Ralph
Marsh
against
John
Culpepper
.
RAlph
Marsh
brought
an
action
upon
the
case
against
Iohn
Culpepper
and
Anne
his
wife
,
for
an
Assumpsit
made
by
Anne
,
dum
sola
fuit
.
And
afterwards
the
Assumpsion
is
found
by
verdict
.
And
Davenport
moved
in
arrest
of
Iudgement
,
for
that
,
that
there
was
not
a
sufficient
consideration
;
for
whereas
the
wife
was
Administratrix
to
Goddard
her
first
husband
,
who
was
indebted
to
the
Plaintiff
(
for
so
the
Plaintiff
declared
)
and
that
he
intended
to
sue
the
wife
as
Administratrix
,
and
that
the
wife
requested
him
that
two
might
surveigh
the
account
between
her
husband
and
the
Plaintiff
,
to
which
the
Plaintiff
assented
,
and
that
two
surveighed
it
accordingly
,
when
it
appeared
that
the
debt
was
due
,
and
that
then
the
fore-acknowledgement
,
of
her
husband
to
be
so
indebted
;
In
consideration
of
the
premises
,
assumed
to
pay
the
debt
,
part
at
Michaelmas
,
and
the
other
part
at
a
convenient
time
after
:
But
there
is
noe
consideration
to
make
her
chargeable
,
de
bonis
propriis
,
as
their
purpose
is
to
make
her
,
(
by
their
Declaration
against
her
)
and
not
as
Administratrix
:
For
it
is
not
mentioned
that
in
consideration
that
she
had
assetts
,
or
that
the
Plaintiff
would
forbear
to
sue
her
,
or
otherwise
,
&c.
So
that
the
debt
of
her
husband
by
the
Assumpsit
cannot
be
changed
to
her
own
debt
.
And
it
is
not
like
Banes
case
,
Co.
Re.
9.
94.
For
there
the
Plaintiff
was
to
forbear
to
sue
him
;
and
for
that
assets
is
not
requisite
.
The
like
is
Beeches
case
,
15
Eliz.
in
that
Court
reported
,
New
Entries
,
fol.
2.
Richardson
of
the
same
opinion
,
because
there
is
not
any
consideration
,
nought
but
the
assent
of
the
wise
to
the
accompt
;
which
will
hardly
charge
her
de
bonis
propriis
.
See
Co.
lib.
6
,
41.
Thomas
&
Ux.
against
Thomas
Newark
.
THomas
and
his
wife
brought
Trespass
against
Tho.
Newark
for
beating
of
the
wife
,
and
taking
of
the
goods
of
the
husband
only
,
ad
damnum
ipsorum
;
and
afterwards
the
matter
was
found
by
verdict
;
and
it
was
moved
,
that
the
Declaration
was
nought
;
for
the
wife
cannot
joyn
for
a
Trespass
done
to
the
husband
alone
;
but
in
a
trespass
done
to
the
wife
alone
,
the
husband
ought
to
joyn
,
and
for
that
the
Court
awarded
,
quod
quere●…
nil
capiat
per
bill
.
But
it
was
said
by
Crook
and
Yelverton
,
if
ba●…on
and
feme
bring
trespass
for
the
beating
the
wife
,
the
husband
may
declare
for
a
trespass
done
to
him
,
ad
damnum
ipsius
,
&c.
But
it
was
said
by
Hutton
,
if
two
joyn
in
trespass
for
taking
goods
whereof
they
were
joyntly
possest
;
one
of
them
in
an
action
cannot
declare
for
taking
of
the
goods
of
him
alone
:
Which
was
agreed
by
Crook
,
&c.
Blackhall
against
Thursby
.
ONe
Blackhall
petitions
in
the
Court
of
Requests
,
to
compel
Thursby
.
Lord
of
the
Mannor
to
admit
him
to
a
Copyhold
surrendred
to
his
use
,
which
he
refused
before
to
doe
.
And
also
forbad
one
,
to
whom
the
Copyhold
was
demised
by
Blackhall
,
to
pay
him
any
rent
Vpon
which
it
was
decreed
that
Thursby
should
admit
him
to
a
Messuage
,
and
17
acres
,
whereas
the
Copy
was
of
a
Messuage
,
and
3
acres
;
and
also
that
Thursby
should
set
forth
the
bounds
of
the
Copyhold
,
which
he
had
defaced
and
removed
,
and
that
he
pay
the
rent
.
Hitcham
moved
for
a
prohibition
;
for
he
said
it
was
more
just
for
a
Court
of
Equity
to
compel
a
Lord
to
admit
his
Copyholder
;
for
before
admittance
he
cannot
have
an
action
,
and
he
has
no
remedy
at
the
Common-law
:
And
so
if
a
Copyholder
removes
or
defaces
the
bounds
of
the
Copyhold
,
it
is
proper
for
such
a
Court
to
design
them
.
To
which
the
Court
agréed
;
but
they
would
not
compell
him
to
admit
him
to
the
Messuage
and
17
acres
,
where
the
Copy
is
but
of
thrée
acres
,
which
would
be
unjust
;
unless
that
the
3
would
comprehend
the
other
14.
But
parcel
or
not
parcel
of
Copyhold
,
belongs
to
the
Common-law
to
try
.
But
the
Court
denied
the
prohibition
for
that
cause
;
for
the
Iustices
said
,
that
that
admittance
to
14
acres
does
not
bind
the
title
;
but
it
sets
at
liberty
as
to
that
.
But
if
they
had
decreed
;
that
he
should
be
admitted
and
also
enjoy
it
to
him
and
his
heirs
,
then
the
Decree
had
been
unjust
,
and
a
prohibition
for
that
.
But
for
part
of
the
Decree
which
touch'd
the
rent
.
It
was
agreed
by
the
Court
,
if
Thursby
receive
the
rents
,
the
decree
was
just
,
that
he
should
pay
it
;
but
if
he
did
not
receive
the
rents
,
nor
take
the
profits
,
but
only
forbad
the
Tenant
to
pay
the
rent
,
and
he
would
save
him
harmless
.
Then
if
it
was
decreed
that
he
should
pay
the
rent
,
a
prohibition
to
that
part
should
be
granted
.
And
Harvey
Iustice
in
that
case
said
;
That
he
knew
it
to
be
adjudg'd
,
that
a
surrender
,
with
the
appurtenances
,
would
pass
land
;
And
of
a
Messuage
and
3
acres
would
pass
more
acres
;
if
divers
Copies
successively
have
been
so
.
And
upon
questioning
of
Blackhall
by
the
Chief
Iustice
for
saying
,
that
after
there
was
a
Decree
in
the
Court
of
Equity
,
an
Order
of
the
Common-bench
could
not
supersede
the
Execution
of
it
.
And
Iustice
Yelverton
declared
,
That
when
he
was
in
the
circuit
at
York
,
a
poor
man
who
sued
before
him
in
forma
pauperis
was
arrested
by
process
from
the
Council
of
York
.
And
that
upon
notice
of
it
,
he
commanded
a
writ
of
privilege
to
be
made
for
him
,
but
the
Officer
of
the
Council
would
not
obey
it
;
upon
which
he
claps
in
a
Habeas
Corpus
returnable
at
a
certain
hour
;
and
the
Officer
came
without
the
body
,
and
refused
to
deliver
the
prisoner
;
and
said
that
he
had
not
power
to
controll
the
process
of
the
Council
.
And
upon
that
he
set
a
fine
upon
him
of
40
l.
and
his
Act
was
approv'd
on
by
the
whole
Court.
For
every
one
that
sues
before
the
Assize
,
ought
to
have
free
egress
and
regress
,
and
staying
while
his
business
was
ended
:
And
afterwards
the
Lord
President
said
to
Yelverton
,
that
he
would
complain
to
the
King
and
Privy
Council
of
him
,
for
that
he
had
transgressed
his
authority
and
power
.
And
the
Court
said
that
they
would
justifie
it
,
&c.
Smith
against
Doctor
Clay
.
HEnden
moved
for
Doctor
Clay
Viccar
of
Hallifax
,
that
a
prohibition
might
be
granted
to
the
High
Commissioners
of
York
For
that
,
that
these
Articles
by
one
Smith
were
preferred
against
him
,
&c.
First
that
he
read
the
holy
Bible
in
an
irreverent
and
undecent
manner
,
to
the
scandal
of
the
whole
Congregation
.
Secondly
,
that
he
did
not
doe
his
duty
in
preaching
;
but
against
his
Oath
,
and
the
Ecclesiastical
Canon
had
neglected
for
sundry
mornings
to
preach
.
Thirdly
,
that
he
took
the
Cups
and
other
Vessels
of
the
Church
,
consecrated
to
holy
use
,
and
employed
them
in
his
own
house
,
and
put
barm
in
the
Cups
,
that
they
were
so
polluted
,
that
the
communicants
of
the
Parish
were
loath
to
drink
out
of
them
.
Fourthly
,
that
he
did
not
observe
the
last
fast
,
proclaimed
upon
the
Wednesday
,
but
on
the
Thursday
,
because
it
was
an
Holyday
.
Fifthly
,
that
he
retained
one
Steveson
in
one
of
the
Chapels
of
ease
,
who
was
a
man
of
ill
life
and
conversation
(
scilicet
)
an
Adulterer
,
and
a
Drunkard
.
Sixthly
,
that
he
did
not
catechise
according
to
the
Parish
Canon
:
but
only
brought
many
of
Dr.
Wilkinsons
Catechisms
;
for
every
of
which
he
paid
2
d.
and
sold
them
to
his
Parishoners
for
3
d.
without
any
examination
or
instruction
for
their
benefit
.
And
that
he
,
when
any
Commissions
were
directed
to
him
,
to
compel
any
person
in
his
parish
to
do
penance
,
he
exacted
mony
of
them
,
and
so
they
were
dismissed
,
without
inflicting
any
penalty
upon
them
,
as
their
censure
was
.
And
that
he
and
his
servants
used
divers
menaces
to
his
Parishioners
,
and
that
he
abused
himself
,
and
disgrac'd
his
function
,
by
divers
base
labours
(
scilicet
)
He
made
mortar
,
having
a
leathern
a
prou
before
him
,
and
he
himseif
took
a
tithe
Pig
out
of
the
Pigsty
,
and
afterwards
he
himself
gelded
it
.
And
when
he
had
divers
presents
sent
him
,
as
by
some
,
flesh
,
by
some
fish
,
and
by
others
ale
,
he
did
not
spend
it
in
the
invitation
of
his
friends
and
neighbours
,
or
give
it
to
the
poor
;
but
he
sold
the
flesh
to
Butchers
,
and
the
ale
to
Alewives
again
;
And
that
he
commanded
his
Curat
to
marry
a
couple
in
a
private
house
,
without
any
licence
,
and
that
he
suffered
divers
to
preach
,
which
peradventure
had
not
any
licence
,
and
which
were
suspected
persons
,
and
of
evil
life
.
It
was
said
by
Henden
,
that
they
cannot
by
the
Statute
of
primo
Eliz.
cap.
1.
meddle
with
such
matters
of
such
a
nature
,
but
only
examine
heresies
,
and
not
things
of
that
nature
,
and
that
the
High-Commissioners
at
Lambeth
,
certified
to
them
,
that
they
could
not
procéed
in
such
things
;
and
advised
them
to
dismiss
it
;
But
they
would
not
desist
,
and
the
Iudges
,
Richardson
being
absent
,
granted
a
prohibition
,
if
cause
were
not
shewed
to
the
contrary
.
Note
,
it
was
said
by
the
Iustices
,
a
discontinuance
could
not
be
after
verdict
.
Humbleton
against
Bucke
.
THeophilus
Humbleton
was
Plaintiff
in
an
Assumpsit
against
Bucke
,
and
declares
that
whereas
there
was
a
controversie
between
one
Palmer
,
who
pretended
to
be
Lord
of
the
soyl
,
and
the
Inhabitants
of
such
a
Village
concerning
Common
in
ripa
maritima
,
which
Palmer
claimed
to
be
his
own
soyl
.
The
Tenants
claim
common
there
,
and
a
liberty
to
cut
grass
,
and
make
hay
of
it
,
and
to
carry
it
away
.
Palmer
incloses
the
soyl
;
Humbleton
enters
upon
the
place
enclosed
,
and
also
takes
the
grass
,
being
one
of
the
Tenants
:
And
Palmer
brought
a
Trespass
against
him
,
and
then
Bucke
assumes
to
the
Plaintiff
,
in
consideration
of
a
Iugg
of
Beer
,
and
in
consideration
that
the
Plaintiff
in
the
Trespass
hanging
against
him
,
would
plead
a
Plea
in
maintenance
of
their
title
of
Common
,
he
immediatly
would
pay
to
him
the
half
of
his
expences
;
or
if
he
failed
of
that
,
he
would
pay
him
forty
pounds
.
And
further
,
he
said
,
that
he
pleaded
not
guilty
in
that
action
of
Trespass
,
which
was
found
for
him
;
and
that
he
expended
so
much
money
,
the
half
of
which
the
Defendant
refused
to
pay
to
him
,
&c.
The
Defendant
pleads
non
defendit
sectam
in
maintenance
of
their
Common
,
which
was
found
against
him
.
And
Davenport
moved
in
arrest
of
Iudgement
;
because
that
he
ought
to
have
pleaded
such
a
Plea
,
by
which
the
title
of
Common
might
come
in
question
;
but
when
he
pleads
not
guilty
,
he
disclaims
the
matter
of
Common
:
And
also
the
word
immediatly
is
not
to
be
taken
so
strictly
,
that
he
should
pay
the
money
in
the
same
instant
,
&c.
But
the
Plaintiff
must
declare
what
costs
he
had
expended
,
and
then
he
shall
have
reasonable
time
by
the
Statute
to
pay
the
money
.
But
Athowe
answered
,
that
the
verdict
which
was
in
the
Kings
Bench
helps
him
;
For
it
was
there
found
,
that
that
land
was
the
Kings
wast
,
and
that
Palmer
was
not
owner
of
the
soyl
,
and
therefore
for
that
his
plea
was
good
:
for
the
title
of
Common
cannot
come
in
question
.
Richardson
Chief
Iustice
said
,
that
that
is
not
a
maintenance
of
the
title
of
Common
against
Palmer
.
First
,
he
cannot
give
that
verdict
in
evidence
,
in
a
prescription
for
the
Common
;
and
the
maintenance
by
that
Plea
of
not
guilty
is
for
the
soyl
,
and
not
for
the
Common
;
and
whoever
is
owner
of
the
soyl
,
the
title
of
Common
is
not
specially
against
Palmer
,
but
it
is
general
against
every
one
in
the
world
.
And
so
was
the
opinion
of
Harvey
and
Crook
:
And
Crook
said
,
that
although
the
verdict
had
found
the
Assumpsit
,
and
so
admitted
,
that
that
plea
was
for
maintenance
of
the
title
;
yet
that
shall
not
bind
us
.
For
if
a
verdict
finds
matter
which
is
repugnant
,
or
a
thing
which
cannot
come
in
question
,
it
shall
not
bind
us
.
But
by
Iustice
Yelverton
it
was
said
;
That
because
the
Iury
have
found
the
Assumpsit
,
they
have
admitted
all
the
residue
;
And
for
that
we
do
not
doubt
of
it
no
more
than
the
Iury
have
decreed
.
As
in
an
Ejectione
firm
.
If
they
be
at
issue
upon
the
collateral
matter
,
it
shall
be
admitted
,
that
there
was
an
ejectment
,
and
so
it
was
adjudged
.
But
this
cause
was
deferred
to
another
time
,
to
be
argued
more
,
&c.
Meridith
Mady
against
Henry
Osan
,
&
aliis
.
MEridith
Mady
brought
debt
against
Henry
Osan
,
for
that
he
and
5
others
were
bound
to
perform
the
Arbitrament
of
thrée
elected
by
them
and
the
Plaintiff
concerning
all
tithes
and
all
other
matters
of
controversie
between
them
,
and
that
they
still
and
all
the
Parishioners
should
perform
and
stand
to
the
award
made
,
&c.
And
upon
breach
of
the
award
made
,
was
the
action
brought
:
For
the
award
was
,
that
when
any
of
the
Parishioners
clip
their
sheep
,
they
ought
to
give
notice
to
Mady
the
Parson
,
to
the
intent
that
he
or
his
Servants
may
be
there
:
And
the
Defendant
did
not
give
notice
,
&c.
The
Defendant
by
rejoynder
pleads
,
that
Allen
and
others
,
that
they
were
Deputies
to
receive
the
Tithe-wool
,
and
that
they
,
or
one
of
them
were
present
at
the
clipping
:
and
so
they
demur
.
Athowe
said
,
that
notice
ought
to
be
given
to
the
Parson
himself
,
for
perchance
he
would
be
there
himself
had
he
notice
.
And
for
that
,
the
breach
alleged
is
not
answered
.
And
also
he
said
,
that
they
,
or
some
of
them
were
present
,
and
does
not
name
him
as
he
ought
,
for
he
may
come
in
issue
,
&c.
Richardson
,
If
the
Arbitriment
was
made
for
some
things
within
the
submission
,
and
some
things
without
;
It
is
good
for
those
things
that
are
within
,
and
void
for
the
residue
;
And
although
the
Parishioners
did
not
submit
,
yet
it
is
good
,
because
the
six
are
bound
for
them
.
Hutton
said
that
the
Award
for
the
notice
is
not
good
;
for
it
is
not
well
assigned
,
where
the
notice
should
be
given
.
And
an
Arbitrement
ought
to
be
reasonable
,
but
it
is
unreasonable
that
he
ought
to
inquire
Mady
,
wheresoever
he
is
to
give
him
notice
,
as
Cook
77.
Salmons
Case
.
Crook
said
,
that
the
Award
is
good
,
and
it
shall
be
intended
,
that
the
Parson
is
alwaies
resident
in
his
Parsonage
,
as
a
Surrender
or
an
Attournment
shall
be
intended
upon
the
Land
,
and
it
is
not
requisite
to
name
any
place
.
And
it
seemed
to
Harvey
,
that
the
Arbitrement
was
good
,
although
that
all
the
Parishioners
had
not
submitted
to
it
.
Because
that
these
were
bound
for
them
.
18
E.
4.
22.
&
1●…
.
1.
And
Iudgement
was
afterwards
in
the
next
Term
given
for
the
Plaintiff
.
Iohn
Paston
against
William
Manne
.
IOhn
Paston
brought
an
Ejectione
firm
.
against
Manne
,
and
a
special
verdict
was
given
to
this
effect
,
(
scilicet
)
Edward
Paston
was
seised
of
the
Mannor
of
Bingham
,
parcel
whereof
was
the
Land
in
question
,
grantable
by
Copy
.
And
he
by
his
Deed
indented
,
in
consideration
of
a
Mariage
to
be
had
between
Tho.
Paston
his
Son
,
and
the
Daughter
of
I.
S.
covenanted
with
I.S.
to
stand
seis'd
of
the
Mannor
,
to
the
use
of
his
Son
for
life
,
and
after
to
Mary
the
wife
for
life
,
the
remainder
to
the
first
Son
between
them
in
tail
,
with
divers
remainders
over
.
The
Mariage
was
solemnised
,
and
they
found
moreover
,
that
there
was
a
Custome
,
that
the
Lord
might
have
liberty
of
fould
course
for
100
Sheep
,
throughout
all
the
Copiholdland
:
lying
in
the
East
and
North
field
,
the
Customary
places
and
Lands
in
these
Fields
not
being
inclosed
,
from
the
Feast
of
St.
Michael
,
to
the
Feast
of
the
Annunciation
,
if
the
grain
was
carried
in
by
that
time
;
Or
otherwise
from
the
time
of
the
carrying
in
to
the
Annunciation
,
if
it
be
not
sowed
with
seed
again
,
and
that
those
15
acres
in
question
,
be
in
the
Corn-field
.
And
that
Thomas
Paston
granted
that
Copihold
to
the
Defendant
in
Fee
,
and
that
in
14
Iacobi
,
the
Defendant
enclosed
the
Land
without
Licence
of
the
Lord
,
and
if
Licence
was
obtained
then
he
ought
to
have
paid
a
Fine
which
the
Lord
would
have
assest
.
And
if
any
of
the
Tenents
inclose
without
Licence
,
they
find
,
that
they
have
used
to
be
punisht
,
and
pay
those
penalties
,
which
the
Lord
would
assess
.
And
they
also
found
,
that
that
incloser
by
the
Copiholder
,
was
with
a
Ditch
of
six
foot
in
breadth
,
and
3
foot
in
depth
,
and
that
the
land
which
he
digged
out
,
was
but
to
make
a
Bank
upon
the
Land
,
upon
which
a
hedge
of
quick
thorn
was
set
,
and
that
four
gaps
were
left
in
the
inclosure
of
nine
feet
in
breadth
.
And
they
found
that
the
Defendant
did
not
at
any
time
compound
for
a
Fine
.
And
then
they
find
that
the
Copiholders
which
before
this
inclosed
without
Licence
,
were
amerced
,
and
commanded
upon
a
pain
,
before
a
certain
day
to
throw
up
their
inclosures
;
And
now
for
this
inclosure
Thomas
enters
for
a
forfeiture
,
and
dies
,
his
Wife
makes
a
Lease
of
it
,
and
the
Defendant
ejects
the
Lessee
,
Atthowe
held
that
he
had
forfeited
his
Copihold
,
for
that
inclosure
is
against
the
Custome
of
the
Mannor
,
which
is
found
.
For
the
Custome
is
the
life
and
soul
of
a
Copihold
;
as
it
is
in
the
4
Rep.
31.
Brownes
Case
.
The
breaking
of
that
is
a
forfeiture
,
and
make
the
Copiholder
have
an
Estate
at
will
meerly
,
whereas
before
he
had
an
Estate
not
meerly
at
the
will
of
the
said
Lord
,
but
secundum
volunt
.
domini
.
And
so
by
the
inclosure
the
Lord
cannot
have
his
fould
course
,
and
so
the
custome
is
broken
.
42
Ed.
3.
25.
For
not
doing
the
services
,
the
Lord
may
enter
and
have
the
Emblements
.
If
a
Copiholder
makes
a
feoffment
,
it
is
a
disseisin
;
for
which
there
may
be
an
Assise
of
novel
disseisin
de
libero
tenement
of
Lands
,
whereof
the
profits
,
or
of
the
Rent
issuing
out
of
the
Land
there
is
a
forfeiture
.
And
Littleton
said
,
that
a
rescous
Replevin
Enclosure
,
and
denying
the
Rent
is
a
Disseisin
.
And
what
is
a
Disseisin
of
a
Freehold
is
a
forfeiture
of
the
Copihold
.
Rescous
by
a
Copiholder
is
a
forfeiture
,
for
all
the
books
say
,
that
a
denial
of
a
rent
is
a
forfeiture
.
And
it
is
held
,
that
if
a
Copiholder
brings
a
replevin
,
it
is
a
forfeiture
,
and
the
Lord
may
enter
presently
;
But
if
he
avow
,
then
perchance
he
hath
dispensed
with
it
.
And
an
inclosure
is
more
strong
than
a
denial
,
11
E.
3.
Assise
88.
cited
in
Taverners
Case
,
4
Rep.
The
heir
cannot
have
an
Assise
before
entry
:
but
if
the
Defendant
menaces
him
,
or
stops
up
the
way
,
it
is
a
Disseisin
,
14
Ass.
plac.
19.
8
E.
2.
As.
374.
A
stopping
up
of
the
way
is
a
disseisin
;
but
if
he
can
go
another
way
,
he
can
have
nusance
29
Ass.
49.
But
it
will
be
objected
,
that
the
Lord
had
another
remedy
:
for
he
might
have
an
Action
of
the
Case
.
And
for
that
not
enter
for
a
forfeiture
.
But
an
Action
of
the
Case
does
not
restore
him
to
the
Freehold
,
but
give
dammages
only
.
And
if
an
Assise
be
brought
,
it
affirms
the
Disseisin
,
and
makes
forfeiture
;
and
that
agrees
Taverners
Case
,
That
where
several
Copiholds
were
granted
by
one
Copy
,
a
rent
denied
of
one
,
forfeits
that
and
not
the
others
.
But
admit
it
is
a
forfeiture
,
if
the
leaving
the
Gaps
dispence
with
it
.
And
it
seem'd
that
not
;
for
he
loses
the
profit
of
the
Fould-course
,
for
500
Sheep
,
would
tear
their
fleeces
by
such
a
narrow
passage
:
and
the
inclosure
is
an
impediment
to
hinder
their
spreading
in
their
feeding
;
And
so
every
one
also
may
inclose
,
and
leave
gaps
:
and
the
Lord
perhaps
,
compell'd
to
put
and
remove
the
Shéep
ten
times
in
one
day
,
and
so
the
Sheep
worse
at
night
than
in
the
morning
,
&c.
Secondly
,
if
the
Lord
had
given
Licence
,
then
he
would
have
had
a
Fine
,
but
he
would
so
be
his
own
Carver
.
And
the
Lord
had
no
remedy
for
a
Fine
upon
admittance
after
Surrender
,
4
Rep.
46.
He
had
no
remedy
there
by
Action
of
debt
,
nor
by
Action
of
the
Case
,
without
promise
to
the
Admittance
,
&c.
Lord
grants
a
Copihold
Escheat
,
he
ought
to
improve
his
Fine
before
;
or
he
hath
no
remedy
;
for
he
is
not
compelled
to
grant
the
Copihold
again
,
and
therefore
he
shall
have
what
Fine
he
will
.
And
it
is
not
found
also
who
may
inclose
paying
his
Fine
.
A
Lord
admits
a
Copiholder
for
life
with
remainders
;
the
admittance
of
Tenent
for
life
,
was
the
admittance
of
the
remainder
,
but
he
shall
have
his
Antefine
,
4
Rep
23.
And
if
they
may
inclose
paying
a
Fine
;
then
the
Lord
had
an
Estate
at
the
will
of
the
Tenents
.
Thirdly
when
it
is
found
that
the
Lord
amerced
and
commanded
upon
pain
,
&c.
that
is
no
mitigation
or
dispensation
of
the
forfeiture
.
For
ruinous
Houses
pull'd
down
is
a
forfeiture
,
without
Custome
to
the
contrary
,
Because
no
waste
lies
against
a
Copiholder
,
as
against
Lessee
for
years
,
And
yet
the
Lord
in
favour
may
amerce
such
a
Copiholder
if
he
will
;
and
that
is
no
dispensaition
but
an
affirmation
of
the
forfeiture
.
And
so
because
the
Lords
were
conscionable
and
would
not
take
the
forfeiture
,
that
does
not
prove
that
it
is
a
Dispensation
.
Fourthly
,
the
making
of
the
gap
and
hedge
of
that
latitude
,
&c.
is
waste
,
and
for
that
a
forfeiture
.
22
H.
6.
Waste
46.
There
it
is
agréed
,
that
if
Land
be
digged
to
make
a
Bank
,
and
if
more
be
digged
than
is
necessary
,
that
is
waste
,
if
it
be
not
cast
down
again
,
for
the
Land
might
be
made
barren
.
41
E.
3.
Waste
82.
There
it
is
not
waste
,
for
the
Land
is
better
than
it
was
before
;
But
it
is
not
better
if
it
be
arable
Land
,
for
the
Trees
and
Bushes
shadow
the
Sun
from
the
Land
.
Dyer
361.
And
if
none
had
been
folded
there
,
yet
it
should
not
have
been
waste
.
Fodder
in
Meadow
is
waste
:
but
there
it
was
found
by
the
special
verdict
,
that
the
Land
was
imbetterd
.
If
Lessee
for
years
does
so
,
it
is
a
forfeiture
,
2
H.
6.
17.
There
it
is
said
;
that
permitting
the
Land
to
lye
fresh
is
waste
;
But
thorny
is
no
waste
,
for
the
Less
may
grub
the
Thorns
up
,
and
it
shall
be
better
Land
;
wherefore
he
prayed
Iudgement
for
the
Plaintiff
.
But
Sergeant
Henden
argued
for
the
Defendant
;
and
conceived
that
in
the
whole
cause
pleaded
,
there
is
not
any
thing
in
it
which
makes
a
forfeiture
.
There
are
two
things
in
it
to
make
that
inclosure
and
waste
,
And
first
,
That
an
Inclosure
without
Licence
is
not
a
forfeiture
.
First
,
every
Act
that
makes
a
forfeiture
of
a
Copyhold
ought
to
be
a
dis-inheritance
to
the
Lord
,
&c.
Secondly
,
a
voluntary
Act
against
the
Custome
,
&c.
Thirdly
,
in
this
Case
there
is
not
any
Custome
found
which
makes
a
Forfeiture
;
And
for
that
any
Condition
in
Law
is
excluded
:
A
Copiholder
is
in
,
tenens
secundum
consuetudinem
manerii
,
and
therefore
an
Act
that
makes
a
forfeiture
ought
to
be
against
Custome
,
and
a
dis-inheritance
to
the
Lord
of
his
Copihold
;
and
not
of
a
Collateral
thing
.
As
a
Trespass
upon
the
Demesus
of
the
Lord
is
not
a
forfeiture
,
21
H.
7.
Kell
.
77.
9
Rep.
76.
Combes
Case
there
has
the
same
rule
.
The
Custome
fixes
his
Estate
so
long
as
the
Tenent
does
the
services
,
and
observes
the
Customes
.
Hill.
16
Iac.
Com.
Banc.
rot.
335.
Brettyes
Case
.
Two
Copiholders
are
,
and
one
release
to
the
other
,
is
no
forfeiture
.
Dyer
221.
One
part
of
the
Services
there
was
to
make
Presentments
,
and
if
he
refuse
it
is
a
Forfeiture
.
If
a
Copyholder
fell
Trees
it
is
no
Forfeiture
,
because
it
may
be
for
the
reparation
of
Houses
.
But
an
Act
afterwards
,
as
selling
them
,
may
cause
a
Forfeiture
,
9
H.
4.
Waste
39.
A
Copy-hold
is
not
forfeited
by
Outlawry
in
a
personal
Action
;
for
the
Lord
is
not
prejudiced
by
that
;
And
yet
the
King
shall
have
the
profits
,
by
which
the
Lord
is
estranged
from
the
Tenement
,
5
H.
5.
2.
New
Book
of
Entries
,
228.
Hill.
4
Iac.
rot.
172.
Com.
Banc.
in
the
end
of
the
Case
resolution
is
to
this
purpose
.
If
Copyholder
be
summoned
to
the
Court
,
by
common
Proclamation
or
express
notice
,
and
he
does
not
appear
,
it
is
no
Forfeiture
.
Because
it
is
but
a
failer
of
Services
,
and
no
deniall
;
And
for
that
neglect
he
may
be
punisht
and
fined
.
Secondly
,
it
was
resolved
,
that
non-payment
of
the
rent
,
although
it
be
a
failer
of
Services
,
or
if
he
had
said
he
could
not
now
pay
if
,
is
not
a
Forfeiture
;
But
to
forge
new
Customes
is
a
Forfeiture
,
for
that
tends
to
the
dis-inheriting
of
the
Lord
,
Dyer
228.
The
Case
of
pay
ment
of
a
Fine
which
admits
the
diversity
appears
Cook
lib
1.
4
28.
Now
this
inclosure
is
not
a
Dis-inheritance
,
or
a
voluntary
Act
to
estrange
him
from
his
Lord
.
And
then
the
Custome
ought
to
make
that
a
Forfeiture
which
is
not
so
found
.
And
it
was
a
rule
in
P.
19
Iac.
That
a
bare
Inclosure
is
not
a
Forfeiture
of
a
Copyhold
.
And
then
it
is
found
,
that
he
shall
not
inclose
without
Licence
,
But
it
is
not
found
,
that
if
he
should
inclose
without
Licence
,
it
should
be
a
forfeiture
.
And
there
is
neither
express
nor
tacite
condition
that
it
should
be
a
Forfeiture
.
And
then
it
is
found
that
he
may
amerce
and
command
that
the
Hedge
should
be
pulled
down
upon
pain
,
&c.
The
intention
is
not
that
he
had
two
remedies
;
And
it
is
not
to
be
found
in
our
Books
,
that
one
Act
causes
a
pain
,
and
a
forfeiture
also
.
And
so
the
custom
shall
be
taken
favourably
for
the
Copy-holder
,
and
strictly
for
the
Lord
;
for
a
forfeiture
is
odious
in
Law
.
4.
Rep.
9.
There
the
Custom
is
found
,
that
not
appearing
at
four
Summons
is
expresly
a
forfeiture
.
And
to
the
objection
that
is
made
,
that
he
had
not
any
remedy
for
his
Fine
;
the
Verdict
answers
that
,
that
he
may
put
a
pain
upon
him
.
Secondly
,
he
encloses
,
and
leaves
three
gaps
:
It
was
objected
,
that
an
Enclosure
was
a
disseisin
,
ergo
a
forfeiture
.
In
some
Cases
that
Enclosures
shall
be
disseisins
there
is
no
question
:
But
there
is
,
if
they
be
Enclosures
with
gaps
.
The
Enclosure
that
deprives
him
of
all
his
remedy
is
a
disseisin
in
Rent
,
but
otherwise
not
.
For
Littleton
says
,
if
he
enclose
,
that
he
cannot
distrein
:
I
conceive
this
diversity
.
If
a
Copy-holder
makes
a
disseisin
of
any
thing
appertaining
to
the
Copy-hold
,
it
is
a
forfeiture
;
for
then
he
doth
an
act
that
estranges
the
Lord
from
his
Tenant
;
but
if
the
Lord
had
any
profit
accrewing
out
of
the
Copy-hold
,
and
he
disseiseth
him
of
that
,
Whether
you
will
make
that
a
forfeiture
?
As
if
the
Lord
had
herbage
out
of
the
Copy-hold
,
a
disseisin
of
that
is
not
a
forfeiture
,
unless
it
be
particularly
by
Copy
of
the
Grant
.
The
making
of
the
Ditch
is
objected
to
be
waste
,
and
therefore
a
forfeiture
:
I
agree
if
it
be
waste
,
it
is
a
forfeiture
.
It
is
not
a
forfeiture
,
if
a
Copy-holder
dig
a
Marle-pit
and
Marles
his
Land
;
for
the
Land
is
imbettered
by
it
.
It
is
objected
,
that
it
is
a
forfeiture
at
Common
Law
,
22
H.
6.
41
E.
3.
waste
821.
If
Lessee
for
years
plough
a
Meadow
it
is
not
Waste
,
for
it
tends
to
a
matter
of
Husbandry
.
Natura
Brev.
title
waste
.
Dyer
361.
pl.
12.
Lessee
for
years
converts
Land
to
Hop
ground
:
It
was
the
opinion
of
Popham
Lord
Chief
Iustice
,
30.
Eliz.
that
it
was
not
waste
.
And
for
that
that
the
Land
by
this
Enclosure
is
imbettered
,
it
is
not
waste
,
and
the
Lord
had
no
prejudice
,
because
the
gaps
were
left
.
And
the
Court
said
,
that
it
is
to
be
presumed
,
that
all
the
Land
was
imbettered
by
this
Enclosure
,
if
it
be
not
expresly
shewed
to
the
contrary
.
Sed
adjournatur
,
&c.
Ralph
Marshes
Case
again
.
ATthome
said
,
that
the
consideration
also
is
good
,
and
there
is
a
double
consideration
of
the
Premises
.
For
she
promised
to
pay
that
debt
,
part
at
Mich
&c.
So
there
was
a
day
given
,
or
it
was
due
presently
:
And
that
is
the
consideration
:
Crook
said
,
that
it
is
no
consideration
.
For
it
is
not
expressed
that
he
shewed
the
account
:
But
that
they
surveyed
it
,
which
is
not
but
an
implication
that
he
shewed
it
:
And
he
said
that
he
intended
to
sue
him
,
and
then
he
in
consideration
of
the
Premises
&c.
Which
was
a
thing
executed
before
the
obligee
shewed
the
obligation
to
the
Obliger
,
that
in
consideration
of
that
promise
to
pay
the
debt
is
not
a
good
consideration
.
In
consideration
that
the
Testator
is
indebted
,
&c.
I
will
pay
at
two
days
is
not
a
consideration
.
But
in
consideration
that
the
Testator
was
indebted
,
and
you
will
forbear
,
is
a
good
consideration
.
That
you
will
forbear
paululum
temporis
,
is
not
a
good
consideration
,
without
expressing
for
a
day
,
or
&c.
as
it
is
adjudged
,
&c.
Richardson
in
consideration
that
the
Testator
was
indebted
,
is
not
a
good
consideration
:
And
then
in
consideration
that
he
made
appear
that
the
debt
is
due
,
is
not
good
;
for
he
ought
to
do
that
before
it
can
be
paid
:
But
more
after
,
&c.
Abree
against
Page
.
ABree
brought
an
Action
against
Page
,
who
pleads
that
the
Plaintiff
had
released
to
him
after
the
Obligation
made
,
upon
which
Debt
is
brought
:
All
and
all
manner
of
Errors
,
and
all
manner
of
Actions
,
Sutes
,
and
Writs
of
Error
whatsoever
,
which
the
said
Iohn
for
any
matter
or
thing
,
&c.
And
I
the
said
Iohn
am
by
these
presents
excluded
of
Writs
or
Sutes
,
Actions
of
Error
,
or
Sutes
against
him
the
said
,
&c.
Vpon
which
the
Plaintiff
demurred
.
Amhurst
said
,
that
the
Action
is
barred
.
The
pretence
is
that
that
Release
extends
only
to
Errors
.
Littleton
said
,
the
Obligation
makes
the
Duty
presently
;
And
a
Release
of
all
Actions
shall
bar
him
.
8
Rep.
Althams
Case
.
And
Bullocks
Case
,
an
Obligation
shall
be
taken
more
strongly
against
him
that
makes
it
.
19
H.
6.42
.
Two
have
Goods
in
Ioynture
,
and
give
all
their
Goods
:
their
several
Goods
pass
also
.
And
if
two
grant
rent
,
their
several
rents
pass
also
,
according
to
their
several
Interests
;
And
then
he
said
it
should
be
a
bar
of
all
Actions
and
Sutes
,
and
that
amounts
to
a
Release
.
21
H.
6.
51
H.
6.
one
was
bound
to
save
a
Sheriff
harmless
against
I.
S.
And
he
pleads
that
he
was
taken
by
a
Capias
,
and
made
an
Obligation
,
and
that
he
kept
his
day
;
And
that
was
adjudged
a
good
Plea
:
Which
shews
,
that
words
not
formal
may
bar
an
Action
,
&c.
Richardson
said
,
If
the
Release
be
of
Actions
and
Sutes
Substantive
,
no
question
but
Debt
is
barred
,
and
that
Déeds
(
he
granted
)
should
be
taken
more
strongly
against
him
that
makes
them
.
He
agréed
to
the
Cases
put
by
Amhurst
.
But
more
after
,
&c.
Bowett
,
and
Langhams
Case
.
ELlen
Bowett
procured
a
Corpus
cum
Causa
out
of
the
Common-Pleas
to
the
Sheriff
of
London
;
who
returns
that
she
was
imprisoned
upon
a
Sute
against
her
by
George
Langham
as
a
Feme
sole
Merchant
according
to
the
Custome
there
.
Now
the
Truth
was
,
that
her
Husband
being
a
Vintener
was
prest
by
the
King
to
be
a
Souldier
:
and
goes
over-Sea
.
The
Feme
afterwards
takes
an
House
,
and
buys
Wine
of
Langham
,
who
trusted
her
,
supposing
she
was
a
Feme
sole
Merchant
.
Afterwards
the
Husband
returns
,
and
the
Wife
denies
to
pay
for
the
Wine
;
and
the
doubt
was
if
the
Feme
was
a
sole
Feme
Merchant
by
the
Custome
so
,
or
not
:
and
the
words
of
the
Custome
were
read
.
That
where
the
Wife
meddles
in
a
Trade
,
in
which
the
Husband
may
meddle
nothing
,
she
shall
have
all
advantages
,
and
shall
be
sued
as
a
Feme
sole
Merchant
,
&c.
But
by
Richardson
and
Yelverton
,
Shee
is
not
a
Feme
sole
Merchant
within
the
Custome
;
For
her
Husband
exercises
himself
the
same
Trade
.
And
a
Feme
sole
Merchant
by
Yelverton
ought
to
be
the
Widow
of
a
Tradesman
who
takes
a
second
Husband
,
and
afterwards
exercises
the
Trade
of
the
first
Husband
.
Secondly
she
ought
to
be
a
Feme
Covert
,
and
not
a
Virgin
or
Maiden
.
Thirdly
,
she
ought
to
be
of
another
Trade
than
that
which
her
second
Husband
was
:
For
if
she
may
exercise
the
same
Trade
of
her
Husband
when
he
is
over
the
Sea
:
the
Husband
may
go
over
Sea
and
return
within
a
year
,
and
then
she
is
a
Feme
Covert
,
&c.
And
so
make
her
a
Feme
Sole
or
Covert
at
his
pleasure
.
And
Richardson
and
Yelverton
said
,
that
that
would
be
a
prejudice
to
all
the
Wives
in
London
,
so
that
they
would
never
be
fréed
from
imprisonment
.
But
Crook
,
Hutton
,
and
Harvey
to
the
contrary
.
And
they
said
that
if
the
Husband
meddle
with
the
Trade
of
his
Wife
,
then
she
is
not
chargeable
as
a
Feme
sole
Merchant
;
But
if
the
Husband
be
over
Sea
,
or
become
Banckrupt
or
relinquish
his
Trade
,
and
the
Wife
exerciseth
the
same
Trade
,
or
they
both
exercise
the
same
Trade
distinctly
by
themselves
,
and
not
meddle
the
one
with
the
other
,
She
is
a
sole
Merchant
;
or
otherwise
it
would
be
a
great
inconvenience
.
For
the
Wife
when
her
Husband
is
over
Sea
,
would
contract
and
gain
much
Goods
of
others
into
her
hands
,
and
the
parries
shall
not
have
any
remedy
.
But
Richardson
said
,
that
he
who
sells
ought
to
take
notice
,
whether
she
be
Feme
Covert
,
or
feme
sole
Merchant
by
the
Custome
or
not
,
his
peril
.
Ayliffes
Case
.
AN
Action
of
battery
was
brought
against
Ayliffe
and
his
Wife
,
for
a
Battery
done
by
the
Wife
upon
the
Plaintiff
.
And
the
pleading
was
,
that
the
Baron
and
Feme
came
and
defended
the
force
and
wrong
,
&c.
And
the
Baron
for
his
said
Wife
says
,
that
she
is
not
guilty
;
And
upon
that
the
Issue
was
joyned
,
and
found
for
the
Plaintiff
against
him
,
And
in
arrest
of
Iudgement
,
it
was
awarded
that
the
Issue
was
ill
joyned
;
For
the
Wife
there
pleads
nothing
.
So
there
was
nothing
done
at
that
time
with
the
Sute
.
Tayler
against
Philips
.
TAyler
,
and
Margaret
his
Wife
exhibit
a
Bill
in
the
Council
of
Marches
against
Phillips
and
his
Wife
;
For
that
the
Wife
of
Philips
had
sent
a
scandalous
Letter
to
the
Wife
of
Tayler
:
And
the
Letter
was
written
to
this
effect
(
ut
sequitur
)
Mrs.
Tayler
,
I
have
often
heard
of
your
clamorous
tongue
,
whereas
if
you
want
matter
against
your
Enemies
,
you
exclaim
of
your
Friends
,
and
give
out
,
that
I
am
jealous
of
my
Husband
with
Mrs.
Anne
:
he
was
never
so
precise
to
take
on
him
to
be
ashamed
how
he
liked
the
Border
of
a
Womans
Pettycoat
;
and
you
being
not
able
to
throw
the
first
Stone
at
him
,
need
not
to
have
been
one
of
his
Accusors
;
Neither
know
I
what
he
can
be
accused
of
,
unless
it
were
,
for
being
in
your
Chamber
before
you
were
up
:
Which
I
never
heard
was
prohibited
to
any
,
neither
know
I
why
it
should
be
to
him
.
You
may
challenge
me
for
a
Coward
,
that
I
meet
you
not
at
the
Crosse
,
as
you
have
challenged
others
,
having
been
a
Pupill
in
the
School
of
Scoulding
,
and
a
rare
Artist
therein
,
But
I
durst
not
have
done
it
,
lest
I
should
have
been
so
hoarse
,
that
it
might
have
have
been
said
,
I
had
the
Pox.
And
the
Court
proceeded
to
the
hearing
of
the
matter
,
and
sentenced
the
Defendant
to
be
imprisoned
;
and
fined
40
l.
to
the
King
,
and
40
l.
dammages
to
the
Party
.
And
Sergeant
Henden
moved
for
a
Prohibition
for
that
,
that
their
Instructions
are
,
Whereas
there
be
divers
Books
,
News
,
and
Tales
spread
abroad
,
and
Libells
made
,
by
which
the
Subjects
are
abused
,
and
the
Peace
may
be
broken
,
you
shall
proceed
against
such
Persons
,
till
the
Authors
be
found
out
,
and
they
be
punished
by
fines
,
imprisonments
,
papers
set
on
their
breasts
,
and
the
like
.
And
he
said
that
those
words
are
not
accomtable
at
Common-law
;
and
therfore
are
not
as
they
seem
within
their
Instructions
.
But
admit
that
,
yet
they
have
not
power
to
give
dammages
to
the
Party
.
Richardson
said
,
In
the
Star-Chamber
,
libellous
Letters
,
that
are
spitefull
and
scandalous
to
defame
any
,
although
that
they
bear
not
an
Action
at
Common-law
;
yet
they
are
punishable
there
,
and
also
they
give
dammages
to
the
Party
wronged
;
But
there
is
difference
betwéen
the
Star-Chamber
and
that
,
&c.
Henden
said
,
that
Magna
Charta
makes
the
difference
.
Quod
nullus
liber
homo
capietur
aut
imprisonetur
nisi
secundum
legem
terrae
.
So
by
the
Common
Law
and
their
instructions
,
they
have
not
power
to
give
damages
to
the
party
.
Richardson
chief
Iustice
,
said
that
no
prohibition
should
be
granted
,
for
the
Fine
of
the
King
;
for
they
have
power
in
that
Case
without
question
,
and
to
the
punishing
in
that
matter
.
And
if
they
err
in
Iudgement
for
the
Libellious
Letter
,
and
adjudge
it
to
be
Libellious
where
it
is
not
,
We
cannot
award
a
prohibition
,
nor
grant
error
.
But
for
the
damages
,
that
Court
differs
from
the
Star-chamber
:
for
the
Star-chamber
had
its
power
by
its
self
,
and
differs
from
the
Common
Law
;
But
that
Court
is
by
Commission
,
and
therefore
they
ought
to
follow
their
Instructions
.
And
therefore
a
prohibition
as
to
the
damages
shall
be
granted
.
And
Yelverton
also
was
of
the
same
opinion
;
but
he
said
,
there
was
another
clause
in
their
Instructions
;
And
for
that
a
prohibition
,
as
to
the
damages
shall
be
granted
,
Hutton
and
Harvey
said
,
That
if
the
sute
was
by
information
,
than
it
is
clear
that
damages
cannot
be
given
.
But
it
is
by
Bill
,
so
in
nature
of
an
Action
;
as
I
conceive
,
which
concludes
,
that
they
were
damnified
.
But
it
is
now
brought
too
late
to
grant
a
prohibition
,
where
the
parties
have
admitted
the
action
:
But
a
day
was
given
to
shew
cause
,
why
a
prohibition
should
not
be
granted
quoad
the
damages
.
And
so
they
concluded
for
that
time
.
Note
,
that
it
was
said
by
the
Court
:
That
if
money
be
lent
upon
Interest
,
and
the
Scrivener
who
makes
the
Obligation
,
reserves
more
then
8.
l.
in
the
100.
l.
That
,
that
is
not
an
usurious
Contract
.
See
the
cause
,
&c.
Eaton
and
Morris●s
Case
.
EAton
and
Morris
being
reputed
Churchwardens
(
but
they
)
never
took
any
Oath
,
as
the
Office
requires
,
present
a
Feme
Covert
upon
a
Common
report
for
Adultery
,
&c.
And
the
husband
and
wife
Libel
against
them
in
the
Ecclesiastical
Court
for
that
defamation
.
And
when
sentence
was
taken
,
and
ready
to
be
given
for
them
,
the
Churchwardens
appeal
to
the
Arches
:
and
for
that
,
that
that
presentment
cannot
be
proved
but
by
one
witness
,
they
sentenced
the
Baron
and
Feme
.
And
now
Ward
who
that
term
was
made
a
Serjeant
by
a
special
call
,
moved
for
a
prohibition
:
but
it
was
denied
by
the
Court
;
for
they
were
Plaintiffs
first
.
And
also
it
is
a
cause
which
this
Court
had
not
any
Conusance
of
.
Marshes
Case
before
.
MOre
of
Marshes
Case
which
is
before
.
Richardson
,
Hutton
,
Harvey
and
Yelverton
said
,
That
the
consideration
also
is
good
.
For
although
that
it
be
not
expressed
that
the
Plaintiff
himself
shewed
the
accounts
;
yet
it
appears
fully
,
that
they
were
upon
the
request
of
the
wife
viewed
.
And
it
shall
be
intended
by
Common
presumption
that
the
Plaintiff
himself
shewed
them
,
for
he
had
the
custody
of
them
,
and
is
owner
of
them
.
And
the
Books
of
Merchants
are
their
secrets
and
treasure
:
and
they
will
not
shew
them
by
their
good
will
.
Now
it
is
not
like
to
the
case
of
an
Obligation
;
for
there
the
certainty
of
the
debt
was
before
,
and
he
was
compellable
to
shew
it
.
But
the
certainty
here
cannot
appear
without
great
search
and
labour
,
and
there
can
be
no
compassion
to
shew
their
Books
.
And
by
Hutton
Iustice
:
There
is
no
question
,
but
,
if
the
promise
had
been
made
after
the
Sute
commenced
,
it
ha●…
been
good
.
No
question
by
Richardson
,
and
it
is
agreed
by
all
,
That
if
the
Defendent
had
required
the
Books
to
be
brought
to
his
house
,
or
to
another
place
,
it
should
have
been
good
:
And
there
is
not
any
difference
,
although
the
Books
were
shewen
in
the
shop
by
the
servant
;
for
he
permitted
his
Books
to
be
viewed
,
&c.
And
Yelverton
said
,
that
Beechers
Case
and
Banes
Case
is
more
infirm
than
this
Case
is
:
And
yet
adjudged
there
to
be
good
:
And
so
it
was
awarded
that
Iudgement
should
be
entred
for
the
Plaintiff
:
Si
non
,
&c.
Of
a
Communication
of
Marriage
.
A
Communication
between
I.S.
and
A.
was
of
the
Marriage
of
I
S.
being
possessed
of
a
term
for
years
,
and
of
certain
goods
,
promised
to
A.
that
if
she
would
be
married
to
him
,
and
they
had
issue
a
son
,
that
he
should
have
the
term
:
If
a
Female
,
that
she
should
have
the
moyetie
of
the
goods
.
And
after
they
intermarry
,
and
have
issue
B.
a
daughter
.
The
husband
dies
,
and
B.
brings
an
action
upon
the
Case
against
the
Administrator
of
I.S.
By
the
Court
,
she
cannot
bring
the
action
,
unless
as
Administratrix
of
A.
or
in
the
name
of
A.
And
the
Case
of
Stafford
was
recited
.
Where
there
was
a
Communication
between
Stafford
and
a
woman
;
That
if
she
would
marry
with
him
,
that
Stafford
would
leave
her
at
his
death
100.
l.
And
after
the
intermarriage
and
death
of
the
husband
,
in
an
action
brought
by
the
wife
,
the
question
was
,
whether
the
promise
was
extinguisht
by
the
intermarriage
.
And
after
grand
disputes
,
it
was
resolved
,
that
the
intermarriage
was
but
a
suspension
of
the
promise
.
And
so
it
was
concluded
.
Kitton
against
Walters
.
KItton
brought
debt
upon
the
Statute
of
5.
Eliz.
cap.
9.
for
Perjury
,
against
Walters
,
for
an
Action
of
Trespass
,
for
Battery
was
brought
against
him
by
I.
S.
and
he
pleaded
not
guilty
,
and
that
the
Defendant
was
brought
as
a
witness
:
And
that
he
falsely
and
corruptedly
deposed
,
and
did
not
speak
voluntarily
,
that
the
Plaintiff
in
the
Trespass
was
wounded
and
beaten
,
&c.
And
that
he
could
not
labour
for
half
a
year
,
&c.
And
upon
the
general
issue
pleaded
,
it
was
found
for
the
Plaintiff
;
and
Hendon
moved
to
have
Iudgement
.
But
it
was
objected
,
that
the
party
grieved
shall
not
have
that
Action
;
for
that
he
did
not
say
,
voluntarie
deposuit
,
&c.
For
although
that
he
falsly
deposed
,
wherein
voluntary
is
not
,
but
a
conclusion
,
and
voluntas
ought
to
be
in
the
premisses
:
and
corruptive
does
not
include
that
;
and
so
was
the
opinion
of
the
whole
Court
.
And
it
was
awarded
,
that
the
Plaintiff
,
nil
capiat
per
breve
.
A
servant
of
a
Bayliffs
Case
.
IT
was
awarded
by
the
Court
,
that
where
a
Servant
of
a
Bayliff
of
a
Franchise
was
sworn
to
serve
a
Process
,
and
by
deputation
from
the
Bayliff
,
he
ought
not
to
have
served
a
Process
,
but
to
such
a
sum
:
And
he
serves
a
Process
of
a
greater
sum
without
any
warrant
,
and
after
levies
the
money
,
and
parts
with
it
:
That
the
Bayliff
shall
be
chargeable
,
Quod
nota
.
Beare
against
Hodge
.
BEare
was
Plaintiff
against
Hodge
for
taking
of
his
Cattel
.
The
Defendent
was
known
as
Bayliff
to
Thomas
Wise
,
who
was
seised
of
twenty
acres
,
&c.
(
whereof
the
Land
in
question
was
parcel
)
in
Fee
.
And
that
it
was
Leased
to
Harris
for
99.
years
,
if
he
and
his
two
sons
should
so
long
live
,
and
rendring
a
Rent
at
the
four
usual
Terms
in
the
year
;
and
the
best
beast
at
the
death
of
every
one
of
the
three
in
the
name
of
an
Herriot
,
or
5.
l.
at
the
election
of
the
Lessor
.
And
now
for
Rent
arrear
at
Michaelmas
,
and
for
an
Heriot
after
the
death
of
Harris
,
he
avowed
,
&c.
The
Plaintiff
confesses
the
Lease
and
reservation
,
and
as
to
the
Heriot
,
he
demurred
.
But
for
the
Rent
he
said
,
that
he
tendered
the
Rent
upon
the
Land
toward
the
latter
time
of
Michaelmas
day
:
and
that
none
was
there
to
receive
it
.
And
that
afterwards
he
tendered
it
to
the
Lessor
himself
,
out
of
the
Land
,
and
he
refused
it
;
And
that
after
that
time
no
demand
was
made
;
but
that
he
,
after
the
tender
alwaies
was
and
yet
is
Tenent
,
&c.
and
brings
the
mony
into
Court
;
And
upon
that
he
demurred
.
Henden
said
,
The
Avowant
may
distrein
without
any
new
demand
;
and
that
Case
had
been
adjudged
in
this
Court
before
.
For
although
that
the
Rent
be
tendered
,
yet
it
remains
due
notwithstanding
;
and
then
he
is
able
to
distrain
.
15
Iac.
in
this
Court
,
rot.
710.
Crowley
brought
a
Replevin
against
Kingsmill
,
who
avowed
,
For
that
the
Plaintiff
held
of
him
by
Fealty
and
10
s.
rent
.
And
for
the
Rent
he
distreyned
the
Plaintiff
.
And
that
at
the
day
he
tendered
the
rent
upon
the
land
,
&
none
was
there
to
receive
it
,
as
it
is
said
,
&c.
And
upon
debate
it
was
adjudged
,
that
he
may
distrein
without
demand
.
7
rep.
29.
Maunds
case
,
you
may
see
that
a
Rent-seek
shall
not
be
distreined
after
tender
without
demand
;
For
if
by
his
demand
he
is
intituled
to
his
Action
,
then
there
ought
to
be
a
new
Demand
,
21
E
4.
17.
7
E
4.
40.
20
H.
6.1
.
cited
in
Pilkintons
Case
.
If
you
will
be
excus'd
of
the
Distress
;
there
ought
to
be
a
tender
of
the
Arrerages
at
the
time
of
the
Distress
.
Richardson
,
Hutton
and
Harvey
all
agree
,
That
the
Distress
is
good
to
have
the
Rent
,
but
not
to
recover
Dammages
;
because
he
does
not
all
he
might
do
.
And
Richardson
said
,
That
2
H.
6.
10
H.
6.
20
E.
4.
10
E.
4.
and
the
Case
in
the
Assise
,
and
the
whole
current
of
Books
was
to
the
same
purpose
.
Harvey
Iustice
said
,
that
if
a
tender
be
upon
an
Obligation
at
the
day
,
he
saves
the
penalty
;
but
if
another
Demand
be
afterwards
,
and
he
refuses
to
pay
:
he
cannot
plead
unque
prist
.
And
Iustice
Crook
cited
a
Case
in
the
Kings
Bench
16
Eliz.
betwéen
Cropp
and
Hambleton
,
where
a
Rent
upon
a
Lease
was
reserved
to
be
paid
at
Michaelmas
.
And
if
by
forty
daies
after
,
&c.
And
in
the
mean
time
,
after
the
first
and
before
the
last
,
the
Lessee
tenders
to
the
Lessor
himself
.
And
adjudged
that
it
saves
the
Forfeiture
.
For
it
is
for
his
ease
,
that
he
ought
to
tender
upon
the
Land
.
And
by
the
same
reason
also
,
when
he
hath
tendered
it
to
the
Person
himself
,
and
said
that
it
is
uncore
prist
.
and
will
demur
upon
that
,
and
not
take
advantage
of
his
non-tender
at
the
Distress
:
the
Dammages
are
saved
.
But
Yelverton
was
against
that
.
For
it
is
agréed
,
that
a
Distress
is
locall
,
so
then
we
cannot
sever
Dammages
,
when
the
Law
hath
coupled
them
,
and
made
incident
to
the
Distress
.
Sed
adjournatur
,
&c.
Tithes
.
ONe
libells
for
Tithes
of
Fish
which
is
due
meerly
by
Custome
.
And
the
Defendant
pleads
,
that
time
out
of
mind
,
&c.
they
have
paid
no
Tithes
of
that
.
And
Henden
Sergeant
moved
for
a
Prohibition
.
And
Richardson
replyed
and
said
,
it
is
méerly
a
Customary
Tithe
,
as
Rabbits
,
&c.
Whereof
no
Tithes
are
due
by
the
law
of
the
Land
,
and
a
Prohibition
shall
not
be
granted
.
But
all
the
other
Iustices
affirmed
,
that
there
shall
be
a
Prohibition
granted
;
because
that
the
Custome
ought
to
be
tryed
by
the
Common
law
,
and
they
make
a
difference
betwéen
modus
decimandi
which
is
also
Customary
,
and
where
there
is
a
Tithe
precedent
due
,
and
that
modus
converts
it
into
another
Duty
.
There
no
Prohibition
shall
be
granted
.
But
it
shall
be
tryed
in
the
spiritual
Court
,
whether
there
be
such
a
modus
decimandi
,
or
not
,
And
that
Case
in
the
Custome
makes
the
Duty
it self
.
But
he
alleged
the
modus
to
be
for
two
pence
,
and
the
Parson
for
thrée
pence
,
shall
be
tryed
by
the
Common
law
.
And
they
said
,
that
so
was
the
opinion
in
the
grand
Case
,
of
lead
ore
.
And
Hutton
said
,
that
so
it
was
determined
in
the
Case
of
one
Berry
,
for
tithes
of
Limekills
;
which
are
as
Minerals
,
and
are
not
tithable
by
the
Commmon
law
.
But
when
the
Custome
is
tryed
then
they
in
the
Ecclasiastical
Court
may
proceed
upon
it
.
Hartop
and
Tucke
against
Dalby
.
HArtop
and
Tucke
brought
a
Quare
impedit
against
Dalby
as
Incumbent
,
and
the
Issue
betwéen
them
was
;
Whether
the
Church
of
Essenden
was
appendent
to
the
Mannor
of
Essenden
,
or
in
gross
.
And
the
Plaintiff
to
prove
the
Appendancy
,
gave
in
evidence
,
that
H.
6.
seised
of
the
Mannor
and
Advowson
,
grants
to
Margaret
his
Wife
the
said
Mannor
habendum
una
cum
advocatione
for
her
Ioynture
,
&c.
It
was
said
that
if
the
advowson
was
in
gross
,
it
could
not
pass
so
,
not
named
in
the
Premises
.
But
of
an
advowson
appendent
otherwise
it
is
.
As
it
was
agréed
in
38
H.
6.
36.
Abbess
of
Syons
Case
,
which
was
granted
by
the
whole
Court.
Henden
to
disprove
that
evidence
,
alleged
,
That
the
Advowson
being
made
any
time
in
gross
,
It
can
never
be
appendent
again
.
And
he
shewed
also
how
H.
3.
was
seised
of
that
Mannor
with
the
Advowson
,
and
that
he
granted
the
Mannor
to
I.
S.
for
life
,
excepta
advocatione
.
By
which
Grant
it
seem'd
to
him
,
that
it
became
in
gross
.
And
said
that
the
Iudgement
of
the
Case
in
38
H.
8.
38.
was
for
that
cause
,
and
that
they
did
not
ever
find
it
contradicted
.
And
so
totis
viribus
be
maintained
that
to
be
in
gross
,
But
all
the
Iustices
were
against
him
,
And
that
that
is
not
but
a
disappendency
pro
quodam
tempore
.
And
so
was
the
better
opinions
in
38
H.
6.
as
the
Case
is
in
Dyer
33
H.
8.
48.
6.
of
a
Villain
.
If
the
King
grants
the
Demesus
of
a
Mannor
for
life
;
After
the
death
of
the
Lessée
,
it
is
a
Mannor
again
.
And
if
an
advowson
appendent
be
granted
for
life
;
After
the
Lessee
it
becomes
an
Appendent
again
.
And
so
if
a
Mannor
with
the
Advowson
descend
to
two
Copartners
;
And
the
Advowson
is
allotted
to
one
,
and
the
Mannor
to
the
other
.
If
there
the
Sister
who
hath
the
Advowson
die
without
Issue
:
it
is
then
appendant
;
and
yet
there
was
a
severance
in
perpetuity
.
And
Yelverton
went
to
the
Iustices
of
the
Kings
Bench
to
have
their
opinions
.
And
they
all
agreed
,
that
it
was
but
a
temporal
disappendency
during
the
life
,
without
doubt
.
Bramston
said
,
the
Mannor
is
granted
and
the
Advowson
by
E.
6.
to
the
Lord
Saint
Iohn
,
to
be
held
by
several
tenures
,
The
Mannor
in
Chivalry
,
and
the
Advowson
in
soccage
,
which
is
a
strong
presumpsion
,
that
the
Advowson
was
in
gross
.
But
the
Iustices
agreed
,
that
there
may
be
several
Services
,
and
yet
the
Mannor
and
the
Advowson
nor
severed
.
And
a
Mannor
may
be
granted
,
parcel
to
be
held
by
one
Tenure
,
and
parcel
to
be
held
by
an
other
Tenure
,
and
yet
remain
intire
.
And
afterwards
verdict
was
given
for
the
Plaintiff
,
&c.
Viner
and
his
Wife
against
Lawson
.
VIner
and
his
Wife
libells
against
Lawson
in
the
Councell
of
York
,
for
a
promise
to
pay
600
l.
to
the
Wife
,
for
her
Mariage
,
And
suggested
that
they
could
not
precisely
prove
it
by
one
witness
,
that
they
might
have
remedy
at
the
Common
Law
.
But
Lawson
denyed
the
promise
upon
his
Oath
:
and
yet
they
proceeded
,
and
Lawson
prayed
a
prohibition
,
and
it
was
granted
.
For
if
it
may
be
proved
by
some
witnesses
then
it
is
tryable
by
an
Action
of
the
Case
,
&c.
And
so
the
Iurisdiction
of
the
Common
Law
is
ousted
.
Abrees
Case
.
MOre
of
the
Case
which
you
saw
before
,
&c.
Henden
argued
that
that
release
is
but
special
,
and
that
it
extends
only
to
errors
.
And
first
,
for
that
the
intention
of
the
parties
is
principally
to
be
regarded
.
And
ex
praecedentibus
&
consequentibus
optima
fit
interpretatio
.
The
precedent
clause
is
only
a
release
of
errors
,
and
then
the
consequent
suits
:
And
in
the
last
clause
,
release
all
Actions
,
and
suits
of
error
before
.
Secondly
,
a
release
is
particular
,
and
may
be
by
inference
of
other
words
have
a
general
sense
;
yet
particular
construction
shall
be
made
,
Nisi
impediatur
sententia
or
intentio
partium
:
For
that
also
Suits
in
the
middle
of
the
clause
shall
have
relation
to
the
other
words
.
And
to
that
purpose
is
,
28
H.
8.
Dyer
19.
A
Grant
to
the
Lessee
,
that
he
shall
have
the
Rues
for
hedges
(
by
the
assignment
of
the
Bayliff
of
the
Lessor
)
and
for
necessary
fuel
to
burn
.
And
the
opinion
of
the
Court
was
that
he
should
have
the
fewel
also
by
assignment
,
9
E.
4.
43.
6.
A
man
submits
himself
to
the
Arbitrament
of
I.S.
de
omnibus
actionibus
personalibus
sectis
&
querelis
.
And
it
was
ruled
that
that
word
personal
refers
to
all
.
And
the
Case
in
question
is
the
very
Case
as
that
in
reason
,
10
H.
7.
8.
A
man
grants
the
Custody
of
his
Park
,
and
all
the
Windfalls
,
&c.
And
it
seemed
there
,
that
the
grant
of
Windfalls
is
absolute
:
for
that
,
that
the
intent
cannot
be
otherwise
,
Pasc.
36
Eliz.
banc.
Roy.
Betwéen
Pidgeon
and
Gibson
,
Norff.
The
Case
upon
the
special
verdict
was
in
Trespass
:
and
Pidgeon
the
Father
makes
a
feoffment
to
his
younger
son
,
by
which
he
grants
thus
,
Omnia
illa
messuagia
mea
&
tenementa
in
East
Bockham
,
that
late
were
Patris
mei
,
and
since
in
the
Tenure
of
N.
D.
and
C.
And
it
was
adjudged
,
that
that
land
did
not
pass
by
that
Feoffment
.
For
where
particular
words
are
in
the
end
,
the
middle
shall
never
be
taken
general
.
And
so
also
8.
rep.
150.
Althams
Case
.
There
it
was
resolved
,
that
where
it
had
particular
words
,
there
all
shall
be
of
the
same
nature
,
&c.
Thirdly
,
expende
circumstantias
&
intentio
nihil
intelligetur
,
which
may
be
intended
also
in
Suits
more
than
in
actibus
:
For
will
you
have
Action
particular
,
and
Suits
general
?
And
so
the
intention
appears
in
the
first
word
Errors
,
and
the
subsequent
are
but
declaratory
:
And
although
that
Suits
is
lastly
put
in
the
second
Clause
,
yet
there
it
is
not
but
a
surplusage
;
And
that
which
is
not
released
by
the
first
(
Suit
)
cannot
be
by
the
second
:
For
it
is
not
but
a
repetition
of
that
which
was
before
.
Richardson
,
the
words
are
,
All
Writs
,
Actions
and
Suits
by
error
.
Without
question
it
shall
be
intended
but
errors
:
Or
if
it
be
so
:
And
all
Actions
and
Suits
of
error
,
It
cannot
extend
but
to
errors
.
Hutton
.
In
that
release
there
is
not
any
word
of
debt
;
and
therefore
it
seemed
that
the
intention
was
not
to
release
other
actions
,
but
errors
.
And
it
was
adjudged
in
this
Court
in
a
Writ
of
Annuity
.
A
release
was
pleaded
that
the
Plaintiff
acquitted
him
,
of
one
payment
,
for
half
of
the
year
,
and
released
to
him
all
Actions
.
Suits
and
Demands
;
And
adjudged
,
that
that
release
does
not
bar
him
,
but
of
the
arrearages
of
a
year
.
A
Quid
juris
clamat
.
IN
a
Quid
juris
clamat
,
The
Tenant
was
adjudged
to
Attourne
.
And
the
question
was
,
whether
he
might
Attourne
without
being
sworn
in
Court
to
do
fealty
to
his
Lessor
.
And
Brownlow
,
chief
Prothonotary
said
,
That
all
the
Presidents
are
,
that
he
shall
Attourne
and
do
fealty
,
by
which
the
Tenant
was
sworn
to
do
fealty
:
and
the
fealty
was
taken
for
an
Authority
.
Beare
and
Hodges
Case
.
MOre
of
Beare
and
Hodges
Case
,
you
may
see
before
.
Davenport
said
,
that
a
man
cannot
distrein
upon
an
actual
demand
,
which
ought
to
be
to
the
person
,
upon
the
Land
.
And
for
that
,
the
distress
is
tortious
,
and
damages
by
the
Common
Law
are
given
to
him
,
who
made
the
Replevin
;
But
to
the
Avowant
damages
are
only
given
by
the
statute
of
7.
H.
8.
cap.
4.
21
H.
8.
19.
Now
the
Rent
is
not
in
question
(
for
it
was
taken
to
pay
it
)
but
the
dammages
:
and
the
Tenant
had
done
all
that
he
can
:
and
it
is
not
reason
that
he
pay
any
damages
.
And
the
diversity
between
a
Replevin
,
and
debt
for
Rent
after
such
a
tender
.
That
a
local
tender
excuses
the
damages
,
appears
H.
4.4
.
Tidthorps
Case
,
38.
E.
3.
13.
Debt
.
An
Obligation
is
indorsed
,
to
pay
the
money
at
Easter
:
and
he
tenders
it
at
the
day
to
the
Obligee
,
who
refuses
it
because
he
lives
at
another
place
.
And
now
because
that
no
place
was
named
for
the
payment
,
the
tender
was
good
,
and
shall
excuse
him
(
without
any
other
demand
)
of
the
damages
.
Littleton
said
,
that
a
tender
of
Homage
excuses
,
until
a
new
demand
,
21
E.
4.4
.
And
there
a
difference
seemed
to
some
,
between
fealty
and
homage
.
But
Bryan
said
,
that
a
tender
of
fealty
also
(
until
a
new
request
)
to
his
person
,
excuses
damages
:
because
that
fealty
may
be
done
by
Attourney
,
22
H.
6.31
.
7
E.
4.4
.
puts
the
case
of
Rent
to
the
same
intent
.
Cook
,
Littleton
,
7.
28.
Maunds
Case
.
The
third
resolution
is
a
ground
for
our
Case
.
There
it
is
said
,
if
Terre-tenant
tender
a
Rent
seck
,
upon
the
Land
:
The
Grantee
cannot
demand
it
upon
the
Land
in
the
absence
of
the
tenant
:
that
it
ought
to
be
to
the
person
upon
the
land
:
For
what
can
the
tenant
do
more
than
he
hath
done
already
.
And
the
Statute
of
Westminster
2.
cap.
9.
gives
ease
to
the
Tenant
,
When
the
Lord
distreins
immoderately
and
unnecessarily
.
For
an
immoderate
distress
may
be
the
ruine
of
a
tenant
:
And
therefore
the
Statute
says
,
Nec
habeat
Capitalis
dominus
potestatem
distringendi
tenentes
in
dominico
suo
,
dum
praedict.
Tenens
offerat
ei
servitia
debita
&
consueta
.
30.
Ass.
Fitzher
.
N.
B.
69.
G.
If
Cattel
be
distreined
damage
feasant
,
and
tender
of
sufficient
amends
is
made
,
The
Distreiner
is
liable
to
damages
for
the
detinue
,
although
not
for
the
distress
.
And
to
the
same
purpose
is
,
Cook
lib.
8.
140.
Carpenters
Case
,
5.
rep.
76.
Pilkintons
Case
,
&c.
The
second
question
is
,
whether
a
Bayliff
,
without
command
of
the
Lessor
,
(
when
he
had
refused
to
take
the
Rent
upon
a
Lawfull
tender
)
may
distrein
:
And
it
seemed
that
he
cannot
.
And
the
second
resolution
in
Pilkintons
Case
came
to
that
question
:
That
a
tender
of
amends
to
a
Bayliff
amounts
to
nothing
:
And
the
question
upon
a
Herriot
is
,
Whether
the
Lessor
may
distrein
without
declaring
his
election
;
and
it
seemed
that
he
cannot
:
For
that
is
no
Heriot
which
may
be
seized
;
As
the
Case
in
one
Woodland
and
Mantles
Case
,
there
it
is
certain
.
And
because
the
Law
vests
it
in
him
immediatly
after
the
death
of
the
tenant
.
But
so
it
is
arbitrable
,
and
cannot
vest
before
Election
:
and
also
the
Tenant
does
not
know
which
he
ought
to
provide
before
,
and
declares
his
election
.
And
it
was
demanded
,
for
that
it
is
not
reasonable
that
he
shall
be
lyable
to
a
distress
,
and
cannot
by
any
possibility
prevent
it
,
2
Rep.
36.
Sir
Rowland
Howards
Case
.
I
cannot
finde
any
president
where
an
Avowry
is
made
upon
a
disjunctive
reservation
,
without
allegation
that
he
had
declared
his
Election
.
Although
that
the
Lessor
in
that
Case
may
distrein
without
declaring
his
election
,
yet
the
Bayliff
cannot
:
for
he
cannot
justifie
as
Bayliff
for
an
Arbitrable
thing
,
without
express
command
.
Acceptance
of
Rent
by
a
Bayliff
cannot
alter
the
Tenancy
.
For
although
that
he
had
power
in
Law
to
receive
the
Rent
;
yet
he
cannot
by
Law
alter
the
Tenency
,
by
his
acceptance
,
without
the
Lords
Command
,
Dyer
222.
A
Bayliff
may
demand
Rent
,
but
cannot
enter
for
non-payment
without
express
command
:
And
when
he
avows
,
he
cannot
avow
any
thing
,
which
doth
not
appertain
to
his
office
.
And
for
that
,
that
it
is
an
arbitrable
thing
,
which
cannot
be
transferred
from
the
person
of
the
Lessor
his
Heirs
or
Assigns
,
that
distress
is
well
taken
,
&c.
If
a
Writ
of
Error
was
brought
in
this
Court
,
and
the
day
of
the
return
is
long
,
to
delay
the
party
,
as
if
it
be
more
than
the
next
Term
,
the
Court
may
award
Execution
,
quod
nota
,
&c.
Gammons
Case
.
ONe
was
obliged
in
the
Ecclesiastical
Court
not
to
accompany
with
such
a
woman
,
unless
to
Church
or
a
Market
overt
.
And
afterwards
he
was
summoned
to
the
Ecclesiastical
Court
,
to
say
,
whether
he
had
broken
his
Obligation
or
not
:
And
Ayliffe
moved
for
a
prohibition
,
which
was
granted
.
For
that
that
the
forfeiture
is
a
temporal
thing
;
And
it
does
not
become
them
in
the
Ecclesiastical
Court
,
to
draw
a
man
in
examination
for
breaking
of
Obligations
,
or
for
offences
against
Statutes
.
Dame
Chichley
against
Bishop
of
Ely
.
DAme
Dorothy
Chichley
brought
a
Quare
impedit
against
the
Bishop
of
Ely
and
Marmaduke
Thomson
:
And
declared
that
Thomas
Chichley
was
seized
of
the
Advowson
of
the
Church
of
Whiple
in
Cambridgeshire
,
And
presented
Marshall
,
and
died
seized
,
and
the
Advowson
descended
to
Thomas
his
son
,
who
by
Indenture
granted
it
to
East
and
Angel
,
and
to
their
use
,
and
the
use
of
the
Plaintiff
for
life
.
And
he
being
seized
of
the
Church
,
it
became
void
,
&c.
But
Thompson
pleads
that
he
is
Parson
imparsonee
ex
praesentatione
of
the
King
.
And
confessed
that
he
was
seized
as
aforesaid
;
but
that
he
was
seized
also
of
other
Lands
in
Capite
,
and
dyed
,
and
that
his
son
Thomas
was
,
and
now
is
within
age
,
which
is
found
by
Office
.
And
so
the
King
by
his
Letters
Patents
after
avoydance
presents
Thompson
,
who
was
instituted
and
inducted
:
Absque
hoc
,
that
Thomas
Chichley
granted
by
his
Indenture
to
the
use
of
his
wife
,
&c.
And
the
Plaintiff
replies
null
teil
record
:
Vpon
which
the
Defendant
demurs
.
Atthowe
for
the
Defendant
:
Although
the
Plaintiff
may
have
a
Writ
to
the
Bishop
when
his
Title
is
traversed
.
And
admit
there
be
no
Inquisition
,
Yet
the
King
may
present
before
Office
found
,
20
E.
4.
11.
An
Advowson
being
void
is
not
but
a
Chattel
,
and
for
that
it
is
vested
in
the
King
without
any
Office
.
And
you
may
see
many
Cases
to
that
purpose
.
Richardson
said
,
If
it
be
not
by
the
Statute
,
32
H
8.
The
King
may
grant
Wardship
of
Land
before
Office
.
Atthowe
.
Also
there
is
Traverse
upon
Traverse
,
which
should
not
be
.
Hendon
argued
for
the
Plaintiff
:
And
he
says
he
is
Parsona
imparsonata
,
and
does
not
say
,
before
the
purchase
of
the
Writ
.
For
the
Incumbent
by
the
Statute
of
25
E
3.
cap.
7.
cannot
plead
unless
he
be
Incumbent
ante
diem
impetratitrationis
brevis
,
unlesse
he
be
Incumbent
pendente
lite
he
cannot
plead
,
&c.
Hutton
.
If
one
be
presented
,
instituted
,
and
admitted
before
the
Writ
,
and
inducted
after
and
before
his
Pleader
,
He
may
plead
well
.
And
it
was
resolved
by
the
whole
Court
,
That
the
pleading
of
the
Parson
was
good
,
without
the
words
,
Ante
diem
impetrationis
brevis
:
And
that
all
the
Presidents
are
according
to
that
.
But
more
afterwards
,
&c.
Alice
Readngs
Case
.
ALice
Reading
brought
an
Action
upon
the
Case
against
I.S.
And
de-declared
whereas
she
was
a
Maiden
,
and
had
many
Suitors
,
the
said
I.
S.
said
,
That
Alice
Reading
was
with
childe
,
and
did
take
Physick
to
kill
the
Child
.
Vpon
which
words
,
divers
men
refused
her
.
And
upon
not
guilty
pleaded
,
it
was
found
for
the
Plaintiff
.
Finch
Recorder
moved
,
that
those
words
were
not
actionable
;
For
that
,
that
it
is
not
said
precisely
,
that
she
took
Physick
to
kill
the
childe
;
and
that
the
Physick
might
have
such
an
operation
without
her
desire
or
purpose
:
and
also
there
is
not
any
Suitor
in
special
named
;
And
as
it
is
in
Anne
Davyes
Case
,
4
Rep.
16.
6.
where
it
ought
to
be
proved
precisely
to
the
Iury
,
that
such
a
one
was
Suitor
,
and
refused
her
.
But
here
there
was
no
such
proof
.
And
he
alleged
in
the
Case
of
Sell
which
was
adjudged
.
Where
one
declares
that
he
endeavoured
to
mary
a
Woman
,
and
that
she
refused
him
,
upon
slanderous
words
.
And
it
was
adjudged
against
him
;
For
that
,
that
a
Conatus
is
not
sufficient
,
but
yet
Iudgement
was
given
for
the
Plaintiff
,
without
any
reason
alleged
.
Cook
lib.
4.
16.
6.
The
Lady
Cockins
Case
.
The
Case
of
a
Recusant
convict
.
DEbt
is
brought
upon
an
Obligation
;
And
the
Defendant
pleads
that
the
Plaintiff
is
Recusant
and
convicted
according
to
the
Statute
of
21
Iac.
cap.
5.
and
demanded
Iudgement
of
the
Action
.
The
Plaintiff
replies
,
Nul
tiel
Record
.
And
a
day
was
given
to
bring
in
the
Record
.
Crowley
Justice
demanded
,
what
course
he
would
take
to
make
the
Record
come
in
:
And
said
that
the
Indictment
was
before
the
Iustices
of
Peace
.
And
the
Court
said
that
the
Defendant
ought
to
have
pleaded
the
Iudgement
if
he
shall
be
answered
;
For
the
disability
is
not
but
quousque
,
&c
,
As
of
an
excommunicate
Person
.
8
E.
3.
Crook
Iustice
.
If
a
Plea
be
in
disability
of
the
Person
and
be
pleaded
in
Bar
,
it
is
peremptory
.
And
so
was
the
opinion
of
the
Court.
And
the
Debt
of
a
Recusant
is
not
forfeited
to
the
King
,
as
in
Outlary
.
But
if
he
fail
of
payment
of
the
Penalty
imposed
by
the
Statute
;
Then
,
&c.
And
the
Court
said
that
if
Nul
tiel
Record
be
pleaded
in
Bar
,
it
is
an
Issue
,
and
Iudgement
shall
be
given
upon
failer
of
it
.
And
the
direction
of
the
Court
,
for
the
bringing
in
of
the
Record
was
,
That
a
certiorari
should
be
directed
out
of
that
Court
,
to
the
Iustices
of
Peace
where
the
Indictment
was
taken
.
For
Presidents
were
alleged
,
that
that
Court
sent
a
Certiorari
to
the
Iustices
of
Assise
(
a
fortiori
)
to
certifie
that
in
the
Exchequer
,
and
so
come
by
times
into
that
Court
,
&c.
Creedlands
Case
.
CReedland
Administrator
durante
minori
aetate
of
a
Son
of
his
Brother
;
and
the
Son
died
,
and
made
the
Wife
of
Hindman
his
Executor
,
who
called
Creedland
to
account
in
the
Spiritual
Court
for
the
Goods
.
And
he
pleads
an
Agréement
betwéen
him
and
Hindman
,
and
that
he
gave
80
l.
in
satisfaction
of
all
Accounts
.
But
they
did
not
accept
the
Plea
.
For
that
a
Prohibition
was
prayed
to
be
granted
.
Richardson
,
If
the
party
had
received
the
mony
in
satisfaction
,
for
which
there
shall
not
be
Prohibition
granted
,
but
if
there
had
béen
only
an
agreement
,
without
payment
of
mony
,
then
otherwise
.
Crook
.
It
is
a
spiritual
matter
,
and
they
having
Iurisdiction
for
to
determine
of
all
things
concerning
that
.
But
the
agreement
prevents
,
that
it
cannot
come
into
the
Spiritual
Court
,
&c.
Giles
against
Balam
.
GIles
libells
against
Balam
before
the
High
Commissioners
,
for
an
assault
made
upon
him
,
being
a
spirituall
Person
.
And
Atthowe
prayed
a
Prohibition
.
For
that
,
although
their
Commission
by
express
words
gives
them
power
in
that
Case
,
yet
that
Commission
is
granted
upon
the
Statute
of
1
Eliz.
And
it
is
not
within
the
Statute
,
although
it
be
within
the
Commission
,
yet
they
have
not
Iurisdiction
.
The
words
of
the
Statute
are
,
That
such
Iurisdictions
and
Privileges
,
&c.
as
by
any
Ecclesiastical
power
have
heretofore
been
,
or
may
be
lawfully
exercised
for
the
visitation
of
Ecclesiastical
Estate
and
Persons
,
and
for
reformations
of
the
same
,
and
for
all
manner
of
Errors
,
Heresies
,
Schismes
,
Abuses
,
Offences
,
Contempts
,
and
Enormityes
,
&c.
Those
words
extend
only
to
men
,
who
stir
up
Dissentions
in
the
Churrh
,
as
Schismaticks
,
or
new-fangled
Men
,
who
offend
in
that
kind
.
Henden
Sergeant
:
The
Sute
is
there
for
reformation
of
Manners
;
and
before
that
new
amendment
of
the
Commissions
,
Prohibitions
were
granted
,
if
they
meddled
with
Adultery
,
or
in
Case
of
defamations
.
But
now
by
express
words
they
have
power
of
those
matters
;
And
that
matter
is
punishable
by
the
Commissioners
for
two
Causes
.
First
,
there
is
within
the
Act
of
Parliament
by
the
words
annexed
,
all
Iurisdictions
Ecclesiastical
,
&c.
Secondly
,
It
gives
power
to
the
Commissioners
to
exercise
that
;
And
that
is
meerly
Ecclesiastical
,
being
only
pro
reformatione
morum
,
&c.
The
King
by
his
Prerogative
having
Ecclesiastical
Iurisdiction
may
grant
Commissions
to
determine
such
things
,
5
Rep.
Ecclesiastical
Cases
,
fol.
8.
And
Richardson
said
the
Statute
de
Articulis
Cleri
,
gave
Conusance
to
the
Ordinary
for
laying
violent
hands
on
a
Clerk
.
But
you
affirm
that
all
is
given
to
the
Commissioners
.
And
for
that
they
should
take
all
power
from
the
Ordinary
.
But
by
the
Court
,
The
Commissioners
cannot
meddle
for
a
stroke
in
Church-land
,
nor
pro
substractione
decimarum
.
And
yet
they
have
express
Authority
by
their
Commission
;
For
by
that
course
,
all
the
Ordinaries
in
England
should
be
to
no
purpose
.
And
so
upon
much
debate
a
Prohibition
was
granted
.
On
an
Arrest
on
Christenmas
day
.
It
was
said
by
Richardson
,
chief
Iustice
;
That
upon
arresting
a
man
upon
Christmas
day
going
to
Church
in
the
Church-yard
,
He
who
made
the
arrest
may
be
censured
in
the
Stat-chamber
for
such
an
Offence
.
Quod
nota
.
It
was
also
said
by
Richardson
,
If
a
man
submit
himself
out
of
the
Diocess
to
any
Sute
,
that
he
can
never
have
a
Prohibition
.
Because
that
the
Sute
was
not
according
to
the
Statute
23
H.
8.
commenced
within
the
proper
Diocess
;
as
it
was
adjudged
.
Quod
nota
.
Manser
against
Lewes
.
MAnser
brought
debt
against
Lewes
the
Bishop
of
Banger
,
and
had
Iudgement
and
a
fieri
fac
.
upon
that
to
the
Sheriff
of
Middlesex
,
who
returns
,
That
he
was
Clericus
benefaciatus
habens
nullum
Laicum
feodum
.
And
Hitcham
Sergeant
to
the
King
,
moved
for
direction
of
the
Court
,
what
Process
ought
to
issue
,
or
may
have
a
Writ
to
the
Metropolitan
,
to
make
sequestration
;
as
it
is
21
H.
6.
16
,
17.
34
H.
6.
29.
Richardson
said
,
If
you
can
satisfie
us
,
That
the
Sequestration
ought
to
be
against
the
Bishop
,
as
against
a
Clerk
;
Then
the
Metropolitan
shall
do
execution
.
Hutton
said
,
A
Bishop
had
Temporalties
,
and
for
that
the
Sheriff
ought
not
to
return
nollum
habet
Laicum
feodum
.
Richardson
demanded
whether
the
Statute
of
Westm.
the
second
,
which
gives
Elegit
extends
to
the
Temporalties
of
a
Bishop
.
Hutton
not
.
Harvey
and
Crook
said
,
That
he
ought
to
have
first
a
Testatum
est
,
and
then
we
may
dispute
of
that
.
But
Hitcham
doubted
whether
a
Testatum
est
may
issue
to
Wales
.
Richardson
,
an
Elegit
may
issue
,
and
why
not
then
a
Testatum
est
.
And
they
in
the
Kings
Bench
grant
it
without
doubt
.
Stevens
against
the
Bishop
of
Lincoln
,
&c.
STevens
and
Crosse
were
Plaintiffs
against
the
Bishop
of
Lincoln
,
Holms
Incumbent
,
and
Holsworth
Defendents
in
a
Quare
impedit
,
And
the
issue
was
where
the
Prochein
avoydance
.
It
was
given
in
evidence
,
that
a
Feme
was
seized
for
life
of
the
Advowson
:
And
he
in
reversion
in
Fee
,
being
an
Infant
,
grants
the
prochein
avoydance
.
And
after
when
he
in
the
remainder
came
to
full
age
:
He
reciting
that
grant
,
concessit
&
confirmavit
praedictam
advocationem
habendam
quando
contigerit
vacare
.
And
afterwards
the
Wife
dies
,
and
the
Church
happens
to
be
void
.
And
it
was
said
by
Davenport
;
That
that
is
not
a
new
Grant
,
but
only
a
confirmation
.
Crook
Coo.
lib.
6.14
.
Treports
case
;
Tenent
for
life
,
and
he
in
remainder
makes
a
Lease
;
if
the
Tenant
for
life
dye
,
the
Declaration
should
be
that
he
in
the
remainder
made
the
Lease
.
And
so
also
by
all
the
Iustices
,
it
should
be
a
confirmation
,
during
the
life
of
the
Feme
.
If
Iudgement
be
given
in
an
action
at
Common
law
;
the
Chancellor
cannot
alter
or
meddle
with
the
Iudgement
given
against
him
.
But
he
may
proceed
against
the
Person
for
a
corrupt
conscience
;
because
he
took
advantage
of
the
Law
against
his
conscience
,
quod
nota
,
&c.
William
Watsons
Case
.
AN
action
of
Battery
was
brought
against
William
Watson
for
battery
committed
by
him
insimul
cum
I.
Watson
.
And
Iudgment
was
given
against
him
,
and
dammages
and
levyed
and
payed
to
the
Plaintiff
.
And
after
in
another
Action
which
was
brought
against
I.
Watson
,
and
he
also
was
found
guilty
.
And
Diggs
moved
in
arrest
of
Iudgement
,
for
that
that
he
had
recoveted
,
and
had
execution
against
W.
Watson
.
But
by
the
Court
,
Where
several
actions
are
brought
against
two
for
the
same
battery
,
and
a
recovery
is
had
against
the
one
,
and
an
action
is
brought
against
the
other
,
and
that
found
also
,
The
Court
can
never
intend
that
to
be
the
same
Battery
Because
he
may
commit
20
Batteries
in
one
day
.
But
if
he
may
take
any
advantage
of
the
first
recovery
it
ought
to
be
shewed
in
pleading
.
But
if
there
be
but
one
Original
against
both
,
and
several
Declarations
produced
,
when
he
hath
recovered
,
he
hath
dammages
against
the
other
:
But
if
he
recover
against
the
other
before
he
had
execution
against
the
first
,
Then
he
had
his
election
to
have
whether
dammages
given
against
the
first
,
or
the
dammages
given
against
the
other
.
And
Coo.
lib.
11.56
.
Heydons
Case
,
by
Richardson
is
to
the
same
effect
,
Eve
against
Wright
.
Eve
brought
a
Replevin
against
Wright
who
was
known
as
Bayliff
to
the
Lord
Peters
.
For
that
the
Lord
Peters
had
a
Court
Léet
within
the
Mannor
of
Writtle
.
And
that
he
distreined
for
an
amerciament
upon
the
Plaintiff
at
that
Court
Leet
of
the
Lord
,
&c.
And
upon
issue
that
he
had
not
such
a
Léet
,
The
Iurors
found
that
the
Lord
Peters
at
the
time
when
,
&c.
had
a
Leet
within
the
Mannor
,
and
that
the
Tenants
ought
to
come
to
his
Léet
.
But
also
they
found
that
the
Warden
and
Fellows
of
New
College
in
Oxford
had
a
Rectory
also
within
the
Mannor
of
Writtle
called
the
Roman
fee
:
And
that
they
time
out
of
mind
,
&c.
had
a
Léet
within
that
Rectory
,
and
that
the
Plaintiff
is
a
Resiant
within
the
Roman
fee
:
But
whether
upon
the
whole
matter
,
the
Lord
Peters
had
a
Leet
upon
all
the
Resiants
within
the
Mannor
of
Writtle
,
they
prayed
the
discretion
of
the
Court
in
that
.
And
it
was
said
by
Richardson
,
That
the
matter
is
found
expresly
for
the
Lord
Peters
.
And
if
the
Court
séemed
to
be
agréed
,
then
he
assess'd
dammages
,
and
that
Verdict
was
clearly
for
the
Defendant
.
And
if
the
matter
in
Law
might
well
come
in
question
,
as
the
Iurors
intend
(
scilicet
)
whether
a
Person
will
be
compellable
to
two
Léets
,
yet
Iudgement
shall
be
given
for
the
Lord
Peters
.
For
it
might
be
a
general
Leet
of
the
Hundred
,
or
a
special
Leet
within
a
Mannor
within
the
Hundred
.
As
it
is
expresly
21
E.
3.34
.
And
the
Case
of
the
Countess
of
Northumberland
and
Devonshire
,
was
in
this
Court
before
this
time
agreed
.
Crook
Iustice
,
18
Iac.
Banc.
Reg.
One
Cooks
and
Sables
Case
,
there
was
agreed
to
this
purpose
.
Though
a
man
is
not
compellable
to
be
attendant
to
two
Leets
,
although
they
be
held
at
several
daies
;
Yet
by
that
Custom
they
may
be
attendant
.
Like
to
Walgraves
Case
which
was
adjudged
in
this
Court
;
That
a
Mannor
may
be
held
by
Copy
of
another
.
And
that
the
Lord
of
a
Copyhold-Mannor
may
grant
Copyhold
.
And
this
Iudgement
was
affirmed
good
in
the
Kings
Bench
in
a
Writ
of
Error
.
For
Custome
hath
abolisht
that
;
And
the
opinion
of
the
Court
was
,
That
he
cannot
be
attendant
on
two
Leets
,
if
they
be
held
at
several
daies
.
It
was
said
by
Richardson
,
That
the
Lord
of
the
Roman
fee
,
shall
not
be
Subject
to
the
Leet
of
the
Lord
Peters
.
As
appears
by
21
E.
3.33
.
And
Crook
said
,
That
that
Book
was
good
Law
.
For
there
when
the
party
is
amerced
in
the
one
Court
,
he
cannot
be
punished
in
the
other
Court
for
the
same
offence
.
And
afterwards
Richadson
and
the
whole
Court
said
,
That
he
himself
shall
be
subject
to
another
Court
,
for
his
resiance
,
or
otherwise
,
he
should
be
exempt
from
every
Leet
.
Humbletons
Case
.
MOre
of
this
you
have
before
.
Now
they
afterwards
come
,
and
the
Case
was
recited
in
some
thing
different
from
the
former
(
scilicet
)
That
there
being
such
a
Communication
as
afore
,
the
consideration
was
,
That
Palmer
having
now
brought
an
Action
against
him
,
he
should
defend
the
said
Sute
in
maintenance
of
their
Tytle
of
Common
,
and
that
immediatly
after
Iudgement
given
,
he
should
pay
him
half
his
costs
or
40
l.
Vpon
which
this
Assumpsit
is
brought
.
And
the
Issue
was
,
Whether
he
defended
the
Sute
in
maintenance
of
their
Title
of
Common
,
and
it
was
found
against
the
Defendant
.
And
by
the
whole
Court
,
the
Plaintiff
had
well
declared
the
consideration
.
For
the
words
are
that
he
maintain
the
Title
against
Palmer
;
for
the
promise
was
after
the
acttion
brought
.
And
the
Plaintiff
is
not
to
prescribe
what
Plea
hee
'll
plead
;
but
that
he
defend
that
Sute
.
And
then
when
Palmer
is
not
owner
of
the
Soyle
,
as
appears
in
the
evidence
in
the
Kings
Bench.
And
so
if
a
pretence
to
common
fail
,
he
should
be
punisht
for
a
Trespass
where
he
ought
not
,
Palmer
being
an
Introcer
upon
the
King
.
And
every
Commoner
may
break
the
Common
,
if
it
be
inclosed
;
Although
he
does
not
put
cattel
in
immediately
.
But
he
may
infriender
by
the
other
Commoners
or
his
Tenents
,
and
his
Title
of
Common
only
excuses
him
of
the
Trespass
.
And
also
the
Iury
had
found
that
it
was
in
maintenance
of
the
Title
of
Common
expresly
.
And
so
Iudgement
was
entred
for
the
Plaintiff
,
pleno
consensu
.
Dorothy
Owen
against
Owen
Price
.
DOrothy
Owen
brought
an
action
of
the
Case
against
Owen
Price
upon
a
trover
of
Conversion
of
one
Load
of
Wheat
,
and
one
other
of
Barley
,
within
the
Rectory
of
Broody
.
And
upon
not
guilty
,
the
Iury
found
a
special
Verdict
to
this
effect
(
viz.
)
Marmaduke
Bishop
of
St.
Davies
seised
of
the
Rectory
of
Broody
,
and
a
Mannor
parcell
of
the
Bishoprick
,
3
August
.
27
El.
makes
a
Lease
of
them
being
formerly
demised
to
Anne-Davyes
,
and
the
two
Daughters
P.
and
C.
habendum
a
die
datus
for
their
lives
successively
,
viz.
to
A.
and
her
Assigns
,
for
her
life
,
rendring
the
antient
rent
;
and
afterwards
the
first
of
September
27
El.
makes
a
Letter
of
Attorny
to
I.
S.
to
enter
in
the
Rectory
and
Mannor
,
and
there
to
deliver
seisin
secundam
formam
Cartae
,
which
he
did
accordingly
.
The
Lease
is
confirmed
,
the
Bishop
dies
,
and
Wilburn
his
Successor
accepts
the
rent
of
A.
and
without
any
entry
makes
a
second
Lease
for
two
lives
to
the
Defendant
,
and
he
is
translated
.
Laude
the
next
Successor
before
any
acceptance
makes
another
Lease
for
three
lives
,
to
the
Plaintiff
.
And
the
Defendant
took
and
converted
the
Grain
,
&c.
Finch
the
Recorder
for
the
Plaintiff
,
who
endeavoured
to
destroy
the
two
first
Leases
.
And
as
to
that
,
the
first
Lease
is
not
warrantable
by
the
Statute
,
1
El.
that
depends
upon
consideration
of
two
things
.
First
,
Whether
the
word
Successive
so
makes
a
Limitation
of
a
Remainder
&c.
Secondly
,
Whether
the
Lease
in
Remainder
be
out
of
the
Statute
1
El.
also
that
I
ought
to
maintain
,
That
although
the
Lease
is
not
warranted
by
the
Statute
,
yet
it
is
not
void
,
but
voidable
by
the
Successor
,
And
that
also
contains
two
points
.
First
,
Whether
it
be
void
by
the
Common
law
(
scil.
)
When
a
Lease
is
made
to
two
habendum
a
die
datus
,
and
livery
be
3
daies
after
by
Attorney
be
not
good
.
Secondly
,
Whether
it
be
absolutely
void
by
the
Statute
.
As
to
the
first
,
a
Lease
succcessively
habendum
(
viz.
)
to
A.
and
her
Assigns
for
her
life
.
That
Habendum
well
settles
the
Estate
by
way
of
remainder
,
and
it
is
not
a
Ioynt-estate
.
8
E.
3.
There
the
doubt
is
first
put
,
but
the
difference
is
,
Where
it
is
habendum
successive
generally
,
then
it
is
a
Ioynt-estate
;
But
if
it
be
with
a
reference
and
declaration
,
it
is
a
good
remainder
.
Br.
104.
successive
generally
does
not
make
any
remainder
,
unless
in
case
of
a
copyhold
sibi
&
suis
make
an
inheritance
,
30
El.
in
Banc.
Roy.
8
Rot.
856.
The
Lord
Sturton
makes
a
Lease
to
Thomas
Hubhard
,
habendum
to
him
and
two
others
(
scilicet
)
successive
for
their
lives
,
and
to
the
longer
liver
of
them
.
And
it
was
adjudged
,
that
none
,
can
take
by
that
Déed
,
but
Thomas
Hubbard
only
;
Who
is
only
the
party
named
,
and
that
it
is
no
remainder
,
for
it
is
not
made
certain
,
who
begins
to
take
by
the
Remainder
.
Greenwood
and
Tilers
Case
in
the
Kings
Bench.
There
such
a
Lease
is
made
,
and
the
word
Successive
comes
after
the
limitation
of
the
Estate
.
And
the
Iudges
gave
the
difference
between
this
Case
and
Hiliards
Case
.
But
after
in
the
Exchequer-Chamber
,
it
was
agreed
to
the
contrary
.
So
that
Successive
put
generally
does
nothing
;
But
when
it
is
shew'd
who
takes
first
,
then
it
makes
a
Remainder
.
Dyer
361.
habendum
successive
,
prout
nominatur
in
Indentura
.
It
was
ruled
that
that
was
a
Remainder
.
And
this
Case
is
more
strong
,
for
every
one
is
named
in
his
order
.
And
then
if
it
be
not
a
Ioint-estate
,
but
in
remainder
,
it
is
not
warrantable
by
the
Statute
of
1
El.
6.
Rep.
Dean
and
Chapters
Case
of
Worcester
.
And
that
Statute
had
relation
to
the
Statute
of
32
H.
8.
of
making
of
Leases
;
For
the
Statute
of
1
El.
ought
in
reason
and
equity
to
have
the
same
constructions
,
as
the
Statutes
aforesaid
;
and
so
it
had
been
adjudged
in
one
Wheeler
and
Danbyes
Case
.
Then
that
Lease
although
it
be
void
,
yet
is
not
absolutely
void
,
but
voidable
,
&c.
And
as
to
the
point
in
Law
,
the
Livery
is
good
as
it
seemed
.
But
now
if
there
was
a
Lease
for
life
,
or
a
Feoffment
de
die
datus
,
and
Livery
made
the
same
day
,
by
the
Feoffor
himself
or
his
Attorney
,
that
it
should
be
void
.
For
the
day
of
the
date
should
be
excluded
,
and
the
Livery
cannot
operate
in
futuro
;
For
it
is
res
ponderosa
,
and
it
can
never
expect
and
be
in
suspence
.
2
Rep.
55.
Bucklers
Case
.
But
I
confess
in
this
last
Case
,
a
favourable
construction
ought
to
be
made
,
where
the
Possession
had
long
continued
according
to
the
letters
Patents
;
Which
should
intend
that
the
Livery
was
in
the
same
instant
;
And
in
a
thing
that
lies
in
Grant
,
the
same
construction
is
made
;
as
if
Rent
in
Common
in
esse
should
be
granted
,
de
die
to
come
,
the
Grant
is
void
,
Bucklers
Case
before
.
H.
8
H.
7.
33.
8
H.
6.
35
coment
.
145.
Throgmorton
and
Traceys
Case
,
agrees
the
difference
of
a
Rent
granted
de
novo
,
and
a
Rent
in
esse
.
9
E.
2.
tit
.
Dower
.
So
that
a
thing
granted
cannot
be
,
to
begin
at
a
day
to
come
;
But
not
by
the
reason
only
given
,
that
he
cannot
reserve
a
particular
Estate
to
himself
;
But
because
it
is
a
Frank-tenement
which
ought
to
pass
presently
,
Pasc.
5
:
Iac.
Kings
Bench
,
Sir
Robert
Iames
Case
.
In
a
Replevin
against
him
and
Adams
it
was
agreed
;
That
if
a
Reversion
be
bargained
and
sold
at
a
day
to
come
for
years
,
it
is
good
.
And
so
also
is
Sir
Rowland
Haywards
Case
.
2
Rep.
35.
If
a
Feoffment
or
a
Lease
for
life
was
a
die
datus
.
If
the
Lessor
or
a
Person
the
next
day
make
Livery
it
is
good
without
question
.
For
the
absurdity
that
a
Frank-tenement
should
be
in
suspence
is
not
so
:
for
the
life
is
given
by
the
Livery
after
the
date
.
And
there
is
a
great
difference
between
things
that
lye
in
Grant
,
and
a
Feoffment
.
For
in
Case
of
a
Grant
,
that
is
a
die
datus
,
it
cannot
be
made
good
.
In
Case
where
a
Feoffment
is
made
,
the
Deed
is
the
evidence
,
and
all
is
not
done
before
the
Livery
.
But
in
the
other
Case
after
the
Livery
,
nothing
is
to
be
done
by
the
other
,
And
that
is
the
reason
of
Buckleys
Case
,
That
an
attournment
cannot
make
the
Grant
good
,
or
the
form
of
a
Deed.
But
where
Livery
is
,
it
passes
by
Livery
only
,
where
no
Estate
is
mentioned
.
Also
one
Bowles
and
Smyths
Case
.
The
Prebend
of
Bowe
makes
a
Lease
for
3
lives
,
a
die
datus
,
and
makes
Livery
after
the
day
;
Adjudged
that
the
Lease
and
Livery
were
good
;
as
it
is
in
Greenwood
and
Tilers
Case
in
the
Kings
Bench
,
Trin.
10
Iac.
rot.
1039.
&
18
Iac.
Argued
at
Serjeants
Inne
.
One
Will
.
Long
,
and
Alice
his
wife
,
by
Deeds
makes
a
Lease
to
Fisher
and
Anne
his
Wife
,
and
Ioan
his
Daughter
,
habendum
at
Michaelmas
next
after
the
date
of
the
Indenture
,
for
lives
successively
.
The
Lessor
and
his
wife
after
the
day
past
makes
livery
in
person
,
secundum
formam
chartae
.
Longe
dies
,
and
Alice
receives
the
rent
of
Fisher
.
Fisher
and
his
wife
die
.
Alice
makes
a
Feoffment
to
I.
S.
Greenwood
the
Lessee
of
Ioan
,
brought
an
Eject
.
firm
.
against
Tyler
the
lessee
of
I.
S.
And
these
points
were
resolved
,
That
the
livery
after
the
day
,
made
the
lease
good
,
which
is
the
point
now
single
in
question
.
2.
Alice
and
Ioan
cannot
take
jointly
.
3.
That
Ioan
cannot
take
a
greater
Estate
than
for
her
own
life
,
and
not
pur
autur
vie
.
For
it
was
not
the
meaning
of
the
Deed.
But
there
they
held
,
that
the
Successor
after
the
lives
,
was
the
Remainder
.
But
afterwards
in
a
Writ
of
Errror
it
was
denied
.
4.
That
that
acceptance
of
the
rent
tyes
the
Wife
;
Which
could
not
be
unlesse
the
rent
remain
good
.
For
the
assent
ought
to
be
manifest
by
Deed.
So
that
the
Deed
is
good
to
direct
the
estate
.
and
prove
the
Assent
.
For
otherwise
the
Feoffment
so
had
avoided
the
lease
.
But
where
the
Person
is
disabled
it
is
otherwise
.
As
if
a
Feoffment
be
made
by
a
Feme
Covert
,
and
livery
made
by
Attorny
,
the
Deed
is
void
.
But
now
the
grand
doubt
is
,
whether
the
livery
after
the
day
by
Attorny
be
good
.
I
will
agree
that
if
the
letter
of
Attorny
was
made
the
same
day
,
that
the
deed
bore
date
,
the
livery
is
void
.
For
it
shal
not
be
in
the
power
of
an
Attorny
to
invalidate
or
validate
the
lease
made
by
an
other
.
So
if
a
letter
of
Attorny
be
contained
in
a
Charter
of
feoffment
,
or
be
in
another
Deed
,
delivered
at
the
same
day
;
The
delivery
upon
that
Deed
shall
be
nought
.
And
the
Attorney
by
his
livery
cannot
make
the
lease
or
feoffment
good
,
no
more
than
(
in
Bucklers
Case
)
an
atturnment
can
make
a
Grant
good
.
9
Iac.
com
.
banc.
rot.
1414.
Walter
,
and
Dean
and
Chapters
Case
of
Worcester
cited
before
.
In
a
Writ
of
covenant
.
There
a
lease
was
made
by
E.
for
three
lives
bearing
date
the
10
of
Novemb.
42.
E.
and
a
letter
of
Attorney
to
deliver
seisin
.
The
Attorney
delivered
seisin
a
year
after
,
when
two
rent
daies
were
incurred
.
And
it
was
doubted
whether
that
livery
was
good
:
because
that
two
rent
daies
were
passed
,
before
he
had
executed
his
Authority
.
And
it
was
adjudged
good
.
And
it
was
not
like
the
Lord
Cromwells
Case
,
2
Rep.
Where
a
performance
of
a
Condition
for
the
avoidance
of
an
advowson
was
void
,
no
time
being
limitted
.
For
in
Case
of
authority
,
it
may
be
executed
10
years
after
.
So
that
what
the
Feoffor
himself
may
do
,
he
may
give
authority
to
another
to
do
that
.
For
if
he
be
bed-rid
,
or
other
infirmity
,
shall
the
law
so
fetter
him
,
that
what
he
can
do
himself
,
he
cannot
in
the
same
Case
do
by
any
other
?
For
although
you
may
say
,
that
he
may
make
a
new
lease
:
yet
perhaps
he
is
tyed
by
Covenants
or
Obligations
so
,
by
which
he
shall
be
worse
intangled
.
And
the
reason
of
the
expectancy
of
the
Frank-tenement
also
,
which
an
Attorney
may
make
good
or
bad
;
a
lease
of
another
is
included
.
Because
where
it
is
mischievous
to
none
,
the
law
does
not
envy
the
Ease
of
the
party
,
as
Combes
Case
is
.
A
Surrender
,
by
an
Attorney
of
a
Copihold
is
good
:
and
we
can
(
you
know
)
appear
by
Attorney
in
actions
,
and
acknowledge
Iudgements
.
But
it
will
be
objected
,
that
livery
by
Attorney
is
not
good
without
a
Charter
of
Feoffment
,
as
Kirkby
said
,
16
H.
7.
fol.
51.
Plo.
6.
And
if
those
Books
are
not
law
.
Yet
Greenwood
and
Tilers
Case
,
before
recited
,
will
resolve
that
doubt
;
That
the
Deed
is
not
void
if
the
livery
be
after
;
and
if
the
Entry
be
presently
,
he
is
a
Tenent
at
will
,
or
a
Disseisor
,
as
it
is
in
Bucklers
Case
,
For
it
cannot
be
made
good
by
any
thing
after
.
Yet
the
Déeds
remain
,
or
otherwise
his
acceptance
did
not
bar
him
.
I
confess
that
an
Authority
to
make
livery
cannot
be
made
by
Paroll
,
as
10
H.
8.
11
H.
4.
for
it
may
be
revoked
by
Paroll
.
As
a
Will
which
cannot
be
made
but
by
writing
,
yet
it
may
be
revoked
by
Paroll
.
26
As
.
But
an
authority
to
make
a
Lease
is
made
by
Paroll
,
30
E.
3.31
,
32.
If
a
Déed
purporting
an
Estate
in
Fee
simple
be
read
to
the
Feoffor
,
who
is
an
illiterate
man
,
to
pass
only
an
Estate
tail
;
And
a
Letter
of
Attorney
was
to
deliver
seisin
secundum
formam
Chartae
,
which
is
well
read
to
him
;
Yet
it
was
resolved
that
all
is
void
.
And
that
he
may
plead
it
was
not
his
deed
,
to
the
letter
of
Attorny
.
For
if
the
Deed
be
void
,
the
Letter
of
Attorney
which
releases
to
it
is
void
also
.
But
I
conceive
,
if
it
be
put
in
a
Deed
that
gives
Land
a
die
datus
,
and
the
Attorney
authorised
by
express
words
,
delivers
seisin
three
daies
before
;
that
livery
may
be
good
.
And
then
it
is
more
strong
when
he
appoints
his
Attorney
after
the
day
;
as
it
is
in
this
Case
.
A
Feoffment
made
from
a
day
past
is
good
,
and
the
time
before
the
livery
is
idle
.
And
for
another
reason
in
Case
of
Assurances
such
nice
constructions
ought
not
to
be
made
.
And
because
there
is
no
difference
whether
livery
be
made
in
Person
or
by
Attorney
.
Now
there
is
a
difference
between
an
Authority
and
Conveyance
,
H.
20.
&
40
Eliz.
in
an
Ejectione
firm
.
in
this
Court
,
Marriots
Case
.
A
Charter
of
Feoffment
was
made
to
the
Lessor
of
the
Plaintiffs
,
10
Septemb.
And
the
Feoffee
reciting
that
that
Charter
was
made
the
11
of
September
,
authorised
him
to
take
livery
secundum
formam
Chartae
.
And
it
was
resolved
,
because
the
date
was
mistaken
,
although
all
other
circumstances
agreed
;
Because
that
the
authority
ought
to
be
taken
strictly
,
that
that
is
a
void
livery
.
But
in
Dyer
116.
A
Lease
is
made
the
30
day
of
August
for
21
years
,
and
afterwards
the
Lessor
reciting
that
the
Lease
was
made
the
6th
of
August
,
demises
the
Land
habendum
after
the
first
Lease
determined
.
And
it
was
resolved
to
be
a
good
Lease
:
because
that
the
beginning
and
ending
of
the
Lease
agreed
;
And
in
the
Case
of
Marriot
,
it
was
resolved
.
Secondly
,
That
an
Attorny
cannot
be
without
Deed.
Thirdly
,
Although
that
the
Feoffor
in
person
makes
livery
,
yet
it
is
void
;
Because
that
the
Attorney
cannot
take
the
livery
upon
that
Deed
without
that
authority
.
But
where
that
one
may
do
that
thing
himself
,
and
he
gives
the
Attorney
the
same
authority
:
It
is
all
one
if
Feoffment
be
made
to
I.
S.
and
I.
S.
makes
an
Attorney
to
take
livery
,
whereof
livery
is
made
,
yet
is
good
;
And
it
is
all
one
,
as
if
livery
had
been
made
to
I.S.
himself
.
19
H.
6.
A
Feoffment
upon
Condition
that
he
enfeoff
I.
S.
void
by
the
Statute
of
1
Eliz.
or
voidable
:
and
it
seemed
it
was
but
voidable
by
the
Successor
,
by
entry
or
by
action
.
You
may
sée
that
the
words
are
as
plain
as
may
be
.
They
shall
be
utterly
void
to
all
intents
and
purposes
.
But
quid
haeret
in
litera
.
For
her
meaning
was
,
That
it
shall
be
void
by
the
Successor
,
and
that
construction
had
alwaies
been
made
3
Rep.
19.
11
Rep.
73.
So
the
Statute
23
H.
6.
of
Sheriffs
had
been
expounded
.
7
E.
4.
4.
There
cannot
be
non
est
factum
pleaded
.
And
upon
the
Statute
of
Vsury
;
That
an
usurious
contract
shall
be
void
;
Yet
the
Statute
ought
to
be
pleaded
.
Acts
of
Parliament
where
there
are
many
doubts
,
shall
be
expounded
by
the
Common
law
;
For
that
,
that
at
the
Common
law
a
Free-hold
cannot
he
helped
but
by
Entry
.
11
H.
7.
There
is
a
diversity
between
a
Lease
for
years
,
and
a
Lease
for
life
.
Dyer
222.
And
it
is
the
dignity
of
a
free-hold
to
reduce
it
by
free-hold
.
Then
if
it
stood
with
the
Common
law
;
It
is
not
to
be
void
without
Entry
.
For
as
a
solemn
Ceremony
created
,
the
same
must
defeat
it
.
The
Statute
shall
be
so
expounded
.
And
if
it
was
in
Case
of
a
lease
years
of
a
Bishop
,
it
shall
not
be
void
without
Entry
.
3
Rep.
Pennants
Case
,
Dyer
229.
8
H.
5.
11
E.
3.
Commen
.
139.
It
was
never
the
meaning
of
the
Act
to
make
it
actually
void
.
For
if
the
words
are
pursued
strictly
,
then
it
shall
be
void
immediately
against
the
Bishop
himself
.
Then
the
Successor
in
lieu
of
a
benefit
,
shall
take
an
advantage
of
the
Statute
;
For
he
cannot
make
Leases
but
of
things
usually
demised
,
32
Eliz.
Sale
and
Sale
against
the
Bishop
of
Coventry
in
a
Quare
impedit
.
It
was
adjudged
,
That
a
Quare
impedit
well
lies
by
an
Executor
for
disturbance
made
to
the
Testator
.
And
also
that
a
Lease
for
years
is
good
,
notwithstanding
the
Statute
.
The
Statute
does
not
intend
the
benefit
of
the
Lessee
,
but
of
the
Successor
himself
:
And
the
Successor
had
his
Election
to
accept
the
Rent
or
the
Land
:
And
if
it
should
be
voyd
,
his
Election
is
gone
.
Tallengers
and
Dentons
Case
4.
Jac.
A
Lease
is
made
by
the
Bishop
of
Carlisle
,
of
the
Tithes
which
is
out
of
the
Statute
:
And
there
it
is
void
against
the
Successor
.
For
that
,
that
he
hath
no
remedy
,
for
the
Rent
reserved
upon
it
.
And
that
point
is
so
adjudged
upon
the
Statute
of
the
13
Eliz.
Walters
Case
before
resolved
,
that
a
Lease
made
by
Dean
and
Chapter
,
not
warranted
by
the
Statute
,
is
but
voydable
against
the
Successor
,
Pas.
6
Iac.
rot.
1041.
Wheeler
and
Danbies
Case
:
Robert
Bishop
of
Glocester
,
30
Eliz.
makes
a
Lease
to
Iasper
,
habendum
a
die
datus
,
to
him
for
life
,
the
remainder
to
William
,
rendring
the
ancient
Rent
.
The
first
Lessee
dies
,
the
Successor
having
notice
of
it
,
and
that
divers
Rents
were
behinde
,
commanded
his
Bayliff
,
that
he
should
receive
the
Rents
.
The
Bayliff
enters
them
,
and
receives
Rent
of
that
Lessee
,
the
Bishop
having
notice
of
it
.
And
these
points
were
resolved
.
First
,
the
Iury
finding
a
Lease
,
a
die
datus
,
might
be
intended
good
,
for
that
the
Entry
was
made
after
the
day
:
yet
the
Iury
finding
a
thing
impossible
,
does
not
conclude
the
Iudges
.
Secondly
that
a
Lease
in
remainder
is
not
warranted
by
the
Statute
,
1
Eliz.
Thirdly
,
that
the
Lease
was
but
voydable
by
the
Successor
:
for
the
Statute
was
made
for
the
benefit
of
the
Successor
,
but
the
grand
Question
was
,
of
the
manner
of
acceptance
,
and
resolved
.
Fourthly
,
that
the
acceptance
binds
the
Bishop
,
and
the
Authority
given
to
the
Bayliff
,
and
also
his
receipt
.
For
it
differs
where
the
Bayliff
of
his
own
accord
receives
Rent
.
Dyer
.
And
they
also
say
,
that
that
was
to
perfect
an
estate
setled
.
And
it
differs
from
an
Attournment
,
which
is
to
perfect
an
estate
setled
:
For
there
notice
is
requisite
,
&c.
Gammons
Case
again
.
HEndon
said
,
that
a
Scire
facias
does
not
lie
upon
that
record
:
because
an
action
of
debt
well
lies
:
For
no
president
can
be
shewn
,
that
a
Iudgement
given
in
an
inferiour
Court
,
may
be
executed
so
.
For
first
,
that
Court
shall
not
make
an
Instrument
to
execute
Iudgement
given
in
another
Court
.
It
is
seen
that
an
Attaint
lies
of
false
Iudgement
given
in
an
inferiour
Court
.
Take
the
Case
in
14
H.
4.4
.
And
so
if
issue
be
joyned
in
an
inferiour
Court
without
custom
:
It
shall
not
be
removed
to
be
tryed
so
,
And
so
it
is
our
Case
,
&c.
Secondly
,
the
Statutes
do
not
give
them
power
(
viz.
)
26
H.
8.
&
34
H.
8.
makes
the
matter
clear
that
it
cannot
be
.
Error
in
an
Assize
before
the
Iustices
of
Assize
,
will
not
lye
in
this
Court.
For
Iudges
Itinerant
are
superior
.
And
those
Iudges
are
appointed
by
Act
of
Parliament
;
and
so
the
Iudges
also
in
Wales
are
by
Act
of
Parliament
:
And
having
power
a
Oyer
et
terminer
.
It
is
not
found
that
after
Iudgement
a
Certiorari
had
been
received
to
remove
the
Record
out
of
an
Inferiour
Court
:
And
the
mischief
would
be
,
if
Iudgement
should
be
given
for
20.
l.
it
should
be
executory
through
all
the
Realm
,
where
they
have
but
a
special
Iurisdiction
.
And
also
the
tenor
of
the
Record
is
only
removed
,
and
execution
cannot
be
out
of
the
tenor
of
the
Record
.
Dyer
369.
Plow
.
52.
Richardson
.
The
question
is
,
whether
when
the
Record
is
so
removed
,
whether
it
shall
be
idle
:
If
Iudgement
be
given
in
an
Inferiour
Court
,
which
holds
Plea
by
prescription
,
or
by
grant
,
and
removed
by
Writ
of
Error
,
if
the
Iudgement
be
affirmed
we
may
award
Execution
.
16
Iac.
There
is
an
express
president
of
a
Iudgement
in
an
Inferiour
Court
and
a
Scire
facias
is
granted
so
.
And
also
a
Scire
facias
is
granted
in
lieu
of
an
action
of
debt
.
For
by
the
Common
Law
he
might
not
have
a
Scire
facias
after
the
year
;
but
an
action
of
debt
.
And
by
the
Common
Law
debt
lies
in
that
Case
.
Harvey
and
Crook
Iustices
,
said
,
that
Court
shall
not
be
an
Instrument
to
execute
Iudgement
in
an
inferiour
Court
,
which
they
cannot
.
And
also
the
Land
of
the
Defendant
shall
be
lyable
to
an
execution
in
any
place
in
England
:
where
before
only
the
Land
within
the
place
was
lyable
.
And
also
the
purchaser
could
never
finde
out
what
executions
might
be
upon
the
Land
.
Richardson
said
,
that
the
mischief
would
be
great
on
both
sides
.
For
otherwise
what
Iudgement
was
given
:
The
Defendant
would
remove
his
goods
out
of
the
Iurisdiction
of
the
Court
,
and
then
the
Plaintiff
had
no
remedy
but
by
new
original
.
And
Crook
Iustice
.
If
a
man
brings
an
action
in
a
Court
,
he
ought
to
examine
what
the
end
of
that
will
be
.
For
it
is
a
president
,
a
man
ought
to
respect
things
in
their
end
.
For
it
is
his
own
folly
to
commence
an
action
,
where
he
cannot
have
execution
.
For
that
,
he
may
commence
his
action
,
and
have
execution
in
any
place
in
England
,
And
although
that
a
forrain
Plea
in
an
Inferiour
Court
may
be
tryed
so
,
yet
it
is
by
Act
of
Parliament
(
viz.
)
6
E.
1.
12.
which
proves
by
the
Common
Law
there
was
no
remedy
.
Tithes
of
Pidgeons
and
Acorns
.
A
Parson
Libels
in
the
Spiritual
Court
for
Tithes
of
Pidgeons
and
Acorns
:
And
the
Defendant
prayed
a
prohibition
:
Because
the
Pidgeons
were
spent
in
his
own
house
:
and
the
Acorns
dropt
from
the
Tree
and
his
Hogs
eat
them
.
And
it
was
said
by
the
Court
,
Acorns
are
Tithable
,
11
Rep.
49.
But
then
they
ought
to
be
gathered
,
and
also
sold
.
And
a
prohibition
was
clearly
granted
.
Thomas
Wilcocks
Case
.
MOre
of
the
Case
of
the
Vniversity
of
Oxford
.
Thomas
Wilcocks
,
Mr.
of
Arts
in
St.
Mary
Hall
in
Oxford
,
was
sued
in
the
Chancellors
Court
there
,
by
Anne
wife
of
Ralph
Bradwell
and
Christian
her
daughter
;
For
calling
the
wife
Bawd
,
and
old
Bawd
;
and
the
daughter
;
Whor.
,
and
scurvey
pockey-faced
whore
.
And
they
procured
two
Sentences
against
Wilcocks
,
and
upon
them
he
had
two
prohibitions
:
And
Davenport
moved
for
a
Procedendo
:
for
that
,
that
by
their
Charter
which
was
confirmed
by
Parliament
,
The
Chancellor
or
his
Deputy
shall
have
Conusans
of
all
causes
personal
,
where
one
of
the
parties
is
a
Scholar
,
And
the
Charter
was
shewed
in
Court
,
which
was
to
this
purpose
,
That
they
shall
hold
Pleas
,
&c.
or
Secundum
morem
Universitatis
,
or
Secundum
legem
terre
.
And
the
custom
was
to
proceed
according
to
the
Civil
Law
.
And
it
was
resolved
:
First
,
that
the
King
by
his
Charter
deprives
the
subject
of
his
Liberty
and
Priviledge
of
Tryal
:
As
he
cannot
by
his
Letters
Patents
alter
the
nature
of
Gavelkinde
Land
;
but
by
prescription
he
may
alter
it
in
particular
places
:
As
9
H.
6.
44.
In
corpus
cum
causa
to
the
Chancellor
of
Oxford
,
was
certified
that
the
prisoner
,
Pro
extensione
detentus
fuit
&
convictus
.
And
an
exception
was
taken
for
that
,
that
he
should
have
been
indicted
and
convicted
:
and
it
was
answered
that
it
was
Mos
Universitatis
,
And
by
Hutton
Iustice
.
That
custom
was
to
be
intended
to
be
by
prescription
.
But
so
the
Charter
is
confirmed
by
Act
of
Parliament
,
it
is
as
good
.
Secondly
,
that
there
is
a
good
cause
of
action
in
the
Chancellors
Court.
For
Wilcocks
who
is
one
of
the
parties
is
a
Scholar
,
and
the
Charter
was
only
made
for
the
ease
of
Scholars
,
that
their
Studies
might
not
be
interrupted
,
by
Sutes
in
other
Courts
:
But
then
he
ought
to
be
a
Scholar
resident
in
the
Vniversity
at
the
time
of
the
Sute
commenced
there
.
And
he
ought
to
be
only
one
of
the
parties
.
And
for
that
,
if
another
be
joyned
with
him
,
he
shall
not
have
the
priviledge
or
benefit
of
the
Charter
:
as
it
is
14
H.
4.
21.
and
by
Richardson
chief
Iustice
,
that
is
not
a
priviledge
which
may
be
waved
:
for
every
person
may
Recusare
jura
introducta
pro
se
:
But
that
it
was
an
exempt
Iurisdiction
,
and
differs
where
the
priviledge
goes
to
the
person
.
As
if
a
Clerk
,
in
his
Court
will
sue
in
another
Court
,
or
suffer
himself
to
be
sued
,
that
is
a
Waver
of
the
Priviledge
.
Thirdly
,
that
a
Proeedendo
shall
not
be
granted
,
for
that
,
the
Charter
is
not
pleaded
;
for
the
Iudges
give
Iudgement
of
the
Record
,
and
the
cause
of
their
Iudgement
ought
to
appear
by
pleading
of
the
Record
.
And
also
a
prohibition
is
granted
where
by
Demurrer
,
or
by
Pleading
,
and
not
by
verbal
surmise
there
ought
to
be
a
discharge
.
And
in
the
case
of
a
prohibition
,
It
is
not
like
the
Case
of
35
H.
6.
24.
Where
Conusans
is
one
time
allowed
by
Charter
shewn
,
and
another
Record
there
should
be
allowed
without
demand
,
without
other
shewing
:
But
Yelverton
Iustice
,
to
the
contrary
,
That
it
might
be
remanded
upon
pleading
of
the
Charter
.
And
he
said
,
that
there
was
a
difference
,
where
the
suggestion
was
upon
matter
of
Fact
,
as
prescription
,
&c.
Where
an
issue
may
be
taken
,
there
it
ought
to
be
pleaded
in
writing
,
which
appears
fully
by
the
mean
of
the
Court
,
and
not
by
suggestion
.
Fourthly
,
it
was
resolved
that
a
prohibition
may
be
granted
,
in
case
where
the
Court
cannot
give
other
remedy
,
for
the
ease
of
the
Subject
,
who
is
the
party
;
as
it
was
adjudged
in
the
Court
of
Requests
:
Vpon
the
custom
of
London
,
concerning
Orphans
,
a
prohibition
was
granted
;
and
yet
no
remedy
at
Common
Law
was
afterwards
to
be
expected
,
Trin
5.
Car.
Fawkner
against
Bellingham
:
FAwkner
against
Bellingham
in
a
Replevin
.
The
Avowry
was
,
for
that
,
that
the
Defendant
was
Lord
of
a
Mannor
,
and
of
Lands
which
were
Chauntry
Lands
;
and
held
of
him
by
Rent
and
other
Services
;
And
after
coming
to
the
Crown
by
the
Statute
of
10
E.
6.
cap.
14.
Who
granted
it
then
over
by
Letters
Patents
,
&c.
And
now
the
Lord
distreins
for
Rent
,
and
avows
that
he
had
not
seisin
within
fourty
years
:
And
whether
seisin
was
requisite
for
him
who
made
the
Conusans
,
was
the
sole
question
in
the
Argument
.
First
,
for
that
,
that
it
is
a
new
Rent
created
by
the
Statute
of
1
E.
6.
For
when
that
Land
is
granted
to
the
King
by
Parliament
,
yet
the
King
hath
operation
upon
it
,
and
may
dispose
of
it
.
Secondly
,
that
the
Land
passed
from
the
Priest
and
others
,
by
their
assent
confirming
it
.
And
it
is
a
Grant
of
the
Seigniory
by
the
Lord
himself
unless
the
saving
hinder
it
.
But
so
by
the
Grant
the
Rent
is
extinguished
:
And
the
saving
is
so
a
creation
of
a
new
Rent
,
1.
rep.
47.
Altomeoods
Case
.
And
there
is
diversity
between
a
Rent-service
,
viz.
where
the
Tenant
grants
Land
to
the
King
,
and
he
grants
that
over
:
He
cannot
distrein
upon
the
Patentee
:
for
it
is
distinct
from
a
Rent
charge
.
Stamford
prerogat
.
75.
Mich.
20.
E.
3.
17.
And
so
it
is
ordered
by
the
Statute
de
Religione
,
when
he
enters
by
Mortmain
,
that
he
ought
to
revive
the
Services
,
Stam.
27.
If
the
King
enters
upon
my
Tenant
,
there
a
Petition
of
Right
lies
,
Dyer
313.
10.
rep.
47.
By
the
saving
in
the
Statute
of
Wills
,
&c.
A
primer
Seisin
is
given
to
the
King
de
novo
,
where
he
ought
to
have
it
before
:
And
then
being
a
new
Rent
no
Seisin
is
requisite
.
Secondly
,
the
second
reason
is
,
for
that
there
is
a
new
remedy
:
and
then
no
matter
whether
it
be
old
Rent
or
new
Rent
,
Finchden
.
A
Rent
granted
out
of
White-acre
,
and
a
distress
out
of
Black-acre
,
the
Rent
yet
remains
,
and
there
is
one
thing
part
of
the
Rent
,
another
of
the
remedy
:
Because
the
Rent
is
only
altered
in
quality
,
Dyer
31.
There
our
Case
directly
.
Now
the
Statute
of
Limitations
is
a
Statute
for
the
good
of
the
Common
wealth
,
to
settle
inheritances
and
possessions
.
And
it
should
be
expounded
liberally
:
Then
if
a
scruple
be
of
the
Act
,
it
ought
to
be
expounded
benignly
.
And
so
it
is
of
all
other
Statutes
which
settle
possessions
:
Always
shall
be
expounded
favourably
for
the
ease
and
benefit
of
the
Tenant
and
Lord
.
And
for
that
adjudged
,
That
a
Copy-hold
and
Leases
for
years
are
within
that
Statute
.
And
the
Statute
of
32
H.
8.
11.
rep.
71.
binds
both
King
and
Realm
,
because
it
is
for
the
publick
good
.
Owen
against
Price
before
.
BRamston
argued
for
the
Defendant
.
I
agree
that
Lease
to
be
a
Lease
in
remainder
;
and
I
admit
also
that
,
that
Lease
is
warranted
by
the
Statute
,
10
Eliz.
For
that
,
that
he
is
not
punishable
of
waste
:
And
the
case
admits
two
questions
:
whether
it
be
a
void
Lease
at
Common
Law
.
And
First
,
In
respect
of
the
limitation
.
Secondly
,
there
is
not
any
Livery
in
the
Case
.
Wherefore
first
of
all
,
it
had
been
said
a
Frank
Tenement
cannot
pass
from
a
day
to
come
,
in
case
of
a
Grant
.
38
H.
6.
34.
8
H
7.
Claytons
Case
5.
rep.
It
had
been
agreed
that
a
Livery
made
the
first
day
by
himself
or
by
his
Attorney
should
not
be
good
.
And
moreover
if
by
his
Attourney
after
the
day
,
if
his
Grant
may
be
granted
,
the
same
day
it
is
not
good
.
And
then
I
hold
that
the
date
of
the
Grant
of
Attourney
is
not
material
,
Trin.
43
Eliz.
rot.
402.
Conibar
.
It
was
resolved
in
such
a
Case
as
that
is
:
That
the
Livery
is
not
good
.
And
the
reason
was
,
that
the
Livery
had
not
relation
to
the
Deed
,
which
was
void
in
Law
.
Bucklers
and
Binsluns
Case
.
The
release
was
made
1
May
,
as
this
,
and
executed
by
Attourney
,
and
by
Attourney
authorised
the
same
day
,
the
second
of
May.
And
it
was
adjudged
to
be
void
by
the
same
reason
.
Greenwood
and
Tilers
Case
.
He
had
much
insisted
upon
that
:
yet
in
the
enlargement
of
the
Case
,
this
point
was
resolved
.
That
if
the
Livery
was
by
Attourney
,
it
should
be
void
,
and
the
reason
there
was
,
That
although
that
the
deed
was
void
,
yet
the
Livery
made
in
person
ought
to
be
good
.
But
the
Deed
can
never
by
Livery
be
made
good
,
which
was
void
to
that
purpose
.
And
it
had
been
said
and
objected
,
that
it
might
be
done
in
person
,
and
therefore
by
Attourney
.
I
agree
that
by
that
Livery
an
Estate
passes
,
but
not
by
the
Deed.
But
the
Livery
makes
it
pass
out
of
the
Interest
that
the
Lessor
had
.
But
by
that
reason
that
such
a
Lease
shall
be
good
,
where
Livery
is
by
the
Lessor
himself
,
will
not
stand
with
our
Case
.
And
divers
Cases
declare
this
difference
.
23
E.
3.
31
,
32.
A
Deed
of
Feoffment
is
made
by
Mawbry
,
where
he
had
nothing
in
the
Land
,
and
after
purchases
and
makes
Livery
,
Secundum
formam
Chart.
That
estate
passes
but
not
by
the
Deed.
But
if
Livery
had
been
there
made
by
Attourney
it
had
not
been
good
.
If
a
Feme
Covert
,
or
a
Monk
makes
such
a
Charter
of
Feoffment
,
and
after
Coverture
or
deraignment
:
Makes
livery
then
by
Attorny
:
such
livery
then
cannot
be
good
;
For
he
cannot
exceed
his
authority
,
which
was
to
make
good
his
first
Deed.
22
H.
6
32.
A
feoffment
of
a
Mannor
by
Deed
of
two
acres
,
all
pass
,
not
by
deed
but
by
livery
;
but
if
by
Attorny
otherwise
it
is
;
Livery
according
to
deed
,
(
where
there
is
not
any
)
by
Attorny
is
void
.
Kelway
64.
A
lease
made
by
Baron
and
Feme
may
be
pleaded
without
Deed.
Coparceners
agregate
cannot
make
a
Lease
without
Deed
;
But
a
Bishop
or
a
single
Corporation
may
:
and
it
shall
be
good
against
him
,
but
not
against
his
Successor
;
Dyer
19.
17
E.
4.
17.
Littleton
said
,
Where
an
Estate
passes
by
Deed
,
then
the
Livery
is
but
a
Ceremony
.
And
in
the
Chapter
of
Conditions
,
he
in
the
remainder
shall
be
bound
by
Condition
in
the
Deed.
Because
that
he
took
by
that
.
So
that
by
your
reasons
you
would
make
that
acknowledgement
and
inrollment
by
the
Grantor
himself
,
to
be
a
Ceremony
;
and
yet
nothing
pass
.
And
the
rule
in
Magdalen
College
Cases
.
If
you
will
have
a
thing
by
Deed
,
to
be
nought
,
no
subsequent
Act
can
make
it
good
.
And
then
the
lease
is
made
to
three
,
and
the
Grant
of
Attorny
to
deliver
seisin
,
to
3.
and
he
delivers
seisin
but
to
one
;
although
that
the
others
take
in
remainder
.
Yet
he
ought
not
to
take
upon
him
the
cognisance
of
law
,
but
pursue
his
authority
.
A
lease
is
made
for
years
the
remainder
in
fée
,
and
a
Warrant
of
Attorney
to
deliver
seisin
to
him
in
the
remainder
.
And
the
Attorny
delivers
seisin
to
the
Tenent
for
years
,
It
is
not
good
.
And
yet
in
Law
it
ought
to
be
made
to
him
.
11
H.
7.
13.
A
feoffment
and
a
letter
of
Attorny
to
deliver
seisin
to
two
,
and
he
does
it
but
to
one
,
That
is
a
disseisin
,
and
absolutely
void
by
the
Statute
,
Dyer
177.
Hill.
39.
Eliz
com
.
banc.
rot.
941.
Iohnson
against
Morris
and
Edmunds
IOhnson
brought
a
Trespass
against
Morris
and
Edmunds
,
quare
clausum
fregit
et
herbam
suis
depastus
est
,
&c.
The
Defendant
said
that
all
the
time
of
the
Trespass
,
he
was
seised
of
the
Mannor
of
Amner
;
And
that
they
,
and
all
their
Predecessors
,
had
a
Sheep-walk
in
the
place
assigned
,
&c.
and
for
all
the
year
,
but
when
it
was
sowed
for
all
the
sheep
leavant
and
couchant
upon
the
Mannor
,
&c.
The
Plaintiff
replies
that
the
Defendant
such
a
day
put
200
sheep
within
that
Land
,
and
that
those
sheep
were
levant
and
couchaut
upon
the
Chauntry
fold
;
Whereupon
the
Defendant
demurred
.
Crowley
Iustice
.
The
Declarations
are
general
of
sheep
,
without
expressing
the
number
;
and
for
that
the
Iustification
is
good
in
the
generalty
;
and
now
when
the
replication
is
of
200
sheep
,
and
does
not
say
alias
,
it
is
naught
.
Hutton
,
It
is
not
directly
put
,
that
the
Chauntry
land
is
parcel
of
the
Mannor
,
and
then
we
cannot
so
intend
it
,
and
yet
by
the
Demurrer
it
is
confessed
.
Richarson
,
It
is
not
sufficient
to
say
,
that
they
were
levant
and
couchant
upon
the
Chauntry
fold
;
without
saying
absque
hoc
,
that
they
were
parcel
of
the
Mannor
.
And
it
is
incertain
whether
there
were
other
sheep
:
and
we
by
Imagination
cannot
intend
it
,
&c.
Harvey
and
Hutton
,
The
Replication
is
good
;
For
that
,
that
in
the
Replication
he
now
declares
of
what
sheep
he
complain'd
before
;
And
he
does
not
agree
the
sheep
which
the
Defendant
hath
justified
;
but
he
mistakes
his
Iustification
.
For
he
brings
his
action
for
another
thing
;
As
the
Trespass
is
made
,
quare
clausum
fregit
;
The
Defendant
justifies
for
a
way
,
and
the
Plaintiff
says
that
he
went
out
of
the
way
;
It
is
a
good
replication
.
And
a
new
Assignment
of
the
Sheep
is
contained
in
the
Replication
,
the
Declaration
being
general
.
And
although
that
he
did
not
say
directly
,
that
the
sheep
are
other
.
Yet
put
all
the
parts
of
the
Replication
together
,
and
it
will
appear
that
they
are
other
.
But
Richardson
and
Crook
on
the
contrary
.
The
Replication
is
not
a
confession
and
avoidance
,
nor
traverse
of
the
bar
,
if
it
had
been
said
,
Ducent
.
alias
oves
.
But
then
the
Declaration
had
been
avoided
,
and
the
Defendant
might
plead
not
guilty
to
them
.
And
although
it
was
said
,
levant
and
couchant
upon
the
Chauntry
fold
,
yet
it
is
but
an
argument
:
and
express
allegation
in
bar
cannot
be
answered
by
arguments
.
For
a
prescription
is
for
Ewes
,
and
the
Trespass
quare
oves
&c.
generally
.
The
Defendant
alleges
his
prescription
,
and
avows
that
they
were
oves
matrices
.
And
the
Plaintiff
replies
that
they
were
oves
verveces
.
That
is
not
good
without
a
traverse
absque
hoc
,
that
they
were
oves
matrices
.
And
the
Case
put
before
of
Iustification
by
way
was
agreed
;
For
there
it
was
confessed
and
avoided
by
Replication
.
And
also
that
Case
alleged
by
Hutton
to
be
adjudged
.
A
Battery
is
alleged
to
be
done
the
first
of
May.
The
Defendant
justifies
deson
assault
dem
.
the
same
day
.
The
Plaintiff
replies
that
that
Battery
was
four
hours
after
the
other
Battery
.
And
it
was
traversed
,
and
well
,
which
was
ordered
by
the
Court
that
an
alias
should
be
added
in
the
Replication
,
&c.
Fawnes
Case
.
FAwne
an
Attorney
in
this
Court
,
had
arrested
divers
persons
,
by
Process
without
original
in
Actions
of
debt
.
And
where
the
King
ought
to
have
for
every
hundred
pounds
in
the
Obligation
10
s.
for
a
Fine
,
if
the
sum
exceeded
50
l.
And
when
the
original
is
sued
,
the
said
Fawne
took
the
mony
to
himself
of
the
Clyents
.
And
the
Cursiter
complains
to
the
Chancellor
,
and
be
informs
the
Court.
And
it
was
said
by
Richardson
,
because
he
had
taken
his
oath
which
every
Attorny
ought
to
take
,
That
he
shall
do
no
falsity
;
And
also
we
by
our
Oath
bound
to
punish
such
offences
:
Therefore
his
sentence
was
:
That
his
Name
should
be
put
out
of
the
Roll
,
and
thrust
over
the
Bar
,
and
committed
to
the
Fleet
;
Which
was
executed
accordingly
.
20
H.
6.
37.
&
41.
E.
3.
1.
Which
Cases
prove
the
same
.
Iames
and
Thoroughgood
against
Collins
.
IAmes
and
Thoroughgood
brought
Trespass
against
Collins
.
And
the
Case
was
this
,
A
man
makes
his
Testament
and
gives
to
5
men
their
heirs
and
assigns
,
certain
Houses
in
Fleet-street
,
&c.
All
of
them
to
have
part
and
part
alike
,
and
the
one
to
have
as
much
as
the
other
.
And
whether
the
Defendants
were
Iointtenants
or
tenants
in
Common
was
the
Question
;
and
it
was
adjudged
and
resolved
that
they
were
Tenants
in
Common
.
And
the
same
Case
in
2.
3
Phil.
&
Mary
in
Bendlows
Reports
is
adjudged
so
.
And
also
in
Lucan
and
Locks
Case
in
the
Kings
Bench
It
was
afterwards
remembred
and
agreed
to
be
good
Law
,
Ratcliff
;
Case
.
Advise
to
two
and
his
Heirs
,
in
Ioynt-tenency
by
the
whole
Court
,
against
the
opinion
of
Audley
.
It
was
said
by
the
Court
,
that
an
Officer
of
the
Court
ought
to
be
answered
in
any
action
de
die
in
diem
.
Quod
nota
,
&c.
Beguall
against
Owen
.
BEguall
brought
a
Writ
of
Partition
against
Owen
before
the
Iustices
of
Assise
,
at
the
grand
Sessions
in
Anglesey
.
And
the
Defendant
pleaded
the
general
issue
.
The
Plaintiff
prefers
a
Bill
in
English
,
and
says
that
Owen
is
Tenant
in
Common
with
him
,
and
that
divers
of
his
Witnesses
which
can
prove
his
Title
are
so
aged
,
that
they
cannot
come
to
the
Sessions
,
and
desires
a
Commission
to
examine
the
Witnesses
concerning
the
Title
in
perpetuam
rei
memoriam
.
And
Henden
moved
for
a
Prohibition
;
For
that
,
that
Cause
would
be
dangerous
for
the
Subject
,
that
such
Testimonies
taken
in
his
absence
should
be
for
tryal
of
his
Title
.
Secondly
,
That
that
examination
before
the
Tryal
is
against
the
Statute
of
26
H.
8.
And
although
they
have
it
in
Chancery
,
yet
it
is
not
so
here
.
But
it
was
denied
by
the
Court
:
For
there
was
never
seen
such
a
President
,
Of
a
Prohibition
to
a
grand
Sessions
.
And
by
Yelverton
.
They
have
it
in
Chancery
;
and
if
it
be
not
prescribed
in
what
manner
they
shall
have
it
,
it
should
be
as
in
the
Chancery
.
Hutton
,
That
Commission
is
not
prejudicial
to
the
Subject
,
although
a
Prohibition
be
grantable
.
For
such
Testimonies
are
not
used
but
after
the
Witnesses
are
dead
;
And
a
man
cannot
preserve
them
alive
,
and
perchance
his
Title
rests
upon
their
Testimonies
.
Iane
Heeles
Case
.
IAne
Hee
le
Administratrix
of
her
Husband
,
brought
an
action
of
Debt
upon
an
Obligation
made
to
her
Husband
the
Testator
;
The
Defendant
pleads
a
Recovery
by
the
Testator
upon
the
same
Obligation
,
and
that
he
was
taken
in
execution
,
and
that
the
Sheriff
suffered
him
voluntarily
to
escape
.
The
Plaintiff
replies
Null
tiel
Record
of
the
Recovery
;
Vpon
which
there
is
a
demurrer
.
Davenport
,
That
the
Iudgement
was
but
a
conveyance
to
their
matter
in
Bar
,
and
it
ought
not
to
be
traversed
.
But
it
was
said
by
the
whole
Court
,
That
the
Iudgement
in
it self
is
a
good
bar
,
if
it
be
not
reversed
.
6
Rep.
45.
Higgins
case
.
The
execution
upon
that
,
is
not
but
a
consequence
upon
the
Iudgement
.
And
without
the
Iudgement
,
Escape
is
not
material
for
to
make
the
traverse
good
.
And
so
Iudgement
was
given
for
the
Plaintiff
.
Issues
.
If
the
King
by
his
Letters
Patents
grant
to
the
Corporation
all
Issues
within
any
places
;
The
issue
that
the
Corporation
it self
shall
forfeit
,
shall
be
excepted
by
intendment
of
law
.
For
otherwise
it
would
be
a
defrauding
of
Iustice
;
For
then
the
Corporation
would
never
appear
.
Which
note
in
the
Case
of
Dean
and
Chapter
of
Ely
.
Provender
against
Wood.
PRovender
brought
an
action
upon
the
case
against
Wood
,
For
that
the
Defendant
assumed
to
the
Father
of
the
Plaintiff
upon
a
mariage
to
be
solemnised
betwéen
the
Plaintiff
and
the
Daughter
of
the
Defendant
,
to
pay
him
20
l.
And
it
was
agreed
by
Richardson
and
Yelverton
nullo
contradicent
.
That
the
action
well
lies
for
the
same
.
And
the
party
to
whom
the
benefit
of
a
promise
accrews
,
may
bring
his
action
.
Mrs.
Rowes
Case
.
MIstris
Rowe
was
arrested
by
a
capias
corpus
ad
satisfaciendum
,
by
a
Bayliff
in
Middlesex
,
within
the
Bars
in
Holborn
,
which
is
within
the
liberty
of
London
.
And
Hitcham
the
Kings
Sergeant
prayed
a
Supersedeas
,
For
that
,
that
the
arrest
was
false
.
And
the
Court
agreed
,
that
a
Supersedeas
cannot
be
granted
.
For
a
Supersedeas
it
cannot
be
alleged
Executio
erronice
emanavit
,
but
there
the
Execution
is
well
granted
.
And
if
it
be
returned
by
the
Sheriff
generally
;
It
ought
to
be
intended
well
served
;
although
that
the
Affidavit
be
made
to
the
contrary
.
But
in
this
case
a
Corpus
cum
causa
shall
be
granted
.
Booth
against
Franklin
.
BOoth
Farmor
of
a
portion
of
Tithes
for
5
years
;
without
Deed
demises
a
Farm
which
he
had
in
the
same
Parish
to
Franklin
for
years
;
and
afterwards
he
libells
against
him
for
tithe
of
that
Farm
.
And
Franklin
said
he
was
not
Farmour
.
And
Henden
prays
a
Prohibition
for
that
.
First
,
That
the
Lease
for
Tithes
is
without
Deed
:
but
he
may
be
discharged
of
his
own
Tithes
without
Deed
;
As
was
adjudged
before
in
this
Court
.
Secondly
,
the
Lessee
is
not
to
pay
tithes
for
that
Farm
.
For
although
the
Parson
makes
a
Lease
of
the
Glebe
for
years
,
he
paid
tithes
;
But
if
a
Layman
who
had
the
impropriation
leases
the
Glebe
,
the
Lessee
does
not
pay
tithes
.
But
the
Court
denied
the
case
of
the
lease
of
the
Parsonage
impropriate
;
And
said
that
the
case
of
Perkins
and
Hinde
was
adjudged
to
the
contrary
in
that
very
point
.
And
also
if
he
purchase
other
lands
in
the
Parish
(
which
are
discharged
of
tithes
in
his
hands
)
and
he
demises
them
,
yet
the
Lessee
pays
him
tithes
.
And
the
opinion
of
the
Court
was
,
If
one
contract
with
the
Parson
for
discharge
of
the
Tithes
of
his
lands
for
years
,
and
demises
his
lands
to
another
;
yet
he
shall
not
have
tithes
,
but
the
discharge
runs
with
the
land
.
But
if
one
take
a
lease
of
his
Tithes
by
deed
,
and
makes
a
demise
of
his
land
,
he
has
tithes
of
the
Lessee
.
And
the
direction
was
,
that
the
Lessee
of
the
Farm
ought
to
shew
expresly
in
the
Ecclesiastical
Court
that
the
Farmour
had
not
a
Lesse
by
Deed
;
and
a
Prohibition
was
granted
.
And
it
shall
be
admitted
,
that
the
words
of
the
libell
being
Firmator
,
conductor
&
occupator
was
good
,
Ralph
Andrews
against
Bird.
ANdrews
brought
an
action
upon
the
Case
against
Bird
,
and
declares
that
Bird
sued
a
Trespass
in
this
Court
against
him
;
and
upon
not
guilty
pleaded
,
the
issue
betwéen
the
aforesaid
Ralph
Andrews
,
and
Robert
Bird
was
tryed
at
the
Assises
,
&c.
And
that
there
Andrews
shew'd
in
evidence
a
Deed
of
feoffment
concerning
his
Title
,
and
the
verdict
passed
for
Andrews
.
And
afterwards
Bird
spoke
these
words
(
scilicet
)
That
Andrews
procured
the
Deed
to
be
forged
.
And
upon
not
guilty
pleaded
,
it
was
found
for
the
Plaintiff
.
And
Atthowe
moved
in
arrest
of
Iudgement
.
First
for
that
,
That
in
the
Record
it
was
entred
that
the
Issue
was
inter
praedict.
Robertum
,
where
it
should
have
been
Radulphum
.
And
secondly
that
the
words
were
not
actionable
.
Richardson
said
,
as
to
the
mistake
,
it
was
helped
by
the
word
aforesaid
.
And
although
that
it
was
inter
praedict.
Andrews
,
it
should
have
been
well
;
For
it
cannot
be
intended
,
but
the
same
Andrews
.
And
Crook
Iustice
cited
Dyer
260.
Cook
and
Watsons
Case
to
be
the
same
Case
,
and
11
H.
7.
Penningtons
Case
,
That
the
words
were
actionable
;
For
the
Statute
punishes
forgery
,
and
the
procurers
of
forgery
.
And
it
is
all
one
,
although
he
did
not
say
falsly
procured
,
as
the
precise
words
of
the
Statute
are
;
Yet
it
shall
be
intended
,
that
that
is
implyed
in
the
word
Forge
.
But
if
it
had
been
said
,
the
Deed
given
in
evidence
was
forged
,
that
was
not
actionable
.
Wood
against
Symons
.
WOod
against
Symons
in
a
Prohibition
,
in
which
Symons
libels
for
Tithes
of
Hay
.
And
Wood
suggests
for
the
Prohibition
,
That
he
used
to
pay
tithe
of
Hay
in
specie
,
in
consideration
whereof
he
used
to
be
discharged
for
all
Doles
,
Green-skips
,
and
Headlands
,
not
exceeding
the
breadth
that
a
Plough
or
a
Teame
might
turn
about
the
Lands
.
And
Henden
moved
for
a
Consultation
;
For
that
it
is
said
about
,
&c.
that
is
circa
terras
arabiles
.
When
the
truth
is
there
are
Skips
at
the
side
of
Lands
,
as
broad
as
the
Lands
themselves
;
and
then
he
would
be
discharged
of
them
also
.
Whereas
it
ought
to
be
at
the
end
of
the
Head-lands
only
.
Richardson
said
,
that
in
arable
lands
inclosed
,
Pasture
is
at
the
end
and
at
the
sides
,
which
is
mowed
,
and
yet
discharged
of
tithes
.
But
the
Court
in
respect
there
was
a
Prohibition
granted
said
,
That
he
ought
to
joyn
Issue
or
demurre
upon
the
Declaration
.
Summons
.
IN
a
Writ
of
partition
after
the
Summons
an
Estrepment
was
granted
,
and
generally
against
the
Parties
and
their
servants
.
For
in
partition
no
dammages
are
to
be
recovered
.
Quod
nota
.
Escape
.
IF
a
Sheriff
remove
his
Prisoners
out
of
the
County
without
being
commanded
,
it
is
an
escape
.
But
if
he
remove
them
from
one
place
to
another
in
his
County
as
he
changes
his
Gaol
,
it
is
not
an
Escape
:
But
if
he
remove
prisoners
for
their
ease
and
delight
in
the
same
County
,
it
is
a
Escape
.
As
the
Case
was
cited
by
Harvy
.
That
one
went
with
his
Prisoner
to
a
Bear-bating
in
the
same
County
.
And
it
was
adiudged
an
Escape
.
And
Hutton
Iustice
said
So
that
if
a
Sheriff
permit
his
Prisoners
to
go
to
work
for
their
benefit
,
it
is
an
Escape
.
And
the
Question
was
,
if
in
an
Audita
Querela
for
a
voluntary
Escape
of
one
in
Execution
,
there
should
be
bayl
;
and
the
opinion
of
the
Court
was
,
That
if
it
appears
,
That
the
Cause
upon
which
the
Audita
Querela
is
grounded
,
is
called
a
good
proof
by
the
Record
,
and
that
he
should
not
be
bayled
,
unless
good
and
special
bayl
.
Duncombe
against
Sir
Edward
Randall
.
IN
an
action
upon
the
Case
betwéen
Duncombe
and
Sir
Edward
Randall
for
diversion
and
stopping
of
a
River
,
It
was
agreed
by
the
Court
,
That
if
one
had
antiently
Ponds
which
are
replenisht
by
Chanels
out
of
a
River
,
He
cannot
change
the
Chanels
,
if
any
prejudice
accrew
to
another
by
that
.
And
yet
the
effect
by
prefluxions
,
is
to
have
the
Ponds
fed
out
of
the
River
.
But
sic
utere
tuo
ut
ne
laedas
alieno
.
The
Vicar
of
Hallifaxes
Case
.
A
Chaplain
that
was
under
the
Vicar
of
Hallifax
,
libells
against
him
for
his
Sallary
.
And
he
prescribes
that
the
Vicar
ought
to
pay
the
Chaplains
four
pounds
a
year
,
And
the
Vicar
prays
a
Prohibition
.
First
,
for
that
he
alleges
,
That
the
Chaplains
were
eligible
by
himself
;
And
because
that
Chaplain
was
not
elected
by
him
,
He
is
not
Chaplain
;
But
he
is
in
of
his
own
wrong
,
&c.
Secondly
,
That
prescription
for
Sallery
was
tryable
at
the
Common
law
.
Yelverton
,
the
Sallery
is
spiritual
,
as
the
Cure
it self
is
spiritual
,
for
which
it
is
to
be
payed
.
As
the
Case
in
Dyer
58.
Pl.
4.
But
a
Prohibition
was
granted
,
untill
it
was
determined
to
whom
the
election
appertained
.
And
that
now
depends
by
Prohibition
in
this
Court
.
Assault
and
Battery
:
TRespass
of
Assault
and
Battery
was
brought
against
two
,
and
the
one
of
them
appeared
,
and
a
Verdict
was
found
against
him
;
The
other
was
in
the
insimul
cum
.
And
dammages
were
taxed
against
him
who
appeared
.
But
the
Court
by
view
of
the
Plaintiff
,
increase
the
dammages
from
30
l.
to
40
l.
And
afterwards
a
verdict
was
given
against
the
other
Defendant
,
and
dammages
also
were
taxed
.
And
Thime
moved
that
the
other
Defendant
had
murdered
the
Officer
who
came
to
serve
the
Execution
upon
him
for
the
40
l.
And
so
they
by
possibility
might
recover
nothing
against
him
,
that
the
Court
would
increase
the
dammages
against
this
Defendant
upon
another
view
of
the
wound
.
But
the
Court
denied
that
;
For
they
can
have
but
view
one
time
in
this
Action
.
But
if
they
had
brought
several
Actions
then
it
had
béen
otherwise
.
But
he
directed
him
to
stay
all
untill
the
first
Defendant
was
hanged
.
And
then
they
may
make
a
view
and
increase
the
dammages
.
Margery
Rivets
Case
.
A
Iudgement
in
Debt
was
brought
against
Margery
Rivets
Administratrix
,
durante
minori
aetate
of
her
Son
.
And
in
a
Scire
facias
against
her
,
she
pleaded
in
Bar
,
that
she
was
Administratrix
,
&c.
and
that
such
a
day
her
Son
came
to
full
age
(
scilicet
)
17
years
,
and
that
after
she
refused
before
the
Ordinary
;
And
that
the
Administration
was
granted
to
a
Stranger
;
And
that
she
had
delivered
all
the
Goods
in
her
hands
at
the
time
of
the
Writ
brought
or
after
,
&c.
The
Plaintiff
replies
and
confesses
all
the
Bar
:
But
that
before
the
delivery
of
the
Goods
,
and
Administration
granted
by
the
Ordinary
(
devastivit
)
and
does
not
say
that
praedicta
Margery
devastavit
.
The
Defendant
joyns
Issue
Quod
praedict.
Margery
non
devastavit
.
Which
was
found
for
the
Defendant
.
And
Hitcham
the
Kings
Sergeant
moved
in
arrest
of
Iudgement
;
For
that
,
that
there
was
no
Issue
.
For
every
Issue
ought
to
be
returned
certain
,
and
the
Issue
grows
upon
the
affirmative
;
Then
the
word
of
the
Defendant
quod
praedict
.
does
nothing
,
for
the
affirmative
makes
the
Issue
.
Coo.
Countess
of
Salops
Case
.
A
Bar
may
be
taken
upon
Common
intent
.
But
a
Replication
ought
to
be
precise
and
certain
.
In
the
Exchequer
Chamber
.
Tho.
Harris's
case
.
One
pleads
that
he
was
seised
of
White
acre
and
Infeoffac
..
And
adjudged
naught
,
for
it
ought
to
have
been
feofavit
inde
.
For
he
may
be
seised
of
White
acre
,
and
enfeofft
of
another
acre
.
And
also
it
may
be
said
,
that
another
devastavit
,
although
that
the
wife
was
Administratrix
.
Atthowe
observed
all
the
course
of
the
Reeord
;
there
is
not
a
word
of
Margery
in
the
Replication
,
but
only
in
the
recital
:
But
says
ante
diem
quo
devastivit
.
And
the
Replication
cannot
be
taken
by
intendment
,
and
it
cannot
be
amended
;
For
it
is
not
vitium
scriptoris
,
nor
is
it
so
much
as
ipsa
devastavit
.
But
if
it
had
béen
said
that
praedict.
Margery
had
Goods
in
her
hands
,
sexto
Decembris
,
et
devastavit
,
then
it
should
have
béen
good
.
Crook
.
She
said
,
that
she
delivered
Goods
to
another
Administrator
,
and
then
he
replies
,
that
before
that
time
devastavit
.
It
cannot
be
intended
that
any
other
Devastavit
but
the
Wife
.
And
Hutton
said
,
that
that
séemed
to
him
to
be
good
.
But
Yelverton
replyed
,
that
it
did
not
séem
to
him
to
be
good
,
and
it
cannot
be
intended
Margery
.
The
Replication
is
the
Title
of
the
Plaintiff
,
As
upon
a
scire
facias
without
a
precedent
Iudgement
.
For
the
Duty
of
the
Plaintiff
is
when
the
Defendant
had
confessed
himself
to
be
subject
to
his
Charge
one
time
,
As
in
debt
upon
Arbitrement
;
and
the
other
pleads
no
arbitrament
made
.
And
in
point
of
arbitrement
to
pay
mony
,
It
is
not
sufficient
for
the
Plaintiff
to
say
,
That
the
mony
was
not
paid
at
the
day
:
But
he
ought
to
affirm
that
the
Defendant
had
paid
it
,
&c.
And
so
there
also
Margery
is
not
named
affirmatively
in
all
the
Replication
.
For
if
her
name
had
begun
any
sentence
,
then
she
might
be
intended
.
And
although
it
be
now
after
verdict
,
yet
the
verdict
will
not
help
.
So
it
was
adjourn'd
for
the
present
.
Robert
Barret
against
Margaret
Barret
his
Mother
.
RObert
Barret
brought
an
action
of
debt
against
his
Mother
,
for
an
Obligation
made
to
him
,
the
Condition
whereof
was
thus
.
That
she
shall
perform
all
that
part
of
her
Husbands
Will
,
that
of
her
part
is
to
be
performed
,
and
observed
concerning
the
Goods
,
&c.
And
that
she
shall
use
,
occupy
and
enjoy
all
the
Lands
and
Tenements
to
her
demised
,
according
to
the
true
intent
and
meaning
of
the
Will.
The
Defendant
recites
the
Will
,
which
was
,
that
her
Husband
gave
her
one
Messuage
and
Land
for
her
life
;
Excepting
all
the
Timber
Trees
and
Wood.
And
further
will'd
,
That
she
make
no
waste
nor
estrepment
in
the
Houses
,
Lands
or
Timber-trees
,
nor
her
Assigns
nor
any
other
for
her
.
And
further
will'd
,
That
if
she
shall
happen
to
do
any
such
waste
;
That
then
she
shall
pay
to
Robert
Barret
the
double
value
of
that
to
which
the
waste
shall
come
or
amount
unto
;
Being
indifferently
valued
by
two
chosen
by
themselves
.
And
furthermore
he
willed
,
That
there
ought
to
be
forty
load
of
Wood
per
annum
,
taken
for
fewel
upon
the
Land
demised
,
of
such
Trées
which
have
been
used
to
be
lopped
for
30
years
before
.
And
so
she
pleaded
,
that
she
performed
the
Covenant
in
all
,
&c.
And
the
Plaintiff
replies
,
that
the
Defendant
had
decouped
a
Grove
of
Wood
,
containing
by
estimation
one
moyety
of
an
acre
,
and
6
Elmes
,
and
20
Beeches
and
Sallows
,
and
Maples
,
and
Thorns
,
being
of
the
age
of
33
years
.
Whereupon
the
Defendant
demurred
.
But
Atthow
argued
for
the
Defendant
,
and
he
said
,
That
there
is
not
any
breach
of
the
Obligation
alleged
,
all
Timber-trees
are
excepted
;
And
because
when
she
cuts
them
,
there
is
no
waste
,
but
a
trespass
to
Robert
;
And
the
Will
is
,
That
she
shall
not
do
waste
.
For
if
she
had
entred
into
other
Lands
and
cut
Trees
out
of
the
Lands
of
the
demise
,
that
had
not
been
a
Forfeiture
of
the
Obligation
.
But
it
shall
be
objected
,
That
then
that
clause
had
been
void
;
if
his
intention
shall
not
be
construed
of
waste
to
be
done
in
the
Trees
;
Then
the
second
breach
is
not
well
assigned
;
For
the
words
are
,
If
she
does
waste
,
that
she
pay
the
double
value
.
And
then
although
that
waste
be
done
,
You
ought
to
allege
that
she
did
not
pay
the
double
value
:
for
if
she
had
paid
it
her
Obligation
is
saved
.
But
Hitcham
the
Kings
Sergeant
on
the
contrary
.
The
breach
is
well
assigned
.
The
Case
rests
upon
the
words
of
the
Obligation
,
and
the
intention
of
the
Will
:
and
then
the
Intention
will
appear
,
That
she
cannot
commit
waste
in
the
Trees
,
although
it
be
excepted
.
And
I
conceive
it
is
within
the
words
,
for
it
is
that
she
occupy
and
enjoy
the
Lands
demised
as
aforesaid
.
Now
if
I
grant
my
Land
,
I
ought
to
demise
my
Trees
also
.
And
if
I
be
obliged
not
to
commit
Estrepment
in
my
Land
,
If
I
pull
down
a
House
,
it
is
a
forfeiture
of
the
Obligation
.
For
if
Tenent
at
will
pulls
down
,
no
waste
lies
against
him
,
But
he
shall
be
punisht
by
an
action
of
the
Case
,
for
it
is
destruction
and
waste
at
the
Common
law
,
In
any
of
the
Houses
,
Lands
,
or
Timber
trees
.
And
what
Timber
trees
may
be
meant
.
But
those
are
excepted
,
when
all
are
excepted
.
Dyer
323.
Pl.
29.
After
the
Statute
of
23
H.
8.
Nothing
was
left
in
the
Feoffees
al
use
.
One
would
stand
seised
with
his
Feoffees
to
the
use
of
I.
S.
And
adjudged
that
that
is
a
good
demise
of
the
Land
.
Ed.
6.
conveys
the
Manor
of
Framingham
in
fee
farm
,
and
afterwards
grants
the
Fee
farm
:
and
the
Grantee
demises
his
Mannor
of
Framingham
,
&
the
Fée
farm
passed
;
for
that
that
it
was
usually
called
by
that
name
.
And
Thorntons
Case
3
El.
He
gives
all
his
Land
that
he
purchased
of
I.
S.
And
he
did
not
purchase
any
of
I.
S.
but
I.
S
had
conveyed
it
to
I.
D.
of
whom
he
had
purchased
.
And
adjudged
good
,
Sir
Edward
Cleeres
Case
,
Co.
lib.
6.
17.
So
there
it
ought
to
be
of
such
waste
,
as
he
in
his
apprehension
esteemed
to
be
waste
.
But
it
may
be
objected
,
that
she
did
not
pay
the
double
value
.
But
I
conceive
,
That
if
you
will
that
that
be
paid
,
yet
the
Will
is
broken
.
For
if
you
will
by
one
clause
that
she
commits
not
waste
,
and
by
another
if
she
do
,
that
she
pays
the
double
value
,
and
she
does
not
pay
it
,
she
breaks
two
clauses
.
That
ought
to
be
pleaded
by
you
.
If
the
Statute
prohibit
a
thing
,
and
if
he
offend
against
it
,
that
he
shall
pay
,
&c.
I
say
that
he
may
be
indicted
upon
the
very
Prohibition
.
So
that
you
would
shew
this
in
excuse
of
Waste
.
But
I
conceive
that
it
is
not
excused
upon
the
Statute
of
H
6.
Richardson
chief
Iustice
.
All
the
Obligation
goes
to
the
intention
of
the
Will
,
which
may
be
collected
by
circumstances
out
of
the
Will.
And
then
the
sir
Elmes
are
meerly
the
others
,
not
the
Sallows
,
Maples
,
Beeches
,
and
Thorns
,
by
which
the
intention
is
broken
.
Now
the
Law
will
not
allow
that
to
be
waste
which
is
not
any
ways
prejudicial
to
the
Inheritance
.
So
when
the
Husband
said
,
she
shall
not
commit
waste
,
It
was
not
his
intention
to
restrain
her
from
that
which
the
Law
allows
.
Thorns
in
some
Counties
are
adjudged
waste
,
where
Trees
are
scant
.
But
a
Grove
ordinarily
is
Vnder-wood
.
And
then
if
she
committed
waste
,
the
Husband
took
upon
him
to
impose
the
penalty
.
And
although
that
she
enter
into
an
Obligation
,
yet
it
is
that
she
is
restrained
by
the
Will
of
her
Husband
,
and
he
intended
it
for
a
benefit
by
that
imposition
of
forfeiture
;
and
therefore
we
ought
make
a
benign
construction
.
And
for
the
Obligation
that
the
non-payment
of
the
forfeiture
ought
to
be
shewed
by
the
Defendant
,
I
conceive
otherwise
.
For
the
breach
ought
to
be
averr'd
,
as
the
Will
is
.
And
where
a
breach
is
alleged
for
a
forfeiture
.
It
ought
to
be
pleaded
,
so
that
it
may
be
traversed
.
Cook
on
the
contrary
.
If
the
Obligation
be
that
she
perform
the
Will
,
then
peradventure
that
shall
be
no
forfeiture
.
Gooderidges
Case
.
AN
Indictment
of
murther
against
Gooderige
.
There
was
an
exception
taken
,
for
that
,
that
the
Indictment
was
;
That
the
said
Francis
who
was
murthered
such
a
day
,
apud
quandam
Down
.
vocat
.
Westmen
down
in
Comitat.
Hampton
,
insultum
fecit
,
&
quod
ibidem
habuit
&
tenuit
quoddam
glad
.
in
his
right
hand
,
&
praedict.
Fran.
percussit
,
and
does
not
say
ibidem
percussit
;
and
for
that
naught
.
For
it
is
not
a
necessary
intendment
,
that
the
percussion
was
at
the
same
place
.
Also
he
said
,
Whereof
instanter
obiit
,
that
is
no
certainty
;
But
by
argument
that
he
died
in
the
same
place
.
And
for
these
causes
,
and
because
it
was
body
for
body
,
the
Indictment
was
sufficient
.
It
was
agréed
if
a
Feme
sole
Executrix
of
a
terme
mary
him
in
the
reversion
,
and
dies
,
the
term
is
not
drowned
,
but
the
Administration
of
it
shall
be
committed
.
Otherwise
perhaps
if
she
had
purchased
the
reversion
.
And
it
was
the
case
of
Owen
.
If
the
Executrix
Debtee
mary
the
Debtor
,
That
the
debt
is
not
gone
,
but
the
Administrators
other
wife
shall
have
it
.
Moor
against
Penruddock
.
MOor
had
a
Latitat
against
Penruddock
the
Sheriff
of
Wilts
,
Who
returns
that
he
himself
was
Sheriff
,
and
could
not
be
arrested
by
any
,
or
imprison
himself
.
As
in
Plats
Case
;
a
Feme
Gaoler
marys
a
Prisoner
,
that
is
an
Escape
;
For
he
cannot
imprison
himfelf
.
Yet
the
Court
ordered
that
he
ought
to
appear
and
find
Common
bayl
.
Thomas's
Case
.
AN
action
upon
the
Case
by
a
Constable
of
a
Parish
against
Styleing
for
saying
,
Thou
art
a
bribing
Knave
,
and
hast
cousened
the
Parish
of
Wilden
in
rates
to
30
l.
Hores
Case
.
HOre
a
Clark
of
the
Common
Bench
brought
a
Bill
of
Privilege
there
.
And
the
entry
was
,
quod
praedict.
Hore
per
Tho.
Maun
Attornat
.
suum
obtulit
se
.
And
Iudgement
given
,
and
upon
that
Error
:
For
among
Clarks
of
Court
,
their
appearance
ought
to
be
in
proper
person
.
Fawkner
versus
Bellingham
.
LE
case
de
Fawkner
versus
Billingham
fuit
ore
argue
per
les
Iudges
.
Et
Yelverton
teigne
que
seisin
nest
requisite
,
et
pur
ceo
nest
deins
le
stattute
de
32
H.
8.
2.
et
ceo
pur
3
reasons
,
primo
pur
ceo
que
le
stattute
de
primo
E.
6.
est
le
title
sur
que
le
Avowry
est
fait
car
le
defendant
ne
poet
conveyer
cest
rent
al
lui
sans
monstre
le
saueing
dems
ceo
stattute
car
sans
le
saueing
touts
les
servises
sout
merge
27
H.
8.
Parlament
.
Alton
Woods
Case
primo
rep.
47.
Et
avowry
ore
ne
seroit
come
fuit
al
Comon
ley
mes
sur
tout
le
matter
.
Dyer
313.
plo
.
91.
Et
il
do
et
declarer
tout
son
cawse
come
est
in
un
Accon
dl
case
cenx
choses
doieut
monstre
:
primo
do
et
monstre
tout
le
stattute
,
&c.
Secundo
il
do
et
monstre
que
le
Roy
ad
bone
title
al
ceo
terre
come
Chauntery
terre
,
&c.
Tertio
que
le
party
que
claime
cest
rent
est
person
deins
le
saueing
,
&c.
Quarto
que
il
nest
deins
ascuns
des
exceptions
dl
stattute
,
et
ceux
do
et
ee
monstre
in
secula
seculorum
cy
mults
foits
que
il
distraine
.
Et
sur
ceo
son
count
est
sur
le
act
de
parlament
.
Et
si
arreages
suerout
al
le
Suor
.
devant
cest
stattute
le
Snory
eeaut
per
le
stattute
extinct
que
issint
fuit
perde
come
4
rep.
donque
le
rule
dl
ley
est
ou
Avowry
on
,
&c.
est
ground
sur
le
matter
de
record
.
ne
seroit
weaken
per
future
temps
in
matter
de
fait
quelcumque
Quare
Impedit
per
effluxion
de
temps
fuit
ouste
,
&c.
per
32
H.
8.
si
ne
soiet
vide
per
le
stattute
de
primo
Marie
cap.
5.
a.
mes
si
divers
Coparceners
voient
faire
partition
a
presenter
per
lour
turne
in
cest
Court
per
bre.
de
Covenant
on
droit
de
Advowson
ils
poient
aver
scire
facias
too
anus
apres
sur
cest
composition
car
est
per
matter
de
record
come
si
recovery
soiet
ewe
Scire
facias
gist
sur
ceo
in
eternum
33
E.
3.
title
&
3.
et
i
4.
6
E.
I.
S.
avoit
heires
de
son
corps
et
60
anus
passe
et
I.
S.
devye
sans
heire
del
Corps
et
uncore
il
poet
distrainer
pur
le
temps
per
les
partyes
et
suspend
et
poet
e'e
auters
Cases
.
Si
Sinor
voloit
releasor
son
Tenaun
distresses
pur
60
anus
sil
poet
aner
apres
sans
seisin
,
deins
40
anus
car
le
Su'or
durant
cest
temps
ne
poet
compeller
le
Tenaunt
a
paier
les
services
.
Et
que
cest
est
bone
release
1
H.
H.
4.
1.
et
4.
si
nul
distress
est
sur
de
terre
pur
40
anus
il
poet
distrainer
al
fine
de
40
anus
Lex
non
cogit
ad
impossibilia
.
Et
issuit
si
le
Tenaunt
voet
releasor
le
Tennancy
al
Signeour
pur
60
anns
le
Suor
poet
apres
distrainer
.
Et
si
deux
Coparceners
sont
et
un
in
vie
dl
pierpur
chase
rent
charge
de
liu
in
Fee
et
il
devye
cest
rent
est
suspende
tanque
partition
soiet
sait
coment
que
soiet
apres
pur
400
anus
distresse
.
est
loiall
pur
le
rent
que
estore
revive
.
Et
donque
si
Grauntor
et
Grauntee
poet
saue
ceo
per
lour
assent
a
fortiori
poet
e'e
sait
per
assent
de
Act
de
parlament
car
4
choses
sout
Assent
:
per
act
primo
que
le
rent
serroit
save
.
Secundo
que
serroit
seuer
del
signiorye
et
deveigne
rent
seck
,
&c.
Tertio
que
touts
former
seisins
serrout
fruitles
car
estoiet
come
rent
saue
per
parlament
,
&c.
Quarto
que
le
stattute
done
nul
distresse
pur
cest
rent
vncore
les
Iudges
done
distresse
pur
ceo
car
le
stattute
sane
ceo
et
one
le
remedy
aver
ceo
mes
ceo
n●st
done
per
le
statute
mes
construction
des
Judges
.
Et
issuit
le
construction
sur
primo
E.
6.
overrule
le
stattute
de
32
H.
8
,
&c.
Secundo
nest
deins
le
intent
pur
ceo
que
le
stattute
ne
extende
al
ascun
rent
mes
seisin
do
et
e'e
necessariement
alleadge
come
in
rent
service
est
necessarye
26
H.
8.
Com.
945
E.
62
,
et
63.
et
13
H.
assise
br.
60
,
&c.
Et
donque
ne
vnque
seisine
apres
le
stattute
de
Limittation
est
bone
plea.
Et
in
ceux
on
le
comencement
nest
scavoy
de
eux
come
Annuity
per
prescripsion
hors
de
Coffers
on
Corrody
&
icy
seisin
est
properment
dee
alleadge
et
sout
denis
le
stattute
mes
le
comencement
de
cest
rent
scavoy
scilicet
per
primo
E.
6.
mes
jeo
ne
intende
que
est
novel
rent
mes
veiel
rent
one
novel
privilige
car
ore
estoiet
per
lui
mesme
on
fait
parcel
dl
service
.
Secundo
cest
rent
.
Tertio
nul
distresse
de
common
droit
est
incident
al
ceo
come
fuit
devant
per
le
privity
inter
le
Owner
dl
rent
,
et
le
owner
dl
terre
.
Et
le
distresse
est
annex
all
ceo
per
Construction
,
des
Iudges
a
satisfye
les
parolls
del
stattute
.
In
ma'nnor
such
like
forme
and
Conditions
as
if
this
sentence
had
never
been
made
,
&c.
Quarto
cest
rent
est
support
sans
se
seisin
et
e'eant
devant
restrain
per
le
stattute
de
32
H.
8.
assise
plo
23.
1
H.
4.
et
22
ass.
plo
.
53.
30
E.
3.
Stathum
.
Warranty
.
Tertio
est
mesme
rent
in
continuaunce
destate
fait
Fee-simple
:
Et
est
mes
a
fairer
ceo
al.
le
stattute
de
Limitations
est
oppositum
in
subjecto
.
Et
les
parolls
ne
sane
le
rent
in
le
mesme
mannor
,
&c.
oue
ceux
differences
sout
satisfye
car
auterment
vous
comitmults
absurdityes
scilicet
que
continnue
rent
service
et
que
le
Signiory
continue
mes
les
Construction
est
que
le
rent
continue
al
le
prim
.
Owner
cy
liberall
pur
estate
et
remedye
cy
free
pur
perception
come
devant
imo
melius
car
ore
il
poet
distrainer
al
ascun
temps
et
est
pluis
fort
que
si
le
distresse
fait
expressement
done
per
le
stattute
car
donque
poet
e'e
release
mes
cest
distresse
donque
per
construction
ne
poet
e'e
release
car
la
ley
create
ceo
come
vn
hand
mayden
al
waiter
sur
le
rent
.
Mes
voet
e'ee
demaund
hors
de
quel
wombe
cest
rent
seck
issue
,
&c.
Respons
hors
de
nul
wombe
forsane
le
wombe
dl
Parlament
et
primo
E.
6.
unde
sequitur
que
rent
seck
est
scavoy
a
aner
commencement
et
donque
un
originall
est
scavoye
est
hors
stattute
8
rep.
64.
pur
ceo
que
cest
stattute
suit
sait
pur
deux
reasons
,
&c.
Le
primer
que
Jurors
nedoieut
e'e
trouble
al
searcher
in
temps
incertain
,
&c.
Le
second
que
dormant
Titles
poient
e'e
dettermine
.
Le
third
le
stattute
de
limitations
Merton
cap.
primo
Westminster
le
primer
cap.
39
West
.
le
second
cap
26
coment
que
ceux
stattutes
confine
al
certain
temps
uncore
si
le
comencement
de
chose
poet
e'e
monstre
al
le
Court
fait
hors
de
eux
.
Et
ore
le
stattute
de
32
H.
8.
sweepe
touts
ceux
stattutes
awaye
come
Limitations
,
45
E.
41
63.
si
apres
le
stattute
de
limitations
de
assises
et
devant
le
stattute
de
Quia
Emptores
terrarum
Auncestours
de
I.
S.
soiet
infeoffe
dl
terre
tenus
de
Feoffor
per
fealtye
et
rent
et
Avowrye
et
fuit
pur
ceo
rent
ore
si
le
special
matter
soiet
monstre
per
quel
appeirt
quant
on
Surye
commence
ciy
est
nul
plea
que
Suor
ne
fuit
seisie
apres
le
stattute
de
Limitattions
de
Assises
car
le
Court
do
et
indger
de
speciall
matter
disclose
et
le
seisin
de
tiel
reut
ne
unque
ferroit
traverse
&
21
H.
7.
Kell
31.
per
Reade
mes
si
rent
survive
soiet
sait
sans
date
devant
temps
de
memory
.
Si
le
sait
so●et
de
20.
s.
et
ill
ne
unque
fuit
seise
forsane
de
10.
s.
que
non
unque
avoit
ne
unque
seisie
est
bone
plea.
Et
pur
ceo
il
est
mise
all
bre
de
customes
et
services
et
uncore
cest
rent
est
intire
.
Et
fi
home
tient
dl
Roy
imediatement
,
et
il
voet
obtaine
Licence
a
faire
Feoffment
a
tener
de
lui
mesme
come
est
usuall
,
&
il
fait
Feoffments
rendant
rent
et
Fealtye
ceo
est
cleerement
hors
dt
Stattute
de
32
H.
8.
pur
ceo
que
est
novel
tenure
et
le
Licence
est
touts
soits
sur
record
in
le
Chauncery
et
pur
ceo
que
te
comencement
.
de
cest
rent
.
Est
Cognise
est
hors
dl
Statute
.
Tertio
le
Stattute
de
primo
E.
6
,
serroit
construe
liberallment
pur
ceo
que
va
al
supportacon
de
rent
que
esto
et
oue
common
droit
.
Et
sout
three
kindes
del
acts
de
Parlament
primerment
est
de
creation
:
Secundment
Confirmacon
.
Et
Tiercement
preservacon
et
de
cest
darraine
kinde
est
primo
E
6.
si
cest
act
de
Parlament
avoit
ce
done
rent
per
expresse
parrolls
sans
question
serroit
hors
de
32
H.
8.
donque
ceo
ne
,
scavoy
pur
que
ne
serrit
pur
le
plt
eeant
sane
per
le
Stattute
.
Et
ne
fait
le
intent
de
cest
Stattute
a
sauer
cest
rent
pur
temps
infinite
,
et
suffer
ceo
a
devoigne
fruitles
pur
temps
finite
si
le
rent
navoit
ee
paye
pur
100
amis
est
sane
per
le
Stattute
et
payment
per
le
Tennaunt
a
volunt
revivor
ceo
cap.
11.
5
E.
4.
7.
E.
4.
22.
E.
4.
7.
mes
seo
agree
que
payement
de
tiel
rent
per
mon
bailie
nest
bone
dauer
seisin
.
5.
Rep.
56.
sil
navoit
mon
Licence
Et
est
diversitye
inter
Ordinaunce
fait
per
act
de
Parlament
per
parroll
affirmatine
&
Com.
113.
Su
nostre
case
le
Stattute
de
ceo
suit
pluis
que
le
common
tey
puissit
sane
cur
le
Common
ley
avoit
destroy
te
Snorry
Kell
.
131.
Stattute
de
de
Marlebridge
annex
le
suite
de
touts
les
Coparceners
al
eigne
soer
cest
suite
est
hors
dl
Stattute
de
32
H.
8.
pur
ceo
que
te
Stattute
avoit
issuit
annex
,
ceo
al
eigne
que
il
preserve
ceo
al
Snor
:
de
lui
touts
foits
a
fortiori
lou
cest
rent
est
sane
per
un
Stattute
pluis
darraigne
que
cest
de
cy
hault
nature
que
le
Stattute
de
32
est
et
ne
saueing
eeaut
de
si
mult
.
Judgement
car
si
le
rent
avoit
ee
release
al
Chauntery
Priest
,
one
condicon
avoit
ee
issuit
sane
Dyer
252.
Car
le
stattute
intend
a
saner
lou
fuit
,
droit
et
possession
et
nemy
droit
sans
possessions
mes
Crooke
Justice
contra
lui
:
ne
Poet
ee
deny
mes
devant
le
Stattute
de
primo
E.
6.
suit
bone
plea
in
a
vowry
pur
cest
rent
ne
unque
seisu
&
le
question
ore
est
on
le
stattute
de
primo
prise
seo
hors
de
32.
Avoit
ee
prise
que
est
rent
preserne
per
le
Stattute
de
1.
Et
si
avoit
ee
express
excepcon
de
cest
rent
serroit
bone
sans
seisin
a
quel
jeo
agree
mes
jeo
dye
que
cest
reut
nest
done
ou
preserne
per
le
Stattute
si
ne
Poet
prender
son
temps
car
vigilantibus
,
&
non
dormientibus
cest
reut
est
channge
per
primo
mes
nemy
novellment
done
non
est
res
alia
sed
alterata
et
ore
est
reut
Secke
,
distranable
mes
cest
Alteracon
deveigne
deins
temps
de
memory
,
mes
quomodo
constat
quant
cest
rent
commence
,
donque
est
de
touts
les
cases
mise
per
Yelverton
Dyer
133.
Alton
Woods
Case
1
Rep.
47.8
Rep.
118.
&
Strowds
Case
Latitat
que
comment
que
soiet
preserue
uncore
il
ne
Poet
aner
ceo
come
devant
mes
la
ley
intende
a
fairer
eeo
come
matter
de
profitt
al
Snor
in
tiel
mannor
.
Et
jeo
denye
le
case
que
si
Arreages
fuerout
done
devaut
le
Stattute
que
soit
perde
car
le
ley
sane
le
reut
come
fuit
devaut
mes
ceo
nest
quoad
le
profitte
mes
quoad
le
tenure
:
Voier
est
que
le
avowry
est
change
car
do
et
avowe
sur
tout
le
matter
donque
le
reut
vucore
eeaut
in
point
de
a
owrye
car
avoit
come
devant
,
seisin
est
touts
foits
requisite
.
Et
jeo
agree
touts
les
cases
mise
de
Scire
facias
sur
record
il
Poet
aver
enx
al
ascun
temps
pur
ceo
que
il
ne
vaier
pluis
onster
le
Record
.
Mes
ny
in
Monstrans
sou
Title
il
do
et
vaier
le
Stattute
de
primo
,
et
monstra
son
tenure
procedent
le
act
de
Parlament
;
et
ceo
est
son
title
ex
commencement
dl
Tenure
oue
ne
appeirt
car
donque
le
reut
ne
Poet
ee
parcel
dl
mannor
,
come
est
agree
dee
et
le
mon.
strans
dl
act
de
primo
est
pur
ceo
que
il
do
et
avower
sur
le
matter
donque
quant
il
declare
surreut
nemy
create
per
sait
on
record
mes
do
et
alleadge
seisin
devant
le
Presbitery
dissolue
per
touts
les
liuers
la
seisin
do
et
ee
travers
22
H.
8.
63.
35
H.
6.
Avowry
.
Seisou
avowry
est
le
principal
chose
14
H.
4.
2.
record
.
Long
4
H.
6.
2.
differt
le
difference
la
est
que
si
single
person
teignant
,
per
rent
in
avowry
,
seisin
do
et
e'e
allege
per
maynes
de
ascun
person
si
per
Corporation
auterment
est
el
seisin
alleadge
generallment
est
bone
27
H.
8.
4.
Et
20
coment
que
avowry
est
chainge
del
person
sur
le
terre
per
le
Stattute
de
21
H.
2.
uncore
est
alleadge
30
H.
6
Avowry
15
la
est
dit
que
seisin
est
le
possession
9
Rep
,
24.
expressement
pur
avowry
est
possessory
Action
seisin
est
le
ground
de
vestre
Accon
.
Et
si
ne
pores
maintainer
te
seisin
alleadge
te
Accor
fait
pur
ceo
ny
seisin
ne
eeaud
alleadge
son
title
saile
:
mes
il
ditque
poies
scoviour
le
Commencement
de
c●st
reut
voier
est
que
si
Poet
ee
monstre
per
fait
ou
record
le
tempr
dl
commencement
donque
per
contra
formam
.
Foffamenti
,
on
per
monstrans
del
sait
poies
bar
le
avowry
Com.
9.
4.
seisin
do
et
ee
traverse
&
confess
ou
avoyd
,
et
ceo
est
forsque
deux
voies
.
primes
per
cohersion
de
distress
,
ou
per
monstrans
sait
dl
tuncore
ascun
Livers
teignant
in
cest
case
que
vous
estis
mise
al
contra
formam
Feoffamenti
come
Long
5
E.
4.
16
E.
3.
Avowry
uncore
ceo
concern
que
le
monstrans
dt
fait
est
bien
per
lui
mesme
10
H.
7.
11.
44
E.
3
s
Avowry
76.
Et
auxi
seisin
per
Coheire
nad
lier
12
E.
4.
7.
et
5
E.
4.
28.
30
E.
3.
5.
donque
cest
Act
de
Parlament
nest
done
novel
rei
mes
de
touts
choses
ewe
devant
et
nemy
create
mes
saueone
les
Quallities
come
fuit
.
Et
ieo
agree
,
que
le
reut
coment
seisin
ne
unque
ewe
pur
ioo
anns
devant
est
in
esse
de
sane
per
le
stattute
si
seisin
fuit
unque
sait
Auxi
le
Stattute
fuit
fait
pur
le
ease
des
Subjects
.
Et
pur
ceo
le
case
in
les
Com.
371.
est
que
lestattute
de
Limmittacons
et
fines
fuerunt
sait
sur
un
reason
silicet
pur
le
quiet
del
fubject
.
Et
ne
doient
ee
construe
per
imaginacon
des
Judges
mes
solonque
le
parrolls
del
Stattute
,
et
lou
fuit
dit
que
cest
Stattute
ouste
les
former
Stattutes
de
Limittacons
mes
jeo
denye
ceo
mes
il
done
un
shorter
cutt
:
Et
veies
le
common
ley
devaut
cenx
Stattutes
.
Bracton
dit.
52.
que
longa
possessio
quasi
sunt
me
possidendi
&
issuit
que
cest
Liner
account
de
long
possession
come
de
droit
Glanvile
libr.
3.
cap.
14.
le
limitacon
de
Avowrye
fuit
Westminster
2.
Et
donque
32.
plius
ceo
restrain
,
donques
quant
ley
regard
le
possession
,
et
le
seisin
:
est
le
possession
si
ne
unque
avoit
seisin
semble
que
navoit
droit
8
E.
1.
18
Horne
:
et
jeo
denye
le
case
que
si
navoies
seisin
per
temps
hors
de
memory
que
ne
poies
vuque
aver
ceo
Car
sil
gaine
seisin
on
le
Tenaunt
consesse
est
bieu
mes
est
object
que
ceo
saneing
est
un
done
mes
saneing
est
reservacon
de
chos
in
Esse
devaut
Com.
563.
35
H.
6.
34.
per
Danbye
26
ass.
66
le
Snor
mesine
,
et
Tennaunt
:
Tenaunt
tieut
per
soccage
mesne
in
Chivallrye
,
le
Tenaunt
devaut
lestattute
de
Quia
Emptores
fact
done
dl
terre
salvo
.
Forinseco
servitio
,
et
le
savant
fuit
voyde
pur
ceo
que
fuit
in
soccage
8
E.
3.
67.
Avowry
154.
9
H.
3.
1.
home
tieut
terres
per
homage
fealtye
rent
et
auter
services
Et
Snor
release
al
Tenaunt
son
seruices
Et
le
Tenaunt
claime
le
terre
except
15
s.
Et
le
question
est
quel
rout
ceo
est
et
fuit
rule
;
que
est
rent
service
;
Et
que
il
avoit
fealtye
al
ceo
incident
pur
ceo
que
est
pur
le
faneing
:
et
serroit
de
mesme
quallitye
come
fuit
Parlaments
:
776.
la
le
saneing
ne
Poet
vaier
al
chose
que
non
est
in
esse
,
donque
rent
reserve
per
voy
de
saneing
est
cognize
nemy
dee
done
ascuns
foits
,
saveing
Poet
doner
come
per
Stattute
de
34
H
8.
primer
seisin
est
sane
al
lui
lou
navoit
devaut
.
Et
ceo
est
rule
lou
saneing
est
un
Act
de
Parlament
de
chose
que
nest
esse
devant
la
potius
quam
le
saneing
seroit
idle
seroit
un
expresse
done
come
si
terre
soiet
done
per
Parlament
al
I.
S.
savant
al
I.
D.
rent
de
20
s.
per
annum
:
hors
de
ceo
que
navoit
devant
cest
saneing
done
le
rent
al
I.
D.
Et
si
in
cest
case
le
saneing
a
voit
e'e
del
cest
rent
in
particular
al
defendant
il
avoit
comence
per
cest
saneing
mes
uncore
si
le
saneing
avoit
e'e
de
touts
rents
et
services
in
perticular
al
defendant
seroit
auterment
.
Et
est
case
on
surplusage
de
rent
est
al
Suor
.
Et
le
Suor
peramount
purchase
le
Teuauncy
ceo
est
saneing
per
comon
ley
al
Suor
,
et
le
comencement
de
cest
saneing
est
sane
uncore
in
Avowry
pur
cest
seisin
do
et
e'e
alleadge
et
auxi
est
traverseable
2
E.
2.
extinquishment
,
20
E.
3.
Avowry
26
H
6.
H.
67.
et
Littleton
,
&c.
Mes
est
object
que
le
Parlament
done
cest
saneing
et
les
Iudges
done
construction
de
ceo
:
mes
jeo
conceave
que
le
common
ley
ne
voet
permitter
tiel
construction
car
donque
poet
extend
al
touts
rents
extinct
per
le
stattute
de
Quia
Emptores
:
Et
jeo
denye
le
case
que
si
avoit
seisin
devant
de
ceo
come
rents
service
et
ceo
ne
seroit
sufficient
quaut
est
secke
car
le
contra
11
Rep.
11
et
5
E.
2.
seisin
de
Rose
est
bone
20
s.
est
de'
e
paye
apres
per
19
E.
3.
Execucon
163.
&c.
Darraniement
per
lauter
Construccon
cenx
mischeefes
voient
follow
que
touts
les
Chauntery
terres
serrout
rake
up
arreere
et
chescun
voet
dire
que
tiel
Chauntery
Prieest
tieut
terres
de
moy
per
tiel
Charge
sans
,
cause
on
remedy
car
devaut
cest
Stattute
fuit
remedy
per
ne
unjust
vexes
ou
coutra
formam
Feoffament
Fittarzb
.
na.
br.
10.
mes
ore
per
cest
Stattute
vous
ouste
le
Tenaunt
de
fairer
son
remedy
ne
unjust
vexes
,
ne
Poet
aver
pur
ceo
que
est
rent
secke
.
Et
in
un
Wood
et
Smiths
Case
fuit
a
dindge
in
cest
Court
que
hors
de
son
Fee
nest
bone
plea
pur
ceo
que
nest
rent
fervice
.
Avoit
ee
object
que
seisin
de
fealty
devaut
cest
Stattute
fuit
bone
seisin
de
rent
pur
avowry
mes
ore
per
le
Stattute
le
Fealty
est
ale
pur
ceo
si
vous
deprive
lui
de
un
remedy
doies
doner
un
auter
mes
fui●
son
folly
nemy
a
procures
seisin
devaut
lestattute
de
vigilantibus
et
non
dormientibus
&c.
&
ceo
est
le
reason
dl
livers
que
le
plaint
ne
dira
ne
unque
seisie
apres
le
temps
de
Limmitacon
1
M.
br
.
avowry
.
107.
Seisin
Poet
ee
alleadge
generallment
mes
le
traverse
do
et
ee
deins
40
anns
Dyer
315.
14
H.
7.
1.
per
Brian
16.
Eliza
:
Warnings
Case
,
et
aux
les
parrolls
dl
Stattute
de
32.
sout
in
le
negative
que
null
person
&c.
car
le
intention
dl
Stattute
fuit
que
homes
ne
serrent
appell
in
question
pur
services
lou
le
title
nest
scavoye
5
Rep.
12.
4.
que
lease
pur
anns
serroit
barre
per
fine
pur
ceo
que
est
a
staier
debates
.
Et
6.
E.
6.
br.
Limmittacons
Coppyhold
est
Barre
per
le
Stattute
de
Limmittacons
.
Et
le
Stattute
de
21
Iacobi
doue
le
reason
.
Et
Heidens
Case
3
Rep.
7
,
touts
mischeefes
doient
ee
deins
le
remedy
.
Objeccon
est
que
le
terre
est
in
maynes
dl
Roy
de
60
auns
est
sans
remedy
si
ne
Poet
distrainer
,
apres
sans
seisin
mes
il
Poet
aner
le
terre
hors
dl
maines
le
Roy
per
peticon
.
Et
Harvey
,
al
cestui
intent
et
il
teigne
que
le
saneing
in
primo
que
et
ne
done
cest
rent
intant
que
saneing
nest
forfaue
dl
reut
hors
dl
Stattute
et
vaier
solemeut
al
choses
preseut
Com.
Wro
.
teslyes
et
Adams
Case
primo
rep
Alton
Woods
Case
,
et
17
Eliza.
Dyer
332.
pl.
27.
Et
Perkins
mist
cest
ground
et
si
vous
aves
novell
reut
per
voy
de
reservacon
ne
Poet
ee
per
savaut
mes
per
parroll
reddendo
.
Et
il
agree
que
saueing
in
Act
de
Parlament
ascun
foits
Poet
doner
come
in
les
cases
mise
per
Crooke
donque
per
ceo
saneing
in
act
de
Parlament
,
il
navoit
plius
que
il
avoit
de
vaut
mes
secundo
que
ceo
rent
est
solemeut
alter
in
respect
dl
Tenure
,
mes
est
le
mesme
in
proporcou
et
parcell
dl
mannor
,
et
est
consesse
icy
in
pleading
dee
parcell
del
mannor
,
et
tout
le
alteracon
fait
est
solemeut
del
tenure
propter
absurditatem
come
est
Dyer
313.
qùe
le
Roy
teigneroit
dl
subject
.
Et
il
dit
que
les
Iudges
in
Dyer
313.
ne
intend
que
le
rent
veigne
hors
dl
Stattute
,
mes
que
le
Stattute
save
ceo
in
mesme
le
manner
come
le
presbiter
primo
avoit
ceo
,
et
nemy
come
rent
service
propter
absurditatem
mes
que
le
reut
et
distresse
remaine
,
&c.
Tertio
que
cest
distresse
nest
solemeut
forsque
sou
ease
et
issuit
do
et
ee
lou
nest
inter
very
Snor
et
very
Tenaunt
.
2
H.
4.
24.
29
H.
6.
41.
14
H.
4.
17.
et
18.
38.
H.
8.
a
Avowry
.
B.
113
donque
le
avowrye
ne
change
ceo
.
Quarto
donque
le
consequence
est
que
serroit
deins
32
H.
8.
Et
il
agree
le
difference
mise
in
Sir
William
Fosters
Case
.
8
Rep.
65.
et
in
Rep.
108.
cited
arreere
et
il
dit
que
cest
case
la
cite
proue
ceo
mult
.
Si
Snor
et
Tenaunt
soiet
:
le
Tenaunt
fait
done
in
taile
le
remainder
in
Fee
la
si
le
Snor
incroach
sur
le
Donee
il
lier
lui
mes
nemy
son
issue
.
Et
le
reason
que
il
lier
est
le
seisin
donque
suppose
que
fuit
le
very
Snor
et
very
Tenaunt
devaut
le
Stattute
de
primo
Snor
incroach
sur
sou
Tenaunt
et
donque
il
release
distres
al
Tenaunt
,
et
donque
le
Stattute
de
primo
est
sait
uncore
seisin
do
et
ee
alleadge
ou
autermeut
vous
easyement
leape
over
le
Stattute
et
il
dit
que
les
livers
differe
mult
in
lour
case
de
seisin
car
ascuns
diout
ne
unque
seisie
est
bone
plea
24
E.
3.
26.
39
E.
3.
34.
36.
H.
6.
25.
mes
le
Conclusion
ore
per
Donor
in
authority
est
que
do
et
pleade
ne
vuque
seisie
apres
temps
de
Limmittacon
Dyer
315.
4
Rep.
Bevills
Case
et
9
Rep.
Bucknalls
Case
est
agree
le
diversity
la
mise
scilt
que
cest
Stattute
de
32
H.
8.
do
et
ee
liberallmeut
expound
pur
le
repose
dl
Subjects
:
&
voier
est
que
B.
Limmitacon
primo
dit
que
cest
Stattute
ouste
les
auters
Stattutes
de
Limmittacons
mes
il
intende
que
avoit
prist
le
force
del
auters
Stattutes
et
le
mischeefe
serroit
,
si
tiels
reuts
come
tiel
est
,
ou
comencement
ne
Poet
ee
scavoy
ne
serra
deins
le
Stattute
que
people
voieat
ee
idle
et
negligent
in
clamant
enx
si
poieat
vener
et
monstre
reut
sur
ceo
Stattute
de
primo
:
et
proue
seisin
devaut
le
Stattute
per
le
auntient
Court
rolle
,
ou
Bailiffes
Accounts
que
est
bone
Evidence
al
Jury
come
le
reut
perhapps
navoit
ee
paye
pur
100
anns
et
perhapps
Poet
ee
discharge
et
nul
cognize
de
ceo
.
Et
vucore
sur
tiel
Evidence
il
Poet
recover
per
lauter
construccon
&
mes
Hutton
coutra
lui
:
que
cest
reut
nest
deins
le
Stattute
de
Limmittacons
deux
choses
sent
dee
consider
:
primerment
coment
el
in
quel
mannor
cest
reut
est
sane
;
et
ore
il
prise
effect
,
et
avoit
sou
birthright
in
cest
mannor
come
est
dl
saueing
.
Secundment
in
quel
mannor
nature
cest
rent
estoiet
al
cest
iour
:
Tout
que
est
die
del
auter
part
adhunc
consiste
de
3
obejections
solement
,
&c.
Primerment
que
cest
rent
est
novel
rent
et
le
comencement
de
ceo
ne
poet
e'e
scavoy
donque
le
consequence
est
ore
seisin
est
necessary
de'
e
alleadge
Et
tertio
que
do
et
e'e
liberall
Construction
de
32
H.
Et
ils
conclude
sur
le
danger
de
cest
Construction
,
que
le
Tenaunt
seroit
sans
remedy
si
rent
soiet
claime
primerment
cest
stattute
de
primo
est
solement
confirmation
:
mes
in
a
scun
mannor
creation
de
cest
rent
in
quantity
del
benefitte
on
est
de'
e
consider
quel
force
le
saneing
avoit
car
est
agree
que
si
jeo
done
ceo
rent
donque
dehors
ceo
stattute
de
32.
Et
appeirt
que
ceo
rent
port
effect
dl
saneing
quelcunque
do
et
e'e
alleadge
in
avowry
et
sans
quel
na
voit
title
done
effect
al
ceo
mes
ciy
le
saueing
de
necessity
do
et
e'e
alleadge
ergo
,
&c.
saneing
in
le
stattute
do
et
aner
construction
solonque
le
matter
si
ne
soiet
repugnant
.
Et
le
stattute
intende
que
les
averont
lour
Suoryes
arreere
,
per
le
saueing
in
31
H.
8.
de
Monasteryes
on
rent
services
sout
except
et
ieo
avoy
vewe
les
liuers
et
arguments
sur
14
Eliz.
Dyer
313.
Et
la
leopinion
de
Meade
est
que
le
terre
serroit
ore
tenus
de
deux
Suors
et
Roy
et
veiel
Suor
,
Et
est
reason
que
le
Tenure
seroit
revive
auxi
pur
ceo
jeo
agree
que
le
stattute
primo
seroit
expound
liberallment
:
et
compare
ceo
one
auters
auntient
Stattutes
de
tiel
nature
le
stattute
de
7
E.
4.
cap.
5.
est
expound
que
si
Tenauncy
veign
al
roy
per
attainder
,
et
graunt
al
auter
que
le
Suory
dl
common
person
serra
revive
br.
Revivor
9.
Et
uncore
le
stattute
est
penned
,
come
ceo
est
issuit
que
est
Equity
que
ils
que
perde
lour
Suoryes
sans
lour
default
que
tiel
saueing
seroit
liberallment
expound
Carfi
le
Suory
fuit
extinct
per
ascun
act
dl
Suor
cest
exposition
de
distres
ne
serroit
mes
sur
cest
stattute
est
expound
que
il
aver
distres
pur
ceo
et
de
comon
droit
&
jeo
compare
ceo
al
case
de
rent
,
fait
sur
auter
stattute
.
Le
stattute
de
27
H.
8.
de
uses
ou
si
home
soiet
seisin
de
terre
al
intent
a
paier
rent
al
estraunger
le
stattute
fait
ceux
rents
bone
,
et
done
distresse
al
party
pur
eux
:
et
nul
de
ceux
rents
sout
de
deins
le
Stattute
de
Limitations
,
et
si
feoffment
soiet
fait
al
cest
iour
al
intent
a
paier
rent
al
estraunger
on
,
&c.
si
poet
destrainer
sur
cest
stattute
coment
nul
clause
soiet
de
distresse
come
Dyer
36.
3
Plo.
21
,
&c.
Et
ceux
rents
avoient
lour
birth
right
de
cest
stattute
per
cause
de
distresse
done
issuit
est
in
nostre
case
:
voier
est
mesme
le
rent
in
touts
quallityes
beneficial
:
et
in
mesme
le
quantity
et
parcel
del
mannor
2
E.
2
Extinguishment
6.
et
come
est
in
Bevels
Case
seisin
devant
est
bone
seisin
:
apres
si
ne
de
veigne
rent
seck
person
act
demesn
et
le
Signiorye
fuit
dl
part
le
mier
le
rent
vaier
al
heir
dl
part
le
mier
mes
le
Stattute
done
cest
Construction
:
Et
le
matter
de
avowry
est
sur
le
stattute
,
et
est
tiel
avowry
que
vous
alleadge
nul
seisin
que
forsque
devant
le
Stattute
.
Et
un
tenure
devant
que
est
solement
a
faire
lui
able
daner
benefit
per
le
Stattute
,
si
avoit
e'e
un
particular
saneing
de
ceo
rent
est
agree
que
seroit
hors
dl
Stattute
de
Limitations
.
Et
jeo
die
que
ore
est
tout
un
car
quant
il
avoit
son
case
appear
al
nous
est
tout
un
come
si
cest
rent
avoit
e'e
sane
,
car
quaunt
un
graunt
est
generall
est
averrement
devant
les
ludges
de
un
particular
de'
e
deins
le
general
est
lout
un
come
avoit
e'e
graunt
come
le
case
est
30
E.
3.
Avowry
on
le
Roy
graunt
al
Corporation
tiels
Liberties
que
auter
Corporation
avoit
,
&c.
et
6
E.
33.
Balliels
case
et
seroit
icy
in
Chres
:
et
nemy
in
act
de
Parlament
,
et
coment
le
commencement
de
rent
ne
Poet
ee
conus
uncore
ceo
comiencement
est
ore
per
saueing
Poet
ee
conus
come
le
case
est
per
Athowe
quel
il
agree
dee
bone
ley
,
&c.
Et
si
soiet
Suor
et
Tenaunt
per
Fealty
et
rent
de
20
s.
et
le
Suor
confirme
a
tener
per
rent
de
10
s.
est
fait
per
le
fait
et
uncore
fuit
devant
.
Et
si
Judgement
est
bien
ground
pur
avowry
pur
ce
si
ce
le
Stattute
de
primo
participate
del
essee
de
cest
rent
est
hors
del
Stattute
de
32
H.
8.
est
difference
inter
rents
et
lauters
three
choses
limitte
&
voier
est
que
fuit
fait
:
pur
le
repose
del
Subjects
mes
coment
que
nul
constitution
Poet
gain
inlargement
de
temps
limit
uncore
divers
choses
sout
hors
dl
Stattute
come
ou
release
est
fait
al
tenaunt
cy
long
que
I.
S.
avoit
issue
de
son
corps
,
&c.
Et
in
le
3
primer
chose-restraine
per
le
Stattute
do
et
e'e
seisin
mes
in
Case
de
rent
seisin
in
ley
est
sufficient
pur
ceo
in
case
de
seisin
pur
in
rent
lexposition
est
pluis
favorablemenpur
les
Subjects
.
Et
in
Beovels
Case
appeirt
que
seisin
de
fealty
est
sufficient
sesin
pur
le
rent
,
et
uncore
le
Stattute
sout
.
That
none
shallt
make
Titles
to
any
rent
,
&c.
Et
Dyer
278.
ne
un
al
Formedon
in
descender
car
coment
le
Stattute
est
al
repose
des
Subjects
uncore
tour
droits
do
et
e'e
preserve
&
coment
que
fait
alleadge
on
mischief
que
le
Tenaunt
navoit
ascun
answer
car
primerment
sil
navoit
asun
Tenure
devant
le
Stattute
ne
sane
ceo
et
pur
ceo
il
poet
traverse
le
tenure
,
Secundment
si
soiet
nul
seisin
devant
le
Stattute
nest
sane
donque
icy
seisin
nest
alleadge
devant
le
Stattute
mes
,
nency
apres
car
nest
necessary
de'
e
alleadge
mes
on
est
traversable
si
le
Roy
voet
doner
Licence
a
fair
Feoffment
a
tener
del
Feoffor
si
rent
soiet
reserve
nest
requisite
de
alleadge
seisin
come
fait
dit
mes
pur
particular
respons
ceo
die
que
serva
inconvenient
que
il
que
perde
son
Suory
:
per
cest
Stattute
de
32
H.
8.
serra
confine
al
certain
temps
de
aver
seisin
de
son
rent
.
Ad
e'e
object
que
si
nul
seisin
ne
soiet
bone
plea
serra
difficult
a
trover
si
Chan
ntery
terres
fuerout
charge
one
les
rents
per
quel
Avowry
est
fait
quant
al
ceo
jeo
dye
que
31
H.
8.
de
Monasteries
ou
est
enact
que
le
Roy
et
ses
Pattenntees
teuerout
Abby
terre
discharge
de
dismes
sicome
le
Abbot
eux
teigne
est
usuall
issue
mise
in
triall
si
ne
Abby
fuit
discharge
ou
nemy
&
non
solement
do
et
inquire
sil
fuit
discharge
ou
nemy
al
,
temps
del
dissolution
come
in
Drakes
Case
est
in
cest
Court
ascun
voile
auerissue
de'
e
prise
solement
si
le
Abby
teigne
terres
discgarge
al
temps
de
dissolution
mes
sur
demurrer
fuit
rate
que
le
Sury
do
et
idquire
si
le
Abbee
avoit
ascun
cause
a
tener
les
terres
discharge
al
temps
dl
dissolution
car
si
sic
donque
le
Pattentee
serrout
discharge
coment
le
Abbee
teigne
discharger
al
temps
de
dissolution
,
&c.
Et
uncore
ny
tiells
issues
ils
inquire
de
tiel
auntient
temps
come
poient
deins
,
cest
stattute
de
Chaunteryer
pur
rent
due
hors
de
Chauntery
terres
:
Auxi
nota
que
le
plt
ne
poet
traverse
seisin
in
cest
case
car
nest
alleadge
per
le
defendant
et
ne
auxi
,
besoigne
de'
e
&c.
Dyer
305.
6
,
mes
do
et
vener
eins
de
son
part
que
poet
aver
advantage
dl
default
dl
seisin
et
il
do
et
demaund
judgment
dl
Avowry
,
pur
default
del
leisin
,
&c.
Admitte
que
fuit
necessary
mes
quant
al
ceo
le
plt
avoit
bien
plead
car
il
ne
traverse
cest
seisin
que
fuit
alleadge
mes
monstre
ceo
per
voy
de
replication
:
Mes
Richardson
Chief
Iustice
argue
pur
le
Defendant
.
Est
de'
e
consider
primerment
si
cest
rent
soiet
saue
.
Secundment
coment
est
saue
:
et
cement
si
le
rent
est
sane
per
primo
E.
6.
soiet
tier
hors
de
32
H.
8.
Primetment
cest
rent
est
saue
car
le
saueing
est
general
a
touts
rents
,
&c.
which
they
have
,
or
of
right
ought
to
have
or
might
have
had
.
Et
ceo
est
untimely
et
effectuall
saueing
nemy
un
flattering
saueing
voier
est
si
rent
soiet
un
faits
extinct
per
escheate
deferre
al
Roy
que
saueing
ne
Poet
revive
cest
mort
chose
come
est
27
H.
8.
br.
Parlament
77.
mes
per
cest
liuer
.
Et
Davyes
264.
a.
appeirt
que
chose
in
esse
come
nostre
rent
al
temps
dl
fea
ans
de
un
act
Poet
e'e
bien
saue
per
un
saluo
:
Et
nemy
semble
al
Dean
de
Norwiches
Case
in
Wallsinghams
Case
563.
lou
leases
merge
ne
Poet
e'e
saue
per
un
saueing
.
Et
issuit
.
Dyer
23
Plo.
2.
Le
Stattute
de
Monasteries
done
al
Roy
terres
del
Abbots
in
mesme
le
plight
sauaut
droit
dl
Estraungers
.
Et
donque
le
Abbott
de
Ramsey
apres
le
act
graunt
le
prochin
avoidance
al
Mountagne
Chief
Iustice
que
donque
surrender
uncore
cest
de
saluo
ne
extend
al
cest
future
droit
et
title
de
Monntague
Carper
le
former
part
dl
act
de
Abbot
fuit
disable
a
graunter
ceo
et
il
cite
313.
&
in
primo
Rep.
47
a.
et
Kell
.
104
a.
ore
le
averment
in
le
pleading
que
le
Suor
Windsor
fuit
seisie
de
cest
rent
per
le
maynes
darraine
Presbyter
proue
per
moy
que
ceo
fait
rent
in
possession
&
issuit
bien
saue
,
que
nest
solement
rent
in
droit
.
Et
uncore
jeo
teigne
que
le
rent
in
droit
de
quel
naver
seisin
devant
le
Stattute
de
primo
E.
6.
uncore
est
sane
per
le
Startute
.
Et
si
poies
happen
seisin
apres
,
le
stattute
&
si
fuerout
arreages
due
devant
le
Stattute
jeo
teigne
que
ceux
sont
sane
:
Car
ex
vi
termini
le
Suor
Windsor
do
et
aver
cest
rent
in
the
same
Mannor
come
devant
le
Stattute
et
devant
ceo
il
do
et
aver
Arreages
.
Et
nest
semble
al
Ognells
Case
4
Rep.
car
la
le
Suory
fuit
determine
per
le
act
dl
Suor
mesme
et
donque
est
reason
serra
perdue
mes
icy
est
determine
per
le
Act
in
ley
.
Et
si
ceux
Parrolls
rents
in
such
Mannor
ne
voient
sane
Arreages
al
Suor
uncore
sont
expressement
sane
al
lui
per
auters
Parrolls
deins
le
saueing
.
All
commodities
,
duties
,
&c.
deins
quel
sans
doubt
Arreages
fout
includes
Et
jeo
ne
conceive
le
reason
pur
que
les
feasons
de
31
H.
8.
de
Monasteries
except
rents
hors
de
long
saueing
intant
que
fuerout
verement
due
hors
de
les
Abby
terres
.
Et
le
exception
des
rents
fuit
omittant
cest
exception
in
primo
E.
6.
monstre
de
lui
de'
e
que
rents
sout
sane
icy
.
Secundment
donque
coment
cest
rent
est
sane
:
car
Crook
ad
dit
que
saluo
est
solement
Parroll
de
exception
et
nemy
create
chose
de
novo
jeo
agree
in
proper
Parlaunce
doies
aver
Parolls
de
revewing
si
vous
create
rent
chofe
de
novo
create
contra
reddendo
2
H.
3.
Graunts
89.
Graunt
de
parsonage
savant
al
Graunter
presentation
del
viccaridge
est
bone
35
H.
6.
34.
12
E.
4.
1.
saluo
sane
solement
chose
in
esse
et
issuit
saluo
dominico
ne
sane
solement
le
auncient
services
et
release
al
Tenaunt
per
fealty
et
rent
sauant
le
rent
uncore
cest
rent
est
rent
service
come
devant
&
fealty
incident
intant
que
est
le
auncient
rent
et
26
Asss
.
66
et
ouster
coment
les
Parolls
in
le
saueing
in
primo
E.
6.
sout
such
rents
.
Et
cest
Parroll
such
nest
Parroll
de
similitude
uncore
jeo
ceo
voile
agree
que
sout
Parolls
de
fealty
,
et
tant
amount
come
le
mesme
in
quantity
profit
&
temps
de
payment
mes
nemy
the
same
in
formality
,
et
in
quallity
les
Parrolls
del
Stattute
ne
alter
ceo
mes
le
Construction
del
ley
sur
les
Parrolls
de
primo
ad
alter
cest
rent
service
dee
rent
seck
si
fuit
devaut
le
Stattute
.
Tenaunt
pur
vie
dl
Suory
le
remainder
ouster
in
Fee
le
rent
alera
accordaut
pius
le
Stattute
si
Issuit
si
suory
devant
fait
descend
dl
part
le
mier
loufuit
sur
condition
de
rent
pius
primo
E.
6.
serra
,
in
mesme
le
plight
mes
in
quallity
nest
cest
rent
est
meerement
un
rent
seck
:
Jeo
agree
que
le
veiel
seisin
serve
pur
cest
rent
quia
le
Suory
est
extinct
per
Parlament
nemy
per
le
Suor
mefme
4
Rep.
11.
mes
pur
ceo
que
le
Parlament
ad
destroy
le
Suory
et
saue
solement
le
reut
est
reason
que
ceo
serra
favour
et
jeo
teigne
que
primo
E.
6.
done
distress
pur
cest
rent
deins
ceux
Parrolls
sane
in
like
manner
,
as
if
this
Act
had
not
been
made
.
Et
in
Littleton
232.
le
common
ley
done
distresse
pur
ceo
que
le
measualty
est
extinct
sans
son
act
;
mes
ny
in
nostre
case
rent
est
novel
in
natute
et
quallitie
primo
E.
6.
suit
ore
rent
seck
&
eeaunt
distrainable
de
common
droit
,
&c.
Tiercement
ceo
teigne
que
est
hors
del
Stattute
de
32
H.
8.
car
le
Stattute
extend
solement
al
Avowries
&
Conusances
,
nul
Actions
&
Conusances
souts
hors
de
ceo
come
appeirt
per
9
Rep.
33.
Bucknlals
Case
,
&
4
Rep.
,
11.
Bevells
Case
Com.
94.
&
Woodlands
Case
,
8
Rep.
64.
Fosters
Case
,
Avowry
pur
saueing
Fealty
pur
covering
sale
del
Suor
ou
pur
writing
sur
liu
sout
hors
de
cest
Stattute
et
issuit
touts
accidental
services
et
un
uncore
les
Parrolls
sout
shall
make
avowry
for
any
rent
seck
est
hors
de
cest
Stattute
,
pur
ceo
que
done
nul
Avowry
pur
cest
Charge
de
rent
per
fait
rent
service
due
per
Reservation
deins
temps
de
memory
est
deins
ceo
.
Et
jeo
teigne
encounter
Yelverton
que
rent
per
prescription
est
deins
cest
ley
carnient
obstant
que
seisin
do
et
ee
alledage
in
avowry
pur
ceo
uncore
le
seisin
nest
traverseable
mes
les
prescription
ou
composition
que
est
le
foundation
de
cest
rent
26
H
,
8.
plo
.
a.
un
Avowry
pur
rent
per
prescription
que
un
do
et
paier
lui
pur
comon
en
son
terre
la
al
fine
Fitz
herball
:
dit
que
le
Avowant
do
et
alleadge
seisiu
mes
jeo
teigne
que
ceo
nest
traverseable
&
nest
pardon
pur
default
de
seisin
car
uient
obstant
que
est
&
14
H.
7.
primo
.
Si
rent
charge
est
Graunt
devant
temps
le
memory
&
nul
possession
monstre
de
ceo
deins
temps
de
memory
que
le
Grauntee
est
sans
remedy
ceo
do
et
inee
intend
que
ne
poet
compeller
le
Graunter
a
douer
seisin
mes
sil
happa
seisin
un
foits
est
bone
&
ou
apres
mency
le
seisin
mes
le
prescription
do
et
ee
traverse
:
Et
jeo
agree
que
est
mult
regarded
in
nostre
ley
,
ceo
eeant
de
droit
.
Et
que
seisin
per
manes
de
Stranger
ou
de
un
Infant
est
bone
come
est
in
Bucknalls
Case
,
mes
ceo
est
solement
in
cases
lou
seisin
est
requisite
.
Et
seisin
est
solement
necessary
la
lou
il
est
traverseable
et
lou
il
est
traverseable
&
lou
il
eeunt
ewe
per
incroachment
il
liera
seisin
&
verbum
operativum
deins
le
Stattute
de
32
H.
8.
est
matter
inter
very
Suor
&
very
Tenaunt
pur
rent
service
come
Fosters
Case
mes
nostre
Case
est
de
de
Avowry
per
rent
seck
&
in
ceo
seisin
.
Jeo
teigne
que
nest
material
.
Et
jeo
teigne
que
seisin
nest
traverseable
mes
lou
seisin
;
per
incroachment
le
in
Bucknells
Case
&
Woodlands
Case
:
le
difference
sout
mise
lou
Tenure
serra
traverse
&
lou
Seisin
.
Et
sur
tout
ceo
appeirt
que
Seisin
nest
matteriall
lou
incroachment
ne
nomminer
donque
ceo
mitt
le
Case
que
Suor
Windsor
pius
le
Stattute
de
primo
Ed.
6.
use
incroach
un
Chien
ceo
ne
noyer
le
Te.
naunt
in
Avowry
pur
ceo
que
le
Stattute
de
primo
E.
6.
est
le
title
dl
Suor
.
Et
il
poet
avow
pur
nul
chose
si
non
ceo
que
est
sane
lui
per
le
Stattute
mes
quant
al
Case
mise
per
Harvey
devant
le
Stattute
.
Suor
Windsor
la
incroach
20
s.
lou
son
auntient
rent
fuit
10
s.
et
donque
veigne
le
Stattute
south
favor
.
Jeo
conceive
que
il
in
apres
bien
Avower
pur
cest
20
s.
pur
ceo
que
seisin
est
bone
Title
inter
.
Suor
&
Tenaunt
in
Avowry
apres
le
Stattute
le
Tenaunt
est
laise
in
mesme
le
plight
come
Stattute
troue
lui
Aux
le
Stattut
de
primo
E.
6.
sane
touts
such
rents
as
any
have
,
or
might
have
had
issuit
que
il
ayunt
cest
rent
per
Incroachment
quant
est
fait
per
le
Stattute
ceo
est
sane
al
lui
,
&c.
Mes
ore
est
a
voier
coment
doies
demean
vous
icy
in
Avowry
pur
rent
Seck
9
Rep.
Ascoughs
Case
monstre
quant
avows
nemy
sur
very
Tenaunt
doies
a
vower
sur
le
matter
&
mitttomus
de
rent
Graunt
per
Equallity
de
partition
quel
est
distrainable
common
droit
el
Poet
ee
Graunt
sans
fait
hors
de
mesme
terre
quel
est
in
partition
33
H.
6.
&
do
et
intend
sur
le
cest
in
a
que
le
Graunt
21
H.
6.
2.
6.
15.
8
E.
3.
16
,
&c.
Mes
ore
pur
le
rent
si
avows
ne
doies
alleadge
seisin
.
Et
si
vous
alleadger
ceo
uncore
nest
traversable
mes
avowry
do
et
ee
sur
le
matter
.
Et
Incroachment
ne
avoyer
issuit
lou
measnalty
nest
conveigh
forsque
al
surplusage
seisin
nest
traverseable
Incroachment
ne
noier
.
Et
pur
ceo
est
hors
de
32
H.
8.
Et
ceo
ne
scavoy
Cases
lou
de
rent
seck
est
distrainable
de
commrn
droit
seisin
Poet
ee
traverse
si
foret
alleadge
.
Et
si
ascun
puist
ee
monstre
jeo
ne
doubt
mes
ceo
voet
ee
alleadge
per
ascuns
des
freres
&
come
rent
sur
partition
attend
sur
le
terte
,
&c.
issuit
cest
rent
seck
que
est
sane
per
cest
Stattute
ala
one
le
mannor
,
et
est
parcel
de
ceo
come
21
As.
23.
rent
seck
est
parcell
est
mannor
ou
auterment
le
defendant
ad
Title
al
ceo
,
&c.
Objection
est
que
est
cy
veiel
que
le
comencement
de
ceo
ne
Poet
ee
conus
et
est
nul
fait
de
cest
rent
.
Et
coment
ne
doies
alleadge
seisin
de
ceo
in
Avowry
uncore
jeo
poy
monstre
que
navera
seisin
deins
40
anns
.
&c.
Respons
est
que
cest
rent
comence
dee
rent
seck
per
primo
Ed.
6.
&
cest
Stattunte
avoit
mesme
le
force
a
preserver
cest
rent
hors
de
32
H.
8.
come
un
fait
ou
record
ad
e'e
.
Et
le
Stattute
al
rent
est
sicome
le
prophette
que
raise
de
mort
le
fitts
dl
widdow
&
done
vie
al
lui
de
fitts
fait
in
vie
devant
mes
uncore
bien
Poet
ee
dit
que
le
prophet
done
vie
al
lui
issuit
cest
rent
fuit
occide
per
les
premises
del
Stattute
per
1
E.
6.
le
saueing
sa
it
ceo
un
in
vie
que
est
le
al
me
de
cest
rent
,
Et
pur
ceo
ceit
saluo
do
et
ee
monstre
in
avowry
pur
cest
donque
7
E.
4.
27
,
29.
E.
44.
St
le
comencement
del
Suory
Poet
ee
monstre
ne
do
et
ee
alleadger
seisin
issuit
de
rent
et
coment
que
jeo
doye
in
mon
Avowry
monstre
que
la
fait
ou
rent
service
devant
cest
Stattute
uncore
ceo
doye
rely
sur
le
saueing
de
cest
Stattute
35
H.
6.
3
,
4.
22
H.
6.3
.
Avowry
73.
Si
Suor
confirme
a
tener
per
meinder
services
si
soiet
recite
in
Avowry
est
sufficient
sans
seisin
&
nul
inchroachment
pius
tiel
Confirmation
noyer
,
donque
est
un
fait
original
ou
un
confirmation
sur
in
case
dee
hors
de
ceo
Stattute
de
32
H.
8
,
issuit
voile
le
Stattute
de
primo
E.
6.
Crook
ad
agree
si
le
saueing
ad
ee
particular
de
18
al
Suor
Windsor
que
est
que
cest
case
nest
deins
32.
donque
averment
fait
ceo
cy
certain
.
Et
si
le
saueiug
est
ee
al
le
Suor
Windsor
.
All
rents
by
which
the
Land
is
held
of
him
donque
avoit
est
bone
:
et
hors
de
32
H.
8.
Objection
est
icy
est
generall
que
nihil
certi
implicat
,
&c.
mes
certum
est
quod
certum
reddi
potest
come
les
cases
mise
cite
per
Hutton
quel
jeo
conceave
auxi
sur
le
matter
al
primes
,
le
Roy
graunt
easdem
Libertates
que
S.
avoit
Poet
ee
fait
certain
per
averment
que
S.
ad
tiels
Liberties
,
&c.
Objection
32
H.
8.
do
et
ee
prise
liberallment●…
Voier
que
all
Avowries
&
Conusances
mes
le
Stattute
est
de
petit
faire
car
si
replevin
soiet
convert
al
trespasse
est
hors
de
de
cest
Stattute
10
H.
6.
1.
Long
5
E.
4.
87.
Et
in
trespass
poier
traverse
le
tenure
non
solement
le
seisin
hors
dl
Avowry
in
que
le
Avowant
est
Actor
,
&c.
Objection
32
H.
8.
suit
sait
pur
le
repose
&
quiet
des
homes
,
&c.
Respons
solement
in
Actions
deins
cest
Stattute
&
in
eux
le
Stattute
avera
liberall
Construction
que
urors
ne
serra
inveigle
quel
daunger
cest
icy
pur
ceo
que
le
Stattute
fait
Title
ee
Accounter
&
est
nul
mischief
car
poies
traverse
le
tenure
ou
seisin
devant
le
Stattute
de
primo
E.
6.
&c.
Mes
adee
dit
que
Stewards
books
Courts
Rolls
ou
Bailiffs
accounts
poieat
ee
monstre
&
port
eins
pur
Title
al
rents
extinct
per
leases
ou
,
&c.
uncore
jeo
die
que
ceux
matters
doient
ee
laise
al
Iury
&
tiels
choses
in
eux
mesmes
sout
bone
Evidences
.
nous
veiennus
7
Rep.
Farmors
Case
que
le
stattute
de
Fines
est
avoid
per
fraud
&
agreement
des
parties
&
ad
ee
confesse
poiet
toller
.
Le
Case
hors
de
32
H.
8.
come
release
.
Executrix
of
Henry
Hassel
.
IOne
Hassel
makes
a
Lease
to
H.
Rassel
of
3
Closes
for
20
years
,
if
he
should
so
long
live
.
Henry
Hassel
dies
,
and
debt
is
brought
against
his
Executor
for
rent
reserved
upon
that
Lease
,
who
pleads
that
before
the
day
of
payment
,
he
assigned
two
of
the
Closes
to
a
Stranger
.
And
upon
demurrer
Iudgement
was
given
for
the
Plaintiff
.
For
if
there
had
been
an
assignment
of
Henry
:
If
he
did
not
give
notice
to
the
Lessor
in
acceptance
of
the
rent
,
he
shall
be
charged
.
Quod
nota
.
Iudgement
in
Debt
.
IF
Iudgement
be
given
in
debt
,
and
a
Scire
facias
brought
against
the
Executor
,
who
pleads
ne
unque
Executor
,
ne
unque
Administrator
.
&c.
And
it
was
found
against
him
,
yet
it
was
agreed
by
the
Court
that
the
Execution
shall
be
de
bonis
Testatoris
tantum
.
For
that
,
that
the
Execution
shall
have
relation
to
the
Iudgement
.
And
the
Scire
facias
is
to
make
known
that
they
had
not
Execution
upon
the
first
Iudgment
,
which
extends
to
the
goods
only
of
the
Testator
.
And
so
it
was
said
by
Moyle
Prothonotary
,
that
it
was
rul'd
in
5
lac.
in
this
Court
.
If
a
Iudgement
be
given
in
Debt
,
and
the
mony
is
paid
to
the
Attorney
of
the
Plaintiff
.
Although
that
the
mony
miscarry
with
the
Attorny
,
yet
the
payment
is
good
.
But
if
a
Scrivener
is
imployed
generally
to
put
mony
to
use
for
a
year
;
and
the
mony
is
paid
to
the
Scribener
,
who
breaks
,
or
does
not
pay
the
mony
,
The
payment
does
not
excuse
the
party
.
But
if
he
receives
it
by
special
Command
,
&c.
that
is
a
good
cause
of
Equity
.
In
Avowry
.
IN
an
Avowry
for
Dammages
feasant
,
the
verdict
is
found
for
the
Avowant
;
And
a
Returno
habend
.
granted
for
the
Cattell
,
and
a
Capias
ad
satisfaciendum
for
the
Costs
and
Dammages
are
payed
.
The
Sheriff
cannot
execute
the
Returno
habendo
.
But
if
it
be
executed
and
Costs
afterwards
paid
upon
the
Returno
habendo
;
A
Writ
De
si
constare
poterit
shall
issue
to
the
Sheriff
,
for
delivering
the
Cattel
,
upon
a
surmise
and
payment
of
the
costs
,
&c.
A
Prohibition
.
DAvenport
moved
for
a
Prohibition
,
for
that
,
that
an
Executor
who
resided
within
the
Tower
,
(
which
is
a
peculiar
Iurisdiction
as
it
was
surmised
)
was
sued
in
the
Prerogative
Court
for
a
Legacy
;
and
that
upon
the
Statute
of
23
H
8.
cap.
9.
And
Henden
said
,
that
a
Prohibition
might
not
be
granted
,
for
two
causes
.
First
,
The
Statute
is
general
,
That
no
person
,
&c.
then
there
is
a
proviso
,
That
this
Statute
does
not
extend
to
any
probate
of
Wills
in
the
Prerogative
Court
.
Then
a
Legacy
cannot
be
recovered
in
any
other
Court.
For
if
a
Will
be
proved
there
,
no
inferiour
Ordinary
will
meddle
with
that
Will
;
and
alwaies
they
had
the
execution
of
all
Wills
proved
there
in
that
Court
Secondly
,
It
is
pretended
,
that
the
party
is
cited
out
of
a
particular
Iurisdiction
.
But
that
is
not
a
Iurisdiction
within
this
Statute
.
For
no
Iurisdiction
is
intended
,
but
where
there
is
an
Ordinary
;
But
in
the
Tower
of
London
there
is
no
Ordinary
.
But
it
is
but
as
a
Lord
of
a
Mannor
,
who
had
probate
of
Wills
:
which
is
but
a
lay
Iurisdiction
,
&c.
Thirdly
,
There
is
no
Ecclesiastical
Iurisdiction
there
.
But
Davenport
replyed
,
That
although
for
the
present
time
,
no
Ecclesiastical
Iurisdiction
is
executed
there
,
because
the
Lord
is
dead
;
Yet
Spiritual
Iurisdiction
is
executed
there
.
Hutton
said
,
If
there
he
cause
de
bonis
notabilibus
,
Then
the
Archbishop
had
the
Prerogative
,
and
might
cause
the
proving
of
the
Will.
But
it
stood
with
reason
,
That
where
an
Executor
is
tyed
to
perform
the
Will
,
which
may
be
there
sued
,
and
the
property
of
sute
ought
to
be
there
,
where
there
is
cause
of
Prerogative
.
Harvey
,
If
there
be
cause
of
Prerogative
,
and
proof
of
the
Will
in
the
Prerogative
Court
.
Yet
in
the
inferiour
Iurisdiction
,
the
party
will
be
compelled
to
prove
the
Will
also
.
But
by
Crook
and
Hutton
minus
juste
.
An
Action
of
Battery
.
AN
Action
of
Battery
is
brought
against
two
,
and
one
dies
before
tryall
,
and
it
was
entred
upon
the
Roll
,
But
the
Venire
facias
was
awarded
against
both
,
and
dammages
assest
.
And
by
Yelverton
,
it
cannot
be
amended
.
For
it
was
not
the
Act
of
the
Court
,
but
of
the
Iury
;
So
that
now
dammages
cannot
be
severed
.
For
although
he
may
have
the
entire
dammages
against
which
he
will
,
yet
if
they
be
severd
you
will
then
oust
him
of
his
Election
.
Quod
non
fuit
negatum
.
A
Prohibition
.
IN
a
Motion
for
a
Prohibition
,
where
the
Ordinary
would
make
distribution
,
It
was
agréed
(
Richardson
being
absent
.
)
That
if
the
Ordinary
commits
Administration
to
the
Wife
of
the
Intestate
;
that
he
cannot
revoke
that
.
But
if
he
grant
Administration
to
one
as
Prochein
de
Sank
,
and
another
more
near
of
Blood
comes
;
He
may
revoke
.
And
because
the
Administration
being
granted
all
the
power
of
the
Ordinary
is
determined
,
and
then
he
cannot
make
distribution
;
And
if
the
Administration
be
one
time
justly
granted
,
the
Grantée
had
a
just
Interest
which
cannot
be
revoked
.
And
although
it
was
urged
that
those
Prohibitions
were
not
granted
untill
of
late
time
;
yet
they
say
,
those
things
passed
Sub
silentio
.
Yelverton
,
They
cannot
grant
Admistration
before
a
division
was
made
.
And
by
Crook
and
Harvey
.
An
Action
upon
the
Case
lyes
against
the
Ordinary
,
if
he
will
not
grant
Administration
,
where
he
ought
.
And
at
an
other
day
it
was
moved
by
Finch
Recorder
,
That
such
a
Prohibition
could
not
issue
in
one
Davyes
Case
.
And
Richardson
said
,
That
because
,
that
that
Case
was
a
Case
of
Extremity
.
For
Davyes
had
not
any
thing
or
portion
allotted
him
by
his
Father
who
was
dead
.
And
his
Mother
who
was
Administratrix
,
turned
him
out
of
her
House
without
any
maintenance
;
stopped
the
Prohibition
which
was
granted
before
.
And
said
that
it
was
in
the
discretion
of
the
Court
to
grant
such
a
Prohibition
or
not
.
But
Harvey
and
Crook
said
secretly
betwéen
themselves
,
that
it
was
not
in
the
discretion
of
the
Court.
Garton
against
Mellowes
AN
action
of
Battery
was
brought
by
Garton
against
Mellowes
.
And
the
Plaintiff
pleaded
a
Recovery
by
the
same
Plaintiff
for
the
same
Battery
in
the
Kings
Bench
against
another
who
joyned
in
the
Battery
.
And
the
Piaintiff
replies
Nul
tiel
Record
.
Vpon
which
they
were
at
issue
;
and
the
Record
was
brought
in
at
the
day
assigned
.
And
these
variances
were
objected
for
to
make
it
fail
of
a
Record
.
And
first
,
The
award
of
the
Dist.
jurat
.
in
the
Kings
Bench
is
Coram
domino
Rege
.
and
there
it
was
Coram
domino
nuper
rege
.
But
not
allowed
.
For
the
King
died
before
the
Plea
there
,
and
then
it
ought
to
be
so
pleaded
.
Secondly
,
That
in
one
Record
the
Plaintiff
is
Generosus
,
in
the
other
Armiger
.
Brampston
said
,
That
that
was
such
a
variance
which
could
not
be
amended
.
Dyer
173.
One
recovers
in
debt
by
the
name
of
I.
Cives
and
Sadler
.
And
the
Defendant
brought
Error
,
and
removes
the
Record
inter
I.
Civem
&
Salter
,
&c.
And
it
was
rul'd
that
the
Record
was
not
well
removed
upon
that
Writ
.
Dyer
178.
Plo.
8.
Vpon
Nul
tiel
Record
there
was
a
variance
in
the
day
of
the
Return
of
the
Exigent
,
and
in
the
place
where
the
Outlary
was
pronounced
;
And
adjudged
a
variance
which
could
not
be
mended
.
And
now
here
there
cannot
be
an
amendment
because
it
is
after
tryall
.
And
by
amendment
,
there
might
be
a
cause
of
changeing
the
Plea
.
For
he
took
that
Issue
,
by
reason
of
the
variance
,
and
after
verdict
there
cannot
be
an
amendment
,
Mich.
2
Jac.
Kings
Bench
,
Tayler
and
Fosters
Case
.
In
an
Ejectione
firm
.
upon
a
Lease
made
10
Iunii
,
and
upon
not
guilty
pleaded
it
was
found
for
the
Plaintiff
.
And
in
Error
,
it
was
assigned
for
error
,
that
the
Imparlance
roll
was
10
Iunii
,
and
Issue
roll
the
12
Iunii
:
and
it
appeared
there
was
a
rasure
.
And
it
was
agréed
,
that
if
it
was
after
verdict
it
could
not
be
amended
.
Atthowe
,
This
variance
is
not
substantiall
.
And
the
cases
put
do
not
make
to
this
case
.
For
Salter
and
Sadler
are
two
severall
Trades
.
And
it
cannot
be
intended
the
same
man
;
for
he
may
vary
in
his
action
as
he
pleases
.
But
the
Court
said
nothing
to
that
Exception
.
Thirdly
,
In
the
Record
of
Nisi
prius
there
was
another
fault
.
It
was
agréed
,
that
a
Material
variance
cannot
be
amended
.
Yelverton
said
,
That
he
might
have
new
Execution
.
For
he
pleaded
a
recovery
and
execution
in
Bar
,
and
that
they
came
to
take
,
whereof
he
had
failed
;
For
that
it
stood
now
as
another
battery
.
For
it
does
not
appear
by
the
Declaration
of
the
Plaintiff
,
&c.
Smith
against
Sacheverill
.
AN
Action
of
Wast
is
brought
by
Smith
against
Henry
Sacheverill
,
and
declares
,
Whereas
Henry
Sacheverill
the
Grandfather
was
seised
of
these
Lands
,
he
levyed
a
Fine
of
them
,
to
the
use
of
himself
for
life
,
with
power
to
make
a
Lease
for
three
lives
,
and
after
to
Smith
his
son
for
his
life
,
the
remainder
to
the
first
begotten
son
of
Smith
in
tayle
.
The
Grandfather
makes
a
Lease
for
three
lives
,
and
dyes
,
and
Smith
and
his
first
begotten
son
bring
this
Action
of
Wast
against
the
Lessee
;
and
they
assigne
their
wast
in
killing
red
Deer
in
a
Park
;
and
upon
nul
wast
pleaded
,
it
was
found
for
the
Plaintiff
;
and
Finch
Recorder
moved
in
arrest
of
Iudgement
first
,
for
that
they
assigne
the
wast
in
a
Park
,
where
the
wast
is
in
Land
,
&c.
Secondly
,
Because
that
that
Action
did
not
lye
for
them
both
alike
;
for
if
the
Grandfather
,
and
he
in
the
remainder
in
tayle
,
had
joyned
in
a
Lease
,
yet
they
could
not
joyne
in
wast
.
The
Books
are
,
If
Tenant
for
life
,
and
he
in
the
remainder
joyn
in
a
Lease
,
they
may
also
joyn
with
wast
.
21
H.
8
14.
Although
19
H.
7.
be
put
otherwise
.
And
2
H.
5.
Sir
William
Langfords
Case
.
Two
joynt
Tenants
to
the
Heirs
of
one
of
them
,
and
they
make
a
Lease
for
life
:
And
it
was
adjudged
that
they
might
joyn
in
wast
;
for
the
Tenant
for
life
had
a
reversion
for
life
,
and
had
not
made
any
Forfeiture
.
If
the
Grandfather
and
he
in
remainder
had
joyned
in
a
Lease
,
and
afterwards
in
wast
,
it
had
been
naught
;
for
the
lease
came
out
of
the
first
root
.
And
it
was
resolved
Tr.
2
Jac.
Kings
Bench
,
Poole
and
Browses
Case
,
That
one
in
remainder
cannot
have
wast
,
where
there
is
an
intermediate
Estate
for
life
.
Yelverton
and
Hutton
did
not
believe
the
Case
of
2
Jac.
Crook
.
If
there
be
Tenant
for
life
with
such
a
power
,
&c.
of
Lands
held
in
capite
,
he
may
make
Leases
for
life
without
Licence
of
Alienation
,
and
well
proves
this
cause
,
Yelverton
and
Hutton
.
For
the
wast
being
assigned
in
a
Park
,
it
is
good
;
for
a
Park
is
Land
.
Sed
adjournatur
.
Hodges
against
Franklin
.
TRover
and
Conversion
is
brought
by
Hodges
against
Franklin
.
The
Defendant
pleads
sale
of
the
Goods
in
Marlborough
;
which
is
a
Market
overt
,
and
the
Bar
was
well
pleaded
;
and
an
Exception
was
taken
;
For
that
,
that
it
is
not
said
that
Toll
was
payed
.
It
was
said
by
Hutton
,
That
there
are
divers
places
where
no
Toll
is
to
be
paid
upon
sale
,
in
Market
;
And
yet
the
property
is
changed
,
and
Iudgement
accordingly
.
Grimston
against
an
Inn-keeper
.
IN
an
Action
upon
the
Case
,
it
was
said
at
the
Bar
,
and
not
gain-sayed
,
That
they
ought
to
say
in
the
Declaration
,
Trasiens
hospitavit
,
for
if
he
board
or
sojourn
for
a
certain
space
in
an
Inne
,
and
his
Goods
are
stollen
the
Action
upon
that
is
not
maintainable
:
And
for
omission
,
although
the
Verdict
was
given
for
the
Plaintiff
,
Iudgement
was
given
Quod
nihil
capiat
per
billam
,
upon
fault
of
the
Declaration
,
and
he
paid
no
Costs
.
Wilkins
against
Thomas
.
IT
was
said
by
the
whole
Court
,
That
a
consideration
is
not
traversable
upon
an
Assumpsit
,
but
they
ought
to
plead
the
generall
issue
,
and
the
Consideration
ought
to
be
given
in
Evidence
.
Ireland
against
Higgins
.
IReland
brought
an
Action
upon
the
Case
against
Higgins
,
for
a
Greyhound
,
and
counts
that
he
was
possessed
ut
de
bonis
suis
propriis
,
and
by
Trover
came
to
the
Defendant
;
and
in
consideration
thereof
promised
to
re-deliver
him
.
It
seemed
to
Yelverton
,
that
the
Action
would
not
lye
,
and
the
force
of
his
Argument
was
,
that
a
Grey-hound
was
de
fera
natura
,
in
which
there
is
no
property
,
sed
ratione
fundi
,
live
Deer
and
Coneys
,
and
vouchd
3
H.
6.
56.
18
E.
4.
24.
10
H.
7.
19.
for
a
Hawk
;
for
Hares
are
but
for
pleasure
,
but
Hawks
are
Merchandable
.
This
difference
in
12
H.
8.
is
allowed
,
so
long
as
a
Dogge
is
in
the
possession
of
a
man
,
an
Action
of
Trespasse
lyes
,
detinue
or
replevin
.
But
no
Action
if
he
was
out
of
his
possession
,
and
so
had
not
a
property
,
then
there
is
no
consideration
,
which
is
the
foundation
of
an
Action
.
Hutton
to
the
contrary
,
and
said
the
whole
argument
consisted
upon
false
grounds
;
as
that
a
Dogge
is
ferae
naturae
.
Which
if
it
were
so
,
he
agreed
the
difference
in
12
H.
8.
But
he
intended
that
a
Dogge
is
not
ferae
naturae
;
for
at
first
all
Beasts
were
ferae
naturae
,
but
now
by
the
industry
of
man
they
are
corrected
,
and
their
savagenesse
abated
,
and
they
are
now
domesticae
,
and
familiar
with
a
man
;
as
Horses
,
and
a
tame
Deer
,
if
it
be
taken
,
an
Action
lyes
.
Rogers
of
Norwich
recovered
Damages
pro
molosso
suo
interfecto
.
And
12
H.
8.
So
of
a
Hound
called
a
Blood-hound
.
And
a
Dogge
is
for
profit
as
well
as
for
pleasure
.
For
a
Dogge
preserves
the
substance
of
a
man
in
killing
the
Vermine
,
as
Foxes
.
And
now
is
not
an
Horse
for
the
pleasure
of
a
man
?
for
a
man
may
goe
on
foot
if
he
will
,
and
an
Horse
is
meat
for
a
man
no
more
than
a
Dogge
.
Therefore
an
Action
may
lye
for
the
one
,
as
for
the
other
.
And
for
a
Hawk
,
he
ought
to
shew
that
it
was
reclaimed
,
for
they
are
intended
ferae
naturae
.
One
justifies
in
24
Eliz.
30.
for
a
Battery
,
because
he
would
have
taken
away
his
Dogge
from
him
.
A
Repleavin
was
brought
for
a
Ferret
and
Nets
,
and
a
Ferret
is
more
ferae
nat
.
than
a
Dogge
.
Seale
brought
25
Eliz.
Trespass
for
taking
away
his
Blood-hound
;
and
there
it
was
said
to
be
well
laid
.
And
then
now
if
he
has
a
property
,
the
consideration
is
good
enough
to
ground
an
Assumpsit
:
It
is
adjudged
that
a
feme
dowable
:
The
heir
promises
to
endow
her
before
such
a
day
,
and
the
Action
is
maintainable
upon
that
by
the
Court
.
Intraturudic
.
pro
quer
.
if
no
other
matter
were
shewed
by
such
a
day
.
Jenkins
Case
.
HE
brought
an
Action
upon
a
promise
to
the
Plaintiff
,
That
if
he
marryed
her
with
the
assent
of
her
Father
,
she
would
give
him
20.
l.
Adjudged
a
good
consideration
by
the
Court.
SIr
Edward
Peito
is
Plaintiff
against
Pemberton
in
a
Replevin
,
and
the
Defendant
was
known
as
Bayliff
to
H.
Peito
,
and
said
that
H.
Peito
the
Grandfather
had
granted
a
Rent
for
life
to
H.
Peito
the
Son
,
to
commence
after
his
death
.
The
Plaintiff
confesses
the
grant
,
but
sayes
,
that
after
the
death
of
Peito
the
Grandfather
,
these
Lands
out
of
which
the
Rent
issued
,
descended
to
Peito
the
father
,
who
made
a
Lease
for
a
thousand
years
to
the
Grantee
,
and
dyes
.
The
Avowant
confesses
the
Lease
,
but
sayes
,
that
before
the
last
day
of
payment
,
he
surrendred
to
the
Plaintiff
.
Vpon
which
there
was
a
Demurer
;
and
the
question
was
whether
the
surrender
of
the
Lease
would
revive
the
rent
.
Harvey
,
If
he
had
assigned
the
Lease
to
a
stranger
,
the
rent
had
been
suspended
.
5
H.
5.
One
grants
a
rent
charge
(
who
had
a
reversion
upon
a
Lease
for
life
)
to
commence
immediately
;
there
the
question
was
,
when
the
Lease
was
surrendred
,
whether
the
rent
now
became
in
esse
,
because
that
the
Lease
,
which
privileged
the
Land
from
distresse
,
is
now
determined
in
the
hands
of
the
Grantor
himself
.
Crook
.
If
the
Grantor
had
granted
reversion
to
a
stranger
,
and
the
surrender
had
been
to
him
;
It
was
clear
that
the
suspension
had
been
for
the
term
.
Hutton
.
If
a
man
seised
of
a
rent
in
Fee
,
takes
a
Lease
of
Lands
,
out
of
which
,
&c.
for
years
,
and
dyes
;
the
Executor
shall
have
the
Land
,
and
yet
the
heir
cannot
have
the
rent
.
Harvey
.
In
this
Court
it
was
the
case
of
one
Asham
,
who
had
a
purpose
to
enclose
a
Common
,
and
one
Tenant
was
refractory
,
wherefore
Asham
made
him
a
Lease
of
the
soil
,
in
which
he
had
Common
,
and
afterwards
he
surrenders
it
again
.
And
it
was
agreed
that
the
Common
was
suspended
during
the
term
.
Crook
.
A
Lease
for
years
is
by
the
contract
of
both
parties
,
and
the
surrender
may
revive
the
rent
;
but
by
the
surrender
the
arrearages
shall
not
be
revived
.
And
suppose
that
the
surrender
was
by
Indenture
,
and
a
recitall
of
the
grant
,
that
is
a
grant
;
and
then
it
is
expresse
,
that
by
the
surrender
their
intent
was
,
that
the
rent
should
be
revived
.
3
H.
6.
A
surrender
determines
the
interest
of
all
parties
,
but
of
a
stranger
.
But
it
is
determined
to
themselves
to
all
intents
and
purposes
.
Crook
.
It
was
one
Cooks
Case
against
Bullick
,
intrat.
45
Eliz.
rot.
845.
Com.
ban
.
It
was
there
adjudged
,
and
this
diversity
was
taken
,
If
one
devise
Lands
in
Fee
,
and
after
makes
a
Lease
for
years
of
the
same
Lands
,
to
the
Devisee
,
to
commence
after
his
death
,
it
is
a
countermand
of
his
will
;
if
the
Lease
was
to
commence
presently
,
it
is
no
countermand
;
and
the
reason
is
,
In
the
first
case
both
cannot
stand
in
Fee
,
the
Devise
and
the
Lease
.
But
when
the
Lease
commences
immediately
,
he
may
outlive
the
Lease
.
And
this
Case
is
put
upon
the
intents
of
the
parties
.
But
Henden
,
This
Case
is
also
adjudged
,
If
two
Tenants
in
Common
are
,
and
one
grants
a
Rent
charge
,
the
Beasts
of
the
other
are
not
distreinable
.
But
if
a
Tenant
in
Common
takes
a
Lease
for
years
of
another
,
his
Cattel
are
discharged
again
.
But
Yelverton
and
Hutton
doubted
that
Case
,
and
so
it
was
adjourned
to
be
argued
,
&c.
Thomsons
Case
.
THompson
libells
for
delapidations
against
the
Executors
of
his
predecessor
,
and
Henden
moved
for
a
Prohibition
;
for
that
that
Thompson
is
not
incumbent
,
for
his
presentment
.
was
by
the
King
ratione
minoritatis
of
one
Chichley
,
and
the
King
had
not
any
such
Title
to
present
;
for
where
the
King
mistakes
his
Title
,
his
Presentment
is
voyd
,
and
he
is
no
Incumbent
.
6
Rep.
26.
Greens
Case
.
And
Sir
Thomas
Gawdys
Case
,
where
the
King
presented
jure
praerogat
.
when
he
had
another
Title
;
and
the
present
Action
was
adjudged
voyd
,
and
whether
he
is
incumbent
or
not
,
that
shall
be
tryed
.
But
by
the
Court
a
Prohibition
was
denyed
,
because
that
he
was
now
incumbent
.
And
the
Iudges
would
not
take
notice
of
the
ill
Presentment
of
the
King
.
But
in
case
of
Symony
the
Statute
makes
the
Church
voyd
,
and
then
the
Iudges
may
take
notice
of
that
,
and
grant
a
Prohibition
,
if
the
Parson
sues
for
Tythes
.
But
if
a
quare
impedit
be
brought
,
and
appears
that
the
King
had
not
cause
of
Presentment
,
then
a
Prohibition
may
be
granted
:
which
also
was
granted
by
all
the
other
Iustices
.
Richard
Youngs
Case
.
RIchard
Young
was
Demandant
in
a
Formedon
,
and
admitted
by
Prochein
amy
,
and
the
Warrant
was
allowed
by
a
Iudge
,
and
it
was
certified
and
entred
in
Gulstons
Office
in
the
Roll
of
Remembrance
,
but
it
was
not
entred
in
the
Roll
as
the
course
in
the
Common
Bench
is
,
and
after
Iudgement
is
given
for
the
Plaintiff
.
And
for
that
Formeden
the
Defendant
brought
a
Writ
of
Errour
,
and
removed
the
Record
,
and
assigned
it
for
Errour
.
And
before
in
nullo
est
erratum
pleaded
.
And
Davenport
moved
that
it
might
be
mended
,
for
he
said
that
there
was
a
difference
between
that
Court
and
the
Kings
Bench
,
as
it
is
in
the
4
Rep.
43.
Rawlins
Case
;
for
the
Entry
of
the
Roll
was
Richard
Young
came
et
obtulit
se
per
atturnat
.
suum
,
where
it
should
have
been
proximum
amicum
.
And
the
Entry
in
the
Remembrance
Roll
was
,
That
he
was
admitted
per
Gardianum
,
Richardson
said
,
that
all
the
Books
are
,
That
an
infant
ought
to
sue
by
Prochein
amy
,
and
defend
by
his
Guardian
,
and
so
is
a
Demandant
.
But
the
Court
agreed
,
That
that
should
be
amended
according
to
the
Certificate
.
As
a
speciall
Verdict
should
be
amended
,
according
to
the
Notes
given
to
the
Clerk
.
And
Davenport
said
that
he
would
venture
it
,
although
it
was
by
Guardian
,
for
he
held
it
all
one
,
if
it
were
by
Guardian
,
or
by
Prochein
Amy.
See
afterwards
more
of
this
.
The
Vicar
of
Cheshams
Case
.
THe
Earl
of
Devonshire
had
a
Mannor
in
the
Parish
of
Chesham
,
in
Buckinghamshire
,
which
extended
to
Latmos
,
where
there
is
a
Chapell
of
Ease
;
and
the
Vicar
of
Chesham
Libells
for
Tithes
,
against
one
of
the
Tenants
of
the
Mannor
.
And
Henden
moved
for
a
Prohibition
,
for
that
that
the
Earl
prescribed
,
that
he
and
all
his
Tenants
should
be
acquitted
of
all
the
Tythes
of
Land
within
Latmos
,
paying
10.
s.
per.
ann
.
to
the
Chaplin
of
Latmos
.
And
he
said
that
such
a
Prescription
is
good
,
as
it
was
adjudged
in
Bowles
Case
.
And
a
Prohibition
was
granted
.
Wildshieres
Case
.
IT
was
agreed
by
the
whole
Court
,
That
for
Executing
of
a
Capias
utlagatum
,
or
for
a
Warrant
to
Execute
it
,
or
for
a
return
of
it
,
no
Fee
is
due
to
the
Sheriff
,
&c.
It
was
afterwards
agreed
upon
an
Habeas
corpus
sued
by
Wiltshiere
,
who
was
imprisoned
,
being
under-Sheriff
,
by
the
Lord
Chamberlain
,
for
arresting
Sir
George
Hastings
Servant
to
the
King
,
upon
a
Cap.
utlagat
.
That
he
may
well
doe
it
upon
the
Servant
of
the
King
:
for
it
is
the
Sute
of
the
King
himself
,
and
he
is
sworn
to
serve
it
;
and
there
is
no
cause
of
the
Commitment
returned
,
but
only
a
recitall
of
the
Commitment
,
unless
he
was
released
by
the
Lord
.
And
the
Iudges
took
exception
to
that
,
and
said
that
it
ought
to
be
,
unless
he
can
be
released
by
the
Law
;
and
said
,
if
no
cause
be
returned
,
they
ought
to
dismisse
the
Prisoner
:
And
they
ordered
the
Keeper
to
inform
the
Lord
Chamberlei●
;
and
that
their
Opinion
was
,
and
so
was
the
Opinion
of
all
the
Iudges
of
England
,
That
he
who
procured
the
Commitment
of
the
under
Sheriff
,
ought
to
pay
all
the
Charges
and
Expences
.
Quod
nota
.
Wentworth
against
Abraham
.
THe
Lord
Wentworth
brought
an
Action
upon
the
Case
,
against
Abraham
,
upon
an
Assumpsit
,
and
declares
that
the
Defendant
1
die
Maii
,
Anno
Dom.
1625.
in
consideration
that
the
Plaintiff
would
permit
the
Defendant
to
re-enter
in
a
Messuage
,
and
Croft
,
in
which
the
Defendant
had
dwelt
before
,
promised
that
he
would
pay
to
him
30.
s.
yearly
,
during
the
time
that
he
should
enjoy
it
.
And
that
he
permisit
ipsum
reentrare
,
and
that
he
should
enjoy
it
a
year
and
an
half
,
which
ended
at
Michaelmas
,
1626.
And
for
that
he
would
not
pay
45.
s.
he
&c.
And
upon
non
Assumpsit
pleaded
,
it
was
found
for
the
Plaintiff
.
And
it
was
moved
by
Davenport
,
in
Arrest
of
Iudgement
,
for
that
that
the
Assize
is
to
pay
30.
s.
Annuatim
;
then
before
the
Action
be
determined
,
nothing
is
due
,
and
the
Plaintiff
cannot
divide
the
Rent
,
5
R.
2.
Annuity
21.
Debitum
Judex
non
leperat
.
Then
when
it
does
not
appear
that
the
Action
lyes
for
the
15.
s.
for
the
half
year
,
and
the
Iury
assessed
Damages
intirely
,
it
is
voyd
,
as
10
Rep.
130.
Osborns
Case
.
And
it
appears
that
by
his
computation
of
time
,
it
is
not
a
year
and
an
half
from
the
time
of
the
Assumpsit
made
.
Richardson
said
,
That
it
is
not
secundum
ratum
,
for
then
he
might
divide
the
Rent
;
and
no
day
is
limited
for
the
payment
of
it
;
for
if
a
Lease
be
made
for
two
years
,
or
at
will
,
paying
annually
at
Michaelmas
,
30.
s.
and
the
Lease
is
determined
after
half
of
the
year
;
although
that
it
be
by
the
Lessee
himself
,
he
cannot
make
any
Rent
.
But
Yelverton
said
that
that
is
not
a
Rent
,
but
a
collaterall
sum
.
And
debt
does
not
lye
for
that
.
And
in
the
Declaration
it
is
said
,
Quod
permisit
ipsum
reentrare
,
and
does
not
say
what
time
,
which
was
nought
by
all
but
Hutton
.
And
it
ought
to
be
also
that
he
did
de
facto
re-enter
.
Hutton
said
,
There
being
it
is
said
,
So
long
as
you
shall
occupy
the
Land
,
you
shall
pay
annually
,
&c.
That
he
may
demand
half
of
the
year
.
But
the
whole
Court
against
him
,
and
so
Pro
hoc
tempore
,
judgement
was
stayed
.
Grange
and
his
Wife
against
Dixon
.
A
Lease
was
made
by
Baron
and
Feme
,
and
another
Feme
,
and
the
Lessee
Covenants
by
the
same
Indenture
,
to
find
sufficient
mans
meat
and
horse
meat
,
to
the
Baron
and
Feme
,
and
to
the
other
Feme
,
or
to
their
Servants
at
their
coming
to
London
,
at
his
house
in
Southwark
.
The
Baron
and
Feme
dye
,
and
the
other
Feme
takes
an
husband
.
The
Opinion
of
the
Iustices
was
,
that
he
was
not
bound
to
find
sustenance
for
the
husband
,
but
only
for
the
wife
,
or
for
her
servants
,
and
not
for
both
at
one
and
the
same
time
,
because
the
Covenant
was
in
the
disjunctive
.
But
it
was
doubted
if
he
shall
find
them
Victualls
for
one
meal
only
at
their
coming
,
or
for
all
the
time
of
their
staying
there
.
Johnson
against
Williams
and
Uxor
.
IT
wad
said
,
If
an
Obligation
be
made
by
a
Feme
sole
,
and
afterwards
she
takes
an
husband
,
and
an
Action
of
debt
be
brought
upon
that
Obligation
against
the
Baron
and
Feme
,
and
they
deny
the
Deed
;
the
Baron
shall
be
taken
for
the
Fine
as
well
as
the
wife
,
for
the
wife
had
nothing
whereof
to
pay
the
Fine
.
And
so
in
Trespasse
against
Baron
and
Feme
,
dum
sola
fuit
,
and
they
are
both
found
guilty
,
both
shall
be
taken
for
the
Fine
,
which
the
Prothonotaryes
agreed
.
Jeakill
against
Linne
.
IN
a
Writ
of
Covenant
,
the
Plaintiff
counts
upon
an
Indenture
of
Lease
of
the
Parsonage
of
Dale
,
by
which
the
Defendant
Covenanted
to
pay
him
the
Rent
,
the
which
he
had
not
payed
.
And
the
Defendant
said
,
that
before
any
day
of
payment
of
the
said
Rent
incurred
,
one
A.
Ordinary
of
the
same
place
sequestred
the
said
Parsonage
for
non
payment
of
the
first
fruits
.
Iudgement
.
If
an
Action
,
&c.
And
by
the
Court
,
that
is
not
a
Plea
;
for
he
does
not
shew
that
any
Act
was
done
by
the
Plaintiff
himself
in
his
default
.
Nor
he
does
not
confesse
and
avoid
the
interest
of
the
Lessor
,
as
to
say
that
the
Lessor
was
a
disseisor
,
and
made
a
Lease
to
him
after
that
the
disseisee
re-entred
;
and
so
he
might
confesse
and
avoid
the
Lease
,
notwithstanding
the
Deed
indented
.
But
he
cannot
say
that
the
Lessor
had
nothing
,
at
the
time
of
the
Lease
made
.
And
if
the
Defendant
had
been
bound
in
an
Obligation
for
the
payment
of
the
said
Rent
,
in
debt
brought
upon
that
,
that
should
not
have
been
a
Plea
;
for
he
had
bound
himself
to
pay
the
said
Rent
.
And
the
occupation
is
not
materiall
where
the
Lease
is
for
years
or
for
life
.
But
otherwise
of
a
Lease
at
will
.
Davies
against
Fortescue
.
IF
a
man
(
it
was
said
)
be
seised
of
a
Mannor
,
whereof
there
are
divers
Copy-holders
admittable
for
life
or
for
years
;
and
he
Leases
the
Mannor
to
another
for
term
of
life
,
the
Lessor
may
make
a
Demise
by
Copy
in
reversion
,
to
commence
after
the
death
of
the
first
Copy-holders
,
and
that
is
good
enough
.
But
the
custome
of
some
Mannors
is
to
the
contrary
,
and
that
is
allowed
.
Doyly
an
Infants
Case
.
A
Man
seised
of
Lands
makes
a
Feoffment
in
Fee
by
Deed
indented
,
rendring
a
Rent
,
with
a
clause
of
Distresse
,
and
afterwards
he
is
bound
in
a
Statute
,
and
the
day
is
incurred
.
Vpon
which
an
Execution
is
awarded
to
the
Conusee
;
and
upon
the
Extent
,
the
Sheriff
returns
that
the
party
was
dead
,
and
that
he
had
extended
the
said
Rent
.
And
the
heir
of
the
Conusor
being
within
age
(
because
the
Rent
was
extended
during
his
nonage
)
brought
an
Audita
querela
,
and
Hutton
said
,
That
it
is
maintainable
enough
,
because
there
is
an
Exception
in
the
Writ
of
Extent
,
That
if
Land
be
descended
to
any
Infant
,
that
the
Sheriff
shall
surcease
to
extend
.
And
although
that
Writ
issued
against
the
party
himself
who
made
the
Conisance
,
yet
when
it
appears
by
the
return
of
the
Sheriff
,
that
he
is
dead
,
the
Infant
shall
be
aided
by
an
Audita
querela
,
or
otherwise
the
Extent
shall
be
void
,
which
is
made
upon
the
possession
of
the
Infant
.
Jeffryes
Case
.
IN
a
Formedon
,
the
Plaintiff
counts
of
a
gift
to
his
Father
,
and
to
his
heirs
of
his
body
ingendred
during
the
life
of
I.
S.
and
makes
the
descent
to
him
during
the
life
of
I.
S.
And
Yelverton
seemed
that
the
Writ
is
good
enough
;
for
a
Tayle
may
be
made
so
determinable
,
as
well
as
a
Fee
simple
.
And
if
a
man
Warrant
Lands
to
the
Feoffee
,
and
his
heirs
,
against
him
and
his
heirs
during
the
life
of
I.
S.
That
he
had
a
Fee
simple
in
the
Warranty
determinable
upon
the
life
of
I.
S.
So
here
.
Warberlyes
Case
.
IN
a
Writ
De
valore
maritagii
,
it
was
moved
by
Henden
,
If
the
Lord
shall
recover
his
Damages
according
to
the
value
of
the
Land
held
of
him
only
,
or
according
to
all
his
Lands
held
also
of
others
.
And
Hutton
and
Crook
said
that
the
value
of
the
Marriage
shall
be
accounted
,
as
well
in
respect
of
the
lands
held
of
him
,
as
of
other
lands
held
of
other
Lords
by
Posteriority
,
or
in
Soccage
;
for
there
the
woman
by
the
Marriage
to
him
shall
be
more
advanced
.
And
the
better
the
advancement
is
,
the
better
is
the
Marriage
of
the
heir
,
and
the
person
more
to
be
esteemed
.
Norbery
against
Watkins
.
ONe
Devises
the
Mannor
of
S.
to
two
and
their
heirs
betwéen
them
to
be
equally
divided
,
so
that
they
shall
have
part
and
portion
alike
.
If
by
that
they
have
a
Ioynt-tenancy
,
or
a
Tenancy
in
common
was
the
Question
,
because
there
was
an
Act
to
be
done
for
making
the
division
.
And
if
the
words
had
béen
equally
to
be
divided
by
I.
S.
it
had
béen
clear
that
they
had
béen
Ioynt-Tenants
.
But
Harvey
said
,
That
upon
such
a
gift
made
to
them
,
if
the
one
of
them
dyed
before
partition
,
yet
their
heirs
should
hold
severally
,
according
to
the
intent
of
the
Will
;
for
otherwise
the
Surviver
should
hold
place
,
which
against
the
will
of
the
Devisor
.
Northens
Case
.
A
Man
seised
of
a
Mannor
,
having
all
the
Goods
of
Felons
de
se
within
the
same
Mannor
,
and
makes
a
Lease
for
years
of
parcell
of
the
same
Mannor
to
a
man
,
and
afterwards
makes
another
Lease
of
the
same
Lands
to
commence
after
the
determination
,
surrender
,
or
forfeiture
of
the
first
Lease
.
The
first
Lessée
was
a
Felo
de
se
,
the
Lord
Lessor
of
the
Mannor
enters
into
the
lands
Leased
as
forfeit
,
and
the
second
Lessée
ousts
him
;
and
it
séemed
to
Crook
that
the
Entry
was
lawfull
enough
.
Harvey
said
,
That
the
Lessor
to
whom
the
Frank-Tenement
belonged
,
entring
into
the
land
,
the
Frank-Tenement
drowned
the
lesser
Estate
;
and
the
Lease
for
years
is
extinct
in
the
Frank-Tenement
.
And
it
was
said
,
That
therefore
the
first
Lease
extinguisht
.
But
if
before
that
the
Lord
had
aliened
the
Mannor
saving
to
him
the
liberty
,
and
after
had
entred
for
the
Forfeiture
,
the
second
Lessée
could
not
enter
;
for
it
is
not
any
determination
of
the
first
Lease
.
Crook
said
,
That
if
the
Lessor
infeoffed
the
first
Lessée
of
the
Mannor
,
that
is
a
determination
of
the
first
Lease
,
and
the
second
Lessée
may
enter
.
The
Bishop
of
Winchester
against
Markham
.
THomas
Bishop
of
Winchester
,
brought
an
Action
upon
the
Statute
of
West
.
1
cap.
4.
de
scandalis
magnatum
,
against
Markham
,
for
that
he
preferred
a
slanderous
Bill
against
him
before
the
President
of
the
Councel
,
surmising
that
he
was
a
covetous
and
malicious
Bishop
.
And
the
Opinion
of
the
Court
was
,
That
the
words
were
sufficient
to
maintain
the
Action
.
A
man
seised
of
a
Mannor
held
in
Chivalry
,
devises
two
parts
of
it
to
two
men
in
severalty
,
and
all
the
Remnant
he
devises
to
his
heirs
in
Tayle
,
the
remainder
over
in
Fée
.
Hutton
said
,
It
seems
to
me
that
the
devise
is
voyd
for
the
third
part
to
the
heir
;
for
he
might
devise
the
two
parts
by
his
Testament
,
and
he
had
done
all
that
he
could
doe
by
the
Statute
;
and
then
the
devise
of
the
third
part
is
out
of
the
warranty
of
the
Statute
;
for
it
is
not
reason
that
by
the
limitation
of
the
third
part
(
the
which
he
could
not
doe
)
that
the
devise
of
the
residue
which
was
one
time
good
,
shall
be
defeated
;
which
Harvey
granted
,
but
Crook
to
the
contrary
;
for
although
the
two
parts
were
devised
by
the
premisses
of
the
Testament
,
and
the
third
part
in
the
end
of
it
,
yet
in
operation
of
Law
the
one
part
is
not
before
the
other
,
but
the
will
is
intire
,
and
took
effect
in
all
its
parts
at
one
and
the
same
time
,
by
the
death
of
the
Devisor
.
By
which
it
seemed
(
for
the
benefit
of
him
in
the
remainder
)
that
he
shall
take
the
third
part
devised
to
him
;
for
if
a
man
seised
of
three
Acres
of
land
held
in
Chivalry
,
and
devises
them
severally
to
three
severall
persons
in
Fee
,
the
heir
shall
have
the
third
part
of
every
of
the
three
Acres
,
and
not
the
Acre
last
devised
,
which
Hutton
granted
.
So
also
for
the
benefit
of
a
third
person
,
he
ought
to
be
judged
in
the
third
part
as
a
Purchaser
,
and
not
of
an
Estate
by
descent
,
and
so
is
the
better
Opinion
in
3
H.
6.
But
if
he
had
devised
the
Tenements
to
his
Son
in
Taile
without
limitation
over
of
the
remainder
,
there
he
might
choose
to
be
in
of
the
Estate
limited
by
the
Devise
,
or
as
heir
.
Hutton
.
I
doubt
of
that
,
for
the
Book
is
not
agreed
,
3
H.
6.
Wilkinsons
Case
.
THe
Baron
seised
of
lands
,
makes
a
Feoffment
upon
condition
to
enfeoff
him
and
his
wife
for
life
,
the
remainder
over
to
a
stranger
in
Fee
.
Atthow
demanded
if
the
Feoffee
shall
be
bound
to
make
the
Feoffment
before
request
made
by
the
Baron
.
Hutton
and
Crook
thought
that
a
request
ought
to
be
made
by
the
husband
.
And
because
the
particular
Estate
which
is
the
foundation
of
the
remainder
limited
to
the
stranger
,
ought
to
be
made
to
the
husband
,
who
is
party
to
the
condition
;
and
it
is
his
will
to
take
the
Estate
for
life
,
or
refuse
it
,
and
the
Feme
is
at
his
will
.
But
if
the
Baron
dyes
,
then
it
behooves
him
to
make
the
Feoffment
to
the
wife
,
without
request
,
because
she
is
a
stranger
to
the
condition
,
by
Act
in
Law
.
And
so
where
she
dyes
also
before
the
Feoffment
,
the
Estate
ought
to
be
made
to
him
,
to
whom
the
remainder
is
limited
,
without
any
request
.
Yelverton
.
But
if
the
condition
was
to
re-enfeoffe
the
Feoffor
and
a
stranger
,
there
it
behoves
the
Feoffee
to
tender
the
Feoffment
to
the
stranger
,
for
he
had
not
notice
of
the
condition
,
and
he
ought
to
be
party
to
all
the
Estate
.
And
by
the
Livery
made
to
him
,
the
Feoffor
shall
take
well
enough
.
Waterton
against
Loadman
.
Waterton
makes
a
Feoffee
to
the
use
of
Loadman
,
in
Fee
to
the
use
of
another
in
Tayle
,
the
remainder
to
his
right
heirs
in
Fee
.
Cestui
que
use
in
Tayle
dyes
,
the
first
Feoffees
enter
,
for
to
recontinue
the
use
.
Crook
said
,
That
when
Tenant
in
Tayle
in
use
makes
a
Feoffment
,
nothing
passes
but
for
his
own
life
.
For
it
had
been
agreed
,
where
cestui
que
use
pur
vie
,
makes
a
Feoffment
in
Fee
,
(
for
it
was
not
a
Forfeiture
of
his
Estate
)
because
nothing
passed
but
for
his
life
)
then
when
the
Feoffee
dyes
during
the
life
of
cestui
que
use
in
Tayle
,
that
cannot
be
any
descent
of
the
Fee
,
but
as
an
Estate
for
life
,
the
which
determines
by
the
death
of
cestui
que
use
in
Tayle
.
And
all
the
Iustices
were
of
the
same
Opinion
;
for
the
descent
was
,
when
he
had
not
any
Title
of
entry
;
for
by
the
Feoffment
he
had
a
Title
during
the
life
of
cestui
que
use
in
Tayle
.
Wherefore
during
his
life
they
could
not
enter
,
nor
make
continuall
claim
.
But
if
the
descent
had
been
after
the
death
of
cestui
que
use
in
Tayl
,
then
otherwise
it
shall
be
;
for
they
had
a
Title
to
enter
before
the
descent
,
and
by
their
laches
they
are
told
of
that
.
Hutton
seemed
,
That
the
Feoffees
cannot
enter
in
that
case
;
for
they
cannot
have
the
same
Estate
that
they
had
before
the
alienation
of
cestui
que
use
in
Tayl
;
for
by
the
Feoffment
the
Estate
of
the
Fee
simple
which
was
to
their
right
heirs
,
passes
clearly
;
and
it
is
lawfully
in
the
Feoffee
.
Wherefore
if
they
enter
to
re-continue
the
use
in
Tayl
where
they
shall
he
seised
of
another
Estate
,
where
they
shall
be
seised
of
a
Fee
simple
also
;
and
so
there
shall
be
two
Estate
of
Fee
simple
of
the
same
land
,
which
is
inconvenient
.
But
the
Iustices
said
,
That
cestui
que
use
in
Tayl
,
had
no
other
remedy
,
unless
by
the
Entry
of
the
Feoffees
.
Harris
against
Marre
.
A
Man
seised
of
certain
lands
in
Fee
,
makes
a
Feoffment
in
Fee
to
his
use
,
and
afterwards
makes
his
will
,
by
which
he
devises
,
That
the
Feoffees
shall
make
an
Estate
of
the
same
lands
to
all
his
Sons
,
except
H.
And
if
all
his
Sons
dye
without
issue
,
that
then
the
remainder
shall
be
to
an
Estranger
.
Hutton
said
,
That
because
H.
was
not
excepted
in
the
last
clause
,
that
he
had
an
Estate
Tayl.
The
Maior
and
Commonalty
of
Winchesters
Case
.
THe
Bishop
of
Winchester
grants
to
the
Maior
and
Commonalty
of
the
same
City
,
That
they
might
Edifie
in
the
vacant
places
of
the
same
City
,
and
inhabit
there
.
And
that
Grant
was
confirmed
by
the
Dean
and
Chapter
;
and
the
Opinion
of
Hutton
was
,
That
notwithstanding
that
Grant
,
the
soil
is
to
the
Bishop
,
and
by
consequence
the
Houses
.
Quia
quioquid
plantatur
solo
cedit
solo
.
And
that
grant
does
not
enure
,
but
as
a
Covenant
or
Licence
,
and
not
otherwise
.
One
Tomkins
Case
.
IT
was
said
by
the
way
,
That
if
a
man
be
in
Execution
for
the
Debt
of
another
man
,
in
the
Fleet
,
the
King
cannot
take
him
into
his
Protection
,
into
his
Wars
,
out
of
Prison
,
untill
the
Debt
be
paid
,
because
that
he
is
in
Execution
for
the
said
Debt
;
and
the
letting
him
out
of
Prison
,
is
to
let
him
out
of
the
Execution
,
which
the
Law
will
not
suffer
.
But
if
he
was
in
Execution
in
the
Fleet
,
or
other
Prison
,
for
the
Debt
of
the
King
,
there
he
may
discharge
him
,
and
take
him
into
his
Protection
,
or
into
his
wars
;
for
he
may
well
discharge
his
own
Debt
.
Skore
and
Randalls
Case
.
THe
Case
was
thus
.
A
Lease
was
made
to
Robert
Chichester
,
for
99
years
,
to
him
,
his
Executors
,
Assigns
,
or
Administrators
,
if
Robert
Chichester
,
or
John
Bellew
,
or
James
Bellew
,
or
any
of
them
shall
so
long
live
,
yielding
and
paying
therefore
yearly
and
every
year
unto
the
said
Randall
,
his
Heirs
and
Assigns
,
the
sum
of
40.
s.
at
the
four
most
usuall
Feasts
,
and
also
yielding
at
or
upon
the
death
of
Chichester
,
Bellew
or
Bellew
,
his
or
their
best
Beast
in
the
name
of
an
Herriot
,
or
40.
s.
&c.
Provided
that
if
Bellew
or
Bellew
dye
in
the
life
of
Chichester
,
no
Herriot
to
be
paid
after
their
deaths
.
A
Distress
is
taken
upon
Skore
the
Assign
of
Chichester
,
for
his
own
Beast
.
Ashly
.
The
Question
is
whether
his
or
their
refer
to
Chichester
,
Bellew
,
or
Bellew
only
,
or
may
refer
to
Executors
and
Assigns
of
Chichester
the
Lessée
.
And
so
whether
the
Beasts
of
the
Assignée
may
be
taken
for
an
Herriot
.
And
it
séemed
to
him
not
;
for
that
,
that
a
Reservation
ought
to
be
taken
strictly
,
27
H.
8.
Comment.
171.
21
H.
8.
Dyer
45.
So
that
if
the
words
are
words
of
Reservation
,
or
of
Declaration
which
he
will
favour
,
they
shall
not
be
extended
further
than
the
words
,
&c.
Bing
.
contrary
,
And
he
conceived
that
the
Lessee
or
his
Executors
before
Assignment
,
ought
to
pay
the
Herriot
,
and
afterwards
the
Assignee
;
for
he
who
took
the
benefit
,
ought
to
sustein
the
burthen
.
Sic
transit
res
cum
onere
;
and
none
took
the
benefit
but
the
Assignee
,
or
his
Executors
.
And
that
is
so
strange
an
intendment
,
that
in
the
Habend.
it
is
not
named
who
shall
yield
or
pay
,
but
it
is
intended
he
who
had
the
land
;
and
that
Herriot
comes
in
in
the
render
of
the
Rent
,
and
render
does
suppose
a
Prender
.
And
it
is
coupled
with
the
reservation
of
Rent
,
and
it
may
be
granted
that
the
Tenant
shall
pay
the
Rent
.
And
then
it
immediately
followes
,
And
also
his
or
their
best
,
&c.
which
then
ought
to
be
the
Beast
of
him
in
possession
.
Secondly
,
The
other
Exposition
should
be
impossible
to
be
performed
;
for
none
shall
be
charged
but
those
that
are
either
privy
in
contract
or
Estate
;
and
the
Executors
of
Chichester
are
not
privy
to
any
,
and
Bellewes
are
the
persons
only
named
by
the
limitation
of
the
Estate
,
and
not
any
wayes
privy
.
It
may
be
said
,
that
the
Tenant
shall
pay
the
Beast
of
Chichester
,
and
so
his
Beast
.
But
no
man
may
give
the
Beast
of
another
.
And
if
it
be
said
,
That
he
may
buy
him
,
then
the
Property
should
be
altered
,
and
it
would
be
his
own
Beast
.
Yielding
his
or
their
Beast
,
It
cannot
be
intended
,
that
Bellew
or
Bellew
,
might
yield
;
but
the
Lease
is
granted
to
him
,
his
Executors
or
Assigns
,
then
his
or
their
Lessee
,
or
their
Executors
or
Assigns
.
And
you
cannot
have
a
forraign
intendment
of
Bellew
or
Bellew
.
Then
the
Exposition
is
good
,
that
the
Herriot
ought
to
goe
with
the
Estate
.
Hutton
.
That
Reservation
is
not
of
a
thing
that
agrees
with
the
Rent
,
but
it
is
of
a
collaterall
matter
,
and
it
is
of
a
thing
against
common
right
;
and
for
that
it
ought
to
be
taken
strictly
,
and
to
be
the
Beast
of
him
that
dyed
;
for
if
it
had
been
,
Yielding
the
best
Beast
of
a
stranger
,
it
had
been
good
;
but
th●…e
is
Election
of
the
Herriot
,
or
of
40.
s.
Then
by
Assignment
one
part
is
become
impossible
;
for
the
Assignee
cannot
pay
the
Beast
of
Chichester
,
but
the
Fourty
shillings
he
may
pay
.
And
because
the
Distress
may
be
taken
for
the
40.
s.
therefore
the
Avowry
is
naught
Richardson
.
If
Chichester
dye
Tenant
,
then
his
Beast
shall
be
paid
.
And
his
Executors
,
if
the
interest
come
to
them
,
shall
cause
that
it
be
paid
;
for
Chichester
made
the
Contract
,
and
that
goes
to
his
Executors
,
but
not
to
the
Assigns
.
And
for
the
40.
s.
that
is
demandable
against
the
Executors
of
Chichester
.
Yelverton
.
The
case
is
doubtfull
,
but
I
incline
,
that
the
Avowry
is
not
good
;
for
the
words
in
the
Reservation
of
the
Heriot
are
speciall
.
If
it
had
been
said
,
And
also
yielding
after
his
and
their
death
,
his
or
their
best
Beast
.
There
it
would
be
the
Beast
of
the
Lessee
,
his
Executors
or
Assigns
.
But
also
he
had
sever'd
it
from
the
Rent
,
and
had
taken
out
of
the
course
of
the
Estate
;
for
otherwise
it
concurred
and
went
with
the
Rent
;
But
also
he
had
made
it
collaterall
;
for
it
is
to
be
paid
after
the
death
of
the
stranger
.
For
his
or
their
cannot
be
carried
but
to
the
persons
named
by
the
limitation
.
And
the
Proviso
explains
that
,
that
it
should
not
be
payed
after
the
death
of
the
Assignee
.
But
if
it
had
been
rendring
the
best
Beast
after
the
death
of
the
stranger
,
It
should
be
payed
by
him
that
had
the
Inheritance
.
But
he
held
for
the
40.
s.
that
the
Executors
shall
not
pay
it
.
Perryman
against
Bowden
.
PErryman
brought
a
Replevin
against
Bowden
and
Brown
,
who
made
a
Recognisance
in
the
name
of
Bedle.
And
the
Case
was
thus
.
A
rent
is
granted
payable
at
Michaelmas
and
the
Annunciation
;
And
if
it
be
in
arrear
by
40
daies
after
any
day
of
payment
,
upon
the
demand
at
such
a
place
,
he
might
distrain
.
And
it
is
not
shewed
that
he
demanded
it
;
And
for
that
a
demurrer
.
Atthowe
,
it
is
not
requisite
to
shew
a
demand
,
for
the
distress
it self
is
a
demand
.
And
it
was
adjudged
in
this
Court
;
If
a
Rent
be
granted
,
and
that
he
may
without
demand
distreyn
;
and
good
without
demand
.
And
the
words
(
if
it
be
demanded
)
are
material
;
Because
it
is
demandable
in
a
Collateral
place
,
out
of
the
Land
charged
.
Crook
,
Grant
of
a
rent
,
and
that
I
pay
it
at
Michaelmas
allwaies
,
if
it
be
demanded
at
my
House
;
there
ought
to
be
a
demand
.
And
suppose
it
was
to
be
demanded
in
such
a
place
,
upon
the
Land
;
I
conceive
the
demand
ought
to
be
made
accordingly
.
Yelverton
,
A
Lease
was
made
rendring
a
rent
payable
at
such
a
day
:
upon
Condition
that
if
the
rent
be
not
paid
at
such
a
day
without
demand
,
That
the
Lessor
may
reenter
.
And
adjudged
that
no
demand
is
now
requisite
.
For
modus
et
conventio
vincunt
legem
,
&c.
Sed
adjurnatur
.
Wolfes
Case
before
.
THe
Plaintiff
was
an
Attorney
who
sued
by
attachment
of
Privilege
;
And
now
the
Court
would
not
permit
the
amendment
;
Because
there
was
a
material
Error
,
for
it
is
to
the
disadvantage
of
the
King
.
For
if
the
party
be
non-sute
,
or
a
verdict
passes
against
him
,
the
King
shall
have
a
Fine
for
false
clamour
,
and
may
recover
them
against
the
pledges
.
But
now
where
it
is
the
Act
of
the
Court
or
of
the
Clark
or
Attorny
,
and
not
the
party
himself
,
there
may
be
amendment
.
As
warrant
of
Attorney
may
be
entred
after
the
Record
removed
.
And
although
that
pledges
were
entred
upon
the
Issue
roll
,
where
it
ought
to
have
been
upon
the
Imparlance
roll
.
But
not
on
the
contrary
.
For
the
Issue
roll
is
the
inferiour
.
Harvey
,
If
a
Sute
be
by
Bill
,
as
an
Attorney
being
Defendant
,
there
are
alwaies
pledges
entred
in
the
Bill
.
But
if
by
Attachment
also
as
so
,
Then
the
Declaration
is
the
Original
.
Crook
12
Eliz.
Dyer
.
There
Iudgement
was
reversed
for
want
of
Pledges
.
And
although
that
Case
was
before
the
Statute
of
8
Eliz.
yet
that
Statute
does
not
ayd
substantial
Errors
.
And
in
one
Husseys
Case
in
the
Kings
Bench
,
That
was
adjudged
for
Error
.
Wilknsons
Case
.
CRew
moved
,
that
two
were
bound
in
a
Statute
,
and
one
dies
,
his
Heir
within
age
.
That
the
extent
shall
demur
;
Because
that
usura
recurrit
contra
haeredem
infra
aetatem
existentem
And
he
cited
17
Ass.
24.
by
Mawbrey
.
And
so
it
was
agréed
by
the
Court.
And
Richardson
said
,
That
in
that
respect
,
the
Statute
is
an
ill
assurance
.
Quod
nota
.
Waddingtons
Case
.
AYl●ff
moved
for
a
Prohibition
for
one
Waddington
,
for
that
,
that
he
was
executor
,
and
was
sued
in
the
Councell
of
York
,
upon
an
Obliligation
for
the
payment
of
a
Legacy
.
And
he
alleges
that
a
Lease
which
was
put
in
the
Inventory
,
was
aliened
to
him
by
the
Testator
in
his
life
time
.
And
so
the
Question
will
be
whether
that
should
be
Assets
,
which
ought
to
be
tryed
at
the
Common
law
.
And
therefore
prayed
a
Prohibition
.
Richardson
said
,
The
Councel
of
York
have
power
of
all
Obligations
;
And
therefore
having
Iurisdiction
of
the
principal
,
they
have
Iurisdiction
of
the
accessary
.
Davenport
,
It
is
seen
that
they
may
proceed
upon
an
Obligation
of
all
sums
;
If
they
procéed
Suo
genere
,
as
in
the
Court
of
Equity
.
But
if
a
thing
tryable
at
Common
law
,
as
Assets
or
not
Assets
come
;
they
cannot
proceed
,
&c.
Richardson
,
If
a
Sute
be
there
for
a
Legacy
,
and
payment
be
pleaded
;
they
may
try
that
.
But
if
they
meddle
in
matter
of
Title
,
then
a
Prohibition
shall
be
granted
.
Hutton
,
There
hath
been
many
motions
upon
these
Ecclesiastical
Obligations
for
Prohibitions
;
and
allwaies
they
were
denied
.
And
so
it
was
in
this
Case
.
Comins
Case
.
IN
one
Comins
Case
,
it
was
agreed
by
the
Court
,
That
a
Subiect
may
have
a
Forest
,
But
cannot
have
a
Iustice
Seat
.
But
he
may
have
a
Swanmark
Court
,
and
the
other
Courts
,
and
a
Commission
to
execute
them
.
Then
a
Forest
in
the
hands
of
a
Subject
shall
pay
Tithes
.
And
it
was
agreed
that
in
the
hands
of
the
King
it
is
privileged
.
And
by
Henden
,
Davenport
,
and
Atthowe
Sergeants
,
It
is
only
his
personall
privilege
,
which
extends
to
the
Lessee
of
the
King
;
But
not
to
the
Feoffee
.
And
it
was
agréed
,
That
where
the
right
of
tithes
comes
in
Question
between
a
Parson
and
the
Vicar
,
who
are
both
Ecclesiastical
persons
.
It
shall
be
tryed
by
the
Ecclesiastical
Court
.
But
Richardson
said
the
Books
make
a
doubt
;
Where
it
is
between
the
Servant
of
the
Vicar
,
and
the
Parson
.
But
it
seemed
to
him
to
be
all
one
.
Margery
Rivets
Case
before
.
RIchardson
,
Hutton
,
and
Harvey
said
,
That
the
Devastavit
ought
to
be
to
Margery
for
Necessity
sake
,
For
it
cannot
be
intended
otherwise
.
For
none
can
satisfie
the
Debt
but
Margery
.
And
the
intention
of
the
Replication
was
to
charge
her
de
bonis
prop.
for
waste
:
and
no
other
can
be
intended
to
waste
.
And
the
Case
put
of
I.
S.
so
being
seised
,
feoffavit
;
There
it
is
good
without
praedict.
I.
S.
But
for
the
thing
it
ought
to
be
Feoffavit
inde
,
21
H.
7.
There
if
W.
S.
be
named
again
.
It
shall
be
intended
the
same
W.
S.
if
there
be
not
quidam
I.
S.
and
then
otherwise
:
and
also
it
is
much
mended
by
the
Replication
.
For
there
it
is
ipsa
Margareta
non
devastavit
.
But
Crook
and
Yelverton
on
the
contrary
,
according
to
their
reasons
before
;
that
no
Issue
is
joyned
▪
And
then
the
Statute
does
not
ayd
it
;
For
there
is
not
any
Nominative
Case
to
which
it
may
referre
.
If
it
had
been
quo
die
Margery
habens
bona
devastavit
,
had
been
good
.
But
being
bona
habuit
,
no
Grammarian
can
make
Construction
of
it
.
And
the
Replication
or
Declaration
ought
to
be
certain
to
all
intents
,
27
H.
6.
3.
Wrotesleys
Case
,
In
an
information
of
Tithes
,
It
was
said
,
That
the
Defendant
cognoscens
him
to
be
in
sute
:
being
ruled
,
that
Congnoscens
is
not
positively
an
affirmation
,
but
it
ought
to
be
cognovit
;
And
Iudgement
was
had
upon
it
;
and
yet
after
for
that
fault
reversed
.
1
R.
3.
There
the
Case
was
;
After
verdict
was
entred
that
the
Iury
appeared
,
et
electi
&
triati
dicunt
super
sacramentum
suum
.
There
it
was
reversed
,
because
it
was
not
lurati
,
and
yet
that
was
implyed
by
sacramentum
strongly
.
But
Implications
ought
not
to
be
allowed
in
Replicatious
;
then
we
should
introduce
so
many
incertainties
.
But
by
Crook
Iudgement
shall
be
given
against
the
Plaintiff
upon
his
own
Replication
.
For
that
,
that
the
waste
is
supposed
after
the
Son
came
at
full
age
;
and
then
the
Administration
that
determines
.
And
Iudgement
was
given
for
the
Defendant
.
Roberts
and
others
.
ROberts
and
others
in
East
Greenwich
,
were
cited
in
the
Spiritual
Court
to
pay
mony
that
the
Wardens
had
expended
in
reparation
of
the
Church
.
And
the
Inhabitants
alleged
,
That
the
tax
was
made
by
the
Church-wardens
themselves
,
without
calling
the
Free-holders
,
and
also
that
the
monys
were
expended
in
the
re-edifying
of
Seats
which
belonged
to
their
several
Houses
:
And
they
never
assented
that
they
should
be
pulled
down
.
And
now
that
allegation
was
not
allowed
,
but
sentence
was
given
against
them
.
And
then
they
appealed
to
the
Arches
,
where
this
allegation
was
also
rejected
;
And
for
that
he
prayed
a
Prohibition
;
And
the
Court
agreed
,
That
the
tax
cannot
be
made
by
the
Church-wardens
;
But
by
the
greater
number
of
the
Inhabitants
it
may
,
and
a
Prohibition
was
granted
.
But
by
Yelverton
,
If
it
be
cited
by
ex
Officio
,
a
Prohibition
will
not
lye
.
For
so
it
was
ex
insinuatione
,
&c.
For
the
Wardens
came
and
prayed
a
Citation
,
&c.
But
by
Richardson
,
Harvey
,
and
Crook
privately
,
a
Prohibition
will
lye
in
both
Cases
.
Commin
against
Carre
.
COmmin
brought
Trespass
against
Carre
for
taking
of
two
Heifers
.
The
Defendant
pleads
,
that
the
King
was
seised
of
a
Wapentake
in
Yorkshire
;
And
had
so
large
Iurisdiction
as
another
Turn
of
the
Sheriff
.
And
then
he
said
,
that
the
Plaintiff
plaid
at
Cards
within
that
Wapentake
,
in
the
House
of
such
an
one
;
and
said
that
that
is
contra
formam
Statuti
,
33
H.
8.
ca.
9.
And
said
then
,
that
he
plaid
at
Cards
another
day
.
And
thirdly
,
that
he
broke
a
Pin-fold
,
&c.
And
that
the
24
Martii
,
21
Iac.
warning
was
given
to
the
Plaintiff
,
he
being
an
Inhabitant
,
for
a
year
before
,
within
the
Iurisdiction
of
that
Court
,
that
he
ought
to
appear
the
last
day
of
March
following
;
And
said
that
the
Court
was
then
held
,
and
those
offences
were
presented
,
and
that
for
his
not
appearing
he
was
amerced
12
d.
and
for
the
playing
6
s.
8
d.
and
for
the
breaking
the
pound
3
s.
4
d.
And
now
for
all
those
amerciaments
he
distrained
,
by
vertue
of
a
Warrant
of
the
Steward
of
the
Court
(
and
does
not
say
what
warrant
)
And
then
justifies
the
selling
of
the
said
Heife●s
for
20
s.
and
that
he
retained
17
s.
and
offered
the
surplusage
to
the
Plaintiff
.
Atthow
,
there
is
not
any
thing
to
prove
any
sorfeiture
by
the
Plaintiff
.
For
the
Statute
is
upon
two
branches
.
First
,
That
no
Common
house
of
play
be
kept
.
Secondly
,
If
any
use
those
Houses
,
and
play
,
&c.
That
it
is
not
said
that
that
is
a
Common
house
of
play
.
But
then
it
will
be
said
,
that
it
is
alleged
contra
formam
Statuti
;
and
that
will
imply
that
.
But
now
that
is
not
sufficient
;
For
if
any
inform
contra
formam
Statuti
,
If
by
his
own
shewing
it
does
not
appear
contra
formam
Statuti
,
He
shall
not
have
Iudgement
.
Richardson
,
A
Common
house
of
play
,
is
a
House
for
lucre
,
maintained
for
play
;
And
there
the
Law
makes
a
difference
between
Common
persons
and
private
,
&c.
But
contra
formam
Statuti
will
not
serve
.
For
the
offence
ought
to
be
alleged
fully
.
Yelverton
made
four
causes
of
Distress
,
selling
the
Distress
;
If
it
be
good
for
any
it
is
sufficient
.
And
if
there
be
a
Iustification
for
three
causes
in
Avowry
;
If
it
be
good
by
any
,
It
is
sufficient
.
9
H
6.
But
so
it
is
where
a
trespass
,
&c.
Harvey
,
A
Iustification
in
a
Leet
;
That
he
distreyn'd
and
sold
,
and
delivered
the
overplus
to
the
party
,
in
the
Case
of
the
King
it
is
good
,
But
in
the
Case
of
Common
persons
I
doubt
whether
he
may
sell
;
And
in
the
Case
of
the
King
he
ought
to
deteyn
the
distress
for
16
daies
before
sale
.
But
by
Yelverton
and
Hutton
,
All
Leets
are
the
Courts
of
the
King
;
and
they
may
be
used
as
the
Courts
of
the
King
.
And
it
was
said
afterwards
by
Richardson
,
That
the
Statute
was
grosly
mistaken
.
And
that
divers
amerciaments
were
wanting
.
And
so
Iudgment
for
the
Plaintiff
.
Traver
against
the
Lord
Bridgewater
et
Ux.
TRavers
brought
an
action
upon
the
Case
against
the
Lord
Bridgewaters
and
his
Wife
,
Administratrix
of
T.
D.
her
Husband
deceased
.
For
that
the
said
T.
D.
in
consideration
that
the
said
Travers
,
tradidisset
&
deliberasset
to
the
said
T.
D.
divers
Merchandizes
,
he
promised
to
pay
,
&c.
The
Defendant
pleads
that
the
said
T.
D.
non
assumpsit
.
And
't
was
found
for
the
Plaintiff
,
and
pleaded
in
Arrest
of
Iudgement
,
that
it
was
no
Consideration
.
And
adjudged
for
the
Defendant
.
For
when
he
said
tradidisset
&
deliberasset
,
That
they
might
be
his
own
Goods
.
Otherwise
if
he
had
said
vendidisset
de
novo
,
E.
4.
19.
Accordingly
.
Palmers
Case
.
IT
was
held
by
the
Court
,
If
a
man
assume
to
pay
mony
due
,
in
consideration
to
forbear
to
sue
him
paululum
temporis
.
And
if
he
forbear
for
a
convenient
time
;
It
is
a
sufficient
consideration
,
upon
which
to
ground
an
Assumpsit
The
case
was
between
Palmer
and
Rouse
P.
40
El.
rot.
537.
The
Plaintiff
counts
that
I.
S.
was
indebted
to
him
upon
an
Obligation
,
and
he
forfeited
it
and
dies
,
and
made
the
Defendant
his
Executor
.
And
that
the
Plaintiff
was
forced
to
sue
the
Obligation
,
and
in
consideration
of
the
premises
.
The
Defendant
assumed
that
if
the
Plaintiff
would
forbear
him
pro
brevi
tempore
that
he
would
pay
him
.
And
the
Paintiff
fidem
adhibens
,
&c.
forbore
4
years
to
sue
him
;
and
said
that
the
Defendant
had
Assets
.
The
Defendant
said
absque
hoc
that
he
had
Assets
.
And
upon
that
the
Plaintiff
demurred
;
and
adjudged
for
him
.
For
the
alleging
of
Assets
in
the
Count
is
surplusage
.
And
now
the
consideration
was
sufficient
,
for
he
had
counted
he
had
forbore
for
four
years
.
Panton
against
Hassel
.
PAnton
brought
an
action
upon
the
Case
of
trover
and
conversion
against
Hassell
,
who
declared
,
That
whereas
he
was
possessed
of
certain
Iewels
16
April
he
lost
them
,
and
20
Ian.
they
came
to
the
hands
of
the
Defendant
,
and
he
converted
them
.
And
this
was
supposed
to
be
done
in
Huntingtonshire
;
The
Defendant
pleads
,
that
time
out
of
mind
,
&c.
the
City
of
Bristow
is
and
hath
been
a
Market
overt
,
in
Shops
et
locis
apertis
,
and
the
Defendant
bought
them
in
his
Shop
.
And
further
shews
that
he
is
a
Gold-Smith
,
by
reason
of
which
he
was
possessed
of
them
as
his
proper
Goods
,
and
converted
them
to
his
own
use
,
which
is
the
same
conversion
.
Hutton
,
When
the
Defendant
had
supposed
an
absolute
property
by
the
sale
in
the
Market
overt
,
that
Conversion
after
,
cannot
be
a
Conversion
of
the
Goods
of
the
Plaintiff
For
of
necessity
there
ought
to
be
a
mean
time
between
the
change
of
the
property
,
and
the
conversion
.
Also
the
Custome
is
naught
;
for
he
ought
to
say
in
locis
apertis
&
shops
apertis
;
For
the
cause
of
the
change
of
the
property
is
,
Because
every
one
may
come
thereto
and
see
if
they
are
his
Goods
,
and
there
challenge
them
.
So
that
by
some
intendment
in
this
prescription
,
that
Shop
might
he
a
private
Shop
.
And
although
that
it
be
averred
in
facto
that
that
Shop
is
apert
;
Yet
when
the
prescription
is
mislayed
,
the
Bar
is
naught
.
For
if
Issue
be
taken
que
fuit
shop
apert
:
That
is
not
a
good
issue
.
Also
he
prescribed
,
that
there
was
a
Market
overt
every
day
,
except
Sunday
and
Festivals
;
and
that
it
was
not
Sunday
or
Festival
,
where
it
should
have
been
nec
Festival
per
que
,
&c.
Harvey
said
,
That
word
apertis
shall
have
relation
as
well
to
shops
as
to
locis
;
Hutton
at
Newgate
Sessions
seven
of
the
Iustices
being
present
,
there
was
a
Question
,
That
if
a
man
having
Cloath
stollen
from
him
,
and
that
was
sold
in
a
Scriveners
Shop
,
Resolved
that
there
was
no
change
of
the
property
.
For
by
intendment
if
a
man
had
Drapery
stollen
from
him
)
he
would
not
seck
it
there
.
So
if
a
man
fells
stollen
Plate
,
and
sells
it
in
the
High
street
under
his
Cloak
,
It
does
not
change
property
.
And
if
a
man
sells
a
thing
in
a
Silkmans
Shop
in
London
(
the
Curtain
being
drawn
)
That
does
not
change
the
property
.
And
now
to
the
principal
Case
,
Although
he
said
that
he
was
a
Goldsmith
and
that
that
was
his
Shop
,
It
is
not
necessary
to
be
intended
,
that
he
used
the
Trade
of
a
Goldsmith
in
it
;
And
that
ought
to
be
averred
.
For
every
Shop
is
a
Market
overt
:
for
these
Causes
only
,
which
appertain
to
the
same
trade
.
Williams
against
Bickerton
.
WIlliams
brought
an
action
upon
the
Case
against
Bickerton
for
saying
,
He
hath
forsworn
himself
,
and
i
le
teach
him
the
price
of
an
Oath
,
for
I
will
have
his
Ears
cropt
.
And
it
séemed
that
it
lay
.
For
although
it
was
not
said
at
the
beginning
,
where
it
was
that
he
forswore
himself
,
Yet
by
the
circumstance
it
shews
that
he
was
in
such
a
place
,
for
which
it
was
punishable
.
And
M.
29
,
30
Eliz.
Dantsleys
Case
.
Thou
art
a
Pillary
Knave
,
remember
that
thou
hast
deserved
the
Pillary
;
and
the
Action
maintainable
.
And
the
Plaintiff
paid
the
Box
for
his
Iudgement
.
Bradyes
against
Johnson
.
BRadye
brought
an
Eject
.
firm
.
against
Johnson
,
and
declared
upon
a
Lease
of
Land
habend
.
a
die
dat
.
Indentur
.
praedict.
And
does
not
speak
of
any
Indenture
before
.
And
for
that
the
Declaration
adjudged
naught
.
And
so
it
was
betwéen
Bell
and
March.
And
this
same
term
between
Spark
,
Where
it
was
shewed
quod
concessit
per
eandem
Indent
.
Where
he
had
not
spoke
of
any
Indenture
before
.
Lowen
against
Cocks
.
IN
Debt
by
Lowen
against
Cocks
,
the
Case
was
thus
,
A
man
seised
of
an
house
in
St.
Edmonds
Parish
in
Lumbard-street
in
London
,
devises
it
to
his
wife
for
life
,
the
remainder
to
his
Son
George
,
and
if
he
dye
without
Issue
,
then
to
Iohn
and
Thomas
his
Sons
equally
,
and
to
their
Heirs
.
The
wife
dyes
,
George
dyes
without
Issue
,
l.
and
T.
make
a
Lease
for
years
,
rendring
5.
l.
to
the
one
,
and
5.
l.
to
the
other
,
l.
devises
the
reversion
to
his
wife
,
and
dyes
,
and
for
that
Rent
the
Action
was
brought
by
the
Wife
.
And
the
Question
was
,
if
they
shall
be
Ioynt
or
Tenants
in
Common
.
(
For
if
joynt
the
devise
of
the
Reversion
is
void
.
)
And
Secondly
,
If
by
any
Act
which
makes
partition
(
viz.
)
the
several
Limitations
of
the
rent
to
them
.
If
séemed
to
Hutton
that
they
are
Tenents
in
Common
;
By
reason
of
that
word
equally
,
which
in
it self
makes
a
Division
.
In
33
Eliz.
in
Boucher
against
Marsh
.
It
was
held
,
that
where
a
man
devises
Lands
to
three
Children
equally
to
be
divided
;
they
are
Tenents
in
Common
.
And
so
it
was
14
lac.
in
case
of
Goods
.
And
it
is
clear
(
as
it
is
said
)
If
a
Man
devise
100
l.
to
two
equally
,
the
Executors
shall
pay
50
l.
to
the
one
,
and
50
l.
to
the
other
.
For
if
that
word
equally
does
not
make
tenancy
in
Common
,
it
shall
be
all
otherwise
void
.
And
every
word
of
a
Will
ought
to
be
of
some
force
.
And
in
these
Cases
the
word
divided
was
not
the
force
of
the
matter
,
but
only
equally
,
And
it
was
the
Case
of
a
Shepheard
in
the
Courts
of
Wards
.
Where
a
man
devises
,
that
after
the
death
of
his
Son
all
my
woods
shall
remain
equally
to
his
Daughters
and
their
Heirs
of
their
bodies
.
And
it
was
there
held
by
Dyer
and
Manwood
that
they
were
Tenents
in
Common
.
If
Parceners
agrée
to
hold
by
,
That
is
sufficient
partition
.
And
if
the
one
Ioyntenant
confirms
to
the
other
;
that
does
not
give
any
thing
,
but
severs
the
Ioynture
.
Harvey
to
the
contrary
.
First
,
They
are
Ioint
,
For
Ioynture
is
the
greatest
equality
,
for
every
one
is
seised
by
himself
,
and
the
one
hath
as
much
of
the
profits
as
the
other
.
And
so
equal
interest
and
equal
benefit
to
the
Survivor
.
6
E.
6.
in
Dyer
.
A
difference
was
taken
between
a
Demise
to
two
,
when
it
is
said
equally
divided
.
That
they
shall
be
Tenents
in
Common
;
If
equally
to
be
divided
they
shall
be
joynt
.
But
it
was
never
adjudged
.
17
Eliz.
A
man
having
3
Sons
,
devises
Lands
to
them
equally
to
be
divided
.
The
Question
was
what
estate
they
had
.
For
if
the
younger
had
not
a
fee
,
they
could
not
have
an
Estate
equal
with
the
eldest
,
for
he
had
a
fee.
Resolved
,
that
they
shall
have
a
fee-simple
:
and
also
that
they
shall
be
Tenents
in
Common
.
And
held
that
to
be
divided
and
divided
was
all
one
.
And
it
was
held
also
that
the
word
divided
makes
the
Tenancy
in
Common
,
and
not
equally
.
2.
As
to
that
reserve
of
50
l.
to
the
one
,
and
50
l.
to
the
other
,
clearly
being
a
joynt
Lease
,
and
a
joynt
reversion
.
And
the
Rent
as
accessary
to
the
reversion
,
and
shall
not
change
the
nature
of
it
.
Yelverton
,
They
are
Tenents
in
Common
.
A
Will
shall
be
construed
according
to
the
intent
of
the
Testator
.
And
exposition
shall
be
made
of
the
words
to
supply
his
intent
.
Tomlins's
Case
.
IT
was
agreed
by
all
,
That
if
one
sojourn
in
the
House
of
another
;
and
the
House
is
broken
in
the
night
,
and
the
Stranger
robbed
in
the
House
,
without
being
put
in
fear
of
his
life
,
In
law
.
He
that
robbed
shall
have
his
Clergy
,
notwithstanding
the
Burglary
.
For
it
is
out
of
the
Statute
of
5
&
6
of
E.
6.
cap.
9.
Dicksons
Case
.
AT
Sergeants
Inne
in
Chancery
lane
this
Question
was
debated
,
If
a
man
steal
Goods
,
and
the
very
Owner
makes
fresh
sute
to
take
the
felon
;
So
that
he
waives
the
Goods
and
flies
;
And
before
the
Owner
comes
,
the
Goods
are
seised
as
Goods
waived
,
and
af-the
Owner
comes
and
challenges
them
.
Now
if
he
shall
have
them
,
or
they
shall
be
forfeited
was
the
Question
.
And
it
was
held
by
Harvey
and
Crook
,
That
they
are
not
at
all
forfeited
;
for
that
the
Owner
had
done
his
endeavour
and
pursued
from
village
.
And
that
the
Goods
shall
not
be
said
to
be
waived
,
but
where
it
cannot
be
known
to
whom
the
property
is
.
Hutton
Chief
Iustice
,
and
Yellerton
said
.
That
Goods
waived
shall
be
said
those
which
are
stollen
,
and
that
the
Felon
being
pursued
,
for
danger
of
apprehension
waives
and
flies
.
Now
if
they
are
seised
before
that
the
Owner
comes
,
the
property
is
presently
altered
out
of
the
Owner
in
the
Lord
,
although
that
he
made
fresh
sute
,
If
that
Sute
was
not
within
the
view
of
the
Felon
allwaies
.
But
they
all
agreed
,
if
the
Felon
do
as
not
flye
,
but
is
apprehended
with
the
Goods
,
That
then
the
Owner
shall
have
his
Goods
without
Question
.
Or
if
the
Owner
comes
and
challenges
the
Goods
before
seisure
;
and
after
the
flight
of
the
Felon
.
Harvey
said
,
The
Statute
of
21
H.
8.
cap.
13.
does
not
remedy
any
thing
,
as
to
the
restitution
of
the
Goods
stollen
.
But
upon
the
evidence
of
the
party
,
or
by
others
by
his
procurement
in
the
same
manner
.
As
it
was
in
an
appeal
upon
a
fresh
sute
at
the
Common-law
.
It
was
said
by
all
,
That
although
the
custome
was
of
Burgage
lands
in
soccage
;
Yet
if
the
Lands
came
by
gift
or
otherwise
to
tenure
in
Chief
,
or
service
of
Chivalry
,
That
that
now
changes
not
the
Custome
,
which
alwaies
goes
with
the
Land
,
and
not
with
the
tenure
:
As
the
Lands
in
Gavelkind
,
by
the
Custome
are
soccage
tenure
;
Yet
if
they
are
changed
to
service
of
Chivalry
,
the
Custome
is
not
altered
,
But
that
all
the
heirs
shall
inherit
.
It
was
agreed
by
all
,
That
if
sir
persons
compass
and
imagine
to
levy
war
against
the
King
;
And
there
is
an
agreement
betwéen
them
,
that
two
shall
do
such
an
act
in
such
a
Country
,
and
the
other
two
another
act
in
such
a
County
.
And
so
divers
acts
by
divers
in
several
Counties
for
to
assemble
the
people
against
the
King
.
And
after
two
do
the
Act
according
to
their
purpose
,
and
assemble
the
people
,
and
the
other
do
nothing
.
Yet
the
Act
done
by
two
upon
the
agreement
,
is
Treason
in
all
.
But
otherwise
it
is
if
there
had
been
only
a
compassing
,
&c.
and
not
any
agreement
,
and
afterwards
one
of
them
does
the
act
unknowing
to
the
others
;
there
it
is
not
Treason
,
but
in
those
that
doe
the
fact
,
and
not
in
the
others
.
As
it
happened
in
the
Case
betwéen
the
King
and
an
other
.
Wilkins
against
Thomas
.
IT
was
adjudged
upon
good
advise
;
That
if
an
Infant
he
impleaded
by
any
precipe
of
his
Lands
;
And
loses
by
defending
.
Now
he
shall
have
a
Writ
of
Error
.
And
because
that
he
was
within
age
at
the
time
of
the
Iudgement
,
it
shall
be
reversed
.
And
the
Infant
shall
be
restored
to
all
that
he
lost
.
As
it
happened
in
the
Case
of
John
Ware
against
Anderson
and
others
in
the
County
of
York
,
lost
while
they
were
infra
aetatem
.
Where
it
appeared
that
they
appeared
by
their
Guardian
(
admitted
to
them
by
the
Court
)
to
the
Grand
cape
;
and
that
they
were
within
age
.
But
there
was
an
inspection
by
Nurses
and
Friends
,
and
they
were
found
not
to
be
within
age
.
John
Symons
against
Thomas
Symons
.
NOte
it
was
said
by
all
the
Iustices
;
That
if
the
Disseisee
enter
upon
the
Feoffee
or
Lessee
of
the
Disseisor
,
That
he
shall
not
have
an
Action
of
the
Trespass
for
the
same
Trespass
against
the
Feoffee
or
Lessee
;
Because
that
they
come
in
by
a
Title
.
And
at
Common
law
before
the
Statute
of
Gloc.
No
dammages
for
mean
occupation
against
the
Feoffee
or
Lessee
.
Bromleys
Case
.
IF
a
man
steal
goods
,
and
be
arraigned
upon
an
Indictment
of
felony
,
and
the
goods
are
valued
to
6
s.
and
the
Iury
upon
their
verdict
say
,
That
he
is
guilty
of
the
said
goods
,
but
that
the
value
was
but
6
d.
That
is
a
good
verdict
;
And
the
Iustices
shall
vanish
him
as
for
patty
Larcenny
.
In
the
same
manner
it
is
,
If
a
man
be
arraigned
for
willfull
murther
,
and
the
Iury
find
it
but
Manslaughter
.
That
is
a
good
verdict
by
all
the
Iustices
.
Pease
against
Thompson
.
A
Man
seised
of
Lands
in
see
makes
a
feoffment
from
that
day
,
to
divers
,
to
the
use
of
his
Wife
for
her
life
,
and
after
to
the
use
of
the
heirs
of
the
body
of
the
Feoffor
.
The
Feme
dies
,
and
the
Feoffor
makes
a
Lease
for
years
and
dies
▪
Now
her
Issue
shall
not
avoid
that
Lease
,
because
a
man
cannot
have
Heirs
in
his
life
:
So
that
at
the
time
of
the
death
of
the
Feme
there
was
none
to
take
by
the
remainder
.
And
for
that
the
Feoffor
had
the
fee
;
the
Lease
is
good
and
shall
bind
the
Heir
.
As
if
a
Lease
be
made
for
life
,
the
Remainder
to
the
right
Heirs
of
I.
S.
and
I.
S.
dies
in
the
life
of
the
Lessee
:
then
the
remainder
is
good
,
otherwise
not
,
but
it
shall
revert
.
But
otherwise
it
shall
be
peradventure
in
such
a
Case
in
a
demise
.
Hillary
3
Car.
Com.
Banc.
Skore
against
Randall
.
SKore
brought
Debt
against
Randall
,
and
recovered
,
and
had
execution
by
Elegit
,
and
it
was
found
by
the
Inquisition
that
the
Defendant
was
seised
of
the
moyety
of
a
Messuage
and
Lands
for
life
,
and
other
Lands
in
right
of
his
Wife
.
And
the
Sheriff
returns
that
virtute
brevis
,
et
deliberat
,
feci
meditatem
omnium
praemissorum
cum
pertinentiis
,
&c.
Nec
non
duo
pomaria
,
nec
non
unum
clausum
vocat
,
&c.
And
that
he
had
delivered
the
moyety
of
the
Lands
in
right
of
his
Wife
,
and
his
Chattells
,
and
recites
them
,
and
that
Elegit
was
filed
.
And
the
Question
was
,
whether
he
might
have
a
new
Elegit
,
Because
that
the
Sheriff
ought
to
have
delivered
to
him
the
moyety
of
the
moyetic
of
the
Lands
held
in
Ioint-tenancy
.
So
that
the
Tenent
by
Elegit
might
be
Tenant
in
Common
for
a
fourth
part
with
the
Ioynt
tenants
,
as
it
was
agreed
.
But
also
by
that
Delivery
he
had
but
in
effect
the
eighth
part
;
For
the
other
Ioynt-tenants
,
may
occupy
the
Land
delivered
with
him
in
Common
.
Richardson
said
,
For
part
of
the
Lands
and
goods
,
in
right
of
his
Wife
,
the
return
is
good
;
And
being
filed
he
cannot
have
a
new
Election
.
For
if
part
shall
be
evicted
,
you
cannot
have
a
new
Extent
upon
the
Estate
.
But
if
it
had
been
in
the
Genitive
Case
Duorum
pomorariorum
,
&c.
it
had
been
good
.
But
it
was
granted
by
the
Court
,
That
the
Plaintiff
makes
a
surmise
,
that
the
Sheriff
male
se
gessit
in
the
Execution
of
that
Elegit
,
and
then
he
may
have
a
new
Elegit
at
his
peril
,
&c.
Edward
Thomas
against
John
Morgan
,
et
al.
EDward
Thomas
brought
an
Ejectione
firmae
against
Morgan
,
Kemmis
,
and
others
,
and
upon
Not
guilty
pleaded
,
a
speciall
Verdict
was
given
to
this
effect
,
for
Morgan
and
Kemmis
,
(
for
the
other
some
were
dead
before
issue
,
and
the
other
not
guilty
)
and
they
found
a
Iudgement
dated
12
Sept.
23
Eliz.
and
deliver'd
the
15
Iunii
next
ensuing
.
Which
was
between
the
then
Bishop
of
St.
Davids
of
the
one
part
,
and
Richard
Thomas
of
the
other
part
.
And
it
was
in
consideration
of
a
Marriage
to
be
had
between
him
and
the
Daughter
of
the
Bishop
,
That
before
the
end
of
Hillary
Term
next
ensuing
,
he
would
levy
a
Fine
of
all
those
Lands
,
and
all
the
other
lands
in
Mountmouth
,
and
that
should
be
to
Thomas
Morgan
,
and
Roger
Sise
of
Lincoln-Inne
.
And
that
he
suffered
a
recovery
with
double
voucher
to
the
uses
in
the
Indenture
,
But
the
words
are
,
that
the
Conusees
should
stand
seised
to
the
use
.
And
by
Atthowe
,
the
Recovery
is
idle
,
for
the
uses
shall
be
executed
,
and
then
there
shall
be
no
Tenant
to
the
Precipe
,
(
viz.
)
That
of
all
the
Lands
mentioned
in
the
Indenture
Morgain
and
Sise
shall
stand
seised
to
the
only
uses
hereafter
,
&c.
that
is
to
say
,
They
shall
be
seised
of
in
part
of
the
Lands
and
Tenements
,
that
is
so
much
thereof
as
shall
amount
to
the
clear
value
of
30
l.
by
the
year
,
to
the
use
of
Richard
,
and
Anne
Daughter
of
the
Bishop
,
after
mariage
,
for
their
lives
.
Which
Lands
and
Tenements
to
the
value
of
30
l.
per
annum
shall
be
appointed
and
limitted
out
by
meets
and
bounds
,
and
put
in
writing
before
Hillary
Term
next
,
and
delivered
to
the
use
of
Edward
Thomas
,
and
Walter
Thomas
for
their
lives
,
which
were
Vncles
of
Richard
,
if
Richard
and
Anne
had
Issue
male
.
When
the
Survivor
of
them
dyes
without
Issue
male
,
or
if
all
the
Issue
male
dye
without
Issue
male
;
Then
the
use
to
Edward
and
Thomas
to
cease
.
Also
there
be
two
Conditions
,
the
one
Precedent
,
the
other
Subsequent
;
And
the
precedent
Condition
makes
that
a
contingent
Remainder
.
But
Atthow
would
have
that
settled
without
Issue
born
to
Richard
,
&c.
But
if
all
their
Issues
dye
before
the
Survivor
;
It
can
never
be
setled
.
For
the
words
(
scil.
)
at
the
death
of
the
Survivor
,
&c
,
And
then
before
the
contingency
happen
,
it
cannot
be
setled
.
If
the
contingency
had
been
void
at
the
time
of
the
limitations
;
I
agree
it
should
be
void
.
Now
if
the
particular
Estate
be
contingent
;
all
that
depends
upon
it
is
contingent
also
.
And
Edward
and
Walter
took
nothing
but
after
the
death
of
the
Survivor
of
Richard
and
Anne
without
Issue
.
And
then
it
is
as
in
the
Case
of
Cook
10.
85.
A
Feoffment
to
the
use
of
A.
for
life
,
and
after
the
death
of
B.
to
the
use
of
C.
and
his
Heirs
.
That
Remainder
is
contingent
,
Because
that
B.
ought
to
dye
in
the
life
of
A.
or
the
Remainder
shall
never
vest
.
So
also
to
Richard
and
Anne
for
their
lives
,
and
after
their
deaths
without
Issue
to
Edward
and
Walter
.
And
if
they
ever
take
an
Estate
,
it
ought
to
be
after
their
deaths
,
&c.
Secondly
,
For
the
uses
of
the
Residue
.
To
the
use
of
Richard
for
life
,
and
if
he
dye
living
A.
without
Issue
male
ingendred
of
the
body
of
A.
Then
to
A.
for
life
,
that
is
contingent
,
then
of
the
residue
,
after
the
death
of
Richard
to
the
use
of
Edward
&
Walter
,
if
Richard
had
not
issue
of
Anne
at
the
time
of
his
death
.
Whether
it
vests
after
his
death
see
before
,
&c.
That
is
contingent
also
.
And
it
is
contingent
whether
he
will
dye
without
Issue
male
.
As
if
a
Feoffement
be
made
to
the
use
of
one
for
life
,
and
if
he
had
no
Heir
of
his
body
,
to
another
in
fee
;
that
is
contingent
during
the
life
;
And
he
had
not
but
an
Estate
for
life
,
by
that
limitation
;
and
then
that
is
destroyed
by
the
Fine
also
.
And
now
if
nothing
was
in
Edward
,
nothing
can
be
setled
in
his
Son
.
And
then
those
contigent
Remainders
being
destroyed
:
there
is
a
good
estate
in
the
Purchasors
;
and
this
special
verdict
was
not
found
for
any
doubt
,
but
for
the
intricacy
of
the
Indenture
.
And
therefore
he
prayed
Iudgement
for
the
Defendant
.
Harvey
against
Fitton
.
HArvy
the
Administrator
of
Edward
Fitton
brought
an
Action
of
debt
upon
an
Obligation
of
200
l.
against
Edward
Fitton
,
and
declares
of
Letters
of
Administration
committed
to
him
by
the
Archbishop
of
Canterby
,
&c.
The
Defendant
says
,
That
the
Intestate
became
possessed
of
Goods
in
Chester
within
the
County
of
York
.
And
before
the
purchase
of
the
Writ
,
and
after
the
death
of
the
Intestate
,
I.
S.
Chancelor
of
Chester
committed
Administration
to
Richard
Fitton
of
all
the
goods
,
&c.
And
that
he
released
to
him
,
and
upon
that
de
murs
.
Bramston
,
He
doth
not
shew
what
person
that
Chancellor
was
,
or
how
he
had
that
Authority
to
grant
Administration
,
quod
fuit
concessum
per
Cur.
That
for
that
it
was
naught
.
And
it
was
agreed
,
that
the
Prerogative
of
Canterbury
does
not
extend
to
York
.
Dame
Buttons
Case
.
DAme
Button
was
Administratrix
of
Goods
and
Chattels
of
her
Husband
.
And
the
Sisters
of
the
Husband
would
compell
her
in
the
Prerogative
Court
to
make
Distribution
;
And
after
sentence
given
prays
a
Prohibition
,
and
divers
causes
were
alleged
.
But
Richardson
rejected
all
,
unlesse
it
was
upon
the
Statute
21
H.
8.
And
upon
that
Statute
he
said
,
that
upon
conference
with
the
Iudges
,
He
conceived
that
it
was
in
the
discretion
of
the
Court
to
grant
a
Prohibition
in
such
Cases
or
not
,
&c.
Hutton
said
,
That
a
Prohibition
in
such
cases
ought
to
be
granted
,
For
he
said
,
if
Sisters
may
come
in
for
portions
by
Distributions
,
where
Cousins
cannot
.
And
Sisters
have
not
any
colour
to
have
Distribution
.
For
although
that
the
Statute
of
Magna
Charta
cap.
18.
extend
a
pueris
,
Yet
not
All
Freres
or
Sisters
.
And
the
Ordinary
although
heretofore
would
compell
an
Executor
to
make
Distribution
;
yet
now
they
never
meddle
with
an
Executor
.
And
hath
not
an
Administrator
the
same
power
as
an
Executor
?
And
in
Isabel
Towers
Case
a
Prohibition
was
granted
.
For
when
they
have
executed
their
Authority
one
time
lawfully
,
they
cannot
make
a
Distribution
.
Harvy
to
the
same
intent
.
The
Ordinary
had
not
such
a
power
upon
the
Goods
of
any
,
especially
where
Administration
is
granted
;
For
then
they
have
put
the
Property
in
the
Administrator
to
pay
debts
,
&c.
And
there
may
be
a
sleeping
debt
which
by
that
means
shall
never
be
satisfied
.
For
if
the
Ordinary
might
grant
Administration
,
and
afterwards
make
Distribution
,
His
Authority
is
not
warranted
,
and
he
does
and
undoes
,
and
so
mocks
the
Statute
.
In
Flames
Case
it
was
said
,
that
if
they
are
not
permitted
to
make
Distribution
,
They
will
compell
it
before
Administration
shall
be
granted
.
But
they
have
not
any
such
power
;
for
he
ought
to
commit
Administration
if
it
be
demanded
.
And
it
was
so
in
one
Clarks
case
In
which
the
whole
Court
was
of
opinion
.
But
Yelverton
would
not
shew
his
op'nion
in
the
power
of
the
Ordinary
.
But
he
consented
to
a
Prohibition
without
other
cause
.
Iohn
Owens
Case
.
IOhn
Owen
lived
apart
from
his
wife
;
And
upon
petition
of
the
Wife
to
the
Iustices
of
Assise
for
maintenance
,
they
refer'd
it
to
the
Bishop
of
Bangor
;
who
ordered
that
he
should
pay
to
his
Wife
10
l.
per
annum
,
which
was
afterwards
confirmed
by
decree
in
the
Councel
of
Marches
of
Wales
.
And
because
that
Iohn
Owen
disobeyed
that
Decree
,
and
did
not
pay
the
10
l.
per
annum
,
the
Councel
sent
a
Messenger
to
apprehend
his
body
;
and
caused
his
Goods
,
and
the
profits
of
his
Lands
to
be
sequestred
.
And
Henden
prayed
a
Prohibition
;
for
that
that
Alimony
was
not
within
their
instructions
.
Richardson
demanded
of
him
if
they
could
grant
Prohibitions
;
If
they
meddle
with
a
thing
,
which
belongs
to
Ecclesiastical
power
,
where
they
themselves
have
power
.
Harvey
was
of
the
same
opinion
.
For
this
Court
should
preserve
other
Courts
in
order
.
Yelverton
said
,
For
the
sequestration
of
the
Lands
,
they
could
not
do
that
.
Richardson
,
They
have
not
any
power
to
sell
the
goods
.
The
Ecclesiasticall
Court
is
the
proper
Court
for
Alimony
;
And
if
the
person
will
not
obey
,
they
cannot
but
excommunicate
him
.
And
by
Yelverton
,
when
that
comes
to
them
from
the
Bishop
to
be
confirmed
,
They
cannot
but
walk
in
the
steps
of
the
Bishop
.
And
a
day
was
given
to
shew
,
why
a
Prohibition
should
not
be
granted
.
And
so
it
was
ruled
.
Feakes
against
—
ONe
—
was
sued
in
the
Councel
of
Marches
upon
a
Bond
of
500
l.
to
pay
40
marks
per
annum
;
And
he
alleged
,
that
he
did
not
intend
to
take
the
forfeiture
of
the
Bond
,
but
to
compell
him
to
pay
the
40
Marks
per
annum
.
And
a
Prohibition
was
granted
to
the
Court
at
the
motion
of
Hoskins
.
For
that
their
instructions
were
not
to
hold
Plea
but
for
,
&c.
And
if
this
should
be
permitted
,
it
is
but
a
window
to
draw
more
within
their
Iurisdiction
,
and
also
the
King
would
lose
his
Fines
.
But
he
ought
to
have
an
Action
of
Debt
.
Harvy
,
If
an
Obligation
was
to
perform
an
Annuity
of
such
a
sum
by
another
Deed.
The
party
may
bring
his
Action
upon
the
Obligation
or
Annuity
,
And
Yelverton
said
,
If
it
were
to
perform
a
Collateral
thing
,
or
if
the
Condition
was
all
one
with
the
Obligation
,
they
cannot
sue
for
the
performance
there
.
Quod
nota
.
Termino
Pasc
.
Anno
4.
Car.
Regis
Com.
Banc.
Norris
against
Isham
,
IN
an
Eject
.
firm
.
by
Norris
against
Isham
,
These
things
happened
in
Evidence
to
the
Iury.
First
it
was
cited
by
Richardson
and
Hutton
to
be
Hurtltons
Case
.
That
an
Eject
.
firm
.
cannot
be
of
a
Mannor
,
Because
that
there
cannot
be
an
Ejectment
of
the
Services
:
But
if
they
do
express
further
a
quantity
of
acres
it
is
sufficient
.
It
was
said
by
Crook
Iustice
,
and
not
denyed
;
That
if
a
Lease
is
made
of
5
acres
to
try
a
Title
in
an
●…eject
.
firm
.
And
of
the
3
acres
he
will
make
a
lease
.
But
in
the
other
a
he
will
not
;
If
the
livery
be
in
the
3
acres
the
other
2
does
not
pass
.
Part
of
the
Evidence
was
,
That
the
Countess
of
Salisbury
being
seised
of
the
Lands
in
Question
,
makes
a
Lease
of
them
by
words
of
Demise
,
Bargain
,
and
Sale
to
Iudge
Crook
for
a
Month
,
to
begin
the
29
September
,
habendum
a
datu
,
and
it
was
deliveted
the
3
of
September
.
And
the
same
day
he
bargains
and
sells
the
Reversion
.
Davenport
,
Because
that
no
Entry
appears
by
the
Lessees
by
vertue
of
the
Demise
,
he
submitted
to
the
Court
,
If
there
was
any
such
Reversion
in
the
Grantor
he
bring
in
possession
,
And
this
difference
was
a
greed
;
That
if
one
demises
Lands
for
years
,
and
Grants
the
Reversion
before
Entry
of
the
Lessée
.
The
Grant
is
void
.
As
it
is
in
Saffins
Case
.
Cook
5.
12.
46.
But
if
a
man
bargain
and
sell
for
years
,
and
grants
the
Reversion
before
Entry
of
the
Lessee
,
it
is
good
.
For
the
Statute
transfers
the
Possession
to
the
use
.
As
if
a
man
bargain
and
sells
in
fee
or
for
life
,
and
the
Deed
is
inrolled
.
The
Bargainee
is
in
possession
of
the
Frank-tenement
.
And
so
it
is
of
a
Lease
for
years
which
is
a
Chattell
.
And
by
Crook
,
In
the
Court
of
Wards
that
very
point
was
resolved
.
Davenport
,
Also
there
are
words
of
Demise
,
and
Bargain
,
and
Sale
,
before
which
the
Lessee
had
his
Election
to
take
by
which
he
would
.
As
Sir
Rowland
Heyards
Case
is
.
But
by
Hutton
,
and
it
was
not
denyed
.
He
should
be
in
by
the
Bargain
and
Sale
before
Election
;
For
that
is
more
for
his
advantage
.
Further
the
Evidence
was
,
That
George
Earl
of
Salisbury
made
a
Lease
of
those
Lands
which
were
a
Mannor
,
And
makes
a
Conveyance
from
himself
for
life
with
divers
Remainders
;
and
then
to
the
use
of
the
Daughter
or
Daughters
of
the
said
George
.
And
the
heirs
males
of
thrir
bodies
the
remainder
to
the
heirs
of
the
body
of
the
said
George
,
&c.
and
had
3
Daughters
to
whom
the
Remainder
.
The
first
dyed
without
Issue
the
,
2
d.
dyed
having
Issue
male
,
the
3
d.
bargains
&
sells
all
her
half
part
,
and
pur
part
to
Edw.
Earl
of
Salisbury
;
Who
now
being
seised
of
a
third
part
of
the
Estate
of
Inheritance
,
and
of
the
other
two
parts
for
his
life
,
and
the
lives
of
the
3
Daughters
,
suffers
a
common
recovery
by
the
name
of
the
moyety
of
the
Mannor
.
And
the
doubt
was
,
what
passed
.
Richardson
,
By
that
there
is
not
passed
but
the
moyety
of
the
third
part
.
Hutton
,
Crook
,
and
Yeiverton
were
on
the
contrary
opinion
,
and
said
that
by
that
,
All
the
third
part
passed
also
.
Yelverton
,
If
a
man
be
seised
of
the
mannor
of
Dale
,
and
buys
half
for
life
of
another
in
fee
,
and
makes
a
Feoffment
of
the
half
of
the
Mannor
;
The
moyety
which
he
had
in
Fee
shall
pass
.
And
there
shall
be
a
forfeiture
for
no
part
.
Which
was
agreed
by
the
Court.
If
a
man
be
seised
of
the
third
part
,
and
grants
the
moyety
,
perhaps
the
moyety
of
the
third
part
only
passes
.
But
he
is
seised
of
all
.
Richardson
,
There
are
several
Estates
,
and
moyety
goes
to
that
Estate
which
he
had
in
the
Mannor
.
For
when
I
grant
more
than
I
can
grant
,
that
which
passes
passes
.
Crook
I
had
the
third
part
of
a
Mannor
,
and
grant
the
moyety
of
the
Mannor
;
all
my
third
part
passes
.
But
in
the
Bargain
and
Sale
,
the
words
were
part
et
pur
part
.
Which
as
it
was
passed
all
.
And
also
the
Covenant
to
the
Lessor
;
The
Recovery
was
of
the
half
part
&
pur
part
.
And
by
Hutton
,
Crook
,
Yelverton
,
All
was
intended
to
be
recovered
,
And
then
the
word
Moyety
carries
that
tresbien
.
Richardson
,
That
Indentures
of
Covenant
much
mends
the
Case
.
Another
Question
upon
the
Evidence
was
,
Whether
when
a
Bargain
and
sale
is
made
of
Lands
;
And
the
Bargainee
before
inrollment
makes
a
Lease
for
years
,
and
afterwards
it
is
enrolled
.
If
the
Lease
now
be
good
.
Richardson
and
Yelverton
,
It
shall
be
,
that
although
it
be
after
acknowledgement
,
and
before
inrollment
,
yet
it
is
naught
.
And
by
Yelverton
and
Crook
it
was
so
adjudged
in
Bellingham
and
Hortons
Case
;
That
if
one
sells
in
fee
,
and
before
inrollment
,
the
Bargainee
bargains
and
sells
to
another
;
And
afterwards
comes
an
Inrollment
.
That
second
Bargain
and
sale
is
void
.
And
an
other
Question
was
.
The
King
against
Clough
.
IN
the
case
of
a
Quare
impedit
by
the
King
against
Clough
before
,
Richardson
shewed
how
the
Quare
impedit
was
brought
by
King
Iames
,
and
Demurrer
joyned
then
,
and
after
they
demised
to
the
King
,
whereof
the
Court
was
not
before
informed
.
Wherefore
although
that
for
the
matter
they
then
shew'd
their
opinions
;
Yet
they
were
all
resolved
,
That
the
Quare
impedit
ought
to
abate
.
And
that
Brownlowe
chief
Prothonotary
had
shewed
them
,
a
Resolution
in
King
Iames's
time
in
this
Court
,
by
all
the
Iudges
to
this
purpose
,
and
the
difference
of
the
Information
.
For
after
the
Demise
to
the
King
,
the
information
stood
.
As
it
is
so
it
cannot
be
aided
by
the
Kings
Court
.
Nor
is
it
within
that
Statute
of
1
E.
6.
7.
For
that
Statute
is
betwéen
party
and
party
.
In
debt
for
Recusancy
where
another
brought
an
action
in
Right
of
the
Crown
.
Iacob
against
Iacob
.
IN
Debt
,
The
Issue
was
,
Whether
the
mony
was
paid
or
not
.
And
the
venue
was
laid
of
the
Parish
of
Ipswich
,
and
the
return
of
the
Sheriff
was
of
Woolbridge
.
And
Hitcham
said
,
That
there
is
not
any
venue
.
And
the
Defendant
upon
the
Statute
(
if
there
be
any
tryall
)
if
any
part
of
the
venue
be
laid
in
the
Tryal
)
is
ayded
.
But
if
there
be
not
any
part
laid
,
then
he
is
not
ayded
.
Richardson
said
,
If
an
action
of
Debt
be
brought
of
Trespass
done
at
Dale
,
where
not
guilty
being
pleaded
,
the
visue
is
de
vicenet
.
de
Dale
,
and
the
return
is
de
Dale
,
That
is
not
good
.
Hi●…cham
Sergeant
affirmed
that
it
was
.
Richardson
and
Hutton
also
agreed
.
Nomina
Iurata
to
be
good
;
And
then
what
Action
soever
the
Sheriff
doth
is
not
material
,
and
the
Writ
is
right
.
Hitcham
,
I
confess
for
any
man
(
collaterally
)
to
inform
that
there
is
not
any
thing
of
Ipswich
shall
not
be
allowed
.
But
so
it
appears
to
us
upon
the
Record
.
Richardson
,
it
may
be
intended
.
That
Woolbridge
is
de
vicenet
.
de
Ipswich
.
And
adjourned
.
But
afterwards
it
appeared
,
That
the
Venire
fac
.
was
of
Woolbridge
.
And
then
all
agreed
that
it
was
naught
.
And
a
new
Venire
fac
,
ought
to
issue
,
&c.
Swintons
Case
.
SWinton
assigns
Debt
upon
an
Obligation
to
another
,
who
sues
in
his
name
,
and
declares
upon
an
Ohligation
of
70
l.
And
the
Defendant
pleads
non
est
factum
.
And
a
special
verdict
was
found
,
That
the
Defendant
was
bound
to
Swinton
,
per
quoddam
scriptum
Obligatorium
gerens
dat.
eisdem
die
&
anno
,
As
the
Obligation
upon
which
the
Declaration
was
,
cujus
tenor
sequitur
in
haec
verba
,
&c.
And
the
Obligation
was
in
70
l.
and
that
that
is
the
same
Obligation
which
was
given
in
evidence
.
But
whether
that
is
the
same
,
as
it
should
be
,
which
they
declare
,
Juratores
penitus
ignorant
,
&c.
Davenport
,
for
the
Defendant
prays
Iudgment
:
&
alleges
that
the
Verdict
is
per
quoddam
.
And
therfore
it
cannot
be
intended
to
be
the
same
obligation
upon
which
he
declar'd
.
For
then
it
ought
to
be
praedict.
But
Hutton
and
Yelverton
thought
the
Verdict
to
be
good
.
For
they
found
the
same
date
,
&c.
But
your
Question
to
us
is
,
Whether
that
Variance
makes
pluralities
of
Bonds
.
But
for
the
matter
of
Variance
,
Davenport
thought
that
it
is
material
.
In
the
Kings
Bench
it
was
one
Parryes
Case
in
an
Obligation
of
500
l.
There
it
was
quimpe
pro
quinque
.
And
adjudged
to
be
naught
.
Richardson
,
I
confess
the
Case
in
H.
6.
where
it
is
Wiginti
for
Viginti
,
and
yet
good
.
For
there
is
some
colour
of
likeness
.
But
if
the
word
be
no
latine
word
;
So
that
nothing
can
be
known
what
was
intended
;
it
is
otherwise
.
So
one
Randalls
Case
,
One
was
bound
by
these
words
,
in
quatuor
centum
libris
.
Whereupon
it
was
doubted
,
Whether
it
was
to
be
intended
400
l.
or
104
l.
And
it
was
adjudged
naught
.
Vpon
which
it
seemed
to
be
naught
here
.
And
so
seemed
Hutton
and
Yelverton
being
only
present
.
Gammon
against
Malbarn
.
IN
an
Assumpsit
to
pay
34
l.
which
accrew'd
upon
several
promises
,
First
he
surmised
that
one
was
indebted
to
him
in
12
l.
And
that
he
would
trust
him
more
;
The
Defendant
came
and
prayed
him
to
trust
him
,
and
if
he
would
,
he
would
pay
him
the
old
debt
.
And
whatsoever
he
should
be
in
arrear
more
,
if
it
did
not
exceed
100
l.
he
would
pay
,
and
shews
how
he
afterwards
sold
to
him
divers
pieces
of
Flesh
at
reasonable
prices
;
And
that
he
lent
him
3
l.
which
he
promised
to
pay
.
And
then
he
came
and
requested
him
to
pay
the
whole
34
l.
But
he
would
not
pay
the
19
l.
for
the
price
of
Flesh
,
nor
the
12
l.
&c.
Henden
moved
in
arrest
of
Iudgment
(
non
Assumpsit
being
pleaded
and
found
for
the
Plaintiff
)
because
that
he
does
not
allege
before
,
That
the
Flesh
that
he
sold
amounted
to
the
price
of
19
l.
And
Secondly
,
because
that
he
makes
but
one
Request
for
the
several
Debts
,
where
it
ought
to
have
been
several
,
&c.
Hutton
and
Yelverton
thought
all
good
.
For
the
first
,
Because
that
he
refused
to
pay
the
19
l.
pro
pretio
,
&c.
But
it
had
been
better
if
he
had
alleged
;
That
the
Flesh
amounted
to
such
a
price
.
But
for
the
Demand
,
that
it
was
sufficiently
made
.
And
adjourned
,
&c.
Benson
against
Sankeridge
.
IN
an
Assumpsit
upon
an
Insimul
computaverint
,
The
Plaintiff
declares
,
That
he
accounted
for
divers
sums
of
mony
to
him
due
;
And
that
the
Defendant
was
found
in
arrear
as
much
as
he
assumed
to
pay
;
And
does
not
express
for
what
the
sums
were
due
;
And
by
Richardson
,
therfore
naught
.
For
such
an
account
for
debt
upon
an
Obligation
in
specialty
it
is
void
,
&c.
Hutton
If
he
declared
,
That
the
Defendant
being
indebted
in
diversis
denariorum
summis
,
assumed
;
it
is
void
,
without
shewing
for
what
.
But
here
the
action
is
grounded
upon
the
Account
.
Richardson
,
It
ought
to
be
expressed
in
general
,
the
debts
were
for
Wares
sold
,
&c.
But
otherwise
if
the
Account
was
for
debt
upon
an
Obligation
or
specialty
,
he
recovers
double
.
For
the
specialty
remains
notwithstanding
the
recovery
in
the
Assumpsit
.
Hutton
,
We
cannot
think
that
it
is
for
any
thing
,
but
such
things
which
lye
in
account
.
Which
Harvey
agreed
.
But
the
Court
commanded
to
search
Presidents
.
Holford
against
Gibbes
.
HOlford
brought
an
Action
upon
the
Case
against
Gibbes
and
his
wife
,
who
was
Administratrix
,
upon
a
promise
of
the
Intestate
,
which
appears
in
the
Declaration
,
that
it
was
16
years
since
the
promise
made
.
And
Sir
Thomas
Crew
prayed
to
be
discharged
of
the
Declaration
upon
the
Statute
of
21
Iac.
cap.
16.
But
the
Court
would
not
discharge
him
without
pleading
or
demurrer
.
But
it
was
agreed
,
That
if
upon
the
shewing
of
the
Plaintiff
himself
,
the
Action
appears
to
be
out
of
the
Statute
of
Limitations
;
Then
the
Defendant
ought
to
plead
the
Statute
,
And
he
shall
be
aided
by
the
averment
.
Richardson
,
If
the
Defendant
pleads
non
Assumpsit
,
and
the
verdict
finds
that
the
Action
grew
out
of
the
time
of
Limitation
:
whether
it
shall
be
ayded
by
a
special
Verdict
.
Crook
said
,
Yea
,
But
Yelverton
seemd
not
;
For
it
is
not
pertaining
to
the
Issue
.
Ganfords
Case
.
ONe
Ganford
was
bound
in
an
Obligation
of
200
l.
to
Char.
Rogers
,
to
pay
him
100
l.
But
that
was
in
trust
to
the
use
of
Mary
Watkins
,
during
her
life
,
and
after
to
George
Powell
.
Powell
cannot
release
that
bond
,
neither
in
Law
nor
Equity
,
during
the
life
of
the
Wife
.
For
then
it
destroys
the
use
to
the
Wife
;
As
it
was
agreed
.
But
if
it
was
to
her
benefit
solely
,
The
Release
is
good
in
Equity
.
Woolmerstons
Case
.
ONe
libells
against
Woolmerston
for
the
herbage
of
young
Cattel
,
(
●…cil
.
)
for
a
penny
for
every
one
.
And
Hitcham
moved
for
a
Prohibition
;
And
said
that
he
ought
not
to
have
Tithes
,
If
they
are
young
Beasts
brought
up
for
the
Cart
or
Plough
.
And
so
it
hath
been
adjudged
.
As
if
a
Parson
prescribe
to
have
Tithes
for
hedgeing
stuff
,
he
cannot
.
Because
that
he
preserves
the
Land
out
of
which
he
had
Tithes
.
And
then
a
Parson
libells
for
Tithes
of
an
Orchard
,
for
that
that
it
was
a
young
Orchard
.
And
the
Custome
of
the
place
was
,
to
pay
4
d.
for
an
Orchard
.
Hitcham
said
,
There
is
not
any
such
difference
between
old
and
new
Orchards
.
For
if
the
Custome
be
that
he
shall
pay
4
d.
for
every
Orchard
,
It
will
reach
to
the
new
Orchard
.
And
then
he
libells
for
a
Harth-penny
,
for
the
Wood
burnt
in
his
House
.
Hutton
said
,
the
Harth-penny
&c.
is
more
doubtfull
.
For
it
is
a
Custome
in
the
North
parts
to
give
an
Harth-penny
for
Estovers
burnt
.
For
which
he
prescribes
to
be
free
of
every
thing
which
comes
to
the
Fire
.
And
in
some
parts
by
the
Custome
they
had
pasturage
for
the
Tenth
Beast
,
or
the
tenth
part
of
the
Gains
which
is
barrain
for
the
time
.
But
he
and
Yelverton
who
only
were
present
,
That
no
Tithes
are
due
for
them
without
Custome
.
Hitcham
,
they
also
will
have
Tithes
for
a
thing
before
it
comes
to
perfection
,
which
would
be
tithable
afterwards
.
But
I
agrée
,
If
he
sells
them
before
they
come
to
perfection
,
then
the
Parson
will
have
tithes
.
But
by
Hutton
and
Yelverton
,
There
may
be
a
Custom
to
have
every
year
a
penny
for
them
.
Sed
adjournatur
,
&c.
Viner
against
Eaton
.
VIner
against
Eaton
,
Where
a
Sute
was
betwéen
them
in
the
Spritual
Court
,
for
striking
in
the
Church
,
which
by
the
second
branch
of
the
Statute
of
5
E.
6.
cap.
4.
It
is
excommunication
ipso
facto
.
By
which
he
surmised
him
incidisse
in
poenam
excommunicationis
.
And
being
granted
if
,
&c.
And
Ashley
shew'd
cause
why
it
should
not
issue
.
(
viz.
)
There
ought
to
be
a
Declaration
in
the
Christian
Court
of
the
Excommunication
:
before
any
may
prohibit
him
the
Church
.
Richardson
said
,
That
their
procéedings
are
not
contrary
to
the
Statute
.
But
stood
with
the
Statute
.
And
it
was
said
by
Yelverton
.
It
is
seen
that
there
ought
to
be
a
Declaration
in
the
Spiritual
Court
.
But
the
difference
is
,
where
it
is
officium
Judicii
or
ad
instantiam
partis
,
they
will
give
costs
,
which
ought
not
to
be
.
Hutton
and
Richardson
,
If
the
party
will
not
follow
it
,
none
will
take
notice
of
it
.
And
they
proceed
to
give
costs
.
Then
a
Hrohibition
may
be
granted
.
And
if
he
be
a
Minister
he
ought
to
be
suspended
for
an
offence
against
that
Statute
.
And
it
ought
to
be
first
declared
,
and
so
to
excommunication
.
And
that
cannot
be
pleaded
if
it
be
not
under
Seal
.
Dyer
275.
And
after
all
,
these
were
agreed
by
the
Court
,
and
no
Prohibition
was
granted
.
Fox
against
Vaughan
and
Hall
.
SIr
Charles
Fox
was
Plaintiff
in
a
Replevin
against
Sir
George
Vaughan
,
and
Iacob
Hall
,
for
taking
of
his
Beasts
in
Rustock
,
The
Defendant
was
known
as
Bayliff
of
Tho.
Vaughan
at
the
day
quod
William
Vaughan
was
seised
of
the
place
,
quo
,
&c.
And
being
seised
the
9th
of
Maii
,
10
Iac.
by
Indenture
granted
to
Thomas
Vaughan
a
Rent
of
twenty
Nobles
per
annum
out
of
the
place
in
quo
,
&c.
to
commence
after
the
death
of
Anne
Vaugham
,
for
life
,
payable
at
the
Feasts
of
St.
Michael
,
and
the
Annunciation
.
And
if
the
Rent
be
in
Arrear
at
any
day
of
payment
,
or
fourteen
daies
after
the
demand
at
a
place
out
of
the
Land
,
scil.
his
Capital
Messuage
in
Orleton
;
Then
it
should
be
lawfull
for
him
to
distrein
;
And
he
shews
that
twenty
Marks
were
in
arrear
.
And
that
22
Iac.
22
Octob.
He
demands
it
at
Orleton
,
&c.
And
the
Plea
in
Bar
was
,
That
the
Grantor
was
not
compos
mentis
at
the
time
.
Vpon
which
Issue
was
taken
.
But
it
appeared
upon
the
evidence
that
at
the
time
of
the
Grant
Gaudebat
lucido
intervallo
.
Whereupon
it
was
found
for
the
Defendant
.
And
Sergeant
Barkley
moved
in
arrest
of
Iudgement
;
For
that
the
Demand
appears
to
be
after
the
14
daies
.
And
he
took
a
difference
where
the
Demand
ought
to
be
made
upon
the
Land
,
But
there
it
may
be
demanded
at
any
time
.
And
the
Distress
it self
is
a
Demand
.
As
it
was
adjudged
20
Iac.
in
Skinners
Case
.
But
otherwise
it
ought
to
be
out
of
the
Land
.
Henden
objected
,
because
the
Issue
was
joyned
,
That
cannot
be
shewed
.
Richardson
,
Although
there
was
Issue
joyned
;
Yet
it
appears
that
you
cannot
distreyn
without
demand
:
if
there
be
not
actual
demand
of
the
Distress
alleged
;
It
is
illegal
.
And
for
the
matter
he
cited
Maunds
Case
,
7
Rep.
28.
And
he
doubted
if
such
a
difference
would
hold
,
Berkley
,
This
difference
was
taken
by
me
before
cited
.
But
lecto
recordo
the
Demand
is
not
ex
tunc
petito
.
But
if
it
be
in
arrear
,
and
required
at
the
Capital
Messuage
,
upon
which
he
demanded
,
it
does
not
refer
to
any
place
.
Richardson
,
If
there
be
a
nomine
poenae
,
then
it
ought
to
be
demanded
strictly
at
a
day
.
And
when
it
is
to
be
demanded
upon
the
Land
,
it
may
be
at
any
time
.
For
that
,
that
Littleton
sayes
,
That
a
Tenant
is
intended
alwaies
present
upon
the
Land
;
But
when
the
Demand
is
to
be
made
at
an
other
day
,
it
is
only
to
give
notice
,
and
so
it
is
demandable
upon
the
Land
.
Hutton
,
by
that
exposition
if
he
does
not
hit
the
demand
upon
the
day
,
he
shall
lose
his
Rent
.
Richardson
,
He
had
lost
his
Distress
by
that
day
only
,
but
not
his
Rent
;
For
if
he
demand
it
after
upon
the
Land
,
he
may
have
an
Assise
.
Hutton
,
you
would
make
that
partly
a
Rent-seck
and
partly
a
Rent-charge
.
Harvey
,
If
the
Rent
be
not
gone
,
but
that
he
may
have
an
assise
.
Richardson
,
It
is
a
Rent-charge
generally
by
the
clause
of
the
distress
.
And
for
that
he
may
have
an
Assise
,
which
is
a
remedy
for
a
Rent-charge
as
well
as
a
Distress
.
Hutton
,
If
you
may
make
it
a
Rent-seck
,
you
have
lost
the
Rent-charge
for
ever
.
If
a
Grantee
of
a
Rent-charge
or
Rent-seck
brought
an
annuity
.
Richardson
.
If
he
proceed
to
Declaration
he
had
lost
the
Rent-charge
.
Et
adjournatur
.
Note
,
It
was
said
,
if
one
comming
upon
an
Attachment
in
any
Court
;
And
the
other
does
not
put
in
Interogatories
against
him
,
He
shall
be
dimissed
with
costs
,
and
may
appear
gratis
if
he
will
.
Warner
against
Barret
.
ELizabeth
Warner
libells
for
a
Legacy
in
the
Spiritual
Court
against
one
Barret
,
who
moves
for
a
Prohibition
.
Because
he
had
there
pleaded
plene
administ
.
and
proved
that
,
by
one
Witness
,
and
they
would
not
allow
it
.
Richardson
,
before
the
Statute
of
E.
6.
The
proper
Sute
for
Tithes
was
there
,
and
they
allow
one
Witness
to
prove
payment
;
a
Prohibition
shall
be
granted
.
And
he
put
Morris
&
Eatons
Case
in
the
Bishop
of
Winchesters
Case
.
Where
it
was
ruled
,
if
the
Spiritual
Court
will
not
allow
that
plea
which
is
good
in
our
Law
,
a
Prohibition
shall
be
granted
,
as
in
Case
of
Tithes
.
And
he
said
that
the
Case
of
a
Legacy
is
all
one
.
Crook
,
When
one
comes
to
discharge
a
thing
by
due
matter
of
Law
,
and
proves
it
by
one
Witness
,
If
it
be
not
allowed
,
no
Prohibition
shall
be
granted
there
.
Richardson
,
Our
Case
is
proof
of
plene
.
Administ
.
pleaded
,
which
goes
in
discharge
.
But
if
there
be
enough
pleaded
,
which
goes
in
discharge
,
and
proves
that
by
one
Witness
,
and
not
allowed
;
A
Prohibition
shall
be
granted
.
Hutton
said
,
that
properly
for
a
Legacy
the
sute
is
in
the
Ecclesiastical
Court
,
although
they
may
sue
in
the
Chancery
for
it
;
yet
the
proper
Court
is
the
Ecclesiastical
Court
;
And
they
said
,
they
used
to
allow
one
Witness
with
other
good
circumstantial
proofs
.
If
they
be
not
in
some
criminal
Causes
,
where
of
necessity
there
must
be
two
Witnesses
.
In
one
Hawkins
Case
.
Farm
or
of
a
Propriation
,
libells
for
Tithes
of
Lambs
for
seven
years
:
And
there
he
proved
payment
by
one
Witness
;
and
a
Prohibition
was
granted
for
not
allowance
.
Yelverton
,
There
may
be
a
difference
where
the
Sute
is
meerly
Ecclesiasticall
for
a
sum
of
mony
;
as
for
a
Legacy
there
the
payment
of
the
legacy
is
of
the
nature
of
the
thing
.
And
the
Ecclesiastical
Court
shall
have
Iurisdiction
of
the
proof
and
matter
.
But
if
one
gives
a
legacy
of
20
Oxen
;
And
the
other
pleads
payment
of
as
much
mony
in
satisfaction
,
there
they
cannot
proceed
,
but
upon
Common
law
;
For
that
that
the
legacy
is
altered
.
And
if
a
proof
of
one
Witness
is
not
accepted
,
a
Prohibition
shall
be
granted
.
For
now
it
is
a
legal
Tryall
.
35
H.
6
If
the
principal
is
proper
for
their
Court
,
the
accessory
is
of
the
same
nature
.
Also
the
Sute
is
commenced
for
a
Legacy
:
and
the
other
pleads
plene
administ
.
There
they
proceed
upon
the
Common
law
.
For
they
sometimes
take
that
for
Assets
,
which
our
Law
does
not
take
.
It
was
adjudged
in
the
Kings
Bench
,
that
a
proof
by
one
Witness
of
a
Release
of
a
Legacy
was
disallowed
,
a
Prohibition
shall
be
granted
.
Crook
,
In
this
Case
a
proof
of
setting
out
of
Tithes
by
one
Witness
a
Prohibition
shall
be
granted
.
Hawkeridge's
Case
.
IT
was
agréed
by
all
in
Hawkeridge's
Case
,
That
in
a
forcible
entry
or
Trespass
brought
against
one
;
If
the
Defendant
is
found
guilty
by
verdict
,
and
before
Iudgement
the
Plaintiff
releases
to
him
;
Because
that
by
that
the
Plaintiff
is
barred
,
The
King
is
also
barred
of
his
Fine
.
Falkners
Case
.
ATthow
Sergeant
said
,
That
if
these
words
were
wanting
in
a
Déed
.
In
cujus
rei
Testimon
.
That
the
Déed
is
not
good
;
And
he
said
,
that
all
Covenants
,
Grants
,
and
Agréements
which
came
after
those
words
in
a
Déed
,
are
not
of
force
,
nor
shall
be
pleaded
as
parcell
of
the
Déed
.
It
was
observed
by
the
Court
,
That
the
Wife
of
a
Duke
,
Earl
,
or
Baron
,
in
all
writings
they
shall
be
named
Ladies
.
But
the
Wives
of
Knights
shall
be
named
Dames
.
And
it
was
likewise
observed
,
that
if
a
Wife
of
a
Duke
,
Earl
,
or
Baron
,
takes
a
new
Husband
of
a
more
base
degrée
,
That
she
loses
her
name
of
Dame
or
Lady
,
and
shall
be
named
in
every
Writ
according
to
the
degrée
of
her
Husband
.
As
it
happened
in
the
Case
of
the
Lady
.
Johnsons
Case
.
IT
was
said
,
if
a
Parson
leases
his
Rectory
for
years
,
or
parcel
of
his
Glebe
,
reserving
a
Rent
,
and
dies
,
his
Successor
accepts
she
Rent
.
That
acceptance
does
not
make
the
Lease
good
.
Because
by
his
death
the
Franktenement
is
in
abeyance
,
and
in
no
Man
.
And
also
a
Parson
cannot
discontinue
.
And
by
consequence
,
That
that
he
did
without
Livery
is
determined
by
his
death
.
And
it
is
not
like
to
the
Case
of
an
Abbot
,
Prior
,
or
Tenent
in
tayl
.
Joyce
Norton
and
Thomas
Ducket
against
Harmer
.
IOyce
Norton
and
Thomas
Ducket
Plaintiffs
against
George
Harmer
the
Vicar
of
,
&c.
In
a
Prohibition
,
the
Libel
was
for
Wood
imployed
in
Hedging
,
and
for
Fire-wood
.
Issue
was
joyned
,
that
there
was
in
the
Parish
a
great
quantity
of
Land
inclosed
;
And
that
they
used
to
take
Wood
for
Hedge-boot
and
Fire-boot
,
and
they
were
discharged
of
Tithes
,
in
consideration
that
he
payed
Tithes
in
kind
of
Hay
and
Corn
,
&c.
And
it
was
found
for
the
Defendant
.
Crowley
moved
,
That
a
Consultation
cannot
be
granted
,
for
that
that
they
ought
to
be
acquitted
of
Tithes
for
those
of
Common
right
.
And
for
that
although
prescription
was
alleged
,
it
is
nothing
to
the
purpose
.
Atthowe
,
For
Fire-wood
it
was
proved
that
Tithes
alwaies
were
paid
.
Richardson
,
There
is
no
doubt
but
the
discharge
also
ought
to
be
by
Custome
,
and
to
be
grounded
upon
modus
decimandi
.
Yelverton
and
Crook
otherwise
,
that
it
is
not
upon
modus
decimandi
,
But
by
the
Common
law
.
And
the
reason
is
,
for
that
,
that
when
a
man
is
Owner
of
arable
Land
,
and
he
pay
tithe-milk
and
Corn
;
And
for
that
they
are
discharged
of
things
consumed
in
the
House
;
Which
are
to
make
Masters
and
Servants
fit
to
manure
the
Land
,
&c.
Richardson
said
,
It
is
seen
that
it
shall
alwaies
be
discharged
,
in
consideration
it
is
alleged
,
how
a
small
consideration
will
serve
.
Crook
,
It
is
not
modus
decimandi
,
but
the
discharge
is
for
that
,
that
the
Parson
for
them
had
a
benefit
,
for
he
had
by
them
better
means
of
Tithes
.
Hutton
,
If
a
man
had
an
House
of
Husbandry
,
and
demises
all
the
Lands
but
the
House
;
He
shall
pay
tithes
for
them
absumpt
.
in
the
House
.
Crook
not
.
No
profit
is
made
by
them
to
the
party
;
but
the
Parson
had
a
benefit
by
him
.
And
a
day
was
given
to
search
Presidents
.
Bibble
against
Cunningham
.
BIbble
brought
an
Action
upon
the
Case
against
Cunningham
,
and
declares
,
That
there
was
a
Communication
between
him
and
the
Defendant
of
the
sale
of
a
Banck
,
and
an
acre
of
Land
.
And
that
in
consideration
thereof
,
and
that
the
Plaintiff
would
assure
and
deliver
to
the
Defendant
possession
of
all
the
Banck
assoon
as
he
could
;
and
that
at
all
times
upon
request
to
be
made
to
the
Plaintiff
by
the
Defendant
,
the
Plaintiff
would
become
bound
in
a
Statute
Merchant
to
make
the
Assurance
to
the
Defendant
;
The
Defendant
promised
to
pay
to
the
Plaintiff
72
l.
at
the
end
of
3
years
from
Michaelmas
next
ensuing
.
And
that
in
the
mean
time
for
the
forbearance
he
would
give
after
8
l.
in
the
100
l.
and
that
he
became
bound
in
a
Statute
Merchant
for
the
payment
of
72
l.
And
he
alleges
that
the
Defendant
did
not
become
bound
in
the
Statute
;
but
that
he
himself
delivered
possession
as
soon
as
he
could
.
And
upon
non-assumpsit
pleaded
,
it
was
found
for
the
Plaintiff
.
And
Atthowe
moved
in
Arrest
of
Iudgement
;
It
is
not
a
good
consideration
or
promise
.
He
said
that
there
was
a
Colloquium
and
an
Agreement
,
and
in
Consideration
thereof
,
&c.
That
is
not
a
good
Consideration
.
And
the
second
Consideration
that
he
delivered
,
&c.
tam
citius
quam
potuit
;
It
is
not
good
,
for
it
is
uncertain
.
For
it
may
be
a
year
,
or
two
years
,
or
a
day
after
.
And
the
other
promise
to
pay
8
l.
in
the
hundred
deferendo
diem
,
And
there
is
not
any
deferring
the
day
;
for
it
is
not
shewn
that
it
is
due
before
,
and
that
he
shall
be
bound
in
a
Statute
,
and
that
no
sum
is
expressed
which
is
uncertain
.
Richardson
,
There
is
a
good
Consideration
,
and
a
good
promise
.
There
was
an
Agreement
touching
the
sale
of
a
Banck
,
and
an
acre
of
Land
:
and
take
all
alike
,
and
that
perfects
the
Agreement
.
And
it
is
plain
that
the
Agreement
was
for
72
l.
and
the
delivery
of
the
possession
,
or
making
of
assurance
,
is
not
any
Consideration
.
But
the
promise
is
all
the
Consideration
.
And
he
might
have
omitted
the
averment
of
the
delivery
of
the
possession
.
But
there
is
a
cross
and
mutual
promise
upon
which
the
Action
might
lye
.
As
many
times
it
had
been
adjudged
in
this
Court
,
and
in
the
Kings
Bench.
And
for
the
words
tam
citius
quam
potuit
,
the
Law
appoints
the
time
(
scilicet
)
so
soon
as
he
can
go
&
remove
his
goods
&
things
out
of
the
House
,
&c.
As
in
Case
,
where
one
sels
goods
for
mony
the
Vendee
shall
have
for
telling
the
mony
.
And
so
here
at
the
most
,
till
request
be
made
.
And
although
it
is
not
expressed
in
what
sum
he
shall
be
bound
by
the
Statute
,
Yet
it
appears
,
that
it
is
for
the
payment
of
72
l.
And
then
the
sum
ought
to
be
double
in
which
he
is
bound
.
As
if
one
arbitrate
that
he
pay
72
l.
and
enters
into
an
Obligation
for
the
payment
of
it
.
That
shall
be
in
the
double
sum
.
In
which
Case
he
said
,
that
he
could
shew
several
Iudgements
of
it
.
Crook
,
If
one
promise
to
me
divers
things
,
some
of
which
are
certain
;
It
is
good
.
But
also
for
the
time
of
the
delivery
,
there
the
Law
adjudges
of
that
;
And
the
sum
of
the
Statute
shall
be
double
,
as
it
had
been
said
.
But
for
the
Case
of
the
Arbitrament
,
it
is
adjudged
contrary
;
as
5
Salmons
Case
.
And
admit
that
it
be
uncertain
,
It
is
a
reciprocal
Assumpsit
,
and
an
Action
will
lye
upon
that
.
Hutton
,
If
a
promise
to
enter
into
an
Obligation
,
there
ought
to
be
a
reasonable
sum
,
as
the
Case
requires
for
it
.
And
in
this
Case
it
being
in
a
Statute
,
which
is
more
penal
than
an
Obligation
,
I
conceive
the
same
sum
of
72
l.
will
serve
.
And
for
the
time
of
the
delivery
of
the
possession
;
It
ought
to
be
in
convenient
time
,
or
upon
request
.
As
2
H.
6.
And
the
Law
adjudges
of
the
inconveniences
of
time
.
And
although
that
he
fails
in
the
sum
of
his
promises
,
the
end
of
his
promise
is
good
enough
;
and
the
other
is
not
concluded
by
that
Action
.
But
he
might
allege
other
considerations
,
in
actions
brought
by
him
.
Yelverton
,
There
is
but
one
promise
against
another
;
And
the
sum
in
the
Statute
ought
to
be
the
same
sum
.
As
the
Case
where
an
Annuity
is
granted
of
20
l.
untill
the
Grantee
be
advanced
to
a
benefice
;
That
ought
to
be
a
benefice
of
the
same
value
.
But
I
doubt
whether
it
should
be
double
.
Harvey
,
It
is
there
by
way
of
promise
.
And
then
one
promise
is
the
consideration
of
another
,
and
there
is
no
breach
,
for
it
ought
to
be
upon
request
.
And
then
the
Action
being
brought
upon
that
side
,
the
request
cannot
be
alleged
:
and
one
promise
good
against
another
.
Then
be
the
sum
what
it
will
,
ought
the
Defendant
to
be
bound
single
or
double
?
The
Assumpsit
not
being
performed
,
all
agreed
that
the
Action
well
lies
.
A
Verdict
against
an
Infant
.
NOte
that
it
was
said
,
If
a
verdict
pass
against
an
Infant
,
and
the
Defendant
dies
after
verdict
,
and
it
is
shewn
,
Iudgement
shall
not
be
given
against
him
.
For
the
Court
does
not
give
Iudgement
against
a
dead
man
:
and
that
is
matter
apparent
,
and
the
other
is
doubtfull
matter
.
Fortescue
against
Jobson
.
A
Man
seised
of
certain
Lands
hath
Issue
two
Sons
,
and
devises
one
part
of
his
Land
,
to
the
eldest
Son
,
and
his
Heirs
,
and
the
residue
to
the
youngest
Son
and
his
Heirs
;
And
if
both
dye
without
Issue
,
that
then
it
shall
be
sold
by
his
Executors
,
and
dyes
.
The
eldest
Son
dies
without
Issue
.
And
the
opinion
of
Hutton
,
That
the
Executors
could
not
sell
any
part
before
that
both
are
dead
.
For
the
youngest
Son
hath
an
Estate
tayl
in
Remainder
,
in
the
part
of
his
eldest
Brother
.
So
that
the
Executors
cannot
sell
it
;
And
if
they
do
sell
it
,
yet
that
shall
not
prejudice
the
younger
Brother
;
So
long
as
he
hath
Heirs
of
his
Body
.
Richardson
said
,
That
although
that
the
eldest
Son
aliens
,
and
after
dies
without
Issue
,
That
the
Ex●…cutors
may
make
sale
.
For
that
that
no
interest
was
given
to
them
;
But
only
an
Authority
to
sell
the
Lands
.
Dicksons
Case
.
A
Writ
de
partitione
fac
.
against
two
,
the
one
appears
and
grants
the
Partition
,
the
other
makes
default
.
Hutton
said
,
a
Writ
shall
issue
to
the
Sheriff
to
make
Partition
,
but
cesset
executio
,
untill
the
other
comes
;
For
Partition
cannot
be
by
Writ
;
but
between
the
whole
.
Otherwise
it
is
of
Partition
by
agreement
.
Rothwells
Case
.
IF
a
Man
makes
a
Lease
for
life
,
and
the
Lessee
for
life
makes
a
Lease
for
years
,
And
afterwards
purchases
the
reversion
,
and
dies
within
the
Term
,
yet
the
Lease
for
years
is
determined
;
And
the
Heir
in
reversion
may
oust
him
,
and
avoid
.
But
if
one
will
make
a
Lease
for
years
where
he
had
nothing
,
and
afterwards
purchases
the
Land
;
and
the
Lessor
dies
;
If
that
be
by
Deed
indented
;
The
Heir
shall
be
estopped
to
avoid
it
.
By
Hutton
,
Crook
,
and
Richardson
.
Sir
Charles
Foxes
Case
.
THe
Case
of
Sir
Charles
Fox
was
now
moved
again
by
Henden
.
It
was
objected
that
there
ought
to
be
an
express
demand
at
the
day
,
or
otherwise
he
ought
not
to
distreyn
.
But
first
it
appears
,
that
he
had
a
good
Title
to
the
Rent
,
then
there
being
a
verdict
found
,
he
ought
to
have
Iudgement
upon
the
Statute
.
But
not
admit
that
;
Yet
the
Demand
is
good
;
for
the
words
are
legitime
petit
.
and
no
time
expressed
.
And
although
the
Demand
is
after
the
day
,
yet
it
is
sufficient
for
all
the
arrerages
,
for
the
words
are
tunc
et
ibidem
,
but
,
&c.
And
the
Difference
is
between
the
Demand
which
intitles
to
the
Action
,
and
to
the
thing
it self
.
Maunds
Case
,
7
Rep.
20.
40
Eliz.
between
Stanley
and
Read
.
Where
it
was
agreed
,
That
the
day
of
the
Demand
cannot
be
made
parcel
of
the
Issue
.
31
Eliz.
rot.
1137.
Com.
Banc.
Dennis
&
Varneys
Case
.
There
the
Book
was
agreed
.
If
it
be
to
be
demanded
generally
,
it
may
be
at
any
time
,
if
it
be
tunc
petit
.
otherwise
.
For
otherwise
it
would
be
a
Rent-charge
at
one
time
,
and
a
Rent-seck
at
another
.
And
the
Distress
it self
is
the
Demand
;
As
it
is
in
Lucas
Case
.
If
one
be
obliged
to
pay
mony
upon
Demand
;
The
Action
brought
is
a
sufficient
demand
.
And
Barkley
Sergeant
.
He
shews
in
the
Avowry
that
such
a
one
was
seised
of
20
acres
,
and
grants
a
Rent
out
of
them
and
others
,
by
the
name
of
all
his
Lands
in
Rustock
and
Ollerton
.
For
that
he
said
that
Ollerton
is
not
charged
.
Because
that
it
is
not
pleaded
,
that
he
was
seised
of
that
.
But
the
whole
Court
on
the
contrary
.
And
that
it
is
an
usual
manner
of
pleading
:
And
that
it
shall
be
intended
,
that
he
was
seised
of
Ollerton
.
First
the
words
are
per
scriptum
,
&c.
he
granted
a
Rent
,
and
then
he
pleads
,
that
per
scriptum
suum
,
he
gave
a
power
to
distreyn
;
And
then
it
shall
be
taken
that
it
was
not
made
by
any
other
Deed
;
and
the
Distress
given
by
the
second
Deed
,
shall
not
make
the
Rent
a
Rent-charge
.
And
he
cited
Buts
Case
.
Then
if
it
be
a
Rent-seck
,
and
the
Distress
gives
a
nomine
paenoe
,
There
ought
to
be
an
actual
Demand
,
and
that
upon
the
day
;
as
it
appears
by
Maunds
Case
.
And
Pilkintons
Case
,
5
Rep.
&
5
Eliz.
Dyer
.
If
it
was
a
Rent-charge
,
the
Distress
it self
serves
for
a
Demand
;
As
it
was
many
times
adjudged
.
Secondly
;
The
words
are
,
If
the
Rent
be
in
arrear
,
any
day
of
payment
,
or
14
daies
after
.
The
last
instant
of
the
14th
day
is
the
legal
time
for
demand
of
it
.
And
the
words
existent
.
legitime
petit
.
ought
to
refer
to
the
daies
expressed
immediately
before
.
As
39
H.
6.
A
man
obliges
,
that
his
Feoffees
shall
do
such
an
Act
,
si
quisuerunt
.
Those
words
shall
have
reference
to
the
Feoffées
.
And
Dockwrays
Case
,
If
a
Man
be
obliged
that
his
Children
,
which
he
now
hath
,
so
also
existent
.
Being
words
of
the
Present
tence
,
refer
to
the
days
now
mentioned
:
and
otherwise
there
would
be
a
great
inconvenience
.
For
it
cannot
be
intended
the
same
tenant
to
be
alwaies
upon
the
Land
.
Barrows
Case
,
20
Eliz.
A
Feoffment
upon
Condition
to
re-enfeoff
upon
demand
at
such
a
place
.
It
cannot
be
demanded
without
notice
to
the
Feossée
;
For
that
that
he
shall
not
be
compelled
to
be
there
alwaies
expecting
.
And
the
same
inconvenience
alwaies
would
follow
,
If
the
demand
should
not
be
upon
the
day
of
payment
,
by
which
,
&c.
Richardson
,
If
the
Rent
had
béen
granted
out
of
20
acres
in
Rustock
,
and
then
he
had
granted
by
another
Déed
,
that
he
should
destreyn
in
other
Lands
,
being
in
the
same
County
or
not
,
and
is
the
same
,
That
that
is
but
a
Rent-seck
.
10
Assise
.
21
Ass.
And
the
Distress
is
not
but
a
penalty
.
And
if
that
Rent
is
granted
by
one
Deed
,
and
the
distress
upon
the
Land
by
another
Deed
,
If
it
be
not
delivered
at
the
same
time
,
then
there
shall
be
a
Rent-charge
,
and
there
shall
be
also
a
Rent-seck
.
And
when
also
it
is
said
,
that
ulterius
he
grants
per
scriptum
suum
,
and
does
not
say
praedict.
It
shall
be
intended
another
Deed
then
,
without
averment
,
that
it
was
delivered
at
the
same
time
,
It
shall
be
intended
at
another
time
.
But
admit
that
it
be
a
Rent-charge
,
and
that
it
issue
out
of
Ollerton
where
the
demand
of
it
was
;
Yet
he
ought
to
maintain
that
actually
.
In
Maunds
Case
.
The
distress
is
a
sufficient
demand
;
For
it
is
not
but
to
inable
him
to
destreyn
,
and
that
is
where
the
demand
is
limitted
generally
.
But
if
a
Rent
be
granted
,
and
if
it
be
demanded
of
the
person
of
the
Gruntor
,
he
may
destreyn
;
Then
there
may
be
an
actual
demand
,
that
was
adjudged
.
As
in
the
Court
,
15
Jac.
Com.
Banc.
Iackson
and
Langfords
Case
,
and
in
one
Armerys
Case
.
And
in
another
upon
the
same
point
.
So
if
you
will
grant
a
Rent-charge
demandable
at
a
special
and
particular
place
;
If
it
was
at
another
place
than
the
Land
charged
,
Without
doubt
there
ought
to
be
an
actual
demand
.
So
if
it
be
upon
a
special
place
from
the
Land
charged
or
demanded
;
for
the
distress
ought
to
be
pursued
as
the
Grant
is
.
And
that
is
upon
such
a
demand
.
But
where
it
is
restrained
by
the
words
of
the
Grant
.
And
the
same
Law
is
where
you
will
limit
the
time
of
the
demand
;
If
the
Rent
be
granted
payable
at
such
a
day
,
and
grants
over
that
ad
tunc
being
demanded
:
there
a
legal
and
general
demand
will
not
serve
;
But
there
ought
to
be
an
actual
demand
;
And
also
it
is
as
much
although
not
in
express
words
;
for
the
sence
and
meaning
carries
it
.
If
it
be
arrear
at
such
a
day
existent
.
petit
.
The
demand
ought
to
be
at
the
day
mentioned
before
.
If
I
be
bound
in
Obligation
,
the
Condition
to
pay
mony
at
such
a
day
,
being
demanded
;
There
ought
to
be
a
demand
at
the
day
of
payment
,
or
there
shall
not
be
a
forfeiture
.
And
now
then
there
is
not
a
demand
at
the
time
,
so
no
cause
of
distress
.
And
although
the
Verdict
be
found
,
if
it
be
collateral
matter
,
yet
it
will
not
help
.
For
when
it
appears
upon
the
whole
matter
,
that
there
is
not
any
Title
to
distreyn
;
the
Tryall
will
not
help
it
.
And
so
Iudgement
shall
be
given
for
the
Plaintiff
.
Hutton
,
Harvy
and
Yelverton
agreed
,
That
if
it
was
a
Rent-seck
,
and
the
distress
a
penalty
,
there
ought
to
be
an
actuall
demand
at
the
time
limited
.
But
in
case
of
a
Rent-charge
,
although
the
demand
is
limited
to
be
made
upon
parcell
,
Yet
they
all
held
,
that
a
generall
demand
will
serve
;
And
that
shall
be
at
any
place
,
at
any
time
.
For
Harvey
said
,
There
is
no
oddes
whether
it
is
limited
to
be
demanded
generally
,
or
to
be
demanded
upon
Dale
.
If
it
be
material
,
it
ought
to
be
observed
in
the
one
Case
as
well
as
in
the
other
.
Stanleys
Case
.
IN
one
Stanleys
Case
,
in
an
Action
of
Battery
,
Sir
Thomas
Crew
moved
for
mitigating
the
dammages
;
Where
the
Iudgement
was
given
upon
a
non
sum
informatus
,
and
afterwards
a
Writ
of
enquiry
of
dammages
.
But
the
Court
said
,
That
in
such
Cases
they
never
will
alter
the
dammages
.
And
Crook
said
,
that
he
was
once
of
Councel
in
an
Action
of
Trespass
pedibus
ambulando
in
the
Kings
Bench
in
such
a
Case
,
upon
a
Writ
of
enquiry
of
dammages
,
10
l.
was
given
.
That
he
could
never
have
a
mitigation
by
the
Court
,
&c.
Outlary
.
NOte
,
it
was
said
,
That
an
Outlary
in
the
same
term
for
error
may
be
reversed
in
the
Common
Bench
;
Or
in
any
term
,
if
it
be
void
upon
any
Statute
.
As
for
want
of
Proclamations
,
&c.
And
an
Outlary
was
reversed
for
that
the
Writ
was
praecipimus
tibi
where
it
should
have
been
vobis
to
the
Sheriffs
of
London
.
Gammons
Case
before
.
IT
was
now
moved
again
,
And
the
Court
was
of
the
same
opinion
.
For
take
the
sale
for
a
reasonable
price
,
and
the
Conclusion
alike
,
and
by
that
the
price
appears
.
And
although
he
said
19
l.
he
might
have
found
less
.
Secondly
the
Request
shewen
in
the
end
shall
be
referred
to
all
the
particular
sums
reservando
singula
singulis
.
And
Harvey
said
,
He
was
of
Councel
in
the
Kings
Bench
,
Where
the
Writ
was
pro
diversis
barrellis
of
Bear
.
And
in
his
Declaration
he
shews
,
that
at
one
day
he
delivered
one
,
and
at
an
other
day
another
.
And
it
was
ruled
,
that
the
Declaration
well
maintained
the
Writ
.
Thornills
Case
.
A
Parson
libels
for
the
tithes
of
young
Cattel
preserved
for
the
Cart.
And
the
Question
was
as
before
,
Whether
in
such
Cases
a
Custome
ought
to
be
surmised
.
And
Crook
,
Fitz-Herberts
nat.
brev.
is
,
That
of
right
Tithes
shall
not
be
paid
for
such
things
.
Richardson
,
In
all
such
Cases
the
Parson
ought
not
to
have
Tithes
,
if
there
be
not
a
Custome
alleged
,
by
which
the
Parson
had
any
thing
,
or
recompence
,
or
by
which
his
other
Tithe
is
better
.
And
he
said
,
that
he
had
searched
the
Books
,
and
the
Book
of
Entries
,
And
there
is
not
any
such
Case
,
but
some
surmise
is
made
,
as
for
that
,
that
he
had
tithe
of
Corn
in
specie
where
the
Land
is
inclosed
;
And
so
the
Corn
better
.
Hutton
,
It
ought
to
be
tryed
if
the
thing
in
his
nature
be
tithable
,
or
if
there
be
any
usage
to
discharge
it
or
not
,
as
the
Cattel
are
in
their
nature
titheable
,
then
you
cannot
prohibit
it
;
But
the
usage
ought
to
be
surmised
so
.
And
it
may
be
Law
,
as
the
Parson
had
better
tithes
.
Harvey
,
If
a
Libell
be
for
tithes
of
Hedgeing
and
Fenceing
;
there
a
surmise
ought
to
be
made
to
discharge
that
.
But
when
it
is
for
tithes
of
Heyfars
,
which
in
apparency
ought
to
be
spared
by
the
Law
of
the
Land
,
Otherwise
it
is
,
&c.
Richardson
,
For
the
herbage
of
those
Heyfars
,
tithe
is
due
by
the
Ecclesiasticall
law
.
And
we
never
can
take
tithe
of
them
without
express
custome
or
other
recompence
.
Harvey
,
There
was
a
Case
16
Jac.
Com.
Banc.
A
Parson
sues
for
the
herbage
of
Horses
,
and
the
other
alleged
,
that
he
kept
them
for
the
carrying
of
Coals
.
There
he
ought
to
surmise
something
to
be
discharged
;
And
if
he
allege
that
he
kept
them
in
his
house
for
serving
of
Husbandry
;
the
other
may
allege
that
he
kept
them
to
carry
Coals
,
and
the
allegation
is
traversable
.
Richardson
,
There
was
a
case
,
where
the
question
was
,
A
Husbandman
keeps
an
Horse
to
ride
up
and
down
about
his
business
;
whether
he
shall
pay
for
the
herbage
of
him
.
And
a
prohibition
in
that
case
was
granted
;
But
a
surmise
ought
to
be
made
.
Crook
said
,
that
in
the
Kings
Bench
he
had
20
times
seen
a
prohibition
granted
in
such
cases
,
without
any
surmise
.
And
a
libel
is
for
dry
Cattel
;
If
it
be
alleged
that
they
are
kept
for
the
Plough
,
the
other
may
allege
that
he
keeps
them
to
sell
,
without
that
,
that
he
keeps
them
for
the
plough
.
And
before
there
is
any
profit
of
them
,
it
is
not
reason
they
should
be
tithable
,
and
the
Parson
shall
have
the
benefit
for
them
after
.
And
for
hedging
it
is
lex
terrae
that
he
shall
pay
no
tithes
.
Richardson
,
It
is
lex
terrae
ne
consuetudo
loci
facit
legem
terrae
.
And
if
he
had
used
to
pay
tithes
for
the
Cattel
or
for
hedging
,
he
ought
not
to
pay
that
still
.
If
an
ignorant
man
will
pay
tithes
for
those
things
,
and
after
upon
a
livell
a
prohibition
is
granted
;
if
the
other
does
not
allege
a
custom
,
the
prohibition
shall
stand
;
or
if
they
allege
a
custom
,
which
is
found
against
him
,
no
consultation
shall
be
granted
And
for
a
Garden
penny
,
the
reason
of
that
is
apparent
:
for
otherwise
tithes
shall
be
paid
in
specie
:
And
so
for
Harth-penny
,
if
he
had
always
paid
it
,
it
ought
to
be
paid
.
Hutton
,
If
a
man
had
an
antient
garden
for
which
he
paid
a
penny
,
and
that
is
inlarged
,
of
that
inlargement
tithes
ought
to
be
paid
in
specie
.
Rowe
and
Dewbancks
Case
.
IN
a
prohibition
for
slanderous
words
.
Brampston
shewed
cause
why
a
prohibition
should
not
issue
.
The
words
were
,
That
one
Harvey
and
Rowe
should
report
that
Mary
Marrian
should
say
that
Dewbanck
and
one
Anne
Rowe
were
together
in
such
a
ones
house
,
in
an
upper
Room
,
and
that
the
bed
there
was
tumbled
;
And
reported
that
she
said
,
a
pox
of
all
Whores
and
Bawds
;
And
that
the
Husband
of
Anne
Rowe
came
to
demand
his
wife
at
the
house
,
and
they
denyed
her
to
be
there
;
And
that
after
they
were
both
seen
to
goe
out
of
a
Broomy
field
,
and
that
one
should
wish
he
had
been
in
a
tree
to
have
seen
what
they
did
.
And
he
said
,
that
a
prohibition
shall
not
be
granted
;
for
that
these
words
may
have
dubious
interpretations
;
for
they
may
be
spoken
in
mirth
,
or
in
heat
,
as
well
as
to
defame
:
But
when
other
words
are
joyned
with
them
,
they
shall
not
be
granted
.
And
these
words
so
cannot
be
taken
,
but
that
they
were
advisedly
spoken
to
slander
.
As
in
Ayliffs
case
before
,
when
it
is
added
,
that
he
lay
with
such
a
woman
,
a
prohibition
shall
not
be
granted
.
Richardson
.
These
things
are
requisite
in
every
action
,
forwords
.
First
,
That
the
parties
of
whom
the
words
are
spoken
be
certain
.
Secondly
,
that
the
words
tend
to
slander
.
By
imputing
a
direct
offence
,
that
should
not
be
punishable
;
there
now
there
may
be
a
great
familiarity
,
and
no
hurt
done
.
And
he
is
not
directly
charged
with
any
offence
,
as
it
was
in
Ayliffes
case
;
wherefore
it
was
ruled
that
a
prohibition
should
issue
.
Eaton
against
Ayliffe
.
EAton
libells
against
Ayliffe
,
pretending
that
a
seat
that
the
other
claimed
always
,
belonged
to
his
house
,
and
sentence
in
the
spiritual
Court
was
given
against
Eaton
,
and
costs
pro
falso
clamore
.
And
he
appealed
to
the
Arches
,
and
there
when
they
were
ready
to
affirm
the
sentence
,
he
prayed
a
prohibition
.
And
it
was
moved
by
Davenport
,
that
it
might
be
granted
;
and
he
cited
one
Treshams
case
33
Eliz.
Where
in
such
a
case
a
prohibition
was
granted
after
an
appeal
.
Richardson
,
There
is
no
cause
for
any
prohibition
,
but
in
respect
of
the
costs
.
Hutton
said
it
was
a
double
vexation
,
and
the
party
shall
not
have
costs
for
that
,
Hitcham
said
they
came
too
late
to
have
a
prohibition
for
the
costs
.
Richardson
,
That
is
not
like
to
the
probate
of
a
Will
,
where
a
thing
may
fall
out
tryable
at
the
Common
Law
.
But
there
the
principal
was
tryable
at
the
Common
Law
,
for
they
had
it
as
in
right
.
Hutton
,
Seats
in
the
generalty
is
in
the
power
of
the
Ordinary
to
dispose
:
It
is
the
prescription
which
makes
that
not
tryable
at
the
Common
Law
;
And
if
prescription
be
made
there
,
and
it
is
found
,
that
he
shall
pay
costs
.
Richardson
,
All
disturbances
appertain
also
to
them
:
If
it
be
not
upon
the
Statute
of
5
E.
6.
But
if
a
title
be
made
there
by
prescription
,
it
is
méerly
coram
non
Judice
;
and
if
they
cannot
meddle
with
the
principal
,
it
is
not
reason
that
they
shall
tax
costs
.
And
a
prohibition
was
granted
.
Fawkner
against
Bradley
.
FAwkner
and
others
against
Bradley
.
In
false
judgement
given
before
the
Sheriff
of
B●…rkshire
,
Bradley
brought
a
replevin
against
Fawkner
,
and
the
others
;
who
commanded
the
Sheriff
to
deliver
the
goods
,
and
summon
the
parties
to
appear
.
The
parties
being
demanded
at
the
day
,
they
appeared
,
and
then
the
Plaintiff
declared
,
upon
which
it
was
proceeded
to
Iudgement
.
And
it
was
held
to
be
naught
;
For
that
he
declared
before
any
appearance
.
But
upon
the
default
he
might
have
an
attachment
,
and
a
distresse
insuing
.
Dame
Sherleys
Case
.
DAme
Sherley
wife
of
Sir
Henry
Sherley
sued
in
the
High
Commission
Court
for
Alimony
.
And
Hitcham
moved
for
a
prohibition
.
And
said
that
alimony
is
not
within
the
jurisdiction
of
the
high
Commssion
;
For
the
Court
of
high
Commission
is
to
try
ardua
regni
,
which
are
not
tryable
by
the
Common
law
.
Richardson
,
The
power
of
the
high
Commission
is
not
de
arduis
regni
,
but
of
heresies
,
and
of
such
other
things
Ecclesiastical
.
And
he
said
that
the
Court
of
high
Commission
,
had
special
words
in
their
Commission
,
but
not
in
the
Statute
of
primo
;
and
that
the
Statute
de
primo
had
no
prerogative
in
that
.
And
so
the
question
is
,
if
the
King
may
by
the
Common
Law
grant
such
a
Commission
.
Hutton
said
,
that
by
the
same
reason
as
he
may
grant
such
a
Commission
;
They
may
grant
Commissions
for
all
other
things
.
Yelverton
,
I
marvail
how
that
came
within
their
Commission
:
he
said
,
that
in
tempore
Iacobi
,
upon
a
debate
before
him
,
Sir
Edward
Cook
so
fully
satisfied
the
King
.
And
this
matter
of
Alimony
was
commanded
to
be
put
out
of
their
Commission
.
And
upon
that
Richardson
said
to
Hitcham
,
Move
this
again
when
the
Court
is
full
,
for
we
may
advise
of
this
;
Et
adjournat
.
Lynne
against
Coningham
.
LYnne
against
Coningham
in
an
action
upon
the
case
,
the
matter
was
thus
.
An
action
of
debt
was
brought
by
the
Plaintiff
,
and
he
recovered
,
and
had
a
capias
ad
satisfaciendum
to
take
the
party
.
The
Sheriff
arrests
him
,
and
the
Defendant
made
a
rescous
.
And
in
that
if
an
action
lies
for
the
Plaintiff
was
the
question
.
And
Ayliff
said
,
that
the
action
did
not
lie
against
the
party
who
made
the
rescous
,
but
against
the
Sheriff
.
And
he
cited
Fitzher
.
Nat.
Brev.
16
E.
4.3
.
where
the
difference
is
.
If
an
arrest
be
made
upon
a
mean
process
,
and
a
rescous
made
,
There
the
Sheriff
is
not
responsable
.
Because
that
the
Plaintiff
might
continue
his
processe
against
the
Defendant
.
But
if
it
be
upon
Execution
after
Iudgement
;
Now
an
action
does
not
lye
against
the
party
,
but
against
the
Sheriff
:
And
if
he
had
an
action
against
the
party
,
he
shall
have
an
action
against
the
Sheriff
also
,
and
so
twice
satisfied
.
And
the
Sheriff
shall
have
an
action
against
the
party
,
and
so
he
shall
be
twice
charged
.
Richardson
said
,
That
the
action
well
lies
for
the
Case
in
16
E.
4.
It
is
séen
there
,
that
it
is
doubted
upon
the
mean
proces
&
execution
,
as
to
the
rescous
,
the
party
may
have
an
action
either
against
the
Sheriff
or
the
rescoussers
.
And
in
some
cases
a
man
shall
have
his
election
of
the
actions
,
and
both
actions
are
but
to
recover
damages
.
A
man
had
an
execution
against
one
,
He
saw
the
man
,
and
conveyed
him
out
of
his
sight
,
And
it
was
adjudged
that
an
action
upon
the
case
lies
against
him
.
And
peradventure
the
Sheriff
is
dead
,
then
he
should
have
no
remedy
,
if
he
had
not
an
action
against
the
party
,
and
no
inconvenience
follow
;
For
he
that
will
do
such
a
wrong
,
it
is
no
matter
if
he
be
charged
by
both
.
If
the
Sheriff
suffer
one
to
escape
,
it
is
an
escape
as
to
the
Sheriff
;
but
the
Plaintiff
may
have
a
new
execution
against
the
party
if
he
will
,
as
it
was
resolved
in
this
Court
;
but
Hutton
on
the
contrary
,
and
that
the
action
does
not
lie
.
As
if
a
man
be
imprisoned
,
and
an
other
help
him
out
of
prison
;
yet
an
action
will
not
lie
against
him
by
the
Plaintiff
;
And
the
difference
is
good
,
where
a
man
is
arrested
upon
a
mean
processe
,
and
rescued
,
and
afterwards
becomes
non
solvend
.
so
that
they
who
rescued
him
is
the
cause
of
the
loss
of
my
debt
;
It
is
a
wrong
upon
which
he
may
be
indicted
.
Yet
the
party
shall
not
have
a
remedy
against
him
,
because
that
he
may
proceed
.
And
then
he
should
be
the
cause
of
multiplicity
of
actions
.
Yelverton
was
of
the
same
opinion
,
and
agreed
that
difference
put
before
.
And
that
there
is
no
difference
between
this
case
,
and
the
case
put
by
Hutton
.
For
a
rescous
made
half
an
hour
after
the
arrest
is
all
one
as
if
it
were
a
year
after
.
And
Fitzherb
.
nat.
brev.
102.
satisfies
me
.
Harvey
on
the
contrary
,
He
who
was
injured
,
the
law
gives
him
a
remedy
against
the
party
who
did
the
wrong
.
In
the
Kings
Bench
,
the
case
how
one
came
to
take
in
execution
by
a
fier
.
fac
.
the
goods
being
in
an
house
,
and
one
séeing
the
Sheriff
came
and
shut
close
the
door
,
and
adjudged
that
an
action
upon
the
case
lies
against
him
.
And
there
is
no
difference
between
our
case
and
that
,
where
one
comes
to
make
execution
,
and
the
other
makes
a
rescous
.
Richardson
in
Greshams
case
;
Gresham
was
possessor
of
the
glasse
house
at
Black-fryars
.
Beresford
was
a
Glass-mamaker
,
and
had
many
glasses
in
Greshams
house
.
Seaman
recovers
in
debt
against
Beresford
,
and
coming
to
make
Execution
of
those
glasses
,
Gresham
standing
at
his
door
,
séeing
them
coming
,
and
knowing
their
purpose
,
shut
the
doors
.
Seaman
brought
an
action
upon
the
case
against
him
,
and
judgement
was
given
for
the
Defendant
,
because
that
the
Sheriff
never
demanded
the
Key
to
open
the
house
,
18
E.
2.
If
he
had
demanded
the
Key
,
it
had
been
adjudged
against
Gresham
.
And
there
if
an
action
upon
the
case
will
lie
for
hindring
to
make
execution
,
a
multo
fortiori
,
when
it
is
actually
done
,
and
then
the
party
rescued
.
And
he
denied
the
case
put
by
Hutton
,
where
one
is
rescued
out
of
prison
.
And
said
,
if
one
be
rescued
from
the
Bayliffs
,
the
Sheriff
ought
to
have
the
action
.
Hutton
upon
a
mean
process
,
the
Sheriff
never
had
remedy
for
the
rescous
,
but
he
shall
return
the
rescous
.
But
upon
an
execution
,
he
shall
not
return
the
rescous
,
but
he
shall
have
an
action
,
and
that
the
party
is
not
prejudiced
;
for
he
shall
have
an
action
against
the
Sheriff
,
who
in
judgement
of
law
is
the
party
lyable
.
Crook
,
That
the
action
will
lie
is
a
mischief
on
both
parts
.
The
Defendant
may
be
twice
charged
,
and
the
Plaintiff
may
lose
his
Debt
.
But
I
conceive
the
action
well
lies
against
him
who
made
the
rescous
,
&c.
And
if
the
Sheriff
brings
the
action
he
may
plead
the
recovery
by
the
Plaintiff
;
when
the
Sheriff
makes
his
return
of
the
rescous
,
there
is
no
remedy
against
him
,
as
it
was
adjudged
;
And
the
difference
is
,
that
when
he
goes
to
make
execution
,
it
is
at
his
peril
if
he
does
not
take
power
enough
with
him
,
so
that
he
may
do
it
.
And
if
the
Gaol
be
broken
,
it
is
no
excuse
for
the
Sheriff
.
Also
if
the
party
taken
before
he
come
to
the
Gaol
is
rescued
,
there
is
no
remedy
against
the
executors
of
the
Sheriff
.
If
debt
be
brought
against
the
Sheriff
for
an
escape
,
and
in
that
a
recovery
,
the
Plaintiff
shall
never
take
the
party
again
:
And
so
also
if
he
brought
an
action
against
the
party
,
and
recovered
,
the
Sheriff
may
plead
that
.
And
for
the
book
in
Fitzh
.
Nat.
brev
.
cited
,
it
remains
doubtfull
.
Hutton
,
a
Stranger
commits
waste
,
and
the
Lessee
dies
,
yet
no
remedy
against
the
party
who
committed
the
waste
;
for
the
Lessee
is
charged
of
waste
.
And
so
also
the
Sheriff
of
an
escape
.
But
after
,
as
it
was
told
me
by
one
who
was
present
,
Iudgement
was
given
for
the
Plaintiff
.
Humbertons
Case
.
IT
was
said
by
Richardson
,
and
agreed
by
Hutton
,
That
a
term
evicted
upon
an
Elegit
is
grantable
;
but
upon
a
Statute
Staple
,
or
Merchant
,
not
.
And
Richardson
said
,
That
Fillwoods
case
in
the
4
rep.
66.
if
it
be
well
observed
,
will
prove
that
difference
.
Isham
and
Lawnes
Case
.
NOte
,
in
evidence
to
the
Iury
in
an
Ejectione
firm
.
betwéen
Isham
and
Lawne
,
It
was
said
by
Richardson
and
Hutton
,
and
by
divers
Serjeants
at
the
bar
,
and
not
denyed
by
any
,
If
a
Son
disseise
his
father
,
and
levy
a
fine
with
proclamations
to
a
Stranger
:
upon
whom
the
Father
enters
and
dies
,
The
son
may
re-enter
against
his
own
fine
.
Allen
against
Westley
.
IN
evidence
to
the
Iury
betwéen
Robert
Allen
,
and
Isaac
Westley
,
upon
the
5.
Eliz
for
perjury
:
Richardson
there
remembred
,
that
there
was
one
charged
with
perjury
,
and
it
was
layed
;
that
one
swore
that
he
drew
his
dagger
,
and
beat
and
wounded
another
;
And
it
was
found
to
be
with
a
staff
;
and
it
was
agréed
not
to
be
perjury
;
for
the
beating
was
only
material
.
It
was
one
Styles's
his
case
;
and
it
was
agréed
by
the
Court
in
that
case
,
that
although
a
witness
swears
the
truth
;
yet
if
it
be
not
truth
of
his
own
knowledge
,
as
if
he
shews
how
one
revoked
a
will
by
paroll
,
in
his
hearing
,
when
the
words
were
spoken
to
another
in
his
absence
,
he
does
not
swear
truly
,
and
it
is
a
corrupt
oath
within
the
Statute
.
And
it
appears
in
the
case
in
which
this
perjury
was
supposed
to
be
committed
,
which
was
between
Allen
and
Westley
;
also
that
these
words
were
good
words
of
revocation
of
a
will
.
I
utterly
renounce
and
detest
that
Will
,
and
will
make
a
new
one
;
But
if
they
were
,
That
Will
shall
not
stand
,
I
will
make
a
new
one
,
they
are
not
;
For
the
first
shews
a
present
purpose
of
revocation
,
the
last
a
fortiori
;
but
more
afterwards
.
Thomas
and
Kennis's
Case
before
.
DAvenport
argued
for
the
Plaintiff
.
And
the
Question
here
is
,
Whether
there
was
any
Estate
in
Edward
and
Walter
setled
at
the
time
of
the
Fine
levyed
?
Or
their
Estate
was
only
in
contingency
?
Because
that
Richard
was
then
living
.
For
I
agrée
,
that
if
at
the
time
of
the
Fine
levyed
,
Edward
and
Walter
had
not
any
Estate
setled
or
vested
but
all
in
contingency
,
That
then
the
Fine
destroyed
all
the
Remainders
.
For
it
is
clear
when
Tenant
for
life
is
,
and
the
Remainder
in
contingency
levy
a
Fine
;
That
is
a
forfeiture
;
and
destroys
all
the
contingent
Remainders
.
1
Rep.
131.
I
hope
that
they
will
agrée
,
that
if
there
be
an
Estate
setled
in
them
,
that
Tenant
for
life
levies
that
Fine
;
Although
that
they
in
the
Remainder
do
not
enter
within
5
years
after
the
death
of
Tenant
,
or
after
the
estate
escheated
.
And
that
was
adjudged
21
Jac.
Tooker
&
Lawns
Case
in
the
Kings
Bench.
But
the
Case
was
Mich.
33
&
34
Eliz.
The
Question
then
is
,
whether
Edward
and
Walter
having
any
Estates
setled
in
them
,
two
Estates
are
so
limited
to
them
joyntly
for
their
lives
,
so
long
as
Richard
and
Anne
shall
have
issue
male
of
their
bodies
living
.
Secondly
,
The
Estate
to
them
was
to
their
own
use
,
and
that
was
not
joyntly
but
successive
.
And
if
any
of
those
uses
were
in
esse
at
that
time
of
the
Fine
,
then
they
fall
out
clearly
with
the
Plaintiff
.
I
conceive
that
both
their
Estates
were
in
them
.
First
,
concerning
the
first
Remainder
limited
to
their
joynt
use
,
in
which
it
is
to
be
considered
;
Where
the
not
setting
forth
of
the
Lands
makes
it
contingent
.
It
is
a
strange
Case
.
That
if
the
directions
for
the
setting
out
had
been
observed
,
that
then
there
might
have
been
a
present
Estate
setled
upon
a
subsequent
Condition
,
and
not
upon
a
precedent
Condition
.
Where
it
ought
to
be
agréed
,
when
the
Indenture
is
made
with
a
Covenant
to
levy
a
Fine
,
That
no
use
will
rise
before
the
Fine
.
Coment
.
302.
Then
although
some
things
ought
to
be
done
before
the
uses
will
rise
.
If
those
things
had
been
done
,
the
use
ought
to
be
raised
.
For
certum
est
quod
certum
reddi
potest
.
17
E.
4.
1.
When
contracts
are
upon
incertainties
,
when
the
thing
uncertain
is
become
certain
;
when
the
Indenture
was
sealed
,
that
made
a
contingent
use
in
the
limitation
,
but
when
the
thing
had
been
done
,
it
shall
make
a
perfect
use
in
the
limitation
.
But
now
it
is
become
impossible
by
the
non-performance
,
&c.
It
had
been
urged
that
so
there
shall
be
a
double
contingent
,
which
is
concerning
the
Houses
,
&c.
I
say
there
is
a
great
difference
,
between
a
Collateral
use
which
does
not
depend
upon
the
other
Estates
,
and
an
Estate
limited
in
course
of
a
Remainder
.
I
agree
,
if
they
be
contingent
Remainders
,
the
Fine
will
destroy
and
overthrow
them
:
but
if
there
be
a
collateral
clause
by
which
a
use
is
limited
;
As
if
there
be
a
Proviso
,
that
if
such
mony
be
not
payed
,
it
shall
be
to
such
an
use
;
That
contingent
use
is
not
destroyed
by
Fine
.
1
Rep.
130
,
134.
Chidleys
Case
,
where
the
difference
is
directly
taken
;
If
a
Feoffment
be
made
to
the
use
of
the
Feoffee
for
life
,
with
divers
contingent
Remainders
over
.
If
Tenant
for
life
makes
a
Feoffment
,
all
the
contingent
Remainders
are
destroyed
.
But
where
the
contingent
came
in
by
a
collateral
Clause
,
and
not
by
way
of
Remainder
,
otherwise
it
is
.
As
a
Feoffment
to
the
use
of
a
man
and
his
wife
,
which
shall
be
a
Remainder
over
.
That
is
a
good
use
to
the
wife
,
and
cannot
be
destroyed
by
feoffment
.
Dyer
274.
and
Bracebridges
Case
cited
in
Chudleys
Case
133.
It
was
adjudged
accordingly
.
In
the
third
branch
here
it
is
;
If
he
dies
,
then
she
should
have
the
Houses
during
widdowhood
.
But
the
course
of
the
Remainder
came
in
the
fourth
clause
;
And
that
had
relation
to
the
first
.
And
as
to
the
second
as
it
is
shewn
:
that
at
the
time
of
the
limitation
it
was
not
the
intent
,
that
the
Remainder
shall
be
contingent
to
Edward
and
Walter
.
If
I
grant
to
a
man
,
that
if
he
mary
my
Daughter
,
he
shall
have
my
Mannor
of
Dale
for
years
,
the
mariage
ought
to
be
before
he
shall
have
any
thing
in
the
Mannor
.
But
if
it
had
been
,
that
he
should
have
had
my
Mannor
for
7
years
,
if
he
mary
my
Daughter
;
Then
the
mariage
is
conditional
subsequent
,
that
if
he
does
not
mary
,
I
shall
have
my
Mannor
again
.
10
E.
3.
44.
The
Abbot
of
Bosneys
.
The
difference
is
there
put
by
Brerewood
.
si
tam
diu
vixerit
.
35
Assise
plo
.
14.
The
Case
in
point
of
a
Remainder
,
which
comes
to
our
Case
,
and
conteyns
both
the
parts
of
that
difference
.
As
it
is
in
Colthursts
and
Binshams
Case
.
The
Prior
and
Covent
of
Bath
leases
Land
for
life
,
the
Remainder
to
W.
Si
ipse
inhabitare
et
residens
esse
velit
infra
praedict.
terram
.
And
if
it
shall
happen
that
the
said
W.
should
mary
before
H.
Then
the
Remainder
to
P.
And
the
Question
is
,
whether
it
is
a
Condition
precedent
or
subsequent
.
Resolved
,
that
the
second
is
precedent
.
For
that
,
that
the
(
Si
)
precedes
,
and
for
that
makes
the
Estate
contingent
.
But
for
the
other
(
Si
)
after
the
Estate
limited
,
Si
ipse
inhabitare
vellet
.
They
were
the
very
words
of
Mountague
Chief
Iustice
,
It
cannot
be
denyed
but
that
it
is
subsequent
,
and
then
goes
in
Defeasance
;
and
the
other
ought
to
shew
the
non-performance
of
it
.
And
that
Case
is
more
strong
than
our
Case
is
,
For
that
Estate
is
by
way
of
Livery
,
not
by
use
.
For
in
Case
of
Livery
,
there
he
ought
to
have
a
time
to
do
the
thing
.
And
our
Case
then
,
he
should
have
for
life
determinable
upon
the
(
Si
)
&c.
And
that
construction
of
Vses
shall
be
clear
by
the
intent
,
which
appears
that
there
ought
to
be
a
present
Estate
;
Where
uses
are
by
Indenture
,
if
by
one
construction
the
Intent
is
frustrate
;
and
if
by
another
upheld
,
That
ought
to
be
taken
ut
res
magis
valeat
,
&c.
The
Lord
Sturtons
Case
.
Where
a
Lease
was
made
of
a
Mannor
to
two
Hubbards
,
to
have
to
them
,
and
to
two
others
for
their
lives
:
the
first
two
dye
.
And
it
was
ruled
,
that
it
was
good
but
to
the
first
two
for
their
lives
,
and
not
for
the
lives
of
the
four
.
Because
they
shall
take
but
in
point
of
Estate
.
See
more
after
.
Termino
Trin.
4
Car.
Com.
Banc.
The
King
against
the
Bishop
of
Canterbury
.
THe
King
brought
a
Quare
impedit
against
the
Bishop
of
Canterbury
,
Sir
John
Hall
,
and
Richard
Clark
,
for
the
Church
of
Marleborough
in
Northamptonshire
.
And
declares
that
Richard
White
was
seised
of
the
Mannor
,
to
which
the
Advowson
belonged
.
And
the
6
Iac.
by
Indenture
,
he
covenanted
to
stand
seised
to
the
use
of
himself
and
his
wife
for
their
lives
,
and
to
the
Heirs
of
Richard
White
,
And
after
White
presents
one
Boynton
,
and
dies
,
and
his
wife
maries
with
Sir
Iohn
Hall
.
The
first
of
Iune
6th
Iacob
.
by
Deed
grants
proximam
advocationem
to
two
,
to
this
intent
,
that
he
might
receive
of
such
a
Parson
,
that
he
presented
,
all
mony
as
should
be
agréed
betwéen
Grantor
and
Grantee
;
And
that
this
was
done
Boynton
lying
in
extremis
.
And
then
the
26
Ian.
16
Iacob
.
there
was
a
corrupt
agreement
between
Sir
Iohn
Hall
and
one
of
the
Grantees
,
That
for
200
l.
to
be
paid
by
the
Clark
Blundell
,
That
the
other
Grantee
should
present
him
.
And
the
first
of
February
Blundell
pays
Sir
Richard
the
mony
,
and
the
second
day
he
was
presented
,
instituted
,
and
inducted
accordingly
.
And
that
upon
this
it
appertained
to
the
King
to
present
:
The
Bishop
pleads
but
as
Ordinary
:
Sir
Iohn
Hall
makes
a
Title
,
and
traverses
the
corrupt
agreement
.
The
Incumbent
pleads
by
Protestation
that
there
was
not
any
corrupt
agreement
,
as
it
was
alleged
,
and
not
answers
whether
the
mony
was
paid
or
not
;
But
that
he
is
Parson
imparsonee
of
the
presentment
of
But
16
Iacob
.
after
such
an
agreement
(
scil.
)
17
Feb.
he
was
presented
by
the
Letters
Patents
of
the
King
to
this
Church
,
and
never
answers
to
the
Symony
.
And
it
was
held
by
the
Court
to
be
naught
,
and
only
pleaded
to
hinder
the
Execution
before
the
Iustices
of
Assise
,
If
the
Tryal
went
against
the
Patron
.
Upon
a
Prohibition
.
ONe
libells
against
another
in
the
Spiritual
Court
for
the
tithe
of
two
pecks
of
Apples
,
and
for
feeding
the
Cattel
upon
the
Ground
.
And
the
Defendant
for
the
Apples
answered
,
That
there
were
two
Pecks
only
growing
in
his
Orchard
,
and
that
they
were
stollen
and
never
came
to
his
use
;
and
for
the
Cattel
,
that
they
were
antient
Milch-beasts
,
and
that
they
growing
old
were
dry
;
And
that
for
a
month
they
depastured
with
other
Heyfars
,
and
that
after
they
put
them
in
a
Meadow
,
out
of
which
the
Hay
was
carried
;
And
afterwards
he
fed
them
with
hay
in
his
House
.
Atthowe
,
Because
that
the
Answers
were
not
admitted
,
prayed
a
Prohibition
.
Hutton
,
If
Appples
are
upon
the
Trees
,
and
taken
by
a
Stranger
,
shall
the
Parson
be
hindred
of
his
tithe
?
Yelverton
.
If
I
suffer
one
to
pull
my
Apples
the
Parson
shall
have
tithes
.
But
if
they
be
taken
by
Persons
not
known
,
the
Parson
shall
not
have
tithes
of
them
;
Which
was
granted
.
For
they
are
not
tithable
before
plucking
.
And
for
that
if
he
suffer
them
to
hang
so
long
by
negligence
,
after
the
time
,
that
they
are
imbessed
,
By
Yelverton
he
shall
pay
tithes
.
For
the
second
matter
it
was
agreed
by
the
Court
,
and
for
the
depasturing
in
the
Meadow
,
and
for
the
Hay
with
which
they
were
fedd
,
afterwards
tithe
shall
not
be
paid
.
Because
that
the
Parson
had
tithes
of
them
before
.
But
if
the
Question
is
for
the
tithes
when
he
went
with
the
other
Heyfars
,
By
Crook
,
that
is
no
cause
to
excuse
the
tithe
.
Harvey
,
If
I
have
ten
Milch-kine
,
which
I
purpose
to
reserve
for
Calves
,
and
they
are
dry
,
The
Parson
shall
not
have
tithe
for
their
Pasture
.
But
if
I
sell
them
,
by
which
it
appears
I
kept
them
for
fatting
,
There
tithes
shall
be
paid
.
Hutton
agreed
,
That
although
that
there
was
so
small
time
,
yet
when
they
went
with
the
Heyfars
he
shall
pay
tithes
for
them
.
Goddard
and
Tilers
Case
.
GOddard
against
Tiler
in
a
Prohibition
.
Tiler
sued
for
tithes
of
Milk
and
Calves
,
upon
which
modus
decimandi
surmised
.
A
Prohibition
was
granted
(
viz.
)
That
every
Inhabitant
should
pay
4
d.
for
every
Cow
,
and
2
d.
for
every
Calf
,
which
they
proved
that
there
was
never
tithe
paid
in
specie
;
But
that
every
Inhabitant
should
pay
6
d.
and
some
7
d
&c.
And
because
that
that
was
not
the
proof
of
the
suggestion
,
Atthow
prayed
a
consultation
,
and
by
the
Court
upon
that
reason
it
was
granted
:
But
it
was
agreed
,
that
if
the
modus
was
alleged
20
s.
and
proved
40
s.
it
is
good
,
because
it
is
but
to
intitle
the
Court
to
the
jurisdiction
;
but
in
the
principal
case
no
modus
is
proved
,
for
it
is
meer
incertainty
.
More
afterwards
.
Farrington
against
Kemarre
.
FArrington
brought
an
information
against
Kemarre
upon
the
statute
of
32
H.
8.
cap.
4.
for
selling
of
Beer
for
more
than
the
Iustices
assest
.
And
upon
the
issue
of
not-guilty
joyned
,
he
had
a
verdict
found
for
him
against
the
Defendant
.
Atthow
moved
in
arrest
of
Iudgement
,
that
the
Court
had
not
Iurisdiction
;
for
that
the
Statute
21
Jacob.
cap.
4.
It
is
enacted
,
That
all
informations
which
may
be
before
the
Iustices
of
peace
,
nisi
prius
,
Assize
,
Gaol
delivery
,
Dyer
and
Terminer
,
shall
be
before
them
,
and
not
elsewhere
.
And
he
said
,
that
an
information
for
this
matter
may
be
before
the
Iustices
of
Peace
,
&c.
But
he
argued
upon
the
statute
of
33
H.
8.
cap.
10.
17
H.
8.
cap
11.
that
they
may
inquire
of
Vagabonds
,
&c.
Victuals
,
and
Victuallers
,
and
Inneholders
.
So
that
the
point
is
,
whether
it
was
an
offence
within
the
Statute
of
33
H.
8.
For
if
there
be
an
Information
,
it
is
given
by
express
words
.
But
that
statute
does
not
oust
the
Iurisdiction
of
this
Court
;
but
the
Subject
had
his
Election
,
until
the
Statute
of
21
Jac.
which
confirms
such
Informations
.
So
that
the
question
is
,
whether
now
Brewers
be
within
the
word
Victuallers
,
or
Beer
within
the
word
Victuals
:
And
I
conceive
that
béer
is
victuals
,
and
Brewers
are
Victuallers
;
which
I
prove
by
common
experience
,
and
by
another
Statute
.
There
is
no
Statute
in
England
but
make
informations
against
Brewers
,
before
the
Iustices
of
Peace
;
And
they
are
all
erroneous
if
they
be
not
within
the
word
Victuallers
.
For
by
23
H.
8.
A
remedy
is
only
given
against
them
by
an
action
of
debt
,
bill
,
&c.
in
which
no
protection
,
Essoyn
,
or
wager
of
Law
shall
be
allowed
but
at
the
Courts
of
Westminster
:
Then
they
ought
to
be
upon
that
Statute
of
33
H.
8.
And
Lambert
and
Crompton
are
much
deceived
;
For
it
is
an
article
of
their
Charge
to
enquire
of
Brewers
.
But
another
statute
,
(
viz.
)
2
E.
6.
cap.
15.
The
Brewers
are
called
Victuallers
,
The
words
are
,
If
any
Butchers
,
Brewers
,
Bakers
,
Poulterers
,
Cooks
,
Coster-mongers
,
&c.
conspire
to
sell
their
Victuals
,
&c.
And
what
victuals
shall
be
sold
by
a
Brewer
but
Beer
?
And
there
the
whole
Parliament
were
mistaken
if
Brewers
were
not
Victuallers
:
And
for
that
he
concludes
,
that
because
that
that
offence
at
the
making
of
21
Iac.
was
punishable
by
Information
before
the
Iustices
of
the
Peace
.
For
that
by
this
Statute
this
Court
shall
not
have
Iurisdiction
.
But
Hitcham
on
the
contrary
.
The
Statute
of
21
H.
8.
says
;
That
for
offences
of
Brewers
they
shall
be
inquired
of
by
the
Courts
of
the
King
;
That
it
is
meant
the
four
Courts
at
Westminster
is
clear
.
And
when
one
Statute
is
made
which
confirms
a
sute
at
the
four
Courts
of
Westminster
:
yet
if
by
a
second
Statute
you
will
alter
that
,
you
ought
to
have
precise
words
:
And
if
you
bring
that
within
the
word
Victual
,
you
abrogate
the
Statute
by
general
words
,
against
the
wisdom
of
Parliament
before
,
which
provided
that
those
offences
should
not
be
inquirable
in
the
Country
,
and
then
the
Statute
of
little
force
.
Et
loquendum
ut
Vulgus
.
It
is
improper
to
say
,
that
a
Brewer
is
a
Victualler
,
for
they
are
such
who
sell
in
specie
.
And
in
the
Country
if
it
he
inquired
,
whether
it
be
an
Alehouse
,
or
a
Victualling
house
:
It
is
said
that
this
is
he
who
sells
victuals
,
which
is
for
the
sustenance
of
a
man
,
by
the
Statute
of
2
E.
6.
you
will
say
a
Brewer
there
to
be
a
Victualler
;
for
in
every
Statute
the
intention
ought
to
be
respected
.
For
if
it
goes
to
Cost
ermongers
,
it
is
more
clear
in
reason
that
Brewers
shall
be
within
that
;
and
Corn
and
Beer
are
the
chief
things
which
conserve
a
Common-wealth
.
And
for
that
within
.
And
the
Statute
extends
to
them
for
conspiracy
,
for
inhauncing
the
prizes
.
For
they
take
their
Courts
to
be
within
the
Courts
of
the
King
.
For
those
words
were
not
explained
until
Gregories
Case
,
Co.
lib.
6.
And
being
one
time
within
their
charge
,
they
observe
their
old
tract
.
Henden
argued
and
divided
his
matter
into
thrée
parts
.
First
,
He
shewed
how
that
Statute
consists
upon
the
Statute
upon
23.
33.
37
H.
8.
And
it
is
clear
upon
23
H.
8.
what
informations
ought
to
be
in
those
Courts
,
7
Eliz.
Dyer
.
23.
b.
37
H.
8.
repeal
33.
Only
for
a
particular
thing
(
viz.
)
of
the
time
to
enquire
of
those
Offences
by
the
Iustices
,
and
makes
them
inquirable
at
the
Sessions
.
Secondly
,
Whether
the
Statute
33.
took
this
thing
from
23
H.
8.
And
he
thought
it
did
not
:
Neither
by
the
intention
of
the
scope
of
the
Act
,
nor
by
the
words
.
First
the
intention
of
the
Statute
was
not
to
inlarge
the
power
of
a
Iustice
of
Peace
,
but
to
provide
that
some
things
should
be
duly
executed
.
Which
appears
first
by
the
Title
,
and
then
the
Preamble
.
And
if
they
have
not
particular
Statutes
,
they
cannot
meddle
with
that
by
the
general
words
:
By
which
it
follows
,
that
they
had
not
power
for
Victuallers
.
Now
the
35
H.
8.
cap.
3.
provides
that
Victuals
shall
be
sold
,
and
at
what
prices
:
then
when
that
Statute
of
33
H.
8.
came
within
8
years
,
certainly
there
was
a
respect
to
that
;
And
the
Statute
before
concerning
Victualls
only
is
,
that
Victuallers
might
contain
Brewers
.
For
to
say
generally
,
that
Victuallers
should
be
Brewers
,
shall
be
absurd
.
8
Rep.
Bonhams
Case
.
A
Brewer
is
a
Trade
,
and
may
be
intended
under
general
words
:
But
it
shall
be
alwaies
secundum
subjectam
materiam
.
As
some
Statutes
which
punish
the
selling
of
Victuals
at
anj
unreasonable
rate
,
and
Beer
there
is
not
Victual
.
And
by
2
E.
6.
cap.
15.
There
is
not
an
express
name
of
a
Brewer
.
Which
imports
,
that
it
was
not
contained
within
the
general
word
Victualler
.
2
E.
3.
6.
Where
there
is
a
Common
price
for
certain
things
to
be
sold
at
reasonable
prices
;
Where
Brewers
,
&c.
are
named
,
28
H.
8.
Hostlers
,
Brewers
,
and
other
Victuallers
,
&c.
Then
these
Statutes
prove
that
you
ought
to
have
Brewers
expresly
named
;
If
you
will
have
them
taken
as
Victuallers
.
But
(
posito
)
that
Brewers
are
within
the
general
words
of
33
H.
8.
yet
the
power
of
this
Court
is
not
taken
away
by
the
Statute
of
21
Iac.
In
the
Kings
Bench.
An
Information
was
upon
the
Statute
of
Vsury
,
which
was
inquirable
before
the
Iustices
of
Peace
,
at
the
time
of
the
making
of
21
Iac.
And
the
Question
was
,
Whether
Informations
are
taken
by
22
Iac.
in
Case
of
Vsury
from
the
Courts
of
Westminster
.
And
adjudged
that
they
were
not
.
Because
that
it
is
expresly
limited
to
those
Courts
in
a
branch
of
the
Statute
of
37
H.
8.
cap.
9.
In
one
Fosters
Case
,
11
Rep.
it
is
plain
,
that
Affirmative
words
cannot
take
that
from
those
Courts
at
Westminster
.
For
those
are
excepted
by
the
Law
;
If
this
Statute
extends
to
take
the
power
given
to
another
Law
,
you
will
repeal
former
Statutes
without
express
words
.
And
there
is
a
good
rule
,
take
18
Eliz.
Dyer
247.
pl.
12.
which
see
.
Thirdly
,
It
ought
to
have
been
pleaded
,
For
to
deprive
the
Court
of
Iurisdiction
;
A
motion
does
not
stand
with
the
intention
of
the
Statute
or
the
dignity
of
the
Court.
For
,
because
the
Court
had
a
general
Iurisdiction
,
it
cannot
be
ousted
of
that
without
pleading
upon
31
Eliz.
Richardson
said
,
that
this
Case
is
upon
consideration
of
3
Statutes
.
21
Jac.
23.
&
33
H.
8.
By
the
Statute
of
21
Iac.
Where
the
Iustices
of
the
Peace
had
some
power
upon
Informations
;
There
Courts
at
Westminster
are
bound
up
.
For
that
,
he
said
to
Henden
,
That
he
did
not
well
understand
him
in
his
second
point
But
he
said
I
hold
;
That
if
that
Court
only
from
the
time
of
the
making
of
21
Iac.
had
power
;
Then
it
is
clear
,
that
it
so
remains
now
.
But
if
this
Court
had
the
sole
power
,
Then
the
same
Informations
may
be
so
either
before
the
Iustices
of
the
Peace
,
or
of
Oyer
and
Terminer
.
Then
the
Iurisdiction
of
this
Court
is
ousted
by
21
Iac.
For
the
words
are
in
that
,
plain
;
It
was
not
the
intention
of
the
Statute
to
inlarge
the
power
of
the
Iustices
of
Peace
,
but
to
confine
those
things
to
them
.
First
then
if
they
are
within
the
words
,
which
is
proved
by
the
Statute
23
E.
3.
4
H.
4.
cap.
21.
which
Statute
confounds
Victuallers
,
and
sellers
of
Victuals
and
21
H.
8.
cap.
17.
Which
says
precisely
,
that
Beer-brewers
and
Bakers
which
have
been
Victuallers
,
But
whether
they
are
Victuallers
within
the
intention
of
the
Statute
,
is
the
doubt
.
They
may
be
within
some
Statute
of
Victuallers
,
and
not
within
others
.
For
if
he
brew
their
beer
unwholsomly
,
he
may
be
punish'd
,
but
not
by
Information
.
And
it
was
well
observed
that
the
words
;
That
they
ought
to
put
in
execution
certain
Laws
,
which
ought
to
be
intended
,
such
in
which
they
had
Iurisdiction
before
.
It
was
said
that
Brewers
are
not
like
to
a
Graster
,
Butcher
,
or
Miller
,
for
they
prepare
that
which
is
made
Victuals
by
others
;
but
beer
is
beer
in
the
hands
of
the
Brewer
immediately
,
and
nothing
is
done
to
it
afterwards
to
make
it
more
beer
.
But
a
Brewer
although
he
be
a
victualler
in
general
;
yet
not
being
particularly
named
,
he
is
not
within
the
power
of
a
Iustice
of
peace
.
Butcher
,
Fishmonger
,
and
by
the
Statute
of
Rich.
2.
Vintners
are
Victuallers
,
and
are
these
within
this
Statute
?
Certainly
not
.
But
because
that
Inne-holders
are
named
,
there
ought
to
be
other
words
;
And
there
are
Alehouse-kéepers
and
Cooks
;
For
all
sellers
of
victuals
are
not
within
that
Law
,
nor
Brewer
,
nor
Baker
,
which
are
particular
trades
of
themselves
.
And
if
it
had
béen
intended
that
they
should
have
béen
within
the
Statute
,
the
Law
would
have
named
them
.
And
Crompton
and
Lambert
naming
Brewers
in
their
charge
,
is
by
the
Common
Law
:
For
that
,
that
for
the
unwholsomness
of
their
Beer
in
their
Assize
,
they
are
inquirable
by
presentment
.
But
by
that
it
does
not
follow
,
that
a
Iustice
of
peace
may
take
information
of
them
.
Now
the
question
is
upon
33
H.
8.
In
generalty
,
Brewers
are
Victuallers
.
There
is
one
Statute
which
enacts
,
that
no
Mayor
shall
be
a
Victualler
,
And
afterwards
there
is
another
Statute
made
,
that
he
may
be
a
Mayor
although
he
was
a
Victualler
;
So
it
was
intended
that
they
were
Victuallers
,
for
they
prepared
Victuals
.
But
yet
it
is
not
within
this
Statute
;
for
it
appears
by
the
preamble
,
that
he
is
to
enquire
of
things
whereof
they
had
power
before
,
either
by
the
Statute
,
or
by
the
Common-Law
;
but
it
was
not
the
intention
to
give
them
other
authority
.
They
may
enquire
of
a
combination
in
their
prizes
,
and
such
things
;
but
not
by
information
.
Then
when
the
Statute
gives
power
to
execute
,
it
does
not
give
power
of
new
things
,
because
,
&c.
Harvey
argued
to
the
like
purpose
;
but
said
,
that
the
Iurisdiction
of
these
Courts
ought
to
be
preserved
as
much
as
may
.
For
the
true
execution
of
the
Law
is
in
these
Courts
.
For
in
the
Country
,
if
an
Informer
inform
against
his
neighbour
,
he
will
compound
the
matter
,
and
so
the
King
shall
lose
his
profit
of
the
penal
Laws
.
And
so
the
Statute
is
made
as
a
stawking
horse
to
help
a
friend
.
Crook
,
It
is
true
that
Brewers
shall
be
construed
to
be
Victuallers
secundum
subjectam
materiam
,
in
omnibus
,
as
before
;
Wherefore
I
doe
not
report
it
at
large
.
But
he
said
that
the
Statute
of
21
Jac.
was
upon
the
matter
of
all
penal
Statutes
repealed
;
because
that
it
was
so
ill
executed
in
the
Country
,
And
so
Iudgement
was
given
for
the
Plaintiff
.
Howsons
Case
.
A
Libel
was
against
Howson
the
Viccar
of
Sturton
in
Nottinghamshire
in
the
high
Commission
Court
at
York
.
Because
that
he
was
not
resident
,
but
lived
at
Doncaster
,
and
neglected
to
serve
his
cure
;
And
that
divers
times
he
,
when
the
high
Court
visited
,
spoke
so
lowd
,
that
he
was
offensive
to
many
,
and
being
reproved
for
that
,
he
gave
a
scornfull
answer
;
And
that
there
was
one
Wright
in
the
Parish
,
who
had
a
seat
in
the
Church
,
and
that
the
Vicar
would
spit
in
abundance
in
the
seat
,
and
that
when
Wright
and
his
Wife
were
there
.
And
that
afterwards
he
said
with
a
common
voice
,
That
the
Wife
of
Thomas
Howson
was
as
good
as
the
wife
of
Wright
,
And
that
in
his
Sermon
he
made
jests
,
and
said
,
That
Christ
was
laid
in
a
Manger
,
because
he
had
no
money
to
take
up
a
Chamber
,
but
that
was
the
knavery
of
the
Inne-keeper
;
he
being
then
in
contention
with
an
Inn-keeper
in
the
Parish
,
and
that
in
divine
service
he
thrust
open
the
door
of
Wrights
seat
,
and
said
,
that
he
and
his
wife
would
sit
there
,
in
disturbance
of
divine
service
.
And
for
that
a
prohibition
was
prayed
and
granted
;
for
the
high
Commission
cannot
punish
non-residency
,
nor
breaking
the
seat
in
divine
service
:
And
the
other
were
things
for
which
he
shall
be
bound
to
his
good
behaviour
;
and
the
complaint
ought
to
be
to
the
Ordinary
,
&c.
Hall
and
Blundells
Case
before
.
DAvenport
said
,
This
Parson
being
presented
by
Simony
,
is
disabled
to
this
Church
for
ever
,
and
cannot
he
presented
to
this
Church
again
,
although
another
avoidance
:
As
it
was
adjudged
in
the
Lord
Windsors
case
.
But
it
was
said
by
Richardson
,
if
he
had
said
absque
hoc
,
that
he
was
in
ex
praesentatione
of
Sir
George
,
it
had
béen
good
.
Which
was
granted
.
Henden
,
Two
exceptions
had
béen
taken
.
First
,
that
the
Incumbent
does
not
shew
what
estate
or
interest
the
King
had
to
present
him
,
which
does
not
need
,
if
the
King
brought
a
Quare
impedit
,
then
it
is
a
good
answer
to
say
,
That
he
is
in
of
his
presenting
.
But
if
it
be
brought
by
a
Stranger
,
then
he
ought
to
shew
the
title
in
his
presentment
.
And
he
alleged
the
Statute
of
25
E.
3.
Which
inables
the
Incumbent
to
plead
by
writ
of
the
Law
.
41
Eliz.
There
was
a
Quare
Impedit
brought
for
the
Church
of
Danel
;
A
presentation
was
pleaded
by
the
King
,
without
making
a
title
,
and
it
was
admitted
good
.
And
in
many
cases
it
is
more
safe
not
to
make
a
title
.
Secondly
,
Because
that
he
pleaded
a
presentation
by
the
King
he
is
disabled
;
As
to
that
he
said
,
that
before
he
be
convicted
of
Symony
,
he
may
be
presented
.
But
by
Crook
in
Sathers
Case
,
That
if
he
be
presented
before
conviction
,
yet
it
is
a
void
presentment
.
And
it
was
so
agréed
by
the
Court
,
and
they
resolved
the
plea
was
naught
,
because
he
enswers
nothing
to
the
Symony
;
for
the
protestation
is
not
any
Answer
:
Wherefore
judgement
was
given
for
the
Plaintiff
.
Denne
against
Burrough
.
DEnne
against
Burrough
,
alias
Spark
,
in
a
prohibition
it
was
agréed
by
Yelverton
and
Crook
,
the
other
Iustices
being
absent
,
If
a
man
makes
his
will
,
and
makes
his
wife
Executrix
,
and
devises
the
residue
of
his
goods
after
debts
and
legacies
payed
to
his
Executrix
;
His
wife
dies
before
probate
,
that
now
because
that
the
Executor
had
election
to
have
them
,
and
dies
before
he
did
so
All
the
Goods
belong
to
the
Administrator
of
the
first
Testator
,
But
otherwise
by
Henden
,
If
there
was
a
Legacy
of
a
particular
thing
.
Quaere
what
difference
.
Newton
against
Sutton
.
RIchard
Newton
and
Iames
Elliot
against
Sutton
in
debt
,
upon
an
Obligation
to
perform
Covenants
in
an
Indenture
.
There
was
a
Covenant
that
the
Defendant
ought
to
do
such
an
act
,
thing
,
or
things
,
as
the
Plaintiff
or
his
Council
learned
should
devise
,
for
the
better
assurance
of
certain
Lands
by
himself
to
the
Plaintiff
:
and
said
,
that
a
Counsellor
advised
him
to
have
a
Fine
;
And
upon
the
Declaration
there
was
a
Demurrer
.
And
upon
the
opening
the
Case
Crook
and
Yelverton
being
only
present
agreed
,
That
it
ought
to
have
been
pleaded
,
that
a
writ
of
Covenant
was
shewn
,
and
the
tender
of
the
note
of
the
Fine
is
not
sufficient
;
But
the
breaking
of
the
Covenant
ought
to
be
laid
after
the
Dedimus
potestatem
sued
by
the
Plaintiff
.
And
upon
their
advise
the
action
discontinued
without
costs
.
Sacheverills
Case
before
.
ATthowe
said
,
that
the
action
lies
.
For
a
Lease
made
by
Tenant
for
life
,
is
a
Lease
derived
out
of
all
the
Estates
;
and
not
as
a
Lease
made
in
Remainder
.
But
he
who
made
the
Lease
had
a
Reversion
in
possibility
of
a
Reversion
;
and
for
that
he
might
joyn
with
him
who
had
the
Inheritance
in
that
Action
.
27
H.
8.
Tenant
for
life
,
and
he
in
Reversion
joyn
in
a
Lease
for
life
;
And
Tenant
for
life
the
place
wasted
;
and
he
that
had
the
inheritance
the
treble
dammages
;
And
in
this
Case
had
but
a
possibility
of
the
Reversion
,
and
yet
for
that
possibility
they
joyn
in
waste
.
And
it
is
all
one
whether
there
is
but
a
possibility
of
reversion
,
or
a
reversion
;
If
Tenant
for
life
,
and
he
in
remainder
in
fee
make
a
Lease
for
years
,
they
joyn
in
waste
,
and
the
reversion
does
not
hinder
;
Because
that
the
Lease
is
derived
out
of
both
.
And
the
Lessee
shall
make
attendance
,
first
to
one
,
and
then
to
the
other
.
13
H.
7.
17.
And
if
it
be
upon
such
a
Lease
or
Covenant
which
is
not
collateral
but
goes
with
the
Land
;
the
Tenant
for
life
shall
have
the
benefit
of
them
during
his
life
,
and
the
other
after
.
But
if
one
makes
a
Lease
for
life
rendring
a
Rent
,
and
grants
the
Reversion
to
one
for
life
,
the
Remainder
to
another
in
fee
;
Where
the
lease
issues
out
of
the
whole
reversion
,
Yet
the
division
by
reversion
being
by
the
party
himself
,
they
shall
joyn
in
an
action
,
22
H.
6.
24
b.
Tenant
in
fee
makes
a
Lease
for
life
,
and
their
grants
the
reversion
to
A.
and
B.
and
the
Heirs
of
B
Waste
is
committed
,
and
they
joyn
in
waste
;
And
yet
this
Statute
which
comes
to
our
Case
is
made
after
the
Lease
.
And
in
this
case
,
if
he
who
had
the
Inheritance
,
his
Son
and
the
Survivor
should
joyn
in
waste
.
For
the
Law
makes
the
division
of
the
reversion
.
If
Baron
seised
in
right
of
his
wife
,
and
they
joyn
in
a
Lease
for
years
,
or
for
life
,
rendring
a
Rent
,
the
wife
dies
,
the
Husband
being
intitled
to
be
Tenant
by
the
courtesie
,
it
is
now
his
Lease
,
and
he
shall
have
the
Rent
.
And
the
Book
séems
that
he
and
the
Heir
shall
have
an
Action
of
Waste
;
For
the
Law
makes
that
division
.
If
Tenant
in
fée
makes
a
Lease
for
years
,
and
takes
a
wife
and
dies
,
and
the
Feme
recovers
Dower
;
That
Lease
is
not
dispunishable
with
the
devision
by
the
Act
of
Law
,
and
that
Lease
is
derived
out
of
all
the
Estates
,
and
it
is
all
one
as
if
they
had
all
joyned
;
Admitting
that
the
words
were
,
that
the
said
Henry
had
Authority
to
make
Leases
for
lives
;
And
that
that
makes
it
as
effectual
and
as
good
as
if
all
had
joyned
.
Then
it
will
be
agreed
,
that
it
is
the
Lease
of
all
.
As
if
I
give
Authority
to
make
a
Lease
of
my
Land
;
It
is
my
Lease
,
and
ought
to
be
made
in
my
name
:
and
so
the
Authority
is
good
against
all
those
.
And
if
the
Covenants
had
not
béen
collateral
,
Iacinth
shall
have
benefit
of
them
;
For
although
they
are
not
parties
to
the
Lease
,
yet
the
Law
makes
them
so
.
And
as
they
shall
have
those
benefits
which
grow
by
the
Reversion
,
so
they
shall
have
the
waste
also
.
It
will
be
objected
,
this
Lease
by
Henry
is
derived
out
of
the
first
Fine
,
and
the
Conusees
shall
stand
seised
to
that
use
.
I
agree
,
if
it
be
meerly
without
reference
to
the
Authority
;
for
otherwise
the
Lessee
shall
not
be
attendant
to
the
Tenant
for
life
.
As
suppose
at
the
first
the
limitation
was
to
the
Lessee
for
life
,
the
Remainder
to
Iacinth
,
&c.
rendring
Rent
,
he
in
the
Remainder
shall
never
have
the
Rent
.
But
in
this
Case
it
is
otherwise
.
Holmes
against
Chenie
.
IN
an
Assumpsit
the
Plaintiff
declares
,
that
there
was
an
account
between
him
and
the
Plaintiff
of
divers
sums
of
mony
;
And
it
was
found
that
the
Defendant
owed
to
the
Plaintiff
3
l.
And
upon
that
he
promised
being
required
,
he
would
pay
it
.
And
in
arrest
of
Iudgement
,
it
was
said
.
Because
the
Plaintiff
does
not
shew
for
what
thing
the
mony
was
due
,
the
Declaration
was
naught
.
To
which
Atthowe
answered
,
That
if
it
was
upon
an
indebitatus
Assumpsit
generally
,
that
the
Action
will
not
lye
,
although
there
had
been
many
Presidents
ante
hac
to
the
contrary
.
But
in
Case
you
will
give
a
years
day
to
pay
,
upon
which
the
Defendant
assumes
;
the
Action
will
lye
.
But
there
is
a
difference
upon
that
and
our
Case
put
.
That
one
was
indebted
upon
a
reall
contract
,
and
other
things
,
and
appears
by
account
,
that
upon
all
Debts
40
l.
is
due
,
&c.
Now
by
that
the
promise
is
upon
the
Account
,
and
that
had
made
all
certain
.
Yelverton
,
There
cannot
be
a
debt
upon
an
Insimul
computassir
,
without
shewing
of
what
nature
the
Debts
were
.
Richardson
,
An
account
cannot
be
of
a
thing
certain
.
Debt
upon
an
Obligation
is
and
rent
certain
;
And
if
those
with
other
things
come
in
Account
,
and
upon
that
an
Action
is
brought
,
what
shall
be
pleaded
by
the
party
upon
the
specialty
?
Crook
,
Debt
certain
does
not
lye
in
Account
.
But
suppose
that
part
of
the
Obligation
is
payed
;
And
afterwards
by
an
Account
it
appears
what
is
payed
,
and
what
not
,
and
then
he
promises
to
pay
the
arrerages
,
which
is
proved
,
as
he
ought
:
For
although
Debt
implies
a
promise
,
yet
an
Account
not
.
Now
when
things
are
truly
in
certainty
he
may
have
an
Action
upon
a
general
Insimul
compurassit
.
For
the
Law
avoids
prolixity
of
the
Declaration
,
which
would
be
infinite
,
if
all
petit
Debts
were
named
.
And
he
agreed
,
that
the
difference
put
by
Atthowe
in
the
Case
of
an
Action
.
&c.
upon
an
Indebitat
.
Assump.
Richardson
and
Yelverton
also
agreed
.
Atthowe
,
It
is
sufficient
in
an
Action
of
the
Case
upon
an
Account
,
to
prove
the
Account
,
without
shewing
what
the
Debt
was
.
And
he
cited
3
H.
4.
That
a
Debt
certain
with
other
things
incertain
may
lye
in
Account
,
as
in
our
Case
there
may
be
double
charge
prevented
by
a
verment
;
Although
all
the
things
in
special
,
by
which
the
debts
did
arise
shall
not
be
shewn
,
yet
he
ought
to
shew
of
what
nature
the
debts
were
,
as
upon
contracts
so
much
,
or
upon
mutat
.
so
much
,
&c.
and
so
infiniteness
shall
be
avoided
,
&c.
Moyle
Pregnotary
;
That
22
Jac.
That
a
general
indebitatus
is
now
in
peace
:
For
it
was
ruled
by
all
the
Iustices
in
the
Exchequer
Chamber
to
be
naught
.
Et
adjournatur
.
Walsingham
and
Stones
Case
.
IT
was
said
by
Huttnn
in
this
case
,
That
a
Parishioner
compounding
for
his
tithes
for
his
life
,
was
naught
without
déed
.
And
it
was
said
by
Yelverton
,
That
the
use
in
the
Kings
Bench
is
;
That
if
a
Defendant
in
a
prohibition
dies
,
his
Executors
may
procéed
in
the
spiritual
Court
.
And
it
may
be
a
rule
for
the
Iudges
in
the
Ecclesiastical
Court
to
procéed
also
.
And
then
the
Plaintiff
may
if
he
will
have
a
new
prohibition
against
the
Executors
,
&c.
Binge
and
Hodges
.
IN
Binge
and
Hodges
case
,
one
of
the
Iurors
was
named
,
Richard
Smith
in
all
the
process
against
the
Iurors
;
And
after
the
tryal
,
Ward
moved
in
arrest
of
Iudgement
,
for
that
,
that
Rise
Smith
,
was
sworn
upon
the
tryal
,
and
not
Richard
.
And
by
the
Court
he
cannot
make
such
an
averment
against
a
Record
:
For
then
an
Affidavit
overthrowes
a
tryal
.
And
that
which
is
aided
by
21
Jac.
cap.
13.
is
when
a
Iuror
is
named
by
one
name
in
one
place
of
the
of
the
Record
,
and
by
another
name
in
an
other
place
of
the
record
;
There
now
it
shall
be
aided
upon
this
Statute
by
averment
,
that
he
is
the
same
man
,
&c.
Bristowes
Case
.
IN
the
case
of
one
Bristowe
,
The
sute
was
in
the
Court
of
Requests
,
for
that
that
the
Plaintiff
and
the
Father
of
the
Defendant
had
made
such
an
agréement
to
pay
money
,
&c.
And
it
was
moved
for
a
prohibition
.
And
by
the
Court
it
was
granted
;
for
that
that
a
mutual
agreement
is
a
sufficient
consideration
upon
which
an
action
upon
the
case
will
lie
.
And
that
notwithstanding
that
there
was
a
decrée
in
the
Court
of
Requests
against
the
Defendant
there
;
And
for
that
the
sute
is
against
the
heir
,
which
is
against
the
rule
of
Law
,
that
the
heir
shall
be
charged
in
the
place
of
his
father
;
Whatsoever
agréement
the
father
makes
,
is
nothing
to
the
purpose
to
charge
the
heir
,
although
he
had
assets
,
either
by
Law
or
equity
:
And
the
Court
of
Equity
ought
to
give
relief
in
such
cases
.
For
this
agreement
,
although
it
be
in
writing
,
being
without
Seal
,
It
is
not
but
an
Ecclesiastical
agreement
.
Mrs.
Peeles
Case
.
MRs.
Peele
moved
for
a
prohibition
to
the
High
Commissioners
.
King
Charles
15
Feb.
anno
primo
regni
sui
granted
a
Commission
to
divers
to
enquire
Dyer
and
Terminer
,
of
all
incests
,
adulteries
,
and
misbehaviours
,
and
all
other
crimes
punishable
by
the
Ecclesiastical
Law
,
Afterwards
there
were
divers
articles
exhibited
to
them
against
the
Lady
Purbeck
for
adultery
,
and
Mrs
Peele
,
and
others
;
That
she
in
Annis
Domini
1621
,
1922
,
1623
,
or
1624.
in
some
one
or
all
of
these
was
an
Abettor
of
this
Adultery
.
For
which
she
was
sentenced
to
pay
200
l.
&c.
and
that
she
made
a
poenitential
acknowledgement
of
her
offence
,
and
farther
that
she
shall
be
imprisoned
untill
she
found
security
for
the
performance
of
that
order
.
And
upon
the
Articles
and
the
sentence
,
the
general
pardon
of
21
Iac.
was
pleaded
.
Henden
prayed
a
prohibition
,
and
agreed
that
they
might
aver
that
the
whole
offence
was
committed
before
the
pardon
.
And
he
cited
a
case
in
the
Common
Bench
,
6
Iac.
rot.
142.
Longdale
was
charged
with
adultery
,
and
the
charge
was
laid
after
the
pardon
.
Yet
that
charge
did
not
so
conclude
him
,
but
that
he
might
aver
that
to
be
before
,
to
have
the
benefit
of
the
pardon
.
It
was
urged
on
the
other
side
,
that
such
averments
would
overthrow
infinite
sentences
given
before
.
Bramston
,
It
is
pretended
to
be
done
after
,
for
the
averment
is
not
but
a
monstrans
of
the
truth
of
the
matter
,
and
the
Subject
shall
never
have
benefit
of
the
pardon
without
such
averments
.
Atthowe
,
it
appears
that
there
was
an
offence
,
and
it
was
proved
also
.
And
if
you
allow
a
prohibition
,
you
overthrow
all
sentences
there
.
And
also
a
prohibition
ought
not
to
be
grounded
upon
several
matters
,
but
one
only
.
Yelverton
said
that
a
prohibition
may
be
grounded
upon
twenty
matters
.
Crook
,
Admitting
that
all
the
offence
was
committed
after
the
pardon
,
yet
you
may
suggest
it
to
be
before
.
Henden
and
Bramston
,
That
so
it
was
Pas.
50
Eliz.
In
one
Prat
and
Husseys
Ease
;
One
that
had
a
benefice
took
another
,
but
was
not
inducted
.
Yet
that
was
the
irregularity
upon
which
he
was
deprived
,
and
a
prohibition
was
prayed
upon
the
general
pardon
;
And
it
was
concluded
,
That
if
the
libel
contained
,
that
the
irregularity
was
before
any
pardon
;
and
it
appears
also
,
that
it
continued
after
,
yet
a
prohibition
shall
be
granted
.
Crook
,
the
offence
is
layed
1621
,
1622
,
1623
,
&c.
in
one
or
every
of
them
.
Now
for
a
prohibition
,
there
are
two
clauses
in
our
case
.
Although
it
be
that
the
offence
was
before
,
and
part
after
pardon
,
yet
we
ought
to
grant
a
prohibition
;
for
that
which
was
before
is
involved
.
5
Iac.
Conveys
case
.
He
and
his
wife
after
the
death
of
Sir
Blunt
,
were
sued
before
the
high
Commissioners
,
for
that
that
his
wife
committed
Adultery
with
Sir
Richard
Blunt
,
and
he
himself
was
the
Pander
.
And
a
prohibition
was
granted
for
two
causes
:
The
one
,
for
that
Adultery
was
not
inquirable
there
,
the
other
,
because
it
was
pardoned
.
And
although
the
word
Adultery
be
in
their
Commission
,
yet
that
does
not
give
them
Iurisdiction
.
They
cannot
meddle
with
Alimony
was
one
Condiths
case
upon
the
Canons
in
1
Iac.
Which
gives
to
the
Parson
jurisdiction
to
appoint
the
Clark
of
the
Church
:
There
was
a
custom
there
that
the
Parish
should
appoint
it
;
and
several
Clarks
being
appointed
,
they
set
several
Psalmes
in
the
Church
,
to
the
disturbance
of
it
.
And
a
prohibition
was
granted
to
the
high
Commissioners
for
medling
with
it
.
Richardson
objected
divers
things
with
much
earnestness
,
but
so
apparently
contrary
to
Law
,
that
I
have
omitted
it
.
Yelverton
said
,
she
ought
not
to
put
in
security
to
obey
the
sentence
.
For
if
it
be
averred
that
all
was
before
the
pardon
,
then
there
was
no
cause
of
sentence
,
and
if
no
sentence
,
then
the
prohibition
ought
to
be
for
all
.
Crook
,
The
sentence
is
to
pay
a
fine
,
and
to
make
submission
,
and
to
be
imprisoned
,
until
she
found
security
to
obey
the
sentence
;
That
is
void
.
Richardson
said
,
That
they
had
not
any
means
to
make
the
party
to
pay
the
fine
,
and
if
she
would
pay
it
presently
she
might
be
discharged
.
But
by
the
other
Iustices
the
High
Commissioners
,
cannot
demand
the
sine
;
But
they
may
Estreat
it
into
the
Exchequer
.
At
another
day
it
was
said
,
Sir
Wil.
Chamcer
before
the
high
Commissioners
was
by
sentence
fined
and
imprisoned
,
and
by
the
opinion
of
all
the
Iudges
of
England
,
They
may
proceed
by
fine
and
imprisonment
;
and
his
case
was
for
Adultery
.
Hutton
44
Eliz.
It
was
resolved
that
they
cannot
impose
a
fine
,
but
for
Heresies
,
Schisms
,
and
Errours
,
&c.
Richardson
,
The
words
of
the
Statute
are
,
that
the
high
Commissioners
may
proceed
according
to
the
tenour
and
effect
of
the
Letters
Patents
of
the
King
▪
Yelverton
,
The
sentence
is
the
fine
and
the
penance
,
and
there
is
the
end
of
the
sentence
;
and
when
it
is
said
,
she
shall
be
imprisoned
until
,
&c.
That
is
no
part
of
the
sentence
,
If
it
was
that
she
should
pay
a
fine
,
do
pennance
,
and
should
be
imprisoned
three
months
;
Then
all
should
be
the
Sentence
.
Richardson
said
,
that
they
may
procéed
against
other
things
than
Heresies
,
and
Schismes
,
upon
that
Statute
de
primo
.
For
there
are
the
words
Abuses
,
Contempts
,
Offences
,
and
Enormities
.
Hutton
,
The
words
in
that
Statute
shall
have
exposition
according
to
the
meaning
of
the
first
intent
.
It
was
that
they
had
Authority
to
punish
the
Bishops
and
Prelates
for
Errors
and
Schisms
,
and
the
change
of
Religion
.
For
that
that
they
did
not
regard
the
power
of
the
Ordinary
.
But
they
had
incroached
many
other
things
.
And
if
those
words
include
any
thing
,
they
might
punish
anything
whereof
the
Gcclesiastical
Court
had
Authority
;
As
working
upon
Saints
daies
.
But
there
was
a
Case
of
one
that
was
sentenced
there
for
such
a
Cause
.
And
the
Fine
estreated
.
And
upon
Argument
in
the
Exchequer
their
proceedings
adjudged
void
.
Richardson
,
The
word
Enormity
contains
a
thing
of
lesser
nature
;
For
quicquid
est
contra
regulam
et
normam
Juris
is
Enormity
.
And
therefore
in
Trespass
,
quare
clausum
fregit
,
et
alia
enormia
ei
intulit
.
But
Yelverton
,
The
word
ought
to
be
intended
of
a
grand
offence
;
For
so
in
common
acceptance
it
imports
.
Harvey
,
The
Fine
being
pardoned
,
all
is
pardoned
.
Richardson
said
,
that
they
should
procéed
by
excommunication
and
not
by
fine
and
imprisonment
.
No
more
at
this
time
was
said
in
this
Case
.
Humlocks
Case
.
A
Man
makes
a
Lease
for
21
years
reserving
20
l.
rent
per
annum
,
payable
at
two
daies
,
and
if
he
fayl
of
payment
,
that
it
shall
be
lawfull
to
the
Lessor
to
enter
.
At
the
day
of
payment
the
Lessor
came
and
demanded
the
Rent
by
these
words
,
I
demand
my
half
years
rent
.
And
it
was
moved
by
Atthowe
,
If
that
demand
was
sufficient
for
the
Lessor
.
Hutton
and
Yelverton
seemed
that
it
was
sufficient
.
For
the
thing
that
he
demanded
is
enough
certain
and
known
.
Crook
on
the
contrary
.
For
although
it
appears
by
the
circumstances
,
how
much
of
the
Rent
he
demanded
,
Yet
the
words
are
not
so
plain
as
they
ought
to
be
.
For
if
a
man
makes
a
Lease
for
years
,
reserving
such
a
Rent
as
the
antient
Farmor
was
wont
to
pay
from
time
to
time
to
this
day
.
When
the
Lessor
comes
upon
the
Land
,
and
says
to
the
Lessee
,
Pay
me
my
Rent
:
that
is
not
sufficient
or
good
:
because
it
is
not
certain
in
Terms
;
And
yet
it
appears
by
the
circumstances
.
And
when
a
man
pleads
a
demand
,
He
shall
shew
the
Lease
,
and
the
Rent
reserved
,
and
shall
say
,
That
he
demanded
redditum
praedictum
.
And
as
I
remember
it
was
adjudged
very
lately
;
That
such
a
Demand
shall
be
certain
.
Hutton
,
I
hold
a
difference
between
such
things
which
lye
in
notice
of
the
person
to
whom
the
demand
is
made
,
and
where
not
.
For
in
a
praecipe
quod
reddat
;
if
there
be
a
recovery
by
default
,
and
the
Tenant
brings
a
desceit
;
and
by
examination
of
the
Summoners
it
appears
,
That
they
came
to
the
Land
,
and
summoned
him
in
the
Land
,
but
they
do
not
shew
to
him
at
what
day
he
ought
to
appear
.
So
the
Lessee
knows
well
enough
that
the
Rent
ought
to
be
paid
:
for
it
is
certain
by
the
Lease
,
to
which
he
is
party
and
privy
.
But
Crook
said
in
the
Case
that
Hutton
put
.
If
the
Summoners
had
read
the
Writ
upon
the
Land
,
and
had
summoned
him
to
appear
at
a
day
comprised
in
the
Writ
;
It
had
been
certain
enough
.
And
so
in
this
Case
,
if
he
had
read
the
Indenture
upon
the
Land
,
and
after
demanded
the
Rent
,
as
afore
it
had
been
.
Without
question
it
appears
to
me
it
should
be
good
enough
.
And
so
in
our
Case
also
.
Leech
against
Watkins
.
IN
Debt
upon
an
Obligation
.
The
Condition
was
,
that
if
the
Obligor
and
his
Heirs
did
,
or
suffered
to
be
done
,
every
such
assurance
as
the
Council
of
the
Obligee
should
devise
,
when
he
should
be
thereunto
required
.
And
it
was
shewn
by
Ward
,
That
the
Obligee
made
such
a
request
(
scil.
)
That
the
Obligor
and
his
wife
should
levy
a
Fine
;
If
that
Request
were
sufficient
was
the
Question
.
Hutton
,
I
think
that
the
Request
is
not
sufficient
;
Because
it
is
not
pursuant
according
to
the
Obligation
.
Richardson
,
I
think
although
the
request
be
void
for
the
wife
,
and
that
she
is
not
bound
to
make
an
assurance
,
Yet
the
Obligor
is
bound
to
do
it
.
For
against
him
the
Request
is
good
enough
.
Thompson
against
Thompson
.
IT
was
said
by
Hutton
,
In
debt
against
Executors
,
if
the
Plaintiff
had
Iudgement
against
the
Defendant
,
and
sued
a
levare
fac
.
de
bonis
Testatoris
.
If
the
Sheriff
upon
that
return
a
Devastavit
;
the
better
form
is
upon
that
,
to
award
a
scire
fac
.
against
the
Executor
before
,
that
a
fieri
fac
.
shall
issue
of
their
own
goods
.
For
that
writ
of
Execution
is
warranted
by
the
first
Iudgement
,
which
was
but
of
the
Goods
of
the
deceased
.
But
now
if
there
be
issued
a
fieri
fac
.
de
bonis
testat
.
si
habuerint
,
et
si
devastaverint
de
bonis
propriis
,
Then
I
will
agree
that
upon
that
shall
issue
a
Capias
against
the
Executors
ad
satisfacieudum
.
Dixson
and
his
Wife
against
Blyth
.
IN
this
Case
a
Question
was
demanded
by
Atthowe
;
If
a
man
seised
in
right
of
his
wife
,
leases
for
life
,
the
Remainder
over
,
in
Fee
;
And
afterwards
he
and
his
wife
recover
the
same
Land
in
a
Writ
of
Entry
in
the
post
against
the
Lessee
for
life
;
If
the
Wife
by
that
shall
be
remitted
.
Hutton
seemed
that
she
shall
be
remitted
,
As
well
as
where
a
Feoffment
is
made
to
Baron
and
Feme
,
For
that
Recovery
countervails
a
Feoffment
,
and
no
laches
shall
be
adjudged
in
the
Wife
;
For
the
purchase
of
the
Writ
shall
be
adjudged
the
Act
of
the
Husband
only
,
and
not
the
Act
of
the
Wife
.
But
it
is
good
to
be
advised
of
that
,
for
peradventure
she
shall
be
estopped
by
the
Record
.
Bromefields
Case
.
IT
was
agreed
by
all
the
Iustices
,
That
if
Tenant
in
tayl
by
Indenture
,
upon
consideration
of
mariage
,
covenant
with
an
other
that
certain
persons
should
be
seised
to
his
use
for
term
of
his
life
,
and
after
his
decease
to
the
use
of
his
Son
and
Heir
apparent
;
That
by
that
Covenant
there
is
not
any
use
changed
unless
only
during
the
life
of
Tenant
in
tayl
.
Nortons
Case
,
before
.
FInch
Recorder
,
said
de
comuni
jure
for
Estovers
burnt
in
an
house
,
tithes
ought
not
to
be
paid
;
by
the
Common
law
there
was
not
any
tithes
paid
for
wood
:
And
although
the
Statute
of
25
E.
3.
gives
a
prohibition
for
timber
,
yet
Underwoods
were
discharged
of
tithes
.
See
Doctor
and
Student
171.
It
is
express
that
Estovers
are
not
tithable
,
because
they
are
not
renewing
every
year
,
and
it
is
parcel
of
the
Inheritance
,
for
to
destroy
all
the
underwoods
is
waste
.
And
there
is
another
case
put
,
where
tithes
of
wood
had
not
by
the
custom
been
paid
,
neither
ought
they
to
be
paid
in
law
or
conscience
:
But
that
is
not
to
be
intended
,
the
conscience
of
every
particular
man
.
Dawleys
Case
was
resolved
for
the
Wilde
of
Sussex
,
and
Michaelmas
13
Iac.
Banc.
Roy.
in
the
case
of
Porter
and
Dike
for
the
Wilde
of
Kent
of
the
same
prescription
,
resolved
to
he
good
;
And
so
is
the
common
experience
that
a
whole
County
may
prescribe
so
.
And
the
reason
is
for
that
,
that
by
the
Common
Law
it
was
not
due
,
but
by
the
consideration
of
Winchelsey
Linwood
104.
It
was
ordained
to
be
paid
,
For
then
the
prelates
imputed
a
great
pestilence
that
then
was
,
for
the
negligence
of
paying
tithes
,
and
appointed
tithes
of
wood
.
And
the
Commons
were
desirous
to
have
the
Statute
of
silva
.
&c.
otherwise
explained
than
the
Clergy
declares
it
,
For
they
say
that
they
ought
not
to
pay
tithes
of
any
wood
that
is
of
the
growth
of
10
years
.
Hutton
,
Wood
is
tithable
in
their
nature
,
and
then
there
may
be
a
custom
to
discharge
them
.
And
the
case
of
Harthpenny
cannot
be
answered
;
for
if
he
sues
for
the
penny
,
a
prohibition
shall
not
be
granted
,
quod
concessum
fuit
.
Crook
and
Yelverton
.
But
of
things
not
tithable
,
tithes
of
them
cannot
be
sued
,
without
alleging
a
custom
.
Crooke
,
It
is
known
that
Harthpenny
is
good
by
prescription
:
This
Case
is
when
there
is
not
land
belonging
to
the
house
,
so
that
the
Parson
is
not
answered
for
his
tithes
another
way
.
But
when
there
are
ten
servants
kept
for
the
maintaining
it
,
Then
by
the
Law
of
the
land
it
appears
,
that
tithe
ought
not
to
be
paid
;
although
custom
had
been
alleged
it
is
nothing
to
the
purpose
,
as
if
a
custom
is
alleged
to
pay
4
d.
for
every
acre
in
discharge
of
tithes
,
and
the
verdict
finds
3
d.
no
consultation
shall
be
granted
.
And
so
for
wood
to
fence
the
ground
,
or
dry
cattel
to
manure
the
ground
:
Although
custom
be
alleged
there
in
discharge
of
it
,
and
found
against
the
party
,
yet
no
consultation
shall
be
granted
.
Hutton
,
the
herbage
of
barren
Cattel
is
tithable
,
because
there
is
a
custom
which
discharges
those
which
are
for
the
Cart.
And
he
said
that
the
Custom
only
makes
that
legem
terrae
.
And
he
cited
Doctor
Graunts
Case
.
He
libels
for
tithe
of
an
house
,
and
the
party
brought
a
prohibition
,
and
alleged
modus
decimandi
,
&c.
And
it
was
alleged
in
arrest
of
Iudgement
,
as
houses
were
not
tithable
de
communi
jure
,
and
yet
a
consultation
was
granted
.
And
there
Cook
put
this
case
,
which
I
do
not
remember
in
the
printed
book
,
that
one
libelled
for
tithes
of
trees
,
and
custom
alleged
,
and
there
was
found
no
such
custom
in
discharge
;
yet
it
was
ruled
that
no
custom
was
granted
.
Browne
against
Hancocke
.
BRowne
brought
an
action
upon
the
case
,
upon
an
assumpsit
against
Hancocke
,
and
declares
,
that
whereas
the
10.
of
May
,
16
Iac.
there
were
some
controversies
between
Charls
Nichols
,
and
the
Brother
of
the
Defendant
,
concerning
arrerages
of
rent
,
and
it
was
desired
that
Nichols
would
part
with
his
term
.
And
19
l.
and
a
cloak
and
a
gelding
were
offered
to
the
lessee
for
his
term
,
which
he
refused
.
Afterwards
the
Defendant
in
consideration
that
the
Plaintiff
would
labour
with
Charles
Nichols
to
take
the
offer
,
and
make
an
end
between
them
;
Assumed
,
that
whatsoever
the
Plaintiff
undertook
for
the
Defendant
,
he
would
perform
,
and
also
save
him
harmlesse
for
any
thing
that
he
should
doe
in
that
businesse
:
and
then
he
said
that
he
procured
Charles
Nichols
to
assign
his
term
,
and
to
accept
the
cloak
and
gelding
,
which
the
Defendant
did
not
perform
,
and
allso
that
the
Plaintiff
covenanted
with
Charles
Nichols
to
perform
the
agreement
,
and
obliged
himself
to
that
in
50
l.
And
that
afterwards
Charles
Nichols
filed
a
bill
of
debt
for
the
money
,
whereupon
he
compelled
him
to
pay
it
,
and
upon
non
assumpsit
pleaded
it
was
found
for
the
Plaintiff
,
and
three
things
were
moved
in
arrest
of
Iudgement
,
which
Serjeant
Barkely
answered
.
There
was
a
covenant
to
enter
into
an
obligation
at
Michaelmas
,
and
the
Plaintiff
shews
that
he
entred
before
;
So
he
does
not
perform
the
consideration
,
which
he
conceived
to
be
a
good
performance
.
For
if
a
man
be
bound
to
doe
an
act
,
or
pay
money
at
Michaelmas
,
a
payment
before
is
good
.
H.
7.
17.
2.
pasc
.
It
is
shewn
that
an
action
of
Covenant
was
brought
after
;
And
they
say
,
that
upon
his
shewing
covenant
does
not
lie
,
but
debt
:
but
he
said
,
that
the
Plaintiff
had
his
election
here
to
have
debt
or
covenant
.
As
in
the
Lord
Cromwels
case
,
the
words
covenanted
provided
and
agreed
,
give
advantage
of
a
condition
or
covenant
.
If
a
covenant
had
been
sor
30
l.
then
debt
only
lyes
;
But
here
it
is
to
perform
an
agreement
.
Thirdly
that
it
appears
within
the
declaration
that
the
action
of
the
case
was
6
years
before
the
action
brought
;
And
so
by
the
Statute
of
21.
Jac.
the
action
does
not
lye
.
I
agree
if
the
cause
was
6
years
before
;
yet
the
breach
was
within
the
6
years
,
and
that
is
the
cause
of
action
.
6.
rep.
43.
In
a
covenant
,
there
is
the
deed
,
and
the
breach
of
the
covenant
,
and
that
is
the
cause
of
the
action
;
And
therefore
being
matter
in
Deed
,
an
accord
with
satisfaction
is
a
good
plea
to
it
.
13.
E.
4.
Attaint
is
grounded
upon
matter
of
record
,
but
the
false
oath
is
the
cause
of
it
.
For
that
there
also
,
accord
is
a
good
plea
;
So
in
our
case
,
the
non
performance
by
default
was
not
at
the
time
limitted
,
which
was
before
the
6
years
:
but
no
action
was
brought
against
the
Plaintiff
,
untill
within
the
six
years
;
And
then
he
is
not
damnifyed
untill
within
the
six
years
5
Rep.
24.
Richardson
.
For
the
two
first
exceptions
he
agreed
with
Barkley
,
as
to
the
third
,
he
said
,
that
there
can
be
no
action
before
the
breach
of
the
promise
,
or
covenant
;
But
the
breach
here
is
before
the
six
years
;
for
the
non
performance
of
the
agreement
is
a
breach
and
a
breach
is
a
damnificationn
.
In
one
Boughtons
case
,
the
non
payment
is
a
damnification
But
all
the
question
here
was
whether
that
ought
to
be
pleaded
but
I
conceive
that
it
need
not
;
for
by
the
Statute-law
the
action
is
taken
away
.
And
it
being
a
general
law
,
the
court
ought
ex
officio
to
taken
notice
of
it
.
For
in
that
after
verdict
,
if
it
appears
that
there
is
no
cause
of
action
,
although
the
verdict
be
found
for
the
Plaintiff
,
he
shall
never
have
Iudgement
.
And
upon
the
matter
that
latches
in
time
amounts
to
a
release
in
law
,
&
the
proviso
cannot
ayd
you
.
For
every
man
shall
be
intended
without
those
disabilities
:
for
that
,
that
he
would
shew
that
he
would
have
advantage
of
it
.
And
Crook
of
the
same
opinion
for
the
reasons
given
before
,
and
said
,
that
although
the
Statute
took
away
the
Common
law
;
yet
it
is
good
law
,
and
done
for
the
ease
of
the
subject
,
and
for
that
shall
be
favoured
,
as
the
Statute
of
limitations
in
all
cases
.
But
he
said
,
the
non
performance
was
not
a
damnification
before
the
action
brought
.
As
if
I
be
bound
as
for
surety
for
A.
who
is
bound
to
save
me
harmlesse
;
Although
he
does
not
pay
it
at
the
day
,
There
is
not
a
breach
before
the
arrest
or
Iudgement
.
For
by
the
Iudgement
,
the
lands
and
goods
are
liable
;
But
for
the
arrest
,
his
body
is
troubled
,
for
that
now
the
Scriveners
put
in
such
obligations
that
they
save
harmlesse
the
party
,
and
pay
the
money
at
the
day
;
But
for
the
other
matters
,
in
all
he
agreed
,
and
cited
Richardson
and
Burroughs
Case
.
Where
a
payment
before
the
day
,
was
adjudged
a
payment
at
the
day
.
Yelverton
,
That
is
not
found
that
there
is
any
sufficient
notice
given
to
the
Defendant
by
the
Plaintiff
of
the
agreement
made
,
which
he
ought
to
have
.
And
he
agréed
in
omnibus
with
Richardson
,
and
said
,
that
Scriveners
use
things
,
ex
abundanti
.
Richardson
,
It
is
said
,
habuit
notitiam
in
the
Declaration
,
but
does
not
say
by
whom
.
Yet
after
verdict
it
shall
be
intended
a
good
notice
.
And
although
that
Nichols
had
given
the
notice
,
it
is
sufficient
.
If
there
be
a
Lease
for
years
upon
condition
,
that
he
doe
not
assign
,
the
other
accepts
the
rent
of
the
Afsignee
before
notice
,
He
shall
not
be
bound
by
that
acceptance
before
notice
.
But
if
notice
may
be
proved
either
by
the
Plaintiff
,
or
by
any
,
although
it
be
by
a
meer
stranger
;
It
is
sufficient
.
Yelverton
denied
that
,
for
he
said
;
That
none
but
privies
can
give
the
notice
of
it
,
as
the
case
is
.
Et
adjournatur
.
Denne
and
Sparks
Case
,
before
.
RIchardson
,
If
a
will
be
of
lands
and
goods
,
and
that
was
the
occasion
of
this
will
:
the
revocation
is
only
tryable
at
the
Common
Law
;
But
when
the
will
is
of
goods
only
,
the
occasion
of
it
shall
be
tryed
only
in
the
Spiritual
Court
;
For
it
is
incident
to
the
probate
of
the
will
,
quod
fuit
concessum
;
And
he
said
,
that
in
the
case
before
,
if
the
will
be
not
revoked
,
the
devise
is
good
,
at
the
time
,
and
the
administration
shall
be
granted
as
of
his
goods
;
for
the
Law
will
not
change
the
property
of
the
residue
,
after
debts
and
legacies
paid
.
Crooke
,
The
case
here
is
that
the
Testator
makes
his
will
of
his
lands
and
goods
,
and
devises
the
residue
of
his
goods
,
ut
supra
,
to
his
wise
his
Executrix
,
who
dies
before
probate
.
Denne
sues
to
be
administrator
,
as
the
goods
of
the
first
Testator
;
and
alleges
revocation
;
which
because
that
his
Proctor
did
not
goe
and
swear
that
in
fide
Magistri
,
sentence
was
given
against
him
.
Vpon
that
he
appeals
,
in
which
there
was
the
same
Obligation
,
and
affirmed
by
the
Oath
of
his
Proctor
;
Yet
sentence
was
given
against
him
;
And
a
prohibition
ought
to
be
granted
for
three
reasons
.
First
,
For
that
the
Will
is
of
Lands
and
Goods
,
and
the
occasion
of
that
tryable
here
.
Secondly
,
they
offer
injustice
in
giving
the
allegation
.
Thirdly
,
The
Wife
here
dying
before
the
probate
,
the
administration
ought
to
be
granted
as
of
the
goods
of
the
Testator
,
and
not
as
of
the
wife
.
And
also
they
here
would
inforce
Denne
,
if
he
had
the
administration
,
to
take
it
cum
testamento
annex
.
;
Which
shall
be
an
admittance
by
him
,
that
there
was
not
any
revocation
.
Richardson
,
for
the
first
reason
he
agréed
,
that
the
revocation
shall
be
tryed
by
the
common
law
.
But
the
goods
here
are
only
in
question
,
and
all
the
usage
and
practice
is
,
that
a
prohibition
shall
be
granted
,
with
a
quoad
the
lands
.
For
the
second
,
That
they
will
not
allow
the
allegation
:
If
they
will
not
pursue
their
rules
and
order
of
Iustice
;
That
is
not
a
cause
of
a
Prohibition
,
but
appeal
for
the
third
.
It
is
fit
that
there
shall
be
an
election
if
debts
and
Legacies
are
owing
.
But
it
doth
not
appear
here
that
there
are
any
debts
or
Legacies
to
be
paid
;
but
after
Harvey
agréed
with
Crook
and
Yelverton
,
And
a
prohibition
was
granted
.
Holmes
against
Chime
,
before
.
PResidents
were
shewn
,
that
such
actions
were
brought
,
scil.
Hill
.
3.
Car.
Elwin
against
Atkins
,
and
Hill.
1.
Car.
Cophin
against
Cophin
.
both
in
this
Court.
And
Richardson
said
,
although
the
book
makes
a
doubt
of
it
;
yet
his
opinion
was
that
the
action
would
lie
;
For
it
would
be
a
miserable
thing
that
all
things
should
be
shewed
precisely
;
And
so
Iudgement
was
given
for
the
Plaintiff
.
Port
against
Yates
.
IN
a
replevin
the
case
was
,
The
Defendant
was
known
as
Bayliff
to
Thomas
Kett
,
and
the
land
was
Copyhold
land
.
And
10
Maii.
3
Car.
When
it
was
granted
by
the
Lord
of
the
Mannor
to
the
wife
of
Thomas
Kett.
The
Plaintiff
confesses
that
the
Land
is
Copyhold
land
,
but
that
the
Lord
granted
,
1
Iacob
.
to
Robert
Salter
in
Fée
,
who
had
two
daughters
;
the
wife
of
the
Plaintiff
,
and
the
wife
of
Thomas
Kett
,
and
dyed
seised
,
and
that
the
land
descended
to
them
;
upon
which
they
demurred
.
Berkely
,
The
first
grant
shews
that
the
Defendant
was
in
of
all
,
and
the
descent
to
the
wife
,
but
for
the
moyety
,
whereupon
the
grant
of
the
whole
is
not
traversed
nor
confessed
and
avoided
.
And
he
cited
Dyer
171.
Pl.
8.
to
be
the
same
case
in
effect
,
and
so
ruled
.
But
Hutton
Harvey
and
Crooke
held
what
difference
there
was
betwéen
this
case
,
and
the
case
in
question
.
Hutton
,
the
descent
here
which
is
pleaded
,
makes
the
second
grant
void
.
But
by
Richardson
,
although
that
it
be
avoided
,
Yet
it
is
not
confessed
.
And
afterwards
for
that
that
upon
the
whole
truth
of
the
matter
disclosed
,
It
appears
that
a
Copartener
cannot
distrein
the
lands
of
another
damage
feasant
,
and
the
matter
of
form
in
pleading
ought
not
to
be
regarded
by
the
Iudges
,
upon
the
Statute
of
21
Eliz.
cap.
5.
Iudgement
was
given
for
the
Plaintiff
.
Cockett
against
Delayhay
.
COcket
brought
an
action
upon
the
case
in
Bristow
against
Delahay
for
these
words
,
Cockett
hath
forged
a
deed
,
and
because
of
that
came
out
of
his
own
Country
And
the
Defendant
justifies
that
he
did
forge
a
Déed
in
Middlesex
of
lands
in
Hartfordshire
,
without
that
that
he
spoke
in
Bristowe
.
Richardson
said
,
that
that
plea
was
naught
,
either
with
traverse
,
or
without
the
Traverse
.
Whereupon
Henden
altered
his
plea
,
(
scil.
)
That
he
forged
a
déed
of
those
lands
at
South
Mimms
in
Middlesex
,
where
the
lands
lie
.
By
vertue
of
which
he
justified
the
words
at
Bristowe
Richardson
,
It
is
a
good
plea
;
for
now
the
other
can
plead
nothing
,
but
de
injuria
sua
propria
.
And
then
the
tryal
shall
be
in
Middlesex
.
And
by
Crooke
,
if
there
be
a
Demurrer
,
there
shall
be
a
writ
of
inquiry
of
damages
issue
to
Bristowe
.
Issue
.
IF
the
issue
be
not
made
up
,
it
may
be
tryed
by
Proviso
.
But
if
the
Plaintiff
neglect
that
,
there
may
be
called
a
non-sute
upon
the
roll
,
for
there
it
shall
be
discontinued
,
quod
nota
.
Page
against
Tayler
.
PAge
brought
an
Action
against
Tayler
as
Receiver
,
&c.
which
was
found
against
him
,
&c.
And
Iudgement
was
given
that
he
accounted
,
and
before
the
Auditors
he
pleaded
that
before
the
Action
brought
,
there
was
an
arbirement
,
that
he
should
pay
to
the
Plaintiff
11
l.
in
satisfaction
of
all
accounts
and
demands
,
which
he
had
performed
.
And
it
was
ruled
by
the
whole
Court
,
that
that
was
not
a
good
plea
,
in
discharge
before
Auditors
,
but
a
plea
in
bar
of
the
account
.
And
by
Crooke
,
an
accord
with
satisfaction
may
be
pleaded
in
Bar
,
not
in
discharge
.
Which
the
Court
seemed
to
agree
.
And
by
Crooke
,
If
the
Defendant
had
any
other
matter
to
shew
on
the
Declaration
before
Auditors
,
it
might
be
shewn
,
&c.
Richardson
,
Although
that
the
Arbitrament
was
made
,
after
the
action
brought
,
it
cannot
now
be
pleaded
but
he
ought
to
have
his
Andita
querela
.
Manninghams
case
.
In
Manninghams
case
.
The
doubt
was
this
,
A
condition
of
an
obligation
made
to
Manningham
,
was
that
he
should
pay
after
his
death
to
his
Executors
after
his
death
10
l.
per
annum
to
the
use
of
the
Children
of
Manningham
.
And
Manningham
dyed
,
and
there
was
no
Executor
,
whether
the
payment
should
be
to
the
Administrator
,
and
so
the
obligation
forfeited
.
Berkly
said
,
that
it
ought
to
be
payed
to
the
Administrator
:
for
an
Executor
includes
an
Administrator
;
And
this
money
is
as
assets
,
if
not
to
satisfie
debts
,
yet
to
perform
this
case
which
is
illsgal
.
5
H.
7.
12.
26
H.
8.
7.
And
also
if
a
man
limit
a
thing
to
be
done
to
his
Executors
,
that
may
be
done
to
his
Administrators
.
So
that
the
nominating
of
the
Executor
,
is
not
but
an
expresse
intention
to
whom
the
money
shall
be
paid
(
viz.
to
him
who
presents
his
person
.
And
he
compares
that
to
the
case
of
46.
E.
3.
18.
A
rent
upon
a
condition
reserved
to
the
Executors
,
goes
to
the
Administrators
.
15
E.
4.
14.
Dy.
309.
Cranmers
case
.
Where
it
seemed
that
if
a
lease
be
made
to
one
for
life
,
and
after
to
his
Executors
for
years
;
that
the
Executors
shall
not
have
the
term
as
assets
,
32.
E.
3.
A
quid
juris
clamat
Fitzharb
.
A
Lease
for
life
,
to
his
Executors
for
years
in
remainder
,
Lessee
for
life
atturns
saving
the
term
;
which
proves
that
the
Executor
had
that
as
privy
,
not
as
strangers
.
And
he
cited
Chapmans
and
Daltons
case
,
the
principall
.
So
that
the
Infant
and
the
Executors
shall
have
the
money
in
right
of
the
testator
:
and
therefore
it
goes
to
the
Administrator
.
Secondly
The
Executor
extends
to
an
administrator
.
8.
rep.
135.
there
kindes
of
Executors
:
and
an
Administrator
is
an
Excecutor
datinus
.
3
H.
6.
An
action
is
brought
against
divers
executors
by
the
Statute
:
when
some
appears
upon
the
distresse
,
it
answers
,
that
extends
to
an
Administrator
although
the
Statute
names
only
Executors
.
Thirdly
,
It
does
not
appear
here
that
Manningham
made
not
Executors
,
for
it
may
be
that
he
made
Executors
,
and
that
they
dyed
intestate
or
before
probate
.
And
he
cited
18.
H.
8.
And
Shelleyes
case
1.
rep.
and
33.
Eliz.
If
Executors
dye
before
probate
.
It
is
in
Law
a
dying
intestate
,
Richardson
.
Here
is
but
meer
trust
;
and
as
it
hath
been
said
;
It
doth
not
appear
whether
he
had
made
Executors
or
not
.
For
if
he
dye
,
and
makes
Executors
,
and
they
dye
before
probate
,
or
refuse
,
he
dyes
ab
intestato
,
but
not
intestate
;
Nor
shall
it
be
questioned
,
if
the
obligation
had
been
to
pay
to
Manningham
only
,
or
to
him
and
his
Executors
.
But
it
goes
to
the
administrators
.
But
because
that
he
had
specially
put
his
Executor
;
Whether
he
ought
to
have
the
forfeiture
of
the
obligation
,
or
whether
he
ought
to
have
the
sum
to
be
annually
payed
to
the
Administrator
.
Berkley
,
the
letters
of
administration
make
mention
,
that
he
dyed
ab
intestaro
.
Atthow
,
That
is
matter
de
hors
,
but
by
the
declaration
it
is
clear
that
he
dyed
intestate
.
And
the
action
brought
by
Administrator
who
who
had
not
any
cause
of
action
.
Secondly
,
admitt
that
there
was
an
Executor
,
and
the
money
payed
to
him
;
that
is
not
assets
;
For
it
is
not
the
money
of
Manningham
,
but
taken
by
him
to
pay
to
another
.
And
Richardson
said
:
If
the
party
had
dyed
intestate
,
by
the
Common
law
,
the
Administrator
is
Executor
,
and
all
things
that
were
to
be
performed
by
the
Executor
,
are
to
be
performed
by
the
Administrator
.
There
was
an
obligation
to
A.
to
pay
to
the
Executors
of
B.
It
shall
be
more
doubted
there
:
whether
it
shall
be
payed
to
the
Administrator
.
But
the
obligation
here
is
to
Manningham
himself
.
Now
his
Executors
comprehend
Administrators
:
And
Needhams
case
is
plain
in
that
.
And
the
mention
was
that
the
money
shall
be
payed
to
these
that
succeed
him
in
his
personal
Estate
.
Now
it
was
not
the
intent
that
it
should
be
lost
if
he
dyed
without
Executors
.
Crook
an
action
of
debt
being
brought
against
an
Executor
upon
an
obligation
;
plene
administravit
is
pleaded
.
Then
Administrator
being
included
in
the
word
Executor
,
there
is
a
good
cause
of
Action
.
And
the
Court
seemed
to
be
of
the
same
opinion
.
Sed
adjournatur
.
Fowlers
Case
.
FOwler
libels
for
tithes
,
and
a
Prohibition
was
prayed
upon
a
suggestion
that
he
came
to
the
Church
by
Symony
.
By
the
Court
,
a
Prohibition
ought
to
be
granted
upon
a
surmise
only
,
that
he
came
to
the
Church
by
Symony
.
Then
Henden
shewed
,
That
it
was
found
by
verdict
in
the
Kings
Bench
,
That
he
came
in
by
Symony
.
And
upon
that
verdict
there
was
a
decree
in
the
Court
of
Wards
accordingly
.
And
then
the
Court
inclined
to
grant
a
Prohibition
.
And
the
Case
here
was
,
That
Fowler
being
convicted
of
Symony
,
the
King
presents
Glapthorn
,
who
was
admitted
,
instituted
,
and
inducted
;
And
afterwards
he
takes
another
benefice
above
the
value
of
8
l.
by
which
the
other
was
void
.
Yet
by
the
assent
of
the
Lord
Windsor
Patron
,
Fowler
continued
possession
.
And
by
Richardson
,
He
cannot
be
any
way
removed
untill
laps
incurre
.
Strange
against
Atthowe
.
SIr
Hamond
Strange
brought
trespass
against
Christopher
Atthowe
.
And
the
trespass
was
done
8
years
after
,
but
with
a
continuando
unto
the
time
limited
by
the
Statute
21
Iac.
And
by
Richardson
the
action
is
toll'd
by
the
Statute
.
For
the
continuation
within
the
time
;
makes
the
Trespass
within
the
time
;
And
it
is
not
like
the
Case
in
Dyer
,
119
pl.
17.
In
the
turning
of
a
Cock
;
It
was
adjudged
a
new
diversion
,
for
it
was
a
new
action
.
But
here
is
not
a
new
act
done
.
Richardson
,
the
Statute
of
21
Iac.
may
be
well
pleaded
in
this
discharge
of
that
action
.
And
you
ought
to
commence
for
all
not
done
after
the
time
of
the
limitation
within
the
Statute
;
otherwise
the
Statute
should
be
overthrowed
;
For
by
that
means
the
continando
may
punish
a
trespass
done
20
years
past
,
with
the
alleging
of
a
continuando
.
Hutton
&
Crook
of
the
same
opinion
.
Yelverton
on
the
contrary
,
who
said
,
that
it
was
not
material
if
the
Statute
was
overthrown
.
But
the
other
Iustices
said
,
it
was
a
good
Statute
.
Crook
,
Suppose
that
you
cannot
prove
your
continuando
,
for
in
trespass
it
is
not
requisite
indéed
to
prove
it
;
For
it
is
only
put
for
increase
of
damages
.
But
Hitcham
said
,
Now
by
the
Statute
the
continuando
shall
be
proved
.
Then
by
Richardson
,
Hutton
,
and
Crook
.
You
will
make
a
fraction
That
the
trespass
shall
be
partly
upon
the
Statute
,
and
partly
upon
the
Common
law
.
It
was
ruled
again
according
to
that
before
;
That
when
a
Will
was
proved
in
the
Prerogative
Court
;
The
Executor
or
Administrator
may
be
cited
out
of
●…e
Diocess
where
he
lives
to
the
Prerogative
Court
,
Because
that
the
Will
cannot
be
executed
a
libi
than
where
it
was
proved
.
And
so
that
is
out
of
the
Statute
of
23
H.
8.
But
by
Richardson
,
Hutton
,
and
Yelverton
,
Where
a
Will
is
proved
in
the
Prerogative
Court
;
That
it
shall
be
proved
in
the
proper
Diocess
also
of
the
Executor
,
then
it
may
be
executed
there
.
Richardson
said
,
The
privilege
for
them
of
the
upper
House
continued
30
daies
after
the
Session
;
where
the
Parliament
of
the
lower
House
but
for
20
daies
.
And
that
the
privilege
extended
to
Person
,
Goods
and
Lands
.
Nortons
Case
.
IN
Nortons
Case
before
;
A
Consultation
was
granted
,
because
of
a
Custome
alleged
,
and
found
for
the
party
.
But
by
Crook
and
Yelverton
,
There
are
divers
Presidents
,
where
in
that
Case
a
Prohibition
was
granted
,
without
alleging
a
Custome
.
Allen
against
Westby
before
.
IT
was
ruled
,
That
the
Defendant
shall
not
have
costs
against
the
Informer
,
they
being
found
against
the
Informer
.
And
Brownlow
affirmed
that
the
course
of
the
Court
is
,
That
upon
the
Statute
the
Defendant
shall
never
have
costs
against
the
Informer
;
Although
Binge
cited
a
President
to
the
contrary
.