Confirmation of it he let the same Lands to a third person for 60. years and the last Lease was first Confirmed and after the Lease in Reversion was Confirmed also Resolved that that Lease was good and the Confirmation good notwithstanding the last Lease was first Confirmed for the Lease is not to have any Interest by the Confirmation but only to make it perdurable and effectual Squier and Reads Case 173. It was holden by the the Justices in this Case That it is a good Challenge in a Writ of Right to the 4. Knights that they are not gladiis cincti And a Challenge to them must be made upon their appearance for after they are once sworn they are not Challengeable Also the 4. Knights are to make the Pannell and they need not to put their Names to it at the Return of it as the Sheriff useth to do and they ought to return to be of the Grand Assise but 12. persons besides themselves 174. A man had Judgment to recover in trespasse and had Execution of the Reversion of a Lease for years and of the Rent It was the opinion of the Justices that the Rent and Reversion was presently in him and that he might avow for the Rent without alledging any attornment of the Lessee for years 175. Debt upon Obligation conditioned to pay mony to the Obligee and the Parishoners of D. at such a Feast payment to the Obligee and two of the Parishoners of the Parish is good and it is not requisite the payment be made to all the Parishoners 176. In an Assise of Novel desseisin the Assise
Error but is without remedy Hawtree and Anger 's Case 194. Debt against A. B. and E. the daughter of C. Coheirs in Gavelkind upon an Obligation of their Father A. and B. were Outlawed and had their pardon E. the daughter of C. who was dead was waive The Plaintiff declared against A. and B. simul cum E. who was waive The Defendants pleaded that E. now one of the Heirs in Gavelkind was within age It was Resolved that the Heir of an Heir should be chargeable with an Obligation simul cum the immediate Heirs and that such Heir should have his age and if he was within age the parol should demur for them all Mich. 7. Eliz. Swann and Searles Case 195. Covenant against A. and B. Executors of I. D. I. D. was Tenant for life the remainder to A. I. D. by Indenture demised the Land to the Plaintiff for years rendering rent by the word dimisit Concessit I. D. dyed A. who was in the remainder entred and avoided the Terme and thereupon the Plaintiff the Lessee for years brought the Action against the Executors of I. D. and it was adjudged that the Action did not lye Mich. 7. Eliz. Worleyes Case 196. An Enfant was bound in a Statute of 600 l. and afterwards was taken in Execution upon it and at full age he brought an Audita Querela to avoid the Execution The Case was argued by the Judges and at length Resolved That the Audita Querela should abate For it was Resolved that if any Enfant acknowledge a Statute or Recognizance or Levyeth a Fine of his Land he shall not reverse it by Error or otherwayes when he is of full age it being matter of Record but if he will avoid it it must be during his Minority 197. One came to an Inn and brought goods with him The Inkeeper said to him There are many resort to this House and I do not know their behaviour therefore here take the Key of such a Chamber and put your goods there for I will not take Charge of them and afterwards the goods were stolen It was the opinion of Wrey Justice that an Action did lye against the Inkeeper for he is by the Law chargeable with all things which come into his Inn and by Law he cannot discharge himself by such words as are in this Case Price and Jones Case 198. Error by A. and B. against I. S. of a Judgment in an Assise of Novel Disseisin given by the Justices of Assise at Monmouth It was demurred unto and Adjudged here in C. B. That a Writ of Error here upon that Judgement did not lye Stakely and Thynns Case 199. In Debt the Plantiff and Defendant both appeared by their Attorneys and day was given to the parties in statu quo tune till 8. Hill at which time the Defendant made defaust Holden the Plantiff should not have Judgment because Dies Datus is as strong as an Imparlance Lucas and Cottons Case 200. Words viz. George Lucas is a false Knave and worthy to stand upon the Pillory The Defendant Justified because the Plantiff swore his debt falsely to be true upon an Attachment according to the Custome of the City of London which by the Court was holden to be a good justification wherefore adjudged against the Plantiff Slisield and Sibills Case 201. Debt by Husband and Wife upon a Lease for years the Defendants said that they had not any thing in the Land at the time of the Lease as to part It was found that they had and did demyse and as to other parts that they did not demyse It was holden the Plantiffs could not have Judgement for any party Arden and Mischells Case 202. Replevin The Defendant avowed as Bayliff to the Countesse of Rutland for Rent The Defendant said that the Abbot of C. 29 H. 8. was feised and made a Lease to I. S. for 60. years rendering Rent viz. 22 s. and expressed the same by such figures viz. 22 s. and that after the making and delivery of the Indenture the Plantiff caused the said 22 s. to be rased into the forme of 5. and after the said 5. caused to be adjoyned the Letter m by which the Indenture was void It was the opinion of the Justices that by such rasure the deed was void Bâ—lfield and Rouse Case 203. Dower The Defendant pleads as to part in abatement that he was not Tenant and as to the Rest he pleads a gift in Fee to the Husband by which he claimed the Land as Brother to the Husband and also pleads a Will by which he was entitled to other parts both which the Plaintiff did Detain Upon Non Detinet it was found for the Plaintiff and she had Judgment for damages from the death of the Husband Watson and Bishop of Cant. Case 104. In a Quare Impedit the Defendants at the Distresse made default and Judgment was given for the Plaintiff against all the Defendants to recover damages because they were supposed all disturbers by their default but the Plaintiff was compelled to make Title Bullock and Bardetts Case 205. The Case was the Bishop of Salesbury in temps R. 2. made a Feoffment in Fee of a Messuage and 3. Roodes of Land in Erbonfield parcel of the Mannor of S. nec non of 17. Acers of Wood in a great Wood containing a 1000. Acres to Bullock and his Heirs and after 5. discents the Land came to the Plaintiff who 6. of the Queen entred into the great Wood and made election of the 17. Acres in a place called Saltors Hill parcel of the said great Wood and distinguished them by Metes and Bounds The Question was if the 17. Acres passed to G. Bullock and whether the election of them by R. Bullock his Heirs in the 5th discent was good or not It was the opinion of the Justices that nothing thereof was vested in G. Bullock the Ancestor and the Election to have the 17. Acers was not given to the Plantiff the Heir for that nothing was in the Ancestors which might discend to him and as a purchasor he could not take for that nothing was given to him Pasc 10 Eliz. The Lord Dacres Case 206. The Lord Dacres and others agreed to enter into a Park and hunt there and to kill those who should resist them They entred and I. S came to one of them and asked one of them what he had to do there and the other killed him the Lord being a quater of a myle distant from the place and knew not of it It was adjuged Murder in him and all his Companions Sir Rich. Mansfields Case 207. Difference being betwixt Sir Rich. and one Herbert for Wreck of the Sea they appointed a Duell Herbert with his Servants came to Sir Richards house to fight with him a Friend to them both perswaded with them to take up the matter One of the Servants of Sir Richard cast a Stone at Herbert and his Servants and perchance therewith killed their Friend It
and if they had imployed nothing that way then nothing was given to the Crown In the principal Case it was adjudged against the Queen and Informer Bossevile and the Corporation of Bridgwaters Case 263. King H. 8. Anno 33. of his Raign made a Lease to the Earl of Bath of the Rectory of Bridgewater and of the Tythes of 2. Hamlets in W. parcell of the said Rectory at the Rent of 10 l. which lease continued till 2. Eliz. in which year Bossevile purchases from the Queen the Rectory of W. of the value of 10 l. yearly and had general Words of the Tythes within the 2. Hamlets but the Lease to the Earl of Bath that was then in esse was not recited and afterwards 3. Eliz. the Queen granted the Rectory of Bridgwater and the Tythes of the 2. Hamlets and all which was in the Earl of Baths Lease to the Corporation of Bridgwater Bossevile by vertue of the Statute of 18. Eliz. of Non Recitals and Misrecitals which had retrospect to the beginning of the Raâ—gn of the said Queen claymed the Tythes within the said 2. Hamlets against the Corporation After a long Argument upon a Reference out of the Court of Wards to the Chief Justices Wray and Anderson it was Resolved by them That the Patent was good without recital to Bossevile against the Queen by relation of the Statute of 18. Eliz. which makes Patents good from 2. November in the first year of the Queen and should binde the Queen her Heirs and Successors but should not be good against the Corporation of Bridgwater and therefore the Case in the Court of Wards was decreed against Bossevile Diggs Case 264. An Annuity was granted in fee at the first day of payment the Annuity was paid to the Grantee and the Grantee made an Acquittance thereof to the Grantor and in the end of the Acquittance he released to the Grantor all Actions and after at the next payment the same was behind and the Grantee brought a VVrit of Annuity against which the Grantor pleaded the Release in Barre It was strongly objected that by the Release the Annuity was determined being a personal thing and a thing in Action But it was resolved by the Court That for an Annuity before the day of payment an Action did not lye and that before it was not therefore resolved by the Release of all Actions before the day of payment and although an Annuity be a Personal thing for which the Grantee hath not any remedy but by way of Action yet it is not a thing in Action It was adjudged for the Plaintiff that the Action was well brought notwithstanding the Release Stantons Case 265. S. at the age of 16. years bound himself an Apprentice in London to I. S. by Indenture containing the ordinary words of every Indenture for Apprentices and afterwards by the command of his Master who was Baily of an Hospital in London and with those Moneys and other Moneys of his Masters he went away and had not discharged his Master against the Hospital for which he brought Covenant upon the Indenture The Defendant pleaded that he was within age in Barre of the Action and also said that upon this Custome the Defendant was impleadâ—â—â—e only in London and not in this Court The Court seemed to be of opinion That the Custome was a good Custome and the Defendant was lyable to the Action within the Custom and that he was impleadable within any place of England as well as in London and therefore that the Action was well brought 266. A Custome in London was set forth to be That if many are bounden in an Obligation as Sureties that if the Principal fail of payment so as that it one of the Sureties be sued upon the Obligation that he might have a VVrit De Contributione facienda against the Sureties and said that such VVrit was brought in London which was removed in C. B. It was remanded into London because the Common Pleas could not doe right upon the Custome Shelleyes Case 267. Upon a Special Verdict in Ejectione firme the Case was Ed. Shelley and Joan his VVife Tenants in special Tayle the Remainder in fee to Ed. had Issue then Hen and Richard Joan dyed Hen. dyed in the life of Ed. having Issue Mary It was found that Ed. by Indenture 1 2 Phil. Mar. covenanted with I. S. and others to suffer a common Recovery to the use of himself for life and after to I. B. for 24. years and after the years expired to the use of the Heirs Males of the Body of the said Ed. and the Heirs Males of the Body of such Heirs Males and for want of such Issue to the use of the Heirs Males of the Body of John Shelly of M. c. and 9. Oct. the first day of the Term Ed. dyed between the hours of 5. and 6. in the morning and afterwards the same day the Recovery passed and that by a VVarrant of Attorney made in the life of Ed. Execution was the 19. day of October by Habere facias seisinam and it was found that 5. December following the wife of Hen. Shelly was delivered of Hen. the now Defendant The Land was also found to be in Lease for years at the time of the Recovery and that Richard Shelley the younger Son of Edward entred and made the Lease to the Plaintiff In this Case there were these points 1. If the Recovery suffered by Ed. the day he dyed was good 2ly If being suffered by him Tenant in tayle it might be executed after his decease upon the Issue 3ly If any use did rise upon the Recovery before Execution 4ly If Richard the youngest Son before the birth of Hen. the Infant took the Land by purchase or by Discent This Case was many times argued at the Barre and afterwards for Difficulty was by the Command of the Queen adjourned into the Exchequer Chamber where it was argued by all the Judges of England and at last it was resolved against the Plaintiff and the reasons of their Judgements were these 1. Because they all agreed that Richard Shelley was in by Discent and not by Purchase after the death of Ed. and before the birth of Hen. the Defendant 2ly That the Recovery was good although that Ed. dyed the same day before the sitting of the Court 3ly That Execution might be sued against the Issue in tayle but that no Seisin was in the Recoverors nor any use raysed till Execution sued 268. A Lease for years was made upon Condition to re-enter for not payment of the Rent A man of ill fame out-lawed in 40. Action at the last instant of the day demanded the rent The Lessee asked him what authority he had to receive it he said he was senr thither by the Lessor but did not shew any warrant from him or that he was his Servant This was the opinion of the Justices that if any one would swear that was true against the Party who demanded
his Heirs A scire fac issued against the Heir and Terre Tenants who made default and Judgment was given against the Heir aswell of his own proper Land as of those which he had by discent It was said by Cook that although the Heir upon default shall be charged above his Assets but that was where a man bound him and his Heirs in the Recognizance but here the Heir should not be charged because the words of the Recognizance are no obligation against the Heir but only upon the Land and therefor he prayed contribution against the other Feoffes The Court refused to grant it and said that one purchasor shall have contribution against another but the Heir shall not have it but shall be in the same degree as his Ancestors was Bantings Case 288. In Trespas the Case was John Banting contracted himself to Agnes A. after Agnes was Maried to F. and Cohabited with him Banting sued Agnes in the Court of Audience and proved the Contracts and sentence was there pronounced that she should Marry the said Banting and Cohabit with him which she did and they had Issue Charles Banting and the Father dyed It was argued by the Civilians that the Marriage betwixt Banting and Agnes was void and that Charles was a Bastard But it was Resolved by the Justices that Charles the Issue of Banting was Legitimate and no Bastard 289. The Case was Lessee for years assigned the Terme to the Wife of the Lessor and a stranger and afterward the Lessor bargained and sold for Mony by deed Inrolled the stranger dyed the the Wife claimed to have the residue of the Terme not expired Whether by the Bargain and sale the Terme of the Wife was extinct or not was the Question it was said it was not but Contrary if the Husband had made a Feoffment in Fee with Livery Quaere the Case was not Resolved Vide Plowdens Commentary Amy Townsends Case Treshams Case 290. Tenant in Capite made gift in tail to I. S. upon condition that if he aliened that it should be Lawfull for him to enter I. S. aliened Tenant in Tale entred for the Condition broken It was adjudged That a Fine for the Alienation of the Tenant in Tail was due to the Queen and that the Queen might charge the Lands in whose hands so ever they came for this Fine and the duty was not discharged by the entry of the Tenant in Tail for the Condition broken but the Tenant of the Land was Chargeable for the same 291. Debt against an Executor for 100 l. in C. B. Afterwards Debt was brought against the same Executor for 100 l. in B. R. in which he confessed the Action and pleaded the same to the first Action and that he had fully administred all but the said 100 l. The Court inclined to be of opinion that the plea was not good but that the Executor was chargeable to the first Judgment Quaere because not Resolved 292. A. for mony sold to B. all the Butter which should be made of his Cowes in a year and when he had made Butter he sold the same to C. C. paid his money and set his mark upon the Barrells and left them in the Custody of A. and afterwards A. delivered them to B. the first vendee C. brought a Replevin and B. claimed the property in the Butter by the first sale It was said that the property of it was in C. for the first Contract betwixt A. and B. was but a Covenant and agreement that A should sell the butter when it should be made for before that he could not sell it and before the making of it there was no property in it and so no contract and the second alienation was a change of the property and so B. hath no remedy for it but his Action upon the Case against A. Quaere not Resolved The Earl of Huntington and Lord Mountjoyes Case 293. The Lord Mountjoy bargained and sold Lands by deed enrolled Proviso that it is Covenanted granted and agreed that it shall be Lawfull for I. S. who was a stranger to dig in the Lands for Mynes It was adjudged in this Case that although the word Proviso absolutely taken be a Condition yet when it is coupled with other Words subsequent It shall be construed to be a Covenant and not a Condition Crocook and Whites Case 294. Debt upon an Obligation the condition was That if the Defendant Warrant and defend an Oxgange of Land to the Plaintiff against I. S. and all others that then c. It was Resolved the word defend shall be taken and shall not imply any other sense but a defense against Lawfull Titles and not against Trespasses and this Case was put by Anderson Chief Justice If one Covenants to make a Lease of all his Lands in D. and in D. he hath aswell Copyhold Land as Freehold Land he is not by the Covenant to make a Lease of the Copyhold Land for that he cannot Lawfully Lease without License and the for the Law shall construe the Covenant to be of Lands dimiseable and not of other Lands Roberts Case 295. The Bishop of Batb and Wells granted to King E. 6. by Deed enrolled all his Farmes and Hereditaments of W. in W. in the County of S. Habend to the King and his Heirs and in W. the Bishop had a Rectory which extended into the County of D. It was holden in this Case that the word Farme did not include the Rectory without a special averment that the same was in Lease before but the word Hereditament was sufficient to passe the Rectory 296. A Statute is Continued during the Will of the King It was Resolved that the Demise of the King had determined his Will 297. Note it was Resolved by the Justices that if Lands are devised to 2. men and to the Child with which the Wife of the Devisor is ensient It is a good Devise and the Child shall take by the Devise but if he shall be Joynt or Tenant in Common with the other Quaere Grises Case 298. A. gave Lands to his Son and his Wife for life the remainder to the Heirs of A. the Son dyed having Issue within age A. dyed Living the Wife It was adjudged that the Issue of the Son should not be in Ward for the Remainder notwithstanding the Statute of 32 H. 8. Wests Case 299. West went beyond Sea and wrote a Letter that his Land should go in such a manner It was adjudged to be a good Will and Devise Cooks Case 300. It was agreed by the Justices in this Case that if Lessee for years during his Terme set up Posts for out-doores and hangs doores upon them by Engines that he cannot take them away at the end of the Terme but otherwise they conceived if it be of Indoors within the house Mollineux Case 301. A. bound himself in an Obligation upon condition that if he did pay to the Obligee the sum of 20 l. within 40. dayes after his personal
being at Rome and his Return into England that the Obligation should be void In debt brought the Defendant pleaded and tendred Issue that the Obligor never was at Rome It was said by the Justices That where the condition contains matter not triable the condition is void but where the matter is parcell tryable parcel not that the Condition is good But in this Case the Justices doubted of it because 2. things are Coupled by a Conjunction so as they cannot be severed otherwise if they were mentioned in the Disjunctive 302. A man was Arraigned and Condemned of Felony and Imprisoned for it in Newgate and an Execution out of the Exchequer at the suit of a comon person was delivered to the Sheriff against him who served it upon him It was the opinion of all the Barons that the Sheriffs might choose to serve the Executon or not because the King had an Interest in the body of the person Imprisoned but if they do serve the Execution notwithstanding the pardon yet it is good by which it appeareth that the Attainder shall not extinct the debts of other Subjects but that if the Attainder be purged by a Pardon the Execution of all other duties are revived and stand good for the parties 303. A man made a Feoffment in Fee reserving Rent Suit of Court and Relief and by the deed granted that if the Feoffee his Heirs or assignes should be destrained for other services then are reserved in the deed that then it should be Lawfull for the Feoffee his Heirs and Assignes to distrain in his Mannor of D and keep the distresse till he was satisfied the damage of so much as he had sustained by the distresse The Feoffee made a Feoffment over It was Resolved that in such Case the second Feoffee might Destrain because it was a Covenant which ranne with the Lands 304. Words for calling the Plaintiff a Caterpiller for he liveth by Robbing of his Guests he being an Inholder Adjudge the words not Actionable otherwise if he say He is a Caterpiller and liveth by Robbing in the High way 305. Resolved that an Action upon the Case lyeth for calling an Attorney a Common Barretor It was Colborns Case 306. Note it was Resolved by the Justices that for a Common Nusans done in via Regia as for making a ditch in it so as he cannot passe the way with his Cart and Carriages an Action upon the Case will not lye without shewing some particular injury thereby done to his person for that he is thereby no more endamaged then the Kings other Subjects but such Offence is to be presented in the Leet being a Common Neusans and not punishable by a private Action but where there is to him a particular damage 307. Debt upon Obligation the Condition was if the Obligor his Excecutors or Assignes do pay to the Obligee 10 l. within 3. Moneths next after his Arrival from Rome the said Obligee proving the same by Testimonial or other Witnesses that then c. the Defendant said that the Plaintiff had not made proof that he was at Rome the Plaintiff shewed a Testimonial under the seals of several great Persons living at Rome that he was there It was Resolved in this Case that the proof might be by Witnesses or Testimonial and it is no Mischief for if the Testimonial be Counterfeit he may take Issue upon it that it is not a true Testimoniall James Case 308. A man seised of Lands in Fee took a Lease for years of a stranger by deed Indented of his own Land the Terme expired and the stranger entred and the other brough Trespas Resolved by all the Justices that it should be an estoppel against the Lessee but only during the Terme Linsâ—is Case 309. It was Resolved in this Case That an Action upon the Case doth not lye for calling the Plaintiff a Common Extortioner unlesse it be averred that the Plaintiff was an Officer for that none can be a Common Extortioner unlesse he be an Officer 310. An Action was brought for speaking these words viz. Thoâ— meaning such an one art a perjured man and a procurer of perjury and many the like words tending to that purpose The Court said that the Action did not lye for the words if they were not spoken directly and in the affirmative and an Action doth not lye for words by circumstance tending to slander Manxells Case 311. A man made a Feoffment in Fee of his Lands and bound himself in an Obligation that he and his Son would do all Acts devised by the Obligee The Obligee devised a Deed of Release the Father delivered it as his deed but the Son did not deliver it but because hâ— was unlearned he required the Obligee to read it unto him and refused to seal and deliver it where Debt was brought against the Fâ—ther It was Resolved that the Son was bound to deliver it at his peril because the Father had bound himself that his Son should do it and that Debt did well lye against the Father his Son not sealing and delivering the Release 312. Diverse persons brought one Joynt Quare Impedit and in the Declaration they varied upon the title It was adjudged that the Writ should abate for the Judgment ought to be according to the Writ unlesse there be Summons and severance and upon diverse titles a joynt Judgement cannot be given because there is but one Lawfull title 313. Note It was holden by the Justices That an Attaint did not lye upon a verdict given in a Rediâ—â—eisin before the Sheriff and Coroners notwithstanding the Register fol. 20. is that Attaint doth Lie 314 The Lord licensed his Copyholder to make a Lease of Copyhold for 21. years to begin at Mich. following the Copyholder made a Lease accordingly by Indenture and also before Mich. by deed made another Lease to another for 21. years to begin also at Mich. following Anderson Chief Justice said the making of the second Lease was a forfeiture Hide and Neuports Case 315. A Copyholder in Fee took a Lease for years of the Mannor Resolved the Copyhold was extinct for ever and not only during the Lease Allen and Givers Case vide â—03 316. Husband and Wife brought an Action upon the Case against the Defendant and his Wife because the Defendants Wife said that the Wife of the Plaintiff had procured one to Murder I. S. It was adjudgeâ— that the Action did well lye and it was said that where one said to another that he layed wait in the Highway to Rob him that the Action did lye for the slander though nothing succeeded upon it 317. In false Imprisonment the Defendant said at the time of the Imprisonment he was Sheriff of the County of W. and Justified by reason of a Capias directed to him to arrest the Plaintiff the Plaintiff said the Defendant was not Sheriff but one I. S. It was adjudged against the Plantiff for the Court said That all things which he did as Sheriff were
Lawfull before he had a discharge of this Office or perfect notice of a new Sherff Johnson and Smiths Case 318. Action upon the Case for slandring of his Title and declared That he was seised of Lands by discent from hâ—s Father and was agreed with I. S. for a sale of the same Lands and I. S. went to the Defendant being an Attorney and prayed his advice for the making the Assurance and that the Defendant said to I. S. that he had heard that the Father of the Plaintiff had granted a Rent Charge out of the Lands in Fee by reason of which words I. S. refused to buy the Lands and all other persons for fear of the said Incumbrance to his damage c. The Defendant said he was an Attorney at Law and I. S. came to him for Counsell in secret he said the words spoken in the Declaration It was strongly urged that although he was an Attorney that would not excuse him because an Attorney is allowed to give Counsell and the utterance of the words in private did not excuse being spoken to the buyer himself But it was Resolved the Action did not lye and adjudged against the Plantiff Dawbney and Goores Case 319. In Disceit D. G. and G. were Joynt Merchants they made F. and S. their Factors in Barbary G. and G. conspired with S. to demand allowance of 1000 l. which was allowed them upon accompt by which D. was damnified for that the money was not due and the truth was S. only made the Account The poynt was if one Factor might make an Account for both and if the two Merchants might take an Account for them all three It was said that they all ought to joyn in Account but one solely might Assigne Auditours to take the Account on the other side it was said there was no Joynture in Merchandize and that one Merchant shall have an Account against his Companion Quaere the Case was not Resolved Hill and Morses Case 320. It was Resolved in this Case That a Copyhold without a special Custome could not be entailed 321. An Enfant acknowledge a Fine before the Cheif Justice but the Conusee would not have the Fine ingrâ—ssed till his full age The Enfant came now with the Note of the Conusance and prayed a Wriâ— of Error and examination of his age which the Justice agreed unto and that an Entry be made thereof and by that save to him his advantage 322. A man sold his Land and Covenanted to save the Vendee harmlesse upon request It was said if the Land be extended by force of a Statute before the request the Covenant is not broken for that now the Covenant is become impossible by the negligence of the Covenantee himself but if he had made request before the extent there the Covenant should be broken for default of saving harmelesse Foreman and Bobâ—ams Case 323. Repâ—evin The Defendant avowed for a Rent charge of 3 s. 4 d. â—issâ—ing out of the place where c. which was one parcell of the Mannor of W. of whâ—ch Mannor I. S. was seised in Fee and 33 H. 6. made a Feoffment of the said Close rendering Rent with distresse and dyed seâ—sed and it discended to his Son who bargained and sold the Mannor with all Lands Rents Reversions services and herediraments which are parcell or had been deemed reputed or taken as part parcell or member of the Mannor and the Defendant as Bayliff of the Heir of the Bargainee made Conusans for the Rent and whether the Rent did passe as parcell of the Mannor was the Question by the bargain and sale It was said it did nâ—t passe by the word parcell but it passed by the words reputed parcell if it were so reputed parcell at the time of the grant Quaere the Case is not Resolved in this Book but vide Pasch 26 Eliz. in B. R. Leon. 1. part 13. there the Judgment was given against the Avowant Justice Windhâ—ms Case 324. A Lease was made reciting that whereas he had made a Lease of one Close to the Lessee for â—0 years rendring 8 s. Rent and another Lease of another Close to the same Lessee for 40 years now he demised to the same Lessee both the said Closes for 40. year from and after the determination of the several demises It was a question if the last Lease was good because there is not any certain time of the begining of it Resolved the Lease was good and the Law shall make an Interpretation of the demise reddendâ— singula singulis how the Terme shall begin Vide Cook 5. part the same Case Dolman and Vavasors Case 325. A. seised in Fee of Lands 15 Eliz. suffered a Common Recovery to B. which Recovery was executed by Habere facias seisinam After the Recovery had it was declared by Indenture between the parties that the Recovery should be to the use of the said A for life without impeachment of Waste the remainder to the first begotten Child of his body and the Heirs male of such first begotten Child and so to his 9. Issues and for want of such Issue to V. the Tenant or Defendant and the Heirs male of his body and if these Indentures were sufficient to declare the uses of the Recovery was the Question It was Resolved that these Subsequent Indentures were sufficient to declare the uses of the said Recovery for so was the Intent of the parties as appeareth by the Indentures and it was adjudged that the declaration by the subsequent Indentures should stand good because there was not any other declaration of any other use Scroggs and Lady Greshams Case 326. Debt upon an Obligation against the Defendant Executrix of Sir Thomas Gresham The Defendant pleaded several Obligations made by the Testator to the Queen amounting to 8000 l. solvendum eidem Doâ—inae Reginae quando requisitus â—uisset ultra quam non habet upon which the Plaintiff demurred because the Obligation not being upon Record but taken in paâ—s was not good for that the Queen could not take but by matter of Record and also the solvendum is not to the Queen and Successors and the Queen is not to have the preferment of payment of her debts unlesse they be debts upon Record But yet in such Case if the Queen first sue she shall be preferred although she hath Judgement after another who sueth The Lord Pagetts Case 327. The Case was the Lord Pageâ—t seised of divers Mannors by deed Indented Covenanted with I. S. and others that in consideration of discharge of his Funerals payments of his Debts and Legacies and advancement of his Son and others of his blood to stand seised of the said Mannors to the use of the said I. S. and others for the Life of the Lord Pagett and after to the use of C. P. and other for 24. years and after the expiration of the said Term of 24. years to the use of William Pagett his Son in tail Afterwards the Lord Pagett
That if the Bargainor paid a certain sum of money at a certain day and place that the Bargainee and his Heirs would stand seised of the Land to the use of the Bargainor and his Heirs and entred Recognizance to performe the Covenants The Bargainor paid the money before the day at another place and after day tendred a deed to be sealed by the bargainee containing the receit of the mony and also a Release of all his right in the Land the Bargainee refused to Seal it The Court doubted if by the Refusal the Recognizance was forfeited because he was not bound to Seal the Deed not being pertinent to the Assurance of the Land But the Court conceived that the acceptance of the money before the day was sufficient to excuse the forfeit of the Recognizance Isams Case 480. Three Women and the Husband of one of them recovered Debt in C. B. the Record was removed by Error in B. R. where the Judgment was affirmed the Husband dyed The Women sued forth a Capias against the party without first suing a scire facias It was adjudged that there ought to have been a scire facias first sued forth because the Defendant perhaps had a Release of the Husband who was dead to plead Morgan and Williams Case 481. An Administrator brought debt and declared That Administration was Committed to him by A. B. sacrae Theologiae praefessorem and doth not say loci illius Ordinarium and for that cause the Judgment was reversed Sheffield and Rises Case 482. Assumpsit In consideration that the Plaintiff had submitted himself to the Arbitrament of I. S. the Defendant ad tunc ibidem assumpsit It was said the Action did not lye because it was upon a Consideration executed But adjudged for the Plaintiff because the words ad tunc ibidem extend to the time of the Assumpsit Sir John Perrots Case 483. In Intrusion against the Lady Dorothy Perrot and James Perrot the Case though very long was thus in effect Sir John Perrot 26 Eliz. before his Attainder seised of diverse Mannors by Indenture tripartite Reciting that whereas he had 2. Sons viz. F. and W. by diverse venters for Love and affection which he bore to his said 2. Sons and such other Issue male as should be of his body and for the Love which he boâ—e to I. his reputed Son and other Considerations Covenanted that he his Heirs and Assigns and all other persons who had Interest in the said Mannors should stand seised thereof to the use of himself for life without impeachment of Wast and after to the use of W. for life and after to the use of the first Son of the said first Son for life and after to the use of all the Sons and Issues male of the said W. by his first Wife which he should Marry one after the other in such Course and forme as they successively ought to discend by due course of Law for the terme of the lives of the said Sons and Issues males and for want of such Issue Then he limited the remainder in use to F. for life and after to his first Son for life and so further as the same was limited to W. and for want of such Issue to I. and for want of all such Issue the remainder to himself and his Heirs and Assignes There was a Proviso for the making of Joyntures to the Sonnes Wife Proviso That Sir John by any Writing signed and sealed with his hand and seal might revoke alter change any use estate or limitation in the said tripartite Indenture that then the said Sir John and all other seised and all assurances aforesaid should be of such estate or in such manner as by such Revocation enlargement or limitation should be declared W. dyed without Issue male Sir John Perrot afterwards 35 Eliz. by writing under his hand and seal did limit the Lady Dorothy his Wife the Defendant for her Joynture a third part of the Mannors in 3. equal parts to be divided 36 Eliz. T. dyed seised in possession and Dorothy entred and took the 3d. part of the profits of the said Mannor and averred the Feoffment was by writing with and under the proper hand of Sir John and traversed the Intrusion upon which it was demurred There were many points in this Case both upon the pleading and matter in Law 1. If all the estates perpetually limited in Freehold for life to all the Sons were void or which of them were good which void 2. If Sir John in making of the Feoffment had duly pursued the Authority limited to him by the Proviso 3. If Sir John in the Assignment of the Joynture to Dorothy his Wife which is the principal title by which she Justifies had duly pursued the Authority limited to him by the other Proviso for making of Joyntures The Case was very Learnedly oftentimes argued at large and Tr. 38 Eliz. It was adjudged for the Queen against the Defendants not upon the matters in Law but upon a poynt of pleading only For it was said by the Barons that they did not take plea sufficient that he did enfeoffe such person Habend to them and their Heirs to the uses in the Indentutres unlesse it had been pleaded the Feoffment was by writing or so averred to be which shall not be intended so to be without special pleading or averment of it King and Hunts Case 484. Tenant in Tail enfeoffed his Son of full age and afterwards disseised and levyed a Fine with Proclamation before the last Proclamation the Son entred and made a Feoffment the Father and Son dyed the Feoffee made a Lease for years to a stranger and dyed seised The Issue in Tail brought a Formedon and recovered by faint pleader It was adjudged in this case because it appeared by the plea That the Fine was levyed to the Lessee for years himself and not averred it was to other uses the Terme was extinct and so he could not falsifie the Recovery East and Hardings Case 485. Note It was adjudged by the whole Court in this Case That if a Copyholder cut down Trees without a Custome it is a forfeiture unlesse it be for Reparations Barwicks Case 486. Intrusion the Case was That the Queen made a Lease to Barwick of a Mannor for 21. years he surrendered the same to the Queen Anno 23. and the Queen in Consideration of the surrender granted him the Mannor a die Confectionis of the Patent for the life of I. S. and the Lessee pur auter vye devysed the same to him for 40. years and averred the life of I. S. The Plaintiff said That after the Lease made by the Queen to him for 21. years that he granted all his estate in a part of the Mannor to a stranger and afterwards in Consideration of the surrender the Queen made the Lease pur auter vye Resolved the 2d Lease made by the Queen was void because all in the first Lease was not surrendered and so the Queen
long live a Widdow And so note there is a difference between a Limitation and conditional words Harris and Vandergies Case 503. Resolved in this case that an Administrator shall have Trespass de bonis asportatis in vita of the Inteste by the enquiry of the Statute of 4. E. 3. Dudley and Knights Case 504. In Debt The Issue was if the Plaintiff habuit gavisus fuit possidebat the Office of Bedelry of the Court of Conscience of the Bishop of London it was found occupavit Officium praedictum It was said that occupavit did not amount to Gavisus fuit vel habuit but the Court held it good enough Lassels and Lassells Case 505. Action upon the case by the Father against the Son for those words spoken by him of his Father viz. My Brother hath stollen a Black Mare and you were privy to it and sent her away to the Fens to my Brothers House Adjudged the words were slanderous being spoken of a Justice of Peace Jenkingson and Wrays Case 506. Words viz. John Jenkingson meaning the Plaintiff deserveth to have his Ears naild to the Pillory Adjudged the words are actionable being spoken of an Attorney Bale and Rodes Case 507. Words viz. There is a Villain now broken into my Mothers house to rob my Mother and is in the house innuendo the Plaintiff The Court doubted if the innuendo did reduce the words to be spoken of the Plaintiff Barbers Case 508. Words viz. The Plaintiff hath bin in prison for stealing M. Pigotts horse Qu. If the Action lieth because he doth say that he had stole the Horse Atkinsons Case 509. After a Recovery of Detinue the Defendant upon the Distring as pleaded that after the Judgment he had delivered the Goods to the Plaintiff Adjudged no Plea without being returned by the Sheriff or without a Deed shewing it Pen and Glovers Case 510. Lessee for years of a Mannor covenanted that he nor his Assigns would mâ—lest vex or put out any Tenant from his Tenancy upon payment of forfeiture A breach was assigned that the Lessee entred upon the possession of A. a Tenance of the Mannor and beat and wounded and troubled the said A. for his Tenement It was adjudged no breach without an Ouster or disturbing him of the profits of it Carith and Reades Case 511. A Lease was made of certain Fenny Grounds in the County of Cambridge the Lessee covenanted to drein certain other Lands in the said County not in the Lease and in Covenant brought he pleaded that the Lessor had entred upon the Land let Adjudged no Plea because the Covenant was collateral and not for doing any thing inherent to the Land ler. Besey and Hungerfords Case 512. The Venire fac was returned the first day of the Term and the Roll gave day before the Term and Issue was joyned and tried upon it The Court said the Roll is the Warrant for the Writ The Court held the Writ issued without Warrant and the same was not aided by the Statute of 18 Eliz. for that that Statute aids only Discontinuance Miscontinuance and Misconveying of parties Ap Richard and Penrys Case 513. In a Quod ei Desorceat in Wales in the Nature of a Writ of right Issue was joyned and tried upon the meer Right The Demandant upon Non-suit was barred by Judgment and a new Quod ei desorceat brought and the first Judgment pleaded in Bar It was adjudged a good Bar and Judgment final given It was the opinion of the Justices in Error brought and assigned that final Judgment should not be given upon the Demurrer That this Judgment was good and the Judgment was affirmed Gawen and Ludlows Case 514. Note It was Resolved in this case That if in a Replevin the Defendant claims property the Plaintiff may have a Writ de proprietate probanda althought it be two or three years after because by the claime of the property the first Suit is determined Wilford and Mashams Case 515. A constitution in London is That an Apothecary who sells unwholsome Drugs should forfeit a certain pain The Defendant sold unwholsome Drugs in London for which the Chamberlain of London brought Debt in London for the pain Adjudged maintainable there by their By-laws and Customs Wild and Copemans Case 516. Words viz. Thou art a forsworn man for thou wert forsworn in the Leet Adjudged the words actionable because a Leet is a Court of Record Borough and Taylors Case 517. The Queen made a Lease rendring Rent with condition if the Rent was behind by the space of 40. days that the Lease should cease the Rent was payable at the receipt of the Exchequer afterwards the Queen granted the Reversion It was adjudged that in this case the Grantee ought to demand the Rent upon the Lands and not at the Receipt of the Exchequer for that the Grant had altered the place of payment Belchamber and Savages Case 518. Debt was recovered against the Defendant by another who sued Execution and the Plaintiff was Sheriff and had the Defendant in Execution and he escaped and the Sheriff paid the condemnation and brought an Action against the Defendant who pleaded that the Goaler licensed him to escape Adjudged no Plea Beckford and Parncotts Case 519. A man seised of Lands in A. had Issue four Daughters viz. A. B. C. and D. and devised all his Lands in A. to A. and B. his two Daughters and made them his Executors Afterwards he purchased other Lands in A. a Stranger was desirous to purchase those Lands which he had new purchased and he said That the Land should go with the residue of his Lands to his Executors Afterwards the Testator made a Codicill and caused it to be annexed to his Will but in the Codicill no mention was made of this Land and if the new purchased Land should pass by the Will without a new publication of this Land was the Question Resolved the Land newly purchased should not pass for notwithstanding that the reading of the Will and making a new Codicil may amount to a new publication yet it doth not manifest the intent of the Devisor that more shall pass then that which he intended at the first and the reading of the Will and making a new Codicill may not be termed a new publication without an express publication for the Land newly purchased therefore the Land shall not pass by it Ascue and Hollingsbrooks Case 520. The case was A. acknowledged a Statute Merchant at Lincoln before the Mayor there to which Statute there wanted the Seal appointed by the Statute of Acton Burnell wherefore the Conusee brought Debt upon it in Co. B. and had Judgment Error was brought and the Judgment was reversed because it was not an Obligation for it shall not be taken to be an Obligation without express proof of the delivery of it as an Obligation 2. Because three were bound jointly in it and the Action was brought against one of them only and so the Writ did
abate upon the Plaintiffs own suing Strowde and Willis Case 521. Debt upon an Obligation The Condition was If the Obligor shall pay the Rent of 37 l. yearly at two Feasts according to the intent of certain Articles of Agreement made between the Obligor and Obligee during the Term that then c. The Defendant pleaded the Articles did contain That the Obligor Dimisit ad forman tradidit to the Defendant omnia talia domus tenementa terras in Parochia de Y. in quibus the Obligee had an Estate for Life by Copy according to the custom of the Mannor Habendum for 21. years if the Obligee should so long live rendring to the Obligee during the Term 37. l. to be paid at the Castle of C. and further pleaded That at the time of the making of the Articles the Obligee had not any Estate in any Lands Houses c. in Y. for term of Life by Copy upon which Plea the Plaintiff demurred There were two points in the case 1. If nothing passed by the Articles and so the Reservation of the Rent is vod 2. If the Obligation for payment of the Rent was void It was Resolved upon the first point That no Rent is reserved for the Lease did never begin and therefore the Rent should not For the second point the Court differed in opinion Fenner Justice held the Condition of the Bond is to pay the Rent according to the Articles which is That if the Lessee have not the Land the Lessor shall not have the Rent Papham cont That the Obligor is bound to pay it although nothing was dimised to him for that by the Bond he hath made it a Sum in gross and it is altered from the nature of a Rent and he is bound to pay the Rent or Sum and if this be either of them he must pay it Qu. There is no Judgment in the Case upon that point Alsop and Claydons Case 522. Assumpsit That the Defendant upon good consideration promised to pay the Plaintiff 5 l. when he should be required The Jury found that the Defendant promised to pay but found no Request wherefore it was adjudged against the Plaintiff Perin and Corbets Case 523. In an Appeal the Defendant was acquitted of the Murder and found guilty of Man-slaughter It was agreed in that case that the Plaintiff could not be Nonsuit Brown and Brinckleys Case 524. The Plaintiff declared that he was produced for a Witness the Defendant said he was disproved before the Justices of Assize by the Oath of K. innuendo that he was disproved in his Oath Adjudged that the Action did not lie for the innuendo cannot supply such intendment Adderby and Bouthbyes Case 525. Assumpsit in consideration the Plaintiff would be Bail for one F. in a Plaint that Adderby had brought in London against F. the Defendant did promise to save the Plaintiff harmless touching the Bail and shewed a Recovery was against F. and 2. Cap. returned non est inventus upon which Process issued against the Bail who paid the money and the Defendant had not saved him harmless It was found upon Non assumpsit the first Action was entred by the name of Adderby and the Bail accordingly and that the Decleration was by the name of Adderley It was adjudged that although the Jury found the Assumpsit yet the special matter proves the Plaintiff had no cause of Action for he was not damnified by reason of the Bail at the Suit of Adderby for which the Assumpsit was but he was wrongfully taken if he was Bail for Adderley against whom the Recovery was had whereas in truth he was not Bail for him wherefore it was judged against the Plaintiff Austin and Twins Case 526. The Patronages of two Churches adjoyning within one mile were belonging to one Parson and both being void and of the value of 7 l. in the Queens Books the Ordinary made an union of them at the request of the Patron which was afterwards confirmed by the Patron and the Queen Qu. If a good union Tusking and Edmonds Case 527. A Lease was made of Tythes rendring Rent at a place out of the Parish with clause to be void upon non payment Adjudged the Lessor is to make his demand of the Rent at the place and for not payment the Lease is void Broughton and Mulshoes Case 528. False Imprisonment The Defendant justified that he was Constable and the Plaintiff being in the presence of a Justice of Peace not having opportunity to examine him commanded he Dedant to take the Plaintiff into his custody till the next day which he did accordingly It was adjudged a good Justification though not alledged what cause the Justice had to imprison the Plaintiff Megs and Griffins Case 529. Words viz. I. S. told me that he heard say That thou didst poyson thy first Husband and that he died of that poyson with an averment that I. S. near told the Defendant so Yet adjudged that neither words nor the averment of them were sufficient to maintain the Action Brokes Case 530. Words spoken of a Merchant viz. He is a false man and I will prove it and be keepeth a false Debt-book for he charged me with a Piece of three Piled Velvet which I never had Adjudged the Action did not lie without saying That by disswasion of Customers or other they did not deal with him nor that they would not trust him The Lord de la Ware and Pawlets Case 531. Words spoken of the Plaintiff in open Sessions viz. You have perverted Justice and to your shame and dishonour I will prove it adjudged the words actionable Weekes and Taylors Case 532. Words viz. he hath laid in wait to rob and was one of them that would have robbed me adjudged actionable though he was not robbed Carters Case 533. Words viz. Carter is a proging pilfring Merchant and hath pilfred away my coâ—n from my Wife and my Servants and this I will stand to adjudged the words are not actionable Bowyer and Jenkins Case 534. Action upon the case for words spoken at B. in the County of S. the Defendant justified that he spake the worda at C. at a Tryal there being produced as a Witnesse by Subpoena and sworn The Plaintiff said de injuria sua propria and found for the Plaintiff and because the venire was from B. whereas it ought to have been from C. where the Justification was It was adjudged Error Penniman and Rawbanks Case 535. Action for slandring his Title That the Plaintiff was seised of Land and put it to sale and the Defendant said I wish not any man to deal with the Land for I know one that hath a good Title to it and the parties will not depart with their interest for any reason The Defendant Justified that he had a Lease in Reversion of it and at will of other part It was replied de injuria sua propria and found for the Plaintiff Resolved by the Justices If
liberty of Exemption was extinct by the Act of Parliament and the Kings intent was not to grant such a Liberty as was excinct and as to the non obstante it was not sufficient being general but if the Grant or non obstante had been particular there the Grant should have been good Matthew and Woods Case 449. Judgement was given in B. R. in an Action upon the case for words the Plaintiff there brought another Action in C. B. for the same words and had Judgment to recover Error was brough upon the Judgment in B. R. the Court was of opinion to confirme the Judgment in B. R. but they in discretion would not grant execution upon it but only upon the Judgment in their own Court Thimblethorps Case 550. Words viz. when wilt thou bring home my Husbands sheep which thou hast stollen adjudged actionable and the damages to be paid by the Husband Hilliard and Constables Case 551. Words spoken of the Plaintiff a Justice of Peace and Vice President of York viz. He is a blood-sucker and thirsteth after blood but if any man will give him a couple of Capons or a score of Weathers he will take them It was adjudged the words were not Actionable because he may thirst for blood in care of Justice Wheeler and Collyers Case 552. Assumpsit against an Administrator whereas the Intestate was in his life endebted to him 17 l. in consideration the Plaintiff would deliver to the Administrator 6. barrells of Beere he promised to pay the whole 20 l. being found for the Plaintiff Judgment was stayed because the action did not lye joynt for two sums of money Colmans Case 553. In consideration of 4 d. one promised to pay 10 l. upon non Assumpsit Damage shall be given to 10 l. and not to 4 d. adjudged Awder and Nokes Case 554. Lessee for years assigned over his Terme by deed to I. S. and Covenanted that I. S. and his assignes should enjoy the Land during the Terme without Interruption of any After I. S. assigned over his Terme by word and the Assigne being disturbed brought Covenant adjudged it did lye although the Assignement was but by word because there was privity of estate Paramoure and Darings Case 555. The Condition of an Obligation was to pay all Legacies which I. S. had bequeathed by his Will Adjudged the Defendant shall be estopped to say I. S. made no Will but he may plead he gave not any Legacies by his Will Grene and Bufkyns Case 556. The Statute of 31 H. 8. gave all Colledges dissolved to the Crown in which there is a Clause that the King and his Pattentees should hold discharged of Tythes as the Abbots held Afterwards the Statute of 1 Edw. 6. gave all Colledges to the Crown but there is in it no Clause of Discharge of Tythes The Parson Libelled in the spiritual Court and the Farmor of the Lands of the Colledge of Maidston in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of opinion that the King had the Lands of the Colledge by the Statute of 1 E. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands comming to the King by that Statute whether they should be discharged of Tythes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Edw. 6. for dicharge of Tythes but it was Resolved by the Justices that unity without Composition or Prescription was a sufficient discharge of Tythes by the Statute of 31 H. 8. 557. Action upon the case for that the Defendant made a Conigree in his own Lands and that the Conies entred into the Plaintiffs Land and destroyed his Corne Resolved that the Action did not lye because they were not the Defendants Conies when they were out of his Warren But in that case it was holden that the Erection of a Conigree or a Dove Cote was presentable in a Leet and finable there 558. Note Resolved in the Court of Common Pleas by the Justices there That an Information doth not lye upon the Statute for Tanning of Leather but only in the Courts of Record at Westminster and not in any other Inferior Courts The Queen and Hussies Case 559. Tenant in Tail of an Advowson the reversion to the King in 32 H. 8. granted it to the King and his Heirs the King granted the Advowson to the party presented Tenant in Tail dyed without Issue the Church became void Resolved that the Advowson did passe out of the Kings Reversion after the estate Tail was determined and that a Quare Impedit brought by the Queen did not lye But in this case it was Resolved That a double presentation would not put the Queen out of possession if she had had Right Nevill and Barringtons Case 560. After Issue joyned in an Ejectione firme and the Jury at the barre ready to try the Issue A Writ was brought to the Justices not to proceed Regina inconsulta in the Nature of Aide and after great debate the same was allowed by the Court Vide aide in personal actions 2 R. 313. Fennor and Plasketts Case 561. It was Resolved in this case That if the Husband distrain for Rent due to the Wife dum sola fuit and Rescous be made he alone may have a Writ of Rescous or at his Election joyne his Wife with him in the Writ 562. A Rescous was returned without shewing the place where Rescous was and the party was discharged Hinson and Baradges Case 563. If the Jury challenge the Sheriff and the challenge be confessed although the Jury be removed and a new Sheriff chosen Yet Resolved The proces shall go to the Coroners 564. It was Resolved in this case that Ejectione firme doth not lye de pecea terrae Hollman and Collins Case 565. A Judgment in the Court of Plimouth was reversed because the stile of the Court was Placita coram I. Majori c. and did not say secundum Consuetudinem villae nec per litter as Patentes c. Kelsick and Nicholsons Case 566. Two Executors were and one of them gave the Obligation to a Stranger for the payment of his own Debt and died The survivor brought Detinue It was adjudged the Action did not lie Sowel and Garrets Case 567. A devise was made to the Son and if he die without Issue or before his age of 21 years it shall remain to another the Son had Issue but dyed before 21. years Adjudged the Son should have the Land and not he in the Remainder and in that Case Ou was construed for Et. Buckler and Harvyes Case 568. The case is very long but this in effect Tenant for Life the Remainder in Fee Tenant for life made a Lease for years the Lessee entred Tenant for Life granted the Tenements to C. Habendum the Tenements from the Feast of Mich following for Life the Lessee for years attornes C. enters and makes a Lease at Will to whom the Tenant for Life
levied a Fine Come Ceo c. he in the Remainder entred In this Case it was Resolved first that the Grant to C. was void for that an Estate of Freehold cannot begin at a day to come 2. That the Grant being void at the beginning the attornment afterwards cannot make it good 3. When C. entred by color of the Grant he was a Disseisor 4 If the Fine had been levied to the Disseisor himself he who had the right to the Remainder might have entred for the forfeiture 5. That the Fine levyed to the Tenant at Will was a forfeiture and he in the Remainder entring upon it had purged the Diseisin 6. It was Resolved in this case that if the Diseisee levieth a Fine to a Stranger the Diseisor shall retain the Land for ever for that the Diseisee against his own Fine cannot claim but by the Fine the Right is extinct of which the Diseisor shall take advantage Abraham and Twiggs Case 569. A seised of Land in Fee by his Will in writing devised 40. l. annuity to I. S. for Life with clause of distress payable at Mich. and our Lady-day and died The Rent was behind at our Lady-day 35 Eliz. I. S. distrained a Replevin was brought and the Plaintiff in the Replevin said â—hat before A. was seised that B. was seised in Fee and enfeoffed divers persons to the use of himself and the Heirs of his Body the Remainder to the use of G. Et haeredum masculorum suorum legitimè procreatorum pro defectu talis exitus ad usum I. D. et haeredum masculorum suorum legitimè procreat pro defectu talis exitus ad opus usum rect haered dicti G. imperpeâ—uum B. died without Issue G. had Issue A. the Devisor The principal point in the Case was If the Limitation to the use of G. and his Heirs Males lawfully begotten and for want of such Issue ut supra without the words Heirs Males of his Body was an Estate tail or a Fee simple in G. for if tail then the Devisor his his Son was seised in tail and his Will of the Rent void It was Resolved he was seised in Fee-simple and not in tail for default of the words Heirs of his body in the limitation of the use Wrights Case 570. In a Prohibition in this case it was holden by the Court that the Bishop of Winchester might prescribe that he and his Praedecessors Farmers and Tenants of Temporal Lands had held their Lands discharged from the payment of Tythes and so might any other spiritual person but Temporal persons could not prescribe in non Decimando but in modo Decimando they might prescribe Marsh and Curties Case 571. Ejectione firme The case was A seised in Fee let a Messuage and 20. acres of Land for years rendring Rent Provided the Lessee shall not parcel out any of the Lands from the House The Lessee devised the house and 10. acres for half a year reserving the other 10. acres the Lessor at the next day accepted of the Rent and notwithstanding entred upon the Land the Lease not being expired It was Resolved That the words in the Proviso were a condition 2. That the condition was broken by the Devise of the House with parcell of the Land as well as if he had devised the whole Land But some of the Justices were of opinion that the acceptance of the Rent after the condition was broken had dispensed with the condition and had barred them of his entry for the condition broken especially if the Lessor had notice of the Condition broken at the time of the acceptance of the Rent Quaere The Lord Norris and Barretts Case 572. Debt for an Amercement in a Leet The case was The Abbot of A. was seised of the Hundred of H. in Com. B. and of Leet appendant to it to be holden by prescription once in the year at Easter The Dissolution of the Abby was found and that the Towns of C. and N. with 20. other Towvs were in the Hundred King Edward the Sixt granted to L. divers Lands in N. which was parcel of the possessions of the Abby and also granted to him Omnes omnimodas Curias Leetas Perquisitiones proficua Curiarum Leetarum fines amerciamenta in N. seu in eorum aliqua seu alicui inde parcellae modo spectant sive pertinent With a further Clause that L. and his heirs should have tot talia tanta hujusmodi consimilia curias Leetas fines amerciament quaecunque prout Abbas c. Infra Messuagia terras tenementa caetera praemissa quamlibet inde parcellam Afterwards Ed. 6. granted the Hundred and the Leet to I. B. and I. D. which by mean conveyances came to the Plaintiff L. conveyed the Land to his second Son under whom the Defendant claims It was the opinion of the Justices That L. had not any Leet by the Grant nor any Amercement nor was discharged from the general Leet because the first clause of the Patent is restrained to Leets and Amercements belonging or appertaining to the Land granted and the Leet which the Abbot and King had was appertaining to the Hundred and not to Land 2. That L. could not have the like Leet as the Abbot for when eadem may be had and the Plaintiff hath words to have eadem if he fail of eadem he shall not have Consimile for eadem remains in the King and if the King hath a Leet none other can have a Leet in the same place because two Leets cannot be in one place simul semel Laughton and Gardiners Case 573. In Action upon the Case Upon a Latitat the Sheriff returned a Cepi habeo Corpus paratum which he had not and the Defendant did demur to it Adjudged the Action did lie because by his demur the Defendant hath confessed his false Retorn but if he had pleaded the Statute of 23. H. 6. and shewed he had taken Bail the Action would not lie Nicholas and Badgers Case 574. The Defendant in an Action upon the case for words by his Council gave in evidence That one I. S. had stollen certain Sheep and that by compart betwixt the Plaintiff and I. S. the Plaintiff did take a Lease of a Close of I. S. in D. to help him to cloak and to keep him from the Felony and that he said He would affirm all to be true that the Council had said It was adjudged that for these words a new Action did lie for although they do not accuse him as an accessary to the Felony but for misprision of Felony which is not Fineable yet it is a great-scandal of any man to say That he cloaks Felony Note in this Case It was Resolved that an Action upon the Case doth not lie against a Counsellor for delivering slanderous words in evidence Boneham and Springs Case 575. Assumpsit in London The Defendant pleaded a Concord in another County for all Matters in any County except London
of himself for Life the Remainder to F. in tail the Remainder to the Defendant in tail and the Remainder to the Right Heirs of the Father F. had Issue I. the Lessor of the Plaintiff and died in the Life of his Father The Father made a Lease for years the Lessee for years made a Feoffment in Fee the Father Releases with Warranty to the Feoffee and dyed The Feoffee enfeoffed the Defendant It was the opinion of the Justices in this Case that the Warranty by reason of the Covyn should not bar and that it was a Warranty which did commence by disseisin The Earl of Lincoln and Fishers Case 644. The Defendant gave the Plaintiff the Lye openly in the Leer for which the Steward assessed a Fine of 20. s. upon him The Plaintiff brought Debt for the Fine It was adjudged the Action was maintainable because they are words of contempt in a Court of Justice to a Judge for which the Judge might fine him Canes Case 645. A Venire fac at the Suit of the Plaintiff was prayed to the Coroners because the Sheriff was his Master and the Defendant confessed it It was tried for the Plaintiff It was said it was a Mis-Tryal because a Venire fac ought not to be to the Coroners upon any suggestion if it be not a principal Challenge But the Court held it good although he did not conclude his Challenge and so favorable Revera and Baptistaes Case 646. Assumpsit The Jury found the Assumpsit but that it was upon another consideration and not upon the consideration layed in the Declaration Adjudged against the Plaintiff Tarrants Case 647. The Father made a Feoffment to the use of himself for Life the Remainder to his eldest Son and the Heirs Males of his Body the Remainder to his own Right Heirs Proviso That if any of them to whom the Estates are limited or any Issue Male of their Body intend or attempt or do any Act by which the Premises or any part of them should be discontinued that then of that part his Feoffees should be seised to the use of him to whom the Premises after the death of the said party should come as if he were naturally dead The Defendant being Tenant in tail suffered a common Recovery he in the Remainder entred It was Resolved that Tenant in tail could not be restrained from suffering a common Recovery vide accordingly Chomeleys case and Germin and Ascotts case before The Lord Cromwell and Andrews Case 648. In Assise the Case was A seised of a Mannor with an Advowson appendent granted bargained and sold the Mannor and the Advowson to B. and his Heis rendring Rent to A. and his Heirs and covenanted to suffer a Recovery to the use of B. and his Heirs and covenanted to levy a Fine to B. and his Heirs with a render of the Rent to A. and his Heirs Proviso that B. shall regrant the Advowson to A. for his Life so as he shall present as often as it should be void during his Life B. and A. both joyn in a Fine to I. S. who renders the Rent to A. in tail with the Remainder to I. D. and renders the Land to B. and his Heirs Afterwards B. died before a Regrant of the Advowson A. enters upon the Heir and enfeoffs the Lord Cromwell upon whom the Heir of B. reenters There were three points in this Case 1. If the Proviso for the regrant of the Advowson made the Estate of B. conditional in the whole Mannor 2. If the condition by the death of B. without regrant of the Advowson be broken 3. If the Condition be extinct by the Conusance and fine and revived as a Limitation in the use of the Fine The case is here only largly argued but not adjudged Vide Resolution of this Case Coo. â— pa. and here before pl. 229. Hiddy and Welhouses Case 649. In Trespass for taking of his Chattel The sole point in the Case was Whether Toll was incident to a Fair of common Right It was Resolved that Toll is not incident to a Fair of Common Right and that none shall have Toll in a Fair if he hath it not by Grant or Prescription But it was agreed that the King might grant Toll with a new Fair if the Toll be reasonable and not excessive but if it be to have 1 d. upon every Beast they took it to be unreasonable vide Cro. 3. part 559. accordingly The Queen and Doddingtons Case 650. In account against the Defendant Executor of Sir Walter Mildmay The Case was The Marquiss of Winton 1 Eliz. being Treasurer of England and Sir Walter Mildmay Chancellor of the Exchequer and of the Court of Augmentation then lately dissolved and united to the Exchequer allowed Sir Walter Mildmay 100 l. per an for diet and 40. l. per an for his attendance in the Office of the Chancellor of the Exchequer After which 2 Eliz. a Privy Seal came to the Treasurer Chancellor of the Exchequer to pay the Fees and Allowances by Patent or Parliament to the Treasurer Chancellor of the Exchequer and other Offices and to give such Rewards to other Officers they should think they deserved There were divers points in this Case 1. If the Treasurer alone ex officio might increase Fees or Allowances to the Queens Officers 2. If a Privy Seal was a sufficient Warrant to do it 3. If he might give a Reward to the Chancellor by the Warrant 4. If the Privy Seal being after the allowance made and before payment come in time to excuse the payment 5. If account did lie against Sir Walter Mildmay himself 6. If his Executors were chargable in account This Case is in this Report only argued but not Resolved But vide in Coo. 11. pa. in the Earl of Devonshires case this case is put and there it was said it was Resolved in this case that no officer of the King might ex officio issue or dispose of the Kings Treasure although it be for the honor and profit of the King without a Warrant from the King and a Warrant by word of mouth or under his privy Signet is not sufficient but the Warrant ought to be under the Great Seal or Privy Seal and if the Chancellor of the Exchequer doth receive the Kings Treasure to his own use he shall be charged in account for the same Worme and Websters Case 651. A seised in Fee of Lands holden in capite made a Feoffment thereof to B. and C. to such intents and purposes and to such uses and estates and in such manner as are declared and limited or should be declared in the last Will of the said A. Afterwards he made his Will in this manner viz. I Will and Devise that E. my wife during her Life shall have and take the profits of all my Mannors and Lands and after her decease I devise them to G. P. and the Heirs of his body and died E. entred and died G. P. entred 1. Question if the
Eliz. assigned the same to C. for 14. years rendring yearly three Bushels of Mesâ—yn and one Bushel of Wheat in name of a Rent every Saturday and if it fortune the weekly Rent to be unpaid or undelivered then the Lease to cease B. entred and C. possessed of the Reversion by Deed Poll granted the Reversion totum interesse sui to D. to whom B. attorned R. demanded the Rent Corn upon a Saturday which was not paid for which he entered It was Resolved 1. that the Rent reserved by the first Lessee upon demise of the Will for a less Rent was incident to the Reversion of the ancient Term and shall pass by the words of all his Estate and by totum interesse the Rent divided from the Reversion will pass and the Reversion by the words totum statum 2. That the Assignee de toto statu shall take advantage of the cesser of the Term in esse and make the demand of the Rent if the Grant de toto statu be by writing with attornment 3. That by the Statute of 32. H. 8. the Grantee of the Reversion shall have benefit of a Condition annexed to a lesser Term divised out of the first Term There was another point It the demand of the Rent was good or void which was not Resolved Coulter and Irelands Case 664. It was Resolved in this Case by all the Justices of England That an Executor of his own wrong could not pay himself a Debt or a Legacy Chambers and and Handbarges Case 665. In case of a Prohibition It was suggested that the Queen and all those whose Estates she had had used to pay to the Rector of D. 2 s. 4 d. yearly in full satisfaction of the Tythes of Land in C. Issue was upon the Prescription It appeared that the Abbot of K. was owner of the Land and Rectory which afterwards came to the Queen who was seised as the Abbot was Resolved that the Unity was not a perpetual discharge of the Tythes nor of the Recompence for them Brougton and Randals Case 666. A Tales was awarded upon the Return of a Distringas where none of the principal Pannel appeared yet holden it was good But a Tales is not grantable upon the Return of the Venire if none of the principal Pannel do appear Benton and Trotts Case 667. In case of a Prohibition It was Resolved in this Case that unity of the Estate and not in occupation of the Land and Rectory at the day of dissolution of the Abby was not a discharge of payment of Tythes by the Statute of 32. H. 8. But if the Abbot held the Land at the time of the dissolution in Fee and the Rectory also those Lands were always discharged but if the Lands were in Lease for years although but for a small Term of years the Lands should pay Tythes and so it was said it was adjudged in Knighth and Spencers case and in Green and Bufkyns case and vide to that purpose Coo. 11. par Pridle aâ—d Nappers case Verey Carew and Gibsons Case 668. A seised of Lands in Middlesex and in London acknowledged a Statute to Carew and afterwards conveyed the Land in Middlesex to one which came to the Plaintiff by purchase and the Land in London he conveyed to G. the Defendant and died The Administrator of Carew sued a Scire fac against the Conusor in Middlesex who was retorned mortuus upon which he had a Scire fac to the Terre-Tenants in Middlesex generally and Verey the Plaintiff was returned Terre-Tenant and made default upon which Judgment was given for execution and that a Moiety of the Land in Middlesex should be extended upon which he brought a Scire fac in the nature of an Audita Querela against the Administrator and Gibson Tenant of the Lands in London to shew cause wherefore the moiety of the Lands in London should not be extended It was the opinion of Popham Chief Justice that he might have a Writ wherefore the Lands restitui non debent but not an Audita Querela but the other Justices held that that was the most beneficial way for him who was grieved by the former extent but if he will not pray restitution of what is past but only a contribution for an equal extent to satisfie what did remaine they saw no cause but that he might have it for the foundation of the Writ is equal extent and it was said that the Book of 39 E. 3. 7. and 39 was that it was in Election of the Conusee to take his Audita Querela for restitution or for future contribution Wild and Coopmans Case 669. Words viz. Thou art a false forsworn man thou wast forsworn at the Leet of R. and didst procure others to be forsworn The Defendant justified because that the Plaintiff was one of the Jury and presented that to be a Nusance which was no Nusance Adjudged the Justification was not good and that the Action did lie for the words Parry and Woodwards Case 670. Debt upon a Bill which was Be it known that I do owe to Parry 14. l. to be paid at the Feasts of c. together with 6. l. which I owe him upon Bill and Recognizance subscribed under my hand The Plaintiff brought debt for 20 l. and adjudged against him because the Bill made him Debtor for no more then 14 l. Vaughans Case 671. Intrusion The Queen by her Letters Patent ex certa scientia gratia speciali mero motu granted to I. S. which were late parcel of the Priory of L. and came to the Crown by dissolution of the Premises or any part thereof or the issue or profits thereof were before the first of April 14. Eliz. concealed substrained or unjustly detained from her Father Brother Sister and so remained at the date of the Letters Patent untill they were revealed by the Patentee and it was found by a Commission in 8. Eliz. issued forth to enquire of the Reparations of the King granted and how much money would repaire it and that the Queen was allowed the value of the Stone and Lead expended in the Reparations This was adjudged to be no concealed Land and therefore the Patent void Michel and Longs Case 672. If a Battery be laid in D. in the County of N. with a Continuando in Middiesex and Issue be upon it the Venire shall be of both Counties Thompson and Gardiners Case 673. The Plaintiff had a 100 l. delivered to him to pay over to I. S. and the Defendant came to him and affirmed he was I. S. to whom he delivered the 100 l. and in truth he was not I. S. Adjudged that an Action of Deceit lay against him Shorhorne and Lewis Case 674. The Hospital of Donnington was incorporated by the name of Minister Dei pauperis domus de Donnington confratres ejusdem and they made a Lease by the name of Minister pauperis Domus Dei de Donnington elemosynarii confratres ejusdem The Justices were divided
in opinion if it was a good Lease Rosse and Mores Case 675. Assumpsit In consideration that the Plaintiff would relinquish a Suit which he had against a Stranger the Defendant promised to save the Defendant harmless from all actions concerning such a Lease It was adjudged no good Consideration because he may afterwards prosecute the Suit again when he pleaseth Bannister and Lillyes Case 676. Debt for Rent upon a Lease for years The Defendant said I. S. was seised and died and his Heir entred and the Plaintiff disseised him and made the Lease and the Son reentred before the Rent day The Plaintiff said I. S. was not seised nor died seized and that he did not disseise the Son The point was if the disseisin or discent was traversable adjudged the Disseisin Stoner and Gibsons Case 677. It was adjudged in this Case that the Lessee for years of a Copyholder might maintain Ejectione firmae Digby and Vernans Case 678. Resolved It is a good Plea in abatement of an Ejectione firme that the Plaintiff hath an other Ejectione firme depending of the same Land Waston and Ridges Case 679. It was Resolved in this Case That upon an Information exhibited in the Spiritual Court for laying of violent hands upon a Clerk and costs there given against the Defendant for which he was excommunicate for not paying them a Prohibition should issue forth because it was not at the Suit of the party and costs are not grantable there upon an Information Butler and Goodales Case 680. Upon an Information upon the Statute of 21 H. 8. of Non-Residence It was Resolved That the Parson ought to dwell upon the Parsonage house and not upon another house although it be within the Parish both for serving the Cure and maintaining of Hospitality v. Coo. 6. par the same case Odiham and Smiths Case 681. Error of a Judgment in C. B. for Trespas there for taking of an Ox the Plaintiff there assigned the Trespass generally in D. the Defendant justified the taking of the Ox damage Feasants the Plaintiff made a new Assignment upon which the Defendant justified for Heriot Service and the Judgment there passed against the Defendant because he could not varie from his former Justification but should be estopped by it It was the clear opinion of all the Justices that he might well varie in his Justification upon the new Assignment and therefore the Judgment was reversed Reyner and Parkers Case 682. An Apparator came to the Church of a Parson and said to him he is to pay Tenths to such an one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop certified that he refused to pay them according to the Statute of 26. H. 8. It was Resolved the demand was not according to that Statute and the Summons to pay them not according to the Statute for the demand ought to have been by one who hath authority to receive them which the Summoner had not and they held the demand not good although the Bishop certified it was duly made 683. One who exhibited an Information upon a penal Law died It was Resolved That notwithstanding the death of the Informer yet the Queens Attorney might repay and prosecute the Information for that neither death nor the Release of the Informing party could bar the Queen from the moiety Holliday and Lees Case 684. In a Prohibition It was Resolved that Tythes should not be paid of Beeches although above twenty years growth Cartwright and Dalesworths Case 685. Debt upon an Obligation taken by the Plaintiff Sheriff of the Detendant his Clerk upon condition to pay the Queens Silver into the Exchequer within 14. days after hereceived it The Defendant pleaded he Statute of 23 H. 8. c. 10. and averred it was taken colore Officii Upon demur it was adjudged for the Plaintiff for the Statute doth not intend such Obligations taken of them which are not to appear nor are in custody 686. It was holden by the Justices that if the Sheriff takes goods in Execution upon a Scire fac and hath the goods in his hands and a Supersedeas comes to him yet he shall not thereupon redeliver the goods but may proceed and sell them upon the Execution Armiger and Hollands Case 687. In case of a Prohibition It was Resolved that by the Common Law before the Statute of 21. H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Arch-Bishop had not Authority by the Statute of 25. H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute but yet the Statute as to those Dispensations which the Arch-Bishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal Mosley and Fossets Case 688. In Action upon the Case the Plaintiff declared that the Defendant took the Plaintiffs Gelding to pasture for 2 s. the Week and the Defendant was to keep it safe and redeliver it upon Request and that the Defendant kept it so negligently that it was taken away by persons unknown The Court was divided in opinion if the action lay without alledging a Request for delivery of it But it was agreed by them all that without a speciall Assumpsit the action did not lye against the Defendant Sharington and Minors Case 689. A man devised Lands in Tail with diverse Remainders over and with this Clause viz My minde is that if any of the said persons afore entailed to my said Lands or their Heirs do unlawfully vex disquiet or trouble any other of them for the same Or do Mortgage pledge or sell the same or any part thereof or his interest possibility or title therein or do hurt fully dismember or waste the same c. That then every such person and his and their Heirs shall forthwith be cleerly discharged excluded and dismissed as touching the said entail of mine and the conveyance by words forgoing of the entail of my said Lands to be of no force to him or them but the same immediatly to discend and come to the party next in Tail to him or them effectually as if such disordered person had never been minded of in thiâ— my Will B. having this Land by the forfeiture of the former estate she and her Husband levyed a Fine of it he in the next Remainder entred It was holden by the Justices that the estate of each of them in the Remainder was subject to the limitation to cease by alienation and that the next in the Remainder might enter Corbens Case 690. In Consideration of Marriage the Father agreed by word to stand seised of Land to the use of himself for
good against a Purchaser bna fide for valuable consideration Crowther and Fryers Case 800. The case was a Parson sued a Copyholder for Tythes arising upon his Copyhold he prayed a Prohibition and suggested that the Bishop of W. was Lord of the Mannor and that he and his Predecessors time out of mind c. for them their Farmors and Tenants had bin discharged of Tythes arising upon the Mannor and shewed he had bin a Copyholder of the Mannor and preseribed in his Lord. It was the opinion of the Justices in this case that although there is a Prescription upon a Prescription one in the Copyholder to make the estate good the other in the Bishop to make his discharge good yet a Prohibition lyeth for the Prescription in the Lord of Right of necessity and common Intendment proceeds the Prescription in the copyhold estate and the discharge of the Tythes in the Lord shall go to the benefit of the Copyholder Blake and Allens Case 801. B. was bounden 10 A. in an Obligation of an 100 l. for the true behaviour of his Son he being an Apprentice to A. A. after the sealing and delivery of the Bond razed out the word Libris and inserted the word Marcis It was the opinion of the Justices it was not a Forgery punishable because he made his own Bond void and it was not a prejudice to any but to himself 802. Two Executors made Partition of their Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition betwixt them the other sued in Chancery for Reliefe but the Chancery would not relieve him but if the Release was obtained by Covin for a less Sum then the Debt was there it was holden the Debtor should satisfie the Over-plus 803. It was agreed by the Justices that the Hundred is not chargable with the escape of the Felons nor to pay the Robbery if the Robbery be done in an House nor if it be a Robbery in the High-way in the Night 804. Note It was Resolved â—9 Feb. 43. Eliz. by the Justices upon the Arraigment of the Earl of Essex 1. That when the Queen sent the Lord Keeper and others of her Council to him commanding him to disperse the armed persons which he had in his house and to come to her and he refused so to do and kept the armed men in his house that that was Treason 2. That when he went with a Troop of Captains and others into the city of London and there prayed aid of the citizens to assist him in defence of his Life and to go with him to the Court so as he might be of power to remove his Enemies which attended upon the Queen that that was Treason 3. That the Fact in London was actual Rebellion although he did not intend hurt to the Queen 4. That the adherence of the Earl of Southampton to the Earl of Essex although he did not know of any other purpose then of a private Quarrel which the Earl of Essex had against certain of the Queens Sewants was also Treason in him 5. That all those who went with the Earl out of Essex-House into London whether that they knew his intent or not were Traitors although they departed by Proclamation but those who upon a suddam adhered to him in London and departed so soon as Proclamation was made they were within the Queens Grace of pardon by the Proclamation Holland Jackson and Ogdens Case 805. Error was brought to reverse a Recovery and a Scire facias issued against K and other Terre-Tenants depending which a Writ of Estrepment was awarded against the Terre-Tenants and Resolved it did well lye Dalton and Hamonds Case 806. It was Resolved by the Justices in this case that if the Lord demandeth an excessive Fine of his Copyholder and he refuseth to pay it it is no forfeiture otherwise where it is a reasonable Fine and the Court and Jury shall be Judges of the reasonableness of it But if a Fine be certain the Tenant is to bring it with him to Court and to pay it before admittance and if he be not ready to pay it it is a forfeiture Gambleton and Grassons Case 807. In Trover and Commission it was found for the Plaintiff It was moved in stay of Judgment that the Distringas with the Nisi prius bore the same date with the Venire facies It was the Resolution of the Court that it should be amended for it was aided by the Statute of 32. H. 8. Higgins and Spicers Case 808. A Venire facias was awarded to the Coroners ita quod B. who was one of the Coroners se non intromittat because he was the Servant of R. who was Sheriff It was said the same was no cause of Challenge but the Court conceived it was because confessed However it was but a misconverting of process which was aided by the Statute Hall and Jones Case 809. Action was brought upon the case for slanderous words in a Court of Pipowders The Stile of the Court was Curia pedis pulverizati ratione Mercati c. Secundum consuetudinem Civiiatis It was adjudged there for the Plaintiff and Error brought and Assigned that a Court of Pipowders doth not belong to a Market but to a Faire The Court held that by custome of a city or place it might be to a Market 2. Resolved that an Action upon the case for slanderous words did not lie in a Court of Pipowders and for that cause the Judgment was reversed The Countess of Warwick Attwood and Davies Case 810. Action upon the case against two the one pleaded to Issue the other demurred upon the Demurrer the Plaintiff had Judgment and a Writ of enquire of Damages against him alone and the Defendant relinquished the other Issue It was the opinion of the Court that he might relinquish against him and have Judgment and execution of the damages against the other only Sir Gervase Clifton and Chancellors Case 811. In Trover and Conversion of Jewels The Defendant pleaded that a Stranger was possessed of the Jewels and sold them to him in his shop in Bristol he being a Gold-Smith and because he did not say that the Sale was in pleno Mercatu nor aver'd it was his shop in which he used the Trade of a Gold-Smith It was adjudged for the Plaintiff and in this case it was agreed that the King cannot grant to one that his Shop shall be a Market overt to bind Strangers because it is against the Law Ludd and Wrights Case 812. In debt to perform an Accord the breach was assigned of a thing out of the Submission and issue being joyned the Plaintiff at the Nisi prius was Nonsuit Then the Judgment given upon the insufficient Pleas is not upon the Nonsuit It was holden the Defendant should have costs for the unjust vexation Gawen and Rants Case 813. In Replevin the case was
Administratrix of W T. her Husband and that W. T. by his Bill such a day c. promised for him and his Executor to deliver to the Plaintiff 5000. Tyles before the Feast of All-Saints and to pay to the Plaintiff tantum quantum incrementuÌ„ and gaines which the Defendant should receive of the said Tyles for a year and averred the said W. T. received of the gaines 8 l. and that the Defendant in consideration the Plaintiff would suffer the Defendant to take and have the sole and only Administration of the goods of her Husband and give her day for the payment as well of the 8 l. as of the 5000. Tyles promised to pay the mony and deliver the Tyles upon request all which the Plaintiff did and yet the Defendant had not performed her promise Judgment upon Nihil dicit against the Defendant Error was brought it was adjudged that the consideration was insufficient because by the Law the Administration was to be counted to the Wife and it doth not appear that the Plaintiff had any Administration committed to him or that he exhibited any Caveat into the Spiritual Cour to hinder the Wife of the Administration and as to the giving day of payment that was not good because the Defendant was not his debtor nor chargeable in Law to pay him and for these causes the Judgment was reversed Hog and Blocks Case 898. Assumpsit The Defendant was indebted to the Plaintiff 10 l. and in consideration the Plaintiff would not sue him for the said 10 l. he promised to deliver to the Plaintiff 14. Quarters of Barley upon request Issue was joyned the Clerk of the Assizes returned the Postea and therein put John Puckering before a Serjeant which was omitted which was assigned for Error but the Court held it no Error and the Judgment was affirmed Levine Vanvive and Michael Vanvies Case 899. Debt upon Obligation to perform the award of A. and B. of for and upon all Actions and other Demands whatsoever had stirred depending having been between the parties till the date of the Obligation The Arbitrators awarded the Defendant should deliver to the Plaintiff before the last day of June next six Kentish cloaths which were battered by I. S. for the thred of the said Levine Issue was upon the deliver of the cloaths and found for the Plaintiff Error brought and assigned the arbitrament was of a thing out of the Submission It was adjudged it was within the Submission and the party was tied to the performance of it The Judgment was affirmed The Lord Mordant and Bridges Case 900. Action upon the case for these words viz. The Lord Mordant did know that Proud robbed Shotbolt and at such time as Proue should be arraignes therefore be willed Bridges to compound with Shotbolt for the same Robbery and told Bridges he would see him satisfied therefore if it cost him 100 l. It was found for the Plaintiff and damages a 1000 l. and the Lord Mordant had Execution by elegiâ— of the Lands of Bridges Bridges died the Administrator broughâ— Error in the Exchequer Chamber the Lord pleaded in abatement oâ— the Writ of Error his Execution by elegit and so the Administraton could not have Error Resolved the Writ of Error did lie for the Administrator because it might be the Land might be evicted and then the Plaintiff might resort to the Goods 2. It was assigned foâ— Error that words were not actionable in themselves for it waâ— said that one may compound for a Robbery knowing of it but noâ— for the Felony and the words are not to compound for the Felony Also it was said that it doth not appear in the Declaration that thâ— Lord was a Justice of Peace at the time of these words spoken tâ— Bridges although he was at the time that Bridges spake the words oâ— him in the Declaration upon the Writ of Error it doth not appeâ—â— if the words were actionable or not for it doth not appear in the boâ—â— that the Judgment in B. R. which was given for the Lord was affirmed or Reversed ideo quaere Callard and Callards Case 801. Ejectione firmae in B. R. The Case was E. C. seised of Lands in Fee in consideration of Marriage of Eustace his Son and Heir apparent being upon the Land spake these words to Eustace viz. Stand forth Eustace I do here reserving an Estate for my own and my Wives Life give unto thee and to thine Heirs for ever these my Lands and Barton of S. And afterwards he enfeoffed R. his younger Son in Fee with Warranty and died Eustace entred and demised to the Plaintiff It was there holden that the words did amount to a Feoffment and Livery being spoken upon the Land and the use to be to the Feoffor and his wife for their Lives and after to Eustace and his Heirs upon that Judgment Error was brought in the Exchequer Chamber and there the former Judgment was reversed for that the greater part of the Justices agreed that it was not any Feoffment executed because the intent was repugnant to Law to pass an Estate Eustace reserving any particular estate to himself and his wife and an use it could not be for the purpose was not to raise but use but by an Estate executed which took not effect and they all agreed if it was an use it could not rise upon natural affection without a Deed. The Judgment was reversed Westby Skinner and Catchers Case 902 A. was in Execution severally under the Sheriffs of London at the Suits of B. and C. the old Sheriffs delivered the body of A. by Indenture in which the Execution of B. was only mentioned and the other was omitted A. in the time of the new Sheriffs escaped It was adjudged in B. R. that the old Sheriffs should be charged in an Action for the Escape They brought Error in the Exchequer Chamber and the Judgment was affirmed because it was not found that the new Sheriffs were Sheriffs at the time of the delivery of A. to them and because they did not give notice to the new Sheriffs of all the Executions which were against A. Sacksord and Phillips Case 903. Assumpsit A. was endebted to the Plaintiff 460 l. the Defendant in consideration the Plaintiff would forbear to sue A. for the said Debt promised to the Plaintiff to pay it before Michaelmas next Upon non assumpsit it was found for the Plaintiff But in the postea the Verdict was not certified that the Plaintiff sustained damage by reason of the not performance of the promise for 460 l. for which the Plaintiff had judgment That was assigned for Error and also because the Declaration did not mention the forbearance of Suit at the Defendants request the Court ordered the postea to be amended and affirmed the Judgment Wiseman and Jennings Case 904. The case upon the matter in Law was this Tenant for Life the Remainder in tail the Remainder in Fee Tenant for Life suffered a common Recovery
the Justices that a Writ of Error was not maintainable in the Exchequer Chamber by the Statute of 27. Eliz. upon a Judgment in B. R. upon Rescous because it is not within the words of the Statute although it be a Trespass Giddy and Heales Case 915. Action upon the case in B. R. by Heale for these words he being a Counsellor at Law Whereas one said to Giddy that Heal had affirmed upon his credit that the Fee-simple of certain Lands was in the Patentees of the Queen The said Giddy said No friends Heales Warranty we well know a great number of his Country trusting to his Warranty have been undone It was adjudged in B. R. for the Plaintiff and 100 l. damages and Error being brought in Exchequer Chamber and assigned the Words were not actionable The Judgment was affirmed Marronor and Cottons Case 916. Judgment was given against Marroner in the B. R. for Cotton for these words spoken against Cotton a Justice of the Peace viz. He hath received mony of a Thief that was apprehended and brought before him for stealing of Sheep to let him escape and keep him from the Goal Error brought in Exchequer Chamber and assigned the words were not actionable but the Judgment in B. R. was affirmed Bâ—shop and Gins Case 917. Debt upon an Obligation in B. R. for performance of Covenants one was that he delivertd a Ship in London usque portum de Blackney and no time limited for it and the breach was assigned in it that he did not deliver the ship such a day and Judgment there for the Plaintiff Error brought and assigned that the Issue was ill joyned because he had time to deliver it during his Life that the Court said was but the misjoyning of the Issue which was remedied by the Statute of Jeofails after Verdict 2. Error that the Venire was of Blackney where it ought to be de Portu Blackney The Court held it no Error but good and the Judgment was affirmed Falsowe and Thornies Case 918. In Debt the Venire upon the Roll was retornable die Martis post 15. Trin. and the Writ in facto was returned die Jovis post 15. Trin. that was assigned for Error but non allocatur because but misawarding of Process which is aided by the Statute of Jeofails and the Judgment was affirmed Cundey and Edgecombs Case 919. In Debt the Venire was filed Trin. 35. Eliz. to try an Issue between Richard Cundey de Bodrygan querent Peter Edgecombe de Mount Edgecomb in Com. Devon Defendant The Writ was direct Vic' Cornubiae Hill 39 Eliz. The continuance upon the Roll was Juratores inter Richardum Cundey de Bodygran in Comitatu Cornubiae mercatorum queren Petrum Edgecombt de Mount Edgecomb in Com-Devon in placito debiti ponitur in respectu nisi Justitiarii ad Assisas in Comitatu praedict capiendas assignat prius venerint c. upon the Margent was written Cornubiae It was assigned for Error that the last County is Devon in the Addition of the Defendant for the habitation of the Defendant The Justices held it no Error because Cornubiae was in the Margent and where there are two Counties before Com. praedict shall extend to that which will affirm the Judgment although the other be the Prochine antecedent Wilcoks â—nd Hewsons Case 920. Debt upon a Bill of 30. l. The Defendant pleaded he delivered the Bill upon a Condition to the Plaintiff that if he did procuer a particular of certain Land that it should not be his Deed but if he did not procure the particular it should be his Deed The Plaintiff took Issue it was his Deed and so found by Verdict Error brought and assigned that the Defendants plea was insufficient and the Plaintiff ought to have demurred upon it and the Issue which he took was vain and void because the especial matter had confessed the Deed and so the Issue is taken upon a thing confessed the Judgment was affirmed because the Defendant cannot assign Error in his own Plea and although the Issue be joyned upon a thing confessed the same is but surplussage and it was in the Election of the Court to give Judgment either upon the Plea or the Verdict Joyner and Ognells Case 921. Debt upon a Bill of 100 l. by Humphrey Joyner Executor of George Skiner against the Defendant the Defendant pleaded per minas and after Issue joyned befor Nisi prius he confessed the Action in Court The confession was entred non potest dedicere quia ipse debuit praedict ' Georgio Skinner in vita sua praedict ' 100. l. modo forma poout and upon that the Judgment was Quod praedict Humfred Joyner recuperet versus praedict ' Georgium Ognel debittum suum praedict ' necnon quatuor libras pro damnis suis quae sustinuit tam occasione detentionis debiti praedict ' quam pro missis c. eidem Humfredo Skinner per curiam adjudicat upon this Judgment Error was brought and assigned that the confession of the Action is not according to the Declaration for the Declaration is in the debuit to the Testator and Detinet of the Executor as it ought to be but the Confession is in the Debuit only 2. Error the Judgment is Quod Humfrey Joyner recuperet debitum eidem Humfredo Skinner adjudicant whereas it ought to be eidem Humfredo Joyner adjudicat As to the first Error the Court said that after the Defendant hath relinquished the Bar the Declaration remains without defence for which cause the Court may well judge for the Plaintiff and for the second Error it was amended by the Court. Gomersall and Watkinsons Case 922. Eliz. Watkinson the Defendant brought Debt in B. R. against the Plaintiff Executor of William Gomersall and shewed that the Testator retained her in his Service 28 Eliz. taking 40 s. for one year for her Wages and so from year to year and that she had served the Testator five years who died her wages not paid The Defendant the Executor pleaded Nihil debet which was found against him and Judgment for the said Eliz. the Plaintiff Error was brought and assigned the Action did not lie against the Executor It was said by the Justices it appeareth prima facie upon the Declaration that the said Eliz. was compellable to serve by the Statute of 5 Eliz. and then when he voluntarily retains her in service being compellable to serve the Master cannot wage his Law in Debt for the wages and therefore the Action is maintainable against his Executors Stanton and Suliards Case 923. Note It was Resolved in this Case Whereas the Sheriff brought an Action upon the case against the Defendant in the Kings Bench upon Assumpsit to pay the Sheriffs Fee upon arresting the party in Execution which was 12 d. for every pound where the Execution did exceed a 100 l. and there Judgment was given for the Plaintiff that upon Error thereupon brought in the Exchequer the Judgment was reversed because an Action
come in Question 2. because the adjunction de in W. the Town is not but to make a certainty of the Mannor for there may be two and Mannors in W. one within it and another wwithout it Harison and Haxeys Case 1095. The defendant was Bail for B. in an Action brought by I. S. against him who recovered and had Judgement B. brought Error pendant the suit I. S. dyed the Debt not paid his Administrator brought a Scire sac against the Bail who pleaded the release after the Error brought both to him and the principal B. of all Executions and Deeds It was adjudged a good barre because the duty and debt remained notwithstanding the Error brought May and the Sheriffs of Londons Case 1096. Action upon the Case against the defendant for suffering one whom they had arrested upon a Bill of Middlesex to escape The defendant said that the Prisoner was rescued from them and adjudged no Plea and so it was said it was adjudged Pasc 43. Eliz. in Walâ—o Lamberts Case which vide Cro. 3. part 867. White and Halls Case 1097. The Guardian recovered in Debt upon an Obligation made to an infant the Defendant payd the principal and costs and prayed the Guardian might acknowledg satisfacia Curia they can acknowledg satisfaction for so much as he returned and for so much they ordered him to acknowledge satisfaction and that no execution should issue for the rest 1098. A man devised Lands in London to his Son and heirs after the death of his Wife and if his Daughters overlived his Wife Son and his heirs they should have it for his life and after their deaths I. S. should have it paying 6. l. yearly to the Company of Merchant Taylors London to be bestowed in Charitable uses Resolved that the Wife hadan estate but for life by Implication 2 That the Son had Tail by Implication and not Fee-simple for as long as the Daughters lived the Son could not die without heirs collaterall 3. That the estate to I. S. after the death of the Daughters Was a Fee simple by reason of the annual payment of the money And in this case it was said that a Devise to A. and his successors was a Devise in Fee-simple Austin and Monks Case 1099. Scire fac Against the Bail upon the Statute 3. Jac. c. 8. the Defendant pleaded that after the Writ of Error allowed and before any default the principal rendred his Body in Execution adjudged a good barre for notwithstanding the Writ of Error may render his body and so excuse his Bail The Sheriffs of London and Michells Case 1100 Debt for 12. l. for their Fees upon the Statute of 28 Eliz. cap. 4. for doing Execution The Statute is they shall not receive ultra such a sum The Court said that implies that they may take so much as is not prohibited and although the Statue doth not give an Action for it yet because it is a duty an Action is given them by Law Linghill and Broughton Case 1101. Action upon the Case against an Administrator that the intestate was endebted to the Plantiff 100l and the Defendant his Administrator affirmed that if the Plantiff would forbear him per rationabile Temous he would pay him and alledged he forbore him 8. years Verdict for the Plantiff It was said in stay of Judgement the Declaration was not good because not shewed how the Testator was Indebted Resolved that he need not do because the promise of the Administrator is a sufficient acknowledgment of the debt 2. That the forbearance per rationabil Tempus uncertaine and adjudged the forbearance per paululum temporis was not good The Court said they might Judge of the reasonablenesse of the time not of the meaning of paululum temporis and 8. years is a reasonable time of forbearance it was adjudged for the Plantiff Babington and Lamberts Case 1102. Assumpsit In consideration the defendant had received 24l of divers persons for the Plantiffs use he promised to pay it such a day it was said the Declaration was not good because not expressed of what persons he received the money but it was adjudged good because a consideration executed and so not traversable Calimore and Jensons Case 1103. Assumpsit In consideration that the Defendant upon an Insimul Computaverunt the Defendant was found endebted to the Plaintiff judged a good Consideration Philpot and Ballards Case 1104. Resolved in this Case that if a Judgement be given against the Plaintiff and others in an inferior Court as a Hundred Court one of them onely if he be sole Tennant and hath the Damage may have a false judgment and restitution and it was holden that althoughthe Judgement was given upon a customary claim and not upon any matter at Common Law yet false Judgement did lye Eman and Mouldsworths Case 1105. A Prohibition was granted in C. B. because the Plantiff sued for defamation in the spiritual Court because the defendant had reported that he was incontinent It was said although the Plantiff alledged a general pardon yet this being a private Case the pardon did not discharge it Pease and Meades Case 1106. Condition of a Bond was that the Obligator should pay such a summe to such a person at such a place and day as the Obliger should name by his Last Will in Wiâ—ting he names none but makes the Plaintiff his Executor and dyed It was adjudged the Excecutor was not an assignee and so the Obligation by the Omission of the Obliger is discharged Yardly and Elices Case 1107. Woords spoken of an Atturney to his Clyent viz. Your Atturney is a bribing Knave and hath taken 20l. of you for a bribe to cozen me Adjudged the Action did lye for the words Fryer and Gildrings Case 1108. Two men were bound to a third person joyntly and severally the Obligee made the Wife of the Obligor his Excecutrix who Administred then the Husband of the Obligor made her his Executrix and dyed having assets to pay the debts then she dyed and the Plaintiff took Letters of Administration of the goods of the Obligee not Administred and brought debt against the Defendant being the surviving of the Obligor It was adjudged that the Action would not lie for the making of the Wife of one of the Obligors Executrix was a suspension of the Action and a personall Action once suspended by the Act of the party as it is here it shall be extinct for ever Quaere Norton and Syms Case 1109. Debt upon Obligation for performance of Covenants the Defendant being under-Sheriff to the Plaintiff Covenanted That he would not execute any Writ of Execution above 20l. nor any venire fac in severall Causes and also to acquit and save harmeless the Plantiff of all escapes of Prisoners taken in Execution and of all fines and amercements Resolved in this Case when there are in an Indentures Covenants in the Negative for not doing and in the Affimative for doing he is to plead specialy to the
be of the Castle The Court held it to be a Mis-tryal although it was tryed for the Defendant who moved the Exception Cooper and Andrews Case 1120. Prohibition upon a Modus Decimandi in a Park the Viccar had 2s yearly and the Shoulder of every third Dear killed in the Parke the Parke being Dis-parked the Viccar sued for Tythes in kind The Court was divided in opinion Nichols and Hobart Justices that notwithstanding the Dis-parking the Modus did remaine Winch and Warburton Justices that by the Dis-parking the prescription as to the Modus Decimandi was determined that Tythes should be paid in kind Quere Cuddington and Wilkins Case 1121. Action upon the Case for calling the Plantiff Theif the Defendant justifies that he had stollen the Sheep of I. S. the Plaintiff said that before the words were spoken he was pardoned by the general pardon and pleaded the Pardon adjudged the Action did lie by reason of the Pardon Pope and Skinners Case 1122. The Case was more fully reported in Hobarts Reports 73. and was this In a Replevin the Defendant avowed as a Commoner taking the Cattle dammage feasants The Plaintiff said that A. was seised of an House and Land wherein he had Common and devised the same to him the 30th of March 11. Jac. to hold from the Feast of Annunciation next for a year The Avowant traversed the Lease modo forma Issue was taken and found thereupon That A. made a Lease to the Plaintiff 25 of May. for a year thence next ensuing It was holden that although this be not the same Lease that the Plaintiff pleaded Yet the Court gave Judgment for the Plantiff for the substance of the Issue is whether the Plaintiff have such a Lease from A. or not as by force thereof he might have Common which appeared he had and the modo forma in the rest is not material but yet it was said he must not depart altogether from the forme of this Issue for if it had been found that he had right of Common by a Lease from another it would not have served his turn for that had been clear out of the Issue both for matter and form 1123. Debt upon an Obligation The Obligation was in Octogefimis Libris Yet the Court held the Obligation to be good Sparke and Parnells Case 1124. A. seised of Gavelkind Land had issue 3. Sons and devised to each of his Sons a several part and if any of them dyed without Issue the other should be his heir It was adjudged Tail in each of them and the Fee simple by the word Heir in the other Slawny and Elbridges Case 1125. It was Resolved in this Case That the Ordinary cannot take an Obligation of the Administrator after the Debts and Legacies paid but the residue of the goods shall remain at the appointment of the Ordinary Weaver and Wards Case 1126. Batterie the Defendant justified that he being a Training at a Common Master as a Soldier discharged his Gun per insortunium hurt the Plaintiff and traversed that he was guilty aliter vel alio modo adjudged the Justification was not good because he ought to have further said that he could not otherwise avoid the fact and when he justifieth the whole fact there needs no traverse Pye and Cookes Case 1127. Two persons exhibited two several informations against an Ecclesiastical person for taking a Lease for years contrary to the Statute of 21. H. 8. It was the opinion of the Court they being exhibited at one time and for one thing the Defendant was not Answer to any of them Pits and James Case 1128. The Case was The Hospital of Donnington in the County of Berks was founded by the name of Minister Dei pauperis domus de Donnington and they made a Lease of parcell of the Lands of the Hospital in English Minister of the Almeshouse of God of Donnington besides Newbury in the County of Berks. It was holden the seeming variance did not hurt nor avoid the Lease for if they do agree in Common understanding it shall be good vide the same Case Hil. 43. Eliz. in Banco Regis Sherborn and Lewis Case Robins and Barnes Case 1129. In a Quod permittat for erecting of an Newsance 20. foot in length and 8 in bredth It was Resolved by the Court that if one be owner of 2 Houses and one doth a Newsance to the other and the owner sells the house which makes the Newsance that the vender shall never abate the Newsance 1130. Words spoken of I. S. he was in prison for stealing of Horses adjudged an Action lyeth for the words otherwise it is if but for suspition 1131. In an Assise the Writ was Recognitionem illum where it should have been illum It was amended Lampleigh and Braithwaits Case 1132. Assumpsit B. having killed a man required the Plaintiff to do his endeavor to get his pardon for which he went to the King to Royston and obtained the pardon In consideration the Plaintiff had done his endeavour the Defendant promised him 200l It was said it was no good consideration because the consideration was executed before the promise But Resolved the Action did well lie because there is a Request before the endeavor had and then the Assumpsit subsequent after the Consideration executed is sufficient Tasker and Salters Case 1133. Batterie The Defendant Justified that he was a Copyholder and that the Lord of the Mannor for him and his Copyholders had a way over the Land of the Plaintiff who was also a Copyholder of the Mannor and that he going in the way was resisted by the Plaintiff for which Molliter he laid his hand on him upon which they were at Issue It was agreed by the Court that the Lord of the Mannor could not have a way over his own Land 2. Agreed although the verdict passed upon a void Issue the same was not remedied by the Statute of 32. H. 8. Wherefore a Repleader was awarded VVintham and Kemps Case 1134. Quare Impedit the Plaintiff counted that he was seized of a Mannor with an Advouson appendant viz. to present every first Turn It was said the viz. was void and made the Count insufficient because crossed the premises but the Court Resolved that the Count was good Coxes Case 1135. Words spoken of an Atturney viz. Thou art a Common maintainer of Suites and a Champerter I will have thee thrown over the Barre the next Terme Adjudged the words were Actionable Small and Dales Case 1136. A. seised of Lands in Copitie had Issue B. his Son and Heir and E. a Daughter by one woman and two Daughters by a second Wife and W. a Son by a third Wife and devised all his Lands to his Wife durante viduitate and dyed the Wife entred and dyed B. before any entred dyed It was Adjudged the Will was void for a third part and that the entry of the Wife in the whole made her seised but of two parts in Common
with the Son of the third part and that the entry of the Wife vested such a possession in Common with the Son to make a possessio fratris in the Sister of the whole blood to inherit against the younger Son Henningham and Burrowes Case 1137. Trespass in K. The Defendant justified by a title as parcell of the Mannor of Stamford Hall in W. and one venire was of awarded from K. and W. both and holden good Anderson and Robinsons Case 1138. The Habeas corpora was returned album breve without any Endorsment Curia advisare vult if it shall be amended Hill 12 Jac. Wilby and Gumys Case was vouched where it was ruled it should not be amended but a venire de novo awarded Marshall and Stewards Case 1139. Action for words viz. The Devil appeareth to thee every night in the likeness of a black man riding upon a black horse and thou conferrest with him and whatsoever thou doest ask he doth give it thee and that is the reason thou hast so much money and this I will justifie Adjudged the Action maintainable for these words thou conferrest with him for that is Felony by the Statute of 1. Jac. The Weavers of Newburies Case 1140. They were incorporated 1. Jac. with power to make By-laws They made an Ordinance that none should exercise the Trade of a Weaver within the Town unlesse he had bin an Apprentice within the Town seven years before upon pain of 5 l. They brought Debt for a penalty of 5.l Resolved the Action did not lie for being incorporated within time of memory and after the Statute 5. Eliz. they had not power to make By lawes also because the By-law was unreasonable Skaifes and Nelsons Case 1141. Action against Husband and Wife for slanderous words spoken by the Wife and verdict being for the Plaintiff Judgement was against the Husband and Wife and that the Wife should be amerced upon which Error was brought for that both should be amerced but because the Paper book of the Atturney was plain without resure that they should be both amerced It was said to be the Omission of the Clarke and the Record was amended Digby and Fitzherberts Case 1142. Quare impedit The Plaintiff Counted that A. was seised in fee of the Advowson and presented B. and afterward granted to him the next avoidance and that B. dyed and the Defendant did disturb him to present The Defendant said that Sir Tho. Fitz. was seised in Fee of the Advouson and granted it to Rich. Fitz. who gave it to A. for the life of one I. S. by force of which A. presented B. and then granted the next Avoidance to the Plaintiff and I. Fitz. having the rmainder in Fee limited to him after the death of A. granted the same to the Defendant after which B. dyed and the Defendant presented A. absque hoc quod A. tempore concessionis of the next Avoidance of the Plaintiff was seisitus of the Church in Fee the Plaintiff maintained his Title and Traversed absque hoc that A was seised for the life of I. S. upon which it was demurred The Court was divided in opinion Warberton and Winch said the last Traverse was Idle because the Plea had confessed and avoided it Nicholas and Hobart contrary The better opinion seemed to be that to confesse and avoid and also to Traverse is the most sure way of pleading vide Newman and Mores Case Trin 13. Jac. in C. B. Pas 37 Eliz. Cootesale and Woodroses Case in a quare impedit accordingly and Sherley and Bowyers Case If the thing which is Traversed is a point material the Traverse is well added to the Plea otherwise if it be of a thing idle and trivial Brown and Goldsmiths Case 1143. The Dean and Chapter made a Lease of the Mannor of D. to I.S. excepting the Courts and perquisits of Court It was Resolved that the Exception was void as to that Court but as to the perquisits of Court the Exception was good and it was Resolved That for the perquisites of Court no distresse was to be had but Debt did lie for them but in this Case it was Resolved that the King might Lease a Mannor excepting the Courts and such Exception was good Day and Savages Case 1144. Trespass for taking a bag of Pepper The Defendant Justified as servant to the Mayor and Commonalty of London for Wharfage The Plaintiff said that the Custome did not extend to him being a Freeman who ought not to pay Wharfage The Defendant said the Custome did extend to him as well as strangers upon which Issue was joyned Resolved that the Custome should not be tryed by the Certificate of the Recorder as the usuall course is but should be tryed by the Country because the Mayor Comonalty were parties and that the venire fac should not Issue to the Sheriff of London or Middlesex because the Tryals there are by Freemen but should be to the County adjoyning viz. Surrey and Wendates Case 40. Eliz. was vouched to be adjudged accordingly Stoner and Gibbons Case 1145. Debt against an Administrator after demurment Admistration was repealed and granted to another Resolved that he should not plead that Plea after a demurrer but after Issue joyned such a Plea was good Seal and Oxonbridges Case 1146. Wast The Plaintiff made Tittle that I. S. infeoffed another to the use of the Plaintiffs and his Heirs but did not say that he enfeoffed the other and his Heirs and yet it was holden to be good Bird and Haines Case 1147. Debt upon an Obligation acceptance of a Bill sealed after he Obligation was pleaded in Bar for the same Debt and adjudged no Plea The Chancellor and Scholars of Oxford and the Bishop of Norwich and others Case 1148. Quare impedit The Plaintiff Counted upon the Statute of 3 Jac. that I. S. being owner of an Advouson 2. Jac. was a Recusant convict and that after the Church became void and so they by the Statute ought to present One of the Defendants pleaded That the Advouson was Appendant to a Mannor and that two parts of the Mannor were seised into the Kings hands by proces out of the Exchequer and that the King by his Letters Pattents granted the two parts to the Defendant with the appurtenances and granted also all heriditaments but Advousons were not mentioned in the Letters Pattents and so said the presentation did belong to the Defendant It was Resolved that the Advouson did not passe by the word appurtenances without mention of Advouson or words Adeo plena integrè in tam amplo modo forma as the Recusant had the Mannor Wood and Sherlyes Case 1149. The Husband Tennant in Tail the remainder to his Wife for life he made a Feoffment to the use of himself and his Wife for the Joynture of the VVife and after dyed without issue Adjudged the Joynture pleaded was no Bar in Dower brought by the Wife because the Wife was remitted and in of her former
this case that if S. had died and no other was instituted by the Patron but the Church remained void that the King might Present otherwise it had been if the Patron had presented a new Parson to the Church before the King presented Pym and Gorwins Case 1165. It was Resolved by the Justices in this case that one cannt prescribe for a Seat in the body of the Church for that the Seats there are disposable by the Parson and Churchwardens but for a Seat in an Isle of the Church a man may prescribe because it may be presumed that he or his Ancestors who had house and lands within the Parish had edified and built the said Isle and so it was said it was adjudged in the Lady Grays case Norris and the Hundred of Gawtrys Case 1166. Debt against the Hundred upon a Robbery 9. Octob. 13 Jac. the Teste of the original was 9 Octob. 14 Jac. It was said the Action was not brought within the year for there is but one ninth of October within the year It was the opinion of the Justices that in this case a Fraction of a day should be by devision of time in a day viz. the Robbery committed 9 Oct. 13. post meridiem is within the year of the bringing of the Writ 9 Octob. 14 Jac. in the morning Vide Ludford and Grettons Case Plowd Com. 491. Dawks and Hills Case 1167. Upon an Information upon the Statute of 5 E. 6. an Ingrosser of Chattel justified for a certain number of Chattel and sold upon two several Licenses without distinction how much upon the one and how much upon the other and upon a Demurrer it was adjudged for the Plaintiff Middleton and Lawtes Case 1168. Two Patrons pretended title to present the one presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after there he obtained Institution and Induction by the Arch-Bishop Afterwards the inferior Bishop instituted and inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction for that would determine the Incumbency which is tryable at the Common Law Stewkley and Butlers Case 1169. In Trespass the case was A. seised of the Mannor of D. made a Lease of the Scite and Demeans to the Defendant for three Lives except all Tymber-trees and covenanted that his Lessee should take all Woods Afterwards the Lessor bargained and sold to the Lessee all those the Trees Woods and Under-woods growing within the Mannor viz. within the Grounds called A. B. and C. Habendum una cum omnibus aliis arboribus within the Mannor which may conveniently be spared and the Bargainor covenanted that it should be lawful for the Barganee at all times within five years to enter and cut the Trees and Woods and convert them to their own uses In this case it was Resolved 1. That the Viz. was void for a Viz. may explaine or distribute a thing precedent but not restrain it 2. Resolved that the una cum aliis arboribus in the Habendum should make a new Grant of the other Trees 3. Resolved that the words which followed the una cum cest ' una cum omnibus arboribus within the Mannor which could be spared was void for the uncertainty and there is no means agreed betwixt the parties here to reduce the same to a certainty 4. Resolved that the Covenant of the Bargainor that it should be lawfull for the Bargainee to take the Trees and Woods within five years was not a Condition but a meer Covenant and the difference was taken where one sells all his Trees to be taken within 5 years after there the Vendee shall not take them after 5 years ended but if the time of taking of them be by way of Covenant there it shall not restraine the party to take them at all times as well after the five years as within the five years but the parties are to have their remedy by an Action of Covenant upon the disturbance Yet it was said by Hatton that if one grants his Corn growing and the Grantee doth not take it in convenient time so as the Grantor receive detriment thereby the Grantor shall have Action upon the case against him Hansons Case 1170. He was cast over the Bar because he gave direction in writing to an Under-Sheriff what persons he would have him return upon a Pannel for tryal of an Issue and named others who he would not have to be retorned Kingswell and Crawleys Case 1171. Replevin The Defendant avowed for Rent for that I. S. held of him by Fealty and Rent whose Estate the Plaintiff had The Plaintiff said I. S. enfeoffed I. N. who made a Lease to the Plaintiff for Life absque hoc that he had the estate of I. S. Resolved that the Traverse was void for after the Statute of 21 H. 8. the party is to avow upon the Land and then it is not material what Estate the Tenant had so he occupied the Land but before the said Statute it had bin a good Plea so as the Statute hath changed the Law for the Traverse in pleading although there is not any word of it in the Statute Andrews and the Bishop of Yorks Case 1172. It was Resolved that is a good Plea in an Assize of Darrien Presentment that the Plaintiff hath a Quare Impedit depending the same avoidance 1173. Words viz. He hath stollen my coâ—n out of my Barns Adjudged per curiam the words were actionable Hall and Wingfields Case 1173. The Defendant acknowledged a Recognizance before the Lord Hobart at Serjeants-Inn in Fleet-street London which Recognizance was enrolled in the Court of common Pleas The Plaintiff brought debt upon this Recognizance in the Common Pleas and layed his Action in London Whether it ought to be brought in Middlesex where the Record of the Judgment was or in London was the Question The Justices were divided in several opinions Winâ—h it ought to be in Middlesex where it is enrolled because the Debt is consummate Warberton it may be in any County where the party pleaseth Hutton it lieth where the Record is Hobert if no mention had bin made upon the Inrollment of the Recognizance before the Chief Justice at Serjeants Inn it ought to have bin brought in Middlesex but now it was in the Election of the Plaintiff to bring it either in London or Middlesex vide this case more at large Hob. Reports 195. where the case seems to be Resolved Lea and Pains Case 1175 Debt upon Obligation to stand to an Award The Plaintiffs in January submitted themselves to stand to the award of I. S. for all Quarrels Debates Questions stirred moved or depending I. S. in April made an Accord that the Defendant should pay to the Plaintiff should pay Twenty Nobles in
817 Wells and Fentons case 822 Web and Hargraves case 835 Williams and Greens case 836 Worleys case 842 Walter and Pigotts case 845 Whetstone and Mintons case 852 Webster and Allens case 873 Ward and Lakings case 876 Wilmot and Knowles case 884 Ward and Sudmans case 894 Westby Skinner and Catchers case 902 Wiseman and Jennings case 904 Wilcoks and Hewsons case 920 Wilcocks and Greens case 934 Wood and Bucklâ—ys case 936 Waâ—ley and Mosleys case 947 VVortesleys case 956 Worleys case 959 Williams Vaughans case 1014 Whitlock and Hartwells case 1015 Waltham Mulgars case 1017 Sir Will. Walter and Hangers case 1055 VVheeler and Heydons case 1056 VVrights case 1064 VVorral and Harpers case 1065 Eliz VViimots case 1093 VVhite and Halls case 1097 VVeaver and VVards case 1126 VVindham Kemps case 1134 The VVeavers of Newberries case 1140 VVood and Shirleys case 1149 VVhitlock and Hardings case 1152 VValter and the Dean and Chapter of Norwiches case 1157 VVilkings and Perrotts case 1161 VVatbrooke and Griffiths case 1163 VVinscomb and Pulisons case 1164 VVolley and Davenants case 1182 VVray and Clenches case 1203 Y. YArdley and Prestwoods case 435 Yelverton and Yelvertons case 442 Yelding and Fays case 458 Yotes and Goths case 882 Yelland and Fiches case 1026 Yardley and Ellices case 1107 Z. ZOuch and Bampfields case 382 ☞ THere is newly extant an ABRIDGEMENT of the Three Volumes of the REPORTS of Sir George Croke Kt. of all such Select Cases as were adjudged in the Courts of Kings Bench and Common Bench during the Raigns of Q. Elizabeth King James and King Charles Collected by the Author of this Abridgement AN ABRIDGEMENT OF THE REPORTS OF Sir FRANCIS MOORE Knight Serjeant at Law Mich. 1. Hen. 7. Capell and Churches Case A Writ of Right Patent in the Court of the Castle of Rising of the King was directed Balivis suis de Rising whereas the proceedings were senatoribus Curiae held good because the Paylifs are to make the Sommons and the suitors Justice Capell and Aprices Case 2. Replevin The Defendant avowed That A. and B. held the Mannor of H. and divers Lands of the Bishop of London parcel of the Bishops Castle of S. by Homage Fealty Escuage and by the Rent for Castleguard pro reddit auxil Vic. The Defendant pleaded That the Castle was utterly decayed and as to the auxil Vic. demurred in Law The Plantiff was Nonsuit but the Rents are still paid to the Bishop though the Castle be decayed Cleydon and Spensers Case 3. Resolved That if an Executor with his own proper monies pay a debt due by the Testator he may retain so much of the value of the goods of the Testator in his hands Case of the Sheriffs of London 4. The Custome of London is That if a Villein remaineth in the City by the space of a year and a day without any Claime made of him he may all time during his life live in the City Free 5. Resolved by the Justices That that which is written after the words In cujus rei Testimonium is parcel of the deed aswell as that which is written before it 6. Resolved It is no principal Challenge That a Juror is endebted either to the Plaintiff or Defendant 7. Resolved In a Replevin That one of the Jurors was Steward of the Mannor to the avowant is a principal Challenge 8. Two are bound each to other to stand to the award of Arbitrators They award that the one shall make a Lease for years to the other rendering Rent to the Lessor the Lease is made the Rent is not paid adjudged the Bond is not forfeit because Distresse or Debt are proper remedies for the Rent contr if it be awarded the Lessee should pay the Rent 9. Debt for not performance of an Arbitrament Adjudged It is no plea generally That he hath performed it but he must show how he hath performed it 10. Resolved It is a good Challenge to one of the 4. Knights who come to impannel the Grand Assise that one of them is maried to the Plantiffs daughter and the other 3. shall try it 11. If a submission be de jure titulo possessione of certain Lands The Arbitrators cannot award that one of the parties shall procure the Lord of the Mannor to grant a Copy holdor that a stranger shall release because out of the submission Frances Case 12. Resolved That the King by his Letters Patents cannot grant the Lands of a Lunatique to another to take the profits to his own use because the King himself is not entitled to them for his own use but for the use of the Lunatique his Issues Wife c. Otherwise it is of an Ideot for then the King hath the profits to his own use making allowance to the Idiot for his keeping Levet and Lewknors Case 13. An Executor recovered in Debt and then dies Intestate and the Ordinary commits Administration de bonis non c. Resolved the Administrator shall not have a scire fac upon the Judgement but a new Action of Debt as Administrator to the first Intestate Sir Godfrey Foliambs Case 14. Quare Imp. The Case was A. seased of the Mannor of D. to which Mannor an Advouson was Appendent granted the next Avoydance to B. and D. eorum cuilibet conjunctim divifim haered executor assignis suis The Church voyd B. presents D. to the Church adjudged That the presentment of him was good though he was one of the Granters 15. The Husband is entitled to Land in the Right of his Wife Resolved The Husband alone without joyning the Wife in the Writ shall have an Action upon the Statute of 8. H. 6. because the words of the Statute are Expulit disscisivit 16. A man was indicted for a Robbery done in the Foot way leading from London to Islington Resolved That he should have his Clergy because the Indictment is not of a Robbery in alta via regia nor in the High way but in a Foot way Vaughan and Lord Burghs Case 17. In a Writ of Prohibition there wanted the word Ostensurus Resolved though after Issue joyned that the Writ was amendable by the Statute Baker and Brooks Case 18. A Parson granted an Annuity of 5 l. issuing out of his Rectory pro Consilio impenso to I. S. Habend recipiend to the said I. S. and his Assignes The said I. S. granted it over to I. D. Resolved That the grant of the Annuity was good and the Assigne may have Debt for it 19. Wast was brought against Lessee for years He pleaded in Barre an Accord which was executed Adjudged to be a good plea. 20. Resolved by the Justices That the Master cannot Sollicite Counsel nor give Mony to Counsel in an Action brought against his Servant for his Servant but yet he may give what is due to his Servant for his Wages to Counsel for their Fees and it is not maintenance 21. Resolved That the Lord in Ancient Demesne shall
day and at the time of the delivery there was not any Day written in the Deed but a space for it and that after the Delivery the Plaintiff put in a Day and so Non est factum It was conceived the Plea had been better to have set forth the special matter per quod scriptum praedict perdidit effectum and Judgement if Action 85. Lands were given to Husband and VVife in tayle The Husband by Fine and Deed inrolled aliened the Land and dyed Resolved That the VVife might enter by the Statute of 32 H. 8. although the words are Of Tenements being the Inheritance or Freehold of the Wife And it was holden That by the Entry of the VVife the Inheritance of the Heir should thereby be recontinued 86. A man made a Feoffment to divers persons that they should infeoffe the Son of the Feoffor and his Wife in tail the remaynder to the right Heirs of the Feoffor who made the estate accordingly and the Son dyed It was Resolved the same was a Joynture within the Statute of 27 H. 3. cap. 10. for although she did not clayme it by the Ancestor himself but by his Feoffâ—rs yet because the Feoffes derive their Estate from the Ancestors of the Husband it is within the Statute But if he had bargained and sold the same upon trust to make the Joynture it had not been within the Statute 87. Resolved That an Action upon the Case doth not lye for calling one Adulterer because that is not punishable at the Common Law but in the Spiritual Court 88. Two Joynt tenants make partition by word and for equality of the partition one assignes to the other a Rent It is void if he hath not a Deed of it 89. In a Praecipe quod reddat at the Nisi Prius the Tenant made default and Petit Cap. returned at which day he in the Reversion prayed to be Received and was so received by the Rule of the Court notwithstanding he did not require it at the Nisi Prius 2. By the Equity of the Statute of West 2. he in the remainder shall be received upon the default of the Tenant for life although the words of the Statutes be ad quos spectat reversio 90. Resolved by the Justices That the Coroner super visum Corporis cannot enquire of an Accessary after the Murder 91. Two were joyntly and severally bound in an Obligation in Debt brought the Defendent said the Plantiff recovered against the other the same Debt and had Execution and adjudged a good plea notwithstanding it was not shewed by what proces he had Execution because the Execution is on Record and shall be tryed by the Record but if he paid the monies in pais to the Plantiff and not in Court It is not an Execution of the Judgement 92. A Recordare was to remove a Plaint in Curia nostra and the plaint was in Curia Mariae Resolved that for this variance the Record was not removed for it could not be the plaint whereof c. 93. It was said If the Defendant will plead to the Writ matter apparent within the Writ he must begin his plea with Petit Judicium of the Writ but if he plead matter de hors as Joyntenancy or Nontenure c. he shall make the conclusion in such manner only and not the beginning 94. Ejectione firme Of a Lease made by the Prebendary Ecclesiae Beatae Mariae whereof the foundation was Ecclesiae Beatae Mariae de Thornton and Thornton being omitted the Leaser to make it agree entertayned the words de Thornton It was the opinion of the Justices That non est factum is no proper plea because it was once his deed but he is to shew the special matter and demand Judgment of Action vide before 95. A Rent was granted to I. S. for life the remainder to I. D. in Fee I. S. dyed the Rent was behind he in the Remainder destraind and avowd for the Rent and good for the grant was good to him in the remainder which took effect with the particular estate and so adjudged 96. One made his Will in this manner I have made a Lease for 21. years to I. S. paying but 10 s. Rent adjudged a good Lease at Will and the word I have shall be taken in the present tence 97. Replevin The Defendant avowed for a Rent charge granted to him but did not alledge any seisin of it within the years according to the Statute of 32 H. 8. Cap. 2. and yet holden good for the Statute is to be intended where seisin ought to have been alledged before at the Common Law 98. Dower The Case was The Husband made his Will thereby devised all his Lands to his Wife the now demandment during her Widdowhood and dyed the Wife entred by force of the Will and after took Husband It was the opinion of the Justices that this estate devised being as great an Estate for her life and her acceptance of it she not being Compellable to Marry was in the nature of a Joynter to her and a good barre of her Dower 99. Note by the Justices If a man seised of a Rent charge be bounden in a Statute and Execution be sued upon it the Rent shall be extended in Execution and yet the Statute de Mercatoribus speaks only of the Goods and Lands of the debtour and doth not speak of Tenements or other things 100. I. S. Tenant in tail by Indenture upon Consideration of Marriage Covenants to stand seised to his own use for life and after his death to the use of his Son and heir apparant Resolved there is no change of the use but only during the life of the Tenant in tail 101. A man seised of Land in the right of his Wife makes a Lease for life the remainder in Fee and afterwards he and his Wife recovers the same Land in a Writ of Entry against the Tenant for life Dyer held the Wife should be remitted and no act shall be adjudged in the Wife for the bringing the Writ shall be adjudged the sole act of the Husband and not of the Wife Quaere if she shall not be estopped by the Record 102. Note by the Justices That a Writ of Curia Claudenda lyeth of a Close which lyeth in a Field aswell as where there are 2. Messuages Courts oâ— Gardens adjoyning But after Imparlance in this Writ the Defendant shall not have the view 103. In a Quid juris Clamat after Issue joyned upon Ne dona pass at the Nisi Prius the Jury gave a privy verdict the Court being risen for the Defendant and had License to eat and drink and at another day when the Court was sitting they returned and gave an open Verdict for the Plantiff Resolved That Judgement should be entred for the Plantiff for the last Verdict which is given openly in Court is the Verdict in fact and not the first and the eating and drinking of the Jurours before the second Verdict given doth not
make it void 104. Note by the Justices where in a Praecipe quod reddat brought against Tenant for life he makes default and he in the Reversion is received he shall hear the Count made by the Tenant and shall answer presently and cannot have an Imparlance 105. Resolved by the Justices That Tenants in Comon cannot joyn in Waste against their Lessee but it is otherwise of Copartners or Joynt Tenants 106. In Debt the Defendant pleaded to Issue and afterwards brought a Writ of Priviledge out of the Exchequer because he was a person Priviledged there The Court dissallowed of the Writ because by his pleading he had affirmed the Jurisdiction of the Court. Hawle and Kirkbyes Case 107. Covenant upon an Indenture dated 20 April 4. E. 6. The Defendant pleaded in Bar a Release made 3 Eliz. of all Actions Suits Debts Executions and Demands which ever before he had or may have ab origine Mundi to the day of the date of the Release adjudged no bar because it was before the Covenant broken 108. A man leaseth Lands for years and afterwards by Deed Indented bargains and sells the same Lands to the Lessee and his Heirs without any word of guift or grant in the deed That nothing passeth if the deed be not Enrolled for without Enrollment the Freehold doth not passe and it is not any Confirmation The Lord Sands and Brays Case 109. A scire facias by the Lord Sands against the Defendant to have Execution of Lands whereof the remainder was entailed to his Ancestors by Fine The Defendant said The Plaintiff was within age and prayed The parol might demur till his full age The opinion of the Court was That the parol should not demur and by award of the Court the Defendant was put to Answer 110. A man bargains and sells his Land by deed Enrolled The bargainee by the same deed Covenants That if the bargainor or his Heirs pay to the bargainee or his Heirs 20 l. such a day that then the bargainee and his Heirs and all other seised should be presently seised to the use of the bargainor and his Heirs before the day the bargainor tenders the mony to the bargainee and he refuseth it Resolved that by the Tender the Covenant is not performed for the Covenant alters the use upon the payment and nothing rests in the bargainor till payment 111. It was Resolved by the Justices That if a man by deed Leaseth certain parcel of Lands and names them severally and afterwards the Lessor raseth the deed and puts one parcel out of the deed that the whole deed is void for the deed is entire in it self and cannot stand for part and be void for part But yet notwithstanding the Lease being of Lands the Lessee may plead it as a Lease parol Trinit 4. Eliz. 112. Tenant in tail the remainder in Fee Tenant in tail aliens and dyes without Issue he in the Remainder recovers in a Formedon brought being within age Adjudged he shall not be in Ward because a Right of remainder discended only to him and not a Remainder in possession 113. A man made a Lease for life and afterwards was bounden in a Recognizance and afterwards he granted the Reversion to another and the Tenant for life attorned and dyed the grantee entred and the Recognizee sued Execution against the grantee If the Execution was well sued upon the grantee Quaere the Justices were divided in opinion 114. Debt upon Obligation The Defendant pleaded that the plantiff by deed Indented betwixt them Covenanted and granted that if the Defendant paid him certain monies at a day certain the Obligation should be void and that at the day he tendred the money and he refused it The Court held the plea good without saying uncore prist 115. Debt upon Obligation the Condition was if the Defendant paid to the Plaintiff or his assignes 20 l. at such a day and place that then c. The Defendant said that the Plaintiff appointed one A. to receive the mony of him at the day and place and that he tendred the same accordingly to the said A. which he refused Resolved the plea was good without alledging payment in fact 116. A. made a Feoffment in Fee rendering rent with Clause of distresse and afterwards bound himself in a Statute and the day being incurred Execution was sued by the Conusee and the Sheriff returned the Conusor dead and that he had extended the Rent The Heir of the Conusor within age brought an Audita Querelâ— and adjudged it did well lye because there was an Exception in the Writ of Extent that if the Lands are discended to any Enfant that the Sheriff should surcease to extend 117. Debt against Executors at the Pluries Distring as they appeared and pleaded that they had fully Administred the goods of the Testators before any Notice given them of the Suit The Plaintiff said That upon the Original the Sheriff had returned them Summoned It was the opinion of the Court it was no Estoppel against them for it may be they were never Summoned notwithstanding the return of the Sheriff The Archbishop of Yoâ—ks Case 118. An action brought by him upon the Statute dâ— scandalis Magnatum against I. S. because he put in a slanderous Bill against him before the President of the Council of the North surmising that he was a Covetous and Malitious Bishop Resolved the words were not sufficient to maintain that Action 119. A. seised of a Mannor holden by Knights service devised 2. parts there of to 2. strangers severally and all the Residue he devised to his Heir in Tail the remainder over to another in Fee It was the opinion of the Justices that when he had devised 2. parts he had done all which he could by the Statute and the devise of the resiâ—ne was void but the devise shall enure to the Heir of a third part of the 2. parts that the devise which takes effect at the death of the devâ—sor may take effect and that especialle by reason of the Remainder and so the Heir shall have a third part of the 2. parts vide 3 H. 6. accordingly 120. A. made a Feoffment in Fee to the use of another in Tail the Remainder to the right Heirs of Tenant in Tail in Fee Cestuy que use in Tail before the Statute of 27 H. 8. made a Feoffment in Fee the Feoffee dyed It was the opinion of the Justices That when the Feoffee dyed during the life of Cestuy que use in Tail the first Feoffees could not enter for the discent was when they had no title of Entry for by the Feoffment the Feoffee had title during the life of Cestuy que use in Tail wherefore during his life they could not enter nor make claim But they agreed that the Heir of Cestuy que use in Tail had not any remainder but by the Entry of the Feoffees 121. A man made a gâ—ft entail upon Condition that if the Donee or his issue
a good sale by the intent of the Will 3. Resolved that the devise that his Excecutors might sell was a good sale within the Statute of Wills though the words of the Statute are That a man having Lands holden in socage might devise two parts of it and that by the Equity of the Statute Yelverton and Yelvertons Case 442. A man seised of Lands Covenanted to stand seised thereof to the use of his eldest Son and also of all the other Land which he after should purchase he Covenanted that he and his Heirs would stand seised to the use of his eldest Son Afterwards he purchased Lands to him and his Heirs by bargain and sale Adjudged that the purchase could not be intended to other use then to him and his Heirs Sir Hugh Cholmeleys Case 443. The Case is very long but is this in effect viz. Tenant in Tail the remainder in Tail he in the Remainder bargained and sold his Remainder to A. for the life of the Tenant in Tail and after his death the remainder to the Queen in Fee Tenant in Tail in possession suffered a Common Recovery The Queen granted her remainder to Tenant in Tail and his Heirs Afterwards he in the remainder bargained and sold his remainder to B. the remainder to the Queen upon Condition another Recovery was had Tenant in Tail dyed without Issue It was Resolved in this Case that he in the Remainder and all Claiming under him were barred by the Recovery 2. That the Common Recovery did bar the Tenant in Tail and the estate of A. in the remainder although the Remainder was in the Queen 3. That the grant of the Queen to the Tenant in Tail and his Heirs was a good grant Corbett and Marshes Case 444. Error brought upon a Recovery in Dower because the Tenant was not summoned by 15. dayes nor Proclamation made thereof at the Church door Because the party had remedy against the Sheriff the Court would not allow of the Error Crispe and Fryers Case 445. Copyholder in Fee rendring Rent at Mich. and our Lady-day The Lord at the last instant of the day of payment demands the Rent upon the Land and the Copyholder is not there to pay it Qu. If it be a forfeiture the better opinion of the Justices was that it was a forfeiture Paramour and Verwolds Case 446. False Imprisonment the Defendant justified by a Recovery in Debt in Warda de F. London and a Writ of Execution in Sandwich in Kent absque hoc that he was culpable in London The Plaintiff said that he was culpable at London absque hoc that there is tale Recordum in Sandwich Adjudge the Yraverse upon the Traverse was good because the place is material Pannell and Fens Case 447. A man seised of Lands and possessed of a Term devised all his Lands and Tenements to his Executors untill they had paid all his Debts and Legacies and levied all charges which they should expend against I. S. or others in Execution of his Will and made two Executors and died the Executors entred generally into the Land and Term and one of them sold the Term to one man and the other sold it to another It was adjudged they took the Term as Executors and not as Devisees and yet they took the Freehold as Devisees and they said that the words of the Will as to the Term was no more then the Law gave and that they should have it as Executors Blackwell and Eyres case 448. Issue was joyned betwixt the Lessee of the Plaintiff and the Defendant in an Ejectione firme which was to be tryed at the Assizes The Defendant in consideration the Plaintiff and his Lessee should forbear to enforce their Title and give slender evidence against the Defendants promised to pay a certain Sum of money to the Plaintiff Vpon Non assumpsit it was found there were two Issues joyned in the Suit and the Defendants had not joyned but one of them had pleaded the general Issue and the other a special Plea It was adjudged for the Plaintiffs because the common Speech is the Parties have joyned issue Walker and Harris Case 449. It was adjudged in this Case That although Lessee for years assignes over his Term yet Debt lyeth against himself for the Rent by the Lessor or his year Moss and Packs Case 450. A Recoverie was had against the Executor of I. D. of debt and damages And Fire fac issued de bonis testatoris si si non damna de bonis propriis the Executor dyed the Sheriff did execution of the Goods of the Testator before the Return of the Writ and adjudged good Portman and Willis Case 451. It was adjudged in the Case that by a Devise of omnia bona a Lease for years did pass if there be not other circumstances to guide the intent of the Devilor 2. Resolved That if a Copyholder for life or years surrender to an use that the surrender is good and the use void as a surrender rendring Rent with Warranty shall be a good Surrender and the Rent and Warranty void Beswick and Combdens Case 452. Action upon the Case for not keeping a Bank by reason of which the River drowned his Land It appeared upon the evidence that it was levyed and kept before by one who enfeoffed the Defendant Yet it was adjudged that the Action did lye against the Feoffee for the continuance of it Fuller and Fullers Case 453. The Case was A man had four Sons and devised his Land to his youngest Son named R. and the Heirs Males of his Body with the Remainder successively to the other three and the Heirs Males of their Bodies the first Devise dyed in the life of his Father having Issue Male After which the Father said I will that my Will stand good to the Children of R. as if he had over lived me but the words were not put in writing The point was If the Children did take by the devise or by discent Quaere The Court was divided in opinion The Dean and Canons of St. Pauls and others Case 454. King Edward the Fourth by his Letters Patent granted to the Dean and Canons and their Successors that they should be discharged of Purveyance the Charter was confirmed by King Henry the Seventh and also by King Henry the Eight The Statute of 27. H. 8. was made That Purveyors assigned by the Kings Commission for provision for him his Queen and Children might provide all Victual Corn c. as well within Liberties as without any Grants or Allowances to the contrary Queen Mary granted that no Purveyance should be taken of the Dean and Canons and their Successors against their Wills notwithstanding the Statute of 27. H. 8. and Queen Elizabeth reciting all the Patents granted to the Dean and Canons doth confirm them It was Resolved That the Charter granted to them was good Wherefore that they should be discharged from all Composition for Provisions for the Queen Preston and Hinds Case 455. Error
one saith he hath Title or Interest to anothers Land an action doth not lye although he hath no Title but when he saith that another hath Title he cannot salve the same by applying the same to himself for his Justification Shaw and Thompsons Case 536. A Woman recovered Dower of a Copyhold within the Mannor and 40 l. damages because her Husband dyed seised and she brought Debt for the damages in B. R. adjudged it did not lye because the Court Baron could not hold plea not award Execution of 40 l. damages although the damages were there well assessed Huntbage and Shepheards Case 537. The Issue in an Ejectione firme was if Jemet the Wife of the Defendant was alive at the time The Jury found Julian the Wife of the Defendant was alive It was the opinnion of the Justices they cannot be intended one person without finding that by the Custome of the Country Weomen baptized by the name of Julian had been called Jemet Stile and Buts Case 538. Trespas for carrying away Clay the Defendant Justified by a Prescription as a Tenant of the Mannor but because the Clay was digged by another and not by the Tenant the Justification was ruled not to be good Doggerell and Pokâ—s Case 539. Covenant upon an Apprentiship the Defendant pleaded a By-law in London where he was Apprentice by the Common Councell That if any Freeman takes to Apprentice the Son of an Alien the Bonds and Covenants should be void It was adjudged no plea for that the Common Councel cannot make the Bonds and Covenants void but may Impose a Fine upon the Master for taking such an Apprentice Bab and Clerks Case 540. False Imprisonment the Defendat Justified That the Borough of St. Albans had authority by Charter to make By-lawes and they made a By-law That if any Burgesses give opprobrious words to the Major he should be Imprisoned of the Major at his pleasure and that he being Major sent an Officer to the Defendant being a Burgesse to come to the Common Hall for the affairs of the Town and he sent him this Answer Let the Major come to me if he will for I will not come to him Adjudged the Justification was not good that the By-law was not Lawfull and that the words were not opprobrious words Reynold and Purchowes Case 541. Assumpsit where the Plaintiff had recovered 4 l. against the Defendant in Consideration the Plaintiff had given him 3 l. he promised to acknowledge satisfaction and had not done it It was said it was no Consideration to pay that to him which is due The Court held the Consideration good because speedy payment will excuse and prevent travail and expense of Suit Gregory and Blasfields Case 542. Error of a Judgment in Ludlow upon the Statute of 4 and 5 Mar. for weaving of wollen Cloathes It was assigned that the Statute of 5 Eliz. had abrogated that Statute The Court said the Statute of 5 Eliz. had not abrogated it but encreased the penalty But because the Suit was there by Bill or plaint but ought not to be but by Writ or Information the Judgment there was Erroneous 543. The Custome of a Mannor was layed to be That if a Copyholder hath 2. Sons and a Wife and dyes and the eldest Son hath Issue and dyeth in the life of the Wife the younger Son shall have the Land The Issue being upon the Custome The Jury found the Custome That the younger Son shall have the Land unlesse the eldest was admitted in his life and paid the Lords Fine The Court held the verdict to be insufficient to prove the Issue Walter and Dawes Case 544. Assumpsit upon a promise to pay 20 l. yearly for 10. years to the Testator of the Plaintiff in consideration the Testator had granted him the Office of the Clerk of the Fines in the Counties of B. C. and Glamorgan The Defendant pleaded he did not exercise the said Office and the Venire was awarded in the County of Worcester It was adjudged against the Plaintiff because there they cannot take Notice of the Issue Necton and the Wardens of Wexchandlers Case 545. The Plaintiff sued a Prohibition against the Defendant upon Libell exhibited by them for a Legacy given to them by the Testator of the Plaintiff The Plaintiff surmised that there were divers Obligations for monies depending and Suits But in Conclusion the Defendants had a Consultation upon security to repay the Legacies to be there recovered by them if any things were Recovered by the Excecutors upon the Obligations Vide this case more largely Reported in Cr. 3. part 467. Wright and Major and Commonalty of Wickhams Case 546. Error was brought to reverse a Fine viz. that the Ancestor dyed mean between the Teste and the Return of the Writ of Covenant The Defendant pleaded that after the death of the Father the Plaintiff entred into parcell of the Land and made a Feoffment It was the opinion of the Court that he was barred by his entry and Feoffment of part upon the difference If a man hath an Action to Land if he suspend or extinguish it in part it is extinct in the whole but if he hath right to Land he may Release or suspend it in part and remain good for the Residue and upon this point the Judgment was reversed Welshes Case 547. Note It is the same case with the case of Attonwood Reported at Large in Cook 1. p. of his Reports upon the points there more largely debated and adjudged and therefore I have forborn here to abridge it I shall mention this case put by Pirriam Justice viz. If Tenant in tail be the remainder in tail the remainder to the Queen and Tenant in tail commits Treason and the Queen makes a Lease and the Tenant in tail dyeth without Issue and afterwards he in the Remainder dyeth without Issue that this Lease shall continue good upon the Reversion Lord Darcies Case 548. Quo Warranto for using a liberty to be exempt of Purveyance The Defendant pleaded that King Edward 4 granted to the Dean and Cannons of St. Pauls and their successors the said liberty within all their Lands and averres that they were seised of the Land in which at the time of the Grant and that afterwards the said Lands came to Edw. 6. who granted the same to his Grandfather and his Heirs with a Clause de tanta talia consimilia libertates c. quae quot qualia quanta the Dean and Canons or their predecessors ever had by reason of any Charter Grant of any of the Progenitors of the said King with a general non obstante aliquo Statuto c. It was Replyed that 27 H. 8. it was enacted by Parliament that the Kings Purveyors should execute their Commission in all places aswell within Liberties as without any Charter c. notwithstanding The Court was of opinion for the Queen because at the time of the Grant of tot tanta talia libertates the
and he demanded of the Plaintiff what was his Name he answered his name was I. D. therefore he arrested him adjudged for the Plaintiff for that the Defendant at his peril ought to take notice of the party Sharpe and Swaines Case 603. A Feoffment was made of a house and Land which was within the View of the house and the deed of Feoffment was delivered in the house only It was adjudged no Livery for the Land Popham Chief Justice said it was not good for the house Barkby and Forsters Case 604. A man brought Assumpsit in B. R. and declared whereas 16. December at the request of the Defendant he delivered to the Defendant 100 l. to the use of the Defendants Father the Defendant promised to repay it to the Plaintiff ad vel ante the first of May following The Defendant pleaded the Plaintiff had brought an Accoumpt against him for the same money and declared the money to be delivered 10 December and prayed Judgment of the Action pendant the Accoumpt upon Error brought the Judgment was affirmed because damages are recoverable in this Action but not in an Accoumpt Blowfield and Withes Case 605. Debt against 2. one was taken in Execution and suffered to escape by the Goaler It was adjudged that Execution might be sued out against the other 606. Judgment a Writ of Entry was reversed because the Name of the Sommoners were not endorsed upon the Writ Arkingsall and Dennys Case 607. An Archdeacon having a Parsonage appertaining to his Archdeaconâ—y before the Statute of 13 Eliz. made a Lease for 40. years of the Parsonage which was confirmed after the Statute Adjudged the Lease and confirmation were both good Harrington and Wyes Case 608. A. made Articles betwixt him and 2. others by which it is Covenanted by the said A. that the said A. doth let c. and the said A. doth covenant to make a Lease for 21. years according to these Articles Provided that they shall pay to the said A. yearly 28 l. Resolved that it was a present Lease and a Reservation of Rent and that the Rent should be paid during the Terme Parlor and Butlers Case 609. Prohibition the case was the Plaintiff was Convented before the High Commissioners for saying of the Defendant a Minister That he was fiâ—ter to stand in the Pillary then to preach in a Pulpit and that be had taken 2. Orders already and that he lacked but taking the third which was to have his Ears cut off He there Justified the words that the Defendant had forged an Acquittance and shewed it The Commissioners would not allow of the Justification but granted him to aske the Defendant Forgivenesse the Prohibition was granted because they ought not to meddle with the Cause Easton and Newmâ—ns Case 610. If a man find goods and being demanded of him he denyes for to restore them It was adjudged to be a Conversion of them Randals Case 611. An Enfant confessed a Judgment in the Kings Bench in Debt It was Resolved that he could not have Audita Querela during his Nonage to reverse the Judgment in that Court but he might have Error in the Exchequer Chamber by the Statute of 27 Eliz. to reverse it Shephard and Metcalfes Case 612. A Prohibition by 3. Resolved one Nonsuit or Retraxit shall not bar the others Holcome and Rawlins Case 613. If a Disseisor make a Lease for years and the Disseisee reenters It was Resolved that the Disseisee after his reentry shall punish the Lessee for Trespas for the mean profits during his Occupation although he be in by Title but before his reentry he shall not punish him Gooses Case 614. Appeal of death against Principal and Accessaries before the fact and of accessaries after the fact The principal is found not guilty of the Murder but guilty of Manslaughter Resolved all accessaries before the fact should be discharged because to a Manslaughter none can be accessary before the fact Perries Case 615. An Enfant of the age of 9. years was admitted by his Guardian to sue an Appeal de morte fratris 616. A Writ of Error was delivered at the Instant the Judgment was given the Court would not allow of it because it was procured before the Judgment was given 617. Nota per Curiam A Copyholder may prescribe by usitatum est against his Lord but against a stranger he must prescribe in the name of the Lord. Ford and Glanviles Case 618. Administration is committed durante miuore aetate of an Enfant and Debt is brought against him and then the Enfant comes of age Quaere if the Writ shall abate Roberts and Agmondeshams Case 619. A Lease was made of a Rectory a Parson was presented to it and upon a supposition that he was holden out with force had a vi laica removenda upon which the Sheriff returned non inveni vim laicam nec potentiam armatam Notwithstanding which Returun upon Affidavit that he was kept out with force a Writ of Restitution was awarded out of the Kings Bench. Woodlifes Case 620. Accompt for goods delivered to a Factor to Merchandize he pleaded he was robbed of the goods and of divers other goods and Chattells of his own and holden a good plea. Bradshawes Case 621. A man prescribes for Common Appendant Resolved unity extincts it but not Common for arable Land Halliwel and Jervoise 622. A Parson sues before the Ordinary for Tythes and then he Appeals to the Audience where the sentence is affirmed Then the parties Appeal to the Delegates and there both sentences are repealed It was agreed that such a condition ad revidendum the sentences may issue forth but then such a Reviewing shall be final without further Appeal but if the Commissioners do not proceed to the Examination according to the Common Law they shall be restreined by a Prohibition Mortimer and Windgates 623. Accompt for Malt the Defendant said the Plaintiff brought Trover and Conversion for this and other Malt and for part found for him and for part not and demanded Judgment of the Action adjudged no bar for it may be he did not convert the Malt yet he ought to accompt for it Smith and Bowsals Case Vide the same Case 912. Plito 610. before Bradshawes Case the very same with this Case Rogers and Jacksons Case 624. Debt upon a Bond the Defendant pleaded the Statute of usury alledging that agreatum fuit that the Plaintiff should have so much money pro donatione diei solutionis the Plaintiff traversed absque hoc quod agreatum fuit and found for the Plaintiff It was said in stay of Judgment the word Corruptâ— was not pleaded in the Bar It was Resolved the Bar was made good by the Replication and the Declaration being good It is sufficient for Judgment for the Plaintiff Bacon and Hills Case 625. Ejectione firme the case was A. had Issue 3. Sons viz. B. C. and D. and devised to B. and C. certain parcells of Land and to D.
Justices that if one be bounden to make such assurance of all his Land that another will devise and require if it be to be done at the Costs of the Devisor he may devise one Assurance of one part and another of another part of the Land but if be at the Costs of the other he can devise but a joynt assurance for the whole Land Gage and Topers Case 741. Resolved in this Case If the Writ of Covenant upon which a fine is levyed be returned before the date it is Error because it is an Original Writ and not amendable by any Statute Strougborough and Biggins Case 742. In Appeal by a Woman of the death of her Husband of Murther the Defendant is found guilty of Manslaughter It was holden that a general pardon could not pardon the burning of the hand because it is at the suit of the party Vide Co. 6. p. the Case Reported to be adjudged contrary 743. It was holden by the Justices that in a scire fac to have Execution of a Fine it is no plea that there are other Terre-Tenants not named in the Writ otherwise it is upon a scire fac to have Execution of a Recognizance Bennes and Edwards Case 744. The Patron of the Advowson granted the next Avoydance to B. and after granted an other next Avoydance to R. who first presented and the Bishop refused the B. presented and the Bishop refused his Clerk also R. brought duplex Querela against the Bishop before the Metropolitan against B. and upon default his Clark was Inducted by the Metropolitan but depending the duplex Querela B. recovered against the Bishops Ordinary in a Quare Impedit and his Clark was Instituted and inducted and he took the profits of the Gleab Lands which were sowed by the Clark of R. It was Resolved in this Case that the Clark of R. being in upon the Judgment in the duplex Querela the Clark who was in upon the Recovery in the Quare Impedit could not oust the Clark of R. without a scire facias first brought Foxley and Ansleys Case 745. The Bayliff of the Queens Mannor which had waifes and estrays appertenant took goods esloyned by a Felon and relinquished in the Mannor and seased them for the use of the Queen and in Trover brought against him prayed in aide of the Queen Resolved the Aide not grantable being an action transitory and not local James and Rudledges Case 746. Words viz. Hang him he is full of the Pox I marvel you will eate or drinke with him adjudged not Actionable for it may be the small Pox and not to defame the party but to Counsell his friend 747. The Sheriff sells a Terme upon a scire fac and afterwards the Judgment is reversed Resolved the party shall not be restored to the Terme but to the money for which it was fold Holford and Andrewes Case 748. Debt upon an Obligation the Condition was to pay a sum at a certain day The Defendant pleaded that in respect of a Trespas done by the Plaintiffs beasts upon the Defendants Lands the Plaintiff gave him a longer day of payment which is not yet come Resolved it was no plea for that an agreement by perol cannot dispense with the Obligation Scrogs and Stevensons Case 749. In a Leet a payne was assessed upon the Town for not making of a Tombrell and Stocks and the Bailiff of the Mannor destrained one of the Town for the payne and avowed for it Adjudged the Avowry not good because it was not alledged that the payne was unpaid to the Lord for if any of the Town paid it the Plaintiff in the Replevin was not destrainable and also he doth not show that he had a Precept from the Steward to distrain which he ought to have Resolved that the Lord of the Mannor and Leet is to finde the Tombrell and Stocks upon payne of forfeiture of his Liberty and not the Inhabitants Johnson and Clarks Case 750. Debt upon Obligation The Defendant pleaded the Statute of Usury Quod Corrupte agreaâ—un fuit quod Querens Corrupte recepit Issue upon them found for the Defendant it was said that the double Issue was a Mistâ—yal The Court held the tryal good because an Issue is taken upon a thing material the other upon a thing not material and both being found for the Defendant it is a sufficient warrant for the Court to give Judgment for the Defendant Whitcalfe and Jones Case 751. Assumpsit The Consideration was that the Plaintiff assumed to a stranger to pay a debt which the Defendant owed him It was holden to be a good consideration although he doth not alledge payment of the money Smith and Shepherds Case 752. Trespas for taking of his sheep The Defendant justified as servant to the Lord Barkley by Prescription to take 2 d. for every score of sheep passing through the Town and if it was denyed upon request to detain the sheep till payment Resolved the Prescription was not good to take Toll for passages in via Regia for that the Inheritance of every man for passage in via Regia is precedent to all Prescription 2. Resolved a man may prescribe for Toll Traverse because it is a passage over his own freehold but not for Toll thorough 3. In this Case it was adjudged against the Defendant because it was not shewed that the Sheep were passing thorough the Town before he took the distresse otherwise it doth not sure with the Prescription Warner and his Wife and Babingtons Case 753. Debt upon an Obligation by Husband and Wife the Defendant pleaded the Wife had another Husband living The Plaintiff said the Wife ad annos nubiles disagreed to the former marriage It was said by Popham if she marry another Husband infra annos nubiles it is a disagreement to the first marriage à fortiori where she cohabits with the second Husband after years of Consent adjudged for the Plaintiff White and Gerishes Case 754. The Case was A. and B. levyed a Fine of Land to I. S. with a Render of a rent of 5 l. to B. yearly with a Clause of distresse the Remainder of the Land to A. and his Heirs I. S. dyed his Son distrained for the Rent It was adjudged against the Avowant for the Rent in a Replevin brought because the limiting over of the Remainder of the Land over was an Extinguishment of the Rent Davenant and Hardis Case 755. The Case long put was shortly this The Company of Merchant Taylors of London having power by Charter to make Ordinances for the better Rule and Government of the said Company made an Order that every Brother of the same society who should put any Cloth to be dressed by any Clotheworker not being a Brother of the same society should expose one half of his Cloths to be dressed to some Brother of the Company upon pain of forfeiting 10 l. and to destrain for it This Case was very long and very Learnedly argued vide the Book at
Resolved it was a good Saving and that all Justices in their Sessions to be holden within the city might hear and determine Offences committed in the County but no offence done within the city though in the time of the Sessions Heydon Smith and others Case 857. Audita Querela The case was A. and B. seised of Capite Lands and P. seised of Soccage Lands they all three acknowledged a Statute of 8000 l. to R. A. and B. levyed two several Fines of their moyeties to C. and W. to the use of themselves and their heirs until default of payment was of certain Annuities and then to the use of C and W. they after default of payment sold the Lands to H. and D. H. released to D. who devised the Land in tail and died the Devisee in tail died without Issue the Wives of the Plaintiff were Heirs to D. to whom the third part of the Capire Land discended R. had extended the Lands upon Statute before the default of payment of the Annuities and before the Bargain and Sale and although he sued the extent against A. and B. and also P. yet the Sheriff extended the Lands of A. and B. and to defeat the extent and to have Restitution because the Land of P. was not extended the Audita Querela was brought The principal point in this case was if the Bargainee and those which claim under him should have no Audita Querela for the extent made before his time Another point was if the Coheirs should have an Audita Querela without the owner of the two parts all of them being Tenants in common and equally grieved with the extent The case is very learnedly argued pro con but not Resolved Salter and Botelers Case 858. A Rent was granted to A. his Executors and Assignes for the Life of B. out of Bl. acree A. died living a Cestuy que use The Executors of A. distreined for the Rent and averred the Life of B. It was adjudged the Distress was not lawfull because by the death of the Grantee the Rent was determined but if the Rent had been granted to the Grantee and his Heirs the Heir of the Grantee should have bin a special Occupant and he might distrein for the Rent Ewer and Moiles Case 859. In a Replevin by E. in the Kings Bench against M. M. being an Infant appeared there by Artorney also an Imparlance was entred Petit licentiam interloquendi usque and no day was named and Judgment being there given for these Errors the Judgment was reversed Boulton and Bastards Case 860. A. and his Wife seised in the Right of the Husband of the Mannor I. exchanged the same with S. and D. for the fourth part of the Mannor of S. A. died the Wife entred into I. and evicted it for her Life It was adjudged it was a defeating of the Exchange for ever because the exchange was of Land in possession and yet the Justices held that a Reversion might be exchanged for Lands in possession and Note It was said that unequall value or quantity in the one more then the other should not avoid the exchange but otherwise it is of unequality of Estate Stephen and Tots Case 861. T. and his Wife being divorced in the spiritual Court à thoro mensa The Father of the Wife devised a Legacy to her for which she sued the Plaintiff his Executor in the Spiritual Court he there pleaded the Release of the Husband which the Spiritual Judges would not allow of It was the opinion of the Justices in this Case that the Release of the Husband was good notwithstanding this Divorce Sparke and Sparkes Case 862. A man made a Lease for life and after made a Lease for 99. years after the death of Tenant for life if the Lessee for 99. years should so long live and if he dyed within the Terme the Lessor granted that the Land should Remain to his Excecutors and Assignes for 21. years after the death of the Survivor of both the Lessees The Lessee for 99. years granted the Lease for 21. years rendring Rent and dyed Intestate having survived the Lessee for life the Administrator brought Debt against the Assignee of the Terme for 21. years for the Rent It was adjudged that the action did not lye because the Contingent foe 21. years never vested in the Lessee for 99. years the Intestate nor ever was in him to dispose or grant Bridge and Atkins Case 863. Words viz. Thou art an old perjured Knave and that is to be proved by a stake between the ground of such and such adjudged that for these words the Action did not lye Bothes Case 864. He was arraigned of Felony for a second forgery after Cónviction of a former forgery in the Star Chamber upon the Statute of 5 Eliz. of writings concerning the Lands of I. S. In this Case Resolved that no Accessary can be in Forgery but all one principally 2. Resolved that for Felony the Kings Bench might commit one to the Fleet or unto any other Prison and also that a Prisoner who is condemned to perpetual Imprisonment was not Baileable nor Removeable Shaw and Norwoods Case 865. A man by his Will devised 40 l. to two Infants equally the Executrix delivered the money to one to whom the Defendant was Executor who made a Bill testifing he had received the 40 l. to the use of the Infants one of the Infants dyed Intestate his Administrator brought Debt against the Defendant the Executor of the Baylee It was adjudged the Action was maintainable and the specialty although it was not made to the Infants yet it was a sufficient Testimony of the debt Fort and Wards Case 866. A Copyholder had Common of Estovors in the Lords Woods appurtenant to his Copyhold and he purchased the Freehold of Inheritance in the Copyhold and had words in his deed of purchase of all Commons appertaining to the said Messuage Yet it was adjudged that the Common which he had to the Copy estate was extinct but if there had been special words in the Grant of the like Common as he had in the Copyhold before the surrender it had been good and as a new grant of Common Morgan and Slades Case 867. It was Resolved by all the Justices of England that an action upon the Case upon Assumpsit lyeth upon every contract Executory as well as an Action of Debt Seymayne and Greshams Case 868. G. and B. were Joynt Tenants of a house in Lond wherein they had several goods B. acknowledges a Statute and dyed a Writ of Execution came to the Sheriff of Lond. who came to the house with a Jury to extend the goods of B. G. seeing them and knowing the Cause of their comming to the intent to frustrate the Execution shut the Door of the house so as the Sheriff could not do Execution For which the Plaintiff brought his Action upon the Case and layd it to be to his damage of 2000 l. It was adjudged against the
upon the case did not lie in such Case Bowes and Powletts Case 924. In the Kings Bench the case was A. and B. were Indebted to the Queen by Recognizance 500 l. C. and D. were indebted in 200 l. to F. by Obligation F. was indebted to A. 200 l. F. at the request of A. assigned the Debt of 200 l. due from C. and D. to the Queen by Deed enrolled in part of satisfaction of the 500 l. due to the Queen by A. B. A. afterwards for his discharge of the 200 l. against the Queen prosecuted Suit in the Exchequer against C. for the levying of the 200 l. of the goods and Chattels of C. C. in consideration that A. would forbear to prosecute any Process against the said C. till Hill Term following promised to pay A. 200 l. and 20 l. to buy him a Gelding and in an Action upon the case brought for it in B. R. upon non Assumpsit It was found for the Plaintiff there and Damages and Judgment Error was brought in the Exchequer and the Judgment upon the body of the Declaration was reversed because the consideration was not lawfull nor sufficient for the surceasing of a Suit was no discharge of the Debt nor was it lawfull to have recompence for the forbearing or surceasing of a Debt which was due to the Queen Hinson and Burridges Case 925. Action upon Assumpsit in B. R. In consideration the Plaintiff would sell and deliver to I. S. the Defendants Factor at the request of the Defendant 200 Hog-labms to the use of the Defendant he promised he would pay so much mony to the Plaintiff as should be agreed betwixt the Plaintiff and I. S. and alledged he delivered them to I. S. and I. S. and the Plaintiff agreed for 40 l. price to be paid at certain dayes since past and the Defendant had not paid the mony It was found for the Plaintiff and Judgment Errour brought and assigned 1. That the Contract was the Contract of the Defendant himself and Debt did lye not Assumpsit Resolved the sale was to I. S. and the use is but a Confidence which gave not property to the Defendant so that Debt did not lye against him but Assumpsit 2. Error no place is alledged where the Plaintiff and I. S. agreed of the price and day of payment which is traversable The Court held it good enough because the Defendant pleaded Non Assumpsit and a verdict was given But the Court said it had been a good cause of Demurrer Palmer and Humfreys Case 926. Ejectione firme de una pecia terrae vocat M. furlong una pecia terrae vocat Ashbrokee uno Gardino vocat Minching-Garden quae omnes singulae parcellae terrae jacent in W. It was assigned for Error that Pecia terrae is uncertain and so the Declaration not good And 2. Because no place certain is alledged in which the Garden is and for these Causes the Judgment was reversed Matthew and Matthewes Case 927. Assumpsit in B. R. whereas the Testator was endebted to the Plaintiff 35 l. The Defendant being his Excecutor in consideration the Plaintiff would give him day promised to pay the money Found there for the Plaintiff and Judgment upon Error brought the Judgment Reversed Because the consideration was not sufficient because the Defendant was not by Law bound to pay the money after the death of the Testator and giving day to pay that which he was not bound to pay was no sufficient Consideration Edmunds and Bufkins Case 928. Debt in B. R. and declared the Dean and Chapter of W. demised the Rectory to A. for 60. years which by mean Conveyance came to F. who demised it to C. for 20. years rendring Rent C. demised it by his will to D. 10. of the last years and afterwards dyed possessed D. entred and granted his Interest to Edmunds F. demised the residue of the Terme to S. his Wife and Executrix S. married Bufkin they brought Debt and had Judgment Error was brought and assigned that C. the first Lessee of F. demised 10. of the last years to D. and it was alledged that the demisor made not any Executor or that the devisee did enter by the assent of the Excecutor nor that he was possessed by virtue of the demise but generall that he entred after the death of the devise and for these Causes the Judgment was reversed Paramour and Pains Case 929. Action upon the Case in B. R. and declared in Consideration the Plaintiff had sold to the Defendant 14. Cowes for 34 l. and 4. Oxon for 16 l. the Defendant promised to pay cum requisitus esset Found for the Plaintiff the Judgment was reversed because the Consideration was not sufficient but Debt lay upon the Contract and not Assumpsit Plaine and Bagshawes Case 930. Debt in B. R. against B. Executor of I. S. and demanded 47 l. 8 s. 8 d. monetae Flandriae attingent ' to 40 l. 12 s. 6 d. English money The Defendant pleaded fully Administred the Jury found Assets and Judgment there that recuperet debitum suum praedict ' damna sua praedict ' Errour brought and assigned for that the Jurours did not inquire of the value of Flanders money and for that cause the Judgment was reversed for although the Plaintiff did affirme the Flanders money did attain to 40 l. 12 s. 6 yet it is no Warrant to the Court to adjudge it so unlesse found by the Jury Stafford and Powlers Case 931. Error was brought of a Judgment in an action upon the Case in B. R. for words the words were viz. One W. Web being arrested as accessary for stealing his own goods Mr. Stafford knowing thereof discharged the said Web by an agreement of 3 l. to which Mr. Stafford was party whereof 30 s. was to be paid to Mr. Stafford and was paid to his man by his appointment Error brought It was said the words were not actionable but the Justices held them actionable and the Judgment was affirmed Bordolf and Perry and his Wives Case 932. Debt in B. R. upon an Obligation made by the Wife dum sola fuit the Defendant pleaded Non est factum found for the Plaintiff The Judgment was that the Husband be in misericordia and the Wife Capiatur And it Reversed because it ought be Capiantur against both Penraddock and Erringtons Case 933. Assault and Battery in B. R. against two Defendants and declared of Assault Battery tantas minas de vita sua imposuer ' quod non audebat ire circa negotia They pleaded Deson Assault demesne It was assigned for Error that the Assault of one cannot be the Assault of the other and they ought to have pleaded several pleas the Court held it no Error for that the Assault might be joynt 2. Error because nothing is said to the Minas yet the Judgment was affirmed because Minas is but to enforce the damages and not the substance of the Declaration Wilcocks and Greenes Case 934.
Debt against Executors upon Obligation of 200 l. they pleaded a Recovery by a stranger of 200 l. upon another Obligation and averred it was a just and true Debt ultra which they had not in their hands the Plaintiff said the Recovery was by Covin It was adjudged in B. R for the Plaintiff Error brought and the Judgment reversed for it could not be by Covin if it was a just Debt and the Replication should have been absque hoc it was a just and true Debt Morses and Rosses Case 935. Assumpsit In consideration the Plaintiff would surcease his Suit which he had in Chancery against the Defendant the Defendant promised to save him harmlesse from all actions which should be brought against him for or Concerning a Lease which the Defendant had assigned to him and alledged he surceased his Suit and that a Stranger had brought an action against him in B. R. by reason of the said Lease and the Defendant did not save him harmlesse Judgment being for the Plaintiff in B. R. It was reversed because he did not shew the certainty of the Action brought against him nor that it was for any matter in esse at the time of the promise Wood and Bukleys Case 936. Action upon the Case whereas Wood exhibited his Bill against Buckley in Star Chamber containing he had nusselled Pirats Murtherers and other Malefactors he being a Justice of Peace and Vice-Admiral Wood afterwards in another place having speech with divers concerning as well of the ill carriage of the said Buckley as of the matter in his Bill against Buckley in the Star Chamber said I will Justify every matter therein to be true The Defendant Justified the speaking of the words being examined upon the truth of his Bill before I. S. and I. D. by Command of the Councell and traversed that he spake them at any other place or time upon demur being adjudged for the Plaintiff upon Error brought the Judgment was reversed because no action lying for the exhibiting of the Bill no action lay for saying the words of his Bill were true Sir Henry Berkley and Earle of Pembrooks Case 937. Action upon the Case by the Earl of Pembroke against Sir Henry Berkley and shewed he was seised of the Mannor of S. to which the Office of the Keeper of the Forrest of F. did appertain in Fee and to have omnia bona forfeited within the Forrest fugam facere bis per annum quicquid de hujusmodi fugatione accidere possit and to have Hony Wax mortuum boscum c. appertaining to his Office and the Defendant disturbed him to exercise the said Office The Defendant pleaded a Deed in Tail in Bar made by the Plaintiff In the Deed there was a Proviso viz. Provided alwayes and the said Sir Henry Berkley doth Covenant for him and the Heirs males of his body to and with the said Earl and his Heirs to preserve the game as far as commonly hath been used and that he nor his Heirs males shall cut or sell any woods there except for browse and necessary reparations and the Plaintiff said the Defendant had cut down four Oakes and converted them to his own use and averred they were not for browse nor reparations and that he entred for the forfeiture It was adjudged upon a demur in B. R. for the Plaintiff Error was brought upon the Exchequer Chamber upon the matter in Law that the Proviso was not a Condition but a Covenant but as to that point it was Resolved by all the Justices that the Proviso was a Condition 2. Error was that the damages were assessed entirely for divers things some of them being uncertainly and insufficiently alledged for he prescribed to have omnia bona forisfacta which could not be without Charter also to have de furgatione quicquid acciderit which was also uncertain and also the damages for them ought to have been severally assessed and not entirely The Court held that for that Cause the Judgment was erroneous and for that Cause only the Judgment was reversed Reymer and Grimstones Case 938. Assumpsit In Consideration he at the Defendants request had promised to wash the Defendants linnen and the linnen of his Servants and to provide meat and drink for the Defendant and his Servants the Defendant promised to pay so much money to the Plaintiff when he should require it so as it should not exceed the proportion used in O. for the like time and further declared that in Consideration the Defendant upon accompt between them made was in arrerage to the Plaintiff 18 l. the Defendant promised to pay him the said 18 l. and the Plaintiff shewed for how long time he had washed the Cloathes c. and that he required 8 l. which did not exceed the proportion in O. upon Non Assumpsit found for the Plaintiff and damages severally assessed for the Costs entirely Error was thereupon brought it was the opinion that the first Assumpsit was good and the second void and the Judgment given for the damages and Costs upon the first Assumpsit was good and the Judgment for them affirmed but for the damages assessed upon the second Assumpsit and for the damages de incremento entirely give for both the Judgment was reversed Goodall and Wyatts Case 939. In Ejectione firme The Case was A. made a Feoffment of Lands to B. in Fee upon Condition if A. paid within a year after the death of the Feoffee to his Heirs Executors or Administrators 100 l. that the Feoffment should be void B. made a Feoffment over to C. and dyed and afterwards within the year it was agreed betwixt A. and the Administrator of the Feoffee that the said A. should pay to the Administrator the 100 l. and that the Administrator should repay back all to A. the Feoffee but only 32 l. which was done accordingly and then A. entred into the Lands pretending the Condition was performed it was adjudged in B. R. that his entry was not Lawfull and that this fraudulent and Covenous payment was no performance of the Condition and upon a Writ of Error brought in the Exchequer Chamber all the Justices a greed that the Judgment given in B. R. should be affirmed Vitsey and Fermours Case 940. The King granted Manerium de H. in Parochia de R. omnia terras decimas haereditamenta sua in R A. in the tenur of I. S nec non omnia alia terras tenementa haereditamenta in R praedict ' It was adjudged in B. R. that the Tythes in H. which was a Town within the Parish of R. did passe But upon Errour brought the Judgment was reversed because R. praedict shall be intended R. the Town and not R. the Parish Adams and Dixons Case 941. Assumpsit the Plaintiff was Bail for I. S. in B. R. the Defendant in Consideration that he should pay him the Condemnation promised to deliver to him the Bond made for the principal Debt and a letter of
The Spanish Ambassador and Plages Case 1040. Plage was pressed with his Ship at Lisbone to carry the King of Spains Soldiers to such a Port and had their Letters from the Vice-Roy of Portugal to trade to Brasil he performed the Service of Transportation and 14 months after traded at Brasil and freighted his Ship there for the transportation of Goods to Hamborough and was bound with Sureâ—ies in the Custom-house of Brasil to pay the customes due to the King of Spain at St. Michaels the Ship by tempest was forced into England and did not touch at St. Michaels The Spanish Ambassador pretending the Goods to be forfeit to the King of Spain sued for them in the Admiralty here and a Sentence was there for the King of Spain to have the Goods Plage sued to the Lord Chancellor here to have an Appeal from that Sentence and an Appeal was granted him Sir Thomas Palmers Case 1041. Sir Thomas Palmer who was attainted of Treason in the time of Ed 6. for natural affection 7 Ed 6 by Indenture covenanted to stand seised to the use of himself for Life the remainder to I. S. for Life the remainder to the first Son of the said I. S. in tail the remainder to his eighth Son he was attainted before I. S. had any Son It was Resolved that by the Attainder the Son of I. S. was barred which was afterwards born and the Fee-simple was in the Crown discharged of all the Remainders Jepps and Tunbridges Case 1042. The Defendant delivered a brief of the cause to some of the Jâ—rors impannelled before they appeared for their Instructions This was adjudged an offence for which he was Sentenced in the Star-chamber And in this case it was Resolved that the Plaintiff and Defendant himself may labor the Jurors to appear but a stranger cannot so do 2. That the writing of a Letter or a request by wordâ— by one not a party to the Suit to the Jurors to appear is Maintenance 3. It is not lawful for the party himself to instruct the Jurors either by writing or by word nor to promise them any Reward for their appearance for it is Embracery in them aswell as in a stranger Sis Tho. Dâ—wbridgecourt and Sir Anthony Ashleys Case 1043. The Defendant was decreed â—n Chanceâ—y to pay 1000 l. to the Plaintiff after the Decree the Defendant procured the Son of Sir Thomas by a Letter of Attorney which he had from his Father to agree only the Suit for 200 l. whereof 100 l. was paid in hand and the rest to be paid at a day certain to make a Release which the Son did in his own name but not in the name of his Father It was the opinion of the Justices and also of the Lord Chancellor that this Release was void Crew and Vernons Case in the Star-chamber 1644 Sir Randolph Crew and all those whose Estate c. he had in the Mannor of Crew time out of mind c. had had Turf to born in the House of Crew-hall in a great Waste called Okehanger Moor being interâ—upted he sued in the Exchequer at Chester whereupon Affidavit of the possession 60. years his possession was established After the hearing of the Cause there Vernon interrupted the servants of Crew and with Harrows tore the Turffs for which cause a Bill was exhibited in the Star-chamber against the said Vernon and others they put in a scandalous Answer saying that the Judge at Chester ought not in Justice have made such an Order and called the Affidavit an equivocating Affidavit and affirmed the owners of the Mannor of Crew had taken the Turff but by License and Vernon affirmed to the Court that he had a Release to shew for the discharging of the Prescription but no such Prescription could be shewed nor was but a Grant of Turff to be there taken In this case it was Resolved by the Court the Prescription was not determined by the new Grant but the Grant enured as a confirmation and so the title of Prescription remained 2. Resolved that the words spoken of the Court of Chester were very scandalous and the Affidavit which he called an equivocating Affidavit was approved by the whole wherefore the Defendants were sentenced and fined by the Court and the defendants were to acknowledge their offence to the Court of Chester Sir Anthony Barkers Case 1046. I. S. exhiâ—ited a Bill in the Star Chamber against Sir Anthony Barker and divers other Gentry of Credit and charged the Defendants with the forging of the Will of M. P. and with many undue practices in drawing the said M. P. to make such a Will At the hearing of the Cause the Plaintiff relinquished the Forgery confessing it was no Forgery but would have insisted upon the practices of the Defendants for drawing the said M. P. to make the Will The Court refused to permit the Plaintiff to insist upon the practices for if he would have insisted upon the practices he ought to have confessed the Will and then have shewed the undue practises used to draw her to make such Will Wherefore the Plaintiff was fined 200 l. to the King and the Court gave Damages to each of the Defendants and the reason why they gave damages they declared to be because the Bill being scandalous no action lay for the Defendants at Law because the Bill was prefered before competent Judges to punish the Offences if there had been any and therefore it was reason by reason of such defect of the Common Law in giving damages the Court having Jurisdiction of the Cause supplied the said defect Goodricks Case 1047. Goodrick at a Tavero said to D. being a Master of Arts at Cambridge That there was late a great Contestation befor the King betwixt the Archbishop of Canterbury and the Earl of Northampton Lord Privy Seal because the Archbishop enformed that since the said Lord had been Warden of the Cinque Ports there were more Jesuites and Seminary Priests come into the Realm then before which he said was the Newes of the Court Another offence was That Ingram a Merchant had heard at Ligorne in Florence by two Students out of the Colledge at Rome that the Earl of Northampton writ a Letter to Cardinal Bellaâ—ine to pray him that no answer should be made to his book which he had Written upon the Treason of Garnet the Jesuite because he writ it only ad placandum Regem faciendum populum The Defendants were found Guilty upon their Confessions It was Resolved by the Justices it was a slander within the Statute of Z. R. 2. which moved sedition betwixt the King and his Nobles and that although the publisher did produce his author of such false newes yet he himself was punishable and if one saith there is common Rumor that such a one hath done such an act an action upon the Case lyeth although he doth produce his Author And in this Case it was agreed that if one sayes to another the effect of
a Libell or false Rumor although he produceth his Author yet he is fineable Damuâ—'s Case 1038. The Case was I. S. was indebted to M. 1800 l. upon a Statute who dyed Intestare A. his Wife took Administration of his goods and married B. and during her Coverture made her Will by which she appoinâ—ed to her Kindred 400 l. in Charitable uses Proviso if any crosse in Law or losse of the said Debt of 1000. should arise it should fall upon the last 900 l. mentioned befor the Proviso of which 900 l. the 408 l. the Charitable use was the last A. dyed Administration de bonis non c. of M. was committed to D. which had of the Debts 2000. besides the 1800 l. upon a Commission upon the Statute of 43 Eliz. of Charitable uses against D. it was Decreed for the Charitable uses to which Exceptions was taken 1. That A. had not power to make a Will of this Debt 2. That the 2000 l. were desperate debts 3. That there was a crosse in this Debt there being a Suit by the next of Kin to revoke the Administration committed to D. Vpon the exceptions it was Decreed in Chancery with the Assistance of the Judges 1. That though the Will of A. was void in Law yet it would serve by the Statute if there was assers of that estate or of the estate of A. her self to support the Charitable use For the goods in the hands of Administrators are all to Charitable uses and it is the Office of the Administrator so to imploy them and the Children or Kinred have no property in them but under the Title of Charity 2. Because it appeared that at the time of the making of the Decree that the estate would bear both the Legacies and the Charitable use also with an Overplus and if any of the debts of the 2000 l. became desperate it was by the negligence of the Administrators and should not retard the Charitable use The King and Howards Case 1049. In this Case these points were Resolved by the Justices 1. A man makes a Feoffment of Lands in 5. Counties with a Condition of Re-assurance a Re-assurance is made of Lands in 5. Counties It is a breach of the Condition but only for the Lands in one County and a good performance for the other 2. Tenant in Tail Remainder in Tail Remainder in Fee he who hath the Remainder in Fee grants it to the first Tenant in Tail this acceptance of the Deed is an Attornement which shall bind those in the Remainder â— If an Act of Parliament be certified into the Chancery no averment shall be against it that it was not an act of Parliament because the Commons did not assent to it but with a Proviso which is lost but if it appeaâ—eth in the body of the Act that the Commons did not assent the Act is void The Case of the Commissioners of Sewers 1050. Upon complaints against diveâ—s ill disposed persons of Suits and vexations by them against the Commissiâ—ners of Sewers and their Officers for the counties of Northamoâ—â—â— Huntingdoâ— Cambridge and Lincoln It was holden by the Lords of the Council the Commissioners of Sewers may make new works as well to stop the fury of the waters as to repaire the old when necessity requires it 2. That for the safety of the Country they may lay a Tax or Rate upon any Hundreds Towns or Inhabitaâ—ts thereof in general who are interessed in the Benefit or Loss without attending a particular Survey or Admeasurement of Acres when the Service is to have a speedy and suddain execution 3. That they have sufficient power to imprison Refractory and Disobâ—dient persons to their Orders Warrants and Decrees and that Actions of Trespass False Imprisonment c. brought against the Commissioners or their Officers for extremity of their Order or Warranty are not maintainable nor will lie Goodson and Dâ—ffâ—â—dâ— Case 1051. Error of a Judgment in a Court of Pipowders in Rochestâ—r The case was A. dwelling in the Town was bound to pay B. 150 l. the first day of May at the House of B. in Rochâ—ster the Bond was sued there 24. September in the Court of Pipowders the Defendant pleaded payment at the House Issue upon it It was found for the Plaintiff Error brought and assigned that the Prescription was alledged to hold a Court of Pipowders before the Mayâ—r and two Citizens and by the Plea it appeareth it was holden before the Deputy of the Mayor and two Citizens The Court held the same to be Error 2. Error The Issue was misjoyned for the payment is alledged at the House of the Plaintiff in Rochester and it ought to have been pleaded apud Rochester in domo mansionali of the Plaintiff This the Court conceived to be Error and the Judgment was reversed Billingsby and Hercys Case 1052. A Demise was made of Lands in D. for years by the word Demise and to Farm let the Mannor and also all Timber Trees growing upon the same with an exception of six Oaks during the Term the Term was assigned to a Feme Sole who took Husband the Plaintiff and they assigned all their Interest to the Defendant reserving the Wood and Trees the Husband died his Executors cut down the Trees the Wife brought Trespass It was adjudged the Action did not lie because no propriety in the Trees passed by the words Demise Grant and to Farm Let though there was Liberty to Fell and Sell. Price and Almeries Case 1053. A possessed of a Term for Forty years devised the same to his Wife if she should live so long the remainder to I. his Son and the Heirs of his Body and made his Wife his Executor who entred and claimed the Term as a Legacy the Son died in the Life of the Wife the Wife died the Executor of the Son entred Adjudged his Entry was not lawful because the Son had not any Interest but a possibility Edwards and Dentons Case 1054. A man seised in Fee of the Mannor of D. and of an house called W. in D. and also of a Lease for years in D. by Deed did grant bargaine and sell the Mannor of D. and all his Lands and Tenements in â— to I. S. and his Heirs It was adjudged that the Term for years did not pass for the intent appears that nothing shall pass but that which the Heir might take for that the Habendum was to him and his Heirs Sir William Waller and Hangers Case 1055. The case was King Ed. 3. reciting that he had of every 10. Tun of Wine imported a tun and of every 20. Tun two Tuns one before the Mast and another behind the Mast granted to the citizens ef London that Nulla prisagia sint soluta de vinibus civium liberorum hominum London The Husband of the Defendant a Freeman and citizen of London having Wines in the Port and others upon the Sea died and made his wife his Executrix An Information was against her
Negatives that he hath not broken them and to the Covenants in the Affirmative that he hath performed them 2. When the Covenants Negative are against Laws and the Affirmative Lawfull there he may plead performance generally and the Court is to take notice that the Covenants in the Negative were void and against Law 3. That the Covenants that he would not do any Execution nor Execute any Writs here as venire fac were against Law 4. When some Covenants are void by the Common Law and others not void an Obligation taken for the performance of Covenants stands good for those that are good and not for the other Gresley and Luthers Case 1110. Assumpsit The Defendant was a Suitor for Marriage of the Daughter of I. S. the Mother of the Daughter was sollicited by the Defendant for her assent and furtherance of the Marriage and the Defendant promised that if she would agree that her Daughter should Marry the Defendant that he would give to the Mother 100l she gave her assent and the Marriage took effect It was Resolved that the Agreement of the Mother was a sufficient consideration to ground the Assumpsit upon Fosters and Jacksons Case 1111. Scire fac Against an Executor to have Execution of a Judgement against the Testator the Defendant pleaded that the Testator was taken in Execution for the same Debt and dyed in Execution It was Resolved that was a discharge of the Debt vide Laud and Williams Case Pasch 44. Eliz adjudged accordingly Harecote and Wrenhams Case 1112. The Case was The Father in his life time had conveyed a Lease in Trust to F. and made his Son his Executor who recvered 100l in Chancary against F. which he had and came to his hands as Executor The Question was if this 1000l should be Assetts in the Executors hands Resolved it should be Assetts Selby and Chutes Case 1113. The Lessor Covenanted that the Lessee should enjoy the Land without the disturbance Let or hindrance c. of the Lessee The Lessor sued the Lessee in Chancery suggesting the Lease was made to him in trust to try a Tittle onely In Covenant brought the Lessee assigned this in breach of the Covenant Adjudging no breach because it was a Suite in Equity and not at Common Law Sir Henry Rolls and Sir Robert Osborn and his wives Case 1114. Warrantia Charta against Husband and Wife that the husband and wife levied a Fine 2 Jac. to the Defendant and his Heirs with Warranty the Defendant pleaded that the same Term a common Recovery was had by a Stranger in a Writ of entry against the Plaintiff who vouched the husband only which Recovery was to the use of the Plaintiff for part of the Land for his Life with divers Remainders in tail with the Remainders in Fee to the Plaintiff and his Heirs In this case these points were Resolved 1. the wife one of the Defendants died pendant the Writ that the Writ should not abate because the Warranty was by the Husband and Wife so as by the death of the wife the Warranty as to her was determined and it stood for the Husband and his Heirs 2. Resolved that the Warranty was determined by the Severance and Division of the Land 3. Resolved that if the Plaintiff be impleaded in which he might vouch if he did not vouch that he might have Warrantia Charta 4. Resolved that because it appeared by the Plea in Bar that the use of the Recovery was to the Plaintiff but for Life so as the Plaintiff is in of another estate that he could not have a Warrantia Charta to recover upon a Warranty in Fee It was adjudged against the Plaintiff Cownden and Clarks Case 1115. In Ejectione firme the case was A seised of Lands in Fee in Soccage had Issue I. his Son and E. his daughter who was married to I. D. by whom she had Issue two daughters M. and F. he made his Will and devised out of his Lands Annuities to his Grand-children M. and F. and gave a Legacy to G. his brother of 20 l. and his Lands he devised thus My meaning is that my Land I now stand seised of and that of right I have shall discend to J. my Son but my Executors shall take the profits of it till his age of 24. years Provided If the said J. die without Issue of his body thâ—n the Land go to the right Heirs of my name and posterity equally to be divided part and part like and then to the said M. and F. I. died without Issue G. his brother entred and made the Lease It was Resolved in this case that the Devise to the right Heirs of his name and posterity was void and by consequence the Reversion in Fee discended to I his Son and from him to his two Daughters as his general Heirs and that appeared to be the intent of the Devisor for he did not intend his brother should have the Land for the words be part and part like and he did not intend his two daughters should have the Lands because he devised them Annuities Rowrth and the Bishop of Chesters Case 1116. It was Resolved in this case that after an Induction an Institution is not to be examined in the Spiritual Court but by a Quare Impedit only But yet the Justices if they see causa may write to the Bishop to certifie concerning the Institution Tisilate and Sir William Esex Case 1117. Covenant was brought upon the words Covenant Premise and Agree that the Lessee should quietly occupy and enjoy the Lands demised for during the term of Seven years and the Plaintiff shewed that a Stranger entred upon the Land but did not shew that he entred by title and for that cause it was adjudged against the Plaintiff and the difference was taken betwixt a Covenant implied as here it was in the words demise c. but upon a Covenant expressed there the Lessor is to gard the Land against every person Harrington and Deans Case 1118. Accompt A. was endebted to the Plaintiff 200 l. The Plaintiff required the Defendant to receive it of A and prayed the Defendant to borrow so much for him and pay it to the Plaintiff the Defendant did borrow 200 l. of I. S. and A. was bound for the repayment of it It was adjudged that the Defendant should account for this mony for that he had a Warrant from the Plaintiff to receive the mony of A. and by the direction of A. he received it of I. S. for A. therefore he was to account for it The Earl of Cumberland and Countesse of Cumberlands Case 1119. Waste in 3. Several Townes A. B. C. There were 29. Issues joyned and tryed 14. for the Plantiff and 14. for the Defendant One was if certaine Oakes cut down were imployed in reparation of the Castle of A. which Issue was tryed with the Defendant It was moved in stay of Judgement that the Visne was of the Town of A. where it ought to
of the Cases A Batement of Writ â— 5. 7. 12. 65. 109. 114. 126. 124. 133. 144. 148. 220. 255. Ability and Disability 76 129. 176. Accessaries and Principal 5. 133. 188. not to Man-slaughter before the Fact 133. Acceptance 106. 168. 191. of Rent 58. 94. 124. 131. 169. 182. 243. Acquittance 23. 268. a good bar to a Conusance for a Rent 37. Actions 253. 267. Actions popular and upon particular Statutes 29. Action upon the case for words and what words are actionable and what not 5. 6 65. 66. 85. 110.112 113.116 120. 146. 189. 196. 200. 242. 253. 262. 264. 259. 267. Action upon case generall 59. 100. 106. 114.121 125. 136. 168. 175. 203.206.264.266 for slandring his Title 66. 117. Act of Gods Law and property 127. 224. Accord and Concord 3. Accompt 66. 78. 134. 153. 256. Addition 101. Adjournment 126. Administrators and Administration 2. 3. 8. 57. 107. 112. 179. 199. 261. Admittance 103. Admiralty 49. 237. Advowson 81. 122. 262. 271. Age 33 248. 249. Agreement 163. Aid of a common person 5. 24. Aide of the King 162. Alien born 263. Alimony 263. Alienation 96. 228. within 11 H. 7. 39. Amendment 3. 106 169. 195. 202. 209. 262. 258. 259. 271. Amercement 37. 109. 163. 271. Annuity 3. 53. Appeals 87. 115. 133. 162. 232. 237. 250. Appendants 271. Apprentices 48. 53.243 Apportionment 23. 25. Appearance 126. 209. Arbitrament and Arbitrators 103. 196. 241. Arrests 49. 105. 131. 155. 175. 227. Assault and Battery 205. Assetts 76. 254. Assignees and Assignment 51. 137. Assise 23. Assurances and Conveyances 211. 214. 217. 232. Assesments and Taxes 10. Assumpsit and what a good consideration it it and what not 8. 73. 99. 107. 115. 118. 120. 127. 135. 136. 147. 150. 153. 154. 163. 166. 182. 189. 197. 200. 203. 204. 205. 206. 207. 208. 209. 252. 254. 262. Attachment upon Prohition 169. Attachment and Attachment of Goods and â—orreâ—gn Attachment 16â— 16â— Attaint 5. 10. 65. Attainder 63. 69. 161. 222. 238. Attorney 66. Attornement 43. 89.234 241. 264. Audita Querela 19. 34. 101. 127. 132. 146. 187. 236. 250. 262. Averment 62. 102. 108. 159. 181. Average 93. Auncient Demesne 56. 71. 129. Avowry 16. 31. 37. 67. 89. 92. 267. Avoidances 38. 85. 136. Authority 108. Award 2. 182. 268. B. BAile 127. 200. 229. 244. 250. 269. Bankrupts 166. Bargain and Sale 9. 18. 22. 56. 62. 67. 161. 242. Baron and Feme 3. 38.39 Bar 16. 18. 26. 28. 37. 38. 47. 55. 59. 69. 71. 83. 17. 94. 98. 106. 124. 132. 136. 837. 138. 149 167. 168. 178. 191. 194. 198. 220. 221. 238. 252. 201. 202. Bastard and Bastardy 6. 61. 75. Bills 147. Breach 67. 112. 155. 183. 240. 254. By-Laws and Constitutions in Courts to be made by the greater part 113. 118. 164. 260. Burglary 186. C. CAnons 232. Capias 90. 227. Capacity 25. Challenge 2. 30. 122. 155. 167. 175. 248. 272. Chauncery 155. 173. 176. 234. Charters and Evidences 143. Charge and Dischhrge 22. Charge 40. 61. 139. Cessavit 22. Certiorari 10. Certificate 29. 58. 170. 261. of the Bishop not peremptory 277. Cinque Ports 81. Claimes 220. Clergy 3. 153. 223. Common Recovery 54. 59. 68. 71. 83. 88. 138. 170. 194. 198. 221. Common and Commoners 135. 257. Commissions and Commissioners 158. Commendams 272. 273. Committment 245. 246. 269. Conditions 12. 20. 25. 42. 45. 63 72. 102. 130. 131. 154. 166. 176. 236. 249. 264. where the Grantee shall take advantage of it è cont 42. 47 Suspended 38. Confess and Avoid 154. Coparcenors 28. 47. Considerations to raise uses 161. Confirmations 30. 46. Conspiracy and Conspirators 4. 169. 237. Constables 247. Consultations 119. 274. Conveyances and Assurances 170. Coroners 15. Corruption of Blood 161. Copyhold and Copyholders 14. 41. 67. 133. 151. 161. Costs 148. 275. 227. Courts 76. 120. Covenants 4. 11. 39. 50. 64. 78. 95. 111. 112. 121. 129. 229. 236. 254. 256. 264. 266. Countermands 126. 234. Concealments 147. Counterpleas 30. 156. Contribution 54. 61. 146. Curia Claudenda 17. Customes what good what not 4. 9. 50. 119. 243. 246. 264. 269. 275. 278. of Gavelkind 85. Customes of London 2. 54. 101. 103. 104. 233. 242. 261. D. DAmages 24. 43. 121. 239. 277. Darrein Presentment 267. Day in Courts 35. 195. Dean and Chapter 25. Deeds 2. 8. 28. 30. 35. 65. 94. 152. 182. 190. 244. Raisure of them 30. 35. 244. Decrees 155. 158. 234. 245. Demand 149. of Rent 55. 58. 116. 168. 176. 181. Demise 141. 183. 242. Debt 34. 36. 99. 137. 140. 147. 160. 169. 178. 183. 188. 191. 199. 203. 204. 208. 209. 247. 252. 261. 265. 268. 270. Debt to the King 51. 68. Declarations 167 259. Delegates 250. Deputies 227. 247. Devastavit 191. 221. Deprivation 158. 223. Detinue 42. 72. 109. 143. of Charters 35. Diminution 58. Dimise of the King 220. Discent and Purchase 137. Deceit 66. 147. 230. Discontinuance of Lands 38. 92. 103. 167. 178. 180. 222. Disseisin and Disseisors 133. 148. 152. Dispensations 49. 90. 128. 149. 159. 272. Distress 464. 102. 163. 187. 261. Devises 6. 24. 31. 33.50 58. 63. 72. 73. 83. 88. 91. 99. 100. 103.140 150. 157. 166. 178. 180. 212. 215. 216. 220. 222. 229. 234. 242. 245. 258. 252. 255. 257. 269. Dominus pro tempore 57. Divorce 57. 194. Dowre 7 8. 15. 35. 85. 117. 191. 224. 249. Dovecoars 76. Droit 113. E. EJectione firmè 89. 122. 148. 161. 191. 204. Election 32. 36. 44. 77. 45. 94. 110. 148. 170. 183. 267. Elegit 93. Enfant 12. 33. 34. 67. 132. 192. 247. Emblements 109. Embracery 238. Entry 129. Error 30. 34. 80. 117. 118. 119. 161. 168. 196. 199. 202. 205. 209. 211. in Parliament 243. Executions 7. 12. 13. 15. 16.19.31.32.38 55.63 77. 90. 97. 120. 132. 152. 160. 161.168.172 192. 243. 254. 268. 270. Escape 84.114 168.181 186. 190. 197. 243. 251. Estates 5. 9.25 41.32.73 74. 80. 104. 110. 124. 134. 150. 166. 178. 180. 194. 212. 217. 251. 263. 264. Estray 6. Estrepment 31. 43. 174. Estoppel 11. 17. 64. 71. 82. 121. 140. 178. Evidence and Evidences 23. 79. 129. 135. 151. Examination 256. 279. of Witnesses 8. not of the Plaintiff upon Oath ex officio 273. Exchange 187. Exception 261. Excomengment 136. 229. 250. Extent 4. 17. 71. 226. Examination of age 67. Extortion 144. Extinguishment 40 45. 47. 56. 61. 65. 69. 91. 97. 108. 119.133.150 164. 171. 189. 219. Exposition of words 45. 229. F. FAlse Imprisonment 66. 80. 92. 116. 131. 241. False Judgment 33. Feoffments and Feoffments to Uses 6. 20. 38. 43. 69. 81. 168. 131.156 151.197.213 234. Fees 106. 252. Fellonie 5. Felo de se 51. Fines levyed 12. 18. 23. 32. 33. 47. 57. 82. 97. 106. 108. 123. 136. 178. 140. 210. 247. Sur Concessit 220. Fines of Copyholders 174. Fines for Contempts and other things 137. 156. 223. Fines for Allienation 61. 16. Final Judgment 113. Forcible entry 185.3 Feme Covert 50. 97. 263. Forfeiture 30. 50. 71. 76. 81. 88.
the Rent that the Lessor should not enter which being immediately sworn and the Records of the Outlawries against him produced the Justices dismissed the Lessee and that the Lessor should enter upon him Broughtons Case 269. Broughton a Justice of the Peace brought an Action upon the Case against the Bishop of Coventry and Lichfield because he wrote a Letter to the Earl of Leycester one of the Privy Council wherein he wrote That the Plaintiff was a Vermin in the Common wealth a false and corâ—upt man an Hypocrite in the Church of God a Dissembler He hath used many corrupt practises to work his VVill He procured my Register to be indicted of Extortion He willingly and wilfully hath boulstred out one Greenwood a Convict man of many offences and knowing him to be an Evil man maintaineth him against me without Law Conscience or Honesty Upon Not Guilty it was found for the Plaintiff and 300 l. Dammages It was objected the Action did not lye not being an overt Act but words written in a Letter Resolved the Act on did well lye being writ to a Stranger but otherwise if it had been written to the Party himself and it was also resolved That although but some of the words will bear Action yet the Dammages are well assessed because they are put in to increase the Dammages In this Case it was said if a slanderous Bill be exhibited in the Star Chamber against one the Action doth not lye because it is a Court of Justice and hath Jurisdiction to redress things but to exhibite a slanderous Bill into a Court waich hath not power to redress the thing is scandalous and an Action will lye for it Griffith and Clarks Case 170. A Writ of Disceit by the Lord of the Mannnor upon a Fine levyed of the Land within antient Demeasne The Defendants pleaded that the Lord of the Mannor in the time of E. 2. did release to one who was Tenant of the same Land de omnibus servitiis consuetudinibus salvis servitiis infrascriptis viz. pro una virgat terrae 2 s. rent suit of Court and Releife It was resolved The Custome of the Antient Demesne was extinct by the Release but the Rent Releife and suit of Court remained as parcel of the Seignory by the saving Ivors Keales Case 271. A. seised of Lands in Fee borrowed 20 l. of B. and they are agreed to assure Lands for it They went to the Land and A. there said to B. I am endebted to you 20 l. If I do not pay you at Michaelmas then I bargain and sell this Land to you and if I do pay you I am to have my Land again B. continued upon the Land a little space the Monyes was not paid at Michaelmas Adjudged the Land passed to B. upon a Condition subsequent for payment of the Mony by B. Mildmay and Standiskes Case 272. Action upon the Case for Slandering his Title In which the Defendant justified the Case was A. seised of Lands in fee had Issue 3. Daughters V. G. O. V. dyed without Issue The Father for love and affection and the better maintenance of G. and O. covenanted to stand seised to the use of himself for life the remainder to G. in tale of one Moyety the remainder to O. of the Moyety in Tail Provided it shall be Lawfull for the said A. for the payment of his Debts and Legacies and better preferment of his Servants and other good Considerations to devise the said Lands by his Last VVill and dispose of the same for lives or years and afterwards he devised the said Lands to F. and the said O. his wife for 1000. years and dyed wherefore the Defendant published the said Lands were assured for 1000 years upon which it was demurred It was said that the said V. might at any time determine any of the said uses and induce other Estates at his pleasure and the payment of his Debts and Legacyes with good considerations for the Leases But it was resolved for the Plaintiff because the Proviso was against the Law to enduce an Estate to a Stranger by way of Lease upon Covenant of Considerations to raise uses but such power might be good upon an Estate executed Or a Proviso good which did extend to determine the Estate but not to give another Estate to Lessees Veere and fâ—ofryes Case 273. It was Resolved That if the Metropolitan grant Administration where the Intestate had not bona notabilia indivers diocesses it is voidable only but not void But if a Bishop of a Diocesse grants Administration which belongs to the Metropolitan the same is void Russells Case â—74 Trover and Conversion of goods by the Executors of R. against Husband and Wife of the goods of the Testator which came to the hands of the Wife dum sola fuit The Defendant pleaded a Release of the Plaintiff after the death of the Testator and after the Trover and Conversion The Plaintiff said he was then within age It was adjudged that because there was no Consideration alledged for the Release it should not binde the Executor because it should be a Devastavit in him Twineos Case 275. Grandfather and Grandmother Tenants in special Tail before the Statute of 27 H. 8. the remainder to the right Heirs of the Grandfather The Father by deed enrolled Fine and Proclamation conveyed the Lands to the Queen and her Heirs and Successors in the life time of the Grandmother It was Resolved that by the Statute of 32 H. 8. by the Fine and Proclamation the Issue in Tail was Barred Vâ—ncent and Lees Case 276. It was adjudged in this Case That when a man devised that his Sons in Law should sell the Reversion of his Lands without naming their particular names and that some of them dyed That the Survivors could not sell the Land Sir Peter Carewes Case 277. It was Resolved in this Case That the Lord of a Mannor for life or a particular Tenant having interest in the Mannor might grant Copies in Reversion although they were not executed in the life of the grantor Moris and Franklyns Case 278. The Statute of 27 H. 8. which began 4. Feb. Anno 27. H. 8. and ended 14. April gave Monasteries of Petty value to the King The Abby of T. being of Petty value viz. 100 Marks per Ann. was mean between the 1. day and the last day Surrendred to the King It was holden the King should be in by the Statute and not by the Surrender Thorrowgood and Tarvors Case 279. In Trespasse The Defendent pleaded in bar the Release of the Plaintiff of all his right in the Land The truth was the Plaintiff was a man unlearned and the Release was read unto him only as a Release of the Arrerages of an Annuity It was the opinion of the Justices that he might plead Non est factum to it and it should nor bar him Dorrell and Thyns Case 280. Error was assigned in a Common Recovery That no Warrant of Attorny was
several Writs issued to Certifie one to the Custos Brevium the other to the Chief Justices They both Certified there was not any Warrant of Attorney The Plaintiff alledged Diminution upon a new Writ of Error brought Resolved That he could not alledge Diminution not have a new Writ of Error after the two former Certificats in the first Writ Ive and Tracies Case 281. A man seised of Socage Land and of Lands holden in Capite by Act executed in his life Conveyed the Capite Lands for the Advancement of his Wife Issues and payment of his debts Adjudged he could not after devise the Socage Land Bonncys Case 282. King E 6. seised of the Mannors of R. and B. in the right of his Dutchy of Lanc. made a Lease thereof to B. for years rendering several Rents upon Condition that if the Rent be behind 40. dayes after the Rents payable to reenter It was found by Office that the Rent was behinde after the 40. dayes and by another Office that the Rent was tendered the Last instant of the 40. dayes and that the Queens Officers of the Dutchy accept of the Arrerages and of the Rent at other dayes and Feasts and made accquittances thereof to the Lessee and had accompted for the same in the Dutchy and after that the Queen to defeat the Lease brought the Intrusion The poynts of the Case were 1. If the Queen was bound to demand the Rent 2. If the Tender was sufficient and sufficiently found by the Office 3. If the acceptance of the Rent accrued after the Office should conclude the Queen of the Condition The 4. If the Acquittances of the Officers should conclude the Queen 1. It was Resolved that the Queen ought to have made a Demand of the Rent before Reentry 2. That the Tender found shall be intended a tender made upon the Land which was a sufficient destruction of the Reentry 3. That the acceptance of the Rent at a new day after the Rent found behinde should conclude the Queen and that the Act of her Officer should be the Act of the Queen her self so as she could not enter for the Condition broken and so it was adjudged against the Queen Hunt and Gateleys Case 283. In a Replevin the Case was this Tenant in Tail the remainder over in Tail the remainder over in Fee Tenant in Tail in remainder granted a Rent charge and afterwards Tenant in Tail in possession suffered a Common-Recovery and dyed without Issue The Question was If the Recoverers should hold the Land charged with the Rent It was Resolved that the Recoverers nor any which came in under their estate should be subject to the charge of him in the Remainder because the Recoverers are not of an Estate which they gained under the estate of Tenant in Tail in possession whose estate is not subject to any Charge of him in the Remainder 2. Resolved That no Lease nor Rent nor estate made by him in the Remainder should charge the possession of the Recoverers Brand and Glasses Case 284. Action upon the Case against an Inkeeper of London for goods of the Plaintiff stolen out of his Inn The Defendant pleaded an agreement betwixt them that the Inkeeper should not be charged with any goods brought by the guest but with such only as he should deliver to the Inkeeper himself or to his Wife and that the Plaintiff did not deliver the goods stolen neither to him nor his Wife It was Resolved by the Court it was a good bar of the Action and this Case was put and vouched to be adjudged 7 Eliz. A Clothier came to an Inn with a Wayne of Wool to Lodge at his entry the Inkeeper said to him That if he would that he should take the Charge of his Wayne that he should draw the same into an Inner Court otherwise he would not answer for it The Clothier did not do it and the Wool was stolen The Clothier brought his Action upon the Case against the Inkeeper and upon shewing the special matter the Inkeeper was discharged 185. The Case was Lessee for life Covenanted for himself his Executors and Administrators to build a new Wall during the Terme and after he assigned over his estate It was Resolved that in this Case upon the Statute of 21. H. 8. that the Grantee of the Reversion or the Grantor might have an Action of Covenant against the Assignees for by the acceptance of the possession he had made himself subject to all Covenants concerning the Land and the building of a Wall was a Covenant inherent to the Land with which the Assignee should be Charged though there wanted the word Assignees in the Deed. Mich. 26. 27. Eliz. The Case of Saffron Walden 286. King Henry 8. seised of the Mannor of Saffron Walden parcell of his Dutchy of Lanc. Anno 6. of his Raign granted to the Guild of Walden 2. Mills a Market and the Clarkship of the Market in Fee Farme rendering 10 l. per Ann. and after 31. of his Raign granted the Mannor Rent and Fee Farme to the Lord Audley in Fee 1 E. 6. by the Statute of Chauntries the Guild was dissolved by which the Mills and Markets came again to the King with a alvo of the Rent to the Lord Audley Afterwards the said King E. 6. Anno 3. of his Raign granted the two Mills Market and Clarkship of the Market and also a Fair yearly to be holden there to the Town of Walden in Fee Farme reddendo inde annuatim to the King and his Successors vel tali Capitali Domino vel Dominis feodi illius ad qâ—em vel quos de nostro pertinet vel pertinebit the sum of 10 l. per Ann. upon which Reservation they were charged with 10 l. per Ann. in the Exchequer and upon a scire facias they pleaded in discharge of the said Rent that they had payed 10 l. per Ann. to the Heirs of the Lord Audley The points debated were two 1. That when the King had granted the 2. Mills and Market to the Guild reserving Rent if the said Rent were parcel of the Mannor of Walden as the Mills were or was a Rent in grosse for if it was parcel of the Mannor then it was parcel of the possessions of the Dutchy if it was not parcel then it was a thing given to the King in Capite 2. If by the Reddend in the Patent of E. 6. the Town of Walden was charged to pay 10 l. to the Lord Audley and other 10 l. to the King This Case is very long and Learnedly argued by Walmesby for the Town of Walden and by Popham for the King And it was Resolved by the Justices That the Corporation of Walden should pay both the Rents Vide the Book at Large for the Reasons Sir William Herberts Case 287. Sir Matthew Herbert acknowledged a Recognizance to the King of 3000 l. and afterwards he made several Feoffments and Allienations of divers of his Lands the residue discended to
absque hoc that he promised in London the Plaintiff said he promised in London absque hoc that there is any such Accord although this was a Traverse upon a Traverse yet it was adjudged good Montague and Jeoffries Case A seised in Fee of the Mannor of M. and of Lands called G. expectant upon a Lease for years by his Will he devised the Mannor and G. to the Defendant and afterwards he covenanted with I. S. to make a Feoffment to the use of himself and E. the daughter of I. S. whom he did intend to marry which was by Letter of Attorney executed in the Mannor not in G. nor any Atonement of the Tenant of it He married E. and afterwards in the Will with his own hand where he had made M. his Daughter his Executor he added these words viz. E. my Wife and then died It was the opinion of the Justices in this case that the Feoffment did countermand the whole Will but they doubted whether the writing of the new words in the Will was a new publication of it The Lady Greshams Case 577. Scire facias to execute a Recognizance acknowledged in Chancery accordingly B. the Defendant pleaded in abatement of it that B. was seised of three Acres at the time of the Recognizance whereof I. S. was now seised not named in the Writ they were at Issue upon the Seisin and it was found that B. and another were jointly seised and enfeoffed I. S. It was said that although the moyetie of the Land was extendable yet the Writ as brought should abate Corbet and Downings Case 578. An Obligation was taken by the Sheriff for an appearance at Westminster and the Term was adjourned to St. Albans and the party appeared there adjudged he had not forfeited his Obligation Qu. If the word Westminster in the condition did not make the Bond void because by the Statute of 22. H. 6. there is not any such name in the Writ Blodwell and Edwards Case 579. The case was B. made a Feoffment in Fee to the use of himself for Life and after to the use of such Issue of the Body of M. from eldest to eldest as were reputed to be begotten by the said B. whether it be lawfull or unlawful It was adjudged in this Case That it was a good Remainder limitted to a Bastard for a Son in reputation is sufficient to make him a Purchaser 580. It was Resolved by the Justices that Fenny ground dreined should pay Tythes and was not barren Land within the Statute to be discharged of Tythes for seven years Mounson and Wests Case 581. In Assise The parties were at Issue upon the Seisin and Diseisin the Jury found West Tenant and that he disseised the Demandant Nisi such words in a Will give the Tenant a Title It was said the Verdict was imperfect because of the words nisi c but the Court held the Verdict good enough for the finding of the Disseisin implies a Seisin also Walford and Mashams Case 582. Resolved that an Alien borne under the Obedience of an Enemy of the King may have Debt upon an Obligation for personal things Palmer and Porters Case 583. Action upon the case against the Bailiff of N. for that upon a fieri fac directed to the Sheriff of N. return Octob. Mich. he sent his Warrant to the Defendant being Bailiff of N. to execute it who returned Nulla bona c. before Mich. and at Mich. they were removed from their Office and new Chosen Resolved it was a void Return for the Sheriff ought not before Octob. Mich. have accepted return of Nulla bona for he might have some afterwards and before the return of the Writ and the return by them after Mich. being out of their Office was void but if they had executed the Writ before Mich. then the Sheriff might have accepted of their return before Mich. but not after Hobs and Tadcastles Case 584. Audita querela the case was A. sued a Bill of Debt against B. who found bail the Plaintiff and another Afterwards B. was was condemned and dyed without paying the consideration or rendring his body A. scire fac was sued against the Plaintiff his Bail and upon 2. Nihils returned Execution was awarded against him Whereupon he brought the Audita querela It was prayed he might be discaarged out of Execution for that it is now become impossible by the act of God the principal should render his body and there was never any Capias awarded against him in his life time The Court held it very unreasonable to sue Execution against the bail till a fault was returned in the principal and the Recognisance of the bail is that the principal shall render himself which is to be intended upon Capias awarded against him Judgment was given for the Plaintiff in the Audita querela and he was discharged out of Execution Slade and Morleys Case 585. A man sowed his Land with Corne and sold the Corne to the Defendant for 16 l. to be paid at Midsomer next and the Defendant in consideration of such sale promised to pay the money at Midsomer but did not upon which Assumpsit was brought It was the greater opinion of the Justices in the Exchequer Chamber that the Action did not lye because properly Debt did lye in which the Defendant might wage his Law Robins Gerrard and Princes Case 586. The Case very long in effect was this A man is Admitted Instituted and Inducted into a Benefice with Cure of the value of 8 l. and afterwards the King presents him to the Church of D. which is a Benefice with Cure and he is admitted and Instituted The Archbishop grants to him Letters of Dispensation for plurality which Letter the King confirmes and afterwards he is Inducted to the Church of D. It was adjudged in this case that the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons but against the King and as to the Spiritualties he is full Parson by the Institution 2. Resolved that admit the Church was not void by the Institution untill Induction Yet the Dispensation came too late for that the words of the Satute of 21 H. 8. of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retaine that which he cannot receive The Queen and Cattons Case 587. Scire fac to repeal a Patent made 29 Jan. 35 Eliz. which Recited Whereas A. and B. conjunctim divisim were bound by Obligation to the Queen in a 1000 l. dated 21 April 33 Eliz. with Condition that A. should stand to the award of I. S. for controversies betwixt him and C. which Obligation is become forfeited and Recites that the Queen by
by voucher of him in the Remainder in tail who vouched the common Vouchee and if he in the Remainder in Fee were bound by the Recovery because the Statute of 14. Eliz. is That Recoveries suffered by Tenants for Life shall be void against him in Remainder or Reversion and the Proviso doth not extend to bind more of them in the Remainder then those who assent of Record It was adjudged in B. R. that the Remainder in Fee was bound as well as if the Tenant in tail had bin the first Tenant to the Precipe and upon Error brought the Judgment in the Exchequer Chamber was affirmed But because the Defendant in the first Action had pleaded the Recovery by a Writ brought de tenementis praedictis which was not the use in common Recoveries but especial to have the Recovery of so many Messuages so many Acres of Land Meadow Pasture c. in certain and because it did not appear by the Record before them that the Writ did contain any certainty of the Messuages or Acres c. the Judgment was reversed Rotheram and Stibbings Case 905. Action upon the case against an Executor upon Assumpsit of the Testator to pay 100 l. in consideration of Marriage of his Daughter the payment to be made when he should be required upon non Assumpsit Judgment was had in B. R. for the Plaintiff Error brought in the Exchequer Chamber and the Judgment was reversed because the Action did not lie against the Executor Maynard and Bassets Case 906. Trover and Conversion de 3000. cords of Wood the case was A. granted to B. so much wood in Buxsted Wood as would make 4000. cords to be taken by the appointment of A. B. before any appointment assigned his Interest to M. the Plaintiff afterwards A. granted to the Defendant as much wood in the said Wood as should make 6000. cords at the choice of the Defendant then A. appointed B. a certain quantity to satisfie the first Bargain which B. cut down and the Defendant by colour of his Grant took and carried away the same whereupon the Plaintiff brought his Action and had Judgment in B. accordingly And Error brought and assigned because the Declaration is not de bonis propriis 2. Because he sais he was possessed de 3000. cordis ligni and the Defendant cordas praedicti ligni cepit without saying any particular quantity and 3d. because the Declaration is vi armis but all the Exceptions were disallowed by the Court and the Judgment was affirmed Palmâ—r and Sherwoods Case 907. A Trespass for carrying away goods The Judgment in B. R. was that the Plaintiff should recover his Damages for part and the Defendant capiatur and that the Plaintiff sit in misericordia pro residuo transgressionis which is said to be Error and that the Judgment ought to have bin Quaerens nibil capiat per billam pro residuo transgressionis Sed non allocatur but the Judgment was affirmed Chamberlain and Nichols Case 908. In debt upon a single Bill for payment of money at a day the Defendant pleaded payment without an acquittance Issue upon it Judgment for the Plaintiff in B. R. Error assigned because the Issue was joyned upon a matter not material nor pleadable viz. payment without an acquittance but because it was after Verdict and the Error assigned in the Plea which the Defendant himself had pleaded The Judgment was assirmed Only and Font Le Roys Case 909. Debt being against an Executor he pleaded there was another Executor who administred and was alive and concluded Judgment si Action whereas he ought to have pleaded to the abarement of the Bill The Plaintiff replyed Billa cassari non debet It was objected to be Error out holden good notwithstanding the Bar of the Defendant would have concluded the Plaintiff Smithwick and Binghams Case 910. Error brought upon a Judgment in B. R. in Ejectione firme because the Plaintiff entituled himself to a Term for years by an Administration taken of the Arch-Bishop of Canterbury and did not alledge that the Intestate had goods in diverse Diocesses but the same was disallowed because it did not appear to the Court whether he had or not but if it had appeared to them they conceived the Administration taken had been void if the Inrestate had not goods in divers Diocesses Partridge and Turks Case 911. The case was A. seised of two Messuages in the Parish of St. Brides London demised them to the Parson and Churchwardens of St. Brides ad distribuend ' annuatim 5 s. of the profits to the poor of the Parish in honorem duplicationem omnium illorum annorum quibus Dominus noster Jesus Christus vixerat in terra and gave 20 s. to maintain a Priest and dyed and the Parson and Churchwardens were seised and the Jury found the Act of 1 E. 6. and that the King was seised ut Lex postulat and granted the same to I. S. in Fee who devised it to the Plaintiff for Life and that the Parson and Churchwardens reentred and were seised ut Lex postulat and so demised them to the Defendant The Question was whether Partridge the Plaintiff was in by disseisin or not It was adjudged in B. R. he was not in by disseisin Error was brought and it was adjudged that the gift of A. was good and the giving of 5 s. inter pauperes was no Superstitious use and where part is given to a good use and part to a Superstitious use the King shall have but that Rent which is given to the Superstitious use and the Land shall go to the Devisee 2. It was said the entry of Partridge was no Disseisin because no actual expulsion of the Parson and Churchwardens were found but the Court held that because it is found that Partridge when he made the Lease was seised prout lex postulat his Seisin shall be intended lawful and not by disseisin and it cannot be lawful because the Devise was good to the Parson and Churchwardens and therefore it was by disseisin and afterwards the Judgment was reversed Bucknel and Heys Case 912. Error brought upon a Recovery in Battery in B. R. and assigned that there was no Bail there and upon a Certiorari the Chief Justice certified Bail I. H. without addition and with a Blanck for the place of his Habitation The Judgment there was reversed because no bail for the party who was sued and so he was never in the custody of the Marshal nor could be sued there Turges and Beachers Case 913. In Assumpsit in B. R. the Declaration was That the Defendant was indebted to the Intestate 30 l. for the residue of 100 Quarters of Wheat sold to him by the Intestate The Defendant promised the Plaintiff being Administrator to pay it when he should be required Found for the Plaintiff there the Judgment was reversed because in the case Debt lay and not Action upon the case Ody and Yates Case 914. Note It was holden by all
for calling the Wife Witch a Prohibition was prayed and denied because a Defamation for which no Action could lie at common Law Quaere for since 1 Jac. an Action at Law lies for the Words 1196. Upon a Suit to revoke an Administration the Judge in the Ecclesiastical Court would have examined the party upon Covenants and what Land he had by discent and a Prohibition was awarded Collier and Colliers Case 1197. The Spiritual Judge would have examined the parties in a Suit of Incontinency upon their Oaths if they committed the Fact or not and a Prohibition was awarded Manns Case 1198. He was sued in the Spiritual Court for the marrying of one of his wives sisters Daughters and a Prohibition awarded because such marriage is forbidden by the Levitical Court Sherburn and Clerks Case 1199. Suit was in the Spiritual Court for the Tythe of wood in a Park There was a surmise for a Prohibition that a Modus had bin paid time out of mind to the Vicar for the Tythes of the Wood there the Parson sued in the Spiritual Court and because the right of Tythes came in debate betwixt the Parson and Vicar a Prohibition was denied by the Court. Fryer and Bestneys Case 1200. The Question was in the Spiritual Court whether the Tythe Hay did belong to the Parson or the Vicar a suggestion being of a Modus to be paid to the Vicar It was doubted if a Consultation should be in the case the ground of the Prohibition being a Modus decimandi Bagnell and Stoakes Case 1201. A Prohibition was granted after a Sentence in the Spiritual Court for a Legacy in a Suit where a Release was pleaded and they refused to allow of it because proved but by one Witness Forster and Peacocks Case 1202. Resolved that for Birch above the age of Twenty years growth Tythes should be paid Wray and Clenches case 1203. Resolved That of small Oakes under Twenty years growth apt for Tymber in time to come shall not pay Tythes Ran and Patisons Case 1204. Of Dotard Trees although converted to Fire-wood Tythes shall not be paid Broke and Rogers case 1205. Resolved Tythes shall not be paid of the toppings and loppings of Trees which are aridae cavae in culmine putridae where the bodies of the Trees being Tymber are discharged being 20. years growth of Tythes Sovell and Woods Case 1206. The Clerk of a Parish prescribed that he and his Successors had used to have 5 s. per annum of the Parson for the Tythes of a certain place within the Parish and a consulation was awarded because a Clerk Dative and Removeable cannot prescribe Libb and Watts Case 1207. Resolved that Tythes shall not be paid of Slates nor of the Quarreys of Slate or Coale 1208. A Prohibition was prayed where the Parson sued in the Spiritual Court for Tythe of Pigeons and awarded to stand because the Court thereof would not allow their proof without two Witnesses Bedingfield and Feakes Case 1209. The Parson had the great Tythes and the Vicar minutas decimas Land within the Parish was sowed with Safforn the Vicar sued in the Spiritual Court for the Tythe of the Safforn Resolved Safforn is minuta decima and the Vicar shall have it although the Land had paid Tythe corn before Sherington and Fleetwords Case 1210. Resolved that Land that was not barren of its own nature but is become unprofitable by ill Husbandry or negligence is not priviledged by the Statute of 2 Ed. 6. to be discharged for the first seven years of Tythes Austin and Lucas Case 1211. Resolved That of Broom or Fewel spent in a House within the Parish Tythes shall not be paid Awberies Case 1212. Suit was in the Spiritual Court for the Tythe of the Aftermowings of Grass and upon a Surmise that the Occupiers of the Land had used to make the first cutting of the Grass into cocks for Hay and to pay the Tenth cock thereof in satisfaction of the first and after-mowing a Prohibition was awarded Green and Handlies Case 1213. Resolved Tythes shall not be paid of the Rakeings of corn unless it be a covenous Raking to deceive the Parson 2. That it is a good custom to pay the Tythe wool at Lammas day though it be due upon the clipping 3. That for the Pastorage of young barren Cattel preserved for the Pail or Plough no Tythe shall be paid 4. That a Prescription to pay a penny called a Hearth-penny in satisfaction of the Tythe of all combustible wood is a good Prescription Blincoes Case 1214. Resolved if the Vicar be endowed of all Petty Tythes of all the Lands within the Parish yet he shall not have Tythes of the Gleab of the Parson for Ecclesia Ecclesiae dec mare non dâ—bet But if the Parson Lease out his Gleab the Vicar shall have minutas decimas of the Lessee Gresham and Lucas Case 1215. Suit in the Spiritual Court for the Tythes of Milchkyne Steers Oxen and Horses A Surmise was made to pay one penny for every milch Cow a half-penny for every other Cow and a half-penny for every Mare in satisfaction of all Cows Horses Steers and other Chattell A special consultation was awarded dummodo non tractatur de vaccis mulcibilibus bobis Caâ—ucae nec bestiis agist ' proproâ—icuo domus 1216. A Custom to pay a half-penny for the Wool de ovibus venditis after shearing and before Mich. was adjudged a good custom Mich. 38 Eliz. Austin and Pigotts Case 1217. It was surmised in the Spiritual Court that the Parson had twenty Acres of Pasture ten Acres of Wood in satisfaction of all the Tythes of the Land in demand he failed in the precise proof of his whole Surmise for he proved the the twenty Acres of Pasture but not the ten Acres of Wood and a Prohibition was granted and it was said it was not material to shew by what Title the Patron had the Land but if he had the same in any other manner the Parson is to shew it and a Prohibition was granted Green and Pipes Case 1218. Suit was for the Tythes of an house in London a Prohibition was paid upon a Surmise that the house was a Priory which was discharged or Tythes by the Popes Bull and the Statute of 31 H. 8. which gave their Possessions to the Crown did ordain that the King and his Patentee of such Lands should be discharged of Tythes yet a consultation was awarded because by a Latter Statute viz. 37 H. 8. c. 1. all houses in London shall pay Tythes according to their Ordinances and that Statute extends to all houses and none excepted but the house of Noblemen Leâ—gh and Woods Case 1219. Resolved if the Owner sets forth his Tythes and a Stranger takes them no Suit shall be for the same in the Spiritual Court But if the Owner himself after he hath once set forth his Tythes takes them away again the Parson may sue him in the Spiritual Court for the Tythes Beadle
Jac. before the Lease made acknowledged a Statute to I. S. of 200 l. who died and that his Executors sued execution upon the Statute and that the Plaintiff the Lessor beng Sheriff returned that H. was seised of the Land in Fee at the time of the Statute acknowledged and that the ousted the Defendant and put the Executors in possession of the Land and demanded Judgment if upon this answer so retorned by the Plaintiff himself he should pay the Rent and because he did not shew that an Inquisition issued and was taken for the extent the eviction pleaded of the Lease was not good and Judgment was given for the Plaintiff 1187. A. was possessed of a Ship lying at Anchor at Lym-house I. S. a Merchant of Lyn seised the Ship with the Tackle at Lym-house and sued A. in the Court of Admiralty setting forth that he was possessed of the Ship upon the Sea infra jurisdictionem Curiae Admiralitatis A Prohibition was granted in this case for that it did not appear to the Court that any wrong was done upon the Sea and they agreed that Lyn-house was infra corpus Comitatus and not within the Jurisdiction of the Admiralty Lee and Arrowsmiths Case 1188. Debt for 300 l. and counted upon many Emissets and upon a Simul computasset and that all the particular Sums amount to 300 l. The Jury found Debt for 40 l. only and no debt for the residue there were variances betwixt the original which was 300 l. and the particulars which amount to 29 l. The Court sad it was no default in the Clerk but in the Client himself who did not well instruct him in the particulars but upon the Oath of the Attorney that he instructed the Clerk to declare upon all the Emissets and to make a supply upon the Insimul computaverint of the Residue the Declaratton was amended and Judgment was given for the Plaintiff Loder and Samuels Case 1189. In a Replevin the Defendants avowed for an Amercement of 10 l assessed in a Leet for not repairing of a way which by custom they ought for to repair It being found for the Avowants the Jury assessed costs and damages It was objected that the costs and damages ought not to be given by the Statute of 21 H. 8. which did not extend to Amercements in Turnes or Leets but it was holden the costs and damages were well assessed vide Cook 8. part Greaslys Case and Joyners Case that the Avowment for an Amercement in a Leet should have costs and damages Sir George Sherly and Underhills Case 1190. Quare impedit The Plaintiff declared that he was seised of the Mannor of N. and that the Advouson of the Viccarige was appendant to the Mannor The Defendant made title to the Advowson as appendant to the Rectory impropriate of N. and then it came to the Crown by the Statute of Dissolution and that the Queen granted to him the Rectory with the Advowson of the Vicarige absque hoc that the Advowson of the Viccarige was appendant to the Mannor Resolved that the Advowson of the Viccarige of Common right is Appendant to the Rectory but it may be Appendant to the Mannor as if the Rectory before the appropriation was Appendant to the Mannor the Advowson of the Vicarige may well be reserved to the Patron and so shall be Appendant as the Advowson of the Rectory was Eyre and Bannisters Case 1191. In ejectione firme A challenge was to the array because the Sheriff was chosen by the Lessor it was adjudged it was no principal challenge but a challenge for favour only But it was said in this Case That if the â—ease had been ended to be made for tryall of the Title and that the Action was preferred at the costs of the Lessor then been a principal chalenge but not without such amendment Pauton and Chowles Case 1192. Debt by an Administrator of Elianor upon an Obligation the Defendant said the intestate in her life by the name of Ellen released to him all Debts and demands The Plaintiff replyed Non est factum Elianorae which was so found by verdict It was said that the same being matter in Law ought not to have been found by verdict Resolved that none can make an Obligation or other writing by a contrary name of Baptisme and said that Non est factum was a proper Issue and that the Jury had found according to Law and if the Jury had found the special matter yet it should not be adjudged to Bar the Plaintiff Dibly and Doares Case 1193. Trespass by the Plaintiff against Tho. Doare and Barthol Doare and the Plaintiff declared in Trespass against Tho. Clausum fregit averia cepit imparcavit It being found for the Plaintiff many exceptions were taken in stay of Judgement viz. the Declaration was that Tho. simul cum Bartholmew Clausa fregerunt in the plural number 2. That the Register is curia sua sine rationabili Causa imparcavit which works sine rationabili Causa were omitted in the Declaration 3. One of the Juries names in the venire was written Edrus without any dash and in the distresse was Edwardus all which exceptions were over-ruled by the Court and Judgmene was entred for the Plaintiff Colt and the Bishop of Coventry and Litchfields Case 1194. Quare Impedit The Plaintiffs declared that W. H. was seised of the Advowson of Clision Camvile in Fee and granted the next Avoidance to them and that the Church became void by the death of W. W. for which they presented and the Defendant did disturb them The Defendant said that W. W. was Incumbent and accepted another Benefice of the value of 8 l. by which the first became void and pleaded the Statute of 25 H. 8. of Dispensations to be granted by the Archbishop and that the Archbishop granted to him a Dispensation to hold the Church with his Bishoprick and with one or more Benefices with Cura in commendam of what quality value or dignity with a Proviso and all those taken in commendam did not exceed 200 l. in the Kings Books and pleaded the confirmation of the Dispensation by the King under the Great Seal and that he took this Benefice and traversed that the Church was void by the death of W. W. upon which Plea the Plaintiffs demurred in Law The Case for matter of difficulty was adjourned out of the Common Pleas into the Exchequer Chamber there it was argued by eight of the Judges that Judgment ought to be given for the Plaintiff and that both the Dispensation and the Commendam granted to the Bishop were void in Law and that principally for seven Reasons Vide the Causes and Reasons in the Abridgment of this case out of Hobarts Reports fol. 141. to 164 and Abridgment in my Grand Abridgment in the Title of Appropriations fol. 206 207 208. to which I refer you Cases of Prohibition Morice and Smiths Case 1195. Suit was by Husband and wife in the Ecclesiastical Court