PASCH
.
15
JACOBI
.
Combes
versus
Inwood
.
THE
first
day
which
I
sate
at
the
Bench
,
after
the
day
in
which
I
was
sworn
,
Ejectione
suma
.
A
Conve●ance
delivered
to
be
enrolled
,
and
yet
not
in●●lled
,
shall
be
accounted
a
Record
.
i.
e.
Thursday
the
twenty
second
of
May
;
A
Iury
was
at
the
Bar
from
the
County
of
Surrey
,
in
an
Ejectione
firmae
,
brought
by
Combes
against
Inwood
,
upon
a
Lease
made
by
one
John
Stockwood
,
which
was
Heir
to
one
Edward
Stockwood
,
and
was
for
a
Farm
in
Chertsey
,
called
Haylwick
:
And
upon
Evidence
the
Case
appeared
to
be
th●●s
.
Edward
Stockwood
was
seised
in
fee
,
and
about
the
29
Hen:
8.
this
Land
was
supposed
to
be
conveyed
to
King
Hen.
8.
in
fee
,
for
the
enlargement
of
the
Honour
of
Hampton
;
but
no
Deed
,
nor
any
other
matter
of
Record
was
in
being
to
prove
this
originall
Conveyance
,
and
many
Arguments
were
used
to
prove
that
there
was
never
any
such
Conveyance
,
because
there
was
not
one
of
any
such
conveyance
named
in
the
Act
of
31
H
:
8.
But
of
the
other
part
it
was
proved
,
that
this
Land
had
continued
in
exchange
as
the
Land
of
H
:
8.
all
his
life
,
by
divers
accounts
;
and
that
it
had
been
enjoyed
by
divers
Leâses
made
by
Edward
6.
and
Queen
Elizabeth
,
and
Rent
paid
for
them
:
And
that
in
the
year
16
Eliz.
she
granted
it
in
Fee-farm
to
the
Earl
of
Lincoln
,
and
under
that
Title
the
Land
had
been
quietly
enjoyed
untill
of
late
time
.
And
the
Court
delivered
their
opinion
,
That
it
there
were
a
Deed
by
which
Stockwood
conveyed
the
Land
to
H
:
8
:
and
that
brought
into
the
Court
of
Augmentation
;
although
this
Deed
be
not
found
nor
inrolled
,
yet
it
is
a
sufficient
Record
to
intitle
the
King
,
and
it
is
a
Record
by
being
brought
into
Court
,
and
there
received
to
be
inrolled
.
And
the
Report
of
the
case
in
Lord
Dye●
,
fol:
355.19
Eliz.
was
not
as
it
is
there
reported
,
for
it
was
for
Bormi●
Inne
,
and
it
was
adjudged
a
good
conveyance
;
and
in
this
case
the
Iury
found
for
the
Defendant
.
Trin.
14
Jac.
Rotulo
769.
Steward
versus
Bishop
.
Steward
is
in
Leicester
Gaol
for
stealing
an
Horse
and
other
Cattell
,
the
Defendant
pleaded
not
guilty
,
and
the
Iury
found
for
the
Plaintiff
,
and
Damages
to
thirty
pounds
:
And
it
was
moved
in
Arrest
of
Iudgment
by
Serjeant
John
Moore
,
that
the
Action
doth
not
lye
,
for
the
words
do
not
affirm
and
Deed
,
or
Act
,
or
Offence
,
but
that
he
was
in
prison
upon
suspition
of
an
Offence
:
And
it
is
the
Ordinary
speech
and
communication
by
way
of
interrogation
;
What
is
such
a
one
in
prison
for
?
For
stealing
:
And
all
the
Kalenders
are
,
such
a
one
for
stealing
of
a
Horse
,
such
a
one
for
Murther
,
Vide
Coke
lib
:
4.
he
is
detected
for
Perjury
,
is
not
actionable
;
And
to
say
such
words
of
a
Iustice
of
Peace
,
or
an
Attorney
,
peradventure
it
shall
be
otherwise
,
yet
it
seems
all
one
,
if
it
touch
not
him
in
his
Profession
.
To
say
that
I.
S.
was
in
Newgate
for
forging
of
Writs
,
will
not
maintain
an
Action
,
and
so
adjudged
in
Nowels
case
,
and
Iudgment
was
given
that
the
action
will
not
lye
.
Pasch.
15
Jac.
ONe
brought
and
Action
upon
the
Case
,
and
counted
,
that
the
Defendant
(
in
consideration
that
the
Plaintiff
would
take
such
a
woman
to
his
Wife
)
promised
to
pay
twenty
pounds
when
he
shall
be
therto
requested
after
the
marriage
,
Trin.
15
Jac.
Resolved
upon
the
Statute
of
3
H.
7.
Cap.
2.
VPon
divers
Assemblies
at
Serjeants
Inne
of
all
the
Iudges
to
consider
(
by
the
direction
of
the
Star-Chamber
)
whether
by
the
Statute
of
3
H
:
7.
cap
:
2.
the
taking
of
any
Woman
against
her
will
,
and
the
marrying
or
deflowring
of
her
,
be
Felony
,
or
only
of
such
a
Woman
which
hath
Substance
,
or
Goods
,
or
Lands
;
or
otherwise
be
an
Heir
apparent
,
the
body
of
the
Act
seems
to
be
generall
,
viz.
He
that
shall
take
any
Woman
so
against
her
will
:
And
it
was
said
,
that
it
were
a
great
inconvenience
that
it
shall
be
Felony
to
take
an
Heir
apparent
of
a
poor
man
,
or
to
take
a
Woman
which
hath
but
a
very
small
Portion
,
and
of
mean
Parentage
,
and
(
as
it
was
said
)
of
a
Woman
in
a
red
Peticote
,
and
that
it
shall
not
be
felony
to
do
and
commit
the
said
Offence
in
taking
the
Daughter
of
an
Earl
,
or
some
other
great
man
of
the
Realm
.
But
it
was
resolved
that
the
body
of
the
Act
was
incorporated
to
the
Preamble
,
for
it
had
been
adjudged
,
that
if
one
take
a
Woman
with
an
intent
to
marry
her
,
or
deflower
her
,
&c.
and
doth
it
not
,
this
is
not
Felony
,
and
this
rests
only
upon
the
Preamble
;
then
it
shall
have
relation
as
well
to
such
a
Woman
which
is
before
named
,
viz.
Maid
,
Widow
,
or
Wife
,
having
substance
,
and
to
an
Heir
apparent
,
and
to
no
other
.
And
so
it
was
taken
in
a
Case
in
the
Star-Chamber
by
the
like
resolution
,
10
Jac.
between
Baker
and
Hall
,
and
the
Lord
chief
Baron
said
,
vide
Stamford
,
fol.
37.
Statute
1
H.
4.
Cap.
14.
COnsideration
upon
the
Statute
1
H
:
4.
Cap:
14.
was
had
,
how
the
word
Appeals
shall
be
intended
before
the
Constable
and
Marshall
.
And
26
Eliz.
Doughties
Case
,
Admitting
that
the
King
get
a
Commission
of
the
Office
of
a
Constable
and
Marshall
,
whether
the
King
may
have
any
remedy
before
them
by
Indictment
,
or
information
by
the
Attorney
generall
.
Mich.
15
Jac.
Andrews
versus
Hacker
.
AN
Assise
of
Darrein
Presentment
was
brought
by
Andrews
against
Hacker
,
and
the
Earl
of
Salop
,
First
,
we
must
know
that
this
Assise
shall
be
taken
only
in
the
Common
Bench
,
vide
Mag:
Char
:
cap
:
13.
But
the
other
Defendants
pleading
their
Plea
to
the
Writ
,
the
Court
was
of
opinion
that
it
was
a
good
Plea
in
abatement
of
the
Writ
,
for
the
Quare
impedit
is
a
Writ
of
a
higher
nature
,
vide
Regist:
fol
:
30.
That
if
he
against
whom
an
Assise
of
Darrein
presentment
is
brought
,
brings
a
Quare
impedit
,
the
Darrein
presentment
shall
abate
:
And
the
Statute
of
West
:
2.
cap
:
5.
saies
,
it
may
be
in
the
Election
of
one
,
whether
he
will
have
an
Assise
of
Darrein
presentment
,
or
Quare
impedit
,
ergo
he
cannot
have
them
both
.
And
if
an
Assise
of
Darrein
presentment
be
brought
,
and
after
that
a
Quare
impedit
for
one
avoidance
,
the
Assise
shall
abate
,
for
the
Quare
impedit
is
higher
in
his
nature
,
that
is
,
for
the
right
,
and
for
the
possession
.
And
Iustice
Warburton
vouched
10
Ed:
3
:
Statham
in
Darrein
presentment
3.
If
a
man
shall
have
a
Quare
impedit
,
and
also
an
Assise
of
Darrein
presentment
,
of
one
and
the
same
Advowson
,
pending
at
one
and
the
same
time
,
the
Darrein
presentment
shall
abate
,
and
the
Quare
impedit
shall
stand
,
because
that
it
is
of
an
higher
nature
.
By
Hank
and
Hill
,
it
was
urged
that
the
Quare
impedit
was
not
depending
untill
he
had
appeared
,
and
it
is
not
pleaded
that
he
did
appear
,
but
vide
2
Ed:
4.
fol:
that
it
is
depending
when
it
is
returned
.
And
in
a
Quare
impedit
by
the
Earl
of
Bedford
against
the
Bishop
of
Exeter
,
Bedford
versus
the
Bishop
of
Exeter
.
it
was
adjudged
Pasch.
15
Jac.
that
he
could
not
have
two
Quare
impedits
of
one
Church
,
and
for
one
avoidance
.
And
in
this
Case
the
whole
Court
agreed
that
the
plea
was
good
in
abatement
of
the
Writ
,
and
awarded
that
the
Assise
should
abate
.
Mich.
14
Jac.
Rot.
3297.
Shaw
versus
Taylor
.
BRidget
Shaw
brought
a
Replevin
against
George
Taylor
,
for
the
taking
of
an
Horse
at
Northfield
,
in
a
place
called
Little
falling
;
the
Defendant
makes
Cognizance
as
Bayliff
to
Sir
Thomas
Gervas
,
because
that
one
Richard
Shaw
was
seised
of
an
House
and
divers
Lands
,
(
of
which
the
place
where
,
&c.
was
parcell
)
in
his
Demesn
as
of
Fee
,
and
them
held
of
the
said
Sir
Thomas
Gervas
,
as
of
his
Mannor
of
Northfield
,
by
Fealty
and
Rent
of
twenty
pounds
,
and
rendring
and
paying
after
of
every
Tenant
(
dying
therof
seised
)
one
Heriot
,
and
alledged
Seisin
,
and
that
he
died
seised
:
And
that
for
one
Heriot
so
due
,
and
not
delivered
,
he
distrained
in
the
place
in
which
,
&c.
as
within
the
Fee
.
The
Plaintiff
plead
in
Bar
to
the
Avowry
,
and
takes
the
whole
Tenure
by
protestation
,
and
for
Plea
saies
,
that
the
said
Richard
Shaw
at
the
time
of
his
death
had
no
Beasts
,
wherof
a
Heriot
might
or
could
be
rendred
,
upon
which
the
Defendant
demurrs
.
And
upon
the
matter
it
seemed
to
the
Court
,
that
if
he
had
not
any
Beasts
,
than
the
Lord
must
lose
it
;
for
it
is
a
casuall
thing
if
he
have
it
,
unlesse
the
Custom
or
Tenure
be
to
have
the
best
Beast
,
or
such
a
summ
:
And
if
he
had
conveyed
it
away
,
and
so
prevented
him
by
any
fraud
,
then
the
Statute
of
13
Eliz.
had
provided
remedy
,
but
where
there
is
nothing
of
any
such
thing
,
which
may
be
rendred
at
the
time
of
the
death
,
there
the
King
must
lose
his
right
.
And
it
was
resolved
by
the
Court
that
the
Cognizance
was
not
good
,
for
it
ought
to
be
certain
,
i.
e.
for
the
best
,
or
two
best
Beasts
,
and
not
generally
for
one
Heroit
,
and
not
shewing
what
thing
in
certain
,
vide
3
Eliz:
Dyer
199.
A
Heriot
is
Quaedam
prestatio
,
&c.
and
see
there
the
Plea
,
that
there
was
no
Beast
at
the
time
of
his
death
:
And
the
opinion
of
the
Court
was
also
,
that
the
Bar
to
the
Avowry
was
not
good
,
because
the
Issue
is
tendred
to
a
thing
not
alledged
,
for
in
the
Avowry
he
made
not
mention
of
any
beast
,
but
generally
of
one
Heriot
,
which
is
not
certain
;
And
therfore
it
was
awarded
that
the
Plaintiff
should
recover
,
and
should
have
a
return
,
&c.
and
Damages
.
Pasch.
14
Jac.
Rot.
907.
Norris
versus
Stapes
.
RObert
Norris
and
Thomas
Trussells
Warden●
,
and
the
Society
of
Weavers
,
in
the
Burrough
of
Newbury
,
John
Stapes
,
and
Count
,
that
Queen
Eliz.
by
her
Letters
Patents
,
14.
of
Octob
:
An:
44.
at
the
request
of
the
Inhabitants
there
using
the
Art
of
Weaving
,
and
to
the
intent
that
Corruption
therin
might
be
taken
away
and
avoided
,
&c.
did
grant
to
all
Weavers
within
the
said
Town
to
be
a
Body
Politick
,
by
the
name
of
the
Wardens
and
Society
,
&c
:
as
before
,
and
to
have
perpetuall
succession
&
power
to
purchase
,
to
plead
,
and
to
be
impleaded
:
And
also
power
to
make
Laws
and
Ordinances
agreeable
to
reason
,
and
not
in
any
wise
contrary
and
repugnant
to
the
Laws
and
Statutes
of
the
Realm
,
for
the
well
Government
of
the
Society
,
Apprentices
,
and
Servants
,
and
all
using
the
Trade
of
weaving
or
selling
of
any
thing
therto
belonging
within
the
same
Burrough
,
and
power
to
inflict
punishment
by
Imprisonment
,
Fine
,
or
Amercement
upon
the
Offenders
:
And
granted
further
,
that
the
said
Wardens
and
Society
shall
have
the
survey
of
those
Lawes
,
and
the
benefit
of
the
Forfeitures
;
And
that
no
other
person
,
born
within
or
without
the
said
Burrough
,
shal
exercise
the
Art
of
weaving
within
the
said
Burrough
,
if
he
shall
not
be
admitted
therto
by
the
Wardens
and
Society
.
And
they
recite
the
Act
of
19
H
:
7.
cap
:
7.
of
not
putting
of
any
Law
or
Ordinance
in
execution
,
before
it
shall
be
allowed
by
the
Lord
Chancellor
,
Treasurer
,
and
two
chief
Iustices
,
or
three
of
them
,
or
before
both
the
Iustices
of
Assise
in
their
Circuits
,
upon
pain
of
forfeiting
forty
pounds
:
And
shew
that
one
Cuthbert
Goodwin
,
and
John
Hame
Wardens
of
the
said
Society
,
with
the
greater
part
of
the
said
Society
,
1.
Maij
45
Eliz.
at
the
Guildhall
within
the
said
Burrough
,
made
divers
Lawes
and
Ordinances
for
the
Government
of
Weavers
;
and
that
the
18
Novemb.
1
Jac.
the
said
Orders
were
confirmed
by
the
Lord
Chancellor
,
Lord
Treasurer
,
and
Lord
Anderson
one
of
the
chief
Iustices
,
among
which
one
was
,
that
none
should
use
the
Art
of
Weaving
within
the
said
Burrough
,
or
should
have
any
Loom
in
his
house
or
possession
,
to
have
any
benefit
therby
,
unlesse
he
had
been
an
Apprentice
to
the
said
Art
within
the
said
Burrough
,
for
the
space
and
term
of
seven
years
,
or
had
used
the
said
Art
within
the
said
Burrough
for
five
years
before
the
making
of
the
said
Ordinance
,
or
shall
be
admitted
therto
by
the
Wardens
and
Society
,
upon
pain
of
forfeiture
for
every
month
twenty
shillings
.
And
they
further
shew
,
that
after
the
said
Ordinance
made
and
confirmed
the
Defendant
(
such
a
day
)
before
his
inhabiting
in
the
said
Burrough
;
and
after
(
such
a
day
)
that
one
William
Godwin
being
then
Warden
of
the
Weavers
,
gave
notice
to
the
Defendant
of
the
said
Ordinance
,
and
that
he
afterwards
,
&c.
during
five
months
continued
using
the
said
Trade
there
,
and
that
he
had
two
Looms
in
his
possession
,
where
he
had
not
been
an
Apprentice
,
nor
used
the
said
Art
for
five
years
,
as
before
,
&c.
by
which
he
forfeited
to
them
five
pounds
,
viz
,
for
every
month
twenty
shillings
.
The
Defendant
pleaded
Nil
debet
,
and
after
Verdict
for
the
Plaintiffs
,
it
was
moved
by
Arrest
of
Iudgment
,
that
this
Ordinance
was
not
reasonable
:
and
upon
Arguments
and
Conference
,
without
arguments
at
the
Bench
,
it
was
agreed
that
the
Ordinance
was
against
Law
,
and
Iudgment
against
the
Plaintiffs
.
And
Lord
Hobart
in
Hil
:
15
Jac
,
declared
,
that
we
were
all
of
opinion
that
Iudgment
should
be
given
against
the
Plaintiffs
:
And
he
repeated
the
Case
and
the
reasons
of
this
Iudgment
,
because
the
Ordinance
was
,
that
none
should
use
the
Trade
of
Weaver
,
nor
have
any
Loom
in
the
Town
,
unlesse
he
had
served
,
&c.
before
the
making
of
this
Ordinance
,
so
that
all
Apprentices
which
serve
after
shall
be
excluded
,
unlesse
they
shall
be
admitted
by
them
,
which
is
unreasonable
:
And
the
Plaintiffs
do
not
convey
to
themselves
any
good
Title
to
be
Wardens
,
but
as
to
the
principall
point
of
making
such
a
restraining
Ordinance
,
the
Court
did
not
deliver
any
opinion
.
Mich.
15
Jac.
Rot.
2327.
Dorrell
versus
Andrews
.
SUsan
Dorrell
brought
an
action
of
Debt
against
Sir
Eusebius
Andrews
,
John
Cope
for
eighty
five
pounds
,
and
count
upon
a
Lease
made
by
her
to
the
Defendants
by
Indenture
,
by
which
she
demised
one
Capitall
Messuage
,
Mannor
,
or
House
called
Causton
,
within
the
Parish
of
Dunchurch
in
the
County
of
Warwick
,
and
all
the
Stables
,
&c.
in
Causton
aforesaid
.
The
Defendant
protesting
that
the
Rent
was
not
behind
,
for
Plea
saies
,
that
before
any
Rend
arrear
the
Plaintiff
entred
into
severall
parts
of
the
house
,
and
him
dispossessed
,
and
upon
that
they
were
at
issue
,
and
the
Venice
facias
was
de
vicineto
de
Causton
within
the
Parish
of
Dunchurch
:
And
it
was
moved
in
Arrest
of
Iudgment
,
that
the
Venire
facias
should
be
of
the
Parish
only
,
and
not
of
Causton
,
for
Causton
is
not
alledged
as
a
Town
,
but
the
name
of
a
house
:
And
the
Court
resolved
that
the
Ven.
fac
,
was
good
,
for
Causton
is
alledged
as
a
Town
in
the
Parish
of
Dunchurch
,
and
that
by
the
addition
and
generall
words
in
the
Demise
,
in
which
also
there
was
an
exception
of
part
of
the
House
as
Mannor-house
at
Causton
aforesaid
,
so
that
the
house
is
alledged
to
be
in
Causton
,
in
the
Parish
of
Dunchurch
,
if
all
be
considered
:
And
if
it
appear
that
Causton
is
a
Town
or
Village
in
the
Parish
of
Dunchurch
,
it
will
be
without
any
doubt
good
.
And
my
Lord
Hobart
said
,
that
it
had
been
divers
times
adjudged
,
that
on
the
Allegation
of
a
thing
done
at
the
Town
of
Dale
in
the
Parish
of
Sale
,
that
the
Ven.
fac
.
of
the
Parish
is
good
,
for
though
the
Parish
may
contain
more
Towns
,
yet
it
is
not
to
be
presumed
but
that
it
is
of
one
Continent
,
if
the
contrary
appear
not
by
the
Record
,
vide
for
that
Pasch:
9
Jac.
between
the
Lord
Candish
,
and
Sir
George
Savill
,
&c.
There
was
another
exception
taken
to
the
pleading
,
Trin.
14
Jac.
Rot.
755
Swaine
versus
Holman
.
RIchard
Swaine
Plaintiff
,
Thomas
Holman
and
Elizabeth
his
Wife
,
brought
Wast
,
and
declared
of
a
Lease
made
:
Anno
the
8.
of
Eliz:
by
the
Queen
,
under
the
Exchequer
Seal
,
to
William
Jolliff
,
Thomas
Jolliff
,
and
Elizabeth
Jolliff
,
for
three
lives
,
and
that
William
and
Thomas
were
dead
,
and
convey
the
remainder
to
the
King
that
now
is
,
and
from
him
to
the
Plaintiff
,
and
that
the
Defendant
Elizabeth
took
H.
to
Husband
,
which
did
wast
,
&c.
The
Defendants
confesse
the
Lease
,
death
,
and
marriage
as
above
,
&c
and
say
,
that
the
said
Holman
and
Elizabeth
his
wife
,
2.
Feb:
40
Eliz.
surrendred
as
well
all
their
Estate
of
the
said
Elizabeth
,
as
the
Letters
Patents
,
to
the
intent
that
the
Queen
should
make
a
new
Lease
to
the
said
Elizabeth
,
and
to
Humphrey
Holman
,
and
to
Roger
Holman
for
their
lives
successively
,
which
surrender
the
Queen
accepted
,
and
the
third
of
Febr
:
next
made
such
Demise
,
and
this
they
are
ready
to
aver
,
&c.
The
Plaintiff
replies
,
and
joyns
Issue
upon
the
Surrender
and
Demise
in
manner
and
form
,
and
the
Issue
was
tried
by
a
Venue
which
came
from
Westminster
,
and
the
Iury
found
this
speciall
Verdict
,
viz.
the
new
Lease
made
the
third
of
Felic
:
in
which
it
is
recited
that
she
had
surrendred
the
Estate
,
and
the
Letters
Patents
,
and
the
Queen
as
well
in
consideration
of
the
surrender
of
the
Letters
Patents
,
as
in
consideration
of
the
payment
of
twenty
Nobles
made
by
the
new
Lease
,
and
the
Iury
found
that
the
Demise
made
the
third
of
Febr
:
was
with
the
consent
of
the
said
Thomas
Holman
,
and
that
the
said
Thomas
Holman
and
Elizabeth
his
wife
agreed
therto
,
and
held
in
claiming
by
the
said
Demise
:
And
it
was
adjudged
by
the
Lord
Hobart
,
and
others
the
Iustices
,
that
the
Plaintiff
should
have
Iudgment
.
First
,
the
consideration
which
procured
the
new
Lease
is
the
Surrender
,
and
the
Surrender
is
not
absolute
but
defeisable
if
the
wife
survive
,
or
if
the
Husband
will
disagree
;
and
therfore
the
Lord
Hobart
said
,
that
if
Feme
Lesses
for
years
takes
Husband
,
and
after
the
Feme
takes
a
new
Lease
of
the
Queen
for
life
,
this
extinguisheth
the
term
;
but
if
the
Husband
disagree
,
then
the
Lease
for
yeers
is
revived
.
And
as
in
Barwicks
Case
,
the
surrender
of
all
the
Estate
where
he
had
made
a
Lease
for
years
before
,
or
where
the
Lease
which
he
surrendred
was
void
,
the
new
Lease
made
〈◊〉
consideration
therof
is
vein
,
for
the
Surrender
which
is
the
consideration
,
ought
to
be
a
good
surrender
of
the
former
Estate
:
And
therfore
if
Lessee
for
life
of
the
Blemise
of
the
King
surrender
conditionally
,
and
the
King
reciting
that
he
had
surrendred
all
his
Estate
,
makes
a
new
Lease
,
this
shall
be
intended
an
absolute
Estate
,
for
a
conditionall
surrender
within
three
years
of
the
Lease
,
is
not
a
surrender
within
the
Act
of
32
H
:
8.
2.
Another
reason
,
because
that
the
Free-hold
which
the
Husband
had
in
the
right
of
his
Wife
,
could
not
be
given
by
this
bare
assent
;
But
if
the
Lease
had
been
made
,
de
novo
,
to
the
Husband
and
the
Wife
,
then
it
had
been
questionable
,
for
the
Estate
passe
by
Implication
,
viz.
by
a
surrender
in
Law
,
by
acceptance
of
a
new
Lease
,
as
in
the
eighth
Report
of
the
Lord
Coke
,
S.
Savors
Case
,
but
there
no
Estate
of
the
Husband
passe
,
for
by
the
inter-marriage
he
was
in
of
the
Freehold
with
his
Wife
,
in
the
right
of
his
Wife
,
and
that
he
gives
not
by
assent
,
vide
7
H.
7.14
:
vide
41
E
:
3.
fol.
19.
3.
Another
reason
was
,
as
this
issue
is
joyned
,
it
is
found
against
the
Defendants
,
for
it
shall
be
therby
taken
and
intended
of
an
actuall
surrender
made
by
the
Husband
and
Wife
,
and
not
of
such
a
surrender
which
is
operated
by
a
subsequent
act
in
Iudgment
of
Law
,
and
the
reason
therof
is
,
because
that
the
surrender
of
the
Estate
,
and
the
cancelling
of
the
Letters
Patents
are
pleaded
to
be
done
at
Westminster
,
2
Febr
:
and
the
Lease
,
3.
Febr
:
so
that
this
Issue
is
taken
upon
an
actuall
surrender
:
And
by
Warburton
,
if
issue
be
joyned
upon
the
Manumission
of
a
Villain
,
that
is
not
maintained
by
giving
in
evidence
that
the
Lord
made
to
him
an
Obligation
,
but
by
the
making
of
him
free
by
Charter
of
Manumission
,
vide
the
Case
directly
,
25
H
:
8.
Brook
generall
Issue
82.
vid:
Dyer
284.
Croucheads
Case
.
Memorand.
That
in
this
case
the
Jury
of
Middlesex
found
the
Damages
,
and
the
value
of
the
Wast
in
the
County
of
Dorcetshire
,
vide
Coke
liv
:
6.
fol.
47.
Dowdales
Case
.
Mich.
15
Jac.
Rot.
1634.
Gibbs
versus
Davie
.
EDward
Gibbs
brought
an
action
upon
the
Case
against
Jenkin
Davie
,
for
words
spoken
in
the
Welsh
Tongue
,
and
declared
that
the
conference
was
had
by
Baron
Snigg
with
the
Defendant
,
concerning
the
selonious
stealing
of
three
Heisers
,
and
the
Defendant
is
supposed
to
answer
to
the
question
in
Welsh
,
whether
Thomas
Jackson
stole
them
;
If
he
had
them
,
Edw.
Gibbs
stole
them
:
And
upon
Not
guilty
pleaded
,
it
was
found
for
the
Plaintiff
at
Bristoll
,
And
it
was
moved
this
Term
in
Arrest
of
Iudgment
,
that
the
words
in
Welsh
did
not
signifie
stealing
,
but
carrying
away
upon
ones
back
:
And
it
appeared
upon
examination
of
one
Mr.
Gunter
upon
Oath
,
that
it
is
properly
the
word
for
carrying
,
though
that
there
in
the
intendment
of
the
parties
it
might
be
taken
for
stealing
,
it
being
joyned
with
other
precedent
circumstances
,
yet
it
is
not
actionable
,
for
it
shall
be
taken
in
the
most
favourable
construction
and
best
sense
,
as
if
one
had
said
,
That
such
a
one
had
the
Pox
,
and
forbid
one
to
use
his
company
,
it
shall
not
be
intended
of
the
French
Pox
,
and
no
Action
lies
:
And
Iudgment
was
given
for
the
Defendant
,
yet
it
was
averred
in
the
Count
,
that
the
words
were
spoken
in
the
hearing
of
them
which
understood
the
Welsh
Language
.
Micih
14
Jac.
Rot.
953.
Leigh
versus
Paine
.
MAtthew
Leigh
brought
an
action
of
Debt
upon
an
Obligation
against
Matthew
Paine
,
Baspool
,
Co.
lib.
8.
fol.
98.
where
submission
was
of
all
controversies
,
so
that
the
Award
be
made
of
the
Premisses
,
&c.
there
the
Arbitrators
made
an
Award
of
divers
particulars
,
and
the
Award
was
good
,
and
he
that
will
avoid
it
must
shew
that
there
were
other
controversies
,
&
that
he
gave
notice
of
them
to
the
Arbitrators
,
for
they
shal
not
be
bound
to
arbitrate
of
more
then
they
have
notice
of
,
Dy
:
242.19
E.
4.1
.
vide
Summons
case
,
Coke
lib.
5
fol:
77
:
That
an
Award
ought
to
be
reasonable
,
and
to
be
done
between
the
same
parties
:
And
therfore
the
Arbitrement
that
the
Husband
and
Wife
shall
levy
a
Fine
where
the
submission
was
by
the
Husband
only
,
is
void
(
but
quaere
)
if
it
be
not
good
as
to
the
Husband
,
and
vide
in
James
Osborns
case
,
Coke
lib
:
10.
fol:
131.
There
the
case
of
More
and
Bedle
is
bouthed
,
and
is
adjudged
that
where
it
is
awarded
that
a
certain
summ
shall
be
paid
,
and
for
the
payment
thereof
a
stranger
shall
be
bound
,
it
is
a
good
Award
,
though
as
to
the
giving
of
security
by
a
stranger
it
is
void
,
and
there
it
is
said
,
if
satisfaction
be
to
be
given
for
many
things
,
of
which
part
is
out
of
the
Award
,
yet
it
is
good
for
them
which
are
submitted
unto
,
vide
42
&
43
Eliz:
Newby
and
Sav
:
Grenewell
,
Trin
:
43
Eliz:
Rot
:
947.
vide
a
case
between
Hilton
and
Brown
,
Trin
:
5
Jacobi
Rot
:
1618.
an
Arbitrement
was
made
generall
in
satisfaction
of
all
Controversies
Indefinitely
without
any
limitation
:
And
upon
Argument
upon
Demurrer
,
it
was
adjudged
good
,
and
in
this
case
the
Arbitrement
will
not
discharge
any
action
which
was
not
submitted
unto
;
and
then
it
is
but
Surplusage
which
shall
not
avoyd
the
Award
,
though
the
Plaintiff
hath
mine
recompence
by
the
Arbitrators
,
In
respect
that
the
Defendant
shall
be
discharged
of
trespasses
untill
the
making
of
the
Arbitrement
:
And
Iudgment
was
giuen
for
the
Plaintiff
.
Mich.
11
Jac.
Rot.
318.
Agars
versus
Lisle
.
THomas
Agar
brought
an
action
upon
the
Case
against
Lisle
,
for
studing
and
converting
of
a
Cow
at
the
Castle
of
York
,
the
Defendant
pleaded
in
Bar
,
that
the
Bishop
of
Durham
was
seised
of
the
Town
of
Darton
,
in
the
County
of
Durham
,
and
prescribe
to
have
a
Faire
there
and
Toll
,
and
for
not
payment
thereof
,
&c.
the
Cow
was
taken
by
the
Defendant
,
Mar.
Trespass
121.
and
the
Inducement
ought
to
be
such
as
contain
sufficient
matter
with
the
Trespasse
,
vide
9
E.
4
,
5.
19
H
:
6.30.22
Then
it
was
agreed
,
Coke
lib.
10.
fol:
46
,
47.
Request
and
refusall
to
deliver
,
is
good
evidence
to
prove
conversion
,
but
if
it
be
found
specially
it
shall
not
be
adjudged
Conversion
;
and
Iudgment
was
given
for
the
Plaintiff
,
because
the
Defendant
did
not
claim
any
property
,
and
did
not
answer
to
the
point
of
the
Action
,
for
a
Distresse
is
no
Conversion
.
Hil.
15
Jac.
Coble
versus
Allen.
Norf.
Ven:
fac
.
is
but
in
two
,
this
is
not
aided
,
for
it
is
a
Mis-triall
,
and
there
must
be
a
Venire
facias
de
novo
,
but
in
this
case
no
new
Venice
can
be
awarded
,
and
then
it
is
but
a
Jeofaile
for
not
pleading
in
which
Town
the
way
lies
,
and
then
it
is
alo●●
;
and
also
unto
the
Kings
high
way
,
may
be
taken
that
this
Kings
high
way
is
contigue
adjacent
to
these
Closes
where
the
way
is
by
Prescription
:
And
for
these
reasons
and
causes
Iudgment
given
for
the
Plaintiff
.
Harding
versus
Bodman
.
RObert
Harding
Plaintiff
,
against
Bodman
Defendant
,
Star
Chamber
,
by
reason
of
which
Evidence
(
though
the
Iury
found
for
the
Plaintiff
,
yet
by
reason
hereof
)
they
gave
but
small
Damages
to
the
Plaintiff
:
And
upon
not
guilty
pleaded
,
it
was
found
for
the
Plaintiff
;
and
upon
motion
in
Arrest
of
Iudgment
,
it
was
adjudged
that
this
is
a
new
invention
,
and
that
no
action
lies
for
it
.
First
,
because
that
it
is
impossible
to
be
known
whether
the
Iury
gave
greater
or
lesse
Damages
for
that
or
not
:
Also
by
this
means
every
man
which
is
produced
as
a
Witnesse
by
one
way
or
other
,
may
be
subject
to
an
action
upon
the
Case
;
and
also
by
any
thing
which
appears
to
the
Court
,
the
Evidence
was
true
,
for
it
was
not
averred
that
Revera
,
that
the
Plaintiff
was
not
a
common
lyar
,
&
that
he
was
not
recorded
for
a
common
lyar
,
in
the
Star
Chamber
;
And
for
these
reasons
the
Plaintiff
.
Nil
capiat
per
breve
,
&c.
Trin.
15
Jac.
Rot.
1968.
Speake
versus
Richards
.
South
.
HUgh
Speake
brought
an
action
of
Debt
against
Edward
Richards
,
Anthony
Hall
,
and
Henry
Paramour
22.
June
13
Jac.
became
obliged
to
the
Plaintiff
by
Recognizance
in
the
Chancery
in
2000
l
and
that
they
did
not
pay
it
,
wherupon
the
Plaintiff
had
two
Sci.
fac.'s
to
the
Sheriff
of
Middlesex
,
Henry
Paramour
,
parcell
of
the
said
Debt
,
and
at
15
Mich.
returned
that
he
had
levied
the
said
523
l
17
●
.
8
d
parcell
,
&c.
which
summ
he
had
ready
at
the
day
to
deliver
to
the
Plaintiff
in
part
of
satisfaction
,
&c.
And
that
the
Defendant
(
although
often
required
therto
)
refused
to
pay
the
said
523
l
17
s
8
d
(
by
cause
wherof
this
action
accrued
)
nor
brought
it
into
Chancery
,
and
to
have
the
parties
,
&c.
The
Defendant
as
to
three
hundred
and
eight
pounds
,
part
therof
,
pleaded
Nil
debet
,
to
two
hundred
and
fifteen
pounds
seventeen
shillings
eight
pence
,
residue
therof
,
Actio
non
:
For
he
said
,
that
after
the
Writ
directed
,
and
before
the
return
,
viz.
31
Augusti
,
14
Jacobi
,
the
Defendant
at
Westminster
paid
it
to
the
Plaintiff
,
upon
the
receit
wherof
,
the
same
day
the
Plaintiff
gave
an
Acquittance
for
the
same
(
which
he
pleads
)
and
therby
acquitted
and
discharged
the
Defendant
,
and
demands
Iudgment
if
against
his
own
Deed
of
acquittance
he
shall
be
received
to
demand
the
said
money
,
wherupon
the
Plaintiff
demurred
.
And
it
was
argued
by
Serjeant
Richardson
for
the
Plaintiff
,
and
by
John
Moore
for
the
Defendant
:
An
exception
was
taken
that
he
could
not
plead
Nil
debet
,
because
that
it
is
a
Debt
upon
Record
,
for
he
is
charged
by
the
return
;
He
is
not
estoppled
to
plead
payment
before
the
return
,
because
it
is
another
Action
,
and
the
Sheriff
might
have
paid
it
to
the
Plaintiff
,
though
he
return
that
he
had
the
money
ready
to
be
delivered
to
him
;
for
if
he
had
after
that
paid
it
to
the
Plaintiff
,
that
was
good
satisfaction
,
and
he
might
as
well
pay
it
after
he
had
levied
it
,
and
before
the
return
,
as
he
might
pay
it
after
the
return
,
and
then
Nil
debet
is
a
good
Plea
.
But
it
was
objected
,
that
by
the
return
15
Mich.
that
he
had
the
money
ready
(
and
that
after
the
acquittance
)
his
return
should
conclude
him
:
And
it
was
said
that
it
would
not
,
for
it
is
in
another
Action
and
stands
therwith
,
22
E
:
4.38
.
One
vouched
as
Heir
may
be
bound
to
Warranty
by
his
Father
,
and
if
he
bring
an
Assise
De
morte
Antecestoris
,
and
the
Tenant
plead
Bastardy
,
it
is
no
Estoppell
that
the
Defendant
vouched
him
as
Heir
before
.
The
Acquittance
or
Release
is
good
before
the
return
,
and
not
like
unto
Hoes
Case
of
Bail
,
Coke
:
lib
:
5.71
.
or
5
Eliz:
Dyer
217.
Release
of
Actions
and
Suits
will
not
release
a
Covenant
before
it
be
broken
.
Object
.
That
the
Acquittance
or
Release
is
pleaded
only
by
recitall
.
Res
.
To
this
it
was
answered
,
that
he
had
paid
the
two
hundred
and
fifty
pound
,
seventeen
shillings
eight
peace
,
which
the
Plaintiff
had
accepted
,
and
the
Plaintiff
by
Demurrer
had
confessed
the
Deed
,
and
all
that
is
contained
therin
,
then
it
appears
that
he
is
satisfied
,
and
that
the
release
in
matter
as
it
is
recited
shall
be
an
Estoppell
,
vide
46
Eliz.
13.
But
it
seemed
that
it
is
no
Estoppell
by
the
reciting
in
the
Release
that
which
is
in
possession
,
but
that
afterward
he
might
well
say
,
that
he
was
not
in
possession
at
the
time
of
the
Release
,
and
all
the
Court
agreed
,
that
the
Acquittance
or
Release
,
and
receit
of
the
money
is
a
good
Bar
as
to
two
hundred
and
fifteen
pounds
,
seventeen
shillings
eight
pence
,
and
so
it
was
adjudged
:
But
whether
an
Action
of
Debt
lies
against
the
Sheriff
upon
this
return
is
questionable
,
yet
that
it
is
not
any
Contract
,
Account
,
or
Loane
,
upon
which
three
properly
an
Action
of
Debt
lies
,
as
it
is
said
M.
18.
E.
4.23
.
and
41.
E.
3.10
.
and
42
E.
3.9
.
When
money
is
delivered
to
be
delivered
over
,
that
no
Debt
lies
if
it
be
not
delivered
over
,
but
Account
,
vide
34
H.
6.
36.
a.
9
E
:
4.50
.
And
the
Court
inclined
,
that
in
this
Case
Debt
lies
,
for
it
is
a
generall
Contract
:
In
Dowses
Case
,
the
Sheriff
levy
part
and
do
not
return
it
,
but
the
party
pay
it
,
Debt
lies
against
the
Sheriff
:
And
if
money
be
delivered
to
buy
Land
,
if
he
buy
it
not
,
Debt
lies
,
or
Account
.
Mich.
15
Jac.
Rot.
636.
Stone
versus
Roberts
.
STone
brought
an
Action
upon
the
Case
against
Roberts
for
these
words
;
The
Plaintiff
is
a
Witty
,
and
an
Inchaunter
,
And
Iudgment
for
the
Plaintiff
;
1
Jac.
Hil.
15
Jac.
Rot.
710.
Crawley
versus
Kingswell
.
RIchard
Crawley
Plaintiff
,
in
Roplevin
against
Richard
Kingswell
,
John
Moore
,
it
was
adjudged
by
the
whole
Court
that
the
Defendant
shall
have
a
return
:
And
a
diversity
was
taken
between
this
and
Homage
,
where
one
makes
a
tender
to
the
party
,
and
he
refuse
,
there
he
cannot
distrain
,
because
it
is
a
personall
thing
which
cannot
be
performed
(
as
payment
of
a
Rent
may
)
by
another
hand
,
vide
Litt.
fol
:
35.21
E
:
4.17.7
E
:
4.4.20
H.
6.13
.
Also
it
was
agreed
,
that
the
tender
there
by
the
Tenant
at
the
day
is
not
materiall
,
but
if
he
had
tendred
it
when
the
Distresse
was
taken
,
the
taking
should
be
tortious
.
30
Ass:
38.
vide
22
H
:
6.36
,
&
37.21
E
:
4.
b.
45
E.
3.9
.
vide
Litt.
7.
fol:
28.
Demand
necessary
only
for
a
Penalty
.
26
Eliz.
Certain
Cases
vouched
in
an
Action
for
words
.
GIttings
Plaintiff
in
the
Exchequer
,
against
Redserve
.
Gittings
is
a
cousening
Knave
,
and
so
I
have
proved
him
before
my
Lord
Mayor
,
for
selling
me
a
Saphire
for
a
Diamond
,
the
Action
does
not
lye
:
And
by
Manwood
,
if
A.
saies
of
B.
Thou
art
a
cousening
Knave
,
and
hast
cousened
me
of
five
hundred
pounds
,
no
Action
lies
,
which
the
Court
agreed
.
Banco
Regis
30
Eliz.
George
versus
Whitlock
.
HE
is
a
cousening
Knave
,
and
consened
a
poor
man
of
a
hundred
pounds
,
and
all
the
Georges
are
cousening
Knaves
,
no
action
lies
,
Hil.
30
Eliz
,
B.
R.
Walcot
Plaintiff
versus
Hind
.
HE
is
a
cousening
Knave
,
and
hath
cousened
me
of
forty
pounds
,
adjudged
no
action
lies
:
And
upon
Error
brought
in
the
Exchequer
,
Iudgment
was
affirmed
;
and
it
is
said
that
our
Law
takes
no
notice
what
a
Cousener
is
.
Trin.
37
Eliz.
Brookes
Case
.
HE
is
a
false
Knave
,
and
keeps
a
false
Debt
Book
,
for
he
chargeth
me
with
the
receit
of
one
peece
of
Velvet
which
is
false
,
not
actionable
.
Mich.
37
and
38
Eliz.
Charter
versus
Hunter
.
THou
art
a
Pilfring
Merchant
,
and
hast
Pilfred
away
my
Goods
from
my
Wife
and
my
Children
not
actionable
:
A
Butcher
and
his
Wife
brought
an
action
upon
the
Case
against
B.
and
his
Wife
,
and
shew
that
the
Plaintiff
used
the
Trade
of
a
Butcher
,
and
that
his
Wife
in
his
absence
sold
and
delivered
flesh
,
and
the
words
were
,
that
the
Wife
of
the
Plaintiff
is
a
cousening
woman
,
and
hath
cousened
one
of
her
Neighbours
of
four
pounds
;
And
it
was
alledged
over
,
that
she
the
Defendant
would
bring
good
proof
of
it
,
and
adjudged
that
an
action
lies
not
.
Trin.
13
Jac.
Rot.
650.
Heard
versus
Baskerfield
.
WIlliam
Heard
Plaintiff
,
Richard
Baskerfield
in
Replevin
for
taking
two
Cowes
at
Brood
,
the
Defendant
makes
Conuzance
as
Bayliff
to
John
Dinham
Esquire
,
and
shows
that
Walter
de
la
Therne
was
seised
in
Fee
of
twenty
acres
of
Land
,
wherof
,
&c.
And
by
his
Deed
(
shewn
in
Court
)
12
E.
a.
granted
a
Rent-charge
of
two
shillings
out
therof
to
John
Milleton
and
Walter
Milleton
,
John
Milleton
dies
,
and
Walter
survived
and
died
seised
;
and
this
Rent
descended
to
one
John
Milleton
of
P.
as
Cosin
and
Heir
to
the
aforesaid
Walter
,
and
he
was
seised
in
Fee
;
and
one
John
Dinham
was
seised
in
Fee
of
one
house
and
twenty
acres
of
Land
in
Pensons
,
and
by
Deed
(
shewn
in
Court
)
exchanged
them
with
the
said
John
Milleton
for
the
said
Rent
;
and
Walter
de
la
Therne
being
seised
of
the
Land
,
out
of
which
the
Rent
issued
,
attorned
,
and
gave
Seisin
of
the
Rent
to
John
Dinham
,
wherby
he
was
seised
in
Fee
of
the
Rent
,
and
conveyed
the
Rent
by
three
discents
to
this
John
Dinham
,
for
whom
the
Defendant
makes
Conuzance
for
ten
shillings
for
five
years
arrear
:
And
the
Plaintiff
demurs
generally
upon
the
Conuzance
.
And
the
cause
was
,
that
it
is
not
shewn
how
John
Milleton
is
Cosin
and
Heir
to
Walter
upon
the
discent
.
First
,
if
it
be
good
as
this
Case
is
,
viz.
That
he
claimes
not
as
Cosin
and
Heir
,
but
makes
Title
under
him
by
conveyance
afterwards
:
Also
because
the
Defendant
makes
Conuzance
and
is
a
stranger
.
Secondly
,
if
it
be
but
forme
.
And
this
Case
was
argued
at
Bench
briefly
,
in
Trin.
16.
And
I
was
of
opinion
,
because
that
this
is
the
Conuzance
of
a
Bayliff
,
and
it
is
a
discent
in
one
blood
,
to
which
Dinham
is
a
stranger
,
and
because
that
a
good
Issue
might
be
taken
therupon
as
it
is
alledged
;
And
if
it
had
been
a
case
of
Bastardy
,
the
Iury
might
have
tryell
it
,
therfore
it
is
good
by
the
Common
Law
,
and
differs
from
a
Formedon
,
for
there
he
which
brings
it
is
privy
,
vide
41
Eliz.
13
,
&
14
in
a
Scire
facias
,
good
without
shewing
how
,
33
H.
6.
34.
Sir
T.
C.
Case
,
27
H.
6.
2.
4
E.
3.
43.
vide
19
E.
3.
Quare
impedit
58.
And
if
it
were
not
good
by
the
Common
Law
,
yet
it
was
but
form
,
and
aided
by
the
Statute
of
27
Eliz:
cap.
5.
vide
in
Doctor
Leifeilds
Case
,
lib:
10.
fol:
94.
And
Iustice
Winch
agreed
with
me
,
but
Warburton
to
the
contrary
,
and
argued
strongly
,
that
it
was
substance
and
was
very
materiall
,
and
he
relied
upon
the
Book
in
the
38
H
:
6.
17.
and
he
put
the
cases
of
11
H
:
6.
43.
8
H
:
6.
22.
&
2
H
:
2.
and
Wimbish
and
Talbois
case
.
Plowden
,
There
is
debate
,
and
argued
two
against
two
,
and
no
Iudgment
given
,
because
that
it
is
not
shewn
Comment.
Cosin
,
vide
2
H
:
5.
7.
a
good
Issue
,
there
is
no
such
Ancestor
,
a
generall
Demurrer
confesse
not
the
matter
,
as
in
Debt
upon
a
Bill
,
he
plead
payment
and
the
Plaintiff
demur
,
that
Demurrer
doth
not
confesse
the
payment
.
Lord
Hobart
would
not
speak
of
the
Common
Law
,
but
it
seemed
good
to
him
by
the
Statute
.
The
Title
of
the
Act
is
,
An
Act
for
furthering
of
Justice
,
Definitive
Iustice
,
and
Interlocutery
.
The
Statute
takes
not
away
form
,
but
the
intrappings
and
snares
of
form
:
No
place
where
the
Obligation
is
made
cannot
be
tried
by
them
affirmatively
.
Hough
and
Bamfields
case
matter
and
no
form
,
and
so
Dyer
319.
But
the
point
of
Cousinage
which
comes
by
videlicet
is
form
:
And
if
the
case
of
Wimbish
and
Talbois
had
been
at
this
day
it
should
bee
aided
,
and
Iudgment
for
the
Defendant
.
Pasch.
16
Jac.
Drury
versus
Fitch
.
I
arrest
thee
for
Felony
,
and
after
not
guilty
pleaded
the
Plaintiff
was
Non-suited
:
Quod
nil
capiat
per
billam
:
And
they
vouched
one
President
in
Grewstons
case
in
Ban.
Reg.
vide
,
that
now
by
the
last
Statute
,
costs
shall
be
given
to
the
Defendant
in
all
cases
where
the
Plaintiff
should
have
costs
if
he
recover
;
but
in
such
case
where
the
Plaintiff
if
he
recover
shall
not
have
costs
,
the
Defendant
upon
the
Non-suit
of
the
Plaintiff
shall
not
have
costs
.
But
it
seemed
to
Lord
Hobart
,
that
in
this
case
the
costs
are
for
vexation
,
and
this
is
more
vexation
if
he
had
no
cause
of
action
,
vide
29
H
:
8.
fol:
32.
It
is
there
resolved
,
that
an
action
lies
for
the
costs
,
notwithstanding
a
Writ
of
Error
brought
:
And
the
last
day
of
this
Term
the
Court
was
of
opinion
that
the
action
lies
for
the
words
,
for
it
is
more
then
these
,
I
charge
thee
with
Felony
,
and
if
the
Action
lies
not
,
yet
the
Defendant
shall
have
costs
,
for
it
was
such
an
Action
in
which
the
Plaintiff
ought
to
have
costs
if
he
recover
.
Vpon
motion
in
Court
by
the
direction
of
Iustice
Warburton
who
had
caused
a
Iury
to
be
drawn
,
by
reason
of
the
slendernesse
of
the
matter
,
and
for
avoiding
the
charge
of
a
speciall
Verdict
;
the
Case
was
,
A
Copyholder
was
a
Lunatick
,
and
the
Lord
committed
the
custody
of
his
Land
to
one
which
brought
an
Action
of
Trespasse
;
vide
Beverlies
case
,
Coke
lib
:
4.
the
diversity
between
a
Lunatick
and
an
Ideot
,
and
H
:
8.
Dyer
fol
:
25.
And
though
when
Guardian
in
Socage
(
as
it
was
adjudged
)
makes
a
Lease
for
years
,
his
Lessee
shall
have
an
Ejectione
firmae
,
yet
there
the
Guardian
hath
the
Interest
,
and
is
accountable
therfore
.
But
in
this
case
the
Committee
hath
no
Interest
,
but
is
as
a
Servant
appointed
by
the
Lord
to
keep
the
possession
for
him
,
who
is
not
able
to
keep
it
for
himself
.
Lord
Hobart
and
the
Court
also
agreed
,
that
the
Lord
of
a
Mannor
hath
not
power
to
commit
or
dispose
of
the
Copyhold
of
a
Lunatick
without
speciall
Custom
,
no
more
then
a
man
shall
be
Tenant
by
the
Curtesie
,
&c.
of
a
Copyhold
without
Custom
,
nor
the
Lord
cannot
commit
during
the
Minority
of
an
Infant
Copyholder
without
Custom
.
Hil.
15
Jac.
Rot.
906.
Smith
versus
Stafford
.
ANdrew
Smith
and
Anne
his
Wife
,
Richard
Stafford
Executor
of
Jeremy
Stafford
in
an
Action
upon
the
Case
,
the
Plaintiff
counts
,
that
wheras
there
was
Communication
had
of
a
Marriage
between
the
said
Anne
(
when
she
was
sole
)
and
the
said
Jeremy
,
John
Needhams
case
many
cases
are
put
,
vide
Hoes
case
,
that
a
Release
do
not
discharge
Bail
before
Iudgment
,
for
it
is
contingent
,
vide
one
Iudgment
,
Hil
:
6.
Jac.
in
the
Kings
Bench
,
Rot:
132.
Thomas
Belcher
and
Elizabeth
his
Wife
,
Edmond
Hudson
an
Action
upon
the
case
,
in
consideration
that
the
said
Elizabeth
at
his
request
would
take
one
Thomas
Mason
his
familiar
Friend
to
her
Husband
,
he
assumed
and
promised
that
if
the
said
Elizabeth
survived
the
said
Mason
,
that
he
would
pay
yearly
to
her
forty
shillings
for
her
maintenance
,
and
shews
that
therupon
she
did
take
the
said
Mason
to
her
Husband
,
and
survived
him
,
and
then
married
with
the
Plaintiff
;
the
Defendant
pleads
a
Release
from
Mason
of
all
Actions
,
Demands
,
&c.
and
it
was
adjudged
no
sufficient
release
:
But
Lord
Hobart
said
,
that
if
he
had
released
all
promises
that
would
have
discharged
the
Defendant
,
vide
4
Eliz:
Release
of
all
Actions
,
Suits
,
Quarrels
,
&c.
doth
not
release
a
Covenant
before
it
be
broken
,
but
otherwise
of
a
release
of
all
Covenants
,
as
it
appears
in
Dyer
57.
though
the
principall
case
was
a
release
of
all
Covenants
untill
such
a
day
,
and
Covenants
were
broken
before
and
not
discharged
,
for
it
being
broken
before
,
there
was
no
Covenant
as
to
that
.
Vide
Lampets
case
,
Coke
lib
:
10.
51.
the
reason
of
the
release
in
Hoes
case
was
,
because
that
it
was
contingent
and
uncertain
,
and
17
Eliz:
a
Lease
to
the
Husband
and
Wife
for
life
,
the
Remainder
to
the
Survivor
of
them
for
one
and
twenty
years
,
the
Baron
grant
it
over
and
survive
,
yet
it
is
void
,
because
it
was
contingent
.
And
the
Lord
Hobart
said
,
that
the
promise
was
released
by
the
inter-marriage
,
and
so
shall
be
in
the
case
of
an
Obligation
,
for
Fortior
est
dispositio
legis
quam
hominis
;
and
he
held
that
strongly
to
be
Law
,
but
Iustice
Winch
and
Iustice
Hutton
held
the
contrary
,
and
that
the
Law
will
not
work
a
release
contrary
to
the
intent
of
the
parties
,
and
that
the
marriage
(
which
is
the
cause
)
do
not
destroy
that
which
it self
creates
.
Trin.
6
Jac.
Jurden
versus
Stone
.
Glocest
.
EIectment
upon
a
Lease
made
by
Alice
Remington
of
a
Copyhold
in
South
Corny
;
Walter
B.
Copyholder
in
Fee
married
the
said
Alice
:
And
there
was
a
Custom
in
the
Mannor
that
the
Wife
shall
have
the
Copyhold
as
of
Franck-banck
during
her
Widowhood
,
Si
tam
diu
casta
viveret
,
and
had
used
to
challenge
it
,
and
the
Lord
granted
it
,
as
appears
by
divers
admittances
of
women
;
and
this
Wife
after
the
death
of
her
Husband
came
into
Court
,
and
challenged
her
right
of
Franck-bank
,
and
prayed
to
be
admitted
,
and
that
the
Steward
refused
,
and
she
made
a
Lease
for
one
year
to
the
Plaintiff
;
and
if
he
might
bring
this
action
,
by
reason
the
woman
was
not
admitted
(
for
it
was
agreed
that
no
Fine
was
due
to
the
Lord
)
was
the
question
.
And
upon
the
Evidence
it
was
resolved
by
the
Court
,
that
this
Estate
ariseth
out
of
the
Estate
of
the
Husband
:
And
as
Lord
Hobart
said
,
it
budded
forth
of
the
first
Estate
;
and
it
seemed
that
where
Tenant
for
life
is
admitted
,
that
shal
be
the
admittance
of
him
in
remainder
:
Also
if
the
Free-hold
of
the
Copyhold
be
granted
over
,
and
the
Husband
dies
,
there
there
cannot
be
any
admittance
,
and
yet
she
may
enter
;
and
in
this
case
if
any
admittance
had
been
necessary
,
she
had
done
all
that
she
could
do
,
and
that
amounts
to
an
admittance
in
Law
to
an
Estate
created
by
the
Custom
,
and
by
the
act
of
God
and
Law
.
A
Tenant
alieu
,
and
the
Feoffee
tender
the
services
and
gives
notice
,
the
Lord
refuse
,
this
is
sufficient
,
and
the
Lord
shall
be
compelled
to
avow
upon
him
.
Continuall
claim
amounts
to
an
entry
.
Pasch.
16
Jac.
Rot.
444.
Blands
Case
.
GEorge
Bland
brought
an
Action
upon
the
Case
against
A.
B.
the
Defendant
having
some
communication
with
one
Eagle
said
,
that
he
was
a
troublesome
fellow
,
and
he
doubted
not
but
to
see
him
indicted
at
the
next
Assises
for
Barretry
,
or
Sheep-stealing
as
George
Bland
was
,
George
Bland
was
indicted
the
last
Assises
for
stealing
of
Sheep
;
and
it
was
not
averred
that
he
was
not
indicted
,
but
that
he
was
of
good
fame
,
It
was
moved
in
Arrest
of
Iudgment
,
that
it
is
not
actionable
,
and
so
was
the
opinion
of
the
Court
,
for
it
is
not
a
direct
affirmative
:
vide
the
case
of
Steward
against
Bishop
,
before
fol.
1.
And
if
one
saies
,
I
suspect
you
for
stealing
my
Horse
.
And
Iudgment
was
given
for
the
Defendant
.
Trin.
16
Jac.
Darcy
versus
Askwith
.
JOhn
Lord
Darcy
of
Ashton
brought
an
action
of
Wast
against
Robert
Askwith
(
now
Knight
)
and
John
Marshall
,
Tisley
Close
,
two
Okes
in
Parsons
croft
;
one
Ash
in
Pinder
croft
,
and
sixty
one
Oakes
in
Preston
Lands
,
1.
Because
by
the
Lease
this
was
included
,
vide
21
H
:
6.
61.
grant
of
Conuzance
,
&c.
gives
power
to
make
a
Steward
,
tempore
E.
1.
Fitz.
41.
2
E.
2.
Bar
237.
grant
to
fish
in
a
Pond
,
yet
he
cannot
make
a
Trench
.
2.
The
Coles
are
the
Inheritance
,
and
the
bettering
of
them
is
the
bettering
of
the
Inheritance
.
3.
For
the
profit
of
the
Common-wealth
,
14
H
:
8.
18.
20
Eliz:
Dyer
361.
Altams
case
,
Trench
to
make
a
Meadow
the
better
is
no
wast
,
vide
22
H
:
6.
6.
digging
of
certain
Loads
of
Gravell
for
the
amending
of
the
Land
,
vide
12
H
:
4
,
5.
And
for
telling
,
this
ought
not
to
be
answered
any
other
way
then
by
justifying
of
the
Imployment
;
and
the
Plaintiff
may
reply
upon
the
sale
if
he
will
,
and
the
case
is
long
debated
,
5
E
:
4.
10.
vide
Dyer
37.
Malenders
case
.
And
the
last
day
of
this
Term
,
the
Lord
Hobart
declared
,
that
we
were
all
of
opinion
that
the
Plea
is
not
good
,
for
there
though
the
Lease
be
of
Mines
,
and
by
vertue
therof
the
Lessee
might
open
new
Mines
,
as
in
Sanders
case
,
Coke
lib
:
5.
fol.
12.
there
it
shall
be
intended
of
new
Mines
which
in
themselves
is
wast
,
if
it
had
not
been
by
speciall
words
;
And
the
digging
of
a
Mine
is
an
impairing
of
the
Inheritance
and
a
great
benefit
to
the
Lesses
,
and
therfore
if
Lessee
for
years
build
a
new
house
,
if
he
cut
Trees
off
the
same
Lands
for
the
making
therof
,
it
is
wast
,
17
E
:
2.
Fit
:
wast
118.
And
no
more
then
one
may
make
a
Brick
Kilne
and
burn
Brick
,
or
a
Lyme
Kilne
and
burn
Lyme
with
wood
growing
upon
the
ground
,
and
sell
the
Brick
or
Lyme
,
no
more
may
the
Defendants
in
this
case
cut
down
wood
for
the
making
and
supporting
of
these
Mines
for
Coles
which
they
sell
,
vide
41
E
:
3.
17.
And
so
Iudgment
was
given
for
the
Plaintiff
.
Edmonds
Case
.
MEmorand.
That
at
the
Assises
holden
at
Winchester
in
Lent
,
15
Jac.
one
William
Edmonds
was
indicted
of
Burglary
,
because
that
he
Burglariter
and
feloniously
did
break
the
house
of
one
Richard
Heydon
in
the
night
at
Ramsey
,
Richard
Heydon
and
Christian
his
Wife
were
both
in
Bed
and
at
rest
in
an
upper
Chamber
in
the
Mansion
house
of
the
said
Richard
Heydon
;
and
that
the
said
William
Edmonds
then
was
and
yet
is
the
Servant
and
Apprentice
of
the
said
Richard
,
and
that
he
then
lay
in
another
Chamber
of
the
said
house
,
remote
from
the
Bed-chamber
of
his
said
Master
and
Dame
,
and
that
there
was
a
Door
with
a
Latch
at
the
Stairs
foot
of
the
said
Bed-chamber
of
the
said
Heydon
,
but
none
at
the
Stair-head
being
the
entrance
into
the
said
Bed-chamber
of
the
said
Heyedon
:
We
find
that
the
said
William
at
the
said
time
in
the
Indictment
drew
the
Latch
of
the
Stair-foot
door
,
and
opened
the
said
door
being
then
latched
,
and
went
up
the
Stairs
,
and
entred
into
the
Bed-chamber
of
his
said
Master
,
with
an
intent
to
murther
the
said
Heydon
,
and
that
he
did
then
and
there
with
an
Hatchet
(
with
an
intent
to
murther
his
said
Master
)
strike
and
grievously
wound
him
,
and
gave
him
fifteen
wounds
on
the
head
,
and
other
parts
of
his
body
:
And
if
upon
the
whole
matter
,
&c.
And
this
speciall
Verdict
was
shewn
by
the
Lord
chief
Baron
Tanfield
,
unto
all
the
Iudges
of
Serjeants
Inne
in
Chancery
Lane
,
viz.
Iustice
,
Warburton
,
Crook
,
Baron
Bromely
,
Iustice
Dodderidge
,
Houghton
,
Winch
,
and
Hutton
;
And
they
all
(
besides
Winch
which
doubted
)
agreed
that
it
was
Burglary
,
and
afterwards
in
the
same
Term
,
at
a
meeting
in
Serjeants
Inne
in
Fleetstreet
it
was
shewn
to
Mountague
,
Hobart
,
and
Denham
,
which
concurred
.
Mich
,
16
Jac.
Staffords
Case
.
FAlse
Imprisonment
was
brought
by
Sir
John
Stafford
,
the
Defendant
justifie
,
And
it
was
adjudged
that
the
tryall
was
good
,
because
that
it
is
not
meerly
Record
,
but
whether
it
was
according
to
the
Custom
.
And
Non
prosecutus
est
ullum
breve
is
tryable
by
the
Country
;
Quaere
if
the
King
grant
by
Patent
to
hold
plea
under
forty
shillings
,
if
it
be
a
Court
of
Record
.
Sir
Walter
Rawleys
Case
.
MEmorand.
that
on
Friday
the
23.
of
October
,
upon
conference
between
all
the
Iustices
of
England
,
whether
a
privy
Seal
was
sufficient
,
it
being
directed
to
the
Iustices
of
the
Kings
Bench
,
to
command
them
to
award
execution
against
Sir
Walter
Rawley
(
which
was
attainted
of
Treason
at
Winchester
Mich.
1
Jacobi
,
Bishop
and
others
.
FAther
Tenant
in
tail
hath
Issue
two
Sons
,
the
Father
with
the
eldest
Son
makes
a
Feoffment
with
Warranty
,
the
eldest
Son
dies
,
Mich.
16
Jacobi
.
AN
action
of
Debt
was
brought
upon
the
Statute
of
5
Eliz.
for
perjury
against
one
that
was
produc't
as
a
Witnesse
in
an
action
of
Trespasse
,
and
deposed
falsely
:
And
upon
Nil
debet
pleaded
,
the
Plaintiff
was
non-suit
,
In
any
Action
,
Suit
,
Bill
,
upon
the
Case
,
or
upon
any
Statute
for
any
Offence
,
or
wrong
personall
immediatly
supposed
to
be
done
to
the
Plaintiff
.
The
opinion
of
the
Court
was
,
that
the
Defendant
should
not
have
costs
upon
this
non-suit
,
because
that
this
action
is
founded
upon
a
Statute
made
long
after
the
making
of
that
Statute
.
Also
this
is
not
an
immediate
wrong
to
the
Plaintiff
,
but
to
the
Secondary
for
it
is
an
immediate
wrong
to
the
truth
;
and
such
Statutes
which
are
intended
by
this
Act
,
shall
be
like
to
Trespasse
done
to
the
party
himself
,
as
Ravishment
of
Ward
:
Also
it
is
not
aided
by
the
Statute
of
4
Jacobi
cap
:
3.
for
that
gives
costs
to
the
Defendant
,
where
the
Plaintiff
shall
have
costs
if
he
recover
;
And
Mr.
Brownlow
the
Prothonatory
said
,
that
it
had
been
ruled
so
before
,
for
the
Plaintiff
should
not
have
costs
if
he
recover
,
because
the
Act
5
Eliz.
gives
a
Penalty
,
viz.
a
forfeiture
of
twenty
pounds
against
the
Witnesse
,
and
forty
pounds
against
the
Suborner
,
and
so
the
Plaintiff
if
he
had
recovered
,
should
not
have
had
any
costs
,
and
therfore
it
is
not
aided
by
the
Statute
of
4
Jacobi
.
Mich.
16
Jacobi
.
Conesbies
Case
.
THe
Lady
Conesby
,
being
the
Wife
of
Sir
Ralph
Conesby
,
was
cited
into
the
Ecclesiasticall
Court
by
Mr.
Watts
,
John
Moore
,
and
after
Serjeant
Harvy
had
said
all
that
he
could
say
.
Trin.
16
Jac.
Rot.
954.
Kind
versus
Ammery
.
KInd
Plaintiff
in
a
Replevin
against
Ammery
:
Coke
lib.
7
:
fol.
28.
implies
that
it
ought
to
be
demanded
,
but
it
is
not
issuable
,
if
it
be
at
the
day
or
after
:
And
he
said
it
was
debated
31
Eliz.
whether
it
was
form
or
substance
,
which
shall
not
need
to
be
shewn
upon
Demurrer
;
But
the
Court
agreed
that
no
actuall
demand
was
necessary
to
procede
the
Distresse
in
this
case
,
but
that
the
Distresse
is
a
demand
.
But
if
the
Grant
has
been
penned
in
this
form
,
if
it
be
arrear
at
such
a
Feast
,
and
for
a
month
after
demand
,
that
then
he
may
distrain
,
otherwise
it
is
,
for
there
the
Distresse
is
limited
to
the
month
after
the
demand
:
And
so
it
was
adjudged
in
this
Court
,
between
Coppleston
and
Langford
,
Trin.
3.
Car.
Rot.
2865.
Replevin
between
Beriman
and
Bower
,
Avowry
for
Rent
granted
out
of
ten
acres
of
Land
in
Crediton
,
payable
at
such
a
Feast
upon
the
Town
stone
,
upon
the
Key
in
Barnstable
,
if
it
be
lawfully
demanded
,
with
clause
of
Distresse
,
and
the
Distresse
was
before
demand
;
and
upon
demurrer
it
was
resolved
a
good
Distresse
without
demand
,
vide
Dyer
348.
Booton
against
the
Bishop
of
Rochester
A
Quare
impedit
was
brought
by
Booton
against
the
Bishop
of
Rochester
,
who
pleads
that
he
claims
nothing
but
as
Ordinary
,
and
yet
pleads
further
that
the
Clerk
which
the
Plaintiff
present
,
had
before
contracted
with
the
Plaintiff
Simoniacally
,
vide
Dyer
277.
quaere
.
But
in
this
case
the
Bishop
which
is
the
Defendant
is
bound
by
the
Iudgement
,
and
the
Writ
is
,
notwithstanding
the
claim
of
the
Bishop
,
that
he
admit
the
Clerk
;
and
the
Bishop
is
but
Servant
,
and
ought
to
execute
the
processe
of
the
Court
.
It
was
urged
by
Serjeant
Henden
,
one
Canon
,
Linwood
fol.
That
if
the
Church
be
vacant
when
the
Writ
comes
to
the
Bishop
,
that
he
is
bound
to
execute
the
Writ
,
but
if
it
be
full
,
then
he
certifies
the
Iustices
:
And
the
Arch-bishop
is
sworn
to
the
Canons
,
and
he
vouched
22
H
:
6.
45.
Coke
lib
:
6.
49.
and
52
Dyer
260.
F.N.B.
47.
Dyer
364.
14
H
:
7.
22.
34.
H
:
6.
41.
9
E
:
3.
Quare
non
admisit
,
18
E
:
4.
7.
Trin.
16
Jac.
Rot.
1999.
Eire
versus
Bannester
.
JOhn
Eire
brought
an
Ejectione
firmae
upon
a
Lease
made
by
Sir
Edward
Kinaston
against
Andrew
Bannester
and
Thomas
Wenlock
for
Land
in
Norwood
,
Thomas
Owen
to
the
Plaintiff
,
the
Defendant
pleads
,
that
the
Sheriff
Non
est
de
consanguinitate
of
the
Plaintiff
,
as
he
by
his
challenge
supposed
:
And
because
the
Defendant
denied
the
said
Challenge
,
John
Eire
calumnia
illa
non
obstant
,
prec
:
est
quod
ven.
fac.
&c.
And
at
the
Nisi
prius
the
Defendants
challenge
the
Array
for
consanguinity
between
the
Sheriff
and
the
Lessor
,
viz.
Sir
Edward
Kinaston
,
and
make
this
Averment
,
that
the
Sheriff
had
Issue
by
Susan
,
which
was
the
Daughter
of
Judith
,
the
Wife
of
Sir
Edward
Kinaston
;
and
conclude
it
is
a
principall
Challenge
,
and
therupon
the
Plaintiff
demurred
:
And
it
was
returned
upon
the
Postea
,
and
it
seems
that
the
Sheriff
being
admitted
and
allowed
to
be
indifferent
by
the
Defendants
in
the
same
Plea
,
they
which
allow
cannot
have
a
Challenge
to
the
Sheriff
,
for
the
Defendants
might
by
confession
of
the
surmise
of
the
Plaintiff
to
be
true
,
have
had
a
Writ
directed
to
the
Coroners
,
and
although
the
entry
is
Calumnia
illa
non
obstant
.
that
is
the
form
of
the
Award
,
and
if
he
should
be
allowed
otherwise
afterwards
to
challenge
the
Array
,
then
it
would
be
infinite
.
As
a
man
ought
to
alledge
but
one
principall
Challenge
,
though
he
hath
many
,
so
it
shall
be
peremptory
to
the
Defendant
,
and
when
he
allows
the
Sheriff
indifferent
,
that
shall
be
taken
to
be
for
all
causes
precedent
,
unlesse
it
be
of
latter
time
:
And
so
is
the
opinion
of
20
E
:
4.
2.
And
if
there
be
many
Defendants
,
if
one
challenge
the
Array
,
that
shall
be
peremptory
for
the
others
,
as
it
seems
;
for
the
others
ought
when
they
challenge
the
Tales
to
shew
cause
presently
of
the
Challenge
,
for
if
it
be
quashed
that
shall
also
be
against
them
,
vide
Dyer
201.
in
Attaint
vide
36
H.
6.
21.
that
where
one
challenge
the
Array
which
is
affirmed
,
the
other
Defendants
after
may
challenge
the
Array
of
the
Tales
.
The
second
point
is
,
if
it
be
a
principall
challenge
or
no
,
by
reason
that
the
Lessor
is
not
party
to
the
Action
,
vide
10
E
4.
12.
15
E.
4.
18.
and
21
E.
4.
61.
there
it
seems
that
where
the
Defendant
justifies
as
Servant
to
I.S.
and
that
the
Land
is
his
Free-hold
,
it
is
a
principall
challenge
that
a
Iuror
is
within
the
Distresse
of
John
S.
for
the
Title
is
to
be
tryed
:
And
now
it
was
found
by
common
experience
that
the
Less●e
is
but
Servant
;
common
recoveries
at
this
day
are
but
as
other
common
Conveyances
.
But
it
seems
that
the
Law
is
contrary
,
and
it
is
not
averred
that
this
is
a
Lease
for
trying
the
Title
;
and
(
as
Iudges
)
we
take
no
notice
therof
,
but
vide
3
H
:
7.
2.
contrary
to
the
10
and
15
E
:
4.
where
the
Challenge
is
to
the
Array
,
because
that
the
Sheriff
was
of
Kindred
to
him
whose
Free-hold
was
in
Issue
:
and
vide
9
H
:
7.
22.
Cognizance
as
Bayliff
to
the
Abbot
of
Ramsey
,
Challenge
to
the
Array
,
because
the
Sheriff
was
within
the
Distresse
of
the
Abbot
,
and
that
was
not
a
principall
Challenge
by
Fineux
,
Brian
,
and
Vavasor
,
because
that
he
was
not
party
to
the
Writ
,
vide
this
very
Case
,
Dyer
300.
And
upon
argument
at
the
Bar
the
Court
was
of
opinion
,
that
it
was
no
principall
Challenge
,
but
ought
to
have
concluded
with
the
favour
.
All
agreed
that
a
Surmise
which
is
for
prevention
of
delay
,
ought
to
contain
matter
which
is
a
principall
Challenge
,
for
no
triall
shal
be
of
such
suggestion
,
but
by
the
deniall
of
the
Defendant
or
Confession
:
And
by
the
opinion
of
Lord
Hobart
and
Iustice
Winch
cest
.
dedire
n'est
peremptory
to
the
Defendant
,
for
his
time
of
challenge
is
not
till
the
Iury
come
to
be
sworn
;
but
I
hold
the
contrary
,
because
that
he
might
have
confessed
the
Surmise
,
and
so
have
had
time
:
And
I
rely
upon
20
E
:
4.
2.
there
in
the
end
of
the
Case
it
is
said
,
that
the
Defendant
by
his
deniall
,
where
he
saies
that
the
Sheriff
is
not
favourable
,
but
indifferent
,
there
he
shall
never
have
a
challenge
for
favour
unlesse
he
shews
cause
of
later
time
.
As
to
the
second
Point
,
it
is
no
principall
Challenge
,
because
it
might
be
,
that
the
Lessor
had
granted
over
the
Reversion
,
or
that
the
Defendant
might
be
found
Not
guilty
:
And
a
principall
Challenge
ought
to
contain
such
matter
,
which
(
being
so
)
the
Law
adjudge
favourable
;
and
in
this
very
case
two
Presidents
scil.
Iudgments
more
strong
then
this
case
,
Eliz:
Rot
:
1208.
Bedforne
against
Dandy
in
an
Ejectione
firmae
upon
a
Lease
made
by
Sir
John
Digby
,
after
Not
guilty
pleaded
,
a
Surmise
made
of
consanguinity
between
the
Lessor
and
the
Sheriff
,
&c.
confessed
,
and
therupon
a
Venire
facias
to
the
Coroners
,
and
after
the
Challenge
was
adjudged
insufficient
,
and
a
Venire
facias
likewise
to
the
Sheriff
was
ruled
,
Jac.
Rot.
2284.
Craddock
against
Wenlock
,
in
an
Ejectione
firmae
upon
a
Lease
made
by
Sir
Robert
Cotton
,
such
Challenge
and
Award
to
the
Coroners
,
and
tryed
and
adjudged
a
mis-tryall
;
and
a
Venire
facias
awarded
to
the
Sheriff
,
and
the
mis-tryall
is
not
aided
by
the
Statute
,
vide
Coke
lib
:
5.
Bainhams
case
:
And
so
by
the
Iudgment
of
the
Court
this
Challenge
was
insufficient
;
and
Warburton
being
then
sick
was
of
the
same
opinion
,
as
he
told
me
,
vide
8
Eliz:
Dyer
281.
Austen
and
Baker
in
Attaint
,
vide
33
H.
6.
21.
3.
Defendants
,
one
challenge
the
Array
of
the
Principall
,
and
that
being
affirmed
the
other
Defendants
challenge
the
Tales
.
Mich.
16
Jac.
Easington
versus
Boucher
.
John
Boucher
,
Turner
,
Bolder
,
and
one
other
;
Turner
appear
and
tender
his
Law
,
Sir
John
Boucher
and
another
plead
Nil
debent
,
and
the
other
was
Outlawed
;
and
it
was
said
,
that
he
ought
to
have
joyned
,
but
it
was
resolved
by
the
Court
that
they
may
sever
in
Bars
,
but
ought
to
joyn
in
Delatories
;
For
otherwise
if
one
which
never
bargained
be
joyned
in
the
action
,
he
must
put
his
matter
upon
their
pleadings
.
And
in
Debt
upon
a
joynt
Obligation
,
one
may
plead
a
Release
,
the
other
Non
est
factum
,
vide
48
E
:
3.
21.
and
vide
Presidents
in
this
case
according
to
this
resolution
,
Eliz:
Rot
:
821.
Sabud
against
Robinson
,
Matson
,
and
Loughton
,
and
Count
sur
emisset
,
Waston
and
Loughton
pleaded
,
and
Non
sum
informatus
by
Robinson
,
Sed
judicium
inde
cesset
quousque
,
the
Issue
be
tryed
,
and
Venire
facias
awarded
and
found
for
the
Plaintiff
,
Eliz:
Rot
:
455.
John
Periam
and
Margaret
his
wife
,
Executors
of
John
Hart
vrought
an
action
of
Debt
upon
Emisset
against
Thomasin
Phelpes
Widdow
,
Henry
Pittard
,
and
John
Phelpes
:
John
Phelpes
was
Outlawed
,
and
Iudgment
against
Henry
P.
by
Non
sum
informat
.
and
Thom:
P.
plead
Nil
debet
,
quousque
&c.
and
after
tryall
the
Plaintiff
had
Iudgment
.
Hil
:
13
Jac:
Rot
:
841.
Fleet
brought
an
action
of
Debt
against
Ja:
Harrison
,
and
Isaac
.
Brooke
upon
Emissent
:
And
James
H.
waged
his
Law
,
&
Iudgment
against
Isaac
.
Brooke
by
nihil
dicit
.
Et
quia
Conveniens
est
quod
judicium
de
loquela
praedicta
unicum
sit
versus
praedictos
Isaac
.
&
Jacobum
si
contingat
ipsum
Jacob.
de
perficiend
.
legem
suam
praedictam
desicere
,
Ideo
parcat
in
judicium
inde
versus
praefatum
Isaac
.
reddendum
quosque
praedictus
Jacobus
legem
praedictam
perficeret
,
sive
inde
desiceret
&
postea
praedictus
Jacobus
perfecit
legem
suam
.
Ideo
consideratum
est
per
Curiam
quod
praedictus
querens
nihil
capiat
per
breve
suum
praedictum
sed
sit
in
miserecordia
pro
falso
clamore
suo
inde
,
&
quod
praedictus
Jacobus
eat
inde
sine
die
.
And
according
to
this
President
it
was
agreed
per
Curiam
that
so
it
ought
to
be
.
Hil.
12
Jac.
Rot.
3007.
Reyner
versus
Waterhouse
.
Ebor.
JOhn
Reyner
brought
an
action
upon
the
case
against
L
:
Walterhouse
,
Long
Leverseidge
in
the
Parish
of
Burstall
:
And
wheras
the
Inhabitants
of
Long
Leverseidge
aforesaid
,
De
tempore
cujus
contrarii
memoria
hominum
;
&c.
used
to
have
a
common
way
as
well
for
Foot-men
as
for
Horse-men
,
to
go
and
ride
from
the
said
Town
of
L.
to
the
Parish
Church
of
Burstall
aforesaid
,
on
Lords
daies
,
and
Festivall
daies
,
and
other
convenient
times
to
hear
Divine
Service
within
the
said
Church
;
and
to
carry
bodies
,
&c.
dying
in
the
said
Town
,
to
the
said
Church
to
be
interred
,
Modo
&
forma
sequent
.
viz
&c.
and
shews
the
way
through
divers
Closes
in
Long
Leverseidge
,
Little
Leverseidge
,
and
Gomersall
,
and
over
the
Church-yard
of
the
Church
of
Burstall
,
and
from
thence
unto
the
Church
aforesaid
,
and
backward
,
&c.
and
shew
one
disturbance
made
by
the
Defendant
by
making
of
a
Ditch
in
one
of
the
Closes
in
Gomersall
;
the
Defendant
pleaded
Non
culpab
:
and
found
for
the
Plaintiff
;
and
in
Arrest
of
Iudgment
it
was
alledged
that
the
Venire
facias
fuit
de
Gomersall
tant
.
And
the
Venire
facias
was
quashed
per
Curiam
,
and
a
new
one
awarded
de
L.L.G.
&
Burstall
.
Hil.
16
Jac.
Bigg
versus
Malin
.
BIgg
brought
an
action
upon
the
Case
against
Malin
,
But
it
seemed
to
be
agreed
,
that
if
an
Executor
or
Administrator
which
hath
not
Assets
,
makes
promise
of
payment
,
if
it
be
not
mixed
with
any
profit
to
himself
,
viz.
forbearance
,
&c
:
there
it
shall
not
charge
him
.
But
by
Warburton
,
if
an
Executor
hath
fifty
pounds
Assets
,
and
he
promise
to
pay
to
a
Creditor
a
hundred
pounds
,
that
shall
bind
him
for
all
,
for
when
he
hath
Assets
for
part
,
the
Plaintiff
hath
Iudgment
for
all
,
and
execution
only
for
so
much
as
is
found
.
And
in
this
case
the
Plaintiff
had
Iudgment
.
Brook
versus
Groves
.
BRook
brought
a
Quod
permittat
against
Groves
,
and
after
Imparlance
the
Defendant
demanded
a
view
,
and
ruled
by
the
Court
that
he
might
,
and
vide
34
H
:
6.
9
,
10.
accordant
,
vide
6
E.
4.
1.
and
the
Plea
,
Egerton
versus
Egerton
.
THe
Lady
Egerton
Wife
of
Sir
John
Egerton
,
brought
a
Writ
of
Dower
against
Edward
Egerton
,
the
Tenant
at
the
day
of
Essoin
did
not
cast
any
Essoin
:
And
the
Demandant
entred
her
exception
,
&
at
that
time
the
Writ
was
not
returned
,
and
upon
motion
to
the
Court
for
the
tenant
to
be
essoined
notwithstanding
the
exception
,
And
Warburton
said
,
that
if
the
Essoin
be
not
cast
before
the
return
of
the
Writ
,
it
ought
not
to
be
at
all
,
for
all
Writs
come
in
by
Post
diem
.
Cardinals
Case
.
CArdinall
an
Attorney
of
this
Court
of
Common
Bench
,
I.
B.
for
saying
of
him
,
That
he
had
forged
the
last
Will
of
I.
S.
and
after
Issue
upon
not
guilty
,
it
was
found
for
the
Plaintiff
:
And
moved
in
Arrest
of
Iudgment
,
Pasch.
17
Jac.
Allaboyter
versus
Clifford
.
Suff.
JOhn
Allaboyter
brought
an
action
of
Debt
upon
an
Obligation
against
Daniel
Clifford
,
which
was
with
a
Condition
,
George
Andrews
Case
.
VPon
a
Habeas
Corpus
,
one
George
Andrews
was
brought
to
the
Bar
,
and
upon
a
long
return
by
the
Mayor
,
Aldermen
,
and
Sheriffs
of
London
,
William
Andrews
a
Free-man
having
one
Son
and
one
Daughter
by
Emery
his
Wife
died
,
this
George
Andrews
a
Free-man
being
Suitor
to
the
Wife
before
marriage
agreed
,
that
if
the
Wife
would
marry
him
,
she
should
dispose
of
two
hundred
pounds
,
&c.
and
he
was
bound
in
a
Statute
to
permit
and
suffer
her
to
make
her
Will
,
and
dispose
therof
;
and
after
she
died
,
and
by
her
Will
gave
a
hundred
pounds
to
her
Son
,
and
a
hundred
pounds
to
her
Daughter
,
and
the
said
G.A.
agreed
to
her
Will
,
and
yet
refused
to
give
security
to
the
Chamberlain
of
London
to
pay
it
at
the
day
appointed
by
the
Will
,
pretending
that
he
was
bound
by
Statute
to
the
Friends
of
the
Orphans
to
perform
it
:
And
by
the
Court
he
was
remanded
,
for
it
is
a
laudable
Custom
,
and
the
voluntary
Obligation
upon
marriage
is
not
any
discharge
as
to
the
security
by
the
Custom
,
and
we
will
not
disparage
the
Government
of
the
Citty
.
Trin.
16
Jac.
Wolfe
versus
Heydon
.
London
.
THomas
Wolfe
Administrator
of
the
Goods
and
Chattels
of
John
Aldrich
,
durante
minore
aetate
of
Edward
Aldrich
,
William
Aldrich
,
and
other
Children
of
the
said
John
not
administred
by
John
Talbot
,
Executor
of
John
A
,
or
by
Robert
Armiger
late
Administrator
of
the
said
Goods
and
Chattels
during
the
minority
of
the
said
Children
not
administred
,
Simon
Heydon
,
and
count
upon
an
Obligation
of
fifty
pounds
,
wherof
ten
pounds
was
satisfied
to
John
Aldrich
in
his
life
,
and
counts
that
John
Talbot
was
made
his
Executor
and
died
;
and
that
the
money
was
neither
paid
unto
the
said
John
Aldrich
the
Testator
in
his
life
,
nor
to
John
Talbot
the
Executor
in
his
life
,
nor
to
the
said
Robert
Armiger
late
Administrator
of
the
Goods
and
Chattels
of
the
said
John
Aldrich
,
during
the
minority
of
the
Children
;
and
he
produce
Letters
of
Administration
,
and
aver
that
the
Children
were
within
the
age
of
seventeen
years
.
The
Defendant
plead
in
Bar
,
that
the
said
Aldrich
before
this
Writ
purchased
,
viz.
such
a
day
at
S.
in
the
Parish
,
&c.
made
his
Will
and
constituted
John
Talbot
his
Executor
,
Qui
suscepit
onus
inde
,
and
administred
divers
Goods
as
Executor
,
and
after
,
viz.
such
a
day
,
the
said
John
Talbot
made
Benjamin
Roblet
his
Executor
,
and
died
,
and
Roblet
suscepit
onus
testament
,
and
did
administer
,
and
demand
Iudgment
si
actio
,
&c.
The
Plaintiff
reply
and
confesse
that
John
Aldrich
made
John
Talbot
his
Executor
,
and
that
he
administred
and
made
Roblet
his
Executor
:
But
he
saies
,
that
the
said
John
Talbot
did
not
prove
the
Will
of
the
said
John
Aldrich
according
to
the
Ecclesiasticall
Law
;
and
that
the
said
Benjamin
before
that
he
took
the
charge
of
the
Testament
of
John
Talbot
renounced
before
the
Ordinary
to
be
Executor
of
the
said
John
Aldrich
,
or
to
administer
any
of
the
Goods
which
were
the
Goods
of
the
said
Iohn
Aldrich
,
or
to
have
any
thing
to
do
therwith
:
And
therupon
the
Defendant
demurs
,
and
Iudgment
was
given
for
the
Plaintiff
.
And
in
this
case
the
Court
well
agrees
with
the
replication
,
for
he
was
Executor
before
probate
,
to
pay
Debts
and
to
be
sued
,
but
not
to
have
an
action
,
though
that
originally
the
probate
was
temporall
:
and
it
is
no
plea
in
our
Law
,
scil.
that
he
did
not
prove
the
Will
,
but
that
he
was
not
Executor
:
And
of
late
times
our
Law
for
the
encreasing
of
the
credit
,
and
for
the
inforcing
of
the
Probate
,
do
disallow
actions
brought
before
the
Probate
,
vide
the
Case
upon
which
it
was
principally
insisted
,
22
,
23
Eliz.
Dyer
272.
a.
Isted
against
Stanley
;
If
an
Executor
dies
before
Probate
,
and
if
the
residue
of
the
Goods
be
devised
to
him
,
then
Administration
shall
he
committed
to
his
Executor
,
or
otherwise
to
the
next
of
the
blood
of
the
first
Testator
,
for
now
he
dies
intestate
:
And
although
it
be
one
dying
intestate
of
the
first
Testator
in
Law
,
yet
if
being
the
reall
and
speciall
matter
it
agrees
well
with
his
Writ
,
and
is
matter
in
Law
,
scil.
to
some
purposes
he
dies
intestate
,
and
to
others
not
,
for
he
had
power
to
release
,
to
pay
Debts
,
and
to
take
a
release
,
vide
Dyer
367.
a
,
It
seems
that
his
Executor
shall
have
his
Legacy
.
But
the
Count
is
cu●bred
with
the
Administration
committed
to
Armiger
,
and
it
doth
not
appear
how
it
was
dischrrged
,
for
it
is
only
that
the
money
was
not
paid
to
him
late
Administrator
,
and
it
is
good
,
and
the
action
is
brought
according
to
the
Letters
of
Administration
to
him
,
which
were
of
the
Goods
not
administred
by
John
Talbot
,
nor
by
Armiger
which
was
Administrator
.
Coppledick
versus
Tansey
.
Linc.
FRancis
Coppledick
Plaintiff
in
a
Quare
impedit
against
Samuel
Tansey
Clerk
,
Sir
Philip
Tirivint
Baronet
,
Francis
Coppledick
was
seised
of
the
Advowson
in
Fee
,
and
that
it
was
holden
in
Socage
;
Tansey
plead
that
he
is
Parson
imparsonee
of
the
presentment
of
the
said
Sir
Philip
,
and
demand
Oyer
of
the
Writ
,
and
plead
that
at
the
day
of
the
Writ
purchased
there
was
no
such
Richard
Bishop
of
Lincoln
in
rerum
natura
,
and
demands
Iudgment
of
the
Writ
:
Sir
Philip
plead
that
there
is
no
such
Church
called
Ulceby
in
the
County
of
Lincoln
,
and
demand
Iudgment
of
the
Writ
.
The
Plaintiff
●emur
upon
the
plea
of
the
Incumbent
and
as
to
the
plea
of
Sir
Philip
,
he
reply
,
that
there
is
such
a
Church
called
Ulceby
in
the
County
of
Lincoln
;
and
this
plea
being
tryed
at
Lincoln
,
before
Baron
Bromley
,
it
was
found
for
the
Defendant
:
for
there
was
an
union
of
the
Church
of
Fordington
to
Ulceby
,
and
it
was
called
Ulceby
cum
Fordington
:
And
it
was
said
that
Institutions
and
presentments
were
to
Ulceby
;
and
Ulceby
was
the
greater
,
and
Fordington
was
the
lesser
Church
,
and
united
,
and
therin
had
lost
its
name
.
It
was
agreed
,
that
it
being
known
by
the
one
or
by
the
other
name
,
had
been
sufficient
to
have
found
for
the
Plaintiff
.
Serjeant
Harris
moved
in
Arrest
of
Iudgment
,
that
it
being
tryed
Per
Venire
facias
de
vicineto
de
Ulceby
,
it
was
mis-tryed
,
for
when
Nul
tiel
vill
.
is
pleaded
,
it
shall
be
tryed
per
Corpus
Commitatus
,
8
H.
6.
38
H.
8.
&
24
E.
4.
4
:
Fitz.
visne
27.
And
he
vouched
45
E.
3.
6.
where
such
an
Issue
was
tryed
,
but
it
did
not
appear
how
the
Venire
was
awarded
.
And
at
the
first
time
of
this
motion
it
appeared
,
prima
facie
,
to
be
a
mis-tryall
.
Bawtry
at
another
day
moved
it
,
and
said
,
that
the
Writ
is
Quod
permittant
presentare
,
to
the
Church
of
Ulceby
,
and
the
Count
according
therwith
,
it
is
to
be
intended
a
Town
or
Parish
:
And
he
resembled
it
to
the
case
of
an
Appeal
against
one
by
the
name
of
I.
S.
of
Dale
,
Carpenter
,
and
he
traversed
that
he
was
not
dwelling
at
Dale
,
and
it
was
a
good
tryall
from
Dale
:
And
of
,
in
,
and
at
,
are
all
one
;
but
said
,
that
in
the
Count
it
is
said
,
that
Edward
Coppledick
died
at
Ulceby
:
And
all
the
Court
agreed
that
it
is
a
good
tryall
,
and
that
it
is
admitted
that
there
is
such
a
Town
,
and
the
Writ
implies
it
:
And
Iudgment
for
the
Defendant
.
Smith
versus
Linsey
.
Michael
Linsey
late
Sheriff
of
Kent
,
by
Smith
,
reciting
,
that
wheras
he
had
recovered
a
hundred
pounds
against
Sir
Richard
Potham
,
and
had
sued
a
Scire
facias
,
the
Defendant
being
Sheriff
,
returned
that
he
levyed
sixty
and
three
pounds
which
he
had
ready
at
the
day
,
de
son
Office
,
and
to
know
why
he
should
not
have
Execution
against
him
of
the
said
summ
,
with
which
he
had
charged
himself
by
his
return
;
and
the
Defendant
demurred
,
and
upon
reading
of
the
Record
,
Iudgment
for
the
Plaintiff
,
according
to
the
case
,
9
E
4
50.
vide
F.N.B.
165.
34
H.
6.
36.
a.
and
5
E.
3.
53.
Fitz.
Execution
101.
And
between
Richards
and
Speak
,
it
was
adjudged
in
this
Court
,
that
Debt
lies
against
the
Sheriff
,
that
hath
charged
himself
by
his
return
,
that
he
hath
levied
the
money
.
PAragrin
Cony
awows
(
in
a
Replevin
brought
by
Sir
Thomas
Cony
his
Brother
)
for
twenty
marks
per
annum
,
granted
to
him
by
the
will
of
his
Father
for
life
,
to
commence
after
the
end
of
eight
years
contained
in
the
Will
,
and
in
the
Will
no
mention
is
made
of
any
eight
years
,
and
that
was
averred
,
and
by
the
opinion
of
the
Court
it
ought
to
commence
presently
.
Trin.
17
Jacobi
.
Smith
versus
Sir
John
Boucher
.
Mich.
16
Jac.
Rot.
3339.
London
1.
EDward
Smith
brought
a
Writ
of
Annuity
against
Sir
John
Boucher
,
Thomas
Jones
de
placito
quod
red
.
ei
120
l.
and
Count
that
the
Defendants
by
their
Deed
(
shewn
in
Court
)
reciting
that
wheras
the
King
(
by
his
Letters
Patents
)
had
granted
to
them
,
William
Turner
certain
Priviledges
and
Licenses
concerning
the
making
of
Allome
within
this
Realm
,
and
within
the
Realm
of
Ireland
for
twenty
seven
years
,
for
the
Councell
given
before
by
him
to
the
Defendant
(
he
being
Counsellor
at
Law
)
concerning
the
drawing
of
the
Letters
Patents
:
And
for
his
Councell
to
be
given
afterwards
,
granted
to
him
the
said
annuall
summ
of
40
l.
for
26
years
next
,
payable
at
Midsomer
and
Christmas
.
The
Defendants
plead
that
the
King
granted
the
sole
,
making
of
Allome
to
them
as
in
the
Letters
Patents
,
and
confesse
the
grant
of
the
Annuity
to
the
Plaintiff
by
Deed
indented
,
one
part
wherof
sealed
with
the
Seal
of
the
Plaintiff
they
show
,
&c.
But
further
said
,
that
the
said
Annuity
was
granted
Percipend
.
extra
clara
lucra
&
proficua
,
which
accrue
to
them
by
the
making
of
Allome
:
And
they
aver
,
that
no
clear
gaines
or
profits
have
accrued
to
them
,
or
any
of
them
by
the
making
of
Allome
,
since
the
making
of
the
said
Indenture
,
wherupon
the
Plaintiff
demur
.
1.
And
Iudgment
was
given
for
the
Plaintiff
,
for
it
is
one
good
Grant
of
an
Annuity
to
charge
their
persons
:
And
so
of
a
Grant
of
an
Annuity
to
be
paid
out
of
such
Coffers
or
Bags
,
vide
9
H.
6.
Margery
Parkers
case
,
vide
22
H.
6.
12.
2.
Also
the
limitation
is
to
perceive
of
the
clear
gaines
,
and
plead
it
by
the
Counter-part
of
the
Indenture
,
and
that
ought
not
to
be
,
but
they
should
have
demanded
Oyer
of
the
Deed
,
and
then
either
demur
or
plead
that
the
same
Deed
was
granted
over
,
&c.
3.
It
is
not
averred
that
no
other
person
received
or
made
any
clear
gain
,
but
only
that
the
Defendant
made
no
clear
gain
.
Burglary
.
MEmorand.
At
the
Assises
holden
at
Winchester
in
the
last
Circuite
,
before
the
Lord
chief
Baron
Tanfield
(
it
being
the
third
Circuite
which
I
went
with
him
:
)
It
was
a
question
,
whether
one
which
had
a
Shop
in
the
dwelling
house
of
another
,
and
he
which
had
the
Shop
work'd
therin
in
the
day
,
but
never
lodged
there
,
and
yet
he
had
a
house
out
of
the
Shop
to
the
Street
,
if
this
Shop
be
broken
in
the
night
,
and
divers
Goods
stoln
out
therof
:
if
,
it
be
Burglary
.
&
ergo
no
Burglary
,
but
ordinary
Felony
.
Mich.
15
Jac.
Adavis
versus
Flemming
.
Thou
hast
forsworn
thy self
before
the
Councell
in
the
Marches
(
innuendo
in
the
Marches
of
Wales
)
in
a
Suit
which
I
have
there
,
and
I
will
sue
thee
for
Perjury
.
Mich.
17
Jac.
Bayshaw
versus
Walker
.
Thou
art
a
filtching
Fellow
,
and
didst
filtch
four
pounds
from
me
;
And
after
Verdict
for
the
Plaintiff
it
was
moved
in
Arrest
of
Iudgment
,
that
the
words
were
not
actionable
:
And
so
the
Court
resolved
,
for
the
word
siltching
is
dubious
,
and
may
be
by
Cousenage
,
by
shifting
,
by
deceit
,
and
is
not
Felony
but
by
Implication
;
and
it
is
not
good
to
enlarge
actions
for
words
,
Plaintiff
Nil
capiat
per
breve
.
Green
versus
Harrington
.
PEter
Green
brought
an
action
upon
the
case
against
Thomas
Harrington
,
and
counts
,
that
wheras
the
Defendant
such
a
day
was
indebted
to
him
in
ten
pounds
for
the
rent
of
one
House
and
land
which
he
had
demised
to
him
for
one
year
then
past
,
the
Defendant
promised
to
pay
it
upon
request
;
and
upon
issue
Non
Assumpsit
,
it
was
found
for
the
Plaintiff
,
and
moved
in
Arrest
of
Iudgment
by
Chibborn
,
that
no
action
lies
upon
this
promise
,
because
it
is
Debt
for
the
rent
for
Land
;
and
the
Assumpsit
is
of
a
lesse
nature
,
as
if
one
he
indebted
upon
an
Obligation
,
and
that
being
forfeited
,
he
promised
to
pay
it
,
no
action
lies
,
for
the
Debt
is
due
upon
the
Obligation
:
Lincoln●
Inne
in
Banco
Regis
.
Trin.
17
Jac.
Rot.
1849.
Castilion
versus
Smith
.
AN
action
of
Covenant
was
brought
by
Sir
Edward
Castilion
against
Thomas
Smith
as
Executor
,
De
bonis
testatoris
.
Iohnson
and
Barker
.
&
a
breach
assigned
by
act
done
by
the
Executors
;
and
after
Verdict
it
was
moved
if
Iudgment
should
be
De
bonis
propriis
,
by
reason
the
breach
was
made
by
the
Executors
:
And
it
was
resolved
that
it
should
be
de
bonis
testatoris
.
And
where
the
Writ
is
in
the
Detinet
only
,
there
the
Iudgment
shall
be
de
bonis
testatoris
,
vide
the
like
Iudgment
,
Hil.
33
Eliz.
Rot
:
1143.
between
Johnson
and
Barker
.
Pies
Case
.
PIe
exhibited
an
Information
upon
the
Statute
of
the
35
of
Eliz.
for
converting
of
a
house
in
London
into
many
dwelling
houses
;
and
upon
Not
guilty
pleaded
,
the
Defendant
is
found
guilty
.
But
be
cause
the
said
Statute
is
discontinued
by
the
43
Eliz
;
Eliz.
cap.
5.
was
the
question
.
The
words
of
the
Statute
are
,
if
any
Informer
willingly
delay
his
Suit
,
or
discontinue
,
or
be
non-suited
,
or
shall
have
the
matter
,
or
the
tryall
passe
against
him
by
Verdict
or
Iudgment
in
Law
,
he
shal
pay
costs
.
1.
Object
.
It
was
objected
,
that
this
Statute
doth
not
extend
but
only
to
penall
Statutes
which
then
were
in
Esse
.
Answ.
To
which
it
was
answered
by
the
Court
,
that
this
Statute
was
a
perpetuall
direction
to
all
Informers
.
2.
Object
.
It
was
objected
,
that
if
there
be
no
Statute
,
then
there
is
no
Informer
.
3.
Object
.
In
this
case
Verdict
is
sound
for
the
Informer
,
and
he
may
be
presumed
to
be
ignorant
:
And
there
is
no
reason
that
he
shall
pay
costs
for
default
of
his
Councell
.
4.
Object
.
There
is
no
Iudgment
against
him
,
but
that
the
Defendant
eat
inde
sine
die
;
and
that
is
no
other
then
an
exception
in
stay
of
Iudgment
:
Eliz.
Banco
Regis
;
there
upon
an
Information
against
Keldridge
,
and
another
upon
the
Statute
of
35
H.
8.
for
not
inclosing
Woods
,
but
suffering
them
to
lye
open
after
cutting
by
the
space
of
one
month
:
he
alledged
the
cutting
the
tenth
of
April
,
and
the
lying
open
untill
the
second
of
May
,
which
was
not
a
month
:
And
upon
Not
guilty
pleaded
,
it
was
found
for
the
Plaintiff
;
and
upon
motion
in
Arrest
of
Iudgment
,
it
was
awarded
that
the
Defendant
eat
inde
sine
die
,
and
no
costs
.
And
the
Lord
Hobart
said
,
that
this
Statute
was
made
for
the
ease
of
the
Subject
,
and
for
avoiding
and
preventing
of
vexations
,
and
therfore
did
enumerate
all
the
cases
in
which
the
Informer
could
not
prevail
,
and
had
many
words
that
the
Statute
of
23
of
H.
8.
or
any
other
Statute
doth
not
give
expresly
costs
upon
demurrer
;
and
this
is
not
within
23
H.
8.
if
upon
discontinuance
:
And
now
the
matter
passe
against
the
informer
,
be
it
by
Verdict
or
Iudgment
,
all
is
one
,
for
the
makers
of
this
Statute
intended
to
curb
all
vexatious
Informers
:
And
if
it
shall
be
suffered
that
Informers
may
inform
upon
Statutes
not
in
force
,
and
pay
no
costs
,
that
would
open
a
Window
to
the
great
vexation
of
the
Subjects
.
And
for
Presidents
not
inflicted
upon
,
they
are
of
little
esteem
.
And
I
concurred
,
and
though
Verdict
be
found
for
the
Informer
,
yet
there
being
no
Statute
there
can
be
no
Offence
,
and
it
is
in
Law
as
not
guilty
;
And
this
case
is
within
the
meaning
and
Letter
of
the
Statute
,
for
the
Statute
intend
costs
where
the
cause
passe
against
the
Informer
,
be
it
by
default
of
matter
or
form
.
Winch
doubted
of
this
speciall
case
,
because
the
matter
is
found
for
the
Informer
;
but
he
agreeh
if
it
were
upon
Iudgment
;
upon
demurrer
or
speciall
Verdict
,
costs
should
be
given
.
And
Iustice
Warburton
was
of
opinion
,
that
there
should
be
no
costs
in
this
case
,
for
he
is
not
capable
to
sue
where
the
Statute
is
discontinued
:
And
so
if
the
Venue
be
misawarded
,
and
he
said
,
that
he
had
conference
with
the
Lord
chief
Baron
,
who
also
held
that
there
should
be
no
costs
in
this
case
:
And
so
the
matter
rests
.
Blackburnes
Case
.
Norff.
AN
action
of
Debt
was
brought
by
I.
S.
against
Blackburne
upon
a
Lease
for
a
year
,
and
so
from
year
to
year
;
And
upon
Nil
debet
pleaded
,
the
Iury
gave
a
speciall
Verdict
to
this
effect
.
And
the
sole
question
was
,
whether
it
be
a
term
for
years
in
the
Wife
,
and
whether
(
when
she
takes
Husband
)
he
shall
have
it
after
the
death
of
his
Wife
;
and
it
was
ruled
clearly
that
it
is
,
and
it
being
by
Will
it
is
a
good
Lease
.
Another
question
was
,
if
this
trust
of
Education
be
Quasi
a
Limitation
personall
,
and
with
intent
that
the
Lease
shall
not
be
to
the
Wife
any
longer
then
she
may
educate
her
Daughter
:
And
it
was
agreed
that
it
was
not
,
for
any
one
may
educate
her
,
and
find
her
at
School
,
and
there
it
is
without
any
default
in
the
Wife
,
for
it
is
the
act
of
God
;
and
therfore
Judgment
for
the
Plaintiff
.
Trin.
17
Jac.
Whittingtons
Case
.
IVdgment
in
Debt
against
Ferdinand
Earl
of
Derby
,
I.
Whittington
,
and
his
Wife
(
she
being
Administrator
to
her
Husband
who
had
the
Iudgment
)
who
brought
a
Sci.
fac
.
upon
the
Iudgment
against
30.
Ter-tenants
,
they
appear
and
all
besides
3.
plead
,
that
at
the
time
of
the
Iudgment
Ferdinand
the
Earl
was
seised
in
tail
,
&c.
And
the
Plaintiff
had
Iudgment
against
the
three
with
a
cesset
executio
;
and
afterwards
Whittington
the
Husband
died
,
and
this
is
surmised
and
entred
vpon
Record
,
viz.
the
death
of
the
Baron
after
the
Darrein
continuance
;
and
whether
the
Writ
shall
abate
or
no
,
was
the
question
:
And
per
totam
Curiam
the
Writ
shall
abate
,
for
the
Wife
there
cannot
recover
as
a
Feme
sole
;
and
though
this
Writ
be
judiciall
,
yet
it
is
in
nature
of
an
Originall
,
for
she
might
have
had
an
action
of
debt
upon
the
Iudgment
,
and
ought
to
have
that
action
solely
after
the
year
,
untill
the
Statute
of
Westminster
2.
which
give
Scire
facias
,
and
to
this
Writ
they
may
plead
:
But
in
Writs
Iudiciall
,
which
are
only
Writs
for
the
doing
of
execution
,
there
the
death
of
one
shall
not
abate
it
,
vide
19
Ass.
10.
&
25
E
:
3.
and
vide
Reads
case
,
Coke
lib
:
10.
fol.
134.
Ruggles
Case
.
IN
Ruggles
Case
,
upon
the
motion
of
Serjeant
Arthure
,
upon
the
Statute
of
1
Jacobi
cap.
15.
concerning
Bankrupts
,
That
it
shall
be
lawfull
for
any
of
the
Creditors
of
the
Bankrupt
within
four
months
after
the
Commission
sued
forth
,
and
till
distribution
shall
be
made
by
the
said
Commissioners
,
for
the
payment
of
the
Bankrupts
Debts
,
as
in
such
case
hath
been
used
,
to
partake
and
joyn
with
other
Creditors
that
shall
sue
out
the
said
Commission
,
the
said
Creditors
so
joyning
,
to
contribute
to
the
charges
of
the
said
Commission
,
and
if
the
Creditors
came
not
in
within
four
months
,
then
the
Commissioners
to
have
power
to
distribute
.
It
was
resolved
,
that
the
Commissioners
may
sell
and
prepare
for
distribution
presently
upon
the
execution
of
the
Commission
;
but
untill
the
four
months
are
passed
,
they
may
not
proceed
to
distribution
;
for
the
Creditors
which
inhabite
in
the
remote
part
of
the
Realm
,
peradventure
cannot
have
notice
:
and
it
may
be
carried
so
secretly
,
that
if
they
might
distribute
presently
,
that
they
which
sued
out
the
Commission
should
be
only
satisfied
,
when
indeed
there
was
no
default
in
the
others
.
Also
it
was
resolved
,
that
the
offer
of
Creditors
to
be
joyned
,
and
before
they
be
partakers
,
is
not
an
affectuall
offer
,
without
offering
to
be
contributory
to
the
charges
:
But
to
offer
any
particular
summ
,
is
not
necessary
,
because
they
know
not
what
summ
is
disbursed
,
and
that
is
to
be
assessed
by
the
Commissioners
.
And
the
words
(
for
the
charge
of
the
Commission
)
is
to
be
extended
to
all
charges
arising
in
suing
forth
the
Commission
,
and
in
execution
and
defence
therof
.
Also
it
was
resolved
,
that
at
any
time
before
the
distribution
made
,
they
may
come
and
pray
to
be
joyned
:
But
after
the
four
months
passed
,
and
any
distribution
made
(
though
it
be
but
of
part
)
then
they
come
too
late
:
For
by
this
means
the
distribution
which
is
made
,
and
wherby
some
of
the
Creditors
shall
receive
more
,
shall
be
utterly
avoided
,
and
another
proportion
made
,
which
was
not
the
intent
of
the
Statute
.
Pasch.
18
Jac.
Mason
versus
Thompson
.
I
charge
thee
with
Felony
for
taking
money
forth
from
Iohn
Spaci's
Pocket
,
and
I
will
prove
it
.
First
,
because
that
it
is
not
any
direct
affirmative
that
he
is
a
Felon
;
and
for
that
he
vouched
a
case
(
as
he
said
)
adjudged
in
the
Kings
Bench
,
Masters
,
bear
Witnesse
that
he
is
a
Theef
.
The
second
reason
was
,
because
that
the
matter
subsequent
do
not
contains
matter
which
must
of
necessity
be
Felony
,
but
stands
indifferent
:
For
if
it
be
not
privily
and
secretly
,
it
is
not
Felony
;
and
it
may
be
by
way
of
sport
,
or
trespasse
:
For
as
one
said
,
That
he
is
a
Theef
,
and
stole
his
Timber
,
it
is
not
actionable
,
for
it
might
be
Timber
cut
,
or
Timber
growing
:
so
to
say
,
That
he
stole
his
Corn
or
his
Apples
,
or
his
Hope
:
For
in
Mitiorem
partem
verba
sunt
accipienda
.
And
it
seemed
to
the
Lord
Hobart
that
the
first
words
,
viz.
(
I
charge
thee
with
Felony
)
are
actionable
,
for
the
Constable
(
if
he
be
there
present
)
ought
to
apprehend
him
therupon
,
and
it
is
a
plain
Affirmative
.
I
arrest
thee
of
high
Treason
;
Iustice
Winch
prima
facie
held
,
that
the
words
were
actionable
;
and
not
qualified
by
the
subsequent
words
,
as
it
should
be
if
he
had
said
,
For
thou
hast
stoln
my
Apple
Trees
standing
in
my
Orchard
,
that
could
not
be
Felony
,
but
it
is
not
so
there
,
for
it
may
be
Felony
,
and
ex
causa
dicendi
,
it
shall
be
taken
Felony
,
in
these
words
,
for
taking
money
,
&c.
Warburton
and
Hutton
was
of
opinion
that
the
Action
lay
not
.
This
Case
was
moved
in
Mich.
18
Jac.
And
then
the
opinion
of
the
Court
(
praeter
Warburton
qui
haesitavit
)
was
that
the
Action
did
not
lye
.
Ideo
memorand
.
quod
quetens
nil
capiat
per
breve
.
Trin.
18
Jac.
Hall
versus
Woollen
.
JOhn
Hall
an
Attorney
of
this
Court
,
Mekon
Mowbray
in
the
County
of
Leicester
,
for
one
term
of
the
Lease
of
Sir
John
Woodward
:
And
wheras
one
Webb
was
in
communication
of
buying
the
said
Lease
of
Woollen
,
and
Woollen
could
not
sell
it
without
the
assent
of
Sir
John
W.
The
Defendant
in
consideration
that
the
Plaintiff
would
procure
licence
of
the
said
Sir
John
,
he
promised
to
pay
to
him
so
much
as
he
should
disburse
,
and
deserve
therfore
:
And
averred
that
he
did
procure
a
License
,
and
delivered
it
to
the
Defendant
,
and
disbursed
such
a
summ
,
and
deserved
for
his
labour
such
a
summ
;
and
the
Defendant
upon
the
Count
did
demur
.
And
the
question
was
,
whether
that
were
a
good
consideration
or
no
,
for
it
did
not
appear
that
there
was
any
condition
to
restrain
him
from
making
an
Assignment
;
and
if
I
promise
,
that
(
wheras
I
am
obliged
to
A.
)
if
you
will
procure
B.
(
which
is
a
stranger
)
to
make
a
Release
therof
to
me
,
I
will
pay
you
forty
pounds
,
though
it
be
done
at
my
instance
,
no
action
lies
,
for
it
is
apparant
that
B.
could
not
release
the
Obligation
:
But
it
was
adjudged
that
is
a
good
consideration
,
for
it
appears
that
there
was
privity
between
them
,
and
it
may
be
that
he
had
promised
that
he
would
not
assign
it
without
his
licence
:
And
in
good
discretion
it
was
convenient
to
have
it
,
also
it
was
at
his
instance
,
and
for
his
satisfaction
:
And
it
hath
been
adjudged
,
if
one
promise
forty
pounds
to
another
,
if
he
can
procure
the
assent
of
the
Mother
of
a
woman
,
though
he
may
do
it
without
such
consent
,
yet
it
is
a
good
consideration
.
Mich.
18
Jac.
Clerk
versus
Wood.
CLerk
brought
an
action
upon
the
case
against
one
Wood
,
alias
Warren
,
and
count
that
he
was
seised
of
an
house
and
twenty
acres
of
land
,
&c
,
in
Thursfield
;
and
that
he
and
all
those
whose
Estate
he
hath
,
have
had
a
Common
in
seven
acres
in
Thursfield
;
And
that
he
and
all
those
,
&c.
have
had
one
way
leading
through
the
said
seven
acres
,
Ven.
fac
.
upon
prescription
for
a
way
in
divers
Town●
.
and
from
thence
into
one
Common
way
leading
to
Buntingford
,
and
from
Buntingford
to
Blakeley
:
And
that
the
Defendant
had
plowed
and
turned
up
the
seven
acres
,
and
estopped
the
way
.
The
Defendant
pleaded
not
guilty
,
and
the
Venire
facias
awarded
de
Tursfield
.
And
it
was
moved
in
Arrest
of
Iudgment
by
Serjeant
Jones
,
that
it
ought
to
be
from
all
the
Towns
through
which
he
claim
his
way
,
for
he
ought
to
prove
it
in
evidence
,
viz.
that
he
had
a
way
,
or
otherwise
he
is
not
endamnified
.
But
it
was
resolved
that
the
tryall
was
good
,
for
Not
guilty
is
properly
a
deniall
of
trespasse
and
disturbance
;
and
though
he
ought
to
prove
title
to
the
way
,
yet
it
is
sufficient
if
he
prove
title
to
the
way
by
and
through
the
seven
acres
upon
evidence
.
And
yet
if
the
Prescription
had
been
traversed
,
then
he
ought
to
prove
all
the
way
,
any
the
tryall
shall
be
from
every
Town
through
which
the
way
is
pleaded
to
be
extended
,
quod
vide
10
E.
4.
fol.
10.
where
it
was
in
two
Counties
,
and
the
Venire
facias
shall
be
from
both
,
and
the
tryall
shall
not
be
by
Nisi
prius
:
vide
the
case
between
Reyner
and
Waterhouse
supra
.
Mich.
16
Jac.
Rot.
2344.
Lamb
versus
Thompson
.
EDmund
Lamb
brought
an
action
of
Debt
against
Richard
Thompson
,
upon
an
Obligation
of
forty
pounds
;
the
Condition
whereof
was
,
If
the
Defendant
shall
not
be
assisting
,
or
any
waies
aiding
unto
Thomas
Elme
,
or
any
other
person
for
the
said
Thomas
Elme
,
in
any
Actions
,
Suits
,
Vexations
,
&c.
to
be
commenced
and
prosecuted
against
the
said
Plaintiff
,
&c.
That
then
,
&c.
the
Defendant
pleaded
Negative
:
The
Plaintiff
reply
,
that
he
such
a
day
brought
Trespasse
against
the
said
Thomas
Elme
,
and
the
now
Defendant
,
and
had
Iudgment
;
and
that
the
Defendant
joyned
with
him
in
a
Writ
of
Error
,
in
hinderance
of
the
Plaintiff
to
have
execution
against
the
said
Thomas
Elme
,
and
so
was
aiding
and
assisting
unto
the
said
Thomas
Elme
:
Wherupon
the
Defendant
demurred
,
and
it
was
adjudged
by
the
Court
,
that
this
prosecution
of
a
Writ
of
Error
to
discharge
himself
of
an
erroneous
Iudgment
,
is
no
breach
of
the
Condition
,
no
more
then
if
the
Plaintiff
had
released
,
and
he
had
brought
an
Audita
Querela
:
And
it
shall
be
intended
in
this
case
of
a
Suit
to
be
solely
commenced
by
the
said
Thomas
Elme
;
and
if
he
will
restrain
him
,
that
he
joyn
not
in
a
Writ
of
Error
,
it
ought
to
be
precisely
contained
in
the
Condition
,
and
shall
not
be
taken
by
a
large
Exposition
,
to
the
forfeiture
of
an
Obligation
,
by
a
generall
and
ambiguous
sentence
.
It
was
urged
that
the
Defendants
had
power
to
have
severall
Writs
of
Error
,
11
H
:
6.
9.
But
the
Court
resolved
,
that
being
the
Costs
were
joynt
,
they
ought
to
joyn
,
vide
Coke
lib
:
6.
fol:
25.
but
the
release
of
one
will
not
bar
the
other
,
vide
34
H
:
6.
42.
&
35
H
:
6.
10.
that
this
Suit
is
in
discharge
of
the
Defendant
,
and
not
to
charge
the
Plaintiff
;
and
therfore
the
Condition
is
not
broken
,
vide
Dyer
253.
A
Condition
to
suffer
a
Lessee
quietly
to
enjoy
,
the
word
(
suffer
)
guide
all
the
sentence
in
favour
of
the
Obligor
;
and
Iudgment
cannot
be
reversed
in
part
,
and
stand
for
the
other
part
,
or
be
reversed
against
one
,
and
stand
in
force
against
the
other
,
except
in
speciall
cases
.
As
where
Infant
Tenant
for
life
,
and
he
in
remainder
of
full
age
levy
a
Fine
,
that
shall
be
reversed
as
to
the
Infant
,
and
stand
for
the
remainder
,
for
it
is
no
other
then
as
a
Conveyance
;
Mich.
18
Jac.
Powell
versus
Ward
.
AN
action
of
the
case
was
brought
for
these
words
,
I
have
matter
enough
against
thee
;
for
Iohn
Halden
hath
found
forgery
against
thee
,
and
can
prove
it
:
And
after
Verdict
it
was
resolved
by
the
Court
,
that
the
words
are
too
generall
,
&
will
not
maintain
an
Action
,
no
more
then
if
one
said
,
that
another
had
forget
a
Warrant
,
for
it
might
be
a
Warrant
for
a
Buck
;
and
this
is
not
right
Affirmative
.
Sherley
versus
Underhill
.
A
Quare
impedit
brought
by
George
Sherley
Baronet
,
Error
in
Quare
Impedit
.
against
Underhill
and
Bursey
,
for
presenting
to
the
Vicaridge
of
the
Church
of
Nether
Elington
,
and
count
of
a
Nomination
as
appendent
to
the
Mannor
of
Elington
,
and
Issue
therupon
,
for
they
pretend
it
to
be
appendent
to
the
Rectory
of
Elington
:
And
it
was
found
for
the
Plaintiff
at
Warwick
Assises
,
and
Iudgment
there
for
him
,
and
a
Writ
to
the
Bishop
,
and
therupon
a
Writ
of
Error
was
brought
in
the
Kings
Bench
,
and
it
was
to
remove
a
Record
which
was
between
George
Sherley
Knight
and
Baronet
,
and
the
truth
was
,
that
Sir
George
is
not
,
neither
was
named
Knight
by
all
the
Record
:
And
therfore
the
opinion
of
the
Court
was
,
that
the
word
Knight
is
part
of
the
name
,
and
so
no
Record
was
removed
:
And
it
is
so
materiall
that
the
addition
where
there
is
none
,
or
the
omission
where
it
is
,
Knight
,
makes
it
no
such
Record
,
and
they
perceiving
it
discontinued
their
Writ
.
Memorand.
That
though
Iudgment
was
given
at
the
Assises
,
the
Writ
of
Error
was
directed
to
the
Lord
Hobart
,
and
the
Record
is
demurrant
in
the
Court
of
Common
Berich
.
And
now
it
was
moved
,
that
the
Iudgment
might
be
amended
,
for
it
was
Quod
recuperet
presentationem
suam
ad
Ecclesiam
praedictam
.
And
the
value
sound
of
the
Church
aforesaid
:
And
it
should
be
Quod
recuperet
praesentationem
ad
vicariam
Ecclesiae
,
&
valorem
vicariae
Ecclesiae
:
And
it
was
urged
that
it
was
not
the
mis-prision
of
the
Clerk
,
but
of
the
Court
;
and
Iudgment
erroneous
in
point
of
Law
is
not
amendable
,
for
if
it
be
Quod
capiatur
,
where
it
should
be
Quod
sit
in
miserecordia
,
it
is
not
amendable
.
But
it
was
resolved
and
so
awarded
by
the
Court
,
that
it
should
be
amended
:
And
the
reason
is
,
because
the
Verdict
is
generall
,
and
they
found
for
the
Plaintiff
,
and
the
Iudgment
ought
to
agree
with
the
Verdict
:
But
it
is
solely
mis-prise
by
the
default
of
the
Clerk
,
for
the
Record
precedent
is
in
every
part
,
and
in
the
Issue
and
Verdict
,
Vicariam
Ecclesiae
;
And
by
the
Statute
8
H.
6.
cap.
15.
that
is
amendable
,
for
the
mis-prison
of
the
Clerk
in
the
Record
shall
be
amended
,
though
it
be
in
the
Iudgment
,
vide
Dyer
258.
Also
Mich.
33.
&
34
Eliz:
Rot
:
230.
between
Wilde
and
John
Woolfe
,
Ideo
considerat
.
est
quod
praedictus
Thomas
Wild
recuperet
versus
praedictum
Thomas
Woolfe
,
where
it
should
be
John
;
and
Error
was
brought
,
and
it
was
amended
.
Eliz:
Rot
:
693.
An
action
of
the
case
by
Stepney
against
John
Morgan
Woolfe
.
Id.
consid
.
quod
recuperet
versus
praedictum
Morgan
Woolfe
,
and
there
was
no
such
Defendant
,
but
John
Morgan
Woolfe
,
and
it
was
amended
upon
Error
brought
in
the
Exchequer
Chamber
.
And
vide
Coke
lib
:
8.
fol.
164.
Blackamores
case
,
more
cases
upon
this
learning
;
where
the
mis-prison
of
the
Clerk
in
the
entry
of
the
Iudgment
of
a
thing
which
is
apparent
,
and
not
of
necessity
shall
be
amended
,
as
in
Mis-prision
of
the
summ
of
Arrerages
before
and
pending
the
Writ
of
Annuity
shall
be
amended
,
vide
9
Eliz:
Dyer
258.
Mich.
18
Jac.
Sir
Thomas
Wentworths
Case
.
Thomas
Wentworth
brought
Replevin
,
the
Defendant
avowed
for
a
Rent
granted
,
Davies
Case
.
Harris
,
a
Supersedeas
was
awarded
;
for
that
is
no
Statute
,
for
they
had
not
pursued
the
Authority
given
by
the
Statute
:
For
the
Statute
of
Acton
Buanell
,
11
E.
1.
saies
,
if
the
Debt
be
not
paid
at
the
day
:
And
though
Debt
upon
an
Obligation
is
payable
presently
,
if
the
day
be
not
expressed
,
yet
there
the
Statute
appoint
a
day
certain
.
Pasch.
15
Jac.
Rot.
1714.
Cartwright
versus
Underhill
Abraham
Cartwright
against
Clement
Underhill
:
And
upon
Not
guilty
pleaded
,
there
was
found
a
speciall
Verdict
to
this
effect
.
being
a
Merchant
,
had
made
a
fraudulent
Deed
to
the
Defendant
of
the
Goods
contained
in
the
Count
,
but
afterwards
he
went
abroad
to
Church
,
to
the
Exchange
,
and
did
Trade
and
Commerce
:
And
yet
afterwards
it
is
contained
in
the
Indenture
of
Sale
by
the
Commissioners
to
the
Plaintiff
,
that
he
had
made
this
fraudulent
Deed
,
and
that
afterwards
he
had
traded
and
served
the
Exchange
untill
a
day
after
,
at
which
day
he
wholly
absented
himself
.
And
upon
this
speciall
Verdict
the
Defendant
had
Judgment
.
For
every
Deed
to
defraud
other
Creditors
(
but
those
to
whom
such
Deed
is
made
)
is
not
sufficient
to
make
one
to
be
a
Bankrupt
:
But
if
he
make
any
Deed
after
he
begins
to
be
a
Bankrupt
,
it
shall
not
bind
:
But
upon
the
Statute
of
1
Jacobi
,
which
makes
him
a
Bankrupt
,
which
make
fraudulent
Deeds
,
it
ought
not
to
be
as
this
case
was
,
viz.
so
long
before
he
became
a
Banrupt
:
And
there
were
many
more
imperfections
in
the
speciall
Verdict
.
Hill.
18.
Jac.
The
Earl
of
Clanrickards
Case
.
THe
Earl
of
Clanrikard
,
and
Frances
his
Wife
,
Post
praedicationem
sive
Divinum
Servitium
)
there
was
an
Essoin
cast
,
and
that
was
adjourned
in
the
Essoin
Roll
:
And
the
Demandauts
perceiving
the
return
to
be
insufficient
,
they
sue
an
alias
Summons
,
which
having
great
returnes
(
as
all
the
Writs
issuing
out
of
this
Court
in
a
Writ
of
Right
,
or
other
reall
actions
ought
to
have
)
was
returnable
,
Oct
:
Hil
:
And
the
Tenant
cast
an
Essoin
upon
the
alias
Summons
:
And
it
was
moved
at
the
day
of
Essoin
,
and
now
also
at
the
first
day
of
the
Term
by
Serjeant
Harris
,
that
an
Essoin
did
not
lye
,
for
he
had
an
Essoin
before
:
And
by
the
Statute
de
essonii
calumniand.
1●
E
:
2.
Non
faciant
quia
alias
se
essoviant
:
And
the
Statute
31
Eliz:
cap
:
3.
which
gives
the
Proclamations
,
hath
prouided
that
no
Grand
Cape
shall
be
awarded
upon
this
default
,
but
only
an
alias
Summons
,
so
that
the
Writ
is
good
and
stands
,
and
therfore
he
shall
not
be
otherwise
essoined
:
But
it
seemed
to
the
Court
to
be
otherwise
here
;
for
the
first
Essoin
is
as
Nul
,
and
therfore
vide
Dyer
252.
that
when
the
Sheriff
return
tarde
in
a
Formedon
,
and
the
Tenant
is
essoined
,
and
that
is
adjourned
,
it
is
of
no
effect
,
but
he
shall
be
essoined
upon
the
other
Writ
of
alias
,
&c.
vide
24
E.
3.
Br:
Essoin
24.
accord
.
also
vide
21
H.
6.
That
upon
the
resummons
after
the
death
of
the
King
,
the
Tenant
shall
be
Essoined
,
and
yet
the
first
Writ
and
all
is
revived
:
And
in
this
case
though
the
party
may
appear
to
the
first
Writ
,
●ne
,
note
besoigne
de
ject
un
essoign
,
for
the
nature
of
that
is
to
save
a
default
,
so
that
no
Grand
Cape
shall
be
awarded
,
and
there
no
Grand
Cape
ought
so
be
avwarded
,
and
therfore
the
Essoin
before
not
avoidable
.
Hil.
18
Jac.
Rot.
739.
Bridgeland
versus
Post
.
Quod
le
tenant
n'ad
entry
nisi
per
le
Baron
;
And
therupon
the
Tenant
demur
:
And
it
was
adjudged
a
good
Counter-plea
,
and
the
Tenant
ousted
of
his
View
,
Accord
.
9
E.
4.
fol:
6.
vide
2
H
:
4.
24.
Pasch.
19
Jac.
King
versus
Bowen
.
Thou
art
a
false
forsworn
Knave
,
and
didst
take
a
false
Oath
against
me
at
a
Commission
at
Ecclesall
(
innuendo
a
Commission
sued
out
of
the
high
Commission
.
)
the
Defendant
justifie
,
and
after
issue
tryed
and
found
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
,
that
these
words
were
not
actionable
,
for
it
doth
not
appear
in
the
Count
,
what
Commission
,
nor
out
of
what
Court
,
nor
what
matter
he
did
depose
,
but
generally
,
that
he
had
taken
a
false
Oath
at
a
Commission
.
The
former
words
(
forsworn
Knave
)
will
not
maintain
an
action
,
otherwise
of
Perjuted
Knave
,
for
that
shall
be
intended
in
a
legall
sence
;
and
no
Innuendo
will
supply
matter
which
give
not
cause
of
action
,
nor
the
Iustification
:
But
the
words
ought
to
contain
scandall
in
themselves
,
without
any
supplement
.
An
action
lies
for
saying
,
one
had
forsworn
himself
in
a
Court
Baron
,
and
to
say
,
he
had
forsworn
himself
in
the
Common
place
;
but
to
say
,
that
one
hath
forsworn
himself
at
the
Bar
(
innuendo
the
Bar
of
the
Common
place
)
will
not
maintain
an
action
,
Querens
nil
capiat
per
breve
.
Pasch.
19
Jac.
Tippin
versus
King
.
George
Tippin
Plaintiff
,
in
an
action
of
Wast
against
King
,
and
alledge
Wast
in
severall
Closes
Sparsim
:
Per
nient
dedire
,
a.
accord
:
And
it
was
so
adjudged
between
Ewer
and
Moyle
upon
demurrer
in
Wast
,
there
the
Wast
is
confessed
,
and
the
Writ
shall
be
only
to
enquire
of
the
Damages
;
so
if
the
Plaintiff
will
release
his
Damages
,
he
shall
have
a
Writ
upon
Iudgment
of
the
place
wasted
.
Mich.
18
Jac.
Rot.
2805.
Pitt
versus
Chick
.
MAtthew
Pitt
brought
Replevin
against
Chick
;
George
Speck
:
And
that
the
said
Sir
George
Speck
and
all
his
Ancestors
,
de
temps
d'out
,
&c.
have
used
to
have
Herbage
and
Pasture
of
the
said
five
acres
,
viz.
if
they
were
sowen
,
then
after
the
reaping
untill
re-sowing
;
and
if
they
were
not
sowen
,
then
for
the
whole
year
,
and
convey
Title
to
the
said
Herbage
by
Lease
in
writing
to
him
,
and
avow
Damage
feasant
.
And
it
was
urged
,
that
he
which
had
all
the
profit
for
a
time
,
and
the
sole
profit
,
had
the
Free-hold
;
and
that
is
not
a
thing
which
lye
in
Prescription
,
semble
al
Common
,
or
so
pasture
for
a
certain
number
of
years
:
And
it
was
said
,
that
a
Grant
de
vestura
terrae
,
or
de
herbag
.
terrae
for
one
and
twenty
years
,
is
a
good
Lease
.
But
it
was
adjudged
,
that
it
is
a
good
Avowry
,
and
he
had
only
profit
a
Prender
,
and
that
he
might
have
an
Assise
,
or
justifie
for
Damage
feasant
:
And
he
which
hath
the
fore-crop
is
he
which
hath
the
Free-hold
,
15
E.
2.
Fitz.
Prescription
51.
And
the
very
case
in
,
temps
E.
1.
Fitz.
Prescription
55.
and
this
sole
feeding
might
have
Commencement
by
Grant
,
and
therfore
a
good
Prescription
.
Iudgment
for
the
Avowant
.
Trin.
19
Jac.
Wilson
versus
Stubbs
.
WIlson
brought
Replevin
against
Ralph
Stubbs
;
Ralph
Stubbs
was
dead
;
and
the
Plaintiff
would
proceed
,
and
had
Iudgment
,
Damages
,
and
Costs
sixteen
pounds
,
and
a
Capias
awarded
to
the
Sheriff
of
York
,
and
Ralph
Stubbs
the
Son
,
as
is
supposed
,
is
taken
,
and
had
an
Indempnitate
nominis
,
which
Writ
being
directed
to
the
Iustices
,
they
award
a
Supersedeas
:
And
now
upon
divers
motions
,
the
sixteen
pounds
was
brought
in
Court
,
and
they
proceed
upon
the
Indempnitate
nominis
.
The
question
was
,
if
the
Supersedeas
lye
therupon
,
being
that
it
is
only
a
surmise
and
matter
en
fait
,
and
lies
properly
and
more
frequently
,
for
preventing
an
Arrest
upon
Outlawry
,
and
after
that
the
party
is
taken
upon
the
Outlawry
,
vide
5
E.
4.
23.
&
vide
lib:
Intrat
.
and
it
is
matter
not
frequent
in
use
,
and
is
in
nature
of
an
Audita
Querela
,
and
the
party
shall
find
surety
to
pay
the
Debt
,
if
it
be
found
that
he
be
not
another
person
:
And
the
Court
inclined
strongly
that
it
is
no
Supersedeas
,
but
it
is
much
in
the
discretion
of
the
Court
,
vide
lib:
Intrat.
5
E.
4.
36.
bone
Case
,
and
fol.
51.
&
53.
Mich.
19
Jac.
Allen
versus
Swift
.
He
is
a
Bankrupt
,
and
is
not
able
to
pay
his
debts
,
but
will
run
the
Country
;
It
was
found
for
the
Plaintiff
,
and
moved
in
Arrest
of
Iudgment
by
Serjeant
Harvey
,
that
the
action
lay
not
,
because
that
the
Plaintiff
shewed
not
,
that
he
used
it
as
his
Trade
,
nor
that
he
gained
his
living
by
buying
and
selling
;
Also
he
is
entituled
Gentleman
.
But
the
Court
hold
that
the
action
would
well
lye
,
and
it
had
been
adjudged
14
Eliz.
That
a
Tanner
shall
have
an
action
for
such
words
.
Mayes
versus
Sidley
.
Isaac
Sidley
,
and
count
,
that
wheras
one
was
indebted
unto
the
Plaintiff
in
a
hundred
pounds
by
Obligation
,
the
Defendant
in
consideration
that
the
Plaintiff
at
his
request
would
forbear
to
sue
the
said
party
,
and
if
he
did
not
pay
it
,
the
Defendant
would
;
And
upon
Non
assumpsit
pleaded
,
and
Verdict
for
the
Plaintiff
,
Hitcham
moved
,
that
is
no
good
consideration
,
for
it
is
uncertain
,
for
if
he
forbear
one
hour
,
one
day
,
this
is
a
forbearance
;
And
he
resembled
it
to
Palmers
Case
,
forbear
him
a
little
while
,
and
if
he
do
not
pay
it
,
I
will
:
This
was
adjudged
for
the
Plaintiff
in
Banco
Regis
,
but
afterward
by
a
Writ
of
Error
it
was
reversed
.
And
he
cited
a
President
(
which
was
shewn
)
of
the
36
of
Eliz.
where
the
case
was
the
same
in
effect
with
this
:
And
Iudgment
reversed
,
but
it
might
be
for
other
Errors
.
And
the
Court
inclined
that
this
action
lye
,
for
when
it
is
alledged
that
he
did
forbear
,
it
shall
be
intended
of
such
a
forbearance
by
which
the
party
had
ease
and
benefit
,
and
shall
be
a
competent
and
convenient
time
;
and
that
shall
be
convenient
time
,
as
in
other
cases
:
As
Tenant
pur
auter
vie
,
shall
have
convenient
time
to
remove
his
goods
after
the
death
of
Cestui
que
vie
;
And
it
shall
be
convenient
time
to
purchase
a
Writ
by
Iourneys
Accounts
:
And
it
was
said
,
that
there
were
many
Presidents
of
this
case
,
and
of
the
like
actions
,
for
if
he
doth
not
forbear
convenient
time
,
then
it
is
no
consideration
,
and
it
being
left
indefinite
,
the
Law
will
judge
of
the
convenient
time
,
but
it
was
adjourned
,
and
after
the
first
day
of
Hil.
21
Jac.
This
case
was
moved
by
Hitcham
,
and
he
said
,
that
the
Writ
and
Count
vary
,
for
the
Writ
is
Per
magnum
tempus
distulit
:
And
the
Count
saith
,
that
he
did
forbear
for
the
space
of
a
year
and
more
:
Also
no
time
is
put
in
the
Writ
,
but
is
in
the
Count
,
and
that
he
did
forbear
by
a
year
and
more
after
that
;
so
that
it
doth
not
appear
that
he
did
forbear
till
the
Writ
purchased
,
for
that
appear
to
be
half
a
year
after
the
year
passed
,
and
he
ought
to
forbear
it
totally
.
Richardson
answered
him
,
that
the
breve
,
Writ
did
not
comprehend
the
time
and
circumstance
,
but
the
matter
and
substance
,
and
●ot
at
large
,
for
then
it
should
not
be
breve
;
As
in
a
case
sur
Trover
,
no
day
in
the
Writ
,
but
in
the
Count
,
and
forbearance
of
a
year
and
more
being
alledged
,
and
issue
taken
and
found
for
the
Plaintiff
,
it
shall
not
be
intended
that
he
had
sued
,
and
not
forbeared
till
the
commencement
of
that
Suit
:
And
it
is
like
to
a
grant
of
a
Rent
(
pleaded
without
Deed
)
and
issue
joyned
upon
non
concessit
,
and
it
is
found
Concessit
,
and
good
,
for
it
shall
be
intended
effectuall
,
&c.
And
the
Court
shewed
their
Iudgment
,
and
concurred
that
Iudgment
should
be
given
for
the
Plaintiff
:
And
this
difference
was
taken
when
the
promise
appear
to
be
such
,
that
it
shall
not
be
any
benefit
to
the
party
in
whose
behalf
it
was
requested
,
as
forbearance
for
an
hour
,
or
a
little
time
,
there
it
is
not
good
,
but
where
it
is
generall
and
not
limited
to
any
time
,
that
shall
be
a
〈◊〉
ill
forbearance
,
or
at
least
a
forbearance
for
a
convenient
time
,
and
that
ought
to
be
alledged
for
such
a
time
,
which
the
Court
shall
adjudge
a
convenient
time
.
Lord
Hobart
agreed
,
but
he
said
,
that
it
is
not
a
totall
forbearance
,
for
then
it
should
be
that
he
should
not
sue
him
at
all
,
but
that
he
will
forbear
,
is
good
by
the
subsequent
forbearance
;
and
there
is
no
variation
between
the
Count
and
the
Writ
,
but
the
Count
illustrateth
,
and
amplifies
the
Writ
.
Iudgment
pro
querente
.
Pasch.
20
Jac.
Suggs
versus
Sparrow
.
IN
a
Scire
facias
against
the
Bail
,
Hollowell
.
Timberley
and
Calverly
.
and
i●
this
case
a
Iudgment
was
cited
,
Hil
:
10
Eliz.
Tadcaster
brought
debt
against
Hallowell
,
Hobs
was
Bail
,
and
the
Plaintiff
recovered
:
The
Defendant
brought
a
Writ
of
Error
in
the
Exchequer
Chamber
upon
a
new
Statute
,
and
after
divers
terms
Hall
died
,
and
after
the
Plaintiff
was
non-suited
,
without
mention
made
of
his
death
.
Tadcaster
brought
two
Scire
facias
against
Hobs
,
and
upon
two
Nihils
had
Iudgment
:
Hobs
brought
an
Audita
Querela
,
alledging
the
death
of
Hallowell
before
Scire
facias
,
and
before
Capias
;
and
it
was
adjudged
that
the
Audita
Querela
well
say
,
and
Hil
:
4
Jac:
Rot
:
975.
between
Timberley
and
Calverly
,
Scire
facias
brought
against
the
Bail
,
and
he
pleaded
that
the
Principall
died
before
Capias
returned
against
him
;
And
Iudgment
upon
argument
given
against
the
Plaintiff
:
The
like
Iudgment
between
Iustice
Williams
,
and
the
Sureties
of
one
Vaughan
.
Hil.
19
Jac.
Rot.
312.
or
3125.
Walrond
versus
Hill
.
London
,
William
Hill
,
with
Condition
,
that
if
Thomas
Harris
and
Elizabeth
his
Wife
,
And
upon
argument
at
Bar
by
Serjeant
Harvey
for
the
Plaintiff
,
and
Serjeant
Henden
for
the
Defendant
;
the
first
question
was
,
If
the
Bar
be
good
,
Intant
que
le
Defendent
est
oblige
.
That
Thomas
Harris
and
Elizabeth
his
Wife
shall
levy
a
Fine
,
he
ought
to
procure
that
to
be
done
at
his
perill
,
semble
al
4
H.
7.
&
3
H.
6.
Condition
that
John
S.
a
stranger
shall
take
Alice
D.
to
his
Wife
,
before
Mich.
If
I.
S.
refuse
,
the
Obligation
is
forfeited
:
And
therfore
it
was
urged
that
he
ought
to
procure
a
Writ
of
Covenant
at
his
perill
.
But
the
Lord
Hobart
held
that
the
Plaintiff
ought
to
procure
the
Writ
of
Covenant
,
to
have
made
himself
capable
of
the
Fine
:
And
he
put
this
case
,
if
I.
S.
be
obliged
that
I.
D.
shall
enfeoff
I.N.
the
Obligee
,
such
a
day
I.
N.
ought
to
be
upon
the
Land
,
or
ought
to
make
a
Letter
of
Attorney
to
receive
the
Livery
,
or
otherwise
the
Obligation
is
not
forfeited
:
And
when
a
Covenant
is
to
levy
a
Fine
,
he
which
is
to
do
the
first
act
,
&c.
vide
Palmers
case
,
Coke
lib
:
5.
fol:
127.
&
4
E.
3.
39.
18
E.
3.
27.
11
H.
4
:
18.
21
E
:
4.
2.
The
second
question
was
,
whether
this
Obligation
be
ferfeited
,
being
that
the
said
Thomas
Harris
had
made
a
Bargain
and
Sale
of
part
of
the
Land
to
another
before
,
so
that
he
was
disabled
at
the
time
to
levy
a
Fine
:
And
we
all
agreed
,
that
the
Condition
was
impossible
,
and
is
all
one
as
if
he
had
disabled
himself
afterwards
;
as
in
Maynes
case
,
Coke
lib
:
5.
21.
where
the
Covenant
was
to
make
a
new
Lease
upon
surrender
of
the
former
Lease
,
there
if
he
which
ought
to
make
the
new
Lease
,
disables
himself
to
make
a
new
Lease
,
and
to
accept
of
the
Surrender
,
by
granting
the
Reversion
for
years
,
he
ought
not
to
do
the
first
act
,
viz.
Surrender
,
but
the
Covenant
is
broken
:
And
in
this
case
it
is
all
one
,
as
if
one
(
who
had
granted
the
Reversion
for
years
or
for
life
)
Covenant
that
he
upon
Surrender
will
make
a
new
Lease
,
he
had
broken
this
Covenant
,
being
disabled
at
the
time
:
And
it
was
said
and
agreed
by
the
Court
,
that
the
Fine
to
be
levied
ought
to
be
an
effectuall
Fine
,
which
might
operate
to
convey
the
Land
according
to
the
Covenant
.
Fitz
:
Debt
164.
A
Condition
that
if
he
present
the
Obligee
to
a
Benefice
,
that
then
,
&c.
Though
the
Obliges
taken
Wife
,
by
which
he
is
disabled
to
take
it
,
put
he
ought
to
present
and
offer
him
to
the
Ordinary
to
refuse
him
.
Vide
28
E
:
4.
6.
where
parcell
of
the
Land
was
recovered
,
yet
Debt
lies
for
entry
,
Damages
recovered
in
a
Court
of
ancient
Demeasn
,
which
case
was
then
vouched
,
but
it
is
not
much
to
the
purpose
:
And
afterwards
we
all
agreed
that
the
Plaintiff
should
have
Iudgment
.
Hord
versus
Cordery
.
A
President
was
shewn
which
was
thus
.
IN
the
County
of
Wiltes
,
Richard
Hord
Clerk
,
Vicar
of
Chute
,
William
Cordery
,
and
Bridget
his
Wife
,
and
Dorothy
Cox
;
Dorothy
Cox
,
and
procured
him
to
be
examined
before
Sir
Anthony
Hungerford
a
Iustice
of
Peace
,
and
therupon
was
bound
in
a
Recognizance
to
appear
at
the
next
generall
Sessions
of
the
Peace
at
Devises
,
and
from
thence
was
bound
over
to
the
Assises
:
And
there
the
Defendants
An
:
15
Jac:
before
Sir
Thomas
Flemming
and
Tanfield
Iustices
of
Assise
preferred
one
Bill
of
Indictment
of
their
malice
aforesaid
,
and
by
the
procurement
of
the
said
William
and
B.
the
said
Dorothy
shewed
to
the
grand
Inquest
,
whether
it
were
true
or
false
.
And
the
Iury
perceiving
the
malice
and
the
falsi●y
,
did
not
find
it
to
be
true
,
and
gave
their
Verdict
by
Ignorance
.
Vpon
Not
guilty
pleaded
by
William
and
Bridget
,
and
non
informatus
by
Dorothy
,
the
Iury
found
for
the
Plaintiff
,
and
after
a
Writ
of
Error
,
An
:
15
Jac:
and
20
marks
costs
for
the
delay
,
Ego
vidi
recordum
,
&
est
bien
&
pleivement
aver
,
que
il
ne
ravish
le
feme
,
&
est
ent.
Hil.
10
Jac.
Rot.
92.
1.
1.
Trin.
20
Jac.
Hawkins
versus
Cutts
.
HAwkins
brought
an
action
upon
the
case
against
Cutts
,
He
is
a
Bankrupt
Knave
:
And
not
guilty
,
And
if
a
man
had
said
generally
,
that
he
had
gained
his
living
by
buying
and
selling
,
and
not
shewn
what
Trade
he
had
used
,
it
is
not
good
:
Therfore
the
Trade
ought
to
be
alledged
,
and
so
sufficiently
,
that
the
Court
may
judge
him
such
a
person
,
as
is
within
the
Statute
of
Bankrupts
.
Also
Winch
said
,
that
it
is
not
alledged
,
that
he
gained
his
living
by
buying
and
selling
any
thing
which
concerne
his
Trade
:
And
I
was
of
the
same
opinion
,
and
relyed
upon
the
case
of
11
H.
4.
45.
An
nation
upon
the
case
against
an
Inn.
keeper
,
and
shewed
that
he
was
lodged
there
,
and
his
Horse
was
stoln
:
And
the
Defendant
pleaded
a
plea
,
that
he
delivered
to
him
the
Key
of
the
Stable
,
&c.
And
by
the
Court
the
Writ
shall
abate
,
because
he
did
not
shew
that
he
was
a
common
Hostler
:
And
therfore
Iudgment
arrested
.
And
the
Court
agreed
that
if
the
Count
were
good
,
the
words
would
maintain
an
action
;
for
a
Baker
is
a
Trade
mentioned
in
the
Statute
5
Eliz.
but
it
ought
to
be
a
Common
Baker
.
Trin.
20
Jac.
Whiteguift
versus
Eldersham
.
JOhn
Whiteguift
brought
a
Writ
of
second
deliverance
against
Richard
Eldersham
,
for
taking
of
his
Cattle
at
Clanding
,
in
quodam
loco
vocat
.
Corles
Paud.
The
Defendant
makes
Conuzance
as
Bayliff
to
Sir
Francis
Barrington
,
because
that
the
place
,
&c.
was
parcell
of
the
Mannor
of
Curles
,
and
that
John
Curles
was
seised
before
the
time
,
Francis
Berrington
as
of
his
Mannor
of
Clanding
by
Knights
servies
,
viz.
by
Homage
,
Fealty
,
&
survitium
scuti
,
and
by
the
Rent
of
ten
pounds
,
payable
yearly
at
two
Feasts
,
of
which
Rent
the
said
Sir
Francis
was
seised
by
the
hands
of
the
said
John
Whiteguift
,
as
by
the
hands
of
his
very
Tenant
,
in
his
Demsn
as
of
sea
,
and
Avow
put
Homage
infect
.
wherupon
the
Plaintiff
demur
.
And
shew
for
cause
,
that
the
Defendant
had
not
shewn
any
Title
to
have
Homage
of
the
said
John
,
and
that
the
Cognizance
is
repugnant
and
no
sufficient
Seisin
alledged
of
the
Services
,
and
that
the
shewing
of
the
Seisin
is
not
formall
,
vide
Bevils
case
,
Coke
lib
:
4.
fol:
6.
Seisin
of
Rent
is
the
Seisin
of
the
Services
,
and
he
might
have
traversed
the
Tenure
,
and
the
other
party
ought
to
shew
whether
he
had
done
Homage
before
,
vide
44
E.
3.
41.
when
an
Avowry
is
upon
the
Baron
for
the
Homage
of
the
Feme
,
it
is
sufficient
Avowry
without
shewing
that
he
had
Issue
by
her
;
and
yet
if
he
had
not
Issue
,
he
could
not
avow
upon
the
Baron
,
but
that
ought
to
come
on
the
other
party
,
vide
5
E.
2.
Fitz.
Avowry
209.
A
man
avow
for
Homage
,
and
alledge
Seisin
of
Esenage
without
Homage
,
and
good
.
And
after
upon
motion
this
Term
,
Iudgment
was
entred
for
the
Defendant
.
Trin.
20
Jac.
Sherwells
Case
.
MAry
Sherwell
brought
a
Writ
of
Dower
,
I.
S.
for
years
,
remainder
to
the
Feme
for
her
Ioynture
,
this
is
not
a
Ioynture
he
bar
Dower
.
Trin.
20
Jac.
Francis
Curle
versus
James
Cookes
.
AN
action
of
the
case
was
brought
,
and
Count
,
You
have
received
money
for
ingrosement
of
Feodaries
(
innuendo
the
said
Fees
for
ingrosement
of
the
Accounts
of
the
Receivers
,
Feodaries
,
and
other
Officers
aforesaid
)
which
I
will
prove
is
Cousenage
:
And
then
and
there
spoke
further
,
You
are
a
Couse●er
(
innuendo
the
said
Francis
decepisse
Dominum
Regem
8.
subditor
in
executione
officii
praedicti
)
and
you
live
by
Cousenage
,
&
deceptionem
dicti
Domini
Regis
&
subditorum
shorum
in
executione
officii
ful
.
Non
Culp
.
verdict
.
pro
Plaintiff
.
and
Damages
thirty
three
pounds
.
It
was
moved
in
Arrest
of
Iudgment
by
Attho
,
that
first
it
is
alledged
,
that
the
Fee
of
two
shillings
is
lawfull
,
and
that
he
said
,
You
have
received
monies
for
ingrossement
of
Feodaries
,
which
I
will
prove
is
Cousenage
(
innuendo
the
Fees
aforesaid
which
are
lawfull
)
and
then
by
his
own
shewing
it
is
not
Cousenage
.
2.
It
is
insensible
,
Ingrossements
of
Feodaries
,
for
they
cannot
be
ingrossed
,
but
their
Accounts
.
3.
That
Ad
tunc
&
ibidem
,
for
the
other
words
are
for
other
words
spoken
at
another
time
of
the
same
day
,
and
they
are
not
actionable
,
for
they
do
not
relate
to
his
Office
.
Also
the
words
will
not
maintain
action
,
for
the
word
Cousenage
is
generall
,
and
of
an
ambiguous
interpretation
,
and
therfore
no
action
lies
for
that
:
And
he
resembled
it
to
Sir
Edmund
Stanhops
case
;
He
hath
but
one
Mannor
,
and
hath
got
it
by
swearing
and
forswearing
:
Warlow
,
An.
30
Eliz.
Thou
art
a
cousening
Knave
,
and
hast
cousened
me
of
forty
pounds
;
And
adjudged
that
no
action
lay
,
vide
Coke
lib
:
10
fol:
130.
in
Osbornes
Case
,
Thou
art
an
arrant
Knave
,
a
Cousener
,
and
a
Traytor
;
Action
lies
only
for
the
word
Traytor
,
and
yet
all
being
spoken
at
one
time
aggravate
,
and
Damages
shall
be
intended
to
be
given
only
for
these
words
which
are
actionable
,
vide
ut
supra
fol
:
131.
if
the
words
be
alledged
as
spoken
at
severall
times
,
and
as
severall
causes
of
actions
,
there
if
the
Damages
be
entire
,
the
Plaintiff
shall
not
have
Iudgment
,
if
any
of
the
words
do
not
bear
action
.
And
Mich
:
40
Eliz:
Stanley
and
Buddens
,
or
Boswels
case
;
there
an
Attorney
brought
an
action
of
the
case
for
these
words
.
Thou
art
a
cousening
Knave
,
and
gettest
thy
living
by
Extortion
,
and
didst
cousen
one
Pigeon
in
a
Bill
of
Costs
of
ten
pounds
:
Adjudged
that
the
last
words
were
actionable
.
This
case
was
adjudged
for
the
Plaintiff
,
but
I
was
absent
in
Chancery
,
and
heard
not
their
reasons
,
for
it
was
doubtfull
.
Hil.
17
Jac.
Empson
versus
Bathurst
.
FRancis
Empson
brought
an
action
of
Debt
upon
an
Obligation
,
against
George
Bathurst
;
the
Defendant
pleaded
the
Statute
of
23
H.
6.
That
an
Obligation
taken
Colore
officii
,
of
any
one
in
their
Custody
,
Robert
Leigh
upon
a
Statute
Staple
of
twelve
thousand
pounds
,
in
which
he
was
obliged
to
the
Plaintiff
:
And
that
Anthony
Thirrold
was
Sheriff
,
and
Charles
Empson
was
under
Sheriff
,
and
shewn
an
Extent
of
the
Land
returned
,
and
before
any
Liberate
it
was
agreed
that
the
Defendant
should
pay
to
the
under
Sheriff
two
and
thirty
pounds
ten
shillings
,
and
that
he
should
be
bound
to
the
Plaintiff
his
Brother
,
for
the
security
therof
,
to
the
use
of
the
said
Charles
,
and
therupon
he
entred
into
the
said
Obligation
,
which
by
the
said
Statute
is
void
,
the
Plaintiff
replyed
and
shewed
,
that
by
the
execution
of
the
Extent
he
agreed
to
pay
him
the
said
two
and
thirty
pounds
ten
shilling
,
and
pleaded
the
Statute
29
Eliz.
cap.
4.
wherupon
the
Defendant
demurred
.
And
it
was
adjudged
against
the
Plaintiff
,
Extortion
is
when
any
one
Colore
officii
extorquet
feodum
non
debitum
,
plus
quam
debitum
,
aut
ante
quam
debitum
,
vide
Dive
and
Maringhams
case
,
an
Obligation
made
by
Extortion
is
against
Common
Law
,
for
it
is
as
Robbery
,
vide
Coke
lib
:
10.
fol:
100.
Dyer
144.
And
in
this
case
the
opinion
of
the
Court
was
,
that
no
Fee
is
due
to
the
Sheriff
by
the
Statute
of
29
Eliz.
cap
;
4.
because
the
Fee
is
not
due
untill
execution
,
Copulative
extent
,
and
delivered
in
execution
,
if
it
were
a
Statute-Merchant
,
in
which
is
a
Liberate
included
,
then
the
Fee
is
due
.
Also
it
was
agreed
that
by
the
Statute
the
Sheriff
ought
to
have
six
pence
in
the
pound
,
where
the
summ
exceed
a
hundred
pounds
for
all
,
and
not
twelve
pence
in
the
pound
.
Mich.
20
Jac.
Bullen
versus
Gervis
.
RObert
Bullen
brought
an
action
of
Debt
for
12
l.
upon
an
Obligation
,
against
William
Gervis
Administrator
of
Owen
Godfrey
;
Francis
Murrell
,
after
Iudgment
,
and
pleaded
it
specially
,
and
being
so
Outlawed
died
,
and
that
Outlawry
is
in
full
force
,
Iudgment
si
Action
,
wherupon
the
Plaintiff
demurred
.
8
E.
4.
6.
There
by
Littleton
,
between
Young
and
Pigot
,
in
an
action
of
Debt
against
Executors
,
it
was
holden
a
good
plea
to
say
,
that
their
Testator
was
Outlawed
,
for
they
are
charged
to
the
King
for
the
Goods
.
Genny
said
,
that
the
plea
amount
only
to
this
,
that
they
have
not
any
Goods
,
and
so
answer
argumentative
.
And
21
E.
3.
5.
By
Brian
,
in
a
Writ
of
Debt
brought
against
Executors
,
it
is
a
good
plea
to
say
,
that
their
Testator
was
Outlawed
sans
luy
intitle
.
36
H.
6.
27.
By
Prisot
in
Debt
against
one
as
Executor
of
Jane
,
the
Defendant
said
,
that
the
said
Jane
was
his
Wife
,
and
demand
Iudgment
si
action
,
and
it
seems
this
is
no
Plea
,
because
that
a
Feme
Covert
may
have
many
things
which
the
Husband
shall
not
have
,
as
Choses
in
action
,
and
she
may
make
Executors
if
the
Baron
agree
.
And
Prisot
said
,
Sir
,
It
seems
to
me
that
it
is
no
good
plea
for
an
Executor
to
say
,
that
his
Testator
died
Outlawed
Cansa
qua
supra
.
Quare
cur
hona
materia
.
Vpon
the
reading
of
the
Record
,
it
seems
that
it
is
no
plea
,
for
it
is
only
by
Implication
,
and
that
may
be
given
in
evidence
.
Also
the
Executor
or
Administrator
may
have
divers
things
which
are
not
forfeitable
to
the
King
;
as
if
the
Testator
had
Mortgaged
his
Land
upon
Condition
,
that
if
the
Mortgagee
pay
not
at
such
a
day
to
him
,
his
Executors
,
or
his
Heirs
,
a
hundred
pounds
,
that
then
it
shall
be
lawfull
for
him
,
or
his
Heirs
to
re-enter
,
and
after
and
before
the
day
the
Testator
is
outlawed
,
and
makes
his
Executors
and
dies
,
and
at
the
day
the
Mortgagee
pay
the
money
to
the
Executors
,
that
is
Assets
,
and
not
forfeited
is
the
King
.
So
if
Tenant
for
life
of
a
Rent
be
outlawed
,
and
the
Rent
arrear
,
and
makes
his
Executors
and
die
,
this
arrearage
is
due
to
the
Executor
,
and
is
Assets
,
and
not
forfeited
,
for
the
Rent
was
a
Free-hold
,
for
which
during
his
life
no
action
of
Debt
lay
,
and
these
arrearages
recoverable
by
the
Executors
are
Assets
.
Also
if
this
should
be
a
good
plea
,
which
is
only
by
Implication
,
he
might
therby
prevent
the
Plaintiff
of
his
recovery
.
Also
though
choses
in
action
are
by
information
in
the
Exchequer
recoverable
,
yet
if
the
Executor
bring
a
Scire
facias
upon
the
Iudgment
,
he
shall
recover
,
and
shall
be
accountable
to
the
King
therfore
;
and
the
Debtors
of
the
Intestate
(
though
he
was
outlawed
)
may
pay
the
debts
to
him
,
and
his
release
is
a
good
discharge
to
them
.
Also
it
was
agreed
,
that
an
Executor
or
an
Administrator
might
bring
a
Writ
for
the
reversall
of
the
Outlawry
,
and
the
Outlawry
is
not
a
Bar
to
him
:
Eliz:
Rot
:
2954.
Woolley
against
Bradwell
and
his
Wife
,
Executors
of
Sir
Thomas
Mannord
,
and
the
matter
depended
a
year
and
was
argued
,
and
adjudged
that
it
was
no
plea
,
for
it
is
but
by
argument
,
and
so
being
,
Serjeant
Hobart
said
,
this
Argument
ought
to
be
infallible
,
also
this
is
the
matter
and
not
the
form
,
for
in
this
case
the
Demurrer
was
generall
:
and
the
Book
of
3
H
:
6.
14.
&
32.
there
it
is
well
argued
,
and
the
better
opinion
,
that
it
is
only
by
argument
:
And
a
man
outlawed
may
make
an
Executor
,
and
this
Executor
may
have
a
Writ
of
Error
to
reverse
the
Outlawry
:
And
therupon
and
upon
the
view
of
the
Record
in
Woolleys
case
,
the
Court
gave
Iudgment
that
it
is
no
plea.
Lightfoot
versus
Brightman
.
fur
concessit
,
and
found
quod
concessit
,
that
is
good
by
the
Verdict
,
like
to
Nichols
case
,
Coke
lib:
5.
Debt
upon
a
Bill
,
payment
pleaded
,
and
Issue
found
for
the
Plaintiff
,
he
had
Iudgment
:
But
it
seems
,
if
it
had
been
found
for
the
Defendant
,
the
Plaintiff
shall
have
Iudgment
,
for
the
Bar
confesse
the
action
,
as
in
the
9
H.
6.
Debt
upon
an
Obligation
,
the
Defendant
plead
that
he
delivered
it
to
the
Plaintiff
to
be
his
Deed
,
when
certain
Conditions
were
performed
:
And
he
pleaded
that
the
Conditions
were
not
performed
,
if
it
be
found
accordingly
,
yet
the
Plaintiff
shall
have
Iudgment
,
Coke
lib:
2.
fol:
61.
Wiscots
case
,
a
Lease
by
Baron
and
Feme
,
which
ought
to
be
by
Deed
pleaded
generally
,
and
found
the
Plaintiff
had
Iudgment
,
vide
Smith
and
St●pl●tons
case
.
Mich.
20
Jac.
Chittle
versus
Sammon
.
CHittle
against
Sammon
in
Replevin
,
John
Reves
,
upon
a
Grant
out
of
the
Land
,
wherof
the
place
in
which
,
&c.
was
parcell
,
upon
a
Grant
made
to
the
Father
of
Sir
John
,
and
for
Rent
arrear
,
&c.
Issue
was
joyned
upon
this
point
,
if
the
place
was
parcell
of
the
Land
out
of
which
the
Rent
was
granted
,
and
found
by
Verdict
that
it
was
:
And
now
moved
by
Attho
in
Arrest
of
Iudgment
,
that
it
is
not
alledged
that
this
Rent
was
arrear
after
the
death
of
the
Father
,
as
it
ought
to
be
,
and
therfore
it
may
be
intended
that
this
Rent
was
arrear
in
the
life
of
the
Father
:
But
the
Court
agreed
and
resolved
that
it
was
good
after
Verdict
,
for
now
it
is
pleaded
that
it
was
arrear
,
and
not
paid
to
him
,
Ergo
it
was
due
to
him
;
and
though
it
might
have
been
more
fully
pleaded
,
yet
after
Verdict
it
is
sufficient
.
Fletcher
versus
Harcot
.
AN
action
upon
the
case
was
brought
by
Fletcher
of
Otely
against
Harcot
,
and
count
,
I.
S.
promise
to
better
I.
D.
and
he
promise
to
save
him
harmlesse
,
this
is
a
void
Consideration
;
But
if
one
request
I.
S.
to
enter
into
the
Mannor
of
Dale
,
and
drive
out
Cattle
,
and
that
he
will
save
him
harmlesse
if
he
doth
so
,
and
after
Trespasse
be
brought
against
him
,
and
recovery
had
,
he
shall
have
his
action
:
So
if
a
Sheriff
pretending
to
have
a
Writ
,
where
he
hath
none
,
arrest
one
,
and
request
an
Inne-keeper
to
entertain
him
in
his
house
,
or
hire
one
to
conduct
the
Prisoner
to
the
Gaol
;
and
promise
to
keep
him
without
Damage
;
if
an
Action
be
brought
,
and
recovery
had
therupon
,
the
party
shall
have
an
action
of
the
case
against
the
Sheriff
upon
this
promise
,
for
he
which
doth
a
thing
which
may
be
lawfull
,
and
the
illegallity
therof
appear
not
to
him
,
he
which
imploys
the
party
and
assume
to
save
him
harmlesse
,
shall
be
charged
:
And
Iudgment
was
entred
for
the
Plaintiff
▪
Mich.
20
Jac.
Parkers
Case
.
William
Parker
,
upon
the
Statute
of
Winchester
,
cap
:
1
,
&
2.
reciting
the
Statute
,
That
forasmuch
as
Robberies
do
daily
encrease
.
Murthers
,
and
burning
of
houses
,
and
Theft
be
more
often
used
then
they
have
been
heretofore
,
Abbreviation
Indicāuri
:
And
the
word
Indictari
is
a
word
by
it self
,
and
he
resembled
it
to
Freemans
case
,
Coke
lib:
5.
fol:
45.
Fecit
vastum
vendicōnem
&
destrictionem
,
for
destructionem
,
and
not
amendable
.
Also
Coke
lib:
4.
S.
Cromwells
case
upon
the
Statute
of
Rich:
2.
de
scandalis
magnatum
,
the
word
Messoignes
is
said
Messuages
,
and
not
amendable
.
Harris
answered
that
the
Cursitor
had
a
Note
drawn
which
was
well
;
and
it
was
only
his
mis-priston
.
Secondly
,
that
there
is
no
such
Passive
Verb
as
Indicari
,
and
so
being
insensible
,
shall
be
amended
:
And
for
that
vouched
11
H
:
6.
2.
&
14.
adjudged
upon
the
Statute
of
forging
of
false
Deeds
,
Immaginavit
,
were
it
should
be
Immaginatus
est
,
and
amended
.
3.
This
Abbreviation
is
sufficient
:
Also
he
said
that
it
is
only
the
preamble
of
the
Statute
,
wherupon
the
action
is
not
founded
,
but
upon
the
body
of
the
Act.
Sir
George
Wrothies
case
in
Ejectment
,
the
word
Demisit
was
amended
and
made
Divisit
.
Brickhead
against
the
Bishop
of
Yorke
,
and
Cooke
for
the
Ticaridge
of
Leeds
,
the
Writ
was
Vacariam
,
and
for
that
the
Cursitor
was
examined
,
and
his
Instruction
being
Vicariam
,
it
was
amended
there
,
An
:
14
Jac.
1.
The
Lord
Hobart
inclined
strongly
,
that
it
should
be
amended
by
the
instruction
which
was
delivered
to
the
Cursitor
,
but
as
to
that
Winch
and
I
differed
,
because
that
this
matter
of
Instruction
is
not
a
thing
which
ought
to
be
informed
by
the
party
,
as
all
matters
of
fact
are
:
As
whether
it
be
a
Vicaridge
or
a
Church
,
or
in
debt
for
twenty
pounds
in
the
Instruction
,
and
he
make
it
thirty
pounds
,
that
shall
be
amended
:
But
in
this
case
it
is
matter
of
skill
,
and
no
difference
between
this
case
and
Freemans
case
:
And
in
debt
if
he
had
Instruction
in
the
Debet
and
Detinet
,
and
makes
the
Writ
in
the
Detinet
only
,
that
shall
not
be
amended
.
2.
The
Lord
Hobart
inclined
,
that
this
recitall
is
but
in
the
Preamble
,
and
may
be
omitted
;
to
which
we
disagreed
,
he
inclined
that
the
Abbreviation
was
sufficient
to
supply
all
the
word
.
This
Case
being
long
debated
,
the
Court
Ex
assensu
ordered
that
the
Defendants
should
give
80
l.
to
the
Plaintiff
.
Mich.
10
Jac.
Rot.
641.
Poole
versus
Reynold
.
IOhn
Poole
brought
a
Prohibition
against
Richard
Reynold
Farmer
of
the
Moyety
of
the
Rectory
of
Colleton
,
And
wheras
the
said
John
Poole
for
six
years
last
past
,
had
occupied
one
house
,
a
hundred
acres
of
Land
,
twenty
acres
of
Meadow
,
forty
acres
of
Pasture
,
called
Shute
Park
,
in
Shute
aforesaid
,
within
the
Parish
of
Colleton
;
which
said
Tenements
were
anciently
a
Park
,
and
now
dis-parked
,
which
Park
De
temps
d'out
memory
,
&c.
untill
the
dis-parking
therof
was
used
and
filled
with
Deer
,
and
severed
from
other
Land
,
and
was
dis-parked
.
An.
10
Eliz.
and
converted
into
the
said
house
,
a
hundred
acres
,
&c.
And
that
all
the
Occupyers
of
the
said
Park
called
Shute
Park
,
de
temps
d'out
memory
,
&c.
untill
the
dis-parking
,
had
paid
to
the
Vicar
there
,
his
Farmer
or
Deputy
one
Buck
of
the
Summer
season
,
within
that
time
upon
request
,
and
one
Doe
of
the
Winter
season
,
within
that
time
,
&c.
in
discharge
of
all
Tithes
of
the
said
Park
,
untill
the
dis-parking
;
and
after
the
dis-parking
in
discharge
of
all
Tithes
of
the
said
Tenements
,
which
they
had
accepted
for
all
the
time
aforesaid
,
untill
the
dis-parking
and
after
,
or
otherwise
agreed
with
the
Vicar
for
them
:
And
traversed
this
Prescription
,
and
found
for
the
Plaintiff
.
And
now
in
Arrest
of
Iudgment
it
was
moved
by
Henden
,
that
this
Prescription
extends
to
the
Land
quatenus
it
is
a
Park
,
and
that
being
destroyed
,
the
Prescription
is
gone
,
for
a
Tenurs
to
cover
a
Wall
or
Thatch
an
house
,
if
the
party
destroy
or
pull
it
down
,
the
Tenure
is
extinct
,
32
E
14
:
Avowry
:
And
it
shall
be
presumed
that
this
was
by
grant
when
it
was
a
Park
,
which
is
collected
by
the
thing
which
is
to
be
paid
;
and
if
it
be
to
be
paid
or
delivered
out
of
the
Park
,
then
it
is
determined
,
vide
Lutirels
case
,
Coke
lib
:
4
Also
this
Prescription
is
against
the
benefit
of
the
Church
,
and
shall
not
be
enlarged
;
And
the
Wood
which
is
sold
out
of
the
Park
shall
not
be
discharged
,
14
Jac.
in
Conyers
case
in
this
Court
;
vide
Lutirels
case
,
Coke
lib
:
4
fol:
86.
That
an
Alteration
in
prejudice
of
the
party
determine
the
Prescription
;
but
vide
the
principall
case
there
adjudged
,
that
building
of
new
Mills
in
the
same
place
,
and
converting
of
Fulling
Mills
into
Corn
Mills
,
alter
not
the
Prescription
,
vide
Terringhams
case
,
lib:
4.
He
which
hath
Common
purchased
part
of
the
Land
,
all
is
extinct
,
for
it
is
his
own
act
:
And
he
cited
a
case
which
was
in
this
Court
argued
at
Bar
,
and
afterwards
at
Bench
,
between
Cooper
and
Andrewes
,
Mich
:
10
Jac:
Rot
:
1023.
for
the
Park
of
Cowhurst
,
vide
32
E
:
1
Fitz
:
avowry
240.5
E
:
2.
Fitz
:
annuity
44.20
E
:
4.14.14
E
:
4.4
.
But
this
case
was
adjudged
for
the
Plaintiff
,
Quod
stet
prohibitio
,
and
that
which
is
by
the
name
of
Park
is
for
the
Land
,
and
is
annexed
to
the
Land
by
the
name
of
Park
,
if
the
Prescription
had
been
to
pay
a
Buck
or
a
Doe
out
of
the
Park
,
then
it
would
alter
the
case
:
But
it
is
generall
,
and
had
been
paid
also
after
the
Park
dis-parked
,
viz.
the
tenth
of
Eliz.
And
the
case
of
Cowper
and
Andrewes
,
was
the
third
shoulder
of
every
Deer
which
is
killled
in
the
Park
,
and
two
shillings
in
money
,
and
that
case
was
never
adjudged
.
Hil.
10
Jac.
Meredith
versus
Bonill
.
HUgh
Meredith
a
Iustice
of
Peace
in
the
County
of
Monmouth
,
brought
an
action
upon
the
case
against
Bonill
,
I
will
have
him
hanged
for
robbing
on
the
high
way
,
and
for
taking
from
a
man
five
pounds
and
an
Horse
.
After
Verdict
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
,
that
the
words
were
not
actionable
,
for
they
are
not
Affirmative
or
Positive
,
but
a
supposition
only
;
as
if
he
had
said
,
I
will
indite
him
for
such
a
matter
:
it
was
vouched
to
be
adjudged
51
Eliz.
in
Nowels
case
,
that
to
say
of
an
Attorna●●
.
That
he
was
Cooped
for
forging
Writs
maintain
an
action
:
And
14
Eliz.
He
is
infected
of
the
Robbery
,
and
he
smelleth
of
the
Robbary
,
adjudged
actionable
.
In
balls
case
,
There
is
never
a
Purse
cut
in
Northamptonshire
but
Ball
hath
a
part
of
it
,
will
not
bear
action
:
But
the
Court
would
not
declare
their
opinion
,
Quia
sub
spe
Concordiae
.
Griggs
Case
.
GRigg
which
is
the
Examiner
at
Chester
,
preferred
there
this
Bill
in
the
Chancery
,
vocat
.
the
Exchequer
,
Robert
Grigg
should
assign
a
lease
of
Tithes
to
the
Plaintiff
in
consideration
of
his
entry
into
the
said
Obligation
;
and
if
he
could
not
procure
it
,
that
then
the
Obligation
should
not
be
prejudiciall
to
him
;
and
he
which
was
distributing
in
Chester
answered
therto
:
And
an
Order
was
made
by
Sir
Thomas
Ireland
,
Vice-Chamberlain
,
that
Processe
should
be
awarded
to
him
which
dwelleth
in
London
;
And
an
Inquisition
was
granted
to
stay
the
proceedings
at
Common
Law
:
And
afterwards
upon
the
motion
of
Serjeant
Hitchar●
,
Sir
Thomas
Ireland
was
in
Court
,
and
shew
all
that
he
could
to
maintain
the
Iurisdiction
,
viz.
That
the
Contract
was
made
in
the
County
Palatine
,
and
that
the
priviledge
pursued
the
Plaintiff
;
and
ipse
qui
est
reus
,
non
potest
eligere
,
&c.
Yet
it
was
resembled
to
ancient
Demesn
and
Guildable
:
And
by
Lord
Hobart
,
he
which
inhabit
at
Dove●
by
this
way
,
may
be
inforced
to
come
and
answer
to
a
Bill
in
Chester
,
which
would
be
infinite
trouble
,
and
the
matter
is
transitory
:
And
it
was
resolved
,
that
the
Court
of
Chester
had
not
power
in
this
case
,
but
it
belonged
to
the
Chancery
of
England
.
And
a
Prohibition
was
granted
.
Hil.
20
Jac.
ONe
case
was
in
the
Kings
Bench
,
viz.
Serjeants
Inn
in
Chancery
Lane
,
at
the
Table
,
the
Lord
chief
Baron
was
of
opinion
that
Plaintiff
should
have
Iudgment
for
that
part
,
and
he
held
the
Writ
good
in
part
,
and
Reddenda
singula
singulie
,
Me●enest
issint
,
as
it
seems
no
more
then
in
the
case
of
9
E
:
4.
for
there
the
Writ
shall
avate
for
part
.
And
if
an
action
of
forgery
of
Deeds
be
brought
against
two
,
for
forging
and
publishing
,
and
found
that
one
forged
and
the
other
published
,
the
Plaintiff
shall
have
Iudgment
.
Howell
versus
Auger
.
Noy
Howell
against
Auger
,
for
breaking
of
a
house
and
five
acres
of
Land
in
Fresham
,
upon
Non
Culp
.
pleaded
,
the
Iury
gave
a
speciall
Verdict
.
seised
of
the
Land
in
Question
,
and
of
other
Land
,
by
his
Will
in
writing
devised
this
Land
to
Dorothy
his
Wife
for
life
,
and
devised
this
Land
to
Thomas
Howell
his
younger
Son
,
to
him
and
his
Heirs
in
Fee
,
under
the
Condition
which
shall
be
afterwards
declared
:
And
the
other
Land
was
also
devised
to
Dorothy
for
life
,
and
to
the
Plaintiff
and
his
Heirs
in
Fee
,
under
the
Condition
hereafter
limited
:
If
Dorothy
died
before
the
Legacies
paid
,
then
he
will
that
they
shall
be
paid
by
Noy
and
Thomas
his
Sons
,
portion-like
out
of
the
Houses
and
Lands
given
them
:
And
if
either
of
my
Sons
dye
before
they
enter
,
or
before
the
Legacies
paid
,
or
before
either
of
them
enter
;
Then
I
will
that
the
longer
liver
shall
enjoy
both
parts
to
him
and
his
Heirs
:
And
if
both
dye
before
they
enter
,
then
his
Executors
or
one
of
them
to
pay
the
Legacies
,
and
to
take
the
profits
till
they
be
paid
,
and
a
year
after
,
and
made
Dorothy
his
Wife
,
and
Christopher
Roys
his
Executors
,
and
died
.
Dorothy
entred
,
the
Plaintiff
Noy
by
his
Deed
,
In
:
33
Eliz.
in
the
life
of
Dorothy
released
to
Thomas
all
his
right
,
&c.
with
Warranty
:
by
his
Will
devised
the
Land
,
for
which
the
action
is
brought
,
to
Agnes
his
Wife
,
and
died
in
the
life
of
Dorothy
,
and
before
Legacies
paid
Dorothy
died
,
and
Agnes
entred
and
took
to
Husband
Henry
Ayleyard
,
who
leased
to
the
Defendant
,
upon
whom
Noy
entred
,
and
the
Defendant
re-entred
:
And
Si
super
totam
Materiam
,
&c.
And
this
Case
was
well
argued
at
Bar
in
two
Terms
;
and
the
first
question
was
,
If
this
Devise
of
a
Fes
after
a
Limitation
be
good
or
not
,
much
was
said
for
it
,
and
they
relyed
upon
a
case
which
was
adjudged
in
the
Kings
Bench
,
between
Pell
and
Brown
,
of
such
a
limitable
Fee
:
I.
S.
shall
have
the
Land
,
and
it
shall
be
good
,
vide
Dyer
33.
Coke
lib
:
10.46
.
Lampets
case
.
But
Tuesday
the
eleventh
of
February
,
the
Lord
Hobart
by
our
direction
(
because
that
we
were
streightned
of
time
,
and
Howell
was
so
importunate
for
Iustice
,
that
we
could
not
argue
)
delivered
the
opinion
of
the
Court
,
that
Iudgment
should
be
given
for
the
Defendant
:
And
he
declared
,
that
as
to
the
point
of
a
Fee-simple
,
which
he
called
the
mounting
of
one
Fee-simple
upon
another
,
we
now
declared
no
opinion
;
But
we
all
without
difficulty
resolved
,
that
this
release
of
Noy
,
be
it
a
Condition
or
not
,
had
discharged
it
:
And
as
to
him
,
it
is
an
Interest
used
by
the
Devise
,
but
not
executed
untill
it
happen
:
And
therfore
in
Lampers
case
,
there
the
Release
discharged
it
,
for
there
he
had
no
Title
executed
,
but
vested
and
commenced
,
and
so
may
have
Noy
Howell
the
Plaintiff
in
this
case
;
and
it
is
not
like
to
an
Heir
in
the
life
of
the
Father
,
for
be
is
a
stranger
,
and
he
hath
no
Title
at
all
,
and
yet
his
Release
with
Warranty
bars
him
;
and
here
this
Release
is
accompanied
with
Warranty
,
of
which
nothing
was
spoken
:
Also
as
to
Noy
it
is
a
Condition
according
to
the
words
of
the
Will
,
and
therfore
sans
question
that
Noy
had
barred
himself
.
The
Vacation
after
Hil.
20
Jac.
MEmorand.
That
on
Munday
the
seventeenth
of
February
,
at
Serjeants
Inn
,
upon
the
assembly
of
all
the
Iustices
,
to
take
consideration
upon
the
Statute
of
35
Eliz.
cap.
1.
for
the
Abjuration
of
Sectaries
;
the
Atturney-generall
,
and
Serjeant
Crew
being
there
,
1.
If
a
Parliament
be
assembled
,
and
divers
Orders
made
,
Brook
,
Parliament
86.
every
Session
in
which
the
King
signes
Bills
is
a
Parliament
.
2.
It
was
agreed
,
that
if
divers
Statutes
be
continued
untill
the
next
Parliament
,
or
next
Session
;
and
there
is
a
Parliament
or
a
Session
,
and
nothing
done
therin
as
to
continuance
,
all
the
said
Statutes
are
discontinued
,
&
Beriatim
,
Jones
,
Chamberlain
,
Hutton
,
Denham
,
Haughton
,
Dodderidge
,
Winch
and
Bromley
declared
their
opinions
,
that
this
Statute
is
discontinued
:
And
that
the
Statute
of
Subsidy
is
a
Parliament
,
and
that
every
Parliament
is
a
Session
,
but
not
e
converso
,
for
one
Parliament
may
have
divers
Sessions
,
as
the
Parliament
1
Jac:
had
four
,
and
ended
An
:
7
Jac.
vide
33
H
:
6.
Br.
Parliament
86.
And
that
this
Proviso
is
not
to
any
other
purpose
,
but
to
continue
their
proceedings
in
the
same
Estate
,
as
if
this
Act
had
not
been
made
;
and
if
this
Proviso
had
not
been
,
then
this
Statute
had
been
discontinued
by
this
act
of
Subsidy
,
but
when
this
ends
and
is
determined
,
then
is
the
Session
ended
,
then
it
is
a
Session
scilicet
a
Parliament
,
which
ought
to
be
pleaded
,
at
the
Parliament
holden
,
&c.
and
all
the
Commissions
of
Subsidy
are
accordingly
;
and
the
Proviso
call
it
a
Session
:
Then
this
being
done
,
the
Lord
chief
Baron
did
not
deliver
any
opinion
,
for
he
said
,
that
he
had
not
considered
the
Statute
;
and
afterward
it
was
desired
that
the
Lords
would
deliver
their
opinions
,
and
therupon
the
Lord
Hobart
declared
his
opinion
accordingly
;
That
it
seemed
to
him
that
it
was
a
Session
,
and
that
it
was
not
safe
to
meddle
with
such
Law
,
and
that
he
would
never
refuse
to
declare
his
opinion
with
his
Brethren
:
After
the
Lord
chiefe
Iustice
Ley
made
a
long
discourse
,
concerning
the
purpose
and
intent
of
Parliament
,
scilicet
.
That
it
was
not
their
purpose
to
destroy
so
good
Lawes
,
and
therfore
it
was
not
any
such
Session
as
was
within
the
intent
of
the
preceding
Parliament
,
which
was
,
that
these
should
determine
when
it
is
a
Parliament
or
Session
,
in
which
good
Lawes
are
made
.
And
Doderidge
said
,
that
it
was
fit
to
see
the
Commission
,
and
that
that
which
hath
been
said
,
was
not
to
bind
any
one
,
but
every
one
spoke
what
then
he
was
advised
of
,
and
peradventure
might
change
upon
better
consideration
.
And
afterwards
upon
Tuesday
on
an
Assembly
of
the
two
chief
Iustices
,
the
chief
Baron
,
Iustice
Haughton
,
Baron
Denham
,
Hutton
,
Chamberlain
,
and
Jones
,
the
Attorney-generall
brought
the
Commission
de
12
El.
June
1.
and
that
had
these
words
,
Pro
eo
quod
nullus
Regalis
Assensus
,
nec
responsio
per
nos
praestat
.
fuit
,
nullum
Parliamentum
,
nec
aliqua
Sessio
Parliamenti
lata
.
aut
tent
.
fuit
,
They
have
power
to
adjourn
this
Parliament
thus
begun
:
And
the
Commission
to
dissolve
this
Parliament
,
38.
Feb.
An.
19
Jac.
had
the
same
words
,
saving
that
he
recite
,
that
he
had
given
his
Royall
assent
to
an
act
of
Subsidy
,
by
which
was
intended
that
it
should
not
be
a
Session
:
And
upon
view
of
the
Commission
,
the
Lord
chief
Iustice
moved
that
the
King
was
mistaken
in
this
,
that
he
had
given
power
to
dissolve
this
Parliament
,
which
had
not
any
Session
,
and
if
it
be
a
Session
,
then
he
had
no
power
to
dissolve
it
,
and
then
it
is
,
as
it
were
,
a
recesse
;
and
a
Parliament
cannot
be
discontinued
,
or
dissolved
but
by
matter
of
Record
,
and
that
by
the
King
alone
;
and
if
the
Parliament
yet
continue
,
then
this
Statute
also
continue
during
the
Parliament
by
the
Proviso
:
but
that
would
not
serve
,
for
first
,
it
is
against
the
intent
of
the
King
,
and
against
his
Proclamation
:
And
also
the
case
is
truly
put
in
the
Commission
,
as
to
the
matter
in
fact
,
and
he
is
not
mis-informed
,
but
mistaken
in
the
Law
,
and
then
the
Commission
for
the
dissolving
is
good
,
semblable
to
the
Lord
Shandoi's
Case
,
and
other
Cases
,
vide
in
Cholmleys
case
:
But
because
that
all
the
Iudges
were
not
at
this
Conference
,
therfore
it
was
deferred
untill
the
next
Term
;
and
in
the
interim
,
the
Grand
Secretary
and
the
Attorney-generall
were
to
inform
the
King
that
the
Statute
is
obscure
,
and
had
not
been
put
in
ure
,
and
that
we
could
not
agree
.
Mich.
20
Jac.
Rot.
2805.
Bawtry
versus
Skarlet
.
Sussex
.
JOhn
Bawtry
Clerk
,
Benjamen
Skarlet
,
one
of
the
Attorneys
of
this
Court
by
Bill
,
and
count
,
William
Carter
,
Trin.
20
Jac.
brought
an
action
of
debt
against
the
now
Plaintiff
,
upon
an
Obligation
of
a
hundred
and
twenty
pounds
,
to
which
the
now
Plaintiff
appeared
by
his
Attorney
,
and
required
a
Declaration
,
and
the
now
Defendant
on
the
part
of
the
said
William
Carter
his
Master
gave
the
said
Declaration
,
and
required
the
now
Plaintiff
to
confesse
the
action
;
and
pendente
Pl.
he
the
now
Defendant
in
consideration
that
the
Plaintiff
would
give
order
to
his
Attorney
to
confesse
the
action
,
and
to
suffer
the
said
Defendant
to
have
Iudgment
in
the
said
Plea
,
for
the
said
William
Carter
his
Master
,
assumed
to
the
Plaintiff
,
that
no
Iudgment
should
be
entred
,
untill
after
Crast
.
Annunciat
.
And
that
no
execution
shall
be
sued
out
untill
after
the
end
of
Michaelmas
Term
next
,
and
shew
the
performance
therof
by
him
,
and
the
breach
of
the
Defendant
:
And
after
Verdict
it
was
moved
that
it
is
no
sufficient
consideration
,
and
that
was
impossible
for
him
to
perform
,
that
Iudgment
should
not
be
entred
in
the
Term
,
in
which
Iudgment
is
given
,
but
that
is
in
the
discretion
of
the
Court
;
and
afterwards
Iudgment
was
given
for
the
Plaintiff
.
Pach.
19
Jac.
Rot.
3014.
21
Jac.
Jennings
versus
Pitman
.
RIchard
Jennings
brought
an
action
of
Covenant
against
George
Pitman
,
upon
an
Indenture
of
an
Apprentiship
,
The
Defendant
pleaded
the
Statute
of
5
Eliz.
by
which
it
is
enacted
,
That
it
is
not
lawfull
for
any
one
inhabiting
in
any
City
or
Towne
Corporate
,
using
the
Trade
of
a
Merchant
over
the
Sea
,
Mercer
,
Pannary
,
Goldsmith
,
Iron-monger
,
Imbroyderer
,
or
Clothier
to
take
any
Apprentice
to
be
instructed
in
any
of
these
Trades
,
if
it
be
not
his
Son
,
or
that
the
Father
or
Mother
of
such
Apprentice
,
had
at
the
time
of
the
taking
of
him
,
Lands
,
Tenements
,
or
Hereditaments
,
of
Inheritance
or
Freehold
,
of
forty
shillings
per
annum
,
to
be
certified
by
three
Iustices
of
Peace
,
under
their
hands
and
Seals
where
the
Land
lies
,
to
the
Mayor
,
Bayliffs
,
or
other
head
Officer
of
the
City
or
Town
Corporate
,
and
to
be
inrolled
,
entred
,
and
recorded
there
,
and
pleaded
the
clause
of
the
Statute
which
makes
Obligations
and
Covenants
void
,
which
are
taken
against
it
.
And
averred
that
Ipswich
was
a
Town
Corporate
at
the
time
of
the
making
of
the
Statute
.
The
Plaintiff
replyed
,
that
his
Father
had
at
that
time
when
he
was
bound
,
Lands
and
Tenements
in
great
Bealing
,
viz.
ten
acres
,
to
the
Value
of
forty
shillings
per
annum
.
The
Defendant
by
Rejoynder
offer
to
joyn
Issue
,
that
his
Father
had
not
Lands
,
&c.
wherupon
the
Plaintiff
demurred
.
And
the
question
was
,
If
this
part
of
the
Statute
,
To
be
certified
by
the
Justices
,
&c.
be
such
an
essentiall
part
therof
,
that
the
Covenant
be
void
without
it
:
It
was
agreed
,
that
it
had
not
been
put
in
use
after
the
Statute
;
but
it
seems
that
it
is
Essentiall
,
and
it
ought
to
be
so
,
at
the
time
when
he
is
put
to
be
an
Apprentice
,
but
it
may
be
enrolled
afterwards
,
for
the
Statute
in
another
part
provides
a
penalty
for
the
not
Inrolling
:
Like
to
the
Case
upon
the
Statute
of
18
Eliz.
That
they
which
claim
any
Estate
of
them
which
were
Attainted
in
the
Rebellion
,
they
brought
their
Conveyances
to
the
Exchequer
to
be
inrolled
within
one
year
,
if
they
bring
and
deliver
these
Conveyances
,
though
they
be
not
inrolled
,
yet
they
have
performed
as
much
as
was
in
them
:
And
if
the
Certificate
be
not
at
the
time
when
the
party
is
put
to
be
an
Apprentice
,
the
Statute
was
to
no
purpose
.
If
this
Bar
be
good
,
then
the
Replication
is
a
departure
,
and
the
Rejoynder
also
,
and
the
Bar
being
good
,
Iudgment
shall
be
given
against
the
Plaintiff
,
but
if
the
Bar
be
not
good
,
then
for
the
Plaintiff
,
for
the
Count
contains
matter
certain
.
But
the
Court
moved
,
whether
this
Covenant
lay
against
an
Insant
,
for
although
it
is
by
the
Statute
provided
,
that
he
shall
be
bound
to
serve
as
a
man
of
full
age
,
yet
that
makes
not
the
Covenants
good
,
and
it
is
like
to
a
Custom
,
which
shall
be
taken
strictly
.
Trin
20
Jac.
This
Case
between
Jennings
and
Pitman
was
moved
this
Term
;
And
the
Lord
Hobart
was
of
opinion
,
that
this
Statute
(
being
that
it
appears
that
he
was
within
age
,
scil.
sixteen
years
)
will
not
bind
him
to
any
Covenants
which
are
not
implyed
in
the
Indenture
of
serving
:
For
the
doubt
was
,
whether
an
Infant
was
an
Apprentice
out
of
London
,
though
that
he
put
himself
to
serve
:
And
the
only
matter
which
binds
him
in
this
Statute
,
is
,
that
he
shall
be
bound
to
serve
,
when
he
is
bound
by
Indenture
,
being
within
age
,
as
well
as
if
he
were
of
full
age
;
and
if
the
Covenant
be
only
a
Covenant
to
serve
,
no
Covenant
lies
for
Imbeziling
of
Goods
:
And
if
the
Covenant
be
to
serve
him
faithfully
and
diligently
,
that
shall
not
bind
him
upon
this
Covenant
.
And
I
was
of
the
same
opinion
,
for
it
is
only
made
good
as
to
the
serving
;
and
there
are
many
Covenants
and
Clauses
besides
in
this
Indenture
,
which
bind
him
not
;
As
not
to
play
at
unlawfull
Games
,
&c.
And
a
Custom
,
that
an
Infant
at
such
an
age
may
sell
his
Land
,
shall
be
taken
strictly
,
viz.
that
he
cannot
give
it
,
&c.
But
my
Brother
Winch
was
of
opinion
,
that
it
was
a
thing
incident
,
and
a
quasi
Consequent
,
viz.
That
if
he
shall
be
bound
to
serve
,
by
consequence
he
shall
be
bound
to
serve
faithfully
and
truly
.
He
resembled
it
to
the
case
of
a
Fine
levied
by
an
Infant
,
and
not
reversed
during
his
●onage
,
that
shall
bind
him
;
and
by
consequence
the
Indenture
which
leads
the
uses
of
the
Fine
,
and
when
the
Law
enables
to
any
thing
,
that
which
is
incident
,
and
without
which
the
other
thing
cannot
be
,
is
implyed
.
Trin.
19
Jac.
Rot.
1734.
Blemmer
Hasset
versus
Humberstone
.
Norf.
JN
an
Ejectione
firmae
brought
by
Ralph
Blemmerhasset
against
William
Humberstone
for
Land
in
Pucklethorp
,
John
B.
upon
a
speciall
Verdict
found
,
it
was
resoved
,
vide
Coke
lib.
4.
That
a
Release
by
him
which
hath
Right
to
a
Copyhold
,
to
one
which
is
admitted
Copyholder
,
extinguisheth
the
Right
of
the
Copyhold
by
Deed
:
And
if
a
Copyholder
release
to
the
Lord
,
that
extinguisheth
the
Copyhold
,
although
it
be
contrary
to
the
nature
of
a
Release
to
give
a
possession
.
It
was
agreed
here
that
this
Copyhold
is
not
extinct
,
but
the
Lord
(
which
is
Lessee
for
years
)
Dominus
pro
tempore
,
may
grant
it
by
Copy
de
novo
.
Mich.
21
Jac.
Aris
versus
Higgins
.
ARis
brought
an
action
upon
the
case
against
Higgins
for
saying
these
words
,
He
is
a
Theef
,
and
hath
stol●
my
Corn
,
and
made
me
no
satisfaction
:
And
it
was
found
for
the
Plaintiff
,
and
afterwards
moved
in
Arrest
of
Iudgment
,
that
these
words
were
not
actionable
,
for
Verba
ambigua
in
mitiori
sensu
sunt
accipienda
:
And
therfore
Coke
.
lib
:
4.
fol:
19.
Thou
art
a
Theef
,
for
thou
hast
stoln
Apples
out
of
my
Orchard
,
or
thou
hast
robbed
my
Hop
gound
;
the
latter
words
qualifie
the
generality
of
the
former
;
Also
an
Innuendo
will
not
make
either
the
person
or
the
matter
certain
,
Coke
lib
:
4.
fol:
10.
Barham
did
burn
my
Burn
,
Innuendo
a
Barn
with
Corn
,
not
actionable
;
and
that
he
had
not
satisfaction
,
that
proves
that
it
was
for
Corn
growing
,
for
otherwise
if
it
were
Felony
,
the
party
shall
not
have
satisfaction
:
But
Iustice
Winch
was
of
opinion
,
that
the
action
lay
,
and
that
the
words
,
He
is
a
Theef
,
he
hath
stoln
my
Corn
,
are
both
actionable
,
and
not
like
to
Robbing
my
Orchard
,
or
stealing
my
Apples
in
my
Orchard
,
for
Apples
in
an
Orchard
are
commonly
upon
the
Trees
:
And
as
to
the
words
,
Thou
hast
made
me
no
satisfaction
,
these
do
not
qualifie
the
former
words
,
Thou
art
a
Theef
,
and
hast
stoln
a
bundle
of
Fitches
,
adjudged
actionable
:
Iustice
Jones
was
of
the
same
opinion
,
for
stealing
of
his
Corn
shall
be
intended
of
Corn
severed
,
for
otherwise
it
is
acres
of
Corn
,
or
Corn
growing
.
Serjeant
Hobart
was
of
opinion
,
that
the
words
shall
be
intended
in
mitiori
sensu
:
And
we
all
agreed
,
that
that
which
qualifies
or
extenuates
words
,
ought
to
be
full
and
not
ambiguous
.
Rud
versus
the
Bishop
of
Lincoln
.
IN
a
Quare
impedit
brought
by
Edward
Rud
against
the
Bishop
of
Lincoln
,
Lord
keeper
,
Drury
and
Stubbin
,
for
the
Church
of
Dackworth
,
upon
Evidence
at
Bar
,
these
Points
were
resolved
in
the
Court.
2.
When
the
King
present
one
by
Laps
,
not
having
any
Title
of
Laps
,
and
a
recovery
is
had
against
him
in
a
Quare
Impedit
by
one
which
had
no
Title
:
If
this
gain
the
Patronage
;
And
it
is
clear
the
King
had
no
Title
to
present
;
and
although
he
which
comes
in
by
such
Laps
,
is
not
Incumbent
,
nor
gains
the
Patronage
,
yet
he
is
Incumbent
as
to
all
Ecclesiasticall
matters
,
to
have
Offerings
,
Tithes
,
&c.
for
it
is
only
as
to
the
rightfull
Patronage
,
no
gaining
of
the
Patronage
,
but
he
may
present
,
vide
Greens
case
,
Coke
lib.
6.
fol.
29.
3
:
It
was
resolved
by
the
Court
,
that
when
one
recover
in
a
Quare
Impedit
,
although
that
no
Writ
be
awarded
to
the
Bishop
,
yet
if
upon
non
presentment
the
Bishop
will
admit
and
institute
his
Clerk
,
and
he
is
Inducted
:
And
that
is
good
,
as
wel
as
a
man
may
enter
without
a
Writ
of
Habere
factas
seisinam
after
recovery
,
so
may
the
Patron
which
hath
recovered
in
a
Quare
Impedit
present
,
and
that
being
accepted
,
and
Institution
and
Induction
pursuing
therupon
,
it
is
good
.
4.
Also
,
whore
the
Issue
was
,
whether
the
Church
was
void
at
the
time
of
the
presentment
of
Palu
or
not
;
and
it
appears
that
the
case
was
,
that
Thomas
Rud
after
the
Church
was
void
by
the
death
of
Clement
Rud
,
and
after
that
one
Taxall
was
presented
by
Laps
and
Admitted
,
Instituted
,
and
Inducted
where
the
King
had
not
Title
,
the
said
Thomas
Rud
having
good
Title
to
present
,
made
a
writing
of
presentation
of
the
said
Paul
,
and
after
(
be
it
then
exhibited
to
the
Bishop
,
or
no
)
The
said
Thomas
Rud
brought
a
Quare
Impedit
,
and
recovered
,
and
afterwards
this
Presentation
is
exhibited
to
the
Bishop
,
and
he
admit
,
institute
,
and
makes
a
Mandate
for
Induction
,
which
also
is
afterward
done
accordingly
.
Now
the
Issue
being
,
whether
the
Church
was
void
at
the
time
of
the
Presentation
of
Pain
,
the
time
of
this
Presentation
shall
now
be
the
time
of
exhibiting
therof
after
the
Judgment
:
And
then
as
to
Rud
which
had
recovered
against
him
,
the
Church
was
then
void
,
for
whensoever
the
Bishop
had
the
Presentation
exhibited
,
at
that
time
he
ought
by
the
Law
to
admit
,
institute
,
and
give
a
Mandate
for
Induction
,
the
then
Church
is
void
:
But
after
the
Judgment
the
Bishop
ought
to
accept
that
,
and
admit
and
institute
,
Ergo
at
that
time
the
Church
was
void
,
and
that
is
to
be
the
time
of
the
Presentation
.
5.
When
one
having
good
Title
to
present
,
and
an
Incumbent
by
Usurpation
is
admitted
,
instituted
,
and
inducted
,
and
after
that
the
Patron
present
,
and
the
Bishop
refuse
,
and
after
the
Patron
recover
,
and
then
he
which
had
this
Presentation
exhibite
it
to
the
Bishop
,
this
is
now
a
good
Presentation
;
and
the
Patron
cannot
revoke
or
give
him
a
new
Presentation
,
but
if
the
Patron
before
the
death
of
the
Incumbent
makes
Letters
of
Presentation
,
that
is
void
,
because
he
had
no
Title
to
present
.
Hil.
20
Jac.
Rot.
1942.
Pleydell
versus
Gosmoore
.
Wilts.
EDmond
Pleydell
brought
an
action
of
Trespasse
against
Richard
Gosmoore
,
William
G.
for
the
taking
and
chasing
of
a
Colt
and
fettering
of
him
,
with
a
Continuando
as
to
the
fettering
.
The
Defendant
convey
the
Mannor
of
Sharston
to
Francis
Earl
of
Hertford
:
And
that
the
Earl
,
and
all
those
whose
Estates
,
&c.
had
the
Estrayes
which
come
within
the
said
Mannor
,
〈◊〉
that
the
Tithing-men
for
the
time
being
,
seised
the
Estrayes
and
proclaimed
them
at
the
next
Market
or
Fair
,
&c.
and
kept
them
untill
they
be
claimed
or
forfeited
:
And
that
he
was
a
Tithing-man
,
and
seised
this
Colt
as
an
Estray
;
and
because
this
Colt
was
so
feirce
,
&c.
that
he
could
not
be
kept
in
Pasture
,
he
fettered
him
,
and
kept
him
in
his
Pasture
within
the
Mannor
,
and
that
for
the
space
of
two
weeks
,
and
the
Plaintiff
having
notice
claimed
him
,
and
had
him
delivered
,
&c.
The
Plaintiff
demurred
generally
.
Attho
said
,
that
he
had
not
avorred
that
he
continued
feirce
,
&c.
but
at
the
time
of
taking
was
so
:
To
this
it
was
answered
,
That
the
Count
chargeth
not
the
Defendant
absolutely
with
all
the
time
,
but
Diversis
diebus
&
vicibus
:
And
also
he
justifie
for
two
weeks
,
which
is
the
same
Trespasse
:
Then
upon
the
matter
the
question
is
,
if
he
which
hath
Estrayes
or
Waifes
,
if
he
seise
an
Estray
qui
est
ferox
,
whether
he
may
fetter
such
Estray
.
It
was
agreed
by
the
Court
,
that
when
an
Estray
comes
within
a
Mannor
and
walk
there
,
this
is
a
Trespasse
,
and
the
party
in
whose
Land
the
Estray
is
Damage-feasant
,
may
chase
him
out
of
his
ground
.
Also
it
was
agreed
,
that
untill
the
Lord
,
or
his
Bayliff
,
or
Tithing-man
seise
the
Estray
,
that
shall
not
be
said
an
Estray
;
but
when
the
Lord
seise
,
than
he
hath
the
Commencement
of
a
property
therby
,
and
he
is
chargable
against
all
others
for
the
Trespasse
which
this
Estray
doth
;
and
if
this
Estray
within
the
year
estray
out
of
the
Mannor
,
the
Lord
may
chase
back
the
Estray
,
untill
he
be
seised
by
another
Lord
which
hath
Estrays
:
But
if
he
be
seised
by
another
Lord
,
then
the
first
hath
lost
all
his
possibility
of
gaining
the
property
,
and
the
other
Lord
ought
to
proclaim
it
de
novo
.
It
was
moved
,
that
if
a
Lord
of
a
Mannor
which
hath
Estrayes
,
and
hath
seised
an
Estray
,
suffer
that
Estray
by
negligent
keeping
to
stray
away
,
and
never
can
be
found
again
,
the
Owner
may
have
an
action
upon
the
case
of
Trover
and
Conversion
against
the
Lord
,
Quare
vide
44
E
:
14.
there
the
Lord
seised
an
Asse
for
an
Estray
,
he
to
whom
the
property
did
belong
came
and
challenged
the
Estray
,
the
Lord
may
detain
him
untill
he
tender
sufficient
recompence
for
the
Pasture
,
vide
purc.
20
H
7.
1.
by
Vavisor
,
and
39
E
:
3.
3.
That
the
Owner
cannot
take
an
Estray
untill
he
tender
recompence
;
likewise
the
Lord
after
seisin
of
the
Estray
,
if
he
took
him
not
Damage-seasant
,
may
have
Replevin
,
and
he
ought
to
make
him
amends
.
The
Lord
cannot
work
the
Estray
,
but
may
keep
him
in
his
Stable
:
And
if
the
Sheriff
upon
a
Fieri
facias
fetter
the
Colt
,
and
after
the
Defendant
redeem
him
for
money
,
he
shall
not
have
trespasse
,
vide
6
E
:
3.
8.
it
is
not
alledged
that
the
fettering
was
to
any
damage
of
the
Estray
,
vide
22
Ass.
56.
Entred
Pasch.
18
Jac.
Rot.
650.
Treherne
versus
Cleybrooke
.
IOhn
Treherne
brought
an
action
of
Debt
against
Cleybrooke
,
and
count
of
a
Lease
made
by
John
Treherne
Grand-father
to
the
Plaintiff
,
of
Lands
in
S.
Olives
in
Surrey
,
and
intituled
himself
by
the
Will
of
the
Grand-father
,
by
which
he
devised
the
Lands
to
the
Plaintiff
in
tail
,
John
Treherne
the
Grand-child
,
when
he
come
to
the
age
of
one
and
twenty
years
,
or
if
he
dies
,
for
the
raising
of
a
Stock
for
Leonard
in
like
manner
,
he
willed
that
Edward
Griffin
and
Anne
his
Wife
shall
take
the
profits
,
and
shall
receive
all
the
rent
of
the
Land
devised
to
John
Treherne
,
to
their
own
use
,
untill
he
come
to
the
age
of
one
and
twenty
years
,
upon
Condition
,
and
so
as
the
said
Edward
Griffin
and
Anne
shall
within
three
months
after
the
death
of
the
Testator
become
bound
to
his
Overseers
in
an
Obligation
,
with
such
penalty
as
the
said
Overseers
shall
think
fit
to
pay
to
the
said
John
,
or
if
he
dye
without
Issue
to
the
said
Leonard
,
within
three
months
after
he
come
of
age
,
such
a
summ
,
the
Condition
to
be
drawn
and
devised
by
his
Overseers
:
And
if
Edward
Griffin
and
his
Wife
refuse
,
then
the
Overseers
should
receive
the
Rent
and
Profits
to
their
proper
use
:
(
But
the
Condition
appoint
not
to
whom
the
Overseers
shall
be
bound
.
)
And
made
Edward
Griffing
and
William
Iremonger
his
Executors
,
and
I.
and
others
Supervisors
,
and
died
;
and
that
within
fourteen
daies
after
the
death
of
the
Testator
,
the
Will
was
read
to
the
said
Overseers
:
And
that
they
did
not
devise
or
draw
(
within
the
time
appointed
)
any
Obligation
,
nor
tendred
any
within
that
time
,
and
that
notice
therof
was
given
to
the
Defendant
,
and
that
the
Rent
was
demanded
,
and
the
Reversion
claimed
by
the
Plaintiff
,
sed
utrum
,
&c.
Vpon
the
Argument
of
Serjeant
Harris
which
argued
for
the
Plaintiff
,
and
vouched
21
H.
6.
6.
That
when
one
made
Executors
,
and
also
Coadjutors
,
the
Coadjutors
are
not
Executors
,
and
that
it
is
a
Condition
precedent
,
vide
14
H
:
8.
22.
Wheelers
case
,
46
E
:
3.
5.
Truels
case
,
Coke
lib:
5.
127.
Palmers
case
,
4
E
:
3.
39.
11
H
:
4.
18.
And
because
that
in
this
case
the
said
Edward
Griffin
and
his
Wife
are
to
have
benefit
,
they
ought
to
require
them
to
nominate
the
summ
:
But
because
it
appears
to
the
Court
that
this
Action
is
founded
upon
a
Contract
in
Law
,
therfore
it
ought
to
be
brought
in
Surrey
;
as
it
was
agreed
in
Ungle
and
Glovers
case
,
An
:
36
Eliz:
vide
Coke
lib
:
3.
fol:
23.
Nota
,
that
the
Iudgment
is
speciall
for
this
cause
,
and
no
costs
upon
the
Statute
of
23
H
:
8.
for
the
Defendant
,
for
the
Statute
saies
,
that
upon
a
Contract
made
by
the
Plaintiff
,
the
Defendant
shall
have
costs
,
and
yet
upon
this
Statute
if
the
Executor
be
non-suited
,
or
Verdict
given
against
him
,
he
shall
not
pay
costs
,
vide
Statute
4
Jac:
cap.
3.
seems
to
be
full
in
all
cases
where
the
Plaintiff
shall
have
his
costs
upon
Non-suit
,
or
when
the
Verdict
passe
against
him
,
the
Defendant
shall
have
costs
,
yet
it
hath
been
taken
that
it
shall
be
intended
in
actions
of
Debt
upon
the
Contract
of
the
Plaintiff
himself
,
for
Executors
neither
upon
Verdict
nor
upon
Non-suit
shall
pay
any
costs
,
because
that
their
actions
are
brought
upon
Debts
or
Contracts
,
not
made
between
them
and
the
Defendants
,
vide
the
Statute
of
Glocester
,
cap
:
1.
that
where
a
man
recover
damages
,
there
also
he
shall
have
costs
.
Hickson
versus
Hickson
.
HIckson
Demandant
in
Dower
against
Hickson
;
They
are
at
issue
,
the
Tenant
offer
to
be
essoined
upon
the
Venire
facias
,
and
for
want
of
the
Adjornment
therof
by
the
Demandant
,
Petit
Cape
is
awarded
.
And
now
upon
motion
by
Serjeant
Henden
,
who
relyed
upon
the
Non-suit
,
and
that
the
Essoin
was
allowable
by
the
Statute
of
Westminster
2.
post
exitum
habeat
unicam
Essoniam
;
but
it
was
ruled
,
and
the
Prothonatories
all
said
,
that
it
had
been
the
constant
use
,
that
no
Essoins
are
allowed
in
Dower
,
which
is
festinum
remedium
,
vide
Stat.
12
E
:
2.
cap
:
1.
hath
tolled
the
Essoin
of
the
Service
of
the
King
in
many
cases
,
and
given
to
the
Demandant
in
many
cases
power
ad
callumpniand
.
Essoniam
:
And
the
words
of
the
Statute
are
,
Non
jacet
in
breve
de
dote
,
quia
videtur
deceptio
&
prorogatio
juris
,
vide
Dyer
324.
There
after
the
Issue
joyned
,
Essoin
at
the
day
of
the
Venire
facias
,
though
no
Venire
facas
be
sued
out
,
but
only
awarded
upon
the
Roll.
Mich.
21
Jac.
Linleys
Case
.
Gny
Palmes
Sheriff
of
York
,
vpon
the
Statute
32
H
:
6
,
and
it
was
shewn
,
that
he
being
under
Sheriff
,
a
Capias
ad
satisfaciendum
was
delivered
to
him
,
to
Arrest
one
Francis
Lancaster
upon
a
Iudgment
for
a
hundred
and
three
pounds
:
The
Defendant
Colore
officii
took
of
the
Plaintiff
thirty
shillings
for
making
of
a
Warrant
upon
this
Writ
,
against
the
form
of
the
Statute
,
wherby
he
hath
forfeited
forty
pounds
.
Vpon
not
guilty
pleaded
,
and
Verdict
against
the
Defendant
,
it
was
alledged
in
arrest
of
Iudgment
,
that
the
making
of
a
Warrant
upon
a
Capias
ad
satisfaciendum
,
which
is
for
Execution
,
is
not
within
the
Statute
,
because
the
Statute
speaks
first
,
of
Fees
to
be
taken
upon
the
Arrest
of
the
party
,
when
he
is
bailed
,
viz.
twenty
pence
to
the
Sheriff
,
and
four
pence
to
the
Baily
,
then
appoints
that
the
Sheriff
lets
to
Bail
every
one
that
is
taken
upon
Bill
or
Plaint
,
besides
them
which
are
taken
for
execution
,
Outlawry
,
&c.
and
then
comes
the
clause
,
That
nothing
shall
be
taken
for
making
of
any
Precept
,
or
Warrant
,
but
four
pence
;
and
provision
for
the
Obligation
,
Condition
,
and
Fee
,
and
that
all
Obligations
taken
by
any
Sheriff
Colore
officii
,
that
these
shall
be
void
,
and
that
for
every
offence
committed
against
the
Statute
,
he
shall
forfeit
forty
pounds
.
The
Lord
Hobart
inclined
,
that
this
making
of
the
Warrant
upon
the
Capias
ad
satisfaciendum
,
and
the
taking
of
thirty
shillings
is
within
this
Statute
;
and
he
resembled
it
to
Dive
and
Maninghams
case
in
Plowden
,
where
an
Obligation
taken
of
one
in
Execution
is
void
by
this
Statute
:
vide
,
that
the
clause
in
this
Statute
for
the
Obligation
is
absolute
,
without
any
restraint
,
but
that
all
obligations
taken
by
colour
of
his
Office
,
with
any
other
Conditions
are
made
void
.
This
taking
of
thirty
shillings
for
making
of
a
Warrant
upon
a
Capias
ad
satisfaciendum
is
extortion
at
the
Common
Law
,
for
which
he
may
be
indited
,
but
whether
it
be
within
this
Statute
or
no
is
doubtfull
.
Another
Exception
was
taken
to
this
Information
;
That
it
doth
not
appear
by
this
,
that
this
Writ
of
Capias
was
directed
to
the
Sheriff
of
York
,
or
to
any
other
Sheriff
:
And
then
admitting
this
to
be
a
Capias
ad
satisfaciendum
directed
to
the
Sheriff
of
Lincoln
,
and
it
is
delivered
by
an
ignorant
hand
to
the
Sheriff
of
York
,
to
make
a
Precept
therupon
,
and
he
makes
a
Precept
,
and
takes
thirty
shillings
,
this
is
not
within
the
Statute
;
also
Colore
officii
will
not
serve
,
for
it
is
generall
,
and
it
ought
to
be
shewn
that
it
was
a
Capias
,
and
to
whom
it
was
directed
:
And
although
that
all
Processe
should
be
generally
directed
to
the
Sheriff
,
yet
some
may
be
to
the
Coroners
,
or
some
(
by
the
mis-prision
of
the
Clerks
)
may
be
omitted
;
as
Jacobus
Dei
gratia
&c.
tibi
precipimus
,
and
say
not
,
Vice-Comiti
Eboracensi
salutem
.
And
an
Information
ought
to
be
certain
to
all
common
intents
,
and
it
is
like
to
an
Indictment
.
And
in
an
action
upon
the
case
against
an
Attorney
,
because
that
he
Corruptive
and
in
deceit
of
the
Plaintiff
,
and
in
his
name
had
acknowledged
satisfaction
to
his
damage
,
and
saies
not
,
wheras
Revera
non
fuit
satisfactus
,
that
is
not
good
.
And
the
Court
was
of
opinion
for
this
cause
,
that
the
Plaintiff
should
not
have
his
Iudgment
.
Bickner
versus
Wright
.
AN
action
upon
the
case
was
brought
by
Richard
Bickner
against
John
Wright
,
Trin.
22
Jac.
Goldenham
versus
Some
.
GGoldenham
brought
a
Writ
of
Dower
against
John
Some
,
vide
Dyer
256.
there
the
Iudgment
is
against
the
Tenant
upon
Vouchee
of
the
Heir
in
Ward
to
the
King
,
and
that
presently
,
with
a
Cesset
executio
,
vide
46
E
:
3.
25.
If
the
Vouchee
be
Counter-pleaded
,
the
Demandant
shall
have
Iudgment
presently
,
vide
48
E
:
3.
5.
Br:
Voucher
38.
the
Iudgment
shall
be
against
the
Heir
conditionally
,
which
is
vouched
in
Dower
,
vide
2
H
:
4.
8.
there
upon
the
Voucher
of
the
Heir
which
makes
default
upon
the
Summons
,
&
sequatur
suo
periculo
,
the
Iudgment
is
against
the
Heir
conditionally
,
if
not
,
against
the
Tenant
,
and
so
Iudgment
against
one
not
party
to
the
Suit
,
and
which
never
appeared
:
And
in
this
case
the
Iudgment
against
the
Tenant
,
with
a
Cesset
executio
may
be
good
,
because
that
it
doth
not
appear
by
any
of
their
Pleas
,
but
that
the
Demandant
is
confessed
to
have
her
Dower
,
none
of
them
say
,
that
he
is
ready
to
render
her
Dower
(
as
the
Heir
ought
when
he
enter
into
the
Warranty
.
)
This
Term
Serjeant
Finch
moved
the
case
,
and
prayed
Iudgment
,
for
he
said
,
the
ancient
Books
were
many
for
Iudgment
conditionally
;
but
some
to
the
contrary
,
viz.
when
the
Heir
is
vouched
within
the
same
County
,
and
is
within
age
,
there
Iudgment
presently
against
the
Tenant
,
with
a
Cesset
executio
:
And
when
the
Heir
enter
into
the
Warranty
,
and
is
taken
to
render
the
Dower
,
there
is
Iudgment
against
the
Heir
,
and
that
the
Tenant
shall
hold
in
peace
:
But
he
said
that
Mich:
Eliz.
Rot.
1208.
Mary
Ashburnham
brought
Dower
against
Skinner
,
who
vouched
the
Heir
of
the
Husband
in
the
same
County
,
who
presently
entred
en
le
garranty
,
and
said
,
that
he
had
no
Assets
,
there
the
Iudgment
was
given
presently
against
the
Tenant
,
with
a
Cesset
executio
:
And
after
the
Issue
was
tryed
,
and
found
that
the
Heir
had
not
Assets
,
and
the
Wife
had
Execution
,
but
it
was
said
,
that
Error
was
brought
therupon
,
yet
the
Feme
continued
the
Possession
.
Henden
said
,
that
the
Tenant
otherwise
shall
lose
the
benefit
of
his
Warranty
,
vide
13
H
:
4.
Judgment
241.
The
Court
adjudged
this
case
for
the
Demandant
,
upon
view
of
the
said
President
of
38
,
&
39
Eliz.
And
as
this
case
is
,
the
Demandant
upon
necessity
ought
to
have
Execution
,
because
that
the
Tenant
which
ought
to
have
the
benefit
of
the
Warranty
made
default
:
And
if
it
was
so
that
the
Vouchee
was
dead
,
the
Tenant
shall
not
have
any
other
Voucher
,
for
the
Dower
ought
not
to
suffer
delay
:
And
likewise
when
Iudgment
is
given
against
the
Tenant
,
with
a
Cesset
executio
,
all
is
one
,
as
a
conditionall
Iudgment
against
the
Tenant
,
for
if
Assets
be
found
,
then
Quia
compertum
est
,
&c.
with
Iudgment
against
the
Heir
,
and
that
the
Tenant
shall
hold
in
peace
.
It
was
objected
,
that
Iudgment
ought
to
be
conditionally
at
first
,
and
not
to
give
one
Iudgment
against
the
Tenant
,
and
afterwards
if
Assets
be
found
,
another
Iudgment
against
the
Heir
;
but
that
is
no
inconvenience
.
Some
say
,
that
when
such
Iudgment
is
given
against
the
Tenant
,
with
a
Cesset
executio
,
there
if
Assets
be
found
,
the
Demandant
shall
not
have
execution
against
the
Heir
,
but
against
the
Tenant
,
and
he
shall
have
ad
valentiam
.
Quaere
.
Potter
versus
Browne
.
NIcholas
Potter
brought
an
action
upon
the
case
against
Browne
for
these
words
spoken
of
the
Plaintiff
,
He
is
as
arrant
a
Theef
as
any
is
in
England
,
and
he
broke
up
the
Plummers
Chest
with
other
mens
Tools
,
which
stood
in
my
Lord
of
Suffolks
house
,
and
took
money
out
of
it
.
The
Defendant
pleaded
Not
guilty
,
and
Verdict
for
the
Plaintiff
:
And
upon
the
motion
of
Henden
to
Arrest
,
and
Richardson
to
have
Iudgment
;
The
Court
resolved
that
the
Plaintiff
should
not
have
Iudgment
.
The
first
reason
is
,
because
that
there
is
not
any
affirmative
directly
,
that
he
is
a
Theef
,
but
as
arrant
a
Theef
as
any
is
in
England
,
And
avers
not
that
there
is
any
Theef
in
England
:
And
the
Law
will
not
presume
any
thing
that
is
evill
,
Iniquum
in
lege
non
presumitur
.
And
as
Lacies
case
was
,
He
is
as
great
a
Theef
as
any
is
in
Warwick
Goal
,
He
ought
to
aver
that
there
was
a
Theef
there
at
the
time
of
the
speaking
of
the
words
:
And
it
is
the
same
reason
in
this
case
.
Then
the
latter
words
are
ambiguous
,
and
admit
of
a
double
interpretation
,
and
the
better
shall
be
taken
.
Querens
nil
capiat
per
breve
.
Mich.
22
Jac.
Methell
versus
Peck
.
MEthell
brought
an
action
upon
the
Case
against
Peck
,
and
count
,
Licet
saepius
postea
requisitus
,
did
not
deliver
the
said
Obligation
;
upon
Non
assumpsit
pleaded
,
Verdict
for
the
Plaintiff
:
And
it
was
moved
in
Arrest
of
Iudgment
by
Hitcharn
,
that
the
Plaintiff
had
not
alledged
any
sufficient
request
,
by
shewing
such
a
day
,
and
such
a
place
,
which
is
issuable
:
And
being
collaterall
matter
,
the
request
is
part
of
the
substance
of
the
action
;
But
where
it
is
upon
Debt
or
Contract
,
and
not
severed
from
the
duty
,
then
a
Licet
saepius
requisitus
is
sufficient
.
But
the
Court
were
of
opinion
that
the
Plaintiff
shall
have
Iudgment
;
and
yet
they
agreed
the
diversity
,
when
a
Request
shall
be
alledged
as
part
of
the
thing
to
be
performed
,
and
when
it
is
but
implyed
in
the
Debt
:
For
when
it
is
collaterall
,
there
it
ought
to
be
alledged
,
and
for
the
time
it
is
sufficient
,
viz.
Postea
,
but
the
place
of
the
Request
is
omitted
:
And
if
Issue
had
been
tendred
therupon
,
it
might
be
supplyed
afterwards
where
it
shall
be
tryed
,
where
the
action
was
brought
;
And
Non
assumpsit
allowes
the
request
;
as
if
the
Defendant
had
pleaded
concord
and
satisfaction
,
the
Request
is
not
to
be
proved
in
Evidence
,
vide
10
H
:
7.
16.
But
it
is
said
,
that
this
Judgment
was
reversed
in
the
Kings
Bench
,
because
that
the
Request
being
upon
Collaterall
matter
,
which
was
the
cause
of
the
Action
,
it
is
materiall
.
Mich.
22
Jac.
Ejectione
firmae
brought
,
and
counted
upon
a
Lease
at
Haylesam
,
of
Tenements
there
:
The
Defendant
pleads
,
that
Haylesam
,
ubi
tenementa
praedicta
jacent
,
is
within
the
Cinque-Ports
,
Ubi
breve
Domini
Regis
non
currit
,
and
plead
to
the
Iurisdiction
.
The
Plaintiff
reply
,
William
Ellinghams
case
.
Defend
.
respond
.
oust
.
THE
FIRST
YEAR
OF
KING
CHARLES
.
Termino
Pasch.
Hitcham
versus
Brook
.
SIR
Robert
Hitcham
Serjeant
at
Law
,
and
to
the
King
,
I
doubt
not
but
to
prove
that
the
Plaintiff
hath
spoken
Treason
(
Innuendo
Treason
against
the
King
:
)
Verdict
was
found
for
the
Plaintiff
;
And
it
was
moved
in
Arrest
of
Iudgment
,
that
these
words
are
not
actionable
.
First
,
because
no
time
is
alledged
when
the
Plaintiff
is
supposed
to
speak
Treason
,
and
it
might
be
when
he
was
an
Infant
,
or
that
it
is
pardoned
:
To
which
it
was
answered
by
the
Court
;
First
,
That
these
words
ought
to
be
alledged
as
they
were
spoken
,
and
that
was
Indefinite
.
2.
The
time
is
not
materiall
,
unlesse
the
Defendant
make
it
materiall
by
his
plea
,
viz.
When
he
was
in
giving
Evidence
for
the
King
against
a
Traytor
,
and
then
he
repeated
such
words
;
or
when
that
the
Plaintiff
was
frantick
,
and
of
that
he
intended
,
and
so
justifie
,
there
the
time
may
come
in
question
.
2.
The
second
Exception
was
,
that
there
is
not
any
expresse
affirmative
:
to
that
it
was
answered
by
the
Court
,
that
it
was
more
then
an
Affirmative
,
for
he
had
(
as
he
said
)
proof
therof
,
and
not
a
report
or
hearsay
:
And
if
one
say
,
it
is
reported
,
&c.
that
will
not
bear
action
,
unlesse
he
justifie
the
report
,
by
charging
it
upon
him
which
was
the
Author
of
the
report
.
3.
Also
it
was
objected
,
that
the
speaking
of
treason
was
not
treason
;
But
it
was
holden
clearly
,
that
it
is
as
well
as
Preaching
,
or
writing
,
Et
Index
animi
Sermo
.
4.
Also
it
is
not
said
what
treason
,
and
it
may
he
high
or
petit
treason
:
To
which
it
was
answered
,
that
when
he
speaks
generally
of
treason
,
it
shall
be
intended
according
to
the
common
intendment
,
which
is
treason
against
the
King
,
vide
Sir
William
Mulgraves
case
,
Coke
lib:
4.
And
two
Cases
were
vouched
to
be
adjudged
in
the
Point
,
Atewood
,
8
Eliz.
Thou
hast
spoken
Treason
,
and
I
will
hang
thee
for
it
,
adjudged
actionable
.
The
other
was
between
Pewall
and
Vardoffe
,
9
Jac.
Thou
hast
spoken
treason
,
and
I
will
prove
it
,
adjudged
actionable
.
And
it
was
resolved
by
all
that
the
Plaintiff
should
have
his
Iudgment
.
Flight
versus
Gresh
.
THomas
Flight
brought
an
action
upon
the
case
against
Gresh
;
and
count
,
that
wheras
the
Plaintiff
and
one
Baleman
were
bound
in
an
Obligation
to
the
Defendant
,
The
Defendant
protestando
,
that
he
did
not
assume
,
for
plea
saith
,
that
the
Plaintiff
did
not
pay
it
;
and
therupon
Issue
,
and
found
for
the
Plaintiff
.
And
it
was
moved
by
Serjeant
Gwin
,
that
this
action
lies
not
for
want
of
consideration
,
for
the
Plaintiff
did
nothing
but
that
which
he
was
obliged
to
do
,
and
no
profit
to
the
Defendant
,
for
if
he
had
not
paid
the
summ
,
the
Obligation
had
been
forfeited
:
And
he
resembled
it
to
the
case
of
9
E
:
4.
19.
An
accord
(
in
Trespasse
)
that
the
Defendant
should
deliver
to
the
Plaintiff
his
Evidences
,
and
permit
him
to
enter
into
his
Land
,
is
no
good
Bar
:
So
in
an
Arbitrement
,
12
H
:
7.
that
the
one
permit
the
other
which
was
disseised
to
enter
,
and
that
he
should
give
to
him
his
Charters
and
Evidences
,
is
not
good
:
And
he
vouched
one
to
be
resolved
in
the
Kings
Bench
,
Richardson
to
the
contrary
,
and
said
that
the
payment
without
Suit
,
was
for
the
advantage
of
the
Obligee
,
to
be
sure
of
his
money
,
and
may
be
more
available
to
him
at
this
time
,
then
the
forfeiture
afterwards
:
And
he
vouched
a
Case
to
be
adjudged
,
that
where
one
had
bought
,
Cattle
in
a
Market
,
and
had
paid
for
them
,
and
the
party
which
had
bouoght
them
(
because
that
he
which
bought
them
had
them
in
possession
,
and
would
not
deliver
them
)
in
consideration
that
the
party
would
deliver
them
,
promised
to
pay
him
a
certain
summ
,
an
action
lies
therupon
.
And
the
opinion
of
the
Court
was
,
that
the
action
lay
,
for
(
for
any
thing
that
appears
)
the
monies
were
paid
before
the
time
that
in
Law
they
might
be
paid
,
viz.
before
the
setting
of
the
Sun
:
And
it
is
without
question
,
if
a
man
to
whom
money
is
to
be
paid
,
come
to
the
party
the
same
day
,
and
pray
him
to
pay
it
in
the
morning
,
and
that
in
considerations
therof
,
promise
to
pay
him
five
pounds
,
to
abate
five
pounds
,
or
to
deliver
an
Obligation
,
this
is
good
:
And
a
voluntary
promise
to
do
that
which
is
in
good
conscience
good
and
just
for
him
to
do
,
shall
bind
him
,
and
the
rather
because
he
had
benefit
,
viz.
to
be
sure
of
the
performance
:
And
the
forfeiture
is
but
means
to
obtain
the
principall
summ
:
And
if
one
had
Iudgment
,
and
in
consideration
that
he
will
not
sue
execution
,
the
other
promise
to
pay
,
it
is
good
:
And
because
that
in
this
case
it
appears
,
that
by
the
non-performance
of
this
promise
the
Plaintiff
had
prejudice
,
and
the
Iury
had
found
solvit
,
the
Plaintiff
had
Iudgment
.
Hil.
21
Jac.
Rot.
3150.
Trevors
versus
Michelborne
.
EDmond
Trevors
brought
a
Scire
facias
against
Michelborne
Sheriff
of
Surrey
,
Sci.
fac
.
Sci.
fac
.
against
the
Sheriff
for
taking
of
insufficient
Pledges
.
for
the
returning
of
insufficient
Pledges
in
a
Replevin
brought
by
one
Ray
against
the
now
Plaintiff
,
in
which
the
said
Richard
Ray
made
default
,
wherupon
a
Retorn
.
habend
.
was
awarded
,
an
Averia
elongata
returned
,
and
then
a
Withernam
,
and
then
a
Nichil
,
&c.
And
for
this
taking
of
insufficient
Pledges
,
this
Scire
facias
is
brought
,
upon
Westminster
2.
cap.
2.
And
the
Defendant
demurred
,
Jac.
Rot.
3563.
between
Somerford
and
Beamont
.
Hil.
1
Car.
Uvedall
versus
Tindall
.
Enter
Hil.
21
Jac.
Rot
705.
Southamp
.
SIr
Richard
Uvedall
brought
an
action
of
Trespasse
against
William
Tindall
Clark
,
Vicar
of
Alton
,
John
Loveland
for
taking
bona
&
Cattella
,
and
count
for
the
taking
of
two
Carectac
.
glaci
,
Anglice
Wood
:
And
upon
Not
guilty
pleaded
,
the
Iury
gave
this
speciall
Verdict
;
Viz.
For
the
Moyety
of
a
Lead
of
Wood
,
Si
videbitur
Curiae
quod
decimae
glasi
ne
sunt
minutae
decimae
,
then
the
Defendants
not
guilty
,
but
si
sunt
minutae
decimae
,
then
they
are
guilty
.
And
this
case
was
argued
at
Bar
by
Serjeant
Bridgeman
,
adn
Serjeant
Henden
:
And
the
Court
unement
agreed
,
that
for
ought
that
here
appears
,
this
Verdict
being
found
without
any
circumstance
,
that
this
Wood
shall
be
taken
to
be
Minuta
decimae
.
It
was
agreed
by
Henden
,
that
if
it
had
been
found
Wood
growing
in
a
Garden
,
then
minutae
decimae
.
And
it
was
agreed
by
the
Court
,
that
it
might
have
been
so
found
,
that
it
should
be
Majores
decimae
,
and
pr●●diall
;
as
if
all
the
Profits
of
the
Parsonage
consist
of
such
Tithes
.
And
so
of
other
things
,
which
in
their
own
nature
are
minutae
,
may
become
majores
,
if
all
the
profit
of
the
Parish
consist
therin
:
As
in
some
Countries
,
a
great
part
of
the
Land
within
the
Parish
is
Hemp
,
or
Lime
,
or
Hops
,
there
they
are
great
Tithes
,
and
so
it
may
be
of
Wholl
and
Lambs
.
Kings
Bench
,
Beddingfeilds
case
,
Farmer
to
the
Dean
and
Chapter
of
Norwich
,
who
had
the
Parsonage
Impropriate
,
and
had
used
to
have
Tithes
of
Grain
and
Hay
,
and
the
Vicar
had
the
small
Tithes
:
And
a
Feild
was
planted
with
Saffron
,
which
contain
forty
acres
:
And
it
was
adjudged
that
the
Tithes
therof
belong
to
the
Vicar
.
There
was
a
Case
in
this
Court
for
tithe
of
Weild
,
which
is
used
for
Dying
,
and
that
was
in
Kent
,
and
it
was
sown
with
the
Corn
,
and
after
the
Corn
is
reaped
,
the
next
year
without
any
other
manurance
,
the
said
Land
brings
forth
and
produce
Weild
:
And
that
was
a
speciall
Verdict
,
whether
the
Vicar
shall
have
the
tithe
of
it
,
or
the
Parson
,
but
one
of
the
parties
died
before
any
Iudgment
.
And
if
Tobacco
he
planted
here
,
yet
the
tithes
therof
are
Minutae
decimae
:
And
all
these
new
things
,
viz.
Saffron
,
Hops
,
Wood
,
&c.
if
it
doth
not
appear
by
materiall
circumstances
to
the
contrary
,
shall
be
taken
as
Minutae
decimae
:
And
so
this
case
was
adjudged
for
the
Defendant
.
Hil.
1
Car.
Townley
versus
Steele
.
FRancis
Townley
,
and
three
others
,
the
Executors
of
William
Peacock
,
brought
a
Writ
of
Ravishment
of
Ward
against
Richard
Steele
and
Anne
his
Wife
,
for
the
Ravishment
of
the
body
of
Ralph
Smith
Cosin
and
Heir
of
Ralph
Smith
;
Ralph
Smith
of
William
Peacock
,
and
that
Ralph
Smith
died
,
the
said
Ralph
his
Cosin
and
Heir
being
within
age
;
and
that
William
Peacock
the
Testator
seised
of
the
body
,
and
died
possessed
therof
,
and
made
them
his
Executors
,
and
they
being
possessed
of
the
said
Ward
,
the
Marriage
of
whom
belong
to
them
,
the
Defendants
Rapuere
illum
&
abduxere
:
And
upon
Not
guilty
pleaded
,
the
Iury
was
at
Bar
,
and
the
Plaintiffs
after
Evidence
were
Non-suited
.
And
whether
the
Defendants
shall
have
costs
in
this
case
was
the
question
,
upon
the
Statute
of
23
H.
8.
cap.
15.
or
by
the
Statute
of
4
Jac.
cap.
3.
And
it
being
argued
by
Davenport
and
Attho
,
the
Court
this
Term
(
the
chief
Iustice
being
absent
)
gave
their
opinions
.
And
Iustice
Crook
argued
that
they
should
not
have
costs
,
and
put
many
cases
,
when
Executors
bring
actions
,
they
shall
not
pay
costs
,
and
so
is
Common
Experience
(
after
the
Statutes
)
which
is
the
best
Interpreter
of
the
Law
:
And
if
it
should
be
otherwise
,
Executors
would
be
discouraged
to
bring
actions
for
the
debts
of
their
Testator
.
And
Iustice
Harvy
was
of
the
same
opinion
,
but
Iustice
Yelverton
and
Hutton
to
the
contrary
:
And
they
agreed
,
that
in
all
actions
brought
by
Executors
,
upon
Contracts
,
Obligations
,
or
other
things
made
to
the
Testator
,
there
shall
be
no
costs
,
for
that
is
not
within
the
Statute
,
viz.
Contracts
,
or
Specialties
made
to
the
Plaintiff
;
or
if
an
action
be
De
bonis
asportatis
in
the
life
of
the
Testator
,
or
upon
any
Tort
supposed
to
be
done
not
immediatly
to
the
Plaintiff
,
there
shall
be
no
costs
,
because
that
the
Statute
gives
not
costs
in
these
cases
,
20
Mariae
,
Debt
upon
a
Demise
for
years
,
if
the
Plaintiff
shall
be
Non-suited
there
shall
be
costs
,
for
it
is
upon
Contract
,
though
in
some
sort
reall
.
But
in
this
case
,
though
the
Plaintiffs
are
named
Executors
,
and
their
Title
is
derived
from
their
Testator
,
yet
the
action
is
brought
upon
an
immediate
Tort
done
to
themselves
;
and
it
is
within
the
very
words
of
the
Statute
:
and
this
Statute
which
is
to
prevent
Vexatious
Suits
,
shall
be
taken
favourably
.
If
Executors
have
a
Lease
for
years
,
and
they
demise
it
rendring
rent
,
and
for
Rent
arrear
they
bring
an
action
,
it
shall
be
in
the
Debet
and
Detinet
,
and
they
shall
pay
cost
;
if
they
be
Non-suited
,
and
yet
their
Title
is
as
Executors
,
but
it
is
founded
upon
their
own
Contract
,
so
if
they
bring
an
action
of
Trespasse
for
the
taking
of
Goods
which
came
to
their
possession
,
which
Goods
were
in
truth
tortiously
taken
by
the
Testator
,
and
he
died
possessed
therof
,
and
they
being
Non-suited
they
shall
pay
costs
:
And
Executors
in
actions
brought
against
them
shall
pay
costs
,
and
if
they
have
no
Goods
of
the
Testator
,
it
shall
be
De
bonis
propriis
.
And
vide
,
that
upon
Contracts
made
by
them
,
or
Rent
arrear
in
their
time
,
the
action
shall
be
in
the
Debet
and
Detinet
,
vide
Coke
lib
:
5
,
Hergraves
case
.
But
when
Debt
in
brought
by
Executors
,
and
recovery
had
,
and
after
a
recovery
an
escape
,
and
Debt
upon
this
escape
,
this
shall
be
in
the
Deticet
only
,
according
to
the
first
cause
of
action
.
And
this
Ravishment
of
Ward
is
an
action
within
the
Statute
of
23
H
:
8.
and
the
Statute
of
Westminster
●
.
gives
no
Damages
,
and
therfore
costs
by
the
Statute
of
Glocester
cap
:
1.
and
the
Statute
of
4
Jac.
inlarge
the
actions
,
and
not
the
persons
.
Hil.
1
Car.
Beverley
versus
Power
.
VPon
an
Assembly
(
this
Term
)
of
all
the
Iustices
at
Serjeants
Inne
,
by
vertue
of
an
Order
of
the
Star-chamber
made
the
last
Term
,
at
reading
the
Case
was
.
Iames
Beverley
was
Plaintiff
against
Robert
Power
,
Mary
Beverley
,
and
others
,
which
Bill
was
exhibited
Hil
:
16
Iac.
and
the
Bill
was
for
scandalous
matter
not
examinable
in
this
Court
,
and
for
other
matter
which
was
examinable
,
and
Witnesses
examined
and
published
:
And
then
the
19.
of
Febr.
21
Iac.
the
generall
Pardon
is
made
by
Parliament
,
by
which
all
Offences
,
Contempts
,
and
Misdemeanors
,
del
20.
Decemb.
before
(
except
such
Offences
,
contempts
,
&c
,
whereof
or
for
which
any
Suite
or
Bill
within
eight
years
before
was
exhibited
into
the
Star-chamber
,
and
there
remaining
to
be
prosecuted
this
last
day
of
this
present
Parliament
:
)
And
afterwards
,
viz.
Mich.
1
Caroli
,
the
Cause
came
to
hearing
at
the
Suit
of
the
Defendant
,
and
upon
the
hearing
Power
was
fined
two
hundred
pounds
;
and
for
the
abuse
and
contempt
to
the
Court
for
exhibiting
the
scandalous
matter
,
the
Plaintiff
was
fined
five
hundred
pounds
,
and
for
damage
to
the
Defendant
five
hundred
marks
.
And
yet
because
of
the
difficulty
and
diversity
of
opinion
which
was
between
the
Lord
chief
Justice
,
and
the
Lord
Hobart
,
the
now
Lord
Keeper
and
the
Lords
by
an
Order
respited
this
matter
,
as
to
the
Fine
of
the
Plaintiff
,
and
gave
damages
to
the
Defendant
,
and
referred
it
to
the
opinion
of
all
the
Justices
.
And
they
all
(
una
voce
)
except
Iustice
Harvey
(
who
insisted
upon
the
damages
given
to
the
party
,
that
they
should
not
be
pardoned
)
agreed
that
the
Contempt
and
Offence
for
the
scandalous
Bill
exhibited
,
was
pardoned
,
and
not
within
the
Exception
;
for
it
cannot
be
intended
,
that
the
Plaintiff
exhibited
a
Bill
,
upon
which
he
should
not
be
fined
,
but
this
exception
was
of
that
which
was
laid
to
the
charge
of
the
Defendant
,
and
the
Defendant
may
have
his
remedy
at
Common
Law
,
and
the
Contempt
which
is
accidentall
to
the
Offence
is
pardoned
,
and
by
consequence
the
Fine
.
Pasch.
2
Car.
Crane
versus
Crampton
.
sur
assumpsit
against
Crampton
,
and
count
,
that
in
consideration
of
moneys
paid
,
the
Defendant
did
assume
to
give
to
the
Plaintiff
a
Ruff-band
at
the
day
of
his
marriage
:
And
he
alledged
in
facto
.
that
such
a
day
,
and
at
such
a
place
he
was
married
;
And
by
the
opinion
of
me
and
my
two
Brothers
Harvey
and
Yelverton
.
Iudgment
was
given
for
the
Plaintiff
;
For
the
Defendant
ought
to
take
notice
therof
at
his
perill
,
unlesse
he
had
provided
to
deliver
the
Ruff
after
marriage
,
and
after
notice
therof
for
if
he
ought
to
have
notice
(
no
place
being
agreed
upon
where
it
shall
be
given
)
then
he
should
be
compelled
to
enquire
and
to
find
him
,
and
give
notice
,
and
paradventure
he
could
never
give
him
notice
.
Also
it
is
agreed
,
if
one
be
obliged
to
pay
to
another
twenty
pounds
,
within
three
months
after
he
come
from
Rome
,
there
shall
no
notice
be
given
of
his
return
,
but
the
Obligor
ought
to
take
notice
at
his
perill
:
And
if
it
were
with
a
Condition
that
I.
S.
(
that
is
not
party
to
the
Obligation
)
shall
do
such
a
thing
,
there
shall
not
be
notice
:
And
this
case
of
an
Obligation
is
more
strong
,
for
there
is
a
penalty
:
and
if
it
were
to
pay
ten
pounds
when
a
Fair
shall
be
at
Dale
,
there
he
ought
to
take
notice
:
And
they
agreed
the
case
of
8
E
:
4.
fol.
_____
an
Obligation
to
perform
an
Arbitrement
,
there
no
notice
is
necessary
,
for
it
is
the
act
of
a
third
person
:
And
if
any
notice
be
requisite
,
the
Request
imply
it
;
as
it
was
adjudged
in
the
Kings
Bench
,
between
Hodges
and
Baldwin
:
Laicon
versus
Barnard
.
Lincoln
.
LAicon
Plaintiff
against
Barnard
one
of
the
Attorneys
of
this
Court
,
sur
trover
.
against
one
Hacliff
,
for
two
hundred
and
eighty
pounds
,
upon
an
Obligation
by
Iustices
,
and
recovered
,
and
that
these
Sheep
were
delivered
to
him
in
Execution
,
as
the
Sheep
of
the
said
Hacliff
:
And
that
afterwards
and
before
this
action
,
the
Plaintiff
brought
an
action
of
Trespasse
against
the
now
Defendant
for
taking
of
these
Sheep
,
Quare
caepit
&
abduxit
.
And
it
was
found
for
the
Plaintiff
,
and
Damages
to
two
pence
:
And
averred
that
they
were
the
same
Sheep
;
and
the
Plaintiff
replyed
that
the
Damages
found
by
the
Iury
,
were
only
for
the
taking
and
chasing
,
and
not
for
the
value
:
And
that
this
Action
was
for
another
Trespasse
,
wherupon
the
Defendant
demurred
,
and
it
was
adjudged
for
the
Plaintiff
:
for
,
for
any
thing
that
appears
(
which
the
Defendant
hath
confessed
upon
his
Demurrer
)
it
is
not
for
the
same
Trespasse
:
Also
the
Damages
of
two
pence
cannot
be
given
for
the
value
of
the
Sheep
:
Also
the
Plaintiff
when
a
Trespasse
is
done
to
him
,
may
retake
his
Goods
,
and
yet
he
shall
have
an
action
of
Trespasse
for
the
taking
of
them
:
And
every
taking
,
viz.
(
abduxit
)
import
a
chasing
;
and
no
man
will
say
,
that
by
the
recovery
in
Trespasse
,
when
the
Plaintiff
had
his
Goods
,
that
therby
the
Defendant
shall
have
the
property
:
But
it
is
true
,
that
if
the
Plaintiff
recover
the
value
,
therby
he
waves
the
property
,
and
by
this
way
the
Defendant
shall
have
the
property
,
vide
2
R.
3.
14.
4
H
:
7.
5.
6
H
:
7.
8.
and
Iudgment
for
the
Plaintiff
.
Yelverton
at
first
baesitavit
,
but
afterwards
agreed
.
Pasch.
2
Car.
Wades
Case
.
AN
action
upon
the
case
was
brought
by
a
Feme
,
William
Wade
,
Non
assumpsit
was
pleaded
,
the
Venire
facias
was
well
,
but
the
Hab
:
Corp.
Nisi
pr.
was
entred
,
the
Plaintiff
,
H
:
Wade
,
&c.
And
it
was
amended
by
the
Court
,
and
there
was
the
difference
taken
,
that
when
the
Nisi
prius
is
so
mistaken
,
that
if
it
should
be
amended
,
the
Iury
should
be
prejudiced
,
viz.
that
it
may
falsifie
their
Verdict
,
then
it
shall
not
be
amended
,
but
in
this
case
,
it
is
but
the
Writ
by
which
the
Iury
is
warned
to
appear
:
And
the
authority
of
the
Iustice
of
Nisi
prius
is
not
by
that
,
but
by
the
Juras
,
which
was
well
and
as
it
ought
to
be
.
Also
they
have
their
Authority
by
the
Statute
of
Westm:
2.
vide
Dyet
106.
In
Wootons
Case
,
there
the
Jurat
.
was
well
,
and
omitted
in
the
Nisi
prius
,
Anthony
Coke
:
Also
the
Issue
was
between
Wooton
and
Cooke
,
and
Temple
,
where
Temple
had
confessed
the
action
,
vide
there
,
that
many
omissions
of
the
Record
of
Nisi
prius
,
are
to
be
amended
.
Brown
was
of
the
contrary
opinion
to
Walsh
,
Weston
and
Dyer
.
Trin.
2
Car.
Farrington
versus
Arrundell
.
Entred
Hil.
22
Jac.
Rot.
4462.
Thomas
Arrundell
,
upon
the
Statute
of
23
Eliz.
for
not
coming
to
Church
;
and
the
Defendant
demurred
upon
the
Count
:
And
then
King
James
died
,
And
if
this
action
be
abated
or
not
by
the
death
of
the
King
,
was
the
Question
.
Vide
the
Statute
of
the
1
E.
6.
cap.
7.
vide
Coke
lib
:
7.
fol:
30.
And
concerning
this
was
diversity
of
opinion
in
the
Common
Bench
;
for
my
Brother
Yelverton
and
I
were
opinion
,
that
the
Debt
is
gone
,
for
it
is
at
the
suit
of
the
King
,
and
Iudgment
is
given
for
the
King
:
And
there
shall
be
an
answer
to
the
King
.
And
we
relyed
upon
the
cases
vouched
by
the
Lord
Coke
;
but
Iustice
Harvey
and
Crook
to
the
contrary
:
And
upon
conference
with
all
the
Iustices
of
Serjeants
Inne
,
it
was
resolved
,
that
this
action
was
at
the
suit
of
the
party
,
for
he
might
be
Non-suited
,
vide
25
H
:
8.
Br.
Non-suit
,
that
the
Informer
may
be
Non-suited
,
vide
6
E.
2.
Fitz
Non-suit
13.
when
the
Iury
come
again
to
deliver
their
Verdict
,
the
King
cannot
discharge
them
and
be
Non-suited
,
and
the
King
cannot
discharge
this
action
.
And
his
Attorney
reply
not
as
in
an
Information
.
Clotworthy
versus
Clotworthy
.
Amendments
.
SImon
Clotworthy
brought
an
action
of
Debt
against
John
C.
Cosin
and
Heir
of
Bartholmew
C.
And
the
Imparlance
Roll
is
,
Quod
cum
praedictus
B.
cujus
consanguineus
&
heres
idem
Johannes
est
,
viz.
filius
Johannis
Clotworthy
fratris
praedicti
B.
C.
And
upon
the
Plea
Roll
,
upon
which
Iudgment
is
given
,
this
space
was
perfected
,
and
Iudgment
for
the
Plaintiff
;
and
now
the
Defendant
brought
a
Writ
of
Error
,
and
it
was
moved
to
be
amended
:
And
if
the
Imparlance
Roll
shall
be
amended
,
which
is
the
foundation
of
the
subsequent
Rolls
,
is
the
question
:
For
it
is
commonly
holden
,
that
the
Plea
Roll
shall
he
amended
by
the
Imparlance
,
but
not
e
converso
.
Hil.
18
Jac.
Rot.
67●
.
Walker
versus
Worsley
.
Amendments
.
WAlker
brought
an
action
of
Debt
against
Worsley
,
Thomas
W.
in
the
Imparlance
Roll
which
was
entred
,
Mich:
18
Jac:
Rot
:
576.
the
words
which
bind
the
Heir
were
omitted
,
viz.
Ad
quam
quidem
solutionem
obligasset
se
&
Heredes
suos
,
but
they
were
in
the
Plea
Roll
:
And
after
Iudgment
that
was
assigned
for
Error
in
the
Kings
Bench
,
and
it
was
amended
in
the
Common
Bench
by
the
Court
,
vide
there
,
that
it
was
by
the
fault
and
mis-prision
of
the
Clerk
,
who
had
the
Obligation
,
and
so
amendable
by
the
Statute
of
8
H
:
6.
cap
:
15.
1.
Hil.
9
Jac.
Rot.
516.
Govard
versus
Dennet
.
GOvard
against
Dennet
,
and
Iudgment
,
and
the
name
of
the
Attorney
,
viz.
Henry
was
omitted
in
the
Imparlance
Roll
,
and
it
was
in
the
Plea
Roll
Henry
,
and
after
Error
brought
it
was
amended
.
Mich.
16
Jac.
Rot.
581.
Arrowsmith's
Case
.
THe
Imparlance
Roll
,
Trin:
16
Jac:
Rot
:
1727.
Debt
for
three
hundred
pounds
against
Arrowsmith
,
for
part
sur
emisset
,
and
the
other
part
sur
in
simul
computasset
:
And
in
the
Imparlance
Roll
,
both
parcells
did
not
amount
to
three
hundred
pounds
,
but
wanted
six
pounds
therof
,
and
after
Error
brought
it
was
amended
,
Pasch.
12
Jac.
Rot.
420.
Godhow
versus
Bennet
.
REplevin
by
Godhow
against
Bennet
,
divers
spaces
in
the
Imparlance
Roll
were
supplyed
in
the
Plea
Roll
after
Verdict
.
Hil.
12
Jac.
Rot.
420.
Parker
versus
Parker
.
THe
Imparlance
Roll
was
,
Mich:
12
Jac:
Rot
:
547.
Parker
against
Parker
in
Trover
and
Conversion
,
the
Imparlance
Roll
wanted
the
day
and
year
of
the
possession
and
conversion
,
but
the
Issue
Roll
was
(
after
the
Verdict
and
motion
in
Arrest
of
Iudgment
)
amended
.
Mich.
2
Car.
Crocker
versus
Kelsey
JOhn
Canterson
and
Agnes
his
Wife
,
Tenants
in
speciall
tail
,
had
Issue
a
Son
,
viz.
John
,
and
John
the
Father
died
,
John
the
Son
levied
a
Fine
with
Proclamations
to
the
use
of
himself
in
Fee
,
Agnes
leased
to
John
Herring
and
Margaret
his
Wife
(
Lessors
to
the
Plaintiff
)
for
one
and
twenty
years
,
rendring
Rent
,
&c.
by
vertue
wherof
they
entred
:
Agnes
died
,
John
the
Son
entred
,
and
afterward
the
said
John
Herring
and
Margaret
his
Wife
entred
;
And
the
said
John
the
Son
made
his
Will
in
writing
,
and
by
that
devised
the
Land
to
Kelsey
the
Defendant
,
and
another
in
Fee
,
and
died
.
John
Herring
and
Margaret
leased
to
Crocker
the
Plaintiff
,
who
entred
,
and
being
ousted
by
Kelsey
,
brought
Ejectione
firmae
:
And
this
speciall
Verdict
being
found
,
Iudgment
was
given
for
the
Plaintiff
;
and
now
affirmed
upon
Error
brought
in
the
Exchequer
Chamber
.
Mich.
2
Car.
Franklin
versus
Bradell
.
FRanklin
a
Woman
servant
,
brought
an
action
upon
the
case
upon
a
promise
against
John
Bradell
:
Assumpsit
,
ex
post
facto
.
And
count
,
that
wheras
she
had
served
the
Defendant
and
his
Wife
,
and
done
to
them
loyall
service
,
the
Defendant
after
the
death
of
his
Wife
,
in
consideration
of
the
service
which
the
Plaintiff
had
done
to
the
Defendant
and
his
Wife
,
promised
to
pay
her
thirteen
shillings
four
pence
upon
request
,
and
alledged
request
and
non-payment
;
And
after
Verdict
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
,
upon
the
Book
of
13
Eliz.
Dyer
,
that
this
is
no
sufficient
consideration
,
because
that
it
is
not
alledged
,
that
the
Plaintiff
at
the
request
of
the
Defendant
had
served
him
:
Also
it
was
not
sufficient
,
because
that
it
was
done
after
the
service
performed
.
And
it
was
answered
,
that
it
was
a
good
consideration
,
and
that
the
service
was
to
the
benefit
of
the
Defendant
:
And
therfore
in
consideration
that
the
Plaintiff
had
married
the
Daughter
of
the
Defendant
,
he
promise
to
pay
twenty
pounds
,
it
is
a
good
consideration
;
and
so
in
consideration
that
you
have
been
my
surely
to
such
a
man
for
such
a
Debt
,
I
promise
to
save
you
harmlesse
.
And
in
consideration
that
the
Plaintiff
was
Baile
for
the
Defendant
,
he
promised
to
give
him
a
Horse
,
this
is
good
:
And
in
consideration
that
I.S.
being
a
Carpenter
had
well
built
my
house
,
I
promise
to
give
him
five
pounds
.
And
Iudgment
for
the
Plaintiff
.
Hil.
2
Car.
Hearne
versus
Allen.
Entred
22
Jac:
Rot:
1875.
Oxford
.
1.
RIchard
Hearne
brought
an
Ejectione
firmae
against
John
Allen
,
Anne
Keene
,
which
was
the
Wife
of
Edward
Keene
;
and
upon
Not
guilty
pleaded
a
speciall
Verdict
was
found
.
Richard
Keene
was
seised
of
an
house
in
Chippin-norton
,
and
of
two
acres
of
Land
there
in
Fee
,
and
of
two
acres
of
Meadow
in
Langham
in
Fee
used
with
the
said
Messuage
,
which
were
holden
in
Socage
:
And
by
his
Will
in
writing
,
dated
the
20.
May
,
30
Eliz.
he
devised
the
said
house
Cuni
omnibus
&
singulis
ad
inde
pertinentibus
,
vel
aliquo
modo
spectantibus
,
to
Tho.
K.
and
his
Heirs
for
ever
:
And
for
want
of
Heirs
of
him
the
said
Thomas
,
then
to
one
Anne
K.
the
Daughter
of
the
Devisor
,
and
her
Heirs
for
ever
:
And
for
default
,
&c.
then
to
Iohn
K.
his
Cosin
,
and
his
Heirs
for
ever
;
And
by
the
same
Will
devised
his
Goods
and
all
his
Lands
to
Eliz.
his
Wife
,
during
her
Widow-hood
,
and
died
.
Elizabeth
his
Wife
entred
.
Thomas
the
Son
entred
upon
the
Wife
,
and
disseised
her
,
and
having
enfeoffed
one
Edward
K.
in
Fee
died
,
and
Tho.
K.
also
died
without
Issue
:
Edward
K.
by
his
Will
devised
the
Land
to
Anne
his
Wife
,
the
Lessor
of
the
Plaintiff
for
life
,
and
died
,
Anne
entred
and
made
a
Lease
to
the
Plaintiff
,
Et
si
super
totam
materiam
,
&c.
And
it
seems
that
the
Defendant
Allen
claim
under
the
Title
of
Anne
K.
the
Daughter
,
but
that
was
not
found
,
nor
no
other
Title
for
the
Defendant
;
and
therfore
of
necessity
Iudgment
ought
to
be
given
for
the
Plaintiff
.
And
this
case
was
well
argued
by
Crawley
for
the
Plaintiff
:
And
Henden
for
the
Defendant
.
And
three
Points
were
argued
.
1.
If
the
two
acres
in
Langham
passed
by
the
words
Cum
pertinentiis
;
and
it
seemed
to
the
Court
that
they
did
not
passe
,
without
saying
Cum
terris
eidem
Messuagio
spectantibus
vel
pertinentibus
:
And
that
is
agreed
in
Hill
and
Granges
case
,
by
Conveyance
,
and
23
H.
8.
6.
and
it
is
all
one
in
a
Will.
Also
in
this
case
it
is
not
found
for
what
time
these
two
acres
had
been
used
with
the
house
:
And
there
was
sufficient
to
supply
the
words
Cum
pertinent
for
ought
that
appears
:
And
if
the
Law
be
so
,
the
two
acres
do
not
passe
,
but
discend
to
Thomas
Keene
,
and
the
Feoffment
good
.
2.
If
by
these
words
it
be
an
Estate-tail
;
as
in
Beresfords
Case
,
Coke
lib:
7.
fol:
41.
9
E
:
3.
Fitz
:
tail
21.
12
E
:
3.
7
E
:
6.
16
Eliz:
in
Chapmans
case
,
or
a
Fee-simple
:
And
yet
Yelverton
and
Crook
inclined
that
it
was
an
Estate-tail
;
but
Lord
Richardson
,
Hutton
,
and
Harvey
to
the
contrary
,
for
an
intent
against
Law
shall
be
void
,
vide
Abraham
and
Twiggs
case
,
Co●e
lib
:
7.
fol:
41.
3.
If
the
Collaterall
Warranty
which
descended
had
extinguish●
and
barred
the
right
of
Anne
Keene
.
Henden
would
have
maintained
it
,
because
that
the
Warranty
is
speciall
,
although
it
was
collaterall
,
that
it
did
not
Bar
,
which
is
san●
question
(
be
it
speciall
or
generall
)
it
bars
the
others
upon
whom
it
descends
,
vide
Coke
lib
:
15.
Seniors
case
,
he
held
no
descent
,
and
then
no
Bar
,
12
E
:
4.
discontinuance
50.
7
H
:
6.
speciall
Warranty
shall
be
used
by
Rebutter
,
but
not
by
Voucher
.
And
Iudgment
for
the
Plaintiff
.
Un
supersedeas
fuit
Mis●
for
the
Feme
upon
an
Exigent
against
Baron
and
Feme
:
And
upon
much
debate
;
it
was
agreed
,
that
the
Feme
(
for
the
safeguard
of
her self
from
imprisonment
)
being
returned
upon
the
Exigent
,
or
upon
the
Capias
,
viz.
upon
the
one
Quod
reddidit
●●
upon
the
other
Caepi
,
and
as
to
the
Husband
(
Non
est
inventus
)
may
appear
;
and
so
long
as
the
Processe
continues
against
the
Husband
,
she
shall
have
idem
dies
:
But
when
the
Baron
is
returned
utlegatus
,
she
shall
be
discharged
sans
idem
d●es
:
And
that
stands
well
and
raconciles
all
the
Books
.
But
whether
she
shall
have
a
Supersedeas
de
non
molestando
,
is
doubtfull
,
for
by
the
11
of
H
:
4.
80.
and
Dyer
271.
if
the
Baron
be
outlawed
,
and
the
Wife
W●ived
,
and
the
King
pardon
the
Feme
,
that
shall
be
allowed
,
and
she
shall
go
sine
die
,
and
vide
4
E
:
●
.
34.
and
14
H
:
6.
14.
13
H
:
4.
1.
And
it
seemed
by
all
to
be
agreed
,
that
the
Baron
after
he
purchaseth
his
pardon
,
or
after
he
come
and
reverse
the
Outlawry
,
he
shall
not
have
allowance
of
his
Pardon
,
nor
his
appearance
received
,
si
non
qui
il
amesne
sa
feme
qui
par
le
presumption
de
leye
est
amesnable
per
luy
,
mes
les
baron
n'est
amesnable
per
le
feme
,
vide
18
E
:
4.
4.
there
the
case
was
,
that
a
Feme
Covert
was
sued
as
Feme
sole
,
her
Husband
being
beyond
Sea
,
and
not
known
to
be
alive
,
and
she
was
outlawed
,
and
then
her
Husband
came
again
,
and
brought
a
Writ
of
Error
for
the
reversall
therof
in
his
name
and
in
the
name
of
his
Wife
;
And
there
it
is
said
that
it
is
questionable
,
being
that
he
was
not
party
to
the
Suit
.
And
then
one
said
,
that
it
would
be
a
good
way
to
be
rid
of
a
Shrew
.
And
the
Prothonotaries
said
,
that
no
Supersedeas
was
ever
granted
for
the
Wife
in
such
a
case
.
Hil.
2
Car.
Sir
Charles
Howards
Case
.
MEmorand.
That
the
Earl
of
Marleborough
,
Lord
Treasurer
of
England
,
came
to
Serjeants
Inn
in
Chancery
Lane
,
6.
Febr.
and
there
assembled
all
the
Iustices
to
have
their
opinion
,
upon
a
Case
which
was
depending
in
the
Exchequer
Chamber
,
Charles
Howard
,
for
avoiding
the
possession
of
a
Lodge
,
and
desisting
from
taking
the
profits
of
a
Park
called
Putney
Mooreclapp
;
the
Custody
of
which
Park
,
and
three
pounds
annuall
Fee
,
with
the
Windfalls
,
&c.
and
the
custody
of
the
Lodge
was
granted
to
him
.
The
King
which
now
is
,
by
his
Charter
disparked
the
Park
,
and
after
granted
all
the
D●er
to
Sir
Richard
Weston
Chancellor
of
the
Exchequer
:
And
whether
by
this
disparking
of
the
Park
the
office
of
the
Keepership
he
determined
,
or
no
;
then
whether
the
annuall
Fee
be
determined
;
then
if
the
casuall
profits
,
as
Windfalls
,
&c.
may
be
yet
taken
by
Charles
Howard
who
is
the
Patentes
.
And
upon
debate
it
was
unanimously
agreed
,
that
the
King
might
dispark
his
Park
;
and
that
by
the
disparking
therof
,
the
Office
of
the
Keepership
is
gone
and
determined
:
for
Sublata
causa
tollitur
effectus
,
and
this
Office
is
not
of
necessity
,
and
such
Offices
are
not
prefumed
in
Law
to
be
altogether
for
the
benefit
of
the
Patentes
,
but
reciprocally
for
the
Commodity
of
the
King
,
and
by
the
disparking
of
the
Park
,
the
labour
and
charge
is
gone
.
It
was
also
agreed
,
that
the
King
might
discharge
the
Patentee
of
this
Office
,
although
the
Park
continue
.
And
i●
one
grant
the
Stewardship
of
a
Mannor
,
and
he
dismember
the
Mannor
,
the
Office
determines
;
And
if
a
Corporation
grant
the
Office
of
Town-Clerk
,
or
of
Recorder
,
and
after
surrender
their
Patent
,
and
take
a
new
Patent
,
which
incorporates
them
by
a
new
name
,
all
the
Offices
are
determined
.
It
was
agreed
that
the
annuall
Fee
certain
remain
in
both
cases
,
be
he
discharged
,
or
be
the
Park
disparked
,
vide
5
E
:
4.
9.
4
E
:
4.
22.
18.
E
:
4.
9
Dyer
71.
6
H
:
8.
Kelway
171.
Plowd
:
Sir
Thomas
Wrothes
case
.
The
Earl
of
Lincolns
Case
.
Star-chamber
.
MEmorand.
That
the
Sollicitor
Generall
moved
,
that
Sir
Henry
Fines
had
preferred
a
Bill
against
the
Earl
of
Lincoln
in
this
Court
:
Hil.
2
Car.
Winsmore
versus
Hobart
.
Trin.
27
Eliz.
Rot.
850.
Wilts.
IN
an
Ejectione
firmae
brought
by
Thomas
Winsmore
,
against
Micha●l
Hobart
,
upon
a
Lease
made
by
Edward
Long
,
the
Iury
gave
a
speciall
Verdict
.
Thomas
Hobart
,
habendum
to
the
said
Thomas
Hobart
,
and
to
the
said
Michael
Hobart
,
Iohn
Hobart
and
Henry
Hobart
,
Sons
of
the
said
Thomas
for
their
lives
,
and
the
life
of
the
Survivor
of
them
successively
;
By
vertue
wherof
the
said
Thomas
entred
,
and
was
seised
for
life
.
And
the
Lord
Sturton
granted
the
Reversion
to
Thomas
Long
in
Fee
,
to
whom
Thomas
Hobart
attorned
,
Thomas
Long
devised
it
to
Edward
Long
in
tail
,
Edward
Long
died
seised
,
and
the
Reversion
descended
to
Edward
his
Son
,
the
Lessor
of
the
Plaintiff
,
Thomas
Hobart
and
Henry
died
,
Michael
and
Iohn
survived
,
Michael
entred
,
Thomas
Long
entred
upon
him
,
and
made
a
Lease
to
the
Plaintiff
,
who
entred
,
and
was
possessed
,
untill
the
Defendant
ousted
him
.
And
Judgment
was
given
for
the
Plaintiff
.
The
Habendum
was
void
as
to
all
them
which
were
not
parties
to
the
Deed.
Pasch.
3.
Car.
Hartox
and
Cock's
Case
.
Entred
Pasch.
2
Car.
Rot.
1761.
Hertf.
A
Quare
Impedit
was
brought
by
George
Hartox
and
Cocks
against
the
Bishop
of
Lincoln
,
Mary
Hewes
,
and
David
Dublin
Clark
for
the
Church
of
Essington
.
The
Issue
being
joyned
by
the
Incumbent
,
upon
the
Appendancy
,
the
Evidence
given
to
the
Plaintiff
to
prove
it
was
such
.
Henry
6.
was
seised
of
the
Mannor
in
Fee
,
and
granted
it
to
Mary
his
Consort
for
life
,
Habendum
una
cum
advocatione
of
the
said
Church
:
The
Queen
Mary
presented
,
and
after
there
was
a
Presentment
by
Laps
,
then
the
said
Queen
presented
again
;
And
afterwards
Edward
the
fourth
seised
of
the
said
Mannor
,
presented
,
and
then
Henry
the
seventh
,
and
Henry
the
eighth
:
And
the
King
Edward
the
sixth
granted
the
Mannor
and
other
Mannors
,
and
the
Advowson
to
Sir
Iohn
Pawlet
in
Fee
,
reserving
Tenure
in
Capite
for
the
Maonnrs
,
and
Socage
Tenure
for
the
Advowson
:
And
the
said
Sir
Iohn
Pawlet
granted
the
Mannor
and
the
Advowson
to
William
Tooke
in
Fee
,
who
presented
the
last
Incumbent
;
and
under
this
Title
the
Plaintiffs
entitle
themselves
.
The
Defend
.
said
,
that
the
said
Wil.
Took
was
seised
of
the
said
Advowson
,
and
it
defended
to
William
Tooke
the
Son
,
and
granted
the
next
avoidance
,
and
it
came
to
Mary
H●wes
who
presented
the
Defendant
Dublin
,
and
the
Evidence
to
prove
that
it
was
in
grosse
,
was
,
Henry
the
third
being
seised
in
Fee
of
the
Mannor
of
Essinton
,
made
a
Lease
therof
to
his
Brother
for
life
,
and
excepted
the
Advowson
,
and
then
upon
the
expressing
of
the
Advowson
,
upon
the
Grant
of
Edward
the
sixth
,
and
the
reservation
of
severall
Tenures
;
And
this
was
their
Evidence
.
And
Serjeant
Henden
maintained
,
that
by
this
exception
of
the
Advowson
,
when
it
was
granted
for
life
,
made
it
to
be
in
grosse
for
ever
:
And
he
vouched
38
H
:
6.
13.
Quare
Impedit
by
the
King
against
the
Abbey
of
Sion
,
and
the
Incumbent
there
,
by
the
Exception
of
the
Advowson
it
was
become
in
grosse
,
and
there
one
said
,
at
least
during
the
Estate
for
life
,
and
that
is
all
which
is
implyed
by
the
Book
,
for
the
Iudgment
is
for
the
King
,
because
that
it
being
not
appendant
,
is
passed
not
by
the
Grant
,
by
the
Habendum
una
cum
,
&c.
And
though
that
the
Court
unement
agreed
that
it
is
but
in
grosse
,
for
the
Estate
for
life
,
and
that
it
is
all
one
,
as
if
the
King
had
granted
the
Advowson
which
is
appendant
for
life
,
and
the
Grantee
dies
,
and
the
Advowson
is
appendant
again
,
and
yet
he
insisted
and
persisted
to
have
a
speciall
Verdict
found
therupon
:
And
I
moved
my
Brother
Yelverton
,
that
before
we
admit
of
a
speciall
Verdict
(
as
it
hath
been
used
in
former
times
)
to
go
to
the
Iudges
of
the
Kings
Bench
,
and
to
put
the
case
to
them
,
to
know
their
opinion
,
and
when
he
came
again
,
and
declared
it
,
we
put
it
upon
the
Iury
to
try
the
matter
,
and
they
came
in
and
found
for
the
Plaintiff
;
And
after
that
the
Demurrer
,
which
was
joyned
for
the
other
Defendant
Mary
,
was
by
consent
entred
for
the
Plaintiff
,
vide
Dyer
34
in
appeal
,
vide
7
H.
6.
37.
Chidley's
Case
.
CHidley
brought
a
Quid
juris
clamat
,
and
had
Iudgment
against
the
Defendant
;
and
the
Plaintiff
had
made
a
Warrant
to
his
Attorney
for
the
receiving
of
his
Attornment
,
Trin.
3
Car.
Rot.
Humbleton
versus
Buck.
Lincoln
.
SImon
Humbleton
brought
an
action
upon
the
case
against
Buck
,
The
Defendant
confessed
all
the
Inducement
,
and
also
a
promise
sub
modo
,
and
sayd
,
that
the
said
Palmer
had
brought
Trespasse
,
to
which
the
Plaintiff
had
pleaded
Not
guilty
,
absque
hoc
,
that
the
said
suit
and
tryall
was
for
the
said
Common
;
And
Issue
being
joyned
it
was
found
for
the
Plaintiff
,
and
Damages
to
twenty
pounds
.
And
in
Arrest
of
Iudgment
it
was
moved
,
that
now
it
appears
,
that
it
was
not
for
the
maintenance
of
the
Title
of
Common
,
&
that
it
could
not
be
for
the
tryall
therof
,
because
he
did
not
plead
the
Title
of
Common
,
which
had
been
the
proper
&
apt
way
for
the
tryall
therof
:
And
when
the
Iury
find
that
which
is
contrary
and
repugnant
to
Law
,
that
is
repugnant
and
not
good
.
And
this
case
was
strongly
argued
by
Serjeant
Davenport
in
Arrest
of
Iudgment
,
and
by
Attho
for
the
having
of
Iudgment
:
And
first
he
said
,
That
although
there
was
a
Parlance
and
Communication
concerning
the
Common
,
yet
the
promise
is
to
defend
this
action
brought
by
Palmer
,
and
is
pro
defentione
of
the
Common
,
not
generally
,
but
against
Palmer
,
and
the
promise
is
to
pay
the
Moyety
of
the
Charges
,
if
he
prosecute
the
said
Suit
,
untill
the
determination
therof
,
so
that
if
it
had
been
found
against
the
now
Plaintiff
,
the
now
Defendant
ought
to
have
paid
the
Moyety
of
the
said
charges
:
And
it
is
not
agreed
that
he
shall
plead
title
by
Prescription
for
the
Common
,
but
that
he
should
prosecute
it
untill
the
determination
of
the
Suit
,
for
the
maintenance
of
the
Common
.
And
the
Court
gave
Iudgment
for
the
Plaintiff
,
for
it
might
be
for
the
maintenance
of
their
Common
against
Palmer
,
for
if
he
had
not
the
Soil
therof
,
but
had
inclosed
it
as
part
of
his
Wasts
,
the
Plaintiff
could
not
plead
the
Title
to
Common
without
admitting
the
Soil
and
Free-hold
to
be
in
Palmer
:
And
if
one
had
been
of
councell
,
and
to
advise
a
Plea
,
if
he
had
not
discovered
that
Palmer
had
no
Title
,
he
would
have
advised
him
to
have
pleaded
Not
guilty
;
for
if
the
said
Palmer
had
no
Title
to
the
Soil
(
which
the
now
Plaintiff
could
not
know
)
it
should
be
found
against
him
;
and
so
this
Plea
might
have
been
in
maintenance
of
Common
.
And
the
Lord
Richardson
who
at
first
doubted
,
now
concurred
,
and
sayd
,
that
he
was
fully
satisfied
.
Trin
3.
Car.
Chapman
versus
Chapman
.
REbecca
Chapman
brought
an
action
of
Debt
against
Henry
Chapman
,
upon
an
Obligation
with
Condition
to
perform
the
Covenants
contained
in
certain
Indentures
.
The
Defendant
pleaded
a
generall
performance
,
the
Plaintiff
replyed
and
shewed
,
that
she
made
a
Lease
to
the
Defendant
of
certain
Cole-pits
,
rendring
eighty
pounds
Rent
,
and
that
the
Defendant
did
not
pay
the
Rent
at
the
day
,
And
it
was
adjudged
upon
Argument
for
the
Plaintiff
:
but
the
matter
upon
which
the
Defendant
justified
came
not
in
question
,
viz.
If
the
Plaintiff
ought
to
have
demanded
the
Rent
:
And
that
the
Obligation
had
not
altered
the
nature
of
the
Rent
,
it
being
generall
to
perform
all
Covenants
;
and
the
reason
is
apparent
,
for
when
the
Defendant
plead
performance
of
all
the
payments
,
that
is
intended
an
actuall
payment
,
for
he
cannot
now
rejoyn
,
that
he
made
tender
,
for
that
shall
be
a
departure
from
his
Plea
.
And
that
was
the
reason
of
the
Iudgment
which
was
Pasch.
43
Eliz.
between
John
Specot
Plaintiff
,
Emanuel
Shere
Defendant
,
upon
the
like
case
in
debt
upon
an
Obligation
,
wheras
the
Defendant
had
granted
an
Annuity
or
Rent
of
six
and
twenty
shillings
eight
pence
to
the
Plaintiff
,
for
one
and
twenty
years
,
the
Condition
was
,
that
if
the
said
Shere
perform
all
the
Covenants
,
&c.
conteined
in
the
said
Writing
,
so
that
the
Plaintiff
may
enjoy
the
Rent
according
to
the
intent
therof
,
then
,
&c.
the
Defendant
recited
the
Deed
and
pleaded
performance
,
the
Plaintiff
replyed
that
the
Defendant
had
not
paid
the
said
eight
and
twenty
shillings
eight
pence
upon
such
a
Feast
,
wherupon
the
Defendant
demurred
,
and
adjudged
for
the
Plaintiff
.
And
the
Lord
Coke
in
his
private
Book
(
as
the
Lord
chief
Baron
said
)
had
shewn
this
reason
:
If
the
Defendant
had
pleaded
specially
,
That
he
was
upon
the
Land
,
and
ready
to
pay
,
and
to
make
tender
,
but
the
Plaintiff
did
not
come
to
demand
it
,
then
the
Plaintiff
ought
to
shew
that
he
did
demand
it
,
which
seems
to
be
agreed
,
14
E
:
4.
4.
2
H.
6.
57.
11
E
:
4.
10.
21
E
:
4
,
42.
but
Brook
6
E
:
6.
Tender
,
makes
this
diversity
,
when
the
Condition
is
expressed
to
pay
the
Rent
,
that
alters
the
nature
of
the
Rent
:
But
otherwise
when
it
is
to
perform
Covenants
.
And
the
Iudgment
given
in
the
Kings
Bench
was
affirmed
.
Trin.
3
Car.
Stephens
versus
Oldsworth
.
IN
a
Quare
Impedit
brought
by
Stephens
and
Cross
against
Oldsworth
and
Holmes
,
for
the
Church
of
Lechamseed
,
the
Incumbent
pleaded
,
Anthony
Greenwood
(
under
whom
,
by
the
grant
of
the
next
avoidance
the
Plaintiffs
claim
)
but
said
,
that
the
said
Sir
Anthony
held
the
said
Mannor
of
the
King
,
per
redditum
ac
wardam
Castri
Dower
,
to
be
paid
yearly
8
s.
1
d.
ob
.
q.
And
among
other
matters
(
which
I
omit
)
it
was
resolved
that
it
was
Socage
Tenure
,
for
a
Rent
for
Castleguard
is
Socage
,
vide
Littleton
26.
Coke
lib
:
4.
fol:
6.
5
E
:
4.
fol.
128.
F.N.B.
256.
a
Mich.
3
Car.
Young
versus
Young
.
per
Gardianos
admissus
obtulit
se
.
And
in
this
Roll
the
Concessit
per
curiam
of
admitting
the
Demandant
to
prosecute
by
his
Guardian
is
not
entred
.
And
after
Verdict
,
and
Iudgment
for
the
Demandant
,
a
Writ
of
Error
was
brought
,
and
that
assigned
for
Error
:
And
it
was
moved
that
it
might
be
entred
upon
the
Philizers
Roll.
And
it
was
resolved
by
all
the
Court
that
it
should
be
supplyed
and
entred
upon
the
Philizers
Roll
;
and
the
principall
reason
was
,
because
that
this
admittance
by
his
Guardians
,
is
the
act
of
the
Court
,
and
not
like
to
the
entry
of
the
Warrant
of
Attorney
,
nor
to
the
Essoin
Roll
,
vide
Dyer
330.
otherwise
it
is
of
Admission
by
Prochein
ami
,
Prochein
amy
.
vide
Rawlins
case
,
Coke
lib.
4.
fol:
53.
The
use
of
the
Kings
Bench
is
never
to
enter
the
Admission
,
but
only
to
recite
it
in
the
Count
,
vide
11
H
:
7.
Rot:
412.
In
a
Writ
of
Right
by
Baron
and
Feme
,
and
another
Feme
Infants
,
there
per
custodes
good
,
vide
8
E
:
4
,
5.
for
the
Mainprise
entred
in
another
Term
,
lib:
Intractionum
fol
:
366.
It
was
vouched
by
Croke
,
and
affirmed
by
Yelverton
in
one
Simpsons
case
in
Durham
,
Prochein
amy
,
where
it
should
be
by
Guardian
,
was
Error
.
The
Presidents
are
,
that
an
Infant
when
he
sue
,
may
be
by
Guardian
,
or
Prochein
amy
,
the
one
or
the
other
;
but
when
he
is
sued
,
it
shall
be
by
Guardian
.
Mich.
3
Car.
Wolfe
versus
Hole
.
WOlfe
an
Attorney
Plaintiff
against
Hole
,
by
a
Writ
of
Priviledge
,
viz.
fault
de
trover
pledges
,
which
was
as
it
ought
to
be
in
the
Plea
Roll
:
And
it
was
moved
that
it
might
be
amended
,
and
after
debate
at
Bar
,
by
Henden
and
Davenport
,
it
was
resolved
that
the
not
finding
of
Pledges
is
not
matter
of
form
,
but
matter
of
substance
,
and
it
concerns
the
King
,
for
if
the
cause
to
amerce
the
Plaintiff
,
the
Iudgment
is
,
Ideo
le
Plaintiff
&
ses
pledge
;
sont
Amerce
,
and
that
it
is
not
aided
by
the
Statute
of
18
Eliz.
quod
quaere
,
and
vide
12
Eliz:
Dyer
288.
there
is
a
Case
written
by
me
,
that
An
:
17
Jac:
was
amended
after
the
Verdict
;
and
in
one
Hillaries
case
,
and
vide
th●re
in
Dyer
,
that
the
Plaintiff
when
he
is
sued
by
Priviledges
,
ought
to
find
pledges
,
and
that
as
well
,
as
when
a
Bill
is
filed
against
an
Attorney
.
But
now
,
because
that
it
was
assigned
for
Error
,
and
that
if
it
be
amendable
,
the
Iustices
of
the
Kings
Bench
would
amend
it
,
this
Court
would
not
;
but
if
it
had
been
in
the
Imparlance
Roll
,
and
omitted
in
the
Plea
Roll
,
it
should
be
amended
,
vide
18
E
:
4.
9.
that
Pledges
may
be
entred
at
any
time
.
Hil.
2.
Car.
Rot.
565.
Hilton
versus
Paule
.
RIchard
Hilton
brought
an
action
of
Trespasse
against
Robert
Paule
,
That
the
Parish
of
Hinkley
was
de
temps
dont
memory
,
&c.
and
yet
is
an
ancient
Rectory
,
and
a
Church
Parochiall
;
And
that
the
Town
of
Stoke-Goldenham
is
an
ancient
Town
,
and
parcell
of
the
Rectory
of
Hinkley
.
And
that
from
the
time
of
H.
6.
and
afterwards
untill
this
time
,
there
hath
been
and
is
in
the
Town
of
Goldenham
,
a
Church
,
which
by
all
the
said
time
hath
been
used
and
reputed
as
a
Parish
:
And
that
the
Inhabitants
of
Stoke-G
.
by
all
the
said
time
had
had
all
Parochiall
Rights
,
and
Church-wardens
;
And
that
the
Tow●●
of
Stoke-Goldenham
is
distant
two
miles
from
Hinkley
.
And
the
Verdict
concluded
,
it
it
should
seem
to
them
,
that
Stoke
Goldenham
is
a
Parish
for
the
relief
of
Poor
,
within
the
Statute
of
43
Eliz.
cap.
2.
then
they
find
for
the
Plaintiff
,
if
not
for
the
Defendant
.
And
this
Case
was
argued
by
Serjeant
Barkley
,
and
he
vouched
Linwood
fol:
89.
and
said
,
that
there
is
Ecclesia
major
&
minor
,
and
a
dependant
Church
upon
the
principall
,
and
another
Church
,
and
which
is
found
to
be
used
and
reputed
,
ergo
it
is
not
a
Parish
.
And
that
the
Exception
of
the
Chappell
of
Foulnes
,
which
by
the
Statute
is
made
a
Parish
,
proves
that
Chappell
and
Parish
are
not
within
the
Statute
:
he
vouched
4
E
:
4.
39.
and
5
E
:
4.
to
prove
that
divers
Town
may
be
one
Parish
.
And
the
Lord
Richardson
said
,
that
it
is
a
clear
case
,
that
this
is
a
Parish
,
within
the
intent
of
the
Statute
of
43
Eliz.
for
the
relief
of
Poor
;
And
that
the
Church-wardens
and
Overseers
of
Stoke-Goldenham
might
assesse
for
the
relief
of
the
Poor
.
And
though
it
be
found
that
after
the
time
of
H.
6.
and
untill
now
,
it
had
been
used
as
a
Parish
Church
,
that
doth
not
exclude
that
it
was
not
used
so
before
.
And
a
Reputative
Chantery
is
within
the
Statute
of
Chantries
,
1
E
:
6.
And
this
Statute
being
made
for
the
relief
of
the
Poor
,
and
that
they
might
not
wander
,
therfore
the
intent
of
the
Statute
is
to
confine
the
relief
to
Parishes
then
in
esse
,
and
so
used
:
And
every
one
of
the
Court
delivered
their
opinion
,
and
concurred
:
And
so
Iudgment
was
given
for
the
Plaintiff
.
Hil.
3
Car.
Peto
versus
Pemmerton
.
Mich.
3
Car.
Rot.
414.
Edward
Peto
Knight
,
brought
Replevin
against
Robert
Pemmerton
and
Giles
Thompson
;
The
Defendants
made
Conusance
as
Bayliffs
to
Humphrey
Peto
,
The
Plaintiff
in
Bar
to
the
Avowry
confesse
the
grant
and
seisin
of
the
Land
,
and
that
the
said
Humphrey
died
seised
of
the
Land
out
of
which
the
Rent
was
granted
,
and
that
that
descended
to
William
,
and
from
William
to
the
Plaintiff
,
who
entred
,
and
demised
to
the
said
Humphrey
the
Son
,
parcell
of
the
Lands
unde
&c.
for
five
hundred
years
,
by
force
of
which
Lease
,
the
said
Humphrey
had
entred
and
was
possessed
.
The
Defendants
replyed
,
that
afterwards
and
before
any
part
(
for
which
they
made
Conusance
)
was
arrear
,
the
said
Humphrey
the
Son
surrendred
the
said
Lease
to
Sir
Edward
Peto
,
to
which
surrender
the
said
Sir
Edward
agreed
,
wherupon
the
Plaintiff
demurred
.
And
this
Case
was
argued
by
Henden
,
and
he
said
,
that
when
the
act
of
him
which
had
the
Rent
made
the
suspension
,
his
act
alone
could
not
revive
it
;
But
a
Rent
suspended
might
be
revived
by
the
act
of
Law
,
or
by
the
joynt
act
or
agreement
of
the
parties
by
whom
the
suspension
was
made
,
21
H.
7.
7.
19
H
:
6.
4.
19
H
:
6.
45.
7
H
:
6.
2.
As
for
the
personall
things
,
when
they
are
suspended
,
they
are
extinct
,
unlesse
it
be
in
auter
droit
,
as
if
Feme
Executrix
take
the
Debtor
to
Husband
,
and
the
Baron
dies
,
the
Wife
shall
have
an
action
of
Debt
against
his
Executors
.
One
reason
in
this
case
is
,
because
that
by
the
surrender
which
is
accepted
,
the
Contract
is
determined
,
and
that
is
by
the
act
of
both
.
And
by
the
surrender
the
Estate
for
years
is
extinguisht
to
all
purposes
,
as
to
that
to
which
the
surrender
was
made
;
as
if
he
had
granted
a
Rent
,
now
it
shall
commence
,
and
he
is
seised
in
Fee
,
and
may
hold
it
charged
with
both
the
Rents
,
2
H
:
5.
7.
5
H
:
5.
34.
Ass.
15.
And
this
Estate
surrendred
is
in
Esse
,
as
to
the
benefit
of
strangers
,
but
not
as
to
the
benefit
of
him
who
accepted
it
,
for
hee
is
seised
in
Fee
,
vide
Lillingstons
case
.
And
the
Court
was
of
opinion
,
that
the
Rent
was
revived
,
and
that
the
Contract
is
now
determined
.
Nota
,
that
this
grant
to
Humphrey
the
Son
for
years
,
was
but
upon
confidence
to
assign
it
over
.
If
Grantee
of
an
Estate
for
life
of
a
Rent
,
take
an
Estate
for
life
of
part
of
the
Land
,
and
surrender
it
,
yet
the
Rent
is
not
revived
,
for
it
was
extinct
in
this
case
,
if
he
had
granted
his
interest
,
quere
,
and
if
he
had
granted
his
interest
over
to
I.
S.
and
he
had
surrendred
it
,
that
shall
not
revive
the
Rent
,
because
that
he
had
by
his
granting
over
of
his
interest
,
discharged
of
the
Rent
extinguish
it
,
quaere
:
but
in
the
principall
case
the
Rent
was
suspended
by
the
acceptance
of
the
Lease
,
and
is
revived
by
the
surrender
.
And
it
was
agreed
;
that
where
Lessee
for
years
surrender
,
to
which
the
Lessor
agree
,
and
accept
it
,
the
possession
and
the
interest
is
in
him
without
entry
.
Hil.
3
Car.
Sandford
versus
Cooper
.
SAndford
brought
a
Scire
facias
against
Cooper
to
have
execution
of
a
Iudgment
for
sixteen
pounds
,
de
Oct.
Hil.
An.
2
Car.
And
one
being
returned
Ter-tenant
,
pleaded
that
after
the
Iudgment
,
viz.
22
Jan.
he
(
against
whom
the
Iudgment
was
)
viz.
John
Bill
acknowledged
a
Statute-staple
,
and
shewe●
,
that
by
that
the
Land
was
extended
,
and
after
upon
liberate
delivered
in
Execution
,
and
demand
Iudgment
,
wherupon
the
Plaintiff
demurred
.
And
the
sole
question
was
,
to
what
day
the
Iudgment
shall
have
relation
,
for
it
appears
in
the
pleading
,
Eliz.
Dyer
fol.
200.
That
a
recovery
being
in
the
first
return
,
the
Warrant
of
Attorney
made
and
dated
the
fourth
day
,
is
taken
to
be
a
Warrant
after
Iudgment
,
and
vide
33
E
:
6.
fol:
45
,
46.
the
principall
case
there
:
If
a
Nisi
prius
taken
after
the
day
of
Essoin
,
shall
be
good
,
and
it
is
adjudged
not
,
for
the
first
day
is
the
return
:
And
it
was
agreed
,
that
in
Common
Parlance
,
the
first
day
of
the
Tearm
is
the
fourth
day
,
viz.
If
one
be
obliged
to
appear
,
or
to
pay
monies
the
first
day
of
such
a
Tearm
.
Loquendum
est
ut
vulgus
.
But
the
Law
relate
the
Iudgment
to
the
first
day
of
every
return
,
vide
Dyer
361.
a
Release
pleaded
after
the
Darrein
Continuance
,
which
was
dated
the
one
and
twentieth
of
January
,
which
was
the
day
after
the
Essoin
day
,
and
it
was
not
good
,
for
it
ought
to
be
before
the
utas
Hillarii
:
de
Octab.
Hil.
vide
many
cases
vouched
to
this
purpose
,
4
E
:
3.34
H
:
6.
20.
a
Writ
of
Error
brought
after
the
utas
,
and
before
the
fourth
,
that
is
good
,
and
brought
after
Iudgment
,
vide
22
H
:
6.
7.
a.
a
Writ
of
Error
ought
to
be
brought
after
the
Iudgment
rendred
,
or
otherwise
no
Execution
shall
be
stayed
▪
And
all
the
Court
gave
Iudgment
for
the
Plaintiff
in
this
Scire
facias
.
Hil.
3
Car.
Holt
versus
Sambach
.
Trin.
2
Car.
Rot.
731.
Thomas
Holt
brought
Replevin
against
Thomas
Sambach
,
in
which
upon
Demurrer
the
Case
was
.
Sir
William
Catesby
(
being
Tenant
for
life
of
Land
,
the
remainder
in
tail
to
Robert
his
Son
,
the
remainder
in
Fee
)
granted
a
Rent
of
ten
pounds
by
the
year
out
therof
to
William
Sambach
in
Fee
,
and
Sir
William
and
Robert
his
Son
levied
a
Fine
with
Proclamations
,
which
was
to
the
use
of
the
said
Sir
William
in
Fee
,
and
afterwards
the
said
Sir
William
enfeoffed
Sir
Thomas
Holt
,
and
died
;
Robert
had
Issue
Robert
and
died
:
And
the
Court
was
of
opinion
,
that
this
Grant
in
Fee
is
good
,
for
he
had
an
Estate
for
life
in
possession
,
and
an
Estate
of
remainder
in
tail
,
and
remainder
in
Fee
,
in
himself
to
charge
,
and
then
the
Fee-simple
passe
by
the
Grant
:
And
although
that
Robert
the
Son
might
have
avoided
it
,
yet
when
he
had
barred
the
Estate-tail
,
&c.
by
Fine
to
the
use
of
Sir
William
,
now
Sir
William
Catesby
had
by
this
acceptance
of
this
Estate
to
himself
,
avoided
the
means
by
which
he
might
have
avoided
the
Rent
.
And
although
that
in
Bredons
case
,
in
the
first
Book
,
when
Tenant
for
life
,
and
he
in
the
remainder
in
tail
joyn
in
a
Fine
,
rendring
Rent
to
Tenant
for
life
,
that
passeth
from
every
one
,
that
which
lawfully
might
passe
,
and
that
the
Rent
continue
after
the
death
of
him
in
the
remainder
in
tail
without
Issue
;
yet
in
this
case
the
Estate
is
barred
by
the
Fine
,
and
united
to
that
Estate
,
which
William
the
Grantor
had
,
and
now
William
is
seised
in
Fee
,
and
this
Rent
made
unavoidable
.
The
Case
was
well
argued
by
Henden
and
Davenport
,
but
it
appeared
that
the
Conusance
was
for
twenty
shillings
,
part
of
the
rent
of
fifty
pounds
behind
,
and
for
fifty
pounds
,
parcell
of
two
hundred
pounds
arrear
for
Nomine
poenae
,
and
did
not
say
in
his
Avowry
,
that
he
was
satisfied
of
the
rest
:
And
therfore
Iudgment
was
given
for
the
Plaintiff
,
vide
20
E
:
4.
2
,
a.
48
E.
3.
3.
Chichley
versus
the
Bishop
of
Ely
.
Dorothy
Chichley
brought
a
Quare
Impedit
against
Nich
:
Bishop
of
Ely
,
and
Mark
Thompson
the
Incumbent
for
the
Church
of
Wimple
,
and
counted
,
that
Thomas
Chichley
was
seised
of
the
Advowson
of
the
said
Church
in
Fee
as
in
grosse
,
and
presented
to
it
being
void
,
Edward
Marshall
which
was
Instituted
and
Inducted
,
and
afterward
the
said
Thomas
Chichley
died
seised
,
and
the
Advowson
descended
to
his
Son
and
Heir
Sir
Thomas
Chichley
,
Thomas
East
,
and
Edward
Anger
and
their
Heirs
,
to
the
use
of
the
said
Plaintiff
for
life
,
and
afterwards
to
the
use
of
the
Heirs
Males
of
the
body
of
Sir
Thomas
Chichley
;
and
that
by
force
therof
she
was
seised
for
life
:
And
the
Church
being
hold
by
the
death
of
the
said
Edward
Marshall
she
presented
,
and
the
Defendants
disturbed
her
.
The
said
Bishop
died
,
and
the
Defendant
plead
that
he
is
parsona
imparsonata
ex
presentatione
Domini
Regis
nunc
:
And
said
,
that
Sir
Thomas
Chichley
was
seised
in
Fee
of
the
said
Advowson
,
and
also
of
the
Mannor
of
Preston
,
and
divers
other
Lands
in
the
County
of
Cambridge
,
which
Mannors
and
Lands
were
holden
of
King
James
in
Capite
by
Knights-service
,
and
being
so
seised
he
died
,
and
that
this
Advowson
and
the
Mannor
descended
to
Thomas
Chichley
his
Son
and
Heir
,
who
at
the
time
of
his
death
was
within
age
:
And
that
afterwards
by
force
of
a
Writ
of
Diem
clausit
extremum
this
matter
was
found
,
wherby
the
King
seised
the
body
,
and
was
possessed
of
the
Mannor
and
of
the
Advowson
,
and
that
the
said
King
James
died
,
&
the
King
which
now
is
suscepit
regimen
hujus
regni
,
and
was
possessed
,
and
the
Church
became
void
;
And
the
King
by
his
Letters
Patents
under
the
great
Seal
,
presented
the
Defendant
Thompson
,
and
traversed
the
Grant
made
by
Sir
Thomas
Chichley
,
to
Thomas
East
and
Edward
Anger
of
the
said
Advowson
,
as
the
Plaintiff
had
alledged
.
The
Plaintiff
replyed
protestand●
,
that
the
Defendant
is
not
Parson
Imparsonee
,
and
that
the
Plea
is
insufficient
,
Pro
placito
dicit
,
quod
non
habetur
aliquod
tale
recordum
,
talis
inquisionis
post
mortem
praedicti
Thomae
Chichley
militis
modo
&
forma
prout
,
wherupon
the
Defendant
demurred
.
And
after
many
Arguments
at
Ba●
,
by
Attho
,
Henden
,
Davenport
,
and
Hedley
,
it
was
adjudged
for
the
Defendant
.
And
that
the
Title
of
the
Plaintiff
being
traversed
,
brought
to
have
been
maintained
,
and
not
to
traverse
other
matter
alledged
by
the
Defendant
,
for
Traverse
upon
Traverse
is
only
when
the
matter
traversed
is
but
Inducement
:
Also
it
appears
fully
that
the
King
is
entituled
to
this
Presentation
,
though
there
was
not
any
Office
,
vide
21
E
:
4.
14
H
:
7.
and
then
all
the
Titles
of
the
King
should
be
answered
,
and
therfore
the
deniall
of
the
Office
is
not
materiall
:
for
if
he
dies
seised
the
King
may
present
without
Office
,
vide
Bendoes
case
,
21
Eliz:
Rot
:
1378.
Crachford
against
Gregory
Lord
Dacren
,
when
the
King
is
entituled
by
Office
to
an
Advowson
,
though
the
very
Title
be
in
a
stranger
,
yet
if
the
Church
be
void
,
and
he
which
hath
Title
present
,
this
is
but
Vsurpation
.
Vide
17
H
:
7.
Kel
:
43.
11
H.
8.
ibid.
fol.
200.
vide
21
E
:
4.
1.
5
E
:
4.
3.
or
13.
of
things
which
lye
in
Grant
,
the
King
is
in
actuall
possession
,
Stamf.
fol
:
54.
2.
R
:
3.
issue
7.
28.
23
H
:
8.
Kel
:
97.
new
Book
of
Entries
fol:
130.
vide
there
that
Traverse
is
allowed
to
be
taken
upon
Traverse
,
vide
for
that
9
H
:
7.
9.
10
E
:
●
.
49.
Dyer
107.
10
E
:
4.
2.
3.
6
E.
3.
●
.
When
two
Titles
appear
for
the
King
as
here
,
the
dying
seised
of
the
Advowson
of
Sir
Thomas
C.
who
also
died
seised
of
the
Mannor
of
Preston
holden
in
Capite
,
that
is
a
good
Title
,
and
the
Office
found
is
another
Title
,
and
●oth
ought
to
be
answered
in
case
of
the
King
,
vide
for
that
matter
,
37
H
:
6.
6.
24
H
:
3.
27.
46.
E.
3
25
9
H
:
6.
37.
39
H
:
2.
4.
40
E
:
3.
11.
In
case
of
severall
charges
to
the
King
,
although
the
King
be
not
party
,
yet
they
ought
to
be
answered
.
Hedley
Serjeant
argued
for
the
Plaintiff
,
that
the
presentment
of
the
King
tolls
all
the
right
of
the
Plaintiff
,
and
therfore
only
ought
to
be
answered
,
and
he
ought
not
to
traverse
the
Title
of
the
Plaintiff
,
which
by
the
Plea
was
toll'd
;
but
notwithstanding
that
,
he
answered
not
the
dying
seised
of
the
Advowson
,
and
the
Tenure
,
by
which
the
King
is
intituled
upon
the
Office
,
and
therfore
all
is
one
:
And
the
Plaintiff
had
waved
his
Title
,
and
not
maintained
it
:
And
therfore
Iudgment
was
given
for
the
Defendant
.
Pasch.
4
Car.
Congham's
Case
.
vide
F
:
N
:
B.
102.
And
properly
this
action
of
Rescous
lies
where
it
is
upon
mean
processe
,
and
that
is
for
the
delay
by
the
Rescous
,
and
damage
may
be
greater
or
lesser
accordingly
:
And
the
Rescous
is
according
to
the
condition
of
him
,
which
is
arrested
,
for
if
he
may
be
easily
taken
again
,
and
that
he
becomes
not
more
poor
,
that
then
the
damage
is
the
lesse
,
vide
16
E
:
4.
fol.
3.
But
after
divers
motions
at
Bar
Iudgment
was
given
for
the
Plaintiff
:
And
the
Lord
Richardson
held
strongly
that
it
lies
.
And
this
Tort
may
be
punisht
at
the
Suit
of
the
party
who
had
damage
therby
,
viz.
the
party
,
the
Sheriff
or
Baily
:
And
Harvey
and
Crook
agreed
,
but
Yelverton
and
my self
doubted
therof
,
because
that
it
is
an
immediate
wrong
to
the
Sheriff
or
Baily
,
and
the
party
had
no
prejudice
in
common
presumption
,
because
that
his
action
is
transferred
to
the
Sheriff
,
who
hath
more
ability
to
satisfie
him
.
Farrington
versus
Caymer
.
LIonell
Farrington
qui
tam
pro
se
quam
pro
,
&c.
brought
an
Information
against
William
Caymer
,
And
it
was
moved
in
Arrest
of
Iudgment
,
that
the
Information
was
brought
in
the
Common
Bench
,
and
yet
it
was
brought
and
tryed
in
the
proper
County
where
the
Offence
was
committed
,
wheras
by
33
H.
8.
cap
:
10.
37
H
:
8
cap
:
7.
21
Jac:
cap
:
4.
it
ought
to
be
brought
in
the
Country
,
and
not
in
the
Common
Pleas.
And
upon
grand
deliveration
and
hearing
of
councell
of
either
part
the
Court
resolved
that
Iudgment
should
be
given
for
the
Plaintiff
.
And
first
it
was
agreed
,
that
(
wheras
by
the
Statute
of
23
H.
8.
cap.
4
,
which
appoint
that
the
Iustices
of
Peace
assesse
the
prises
of
Barrels
and
other
Vessels
of
Beer
;
and
that
they
which
sell
against
that
rate
forfeit
six
shillings
,
&c.
to
be
recovered
by
action
of
Debt
,
Bill
,
Plaint
,
or
Information
in
any
Court
of
Record
,
in
which
no
wager
of
Law
,
&c.
and
gives
one
Moyety
to
the
party
which
will
sue
,
and
the
other
to
the
King
,
no
action
may
be
brought
in
any
Court
of
Record
,
but
onely
in
one
of
the
four
Courts
of
Record
at
Westminster
.
And
the
proof
therof
,
see
Coke
lib
:
6.
fol:
19.
Gregories
case
,
and
Dyer
236.
a.
Then
the
principall
and
sole
point
will
be
,
if
this
Offence
will
be
by
the
act
of
33
H
:
8.
cap
:
10.
made
presentable
and
punishable
by
the
Iustices
of
Peace
;
at
their
six
weeks
Sessions
;
and
it
was
unanimously
agreed
that
it
is
not
.
First
,
because
the
preamble
of
the
act
recite
,
that
the
Offences
recited
therin
escape
punishment
,
and
for
their
more
speedy
and
effectuall
punishment
,
and
repeat
the
particulars
,
but
therin
name
not
Brewers
by
expresse
words
,
and
it
cannot
be
intended
that
the
intent
of
the
Statute
was
to
give
them
at
their
six
weeks
Sessions
,
to
intermeddle
with
things
not
determinable
at
their
generall
Sessions
.
And
it
was
objected
by
A●tho
,
that
Lambert
and
Crompton
had
put
it
as
an
Article
of
their
charge
:
To
which
it
was
answered
,
that
it
was
in
some
respect
inquirable
at
Common
Law
,
viz.
Misdemeanors
in
Bear-brewers
,
Conspiracies
and
agreements
to
sell
at
such
prises
,
and
the
making
of
wholsome
Beer
.
Also
it
might
be
that
they
●ake
the
Law
to
be
upon
the
Statute
of
23
H
:
8.
that
the
Sessions
being
a
Court
of
Record
was
within
this
act
,
that
saies
in
any
Court
of
Record
:
And
then
if
it
be
not
suable
by
Information
before
the
Iustice●
of
Peace
,
the
consequence
is
plain
,
that
the
Statute
of
21
Jac.
cap
:
4.
extends
not
therto
,
and
the
Statute
of
37
of
H
:
8.
makes
not
any
thing
in
this
case
,
but
tolls
the
six
weeks
Sessions
,
and
makes
it
inquirable
at
the
generall
Sessions
.
Ideo
Iudgment
for
the
Informer
.
June
19.
An.
22.
Jac.
MEmorand.
That
upon
a
Conference
at
Serjeants
Inn
in
Fleet-street
,
it
was
resolved
and
agreed
,
by
the
Lord
chief
Iustice
Sir
James
●ea
,
the
Lord
Hobart
,
Baron
Bromley
,
Baron
Denham
,
Iustice
Hutton
,
and
Iustice
Jones
;
That
any
one
may
erect
an
Inn
for
lodging
of
Travellers
,
without
any
allowance
or
License
,
Surrey
,
Kent
,
and
Essex
;
but
the
chief
Baron
Tanfield
was
of
a
contrary
opinion
:
And
it
seemed
to
him
that
Innes
were
licensed
at
first
,
and
Originally
by
the
Iustices
in
Eire
;
but
nothing
could
be
shewne
to
that
purpose
:
But
all
the
Iustices
were
of
a
contrary
opinion
,
and
said
,
that
that
was
the
ground
that
begot
the
Patent
and
Commission
to
Mounperson
,
viz.
That
the
King
might
licence
them
,
if
the
Iudges
might
.
And
it
was
said
by
the
Lord
chief
Iustice
,
that
there
was
not
any
such
thing
in
the
Eires
;
but
because
that
strangers
which
were
aliens
were
abused
and
evilly
intreated
in
the
Inns
,
it
was
(
upon
complaint
therof
)
provided
that
they
should
be
well
lodged
,
and
Inns
were
assigned
to
them
by
the
Iustices
in
Eire
.
The
second
question
was
,
if
an
Inn
be
erected
in
a
remote
and
inconvenient
place
,
so
that
it
is
dangerous
to
Travellers
,
and
there
harbour
men
of
bad
same
,
which
are
apt
to
commit
Robbery
,
whether
that
might
be
suppressed
:
And
as
to
that
all
agreed
that
it
is
a
common
Nusance
,
and
may
be
suppressed
,
and
that
to
be
by
Indictment
and
presentment
,
to
which
the
party
may
have
his
Traverse
.
The
third
question
was
,
whether
when
one
which
had
erected
an
Inn
be
a
man
of
bad
behaviour
,
and
such
a
person
as
is
not
fit
to
keep
an
Inn
,
how
it
should
be
aided
and
helped
:
And
it
was
agreed
by
all
,
that
upon
Indictment
or
presentment
therof
he
may
have
his
Traverse
,
and
if
he
be
convicted
,
then
to
be
suppressed
,
viz.
that
he
which
had
so
misdemeaned
himself
,
should
not
keep
it
as
an
Inn
,
nor
use
it
:
But
that
it
being
an
Inn
,
it
may
be
used
afterwards
by
another
.
Fourthly
,
how
and
by
what
way
or
means
the
multitude
of
Inns
might
be
prevented
,
by
being
suppressed
,
or
redressed
upon
complaint
,
or
how
the
number
might
be
stinted
.
This
Point
seemed
to
be
difficult
,
and
to
contradict
the
resolution
upon
the
first
question
:
And
therfore
it
was
agreed
that
they
should
advise
concerning
it
;
and
the
best
way
is
,
that
they
be
strictly
inforced
to
keep
the
Assise
,
and
not
to
suffer
any
to
tipple
in
their
Inns
;
and
by
this
way
they
would
desist
from
their
Trade
.
Mich.
4
Car.
Mackerney
versus
Ewrin
.
RIchard
Mackerney
brought
an
action
upon
the
case
against
Jeffrey
Ewrin
,
and
count
,
I.
S.
was
indebted
to
the
Plaintiff
in
seven
pounds
four
shillings
for
pasture
,
feeding
,
and
Oates
for
an
Horse
kept
in
the
Stable
of
the
Plaintiff
:
John
S.
promised
to
pay
the
said
seven
pounds
four
shillings
.
And
upon
Non
Assumpsit
pleaded
,
and
Verdict
for
the
Plaintiff
,
Serjeant
Callis
moved
in
Arrest
of
Iudgment
,
that
it
is
no
good
consideration
,
for
the
Plaintiff
had
not
any
property
in
the
Horse
,
and
he
is
not
is
do
any
other
thing
then
the
Law
injoyn
him
to
do
:
As
if
I
lose
my
goods
and
another
find
them
,
and
in
consideration
that
he
will
deliver
them
to
me
I
promise
to
pay
him
two
hundred
pounds
,
that
is
not
sufficient
matter
to
ground
an
Assumpsit
therupon
;
But
if
a
Taylor
had
made
a
Sute
of
Apparell
for
I.
S.
and
I.
D.
request
him
to
deliver
it
to
him
,
and
he
will
pay
for
the
making
therof
,
that
is
a
good
consideration
,
vide
Coke
lib
:
8.
fol:
147.
And
in
this
case
all
the
Court
were
of
opinion
,
that
the
consideration
was
good
,
for
wheras
he
might
have
detained
the
Horse
untill
he
had
been
paid
for
the
pasture
and
feeding
,
he
at
the
speciall
request
of
the
Defendant
had
delivered
the
Horse
to
him
,
to
the
use
of
the
Owner
,
which
is
to
the
prejudice
of
the
Plaintiff
,
and
alienest
to
him
to
whose
use
he
was
delivered
.
And
Iustice
Harvey
vouched
a
case
which
was
in
this
Court
adjudged
,
which
was
in
consideration
that
the
Plaintiff
had
promised
to
pay
to
the
Defendant
ten
pounds
at
a
day
,
according
to
the
Condition
of
an
Obligation
,
the
Defendant
promised
to
deliver
the
Obligation
,
and
adjudged
a
good
Consideration
.
Turner
versus
Hodges
.
THe
Custom
of
the
Mannor
of
_____
is
found
to
be
for
the
Copyholders
(
without
the
License
of
the
Lord
of
the
Mannor
)
they
being
seised
in
Fee
,
may
make
any
Lease
for
a
year
,
It
was
moved
in
Arrest
of
Iudgment
,
that
this
was
a
bad
Custom
,
and
that
the
Copyholders
had
by
Custom
an
Inheritance
,
and
might
by
the
generall
Custom
of
the
Ream
make
a
Lease
for
one
year
;
And
that
tenor
the
generall
Custom
of
the
Realm
,
but
the
Custom
of
every
Mannor
within
the
Realm
,
vide
Coke
lib
:
4.
fol:
26.
in
Melwiches
Case
.
Custom
creates
the
Estate
,
and
the
Custom
is
as
ancient
as
the
Estate
,
and
is
casuall
,
and
upon
the
Act
of
God
,
and
is
reasonable
,
that
the
Heir
who
is
to
pay
the
Fine
should
have
the
Possession
:
And
yet
a
Custom
,
that
if
the
Copyholder
had
surrendred
to
the
Lord
,
that
the
Lease
should
be
void
,
had
been
a
〈◊〉
Custom
,
because
that
he
might
subvert
and
destroy
by
his
own
act
that
Estate
that
he
himself
had
made
,
and
he
which
took
the
Lease
ha●ing
notice
of
the
Custom
,
takes
the
Lease
at
his
perill
,
for
otherwise
he
might
have
procured
the
License
of
the
Lord
;
and
then
by
this
License
the
Lord
had
dispenced
therwith
,
and
that
is
,
as
it
were
,
the
Confirmation
of
the
Lord
:
For
if
a
Copyholder
makes
a
Lease
for
twenty
years
,
with
the
License
of
the
Lord
,
and
after
dies
without
Heirs
,
yet
the
Lease
shall
stand
against
the
Lord
by
reason
of
his
License
,
which
amounts
to
a
Confirmation
.
And
the
Plaintiff
had
Iudgment
.
Hil.
4
Car.
EJectione
firmae
was
brought
,
and
count
upon
a
Lease
made
by
Husband
and
Wife
,
It
was
objected
,
that
this
Lease
could
not
be
made
good
by
the
Feme
by
any
acceptance
,
and
therfore
it
is
not
the
Lease
of
the
Feme
,
no
more
then
if
the
Verdict
had
found
that
the
Lease
was
by
an
Infant
,
and
no
Rent
reserved
,
that
had
been
a
void
Lease
.
But
it
is
contrary
of
a
Baron
and
Feme
,
for
the
Baron
had
power
,
and
the
Feme
joyning
in
the
Lease
,
it
is
not
void
,
for
she
may
affirm
the
Lease
by
bringing
a
Writ
of
Wast
,
or
she
may
accept
Fealty
:
And
so
was
the
opinion
of
the
Court
,
and
Iudgment
entred
accordingly
,
vide
Coke
lib
:
2.
fol:
61.
in
Wiscots
case
.
Count
of
a
Lease
by
Baron
&
Feme
,
and
shew
not
that
it
was
by
Deed
,
and
yet
good
,
vide
Dyer
91.
Pasch.
5
Car.
Paston
versus
Utber
.
JOhn
Paston
brought
Ejectione
firmae
against
Barnard
Utber
,
upon
a
Lease
made
by
Mary
Paston
:
And
upon
Not
guilty
pleaded
,
a
speciall
Verdict
was
found
at
the
Bar
,
and
the
Case
was
thus
.
seised
of
the
said
Land
to
him
and
his
Heirs
by
Copy
of
Court-Roll
,
according
to
the
Custom
of
the
Mannor
of
Binham
:
And
that
within
that
Mannor
there
is
such
a
Custom
,
that
the
Lord
had
had
one
field
course
for
five
hundred
Ewes
in
the
North-field
,
and
the
West-field
(
wherof
these
fifteen
acres
were
parcell
)
from
the
Feast
of
Saint
Michael
,
if
the
Corn
were
inned
,
and
if
it
were
not
,
then
after
the
Corn
were
inned
,
untill
the
Feast
of
the
Annunciation
,
if
it
were
not
before
that
time
sown
again
with
Corn
,
in
all
the
Lands
of
the
Copyholders
not
inclosed
.
And
that
it
is
a
Custom
,
that
no
Copyholder
may
inclose
any
Copyhold
Land
without
the
License
of
the
Lord
:
And
if
any
be
inclosed
without
License
,
then
a
reasonable
fine
should
be
assessed
by
the
Lord
or
his
Steward
,
for
the
Inclosure
,
if
the
Lord
would
accept
therof
.
And
it
is
also
a
Custom
that
if
the
Lord
will
not
accept
therof
,
then
the
Copyholder
which
so
incloseth
,
shall
be
punished
at
every
Court
after
,
untill
he
open
that
Inclosure
.
And
the
said
Vtber
inclosed
the
15.
acres
with
an
Hedge
and
Fence
of
Quick-set
,
3.
feet
deep
,
and
6.
feet
broad
;
and
that
he
had
left
4.
spaces
of
9.
feet
broad
in
the
said
15.
acres
:
And
that
the
said
Vtber
was
required
by
the
Steward
to
lay
open
the
said
Inclosure
,
and
he
did
it
not
,
whereupon
there
was
a
command
to
the
Bayliff
to
seise
them
as
forfeit
,
which
was
done
;
And
the
said
Mary
being
Seignoress
of
the
Mannor
entred
,
and
leased
to
the
Plaintiff
,
and
the
Defendant
entred
upon
him
.
Serjeant
Davenport
argued
that
it
is
a
forfeiture
,
and
against
the
Custom
which
creates
the
Feildage
for
the
Lord
,
as
well
as
the
Estate
of
Copyhold
for
the
Tenant
,
and
that
this
leaving
of
four
spaces
is
a
fraud
and
device
;
and
that
it
is
against
his
Fealty
,
and
is
to
the
damage
of
the
Lord
,
and
a
thing
unlawfull
,
vide
Dyer
245.
34
E.
1.
Formedon
88.
15
A
:
7.
10.
29
E
:
3.
6.
That
if
the
Tenant
inclose
,
the
Commoner
may
break
his
hedges
.
And
though
by
Littleton
an
Inclosure
which
is
a
Disseisin
,
is
a
totall
Inclosure
,
wherby
he
which
hath
the
rent
cannot
come
to
distrain
,
yet
this
also
is
an
Inclosure
,
because
that
it
obstructs
the
feild-course
,
for
they
cannot
come
so
freely
,
without
interuption
or
damage
,
for
the
hedges
may
deprive
the
Sheep
of
their
wooll
:
And
he
compared
it
to
the
case
of
3
H.
7.
4.
One
is
obliged
to
make
an
Estate
of
his
Mannor
of
Dale
if
he
alien
part
and
then
make
a
Feoffment
,
the
Condition
is
broken
,
and
vide
5
E
:
3.
fol:
58.
a
Recognizance
with
Condition
to
make
a
Feoffment
to
I.
S.
of
the
Mannor
,
if
he
alien
part
therof
,
he
forfeit
his
Recognizance
,
he
vouched
42
E
:
2.
5.
and
Coke
lib
:
4.
that
deniall
of
Services
,
or
making
of
Wast
is
a
forfeiture
.
22
H
:
6.
18.
41
E
:
3.
Wast
82.
Dyer
364.
And
though
that
the
Lord
may
proceed
by
fiue
to
enforce
him
to
lay
it
open
,
yet
these
Affirmative
Customs
do
not
toll
the
Negative
.
And
to
prove
that
the
Lord
had
an
Inheritance
therin
,
he
vouched
14
E
:
2.
Fitz.
Grant
92.
A
Rent
granted
to
one
and
his
Heirs
,
out
of
the
Mannor
of
Dale
,
which
he
hold
of
the
Mannor
of
D.
this
is
an
Inheritance
.
And
if
this
shall
not
be
a
forfeiture
,
then
this
Customary
Inheritance
,
which
the
Lord
had
in
the
feild-course
,
might
be
tolled
at
the
will
and
pleasure
of
the
Copyholder
.
Serjeant
Hitcham
argued
strongly
to
the
contrary
.
First
,
That
it
is
no
Inclosure
,
because
that
all
is
not
inclosed
.
Secondly
,
The
forfeiture
of
a
Copyhold
is
alwaies
by
some
thing
done
to
the
Copyhold
land
it self
,
but
this
is
done
(
as
it
is
supposed
)
to
the
feild-course
of
the
Lord
,
which
is
not
Copyhold
,
and
it
is
better
for
the
Copyhold
,
and
makes
the
land
better
,
and
also
the
Feild-course
is
therby
made
better
,
and
more
beneficiall
to
the
Lord
;
and
therfore
the
Copyhold
land
is
not
altered
,
but
is
meliorated
,
and
it
is
like
so
the
case
in
Dyer
361.
Althams
case
,
after
no
Wast
done
,
the
Evidence
was
,
that
a
Trench
was
made
in
a
Meadow
,
by
which
the
Meadow
was
Meliorated
,
and
adjudged
no
wast
,
which
might
be
given
in
evidence
:
But
he
said
that
in
Brooks
case
,
at
the
first
comming
of
Popham
to
be
chief
Iustice
,
it
was
adjudged
,
that
if
a
Copyholder
build
a
new
house
,
it
is
a
forfeiture
,
for
that
altoreth
the
nature
of
the
thing
,
and
put
the
Lord
to
more
charge
.
So
if
Tenant
for
yeare
makes
a
Hay-yard
in
the
land
,
that
is
wast
.
He
said
,
that
this
Custom
is
qualified
by
taking
a
Fine
,
if
he
would
,
or
by
imposing
a
pain
in
the
Court
,
to
enforce
the
Defendant
to
lay
it
open
.
And
all
the
Court
were
of
opinion
,
that
this
is
no
forfeiture
,
for
the
reasons
before
;
and
that
this
Feild-course
is
a
thing
which
commence
by
agreement
,
and
is
but
a
Covenant
,
and
not
of
common
right
:
And
Forfeitures
(
which
are
odious
in
Law
)
shall
be
taken
strickly
.
Trin.
5
Car.
Starkey
versus
Tayler
.
Thou
art
a
common
Barretor
,
and
a
Judas
,
and
a
Promoter
.
And
it
was
moved
in
Arrest
of
Iudgment
,
that
these
words
maintain
not
action
,
for
the
generality
,
and
uncertainty
,
that
he
shall
be
called
a
common
Barretor
.
And
the
chief
Iustice
seemed
to
be
of
opinion
,
that
those
words
are
not
more
,
then
if
he
had
said
,
That
he
was
a
common
Brabler
or
Quarreller
.
But
it
was
urged
by
Serjeant
Hicham
that
the
action
lies
,
and
that
it
is
a
generall
Rule
,
Quod
sermo
relatur
ad
personam
;
As
in
Birchley's
Case
,
He
is
a
corrupt
man
,
And
in
Mores
Case
,
it
was
said
of
an
Attorney
,
That
he
was
a
cousening
Knave
:
And
if
these
words
were
spoken
of
a
common
person
,
he
doubted
if
they
were
actionable
,
but
being
spoken
of
an
Attorney
,
action
lies
.
And
if
these
words
were
spoken
of
Iudge
,
without
doubt
they
were
actionable
:
And
in
this
case
being
spoken
of
an
Attorney
,
who
is
a
Minister
of
Iustice
,
and
who
hath
the
Causes
of
his
Clients
in
his
hands
,
to
gain
them
,
or
to
lose
them
.
The
Statute
of
Westminster
saies
,
the
Sheriffs
are
charged
to
expell
all
Barretors
out
of
their
Countries
:
And
in
the
Statute
of
34
E.
3.
is
the
description
of
a
common
Barretor
,
and
his
punishment
,
who
is
a
stirrer
of
false
and
unjust
Suits
,
and
that
he
shall
be
imprisoned
during
the
pleasure
of
the
King
,
bound
to
his
good
behaviour
,
and
fined
.
And
Littleton
in
his
Chapter
of
Warranties
faith
,
they
are
hired
to
keep
Possessions
,
and
therfore
an
action
lies
.
But
to
say
of
another
man
,
That
he
is
a
common
Barretor
,
is
not
actionable
,
unlesse
he
saith
,
that
he
is
convicted
.
Hil.
3
Car
Rot.
1302.
Watt
versus
Maydewell
.
Leicest.
WIlliam
Watt
brought
an
Ejectione
firmae
against
Laurence
Maydewell
,
Robert
Rome
,
upon
Not
guilty
,
and
a
speciall
Verdict
found
,
the
Case
was
thus
.
Francis
Griffith
seised
of
Land
in
Fee
,
by
Indenture
,
bearing
date
the
fourteen
of
November
,
and
14
Iac.
demised
the
said
Land
wherof
,
&c.
for
one
and
forty
years
,
to
Robert
Rome
,
rendring
two
shillings
Rent
,
to
commence
from
the
Annunciation
which
shall
be
An
:
1619.
and
after
the
same
year
by
another
Indenture
,
bearing
date
the
third
of
December
,
15
Iac.
to
commence
from
the
Annunciation
last
,
demised
the
same
Lands
for
ninety
nine
years
to
Dame
Frances
Perroint
,
who
entred
and
was
therof
possessed
;
And
after
that
,
the
said
Francis
Griffith
by
another
Indenture
the
same
year
,
bearing
date
the
fourteen
day
of
November
,
16
Iac.
to
commence
from
the
seventeenth
of
November
,
An.
1619.
devise
it
to
the
said
Robert
Rome
,
for
one
and
forty
years
,
who
accepted
it
,
and
afterwards
entred
,
and
being
possessed
made
his
Will
,
and
appointed
Executors
,
and
died
,
the
Executors
administred
,
and
made
the
Lease
to
the
Plaintiff
,
who
was
possessed
,
untill
he
was
ousted
by
the
Defendant
.
And
the
only
question
of
this
Case
was
,
if
the
acceptance
of
the
second
Lease
by
Robert
Rome
,
had
determined
,
discharged
or
extinguished
the
former
Lease
.
And
after
Argument
it
was
adjudged
for
the
Plaintiff
,
the
reason
was
,
because
that
by
the
Lease
made
to
the
Lady
Perpoint
for
ninety
nine
years
,
and
her
Entry
,
Francis
Griffith
had
but
a
Reversion
,
and
could
not
by
his
Contract
made
afterwards
with
Robert
Rome
,
give
any
Interest
to
Robert
Rome
.
This
Lease
made
to
Robert
Rome
,
viz.
his
former
Lease
was
good
in
Interest
,
being
to
commence
at
a
day
to
come
,
and
is
grantable
over
,
and
may
be
surrendred
or
determined
by
matter
in
Law
before
the
Commencement
therof
,
as
if
he
take
a
new
Lease
to
commence
presently
,
which
see
in
37
H.
6.
29.
22
E.
4.
for
it
tuures
in
Contract
.
And
in
this
case
it
had
been
without
question
,
that
the
taking
of
the
new
Lease
had
been
a
surrender
of
the
former
,
if
it
were
not
by
reason
of
the
Lease
for
ninety
nine
years
,
which
is
for
so
great
a
number
of
years
,
that
disables
him
to
contract
for
one
and
forty
years
,
37
H.
6.
17.
18.
14
H.
7.
3.
Dyer
140.
Vide
Smith
and
Stapletons
case
in
Plowden
,
If
a
man
makes
a
Lease
for
one
and
twenty
years
,
and
after
makes
a
Lease
for
one
and
twenty
yeares
by
Paroll
,
that
is
meerly
void
,
but
if
the
second
Lease
had
beene
by
Deed
,
and
hee
had
procured
the
former
Lease
to
Attorn
he
shall
have
the
Reversion
,
vide
Ive's
Case
,
Coke
lib
:
5.
fol:
11.
there
it
is
adjudged
that
the
acceptance
of
a
Leese
for
years
,
to
Commence
at
a
day
to
come
is
a
present
surrender
of
a
former
Lease
.
These
Cases
were
vouched
in
this
Case
.
Sir
Rowland
Heywards
Case
,
the
Lessee
had
Election
to
take
as
a
Lease
,
or
as
a
Bargain
and
Sale
,
and
that
it
is
not
by
way
of
Estoppell
,
because
it
was
contracted
out
of
the
Reversion
.
Trin.
14
Jac.
Rot.
3308
Thompson
against
Green
,
13
Eliz.
Rot.
1428.
Ejectione
firmae
brought
by
Mills
against
Whitewood
,
adjudged
that
where
Lessee
for
years
takes
a
new
Lease
after
the
death
of
his
Lessor
,
of
the
Gardian
in
Socage
,
this
is
no
surrender
of
his
Lease
.
42
Eliz.
Rot.
105.
In
Sir
Arthur
Capels
Case
,
adjudged
_____
Rud
who
was
Lessee
for
sixty
years
of
an
Advowson
,
when
the
Church
was
void
,
took
a
Presentation
to
himself
of
the
Lessor
,
and
is
admitten
and
inducted
,
this
was
a
Surrender
of
his
Lease
.
Mich.
5
Car.
Baker
versus
Johnson
.
A
Iury
was
at
the
Bar
in
an
Ejectione
firmae
brought
by
Henry
Baker
against
Bartholomew
Johnson
;
upon
a
Lease
made
by
James
Baker
,
which
was
seised
of
two
Marshes
among
others
called
Knightswick
and
Southwick
,
And
it
was
strongly
argued
by
Crew
and
Henden
to
have
it
found
specially
,
it
being
in
a
Common
Recovery
,
which
is
but
a
Common
Conveyance
.
But
all
the
Court
agreed
,
that
the
Town
and
Parish
being
omitted
,
although
that
Camby
was
a
place
known
(
but
it
appeared
that
that
extends
in
and
to
ten
Towns
)
yet
being
in
a
Town
,
that
the
Recovery
extends
not
therto
,
no
more
then
if
one
had
a
Mannor
in
the
Town
of
Dale
,
which
Mannor
is
called
Bradford
;
and
within
the
said
Mannor
is
a
place
known
which
is
called
Braisty
Wood
,
and
he
omit
the
Mannor
and
the
Town
,
and
say
,
the
hundred
acres
of
Land
in
Braisty
Wood
,
that
is
not
good
.
And
the
Court
agreed
,
that
a
Common
Recovery
is
good
in
a
Town
,
Parish
,
or
Hamlet
,
and
peradventure
in
a
place
known
out
of
the
Town
,
Parish
,
or
Hamlet
,
as
in
the
Forrest
of
Inglewood
,
in
Insula
de
Thamete
,
&c.
But
if
it
should
be
admitted
that
a
Common
Recovery
shall
be
good
in
a
place
known
in
a
Town
or
Hamlet
,
that
shall
be
absurd
,
for
there
is
no
Town
,
in
which
there
are
not
twenty
places
known
;
and
it
had
been
adjudged
,
that
a
Venire
facias
de
viceneto
of
a
place
known
in
a
Town
,
without
making
the
Visne
of
the
Town
,
is
not
good
.
Mich.
5
Car.
Bill
versus
Lake
.
London
.
FRancis
Bill
brought
an
action
upon
the
Case
against
Sir
Aurthur
Lake
,
and
counted
,
that
wheras
at
the
speciall
instance
of
Lettice
Wife
of
the
Defendant
,
toto
,
&c.
and
alledge
the
request
:
And
aver
that
they
were
necessary
Vestments
,
and
convenient
for
the
degree
of
the
Wife
,
and
after
the
making
of
them
,
he
had
delivered
them
to
the
Wife
.
The
Defendant
pleaded
the
Statute
of
21
of
King
James
for
Limitation
,
and
said
,
that
the
Plaintiff
within
six
years
after
the
promise
supposed
,
nor
within
three
years
after
the
end
of
the
Parliament
,
had
not
prosecuted
any
Originall
,
or
any
Action
upon
this
promise
and
Assumpsion
,
wherupon
the
Plaintiff
demurred
.
And
upon
Argument
at
Bar
by
Serjeant
Brampton
for
the
Plaintiff
,
and
Davenport
for
the
Defendant
,
the
matter
was
reduced
to
this
Question
.
Whether
the
cause
of
Action
shall
be
said
upon
the
request
,
or
upon
the
promise
.
Brampton
agreed
,
that
where
it
is
found
upon
an
Assumpsit
in
Law
,
and
that
the
request
is
but
for
increase
of
Damages
,
and
not
issuable
,
there
the
Assumpsit
is
the
cause
of
the
Action
.
But
this
cannot
be
founded
upon
an
Assumpsion
in
Law
,
because
that
it
is
not
certain
,
but
to
be
made
certain
;
first
,
by
the
Plaintiffs
buying
and
providing
of
the
Stuff
:
Secondly
,
by
the
Plaintiffs
termining
and
making
therof
;
and
then
the
matter
of
promise
is
for
the
payment
of
so
much
money
as
it
should
be
reasonably
worth
,
and
therfore
the
request
is
there
collaterall
,
and
then
it
is
the
cause
of
the
action
;
and
so
within
the
Statute
;
if
it
be
an
action
which
is
founded
upon
an
Assumpsit
in
Law
,
then
it
doth
not
charge
the
Husband
:
see
the
difference
when
request
is
materiall
and
shall
be
alledged
,
and
when
not
,
in
Mecholl
and
Pecks
Case
before
,
and
a
Feme
Covert
is
not
capable
to
make
any
Contract
,
because
she
is
Sub
potestate
viri
:
And
though
it
be
for
necessaries
of
Diet
and
Apparrell
,
that
shall
not
charge
the
Husband
:
William
Alephs
Case
.
But
an
Infant
is
capable
to
make
Contract
for
Diet
and
Apparrel
necessary
.
An:
25
Eliz:
Sir
William
Alephs
case
was
adjudged
,
that
where
an
Infant
had
taken
so
much
for
his
necessary
Apparrell
and
Diet
which
amounted
to
fifty
pounds
,
which
was
paid
by
Sir
William
Aleph
;
And
he
took
an
Obligation
with
a
penalty
,
adjudged
that
it
did
not
bind
him
in
regard
of
the
forfeiture
:
And
Dyer
234.
Sir
Michael
Penits
case
,
the
Wife
took
Sattin
and
Stuff
to
make
her
a
Gown
,
and
Sir
Michael
paid
the
Taylor
for
the
making
therof
:
And
yet
upon
an
action
of
Debt
brought
against
the
Husband
,
it
was
resolved
that
it
did
not
charge
him
.
And
that
the
request
to
the
cause
of
the
action
,
he
vouched
Dyer
31.
18
E
:
4.
4.
solvend
sur
request
,
and
9
H
:
7.
fol:
22.
Replevin
and
Tenure
for
plowing
the
Land
when
he
shall
be
required
,
he
ought
to
alledge
the
request
;
and
he
concluded
with
a
Case
adjudged
,
Hil
:
4
Car
:
Rot.
710.
Banco
Regis
,
between
Shuesouth
and
Fernell
,
an
action
upon
the
Case
,
and
count
,
that
the
Defendant
,
An
:
1618.
had
kept
a
Dog
,
which
he
know
had
used
to
woory
Sheep
,
and
that
the
Dog
had
wooried
and
killed
divers
Sheep
of
the
Plaintiffs
:
And
the
Defendant
in
consideration
therof
promised
to
satisfie
the
Plaintiff
what
he
was
damnified
when
he
should
be
required
therto
;
and
the
promise
was
An
:
18
Jac.
and
the
request
and
refusall
was
within
the
time
of
six
years
,
and
it
was
adjudged
for
the
Plaintiff
,
because
that
the
request
is
the
cause
of
the
Action
,
for
without
it
he
could
not
have
his
action
.
And
the
sole
matter
upon
which
Davenport
insisted
,
was
,
that
this
was
a
Contract
by
the
Husband
,
wherupon
the
Plaintiff
might
have
an
action
of
Debt
against
him
,
and
then
it
is
but
an
Assumpsit
in
Law
,
and
the
request
is
not
cause
of
action
:
And
therfore
he
said
,
as
well
as
Debt
lies
upon
the
delivery
of
Cloath
to
a
Taylor
for
the
making
Garments
therof
;
so
an
action
of
Debt
lies
for
the
summ
accompanying
the
speciall
matter
,
viz.
for
the
payment
of
so
much
as
the
making
shall
be
reasonably
worth
,
vide
Coke
lib
:
4.
fol:
147.
so
Debt
lies
as
well
against
the
said
Sir
Arthur
,
upon
this
promise
being
made
then
and
there
,
he
vouched
34
E
:
1.
Fitz
:
Debt
167.
vet.
N.
B.
fol
:
62.
30
E
:
3.
18.
19.
27
H
:
8.
Tatams
case
.
But
the
Court
inclined
that
no
action
of
Debt
lay
against
Sir
Arthur
upon
this
Assumpsit
,
but
only
an
action
of
the
case
upon
the
request
.
Mich.
4
Car.
Treford
versus
Holmes
.
vide
Isaac
Sidleys
case
before
:
Then
he
moved
another
Exception
,
which
was
,
that
he
had
not
shewn
and
averred
in
the
Count
that
the
Defendant
had
Assets
at
the
time
of
the
promise
,
vide
Coke
lib
:
9.
fol:
93.
&
94.
Baines
Case
,
that
ought
to
come
on
the
other
part
,
or
otherwise
it
shall
be
upon
Evidence
,
if
it
be
necessary
.
And
Iudgment
for
the
Plaintiff
.
Mich.
5
Car.
A
strange
increase
of
Water
in
Westminster-Hall
.
MEmorand.
That
on
Friday
the
twenty
third
day
of
October
,
by
reason
of
the
greatnesse
of
the
Spring-tyde
,
and
a
great
Flood
,
the
Hall
of
Westminster
was
so
full
of
water
,
that
neither
the
Serjeants
could
come
to
the
Bar
,
nor
any
stand
in
the
Hall
,
for
there
was
a
Boat
that
rowed
up
and
down
there
,
and
therfore
all
that
was
done
,
my
Brother
Harvey
went
to
the
Stairs
which
came
out
of
the
Exchequer
,
and
rode
to
the
Treasury
,
and
by
this
way
went
and
set
in
the
Court
,
and
Adjourned
all
the
Iuries
,
for
it
was
the
fourth
day
del
tres
Mich.
And
after
that
we
were
in
the
Exchequer
Chamber
,
and
heard
four
or
five
motions
of
the
Prothonatories
there
.
This
comming
into
Court
was
not
of
necessity
,
unlesse
it
had
been
the
Essoin
day
,
or
that
the
Court
should
be
Adjourned
as
Craft
.
Animar
.
The
Chancery
and
Kings
Bench
sate
,
for
they
came
by
the
Court
of
Wards
.
Freeman
versus
Stacy
.
Mich.
5
Car.
BEtween
Freeman
and
Stacy
,
upon
a
speciall
Verdict
the
Case
was
;
y
The
Plaintiff
count
upon
a
Lease
by
Indenture
for
one
and
twenty
years
,
rendring
Rent
,
and
in
debt
for
the
arrearages
of
this
Rent
;
it
appears
,
that
the
arrearages
of
the
Rent
for
which
the
action
was
brought
,
were
due
six
years
and
more
before
the
action
brought
.
And
the
Lord
Richardson
was
of
opinion
,
James
,
cap.
16.
extends
to
Debts
for
arrearages
of
Rent
expresly
.
But
I
,
and
my
Brother
Harvey
,
and
Brother
Yelverton
concurred
,
that
this
action
of
Debt
being
upon
a
Lease
by
Indenture
,
is
not
limited
to
any
time
by
this
Statute
,
but
is
out
of
it
,
and
shall
be
brought
as
before
the
making
of
this
Statute
.
The
words
are
,
All
actions
of
debt
,
grounded
upon
any
lending
or
Contract
without
specialty
:
All
actions
of
Debt
for
arrearages
of
Rent
,
&c.
And
this
is
an
action
upon
a
Contract
by
specialty
,
4
H
:
6.
31.
he
ought
to
declare
upon
the
Indenture
,
and
it
is
a
Contract
,
viz.
a
Lease
:
And
there
is
cause
of
using
the
Indenture
every
half
year
.
And
it
was
resembled
to
the
case
upon
the
Statute
of
32
H
:
8.
of
Limitation
,
a
Rent-charge
which
is
founded
upon
a
Deed
or
a
Reservation
of
a
Rent
upon
a
Fee-●●mple
by
Deed
,
are
not
within
the
Statute
of
Limitation
.
And
nothing
in
this
Statute
was
intended
to
be
limited
,
which
was
founded
upon
a
Deed
:
And
the
words
,
Debt
for
arrearages
of
Rent
,
are
supplyed
and
satisfied
by
the
arrearages
of
Rent
upon
a
Demise
without
Deed.
And
as
to
the
Obligation
,
that
he
proof
of
payment
might
be
wanting
when
the
occasion
is
brought
so
long
after
the
Rent
became
due
,
that
might
be
objected
to
Debt
upon
an
Obligation
,
where
the
day
of
payment
is
for
a
long
time
past
.
And
afterward
the
Lord
Richardson
mutata
opinione
agreed
with
us
;
And
Iudgment
was
given
for
the
Plaintiff
.
Trin.
6
Car.
Shervin
versus
Cartwright
.
SHervin
brought
a
Writ
De
rationabile
parte
bonorum
against
Cartwright
,
and
counted
of
Custom
in
the
County
of
Nottingham
,
First
,
because
that
this
Action
is
an
Originall
Writ
in
the
Register
,
and
is
not
mentioned
in
the
said
Act
,
and
though
that
the
Issue
is
Non
detinet
,
yet
this
is
no
action
of
Detinue
,
for
a
Writ
of
Detinue
lies
not
for
money
,
unlesse
it
be
in
bags
,
but
a
Rationabile
parte
bonorum
lies
for
money
in
Pecuniis
numeratis
,
vide
the
Book
of
Entries
,
Rationabile
parte
bonorum
:
And
this
action
lies
not
before
the
Debts
be
paid
:
And
the
Account
was
,
that
therby
it
might
be
known
for
what
it
should
be
brought
,
and
that
in
many
cases
requires
longer
time
then
the
Statute
gives
.
Another
reason
was
,
that
Statutes
are
not
made
to
extend
to
those
cases
which
seldom
or
never
happen
,
as
this
case
is
,
but
to
those
that
frequently
happen
.
Also
this
Statute
tolls
the
Common
Law
,
and
shall
not
be
extended
to
equity
.
And
upon
all
these
reasons
the
Court
gave
Iudgment
for
the
Plaintiff
:
And
Serjeant
Ward
argued
well
,
and
vouched
divers
good
Cases
.
The
Writ
of
Detinue
supposeth
properly
in
the
thing
demanded
,
vide
50
E.
3.
6.
Cook
versus
Cook
.
WIlliam
Cooke
alias
Barker
,
brought
an
Action
of
Wast
against
George
Cook
alias
Barker
,
and
count
against
him
as
Tenant
for
life
,
George
Cook
,
and
intitle
himself
to
the
Reversion
,
Ex
assignatione
of
the
said
George
,
and
shews
that
George
Cook
being
seised
in
Fee
,
and
the
Ter-tenant
in
Socage
,
devised
the
Land
to
the
Defendant
for
life
,
the
remaineer
in
tail
to
the
Plaintiff
:
And
upon
the
Count
the
Defendant
demurred
.
And
the
Question
was
how
the
Writ
should
be
,
where
a
Lease
is
made
for
life
,
the
remainder
in
Fee
,
for
it
cannot
be
,
Quod
de
ipso
tenet
;
And
it
seems
that
the
Writ
shall
be
speciall
upon
the
Case
,
as
a
Fine
levied
to
one
for
life
,
the
remainder
in
Fee
,
the
Writ
shall
be
speciall
upon
the
Case
:
And
it
seems
that
it
shall
never
be
Ex
assignatione
,
but
where
the
Reversion
is
granted
over
,
vide
38
E
:
3.
fol.
23.
the
direct
Case
:
and
vide
38
H.
6.
fol.
30.
in
the
Writ
of
Consimili
casu
,
vide
F
:
N
:
B
:
fol:
207.
in
the
Writ
of
Consimili
casu
,
qui
illud
tenet
ad
vitam
D.
ex
Assignatione
praedicti
B.
quam
I.
filius
&
heres
R.
qui
quidem
R.
illud
praefat.
D.
demisit
ad
eundem
terminum
,
inde
fecit
praefat.
B.
&c.
The
Estate
for
life
with
a
Remainder
over
,
is
but
one
Estate
,
and
it
was
a
question
at
Common
Law
,
if
he
in
remainder
shall
have
an
action
of
Wast
,
vide
41
E
:
3.
16.
42
E
:
3.
19.
50
E.
3.
3.
Reg.
75.
But
at
this
day
the
Law
is
cleer
,
that
he
in
remainder
shall
have
an
action
of
Wast
,
F
:
N
:
B
:
fol:
207.
but
these
Books
prove
that
the
Writ
of
Wast
ought
to
be
Ex
divisione
,
non
ex
assignatione
.
Mich.
6
Caroli
.
Thou
art
a
Theef
,
and
hast
stoln
one
Passions
Lamb
,
and
marked
it
and
denied
it
:
And
upon
Not
guilty
pleaded
,
and
Verdict
for
the
Plaintiff
:
Serjeant
Ashley
moved
in
Arrest
of
Iudgment
,
because
that
it
is
not
shewn
whose
Lamb
,
for
Passions
is
no
word
of
any
signification
without
the
name
of
Baptisme
.
And
the
Court
was
of
opinion
that
the
Count
was
good
,
for
it
had
been
sufficient
to
call
him
Theef
,
and
then
the
subsequent
matter
and
words
aggravate
,
and
contain
matter
of
Felony
:
And
it
is
a
generall
Rule
,
that
when
the
first
words
are
actionable
,
the
latter
words
which
toll
the
force
therof
,
ought
to
be
such
as
do
not
contain
Felony
.
Babbington
versus
Wood.
BAbbington
brought
an
action
of
debt
against
Wood
,
upon
an
Obligation
of
600
l.
the
Condition
was
,
That
if
Wood
resign
a
Benefice
upon
request
,
that
then
the
Obligation
should
be
void
.
Exchequer
Chamber
;
for
this
Obligation
is
not
voidable
by
the
Statute
of
14
Eliz.
which
makes
Obligations
of
the
same
force
,
as
Leases
made
by
Parsons
of
their
Gleaves
,
viz.
Per
non
residency
;
And
it
doth
not
appear
by
the
Plea
of
the
Defendant
,
that
it
was
not
an
Obligation
bona
fide
which
might
be
lawfull
:
As
if
a
Patron
which
hath
a
Son
,
which
is
not
yet
fit
to
be
presented
for
default
of
age
,
and
he
present
another
with
an
agreement
,
that
when
his
Son
comes
to
the
age
of
24.
years
,
be
shall
resign
it
,
it
is
a
good
Obligation
.
And
this
Case
,
viz.
an
Obligation
with
Condition
to
resign
had
been
adjudged
good
in
the
case
of
one
Jones
,
An
:
8
Jac.
And
the
Councel
said
,
that
he
who
is
presented
to
a
Church
is
married
therto
,
Wilson
versus
Briggs
.
WIlson
brought
an
action
of
Account
against
Briggs
,
as
Bayly
of
his
Mannor
in
the
County
of
Cambr.
Ven.
fac
.
to
be
directed
to
the
severall
Sheriffs
.
First
it
is
agreed
,
that
a
writ
of
Account
against
one
as
Bayliff
of
his
Mannor
,
cannot
be
brought
in
another
County
,
but
only
in
that
County
where
the
land
lies
,
vi
.
8
E.
3.
fol:
46.
Fitz.
Acc.
93.
see
there
that
two
actions
of
Account
brought
against
one
for
receit
in
two
Counties
.
And
there
it
is
said
,
that
it
being
upon
a
day
,
that
he
may
have
one
writ
,
and
count
in
the
two
Counties
.
But
to
that
it
is
said
,
that
that
proves
not
but
that
he
might
have
two
Writs
wherby
it
might
be
awarded
that
he
should
answer
.
But
in
this
case
it
was
resolved
,
that
it
was
a
mis-tryall
,
for
it
ought
to
be
by
two
Ven.
fac
.
and
tryed
at
Bar
,
and
it
is
not
aided
by
the
Statute
of
21
Jac:
cap
:
13.
Trin.
8
Car.
Purnell
versus
Bridge
,
Hil.
6
Car.
Rot.
1235.
HEnry
Pernell
brought
Replevin
against
William
Bridge
,
Robert
Bridge
,
and
two
others
:
William
Bridge
plead
Non
cepit
,
and
the
other
made
Conusance
,
and
upon
Demurrer
the
case
was
such
.
Richard
Braken
was
seised
in
Fee
of
sixty
acres
of
arrable
Land
,
and
forty
eight
acres
of
Meadow
and
Pasture
,
wherof
the
place
in
which
,
&c.
was
parcell
;
And
he
the
sixth
of
Febr.
,
An:
18
Eliz.
by
Deed
granted
an
Annuity
or
Rentcharge
of
thirteen
pounds
six
shillings
out
therof
,
to
Edward
Steward
in
Fee
,
payable
at
the
Feast
of
Saint
Peter
,
or
within
eight
and
twenty
daies
after
:
And
if
it
be
arrear
for
eight
and
twenty
daies
after
the
said
Feast
,
that
then
he
forfeit
for
every
Fine
after
forty
shillings
,
with
a
clause
of
Distresse
as
well
for
the
said
Rent
,
as
for
the
said
forty
shillings
,
if
it
shall
be
arrear
.
Edward
Steward
seised
of
the
Rent
died
,
wherby
it
descended
to
Ioan
Iermy
Wife
of
Thomas
Iermy
,
Daughter
and
Heir
of
the
said
Edward
Steward
,
and
they
being
seised
therof
in
the
right
of
the
said
Ioan
,
An.
41
Eliz.
in
Crastino
animarum
levied
a
Fine
of
the
said
Rent
to
Robert
Brook
,
and
Isaac
Iermy
,
and
to
the
Heirs
of
Robert
,
which
Fine
was
to
the
use
of
the
said
Robert
and
Isaac
,
and
their
Heirs
for
ever
:
by
force
therof
,
and
of
the
Statute
27
H
8.
they
were
seised
of
the
said
Rent
in
Fee
,
and
after
the
said
Robert
died
,
and
Isaac
survived
,
and
is
yet
seised
Per
jus
Accrescendi
,
and
for
Rent
arrear
,
&c.
and
for
the
said
forfeiture
of
forty
shillings
,
they
avow
,
wherupon
the
Plaintiff
demur
.
And
upon
Conference
between
the
Iudges
,
they
all
agreed
,
that
by
this
Fine
which
granted
to
Brook
and
Jermy
,
and
the
Heirs
of
Brook
,
to
the
use
of
Brook
and
Jermy
,
and
their
Heirs
,
that
they
were
in
by
the
Statute
of
27
H
:
8.
and
were
Ioyn-tenants
of
the
Rent
,
for
otherwise
there
would
be
such
a
Fraction
of
the
Estato
,
that
Brook
should
be
in
by
the
Common
Law
,
and
Jermy
by
the
Statute
,
and
that
is
not
according
to
the
Statute
:
And
it
appears
that
the
use
was
limited
by
the
Fine
it self
,
and
not
by
any
Indenture
.
And
the
principall
reason
is
upon
the
Statute
of
27
H
:
8.
which
is
,
where
two
or
three
are
seised
to
the
use
of
one
or
two
of
them
,
Cestui
que
u●e
shall
be
adjudged
to
have
such
Estate
in
possession
,
as
they
have
in
use
.
Iudgment
pro
Defendent
.
Memorand.
That
in
this
Term
a
motion
was
made
for
the
filing
of
a
Writ
of
Entry
in
a
Common
Recovery
suffered
by
Sir
John
Smith
upon
a
Purchase
,
and
all
was
well
done
,
and
the
Writ
made
and
sealed
,
John
Smith
,
for
it
is
but
to
perfect
a
Common
Recovery
which
is
a
Common
Conveyance
:
And
this
was
denied
in
the
case
of
one
Allonson
,
for
there
Error
was
brought
and
Diminution
alledged
,
and
a
Certificate
that
there
was
no
Writ
by
the
Custos
brevium
.
And
it
is
ordinary
to
file
these
Writs
at
any
time
within
a
year
,
without
motion
.
Mich.
8
Car.
Harbert
versus
Angell
.
CHarles
Harbert
Plaintiff
,
against
Angell
,
Thou
art
a
Theef
,
and
hast
cousened
my
Cosin
Baldwin
of
his
Land
:
And
after
Verdict
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
,
that
the
words
would
not
maintain
action
.
And
at
the
first
,
Iustice
Crawley
and
Iustice
Vernon
were
of
opinion
,
that
the
former
part
of
the
words
were
actionable
,
and
that
they
were
not
extenuated
by
the
subsequent
words
;
but
they
agreed
,
if
it
had
been
,
for
thou
hast
robbed
,
&c.
it
would
be
otherwise
.
And
the
Lord
Heath
and
Iustice
Hutton
were
of
a
contrary
opinion
,
and
that
the
words
And
,
and
For
,
are
in
this
case
to
have
one
effect
,
and
declare
what
Theef
he
intended
:
And
they
relyed
on
Birtridges
case
,
Coke
lib
:
4.
And
upon
this
diversity
of
opinion
the
Lord
Heath
conferred
with
the
Iustices
of
Serjeants
Inn
in
Fleetstreet
,
and
we
with
the
Lord
Richardson
,
and
they
all
agreed
,
that
the
subsequent
words
explained
his
intent
and
meaning
,
viz.
the
Robbery
and
cousening
of
the
Land
:
And
Verba
sunt
accipienda
in
mitiori
sensu
;
As
to
say
,
Thou
hast
stoln
my
Corn
,
it
shall
be
intended
Com
growing
:
so
in
Arrowes
case
,
Jac.
Thou
art
a
Theef
,
and
hast
stoln
ten
Cart-loads
of
my
Furzes
;
adjudged
not
actionable
,
for
it
shall
be
intended
of
Furzes
growing
.
Quaerens
nil
capiat
per
breve
.
Ram
versus
Lamley
.
Norff.
RAm
brought
an
action
upon
the
case
against
Lamley
,
and
declared
,
That
wheras
he
was
Bonus
&
legalis
homo
,
and
free
a
suspitione
feloniae
,
the
Defendant
maliciously
want
to
the
Major
of
Linn
,
and
requested
a
Warrant
of
him
(
being
a
Iustice
of
Peace
)
against
the
Plaintiff
for
stealing
his
Ropes
:
The
Major
said
to
him
,
Be
advised
and
look
what
you
do
,
the
Defendant
said
to
the
Major
,
Sir
,
I
will
charge
him
with
flat
Felony
for
stealing
my
Ropes
from
my
Shop
,
Quorum
quidem
verborum
,
&c.
And
after
Not
guilty
pleaded
,
and
Verdict
for
the
Plaintiff
,
Hitcham
moved
in
Arrest
of
Iudgment
;
And
the
Court
unanimously
resolved
that
these
words
being
spoken
to
the
Iustice
of
Peace
when
he
came
for
his
Warrant
,
which
was
lawfull
,
would
not
maintain
an
action
,
for
if
they
should
,
no
other
would
come
to
a
Iustice
to
make
complaint
,
and
to
inform
him
of
any
Felony
.
Quaerens
nil
capiat
per
breve
.
Mich.
8
Car.
Lamb
versus
West
.
Trin.
8
Car.
Rot.
333.
SIr
John
Lamb
Knight
,
brought
Replevin
against
Thomas
West
,
and
count
,
Blisworth
,
in
quodam
loco
vocat
.
Thorny
Close
.
The
Defendant
avowed
as
Bayliff
to
Sir
William
Sheapherd
,
and
derived
Title
by
a
Lease
to
Michael
West
for
ninety
years
,
if
he
and
Thomas
West
the
Defendant
,
Hutton
West
should
so
long
live
:
And
the
said
Michael
,
19.
Aprilis
,
An
:
20
Jac.
granted
a
Rent-charge
of
ten
pounds
per
annum
to
the
said
William
Shepheard
and
his
Executors
,
out
of
the
place
in
which
,
&c.
for
the
residue
of
his
Tearm
,
to
be
paid
at
the
house
of
Thomas
West
in
S.
And
the
said
Mich.
granted
,
that
if
the
Rent
he
arrear
by
eight
and
twenty
daies
,
being
lawfully
demanded
at
the
said
house
,
he
should
forfeit
twenty
shillings
for
every
day
,
that
it
should
he
arrear
,
and
if
it
be
arrear
by
six
months
,
being
lawfully
demanded
at
the
said
house
,
then
he
might
distrain
for
that
,
and
the
Nomine
poenae
:
And
for
Rent
arrear
by
a
year
after
demand
due
,
&c.
he
makes
Conuzance
;
And
therupon
the
Plaintiff
demurred
generalls
.
And
after
many
Arguments
at
Bar
,
the
Iustices
delivered
shortly
their
opinions
severally
,
and
all
argued
that
it
is
a
Rent-charge
:
and
then
a
Distresse
is
incident
to
a
Rent-charge
,
which
is
in
its
creation
a
Rent-charge
;
as
well
as
if
one
makes
a
Lease
for
life
or
years
,
rendring
Rent
,
and
if
it
be
lawfully
demanded
,
then
it
shall
be
lawfull
to
distrain
for
it
.
None
will
deny
,
but
that
he
may
distrain
for
this
Rent
,
without
any
demand
:
And
the
diversity
is
between
a
Penalty
and
a
Rent
,
for
if
the
Avowry
had
been
for
any
part
of
the
Nomine
poenae
,
then
without
actuall
demand
at
the
day
he
could
not
have
distrained
therfore
,
vide
Maunds
case
,
Coke
lib
:
7.
fol:
28.
And
all
agreed
,
that
when
a
Distresse
is
for
Homage
,
if
it
be
once
tendred
and
refused
,
he
cannot
distrain
without
demand
,
vide
Litt
:
34.
21
E
:
4.
6.
16
,
17.
7.
E
:
4.
4.
That
where
a
Rent
is
reserved
upon
a
Lease
,
and
an
Obligation
to
pay
it
,
yet
that
alters
not
the
nature
of
the
Rent
,
22
H
:
6.
a
good
case
.
Rent
is
reserved
upon
a
Lease
,
and
an
Obligation
to
perform
Covenants
,
that
extends
not
to
the
Rent
reserved
,
but
if
it
be
to
pay
the
Rent
,
then
it
shall
be
demanded
,
there
it
is
said
,
that
if
Rent
be
tendred
and
refused
,
the
Lord
or
Lessor
may
distrain
without
demand
.
It
was
agreed
,
that
if
Rent
he
reserved
at
the
time
of
the
Distresse
,
and
it
be
refused
,
and
a
Distresse
taken
,
that
is
Tortious
,
30
Ass:
36.
20
H
:
6.
31.
48
E
:
3.
9.
2
H
:
6.
4.
And
in
this
case
it
was
said
,
that
Reddenda
singula
singulis
,
that
the
demand
shall
be
used
when
the
Penalty
of
the
Rent
comes
in
question
,
and
not
for
the
Rent
:
And
though
it
be
reserved
payable
at
another
place
,
thal
changeth
not
the
Rent
,
but
it
is
issuable
out
of
the
Land
and
distrainable
upon
the
Lands
.
And
lastly
,
it
hath
been
divers
times
adjudged
,
that
the
Rent
is
payable
upon
the
Land
,
1
Jac:
Rot
:
1818.
Trin:
16
Jac.
Rot.
954.
Between
Skinner
and
Amery
,
vide
before
between
Crawley
and
Kingswell
.
Trin:
3
Car
:
Rot
:
2865.
Rent
reserved
payable
out
of
the
Land
:
And
although
that
the
Iudgment
is
by
confession
after
demurrer
,
yet
it
was
for
the
reason
afore
recited
.
Iudgment
for
the
Defendant
The
Lord
Audley's
Case
.
Wilts.
JUratores
pro
Domino
rege
super
sacramentum
suum
present
.
Quod
Martinus
Dominus
Audley
nuper
de
Fountell
Gifford
in
Comitatu
Wilts.
&
Aegideus
Broadway
de
Fountell
Gifford
praedict.
in
Comitatu
praedicto
generosus
,
timorem
Dei
prae
oculis
suis
non
habentes
,
Et
ultim
Juratores
praedicti
dicunt
super
sacramentum
suum
praedict.
Quod
praedictus
Martinus
Dominus
Audley
praedicto
vicesimo
die
Junii
,
An.
sexto
supradicto
Apud
Fountell
Glifford
praedictam
,
in
Comitatu
praedicto
felonice
fuit
presens
,
auxilians
&
Confortans
,
abettans
,
procurans
,
●adjuvans
,
&
manutenens
praedictum
Egidium
Br.
ad
feloniam
praedictum
in
forma
praedicta
felonice
faciend.
&
perpetrand
.
contra
pacem
dicti
Domini
Regis
nunc
Coronam
&
dignitatem
suas
,
ac
contra
formam
statuti
praedicti
.
Wilts.
IUratores
pro
Domino
Rege
super
sacramentum
suum
present
.
Quod
Martinus
Dominus
Audley
nuper
de
Fountell
Gifford
in
Comitatu
Wilts.
Deum
prae
oculis
non
habens
,
nec
naturae
ordinem
respiciens
,
The
like
Indictment
for
the
same
Offence
,
with
the
same
person
,
10
June
,
the
same
year
at
new
Sarum
,
in
the
Mansion
house
of
the
said
Martin
,
&c.
Memorand.
That
these
Indictments
were
sound
6
April
,
An.
7
Car.
at
new
Sarum
,
by
vertue
of
a
Commission
before
Edward
Lord
Georges
,
Nich.
Hide
Knight
,
chief
Iustice
ad
placita
,
&c.
Thomas
Richardson
chief
Iustice
de
Banco
.
John
Denham
Knight
,
one
of
the
Barons
,
&c.
Edward
Hungerford
Knight
,
Walter
Vaughan
Knight
,
Laurence
Hide
Knight
,
Thomas
Fanshaw
Knight
,
by
Letters
Patents
,
Ipsius
Domini
Regis
pro
eis
&
quibuscunque
tribus
vel
pluribus
eorum
inde
Confect
.
ad
Inquirendum
,
&c.
Memorand.
That
the
25.
day
of
April
,
An.
7
Car.
A
Commission
was
made
for
the
Arraignment
of
the
said
Lord
Audley
upon
the
said
severall
Indictments
,
by
his
Peers
,
in
which
the
Lord
Coventry
,
Lord
Keeper
of
the
Great
Seal
,
was
made
high
Steward
:
And
the
Peers
were
in
number
twenty
seven
.
And
he
pleaded
Not
guilty
:
And
one
question
was
propounded
to
the
Iudges
which
did
attend
,
viz.
The
Lord
chief
Iustice
of
the
Kings
Bench
,
the
Lord
chief
Iustice
of
the
Common
Pleas
,
the
Lord
chief
Baron
,
Baron
Denham
,
Iustice
Jones
,
Iustice
Whitlock
,
Iustice
Harvey
,
and
Iustice
Crook
.
If
the
Wife
might
be
produced
as
a
Witnesse
against
her
Husband
.
But
as
he
said
to
me
,
their
opinions
we
delivered
only
upon
this
case
and
upon
these
examinations
,
if
the
Lords
gave
credit
to
the
matter
in
fact
,
that
it
was
Buggery
,
but
they
gave
not
a
generall
opinion
,
that
may
be
a
rule
in
other
cases
,
but
upon
the
foulnesse
and
abominablenesse
of
this
Fact
.
And
afterwards
the
Lords
were
not
unanimously
resolved
that
it
was
Buggery
,
but
this
Point
was
resolved
,
that
they
ought
to
believe
and
give
credit
to
the
Law
,
as
the
Iudges
had
declared
it
.
And
it
seems
that
they
could
not
give
a
speciall
Verdict
upon
this
tryall
,
for
it
never
was
seen
:
Also
the
Commission
determines
after
Iudgment
given
,
And
the
Staff
of
the
high
Steward
shall
be
broken
.
And
after
long
debate
,
they
seriatim
(
laying
their
hands
upon
their
hearts
,
as
the
Mannor
is
)
said
,
that
he
was
guilty
of
Rape
,
beside
the
Lord
North.
And
for
the
Buggaries
twelve
of
the
Lords
acquitted
him
,
and
fifteen
found
him
guilty
,
and
so
he
had
Iudgment
.
And
at
this
Arraingnment
the
Iudges
assistant
sate
with
their
heads
covered
,
as
the
ancient
use
hath
been
;
But
the
Serjeant
at
Armes
was
commanded
to
make
Proclamation
,
That
the
Iudges
,
and
all
the
Lords
(
not
being
his
Peers
)
and
all
of
the
Privy
Councell
should
be
covered
,
and
others
not
.
And
this
was
only
in
relation
to
the
precedent
usage
,
and
the
right
which
appertain
to
the
Iudges
:
For
in
Parliament
,
they
being
called
by
Writ
,
use
to
be
covered
as
oft
as
the
Lord
Chancellor
or
Keeper
of
the
Great
Seal
(
which
is
Speaker
)
puts
on
his
Hat
;
But
now
it
is
used
,
that
they
put
not
on
their
Caps
,
untill
they
have
been
requested
by
the
Lord
Speaker
.
And
when
they
are
called
into
the
Star
Chamber
,
or
to
Errors
in
the
Exchequer
Chamber
,
they
set
covered
with
their
Caps
.
Pasch.
7
Car.
Risam
versus
Goodwin
.
Mich.
5
Car.
Rot.
2512.
IN
a
Writ
of
Scire
facias
brought
by
William
Risam
against
John
Goodwin
and
Richard
Peat
,
Administrators
of
Thomas
Cammon
,
the
Case
was
such
.
The
now
Plaintiff
William
Risam
recovered
against
Thomas
Cammon
a
hundred
pounds
Debt
,
and
ten
shillings
Costs
,
at
the
Grand
Sessions
holden
at
Carm●rthen
,
and
execution
awarded
,
and
Nulla
bona
returned
.
And
upon
Surmise
that
the
said
Thomas
Cammon
was
dead
,
and
that
the
now
Defendants
had
taken
Letters
of
Administration
,
a
Scire
facias
issued
against
them
,
and
Nichil
returned
,
and
after
a
Writ
of
Execution
,
and
that
afterwards
being
returned
by
the
Sheriff
of
the
County
Nulla
bona
testatoris
,
a
Writ
issued
to
the
Sheriff
of
the
County
of
the
Town
of
Carmarthen
,
who
returned
Devastavit
:
And
because
that
the
now
Defendants
had
not
Goods
within
the
said
County
,
or
within
the
County
of
the
Town
of
Carmarthen
,
or
Jurisdiction
of
the
Grand
Sessions
,
the
Plaintiff
procured
a
Certiori
to
the
Justices
of
the
Grand
Sessions
,
who
certified
the
Record
to
the
Chancery
,
and
by
Mittimus
it
came
to
the
Common
Bench
,
with
directions
Quia
executio
judicii
praedicti
adhuc
restat
.
faciend
,
Mandant
quod
,
at
the
prosecution
of
the
Plaintiff
,
Vos
fieri
faciat
.
de
more
,
&
secundum
legem
&
consuetudinem
regni
nostri
Angliae
fuit
faciend.
Wherupon
a
Writ
of
Scire
facias
was
awarded
to
the
Sheriff
of
Hereford
against
the
said
Defendants
,
to
which
they
appeared
:
And
after
many
Imparlances
they
demurred
upon
the
insufficiency
of
the
Writ
of
Scire
facias
.
And
this
case
was
argued
by
Berkley
for
the
Plaintiff
,
and
by
Henden
for
the
Defendant
.
And
the
Cases
put
by
Berkley
were
F
:
N.
B
:
243.
a.
b.
39
E.
6.
3
&
4
Ass:
in
ancient
Demesne
,
and
for
the
Damages
surmised
,
that
he
had
nothing
within
ancient
Demesne
,
21
E
,
3.
49.
21
H
:
7.
33.
8
Ass:
27.
30
H
:
6
,
7.
3
H
:
4.
15.
1
Justitutes
59.
in
Frankalmoigne
:
That
Wales
is
parcel
of
England
1
E
:
3.
Jurisdiction
45.
22
H
:
6.
58.
47.
E
:
3.
6.
3.
E
:
3.
Quare
Impedit
38.
35
H
:
5.
30.
19
H
:
6.
12.
&
52.
vide
the
Statute
of
34
H
:
8.
for
Wales
and
Writs
of
Error
.
Henden
argued
to
the
contrary
;
and
his
first
reason
was
,
-
1.
That
this
Court
of
the
great
Sessions
is
an
inferiour
Court
.
-
2.
The
Record
it self
comes
not
but
a
Transcript
.
-
3.
The
Statute
of
34
H
:
8.
hath
appointed
the
Execution
,
and
that
should
be
pursued
.
-
4.
This
Innovation
is
perillous
,
and
never
put
in
practice
.
And
he
relyed
upon
the
diversity
.
When
Iudgment
in
a
peculiar
inferiour
Court
,
comes
into
the
Kings
Bench
,
or
into
this
Court
by
Writ
of
Error
,
and
is
affirmed
,
then
the
Superiour
supplies
it
,
and
add
strength
to
the
Iudgment
:
But
when
Iudgment
is
given
in
a
Court
of
a
Corporation
,
and
that
is
removed
by
Certiorari
,
and
sent
by
Mittimus
,
that
shall
not
be
executed
there
,
vide
45
E
:
3.
25.
Formedon
in
London
,
vide
14
E
:
3.
Tryals
23.
15
E
:
3.
Record
35.
New
Book
of
Entries
,
the
last
case
in
Writ
of
Error
,
vide
8
E
:
3.
10.
26
H
:
6
8.
3
H
:
6.
16.
7
H
:
4.
8.
14
H
:
4.
25.
H
:
5.
11.
And
he
relyed
upon
21
H
:
7.
35.
and
the
case
of
39
H
:
6.
3
,
&
4.
and
the
case
of
ancient
Demesne
,
7
H
:
9.
18.
37
H
:
6.
16.
Dyer
369.
And
upon
this
Case
the
Iudges
consulted
and
agreed
,
that
the
Writ
was
insufficient
:
And
so
Iudgment
was
given
against
the
Plaintiff
.
But
it
was
said
,
that
upon
this
Iudgment
so
sent
to
this
Court
,
the
Plaintiff
might
bring
an
action
of
Debt
,
and
so
have
execution
:
But
to
make
this
Court
an
Instrument
to
serve
an
inferiour
Court
,
and
to
extend
their
Iurisdiction
by
this
way
,
as
it
were
by
a
Windlace
,
it
is
not
lawfull
.
Hil.
7
Car.
Napper
versus
Sanders
.
Pasch.
6
Car.
Rot.
1148.
IN
an
Ejectione
firmae
brought
by
Robert
Napper
against
Henry
Sanders
,
upon
a
Lease
by
Deed
indented
,
made
by
John
Napper
and
Elizabeth
his
Wife
,
and
Francis
Sanders
,
upon
Not
guilty
pleaged
,
Margaret
Sanders
seised
in
Fee
,
makes
a
Feoffment
to
the
use
of
her self
for
life
,
without
impeachment
of
Wast
,
and
after
to
the
use
of
the
Feeoffees
for
eighty
years
,
if
one
Nicholas
Sanders
and
Elizabeth
his
Wife
should
live
so
long
,
and
if
the
said
Elizabeth
survive
Nicholas
her
Husband
,
then
to
the
use
of
the
said
Elizabeth
for
life
,
without
impeachment
of
Wast
,
and
after
the
decease
of
the
said
Elizabeth
,
to
the
use
of
Postumus
Sanders
,
Son
of
the
said
Nicholas
and
Elizabeth
in
tail
:
And
for
default
of
such
Issue
,
to
the
use
of
Elizabeth
,
Wife
of
the
said
Iohn
Napper
and
Dorothy
Sanders
,
and
the
said
Francis
Sanders
one
of
the
Lessors
,
and
to
the
Heirs
of
their
bodies
,
remainder
to
the
right
Heirs
of
Margaret
the
Feoffor
:
And
there
was
a
clause
in
the
said
Indenture
,
that
the
intent
of
the
Estate
for
years
to
the
Feoffees
was
,
that
the
said
Elizabeth
Sanders
might
have
the
profits
,
and
not
Nicholas
her
Husband
,
who
was
a
Prodigall
.
Margaret
Sanders
dies
,
and
Dorothy
dies
without
Issue
,
the
Feoffee
enter
,
Elizabeth
Sanders
dies
,
Nicholas
is
yet
alive
,
and
Posthumus
dies
without
Issue
,
Iohn
Napper
and
his
Wife
,
and
the
said
Francis
entred
and
were
possessed
,
untill
the
Defendant
as
Son
and
Heir
of
the
said
Margaret
,
entred
and
ousted
them
.
Et
si
super
totam
Materiam
,
&c.
And
the
sole
question
was
,
whether
the
remainder
in
tail
to
Posthumus
,
and
the
remainder
in
tail
to
Elizabeth
,
and
Francis
were
contingent
or
executed
:
And
it
was
resolved
by
all
the
Court
,
that
the
remainders
were
not
contingent
in
the
Estate
for
life
which
was
to
come
to
Elizabeth
Sanders
,
the
Wife
of
the
said
Nicholas
,
but
were
vested
presently
.
And
it
was
agreed
,
that
the
Estate
for
life
,
if
she
survive
her
Husband
,
was
contingent
;
and
when
that
had
hapned
,
being
by
way
of
Limitation
of
an
use
,
it
shall
be
interposed
when
the
Contingent
happen
,
as
in
Chudleys
case
,
Coke
lib:
1.
fol
:
133.
a
Feoffment
to
the
use
of
the
Feoffor
for
life
,
and
after
his
death
to
his
first
Son
which
shall
be
afterwards
born
,
for
his
life
,
and
so
to
divers
:
And
afterwards
to
the
use
of
I.
D.
in
tail
:
It
is
resolved
that
all
the
uses
limited
to-persons
not
in
Esse
are
contingent
,
but
the
uses
to
persons
in
Esse
vest
presently
,
and
yet
these
contingent
uses
when
they
happen
vest
by
interposition
,
if
the
first
Estate
for
life
which
ought
to
support
them
be
not
disturbed
.
And
in
this
case
it
was
a
good
Estate
for
life
in
Margaret
:
And
then
gives
the
remane
in
the
Feoffees
for
eighty
years
,
,
if
Nicholas
and
Elizabeth
Sanders
so
long
should
live
,
and
if
Elizabeth
survive
Nicholas
,
then
to
Elizabeth
for
her
life
,
and
after
her
decease
to
Posthumus
in
tail
,
and
after
his
decease
to
the
said
three
Daughters
in
tail
,
so
that
there
the
Estate
for
years
determines
upon
the
death
of
Elizabeth
,
and
so
also
the
Estate
for
life
to
Elizabeth
which
was
contingent
,
determines
by
his
death
.
And
the
Lord
Darbies
case
,
a
Feoffment
to
the
use
of
Edward
,
Serjeants
Inn
,
it
was
afterwards
adjudged
a
good
remainder
and
not
contingent
;
And
the
same
case
in
this
Court
upon
a
Scire
facias
for
two
have
executor
of
certain
Land
,
for
debt
recovered
against
the
Earl
of
Derby
,
which
Land
was
intailed
by
the
same
Conveyance
,
&c.
brought
against
the
Earl
of
Bridgwater
and
his
Wife
,
one
of
the
Co-heirs
of
Ferdinand
,
Earl
of
Derby
,
was
adjudged
in
this
Court
,
vide
Borastons
case
,
Coke
lib
:
3.
fol:
20.
14
Eliz:
Dyer
314.
Lovies
case
,
Coke
lib
:
10.
27
H
:
8.
24.
38
E
:
3.
26.
5
E
:
3.
27.
30.
E
:
3.
Collthurst
and
Bemchins
case
was
urged
,
that
the
remainder
limited
to
B.
for
life
,
and
after
that
C.
hath
married
Ja.
S.
then
to
the
use
of
C.
in
Fee
,
this
is
contingent
,
and
is
collaterall
;
And
this
case
is
not
like
to
that
.
And
after
Argument
at
Bar
,
this
Term
(
it
being
argued
before
that
the
Lord
Richardson
was
there
,
who
was
of
the
same
opinion
)
we
all
concurred
,
and
Iudgment
was
entred
for
the
Plaintiff
.
Pasch.
8
Car.
Metcalfe
versus
Hodgson
.
And
after
many
motions
in
Arrest
and
praying
of
Iudgment
,
it
was
resolved
,
that
this
act
was
done
by
them
as
Iudges
,
and
for
this
Iudiciall
Act
no
action
lay
:
And
though
that
the
Bail
by
the
event
appear
to
be
insufficient
,
yet
there
is
no
remedy
by
action
upon
the
case
,
it
being
without
fraud
or
corruption
,
and
not
for
reward
.
And
this
Case
differs
nothing
from
the
ordinary
cases
of
all
insufficient
Bailes
,
taken
by
any
of
the
Kings-Bench
,
Common
Bench
,
or
Exchequer
:
And
that
they
having
two
Authorities
in
una
persona
,
it
shall
be
taken
to
be
done
by
that
Authority
by
which
they
have
power
to
vail
,
and
that
is
as
Iudges
of
the
Court
,
and
not
as
Gaolers
,
for
by
this
they
have
no
power
to
Bail
any
,
and
in
this
capacity
they
are
only
subject
to
an
escape
,
vide
Dyer
163.
Error
cannot
be
assigned
in
that
which
the
Court
of
Common
Bench
do
as
Iudges
,
vide
12
E
:
4.
19.
Conspiracy
lies
not
for
that
which
a
Iustice
doth
as
Iudge
of
Record
.
Quaerens
nil
capiat
per
breve
.
Mich.
8
Car.
Hickes
versus
Mounford
.
Trin.
7
Car.
Rot.
514.
Walter
Hickes
against
Simon
Mounford
,
and
others
,
the
Defendants
make
Conusance
as
Bayliffs
to
Sir
John
Elliot
,
Executor
of
Richard
Giddy
:
And
that
the
place
contain
twenty
acres
,
and
was
parcell
of
the
Mannor
of
Trevelun
:
And
that
Thomas
Archbishop
of
York
,
and
Cardinall
,
and
three
others
were
seised
of
the
Mannor
wherof
,
&c.
in
Fee
,
Richard
Giddy
for
life
,
who
made
the
said
Sir
John
Elliot
his
Executor
,
and
died
,
and
for
such
a
summ
arrear
they
Avow
,
&c.
The
Plaintiff
pleaded
in
Bar
to
this
Avowry
,
and
confessed
the
Seisin
of
the
said
Arch-bishop
,
and
the
others
,
and
said
,
that
the
said
Arch-bishop
and
the
others
,
the
fourth
of
June
,
11
H
:
8.
enfeoffed
Peter
Edgecombe
in
Fee
of
the
said
Mannor
,
who
conveyed
it
to
Richard
Edgecombe
Knight
,
who
entred
,
and
licensed
the
Plaintiff
to
put
in
his
Beasts
,
which
he
did
,
and
that
they
were
there
,
untill
by
the
Defendants
distrained
,
absque
hoc
,
that
the
said
Arch-bishop
and
the
others
,
the
aforesaid
3.
June
,
11
H
:
8.
granted
the
said
Rent
to
the
said
King
and
his
Heirs
,
Modo
&
forma
prout
the
Defendants
alledged
,
Et
hoc
paratus
est
verificare
.
The
Defendants
say
,
that
the
Arch-bishop
and
the
others
granted
the
Rent
to
the
King
modo
&
forma
as
they
had
alledged
,
and
Issue
therupon
,
and
the
Iury
found
.
That
the
said
Arch-bishop
and
the
others
11
H
:
8.
recovered
this
Land
against
Sir
Peter
Edgecombe
,
and
it
was
to
the
intent
of
granting
the
Rent
to
the
King
and
his
Heirs
,
and
then
of
the
recovery
of
the
Mannor
,
out
of
which
,
&c.
to
the
said
Sir
Peter
Edgecombe
in
tail
,
the
remainder
to
the
King
,
and
they
being
seised
by
their
Deed
,
dated
the
third
of
June
,
11
H
:
8.
sealed
and
delivered
,
which
is
found
in
haec
verba
,
and
that
it
was
inrolled
afterwards
,
viz.
7.
June
,
granted
the
said
Rent
to
H
:
8.
Et
si
super
totam
materiam
,
the
Court
adjudged
it
a
Grant
by
Deed
the
third
of
June
,
11
H
:
8.
then
for
the
Defendant
,
&c.
And
upon
Argument
at
Bar
,
and
conference
had
,
we
all
declared
our
opinion
,
and
agreed
that
Iudgment
should
be
given
for
the
Defendants
.
The
first
reason
was
,
that
the
Issue
is
joyned
upon
the
Grant
modo
&
forma
,
and
not
upon
the
day
,
as
is
offered
by
the
Traverse
,
but
upon
the
Grant
modo
&
forma
:
And
the
matter
found
is
generally
as
is
alledged
,
vide
Littleton
,
Title
Release
,
that
modo
&
forma
avoid
and
prevent
the
matter
of
day
,
and
goes
solely
to
that
which
is
materiall
:
And
by
any
thing
which
appears
by
the
Verdict
,
there
is
no
intervening
matter
after
the
third
day
,
and
before
the
seventh
when
the
Deed
was
enrolled
,
and
then
it
is
a
good
Grant
of
the
third
of
June
,
vide
H
:
7
:
31.
Then
the
speciall
Conclusion
found
,
which
is
contrary
to
Law
,
shall
not
conclude
the
Iudges
to
give
Iudgment
according
to
Law
.
And
so
Iudgment
was
given
for
the
Defendants
.
Mich.
8
Car.
Col.
versus
Wilkes
.
SAmpson
Cole
brought
an
action
of
Debt
upon
the
Statute
of
2
H.
6.
against
Leonard
Wilkes
,
Tryall
at
the
Bar
:
But
here
it
was
found
,
that
one
only
occupyed
the
Land
,
and
therfore
the
action
well
lies
.
John
Gerards
case
.
And
a
Case
was
shewn
,
Mich:
8
Jac.
An
action
of
Debt
was
brought
upon
this
Statute
,
by
Sir
John
Gerard
against
two
Tenants
in
Common
,
and
it
appeared
that
one
of
them
set
out
his
Tithe
,
and
that
the
other
afterwards
took
it
and
carried
it
away
,
and
adjudged
that
the
action
lies
only
against
him
which
carried
it
away
.
Pasch.
9
Car.
Strilley's
Case
.
Nottinghamshire
,
Mich
:
11
Eliz.
The
Proclamations
endorsed
by
the
Chirographer
upon
the
Fine
were
well
,
but
in
the
Transcript
and
Note
of
the
Fine
which
is
delivered
to
the
Custos
brevium
by
the
Chirographer
according
to
the
Statute
,
the
second
Proclamation
was
entred
to
be
made
the
twentieth
of
May
,
where
it
should
have
been
the
twenty
third
day
of
May
,
and
that
by
the
misprision
of
the
Clerk
:
And
it
was
moved
that
that
might
be
amended
.
And
the
Court
was
of
opinion
that
it
should
be
amended
,
for
the
Ingrossement
upon
the
Fine
by
the
Chirographer
is
the
foundation
,
and
that
being
well
it
is
sufficient
Warrant
to
amend
the
other
.
And
the
Court
was
of
opinion
,
that
it
was
a
good
Fine
without
any
amendment
:
But
it
being
the
misprision
of
the
Clerk
,
it
shall
be
amended
,
as
in
the
case
Coke
lib
:
8.
Blackamores
case
.
The
Proclamation
made
and
entred
before
the
Originall
shall
be
amended
.
And
it
was
objected
,
that
this
Fine
and
Proclamations
as
they
found
in
the
Office
of
the
Custos
brevium
,
are
exemplified
under
the
Great
Seal
,
and
therfore
by
a
Clause
in
the
Statute
of
23
Eliz:
cap.
3.
could
not
be
amended
after
such
exemplification
.
To
that
it
was
answered
,
that
that
Statute
extends
only
to
Fines
before
levied
,
which
should
be
exemplified
before
the
first
day
of
June
,
An
:
1582.
And
the
latter
clause
in
the
said
Statute
doth
not
extend
but
to
Fines
exemplified
according
to
the
said
Statute
.
And
therfore
it
was
awarded
to
be
amended
.
Pasch.
9
Car.
Glasier
versus
Heliar
.
Sussex
Thou
didst
bring
Faggots
a
mile
and
a
half
to
the
burning
of
the
Colliers
:
And
after
Verdict
for
the
Plaintiff
,
and
motion
in
Arrest
of
Iudgment
,
it
was
adjudged
that
the
words
were
actionable
:
For
if
a
Mansion-house
be
burnt
feloniously
,
to
say
,
You
brought
fire
to
set
in
the
Thatch
of
the
house
which
is
burnt
,
it
is
actionable
.
Iudgment
pro
quaerente
.
Smith
versus
Cornelius
.
Southamp
.
JOhn
Smith
Town-Clark
of
Southampton
,
Thou
hast
made
many
false
Certificate
to
the
Major
and
Burgesses
in
that
Court
,
and
the
more
thou
stirrest
in
it
,
the
more
it
will
stink
.
And
it
was
adjudged
that
these
words
are
not
actionable
.
1.
Because
that
it
is
not
alledged
that
there
was
any
Colloquium
concerning
his
Office
of
Town-Clark
.
2.
Because
that
it
appears
not
in
the
Count
that
the
making
of
Certificates
belong
to
his
Office
,
but
only
that
he
had
the
custody
of
them
.
3.
It
might
be
false
,
and
yet
no
blame
to
him
,
if
he
did
know
them
to
be
false
,
or
that
he
had
made
them
false
maliciously
:
And
therfore
Iudgment
was
given
for
the
Defendant
.
And
this
Case
was
moved
again
by
Hitcham
,
the
first
day
of
Trinity
Term
next
,
And
then
Iudgment
was
affrmed
.
Hil.
9
Jac.
Edwards
versus
Laurence
.
Trin.
9
Car.
Rot.
2488.
Suff.
RAchel
Edwards
brought
an
action
of
Trespasse
against
Richard
Laurence
for
breaking
of
her
Close
.
The
Defendant
in
Bar
to
the
new
Assignment
,
plead
,
Francis
Tayler
was
seised
in
Fee
of
the
Tenements
wherof
,
&c.
and
so
being
seised
died
,
wherby
it
descended
to
Francis
his
Son
and
Heir
,
who
being
seised
therof
8
Car.
demised
it
to
the
Defendant
for
two
years
,
by
vertue
wherof
he
entred
,
and
gives
colour
to
the
Plaintiff
by
a
Grant
made
to
him
by
Francis
the
Father
,
where
nothing
passed
therby
,
and
so
iustifie
.
The
Plaintiff
replyed
,
that
long
before
Francis
Tayler
the
Son
had
any
thing
,
one
Francis
Tayler
Grand-father
of
the
said
Francis
was
seised
in
Fee
,
and
before
the
time
of
the
Trespasse
supposed
,
viz.
8
Jac:
in
consideration
of
a
Marriage
to
be
between
the
said
Francis
his
Son
,
and
the
Plaintiff
,
for
her
Ioynture
made
a
Feoffment
therof
to
the
use
of
the
said
Francis
,
and
Rachel
the
Plaintiff
,
and
to
the
Heirs
of
the
said
Francis
,
upon
the
body
of
the
Plaintiff
begotten
,
the
remainder
to
the
Heirs
of
Francis
in
Fee
,
and
shewed
the
marriage
,
and
that
by
force
of
the
Statute
of
27
H
:
8.
they
were
seised
ut
supra
is
limited
,
Absque
hoc
,
that
the
aforesaid
Francis
Tayler
the
Father
of
the
aforesaid
Francis
the
Son
,
died
seised
of
the
Tenements
aforesaid
with
the
Appurtenances
,
de
nova
assignat
.
in
his
Demesn
as
of
Fee
,
Modo
&
forma
prout
praedictus
defendens
superius
allegavit
,
&
hoc
paratus
est
verificare
,
&c.
unde
,
&c.
wherupon
the
Defendant
demurred
.
Vide
3
H
:
6
,
Brook
Traverse
,
30
H
:
6
,
7.
Brook
Traverse
359.
In
Trespasse
the
Defendant
plead
his
Freehold
,
the
Plaintiff
plead
the
dying
seised
of
his
Father
,
and
that
he
is
Heir
and
entred
,
and
that
the
Defendant
disseised
him
,
the
Defendant
traversed
the
Disseisin
,
and
not
the
dying
seised
of
his
Father
,
and
good
,
vide
the
said
Book
of
30
H
:
6.
7.
by
Prisot
,
if
I
in
Assise
plead
that
my
Father
died
seised
in
Fee
,
&
that
I
entred
as
Son
and
Heir
to
him
,
and
was
seised
untill
by
R.
disseised
,
who
enfeoffed
the
Plaintiff
,
upon
whom
I
entred
,
here
the
Disseisin
is
not
traversable
,
but
the
dying
seised
,
vide
33
H
:
6.
59.
Wangford
put
this
case
,
In
Assise
if
the
Defendant
plead
that
his
Father
was
seised
and
died
seised
,
and
give
colour
to
the
Plaintiff
,
the
Plaintiff
ought
to
traverse
the
dying
seised
,
and
not
the
possession
of
the
Father
,
which
is
the
cause
of
the
dying
seised
.
Vide
30
H.
6.
fol:
4.
Entry
in
nature
of
an
Assise
,
the
Defendant
plead
that
W.
was
seised
in
Fee
,
and
enfeoffed
him
,
and
give
colour
,
the
Plaintiff
replies
that
W.
was
seised
in
jure
Uxoris
,
and
that
he
had
Issue
,
and
his
Wife
died
,
and
he
was
Tenant
by
the
Curtesie
,
and
made
a
Feoffment
,
sans
ceo
,
that
W.
was
seised
modo
&
forma
,
and
Issue
taken
,
and
there
it
is
said
,
that
the
Issue
is
well
taken
.
This
case
was
adjudged
for
the
Plaintiff
,
because
that
no
dying
seised
is
pleaded
,
so
that
it
might
be
traversed
,
but
with
a
Sic
scisitus
obijt
.
Also
the
matter
only
traversable
here
,
is
the
seisin
in
Fee
modo
&
forma
,
for
by
the
Replication
Seisin
joyntly
with
the
Plaintiff
,
and
to
the
Heirs
of
the
body
of
the
said
Francis
,
with
a
Fee-simple
in
him
,
is
confessed
,
and
that
is
good
with
the
Traverse
.
Memorand.
That
this
Case
was
moved
by
Serjeant
Hitcham
,
Trin.
10
Car.
And
Serjeant
Hedley
moved
for
the
Defendant
,
and
vouched
5
H
:
7.
7.
and
the
Record
was
read
,
and
all
the
Court
agreed
that
it
was
a
good
Traverse
,
And
that
Iudgment
should
be
given
for
the
Plaintiff
.
Pasch.
10
Car.
Dawe
versus
Palmer
.
JOhn
Dawe
Plaintiff
against
William
Palmer
,
in
an
action
upon
the
Case
,
and
count
,
that
wheras
he
was
a
Fuller
,
and
had
used
the
Trade
of
Falling
,
and
therby
acquired
his
livelyhood
,
and
was
of
good
Credit
,
Trust
him
not
,
for
he
owes
me
a
hundred
pound
,
and
is
not
worth
one
Groat
:
And
at
another
day
he
said
,
He
is
a
Bankrupt
Rogue
;
And
upon
Not
guilty
pleaded
,
the
Iurors
found
for
the
Plaintiff
,
and
gave
entire
Damages
.
And
it
was
moved
in
Arrest
of
Iudgment
,
that
the
first
words
were
not
actionable
,
and
then
the
Iury
having
given
entire
Damages
,
the
Plaintiff
should
not
have
Iudgment
for
any
part
,
vide
Osbornes
case
,
Coke
lib
:
10.
But
in
this
case
after
many
debates
,
it
was
resolved
by
the
Court
,
that
the
Plaintiff
should
have
Iudgment
.
For
the
first
words
are
actionable
at
Common
Law
before
the
Statute
,
Trust
him
not
,
he
is
not
worth
one
Groat
.
Go
not
to
buy
of
I.S.
(
a
Merchant
)
for
he
will
deceive
you
.
Of
an
Inne-keeper
,
Go
not
to
such
an
Inne
,
for
he
is
so
poor
that
you
can
have
no
good
entertainment
.
Of
an
Atturney
,
Use
him
not
for
●e
will
cousen
you
All
these
words
are
actionable
.
He
will
be
a
Bankrupt
within
seven
daies
.
And
for
the
other
words
,
That
he
is
a
Bankrupt
Rogue
,
that
is
resolved
Coke
lib.
4.
to
be
actionable
:
And
it
was
a
Case
Pasch:
10
Car.
in
a
Writ
of
Error
brought
in
the
Exchequer
Chamber
,
upon
Iudgment
given
in
the
Kings
Bench
,
between
Dunkin
and
Laycroft
,
Hamborow
in
partibus
transmarinis
,
and
there
h●d
used
the
Trade
of
a
Merchant
and
Factor
.
Thou
(
innuendo
the
Plaintiff
)
camest
over
from
Hamborow
a
broken
Merchant
;
And
adjudged
actionable
,
and
so
affirmed
in
the
Exchequer
Chamber
.
And
upon
all
these
Authorities
the
Court
gave
Iudgment
for
the
Plaintiff
.
Mich.
10
Car.
Deanes
Case
.
DEane
being
robbed
in
an
Hundred
in
Kent
,
brought
an
action
upon
the
Statute
of
Hue
and
Cry
,
and
a
speciall
Verdict
being
found
,
t●●
Dourt
intended
was
,
If
one
be
assaulted
to
be
robbed
in
one
Hundred
,
and
he
escape
and
flye
into
another
Hundred
,
and
the
Theeves
instantly
pursue
him
,
&
rob
him
there
,
if
the
Hund.
in
which
he
was
robbed
should
be
solely
charged
.
And
the
opinion
of
the
Court
was
,
that
it
should
;
but
upon
reading
the
Record
,
this
appeared
not
to
be
the
Case
.
And
the
Court
was
informed
,
that
the
Sheriffs
had
taken
the
Goods
of
one
in
execution
,
who
was
not
inhabiting
within
the
Hundred
at
the
time
of
the
Robbery
committed
,
but
came
afterwards
:
And
the
Court
was
of
opinion
that
he
was
not
chargable
.
Mich.
10
Car.
Knight
versus
Copping
.
RObert
Knight
brought
an
action
upon
the
case
against
Valentine
Copping
one
of
the
Attorneys
of
this
Court
,
&
count
,
Edw.
Loft
had
brought
an
action
of
debt
for
30
l.
against
him
:
And
therupon
such
processe
was
,
that
a
non
pros
.
was
entred
,
&
costs
of
30
s.
assessed
for
the
now
Plaintiff
,
Ed.
Loft
having
notice
therof
,
unduly
and
maliciously
procured
a
judgment
to
be
entred
for
the
said
Ed.
Loft
,
against
the
now
Plaintiff
,
&
sued
execution
against
him
,
wherby
he
was
taken
and
imprisoned
,
untill
he
was
delivered
by
a
writ
of
Supersedeas
.
The
Defendant
Protestando
,
that
there
was
no
such
Iudgment
for
the
said
Edward
Loft
,
against
the
said
now
Plaintiff
,
nor
that
he
was
taken
in
Execution
therupon
,
for
plea
saith
,
that
there
is
not
any
Record
of
the
said
Non
pros
.
The
Plaintiff
replies
,
that
at
the
time
of
the
said
Iudgment
entred
for
the
said
Edward
Loft
;
And
when
the
now
Plaintiff
was
taken
in
Execution
and
imprisoned
therupon
,
the
said
Iudgment
of
Non
pros
.
against
the
said
Edw.
L.
and
the
Award
of
Costs
were
in
full
force
and
effect
:
But
that
afterwards
,
viz.
such
a
time
,
as
well
the
said
Iudgment
de
non
pros
.
as
the
said
Iudgment
of
thirty
pounds
Debt
against
the
now
Plaintiff
were
evacuated
,
wherupon
the
Defendant
demurred
.
And
it
having
been
often
debated
by
Hitcham
for
the
Defendant
,
and
Henden
for
the
Plaintiff
:
And
now
upon
Oyer
of
the
Record
and
of
the
Iudgment
,
the
Court
gave
Iudgment
for
the
Plaintiff
.
And
the
Lord
Finch
said
,
that
this
action
upon
the
case
is
grounded
upon
two
misdemeanours
:
1.
The
procurement
of
the
said
Iudgment
for
Edw.
L.
after
a
Non
pros
.
entred
for
the
Defendant
:
And
though
the
Iudgment
was
erroneous
,
yet
the
now
Plaintiff
was
vexed
and
imprisoned
therby
,
which
indeed
is
the
cause
of
this
action
.
2.
The
taking
therof
unlawfully
,
when
the
first
Iudgment
de
non
pros
.
was
in
force
,
and
the
Plea
of
Nil
tiel
Record
go
only
to
one
of
the
Causes
:
And
admitting
that
there
was
never
a
Iudgment
de
non
pros
.
but
that
the
Defendant
had
unlawfully
procured
a
Iudgment
,
and
taken
Execution
therupon
,
and
procured
the
Plaintiff
to
be
taken
in
Execution
and
Imprisoned
,
this
is
cause
of
action
:
And
to
that
he
hath
not
answered
,
and
therfore
he
ought
to
have
pleaded
Not
guilty
to
that
which
he
takes
by
protestation
.
Iudgment
pro
quaerente
.
Pasch.
11
Car.
Baker
versus
Hucking
.
Adjudged
B.
Rs.
And
the
sole
question
is
,
if
this
Lease
be
a
Discontinuance
,
and
it
was
adjudged
a
Discontinuance
,
and
then
the
Devise
void
,
for
he
had
not
a
Reversion
.
And
the
difference
was
taken
,
when
Tenant
for
life
,
and
he
in
Reversion
joyn
in
a
Lease
by
Deed
(
for
without
Deed
it
is
first
a
Surrender
,
And
in
this
case
there
is
no
question
but
if
the
Lease
had
been
made
solely
by
Tenant
in
tail
,
that
then
it
were
a
Discontinuance
,
and
the
joyning
of
him
in
Reversion
alters
it
not
,
for
that
amounts
to
nothing
but
as
a
Confirmation
,
and
is
not
like
to
Bredons
case
,
Coke
lib
:
1.
fol:
76.
Where
Tenant
for
life
,
and
he
in
remainder
in
tail
levy
a
Fine
,
for
every
one
there
passeth
that
which
lawfully
he
may
.
And
upon
Argument
it
was
adjudged
,
that
it
was
a
Discontinuance
and
not
the
Lease
of
him
in
Reversion
,
but
his
Confirmation
.
Iustice
Crooke
differed
in
opinion
.
Mich.
11
Car.
Lashbrookes
Case
.
Somerset
.
LEwes
Lashbrook
an
Attorney
of
this
Court
,
brought
an
action
of
Trespasse
against
I.
S.
for
entring
into
his
house
and
breaking
his
Close
:
And
in
the
new
Assignment
he
alledged
the
Trespasse
to
be
in
a
house
called
the
Entry
,
and
in
a
house
called
the
Kitchin
,
and
in
his
Garden
,
and
in
one
Close
called
the
Court.
The
Defendant
as
to
the
force
,
&c.
and
to
all
besides
the
Entry
plead
Not
guilty
;
And
as
to
his
entry
into
the
Court
and
Kitchin
,
And
now
Henden
took
two
Exceptions
,
the
first
was
,
1.
That
the
Defendant
had
not
pleaded
to
all
the
Closes
,
but
that
was
over-ruled
,
for
he
justified
in
the
tenements
aforesaid
of
the
new
Assignment
.
2.
The
second
was
,
that
the
Warrant
to
the
Bayliffs
was
to
all
,
and
not
Conjunctim
and
Divisim
,
and
therfore
it
should
be
by
all
,
and
not
by
two
only
.
To
that
it
was
answered
and
resolved
,
that
when
a
Sheriff
makes
such
a
Warrant
,
which
is
for
the
Execution
of
Iustice
,
that
may
be
by
any
of
them
,
for
it
is
Pro
bono
publico
:
And
the
very
Case
was
adjudged
45
Eliz
:
between
King
&
Hebbs
,
Coke
Littleton
181.
b.
And
Iudgment
was
given
for
the
Defendant
.
Hil.
11
Car.
Davies
Case
.
Hereford
.
DAvies
an
Attorney
of
this
Court
,
brought
an
action
upon
the
case
for
these
words
,
If
I
list
I
can
prove
him
Perjured
:
pro
Defend
.
Mich.
7
Car.
Rot.
1097.
Alston
versus
Andrew
.
Suff.
P●ter
Alston
Executor
of
Peter
Alston
,
brought
an
action
of
Debt
upon
an
Obligation
of
a
hundred
and
twenty
pounds
against
William
Andrew
,
Edward
Andrew
,
and
count
,
That
the
Defendants
and
one
Francis
A.
became
obliged
to
the
Testator
,
&c.
and
that
they
did
not
pay
it
is
the
said
Testator
in
his
life
,
nor
to
the
now
Plaintiff
,
and
one
Francis
Andrew
Co-executor
with
the
Plaintiff
,
who
is
summoned
,
and
the
Plaintiff
admits
to
prosecute
alone
without
the
same
Francis
,
&c.
The
Defendants
demand
Oyer
of
the
Obligation
,
which
is
entred
in
haec
verba
,
and
plead
that
Francis
A.
in
the
said
Writing
named
,
after
the
making
therof
,
made
the
said
Francis
Andrew
and
Barb.
A.
his
Executors
and
died
:
And
that
the
said
Francis
A.
accepted
the
Burthen
of
the
Testament
:
And
after
the
said
Peter
Alston
the
Testator
made
his
will
,
and
Constituted
the
Plaintiff
and
the
said
Francis
his
Executors
,
and
died
,
Et
hoc
paratus
est
verificare
,
unde
,
&c.
wherupon
the
Plaintiff
demur
.
Mich
2
Jac.
Rot.
2663.
Garret
Trugeon
Plaintiff
against
one
Anthony
Meron
and
others
the
Administrators
of
Benjamin
Scrivin
upon
a
single
Bill
:
The
Defendants
demand
Oyer
of
the
Bill
,
wherby
it
appears
,
that
one
John
Simcocks
was
obliged
to
the
said
Trugeon
joyntly
and
severally
with
the
said
Scrivin
,
Quibus
lectis
&
auditis
,
the
Defendants
sayd
,
that
the
said
Simcocks
died
intestate
,
and
that
the
Administration
of
his
Goods
was
granted
to
the
now
Plaintiff
,
who
accepted
the
Burthen
of
the
Administration
,
and
Administred
,
the
Plaintiff
demurred
,
and
Iudgment
against
the
Plaintiff
.
8
E
:
4.
3.
21
E
:
4
2.
Lit.
264.
b.
20
E
:
4.
17.
If
the
Debtee
makes
the
Debtor
and
others
his
Executors
,
the
Debt
is
discharged
.
Mich:
9
Car.
Banco
Regis
,
Rot:
373.
Anne
Dorchester
Executrix
of
Anne
Row
,
William
Webb
,
in
Debt
upon
an
Obligation
of
five
hundred
pounds
,
the
Defendant
demanded
Oyer
,
wherby
it
appears
,
that
the
Defendant
and
one
John
Dorchester
were
obliged
joyntly
and
severally
in
the
said
Obligation
.
The
Defendant
plead
in
Bar
,
that
the
said
John
Dorchester
made
the
Plaintiff
his
Executrix
,
who
proved
the
Will
,
and
had
Goods
sufficient
in
her
hands
to
pay
the
said
Debt
.
The
Plaintiff
reply
,
that
before
the
death
of
the
said
Anne
Row
the
Obligee
,
she
had
fully
Administred
all
the
Goods
of
the
said
John
Dorchester
.
Demurrer
and
Iudgment
for
the
Plaintiff
.
And
in
this
case
it
is
not
shewn
,
that
the
said
Francis
and
Peter
,
or
any
of
them
proved
the
Will
of
the
said
Obligee
,
or
that
they
administred
his
goods
,
or
that
they
had
any
goods
of
the
Obligor
to
administer
,
at
the
time
of
the
death
of
the
Obligee
,
as
it
ought
to
have
been
shewn
:
And
the
said
Francis
Executor
of
the
Obligee
,
and
also
of
the
Obligor
,
refused
to
be
Executor
to
the
Obligee
,
and
never
Administred
,
and
never
meddled
with
the
Goods
of
the
Obligee
,
and
so
the
Debt
is
not
released
in
Law
,
as
by
the
said
Case
and
former
Iudgment
appears
.
This
case
had
been
often
argued
by
Serjeant
Hedley
,
and
of
the
other
part
by
Serjeant
Hitcham
,
and
affirmed
,
that
once
Iudgment
was
given
for
the
Defendant
,
but
it
yet
depends
.
Trin.
12
Car.
MEmorand.
Vpon
Petition
exhibited
to
the
King
by
the
Prisoners
of
quality
,
which
were
in
execution
in
the
Fleet
,
Kings
Bench
,
and
Marshalsey
,
to
have
liberty
in
the
time
of
Infection
,
and
for
preservation
of
their
lives
,
to
have
liberty
by
Writs
of
Habeas
Corpus
to
go
into
the
Country
,
upon
security
to
be
given
to
the
Warden
and
Marshall
for
their
return
.
The
King
(
out
of
his
great
care
of
their
safety
)
referred
their
Petition
to
the
Lord
Keeper
Coventry
,
and
that
he
,
with
the
advice
of
the
Iudges
,
should
consider
by
what
way
it
might
be
done
:
And
the
eighteenth
day
of
June
we
attended
the
Lord
Keeper
at
Durham-house
:
And
therupon
conference
and
consideration
of
a
former
Resolution
which
was
at
Reading
in
Mich.
Term
last
,
before
the
said
Lord
Keeper
(
where
were
present
all
the
Iudges
,
besides
my self
.
)
That
these
abusive
Habeas
Corpus
were
not
lawfull
,
and
that
the
Warden
and
Marshall
were
then
called
and
warned
,
that
they
should
not
suffer
their
Prisoners
to
go
into
the
Country
,
as
they
had
used
to
do
,
by
colour
of
such
Writs
:
This
which
followes
was
subscribed
.
WEE
are
of
Opinion
,
that
the
Writ
of
Habeas
Corpus
is
both
Ancient
and
Legall
;
But
as
the
Writ
doth
not
,
so
no
Rule
can
Authorize
the
Keeper
of
the
Prison
to
give
liberty
to
his
Prisoner
,
by
colour
of
such
Writ
,
but
the
same
is
an
abuse
against
Law
,
and
an
Escape
in
the
Keeper
,
if
he
let
the
Prisoner
go
by
such
Writ
.
We
find
,
that
neither
in
the
twenty
fourth
year
of
Eliz.
when
the
Term
was
Adjourned
to
Hertford
.
Nor
in
the
34.
of
Eliz.
in
which
year
it
was
Adjourned
to
Hertford
.
Nor
in
the
35.
of
Eliz.
in
which
year
it
was
Adjourned
to
St.
Albans
.
Nor
in
1
Jac.
in
which
year
the
Term
was
Adjourned
to
Winchester
.
Nor
in
the
first
of
King
Charles
,
in
which
year
it
was
Adjourned
to
Reading
.
(
In
all
which
years
there
were
great
and
dangerous
Infections
of
the
Plague
)
there
was
no
such
course
to
set
Prisoners
out
of
Prison
by
Habeas
Corpus
;
but
we
find
it
a
Novelty
begun
of
late
years
.
But
We
think
,
that
if
the
danger
of
Infection
shall
grow
so
great
,
as
it
shall
be
found
necessary
to
provide
for
the
safety
of
the
Prisoners
(
who
may
at
all
times
provide
for
themselves
by
paying
their
Debts
,
and
yeilding
obedience
to
Justice
)
then
a
course
may
be
taken
that
some
certaine
house
may
be
assigned
for
the
Warden
of
the
Fleet
,
in
some
good
Town
,
remote
from
the
Infection
,
and
the
like
for
the
Marshall
of
the
Kings
Bench
,
in
some
other
Town
,
where
they
may
remove
such
Prisoners
as
have
been
Petitioners
to
his
Majesty
,
and
there
keep
them
as
Prisoners
,
Sub
arcta
&
salva
Custodia
,
as
they
should
be
kept
in
their
proper
Prisons
,
and
not
to
be
as
House-keepers
in
their
own
houses
;
and
by
this
means
they
will
have
the
like
to
avoid
the
Infection
,
as
other
Subjects
have
,
and
not
make
the
Infection
a
cause
to
abuse
their
Creditors
,
or
delude
the
course
of
Justice
.
-
John
Bramsion
1.
-
Richard
Hutton
2.
-
George
Crooke
3.
-
George
Vernon
4.
-
Francis
Crawley
5.
-
Humph.
Davenport
6.
-
William
Jones
7.
-
Thomas
Trevor
8.
-
Robert
Barkley
9.
-
Richard
Weston
10.
To
Sir
John
Bramston
Knight
,
Lord
chief
Justice
of
England
.
My
very
good
Lord
,
I
Have
acquainted
his
Majesty
with
your
resolution
,
and
your
Brethren
,
about
Writs
of
HABEAS
CORPUS
,
his
Majesty
doth
exceedingly
approve
the
same
,
And
hath
commanded
me
to
let
you
know
,
that
his
Majesty
would
not
recede
from
that
which
you
have
certified
,
And
praies
you
and
the
rest
of
my
Lords
the
Judges
,
to
observe
it
constantly
,
attending
to
that
resolution
under
your
hands
:
Hampton
Court
,
19
June
,
1636.
Your
Lordships
assured
Tho.
Coventrey
,
C.
S.
Mich.
14
Car.
MEmorand.
That
28.
Aprilis
,
14
Car.
Iustice
Hutton
argued
in
the
Exchequer
Chamber
in
the
Case
Adjourned
thither
,
upon
a
Sc●re
facias
by
the
King
against
Hampden
for
Ship-money
,
in
which
he
was
of
opinion
,
that
as
well
for
the
matter
as
for
the
form
,
upon
divers
exceptions
to
the
pleading
,
Iudgment
should
be
given
against
the
King
.
Afterwards
,
viz.
4.
Maij.
Thomas
Hanson
Batchelor
of
Divinity
,
and
Parson
of
Creake
in
Northamp
.
came
to
the
Court
of
Common
Bench
(
Iustice
Hutton
,
and
Iustice
Crawley
then
being
there
giving
Rules
and
Orders
)
and
said
,
I
accuse
Mr.
Justice
Hutton
of
high
Treason
,
for
which
he
was
committed
to
the
custody
of
the
Warden
of
the
Fleet
by
Iustice
Crawley
;
and
after
by
the
direction
of
the
King
,
he
was
indicted
in
the
Kings
Bench
,
and
convicted
and
fined
to
five
thousand
pounds
to
the
King
:
And
Iustice
Hutton
preferred
his
Bill
against
him
there
,
and
recovered
ten
thousand
pound
Dameges
.
Lord
Digbies
Case
.
MEmorand.
That
in
the
Parliament
holden
primo
Car.
It
was
resolved
by
the
Iudges
upon
conference
concerning
the
Lord
Digby
,
That
when
any
Peer
shall
be
proceeded
against
for
Treason
,
that
ought
to
be
by
Indictment
,
and
that
being
done
,
Jac.
cap.
4.
shall
be
,
and
how
.
then
the
King
is
to
appoint
a
Peer
to
be
Steward
for
the
time
,
and
then
to
proceed
to
Arraign
him
,
or
otherwise
to
transmit
this
Indictment
by
Certiorari
to
the
Parliament
,
and
there
to
proceed
,
vide
10
E
:
4.
6.
1
H
:
4.
1.
vide
Coke
Lit
:
fol
:
261.
b.
Or
otherwise
to
prefer
a
Bill
in
the
Parliament
,
which
ought
to
be
passed
by
both
houses
,
and
then
it
is
Attainder
by
Parliament
,
and
so
it
was
done
,
5
R
:
2.
54.
But
in
this
Case
,
it
being
that
part
of
the
Treason
objected
against
him
,
was
supposed
to
be
done
Oust
le
mere
,
and
made
Treason
by
the
Act
of
3
Jac:
cap
:
4.
that
cannot
be
tryed
but
by
Indictment
,
to
be
taken
before
the
Iustices
of
Assise
,
and
Gaol-delivery
,
where
the
party
was
taken
,
or
before
the
Iustices
of
the
Kings
Bench
,
and
Law
,
Custome
,
Statute
,
or
usage
to
the
contrary
notwithstanding
;
And
so
it
cannot
be
tryed
by
the
Statute
of
35
H
:
8.
cap
:
2.
in
what
place
or
Shire
that
the
Kings
Bench
shall
be
,
for
this
Statute
had
for
this
Treason
prescribed
a
speciall
form
of
Tryall
,
and
the
place
where
he
shall
be
taken
shall
be
expounded
,
the
place
where
he
is
misprisoned
,
as
upon
the
Statute
of
Soldiers
:
And
he
which
is
charged
to
have
two
Wives
living
,
shall
be
tryed
in
the
place
where
he
is
taken
,
which
is
the
place
where
he
is
imprisoned
,
vide
2.
Inst.
49.
Trin.
12
Car.
Riz
.
cap
:
9.
1
H
:
7.
cap
:
2.
14
H
:
8
:
cap
:
2.
the
Decrees
in
the
Star-chamber
made
20
H
:
8.
and
confirmed
21
H
:
8.
cap
:
16.
22
H
:
8.
cap
:
8.
32
H
:
8.
16.
and
other
Statutes
concerning
Aliens
,
and
the
Statute
of
5
Eliz:
cap
:
4.
1.
Whether
the
Statute
of
5
Eliz.
cap
:
4.
doth
repeal
the
former
Statutes
concerning
Aliens
,
taking
Apprentices
,
Iourny-men
,
and
Servants
.
2.
Whether
Aliens
made
Denizens
,
may
use
any
handycraft
within
the
Realm
,
otherwise
then
as
Servants
to
the
Kings
Subjects
.
Memorand.
That
on
the
seventh
day
of
July
,
We
met
at
Serjeants
Inne
in
Fleetstreet
(
Mr.
Attorney-generall
being
there
)
and
We
debated
the
matter
,
and
upon
perusall
of
the
Statute
of
1
R
:
3.
cap
:
9.
and
the
other
Statutes
:
And
upon
some
mis-recitall
of
the
Statute
1
R
:
3.
by
the
Statute
32
H
:
8.
cap
:
16.
And
upon
differences
of
the
Printed
Statute
from
the
Parliament
Roll
,
as
was
supposed
,
upon
shewing
of
an
old
Book
of
Statutes
,
which
was
in
French
,
and
brought
by
my
Brother
Crook
;
and
upon
the
intricacy
of
the
Statute
,
We
could
not
resolve
on
the
suddain
,
upon
these
Questions
at
this
time
,
nor
unlesse
the
Parliament
Roll
might
be
seen
.
But
upon
perusall
of
the
Statute
of
5
Eliz:
cap
:
4.
We
all
resolved
and
agreed
.
That
all
Aliens
and
Denizens
are
restrained
by
the
Statute
of
5
Eliz:
cap
:
4.
That
they
may
not
use
any
Handycraft
mentioned
in
the
said
Statute
,
Eliz.
cap.
4.
concerning
Aliens
.
unlesse
they
have
served
seven
years
as
Apprentices
within
this
Realm
,
according
to
the
provision
of
this
Statute
:
This
was
set
down
in
writing
by
Sir
John
Banks
his
Majesties
Attorney
Generall
present
:
Sir
John
Bramston
chief
Iustice
of
England
,
Sir
John
Finch
chief
Iustice
of
the
Common
Bench
,
Sir
Humphrey
Davenport
chief
Baron
,
Baron
Denham
,
Iustice
Hutton
,
Iustice
Crook
,
Baron
Trevor
,
Iustice
Crawley
,
and
Baron
Weston
,
the
other
Iudges
being
absent
,
viz.
Jones
and
Vernon
.
Hil.
12
Car.
Souser
versus
Burton
.
ONe
Widow
Souser
brought
an
action
of
the
Case
against
Burton
,
for
these
words
,
Thou
old
Witch
,
thou
old
Whore
,
leave
oft
thy
witching
,
or
else
thou
shalt
be
hanged
or
burned
,
if
I
can
do
it
.
And
upon
Not
guilty
pleaded
,
and
Verdict
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
;
And
it
seemed
to
Lord
Finch
,
Hutton
,
and
Vernon
that
the
action
lay
not
,
without
shewing
that
she
did
any
act
of
Witchcraft
,
for
which
the
pain
of
Pillory
and
Imprisonment
for
two
years
should
be
inflicted
,
and
the
second
time
Felony
:
And
that
the
words
,
Thou
art
an
old
Witch
,
or
go
away
thou
old
Witch
,
are
usuall
words
,
and
old
Whore
bears
no
action
:
And
as
to
say
,
Thou
shalt
be
hanged
if
I
can
do
it
,
it
is
not
possible
that
he
could
do
it
.
But
Iustice
Crawley
doubted
of
it
at
first
,
because
that
it
was
alledged
,
that
it
had
been
adjudged
in
the
Kings
Bench
,
that
an
action
lies
for
calling
one
Witch
;
But
afterwards
he
said
,
that
he
had
spoken
with
the
Iustices
of
the
Kings
Bench
of
their
reason
,
who
said
,
that
they
adiudged
no
such
thing
,
unlesse
that
he
spoke
further
,
that
the
party
had
done
any
act
of
Witchcraft
punishable
by
the
Statute
.
Hugles
versus
Drinkwater
.
AN
action
of
Account
by
William
Hugles
against
Thomas
Drink-water
,
for
receit
of
eighteen
pounds
,
Ne
unques
receivor
.
by
the
hands
of
one
William
Appowell
,
to
the
use
of
the
Plaintiff
,
the
Defendant
plead
Ne
unquer
receivor
per
manus
,
&c.
and
found
or
the
Plaintiff
:
And
the
Defendant
before
the
Auditors
plead
,
that
he
by
the
appointment
of
William
Appowell
had
paid
it
to
one
John
Marsh
for
the
Debt
of
the
Plaintiff
,
and
therupon
Demurrer
.
And
adjudged
a
bad
Plea
,
and
against
his
former
Issue
:
And
the
said
Appowell
by
whose
hands
he
received
the
said
summ
,
had
not
any
power
to
appoint
the
Defendant
to
pay
it
to
John
Marsh
,
to
whom
the
Plaintiff
was
indebted
;
and
if
that
had
been
pleaded
in
Bar
,
of
the
Account
to
have
been
done
by
the
appointment
of
the
Defendant
,
it
had
been
a
good
Bar
,
vide
Dyer
29.
196.
after
ne
unques
receivor
,
and
the
truth
was
that
he
had
been
Receiver
,
and
had
paid
it
over
by
the
appointment
of
the
party
,
and
yet
by
this
Plea
be
hath
lost
the
advantage
therof
.
An.
2.
Car.
MEmorand.
That
the
19.
day
of
May
,
An
:
2
Car.
all
the
Iudges
being
assembled
at
Serjeants
Inn
in
Chancery
Lane
,
by
the
commandment
of
the
King
,
the
Attorney
Generall
propounded
,
una
voce
answered
.
That
when
any
one
is
indicted
of
Felony
or
Treason
,
or
any
other
such
offence
,
the
party
ought
not
to
have
any
Councell
,
unlesse
it
be
upon
matter
in
Law
,
as
where
he
demand
Sanctuary
,
or
plead
any
speciall
matter
,
and
that
is
agreed
by
Stamford
,
fol.
151.
Also
this
extends
as
well
to
Peers
of
the
Realm
,
as
to
others
,
vide
1
H
:
7.
23.
and
the
9
E
:
4.
2.
and
so
it
was
agreed
by
all
,
that
although
the
party
shall
have
Councell
in
an
Appeal
of
Murther
,
yet
if
he
be
non-suited
,
and
the
party
be
arraigned
upon
the
Declaration
,
then
he
shall
have
no
Councell
.
Also
it
was
resolved
,
that
when
the
party
who
prosecute
,
suppose
that
the
Grand
Iury
will
not
find
the
Invictment
,
and
therfore
requires
that
the
Evidence
should
be
given
publickly
to
the
Iury
at
Bar
(
which
is
sometime
done
)
yet
the
party
who
shall
be
indicted
,
shall
not
have
Councell
.
And
the
Attorney
Generall
was
commanded
to
report
our
opinion
to
the
King
:
And
this
hapned
to
be
demanded
upon
the
generall
inconvenience
that
might
after
ensue
in
the
Case
of
the
Earl
of
Bristoll
,
to
whom
the
King
had
allowed
Councell
.
Mich.
3
Car.
MEmorand.
That
the
fifth
of
November
,
at
Serjeants
Inne
in
Fleet-street
,
there
assembled
the
Lord
Hide
,
Lord
Richardson
,
Lord
Walter
,
Iustice
Doderidge
,
Baron
Denham
,
Iustice
Hutton
,
Iustice
Jones
,
One
receives
Presse-money
to
serve
the
King
in
his
Wars
,
and
is
in
the
Kings
Wages
,
and
with
others
is
delivered
to
a
Conductor
,
to
be
brought
to
the
Sea-side
,
and
with-draweth
himself
and
runneth
away
without
license
.
The
Question
was
,
if
it
were
Felony
.
And
time
being
given
before
to
advise
concerning
it
,
all
agreed
besides
Yelverton
and
my self
that
it
was
Felony
.
And
the
sole
question
is
,
if
a
Conductor
be
a
Captain
within
the
7
H
:
7.
cap
:
1.
and
the
3
H
:
8.
cap
:
5.
And
they
said
,
that
it
is
not
necessary
that
he
should
be
such
a
Captain
as
is
to
lead
and
command
them
in
the
War
,
or
that
hath
skill
to
instruct
;
But
such
as
hath
the
leading
of
them
by
agreement
,
between
the
Deputy
Lievtenants
,
and
them
,
and
that
ought
to
provide
for
the
Billeting
of
them
,
and
to
carry
them
to
the
place
of
Randesvous
.
And
one
part
of
a
Captain
is
to
conduct
,
although
that
Conduxit
be
properly
to
hire
a
Souldier
,
yet
this
name
Conductor
,
with
whom
it
is
so
agreed
by
Indenture
to
conduct
the
Souldiers
,
is
a
Captain
,
within
the
intent
of
those
Statutes
;
and
if
it
should
not
be
so
,
these
Statutes
(
which
are
for
the
defence
of
the
Realm
)
shall
be
of
little
force
.
But
it
was
agreed
by
them
,
that
if
these
Conductors
(
which
are
so
called
of
late
times
)
be
hired
to
carry
them
but
to
one
place
,
and
there
another
Conductor
to
receive
them
,
this
is
not
within
the
Statute
;
And
it
ought
to
be
such
a
Conductor
that
can
give
license
upon
just
cause
to
proceed
.
It
was
said
,
that
they
used
to
send
Captains
into
the
Country
,
but
then
they
were
so
chargable
to
the
Country
,
and
full
of
disorder
,
that
upon
complaint
of
the
Iustices
of
Peace
,
about
43
Eliz.
this
course
was
invented
,
viz.
That
the
Deputy
Lievtenants
should
provide
for
them
that
were
pressed
,
for
Coats
and
Conduct
,
and
they
sent
their
Souldiers
to
a
place
appointed
to
be
delivered
to
certain
persons
,
whom
the
Queen
appointed
,
to
receive
them
.
And
it
was
said
,
that
though
this
Case
as
it
is
propounded
might
be
cleer
,
yet
there
are
many
Circumstances
which
ought
to
be
proved
,
and
that
are
loft
to
the
discretion
of
them
before
that
he
should
be
tryed
.
It
was
unanimously
agreed
,
that
if
one
takes
Presse-money
,
and
when
he
should
be
delivered
over
,
he
withdraw
himself
,
that
is
not
Felony
,
although
he
is
hired
and
retained
to
serve
.
But
my
Brother
Yelverton
&
I
were
of
opinion
,
that
this
new
name
newly
invented
,
is
not
Captain
within
these
penall
Statutes
,
which
ought
to
be
taken
strictly
,
vide
Plowden
86.
that
penalties
which
concern
life
shall
not
be
taken
by
equity
,
but
if
they
be
within
the
words
of
the
Statute
,
then
they
shall
:
As
to
kill
his
Mistresse
,
is
within
the
words
,
for
Mistresse
is
Master
.
Another
reason
was
,
that
the
Statutes
provide
punishment
for
Captains
which
want
of
their
number
,
or
which
pay
not
their
Souldiers
within
six
daies
after
they
have
received
their
pay
,
upon
pain
of
forfeiting
all
their
Goods
:
And
the
Statute
did
not
intend
other
Captains
in
this
point
,
then
was
in
the
former
and
latter
part
therof
.
But
admitting
that
a
Conductor
is
such
a
one
to
whom
the
Souldiers
are
delivered
by
Indenture
with
all
Covenants
usuall
,
viz.
To
pay
to
them
their
Wages
,
and
to
convey
them
to
their
appointed
place
,
and
that
he
may
give
license
to
depart
;
yet
they
agreed
,
that
it
is
the
better
and
clearer
way
that
they
should
be
made
Captains
,
and
so
named
in
the
Indentures
,
for
the
King
may
change
the
Captain
at
his
pleasure
,
and
then
it
should
be
no
question
.
It
was
agreed
,
that
7
H
:
7.
cap
:
1.
extends
only
to
them
who
are
retained
and
pressed
to
serve
the
King
upon
the
Sea
,
or
upon
the
Land
beyond
the
Sea
;
And
the
Statute
of
3
H
:
8.
cap
:
5.
adds
only
the
Land
here
:
And
the
Statute
makes
departure
without
license
from
the
Captain
Felony
,
and
the
Statute
3
H
:
8.
without
license
from
the
Lievtenant
:
And
the
Statute
of
7
H
:
7.
makes
the
tryall
to
be
in
the
County
where
they
shall
be
taken
before
the
Iustices
of
the
Shire
,
as
they
may
try
other
Felonies
within
their
Commission
:
The
Statute
of
3
H
:
8.
makes
their
tryall
before
the
Iustices
of
the
County
,
where
they
are
taken
;
and
this
being
a
new
Felony
and
made
tryable
against
the
Common
Law
(
which
appoint
tryals
by
Iurors
of
the
County
where
the
Fact
is
committed
)
and
appoint
a
speciall
Iudge
,
viz.
Iustices
of
Peace
,
that
is
only
tryable
before
them
,
and
not
before
Commissioners
of
Oyer
and
Terminer
,
who
cannot
try
any
thing
,
but
that
which
is
done
in
the
same
County
:
But
this
,
if
all
be
not
done
in
that
County
where
they
are
taken
,
makes
it
tryable
only
before
the
Iustices
of
Peace
of
the
County
where
they
are
taken
.
In
this
point
all
were
not
resolved
,
but
required
longer-time
,
vide
2
Inst
56.
Sir
Richard
Champions
Case
.
A
Writ
of
Covenant
is
prosecuted
,
Jan
;
23.
returnable
Oct.
Purisicat
.
Oct.
Puris
.
where
the
Caption
was
,
Feb.
14.
1.
The
Dedimus
potestatem
is
tested
23
Jan
:
the
Iudge
certifie
the
Concord
takes
Febr.
14.
which
is
two
daies
after
the
Term
,
at
which
time
the
Writ
of
Covenant
is
not
depending
,
the
Fine
is
haec
est
finalis
Concordia
facta
in
Oct.
Purif
.
And
after
it
is
recorded
in
15
Pasch.
and
yet
adjudged
a
good
Fine
,
vide
the
Statute
of
23
Eliz.
3.
Dyer
220.
b.
Carels
Case
.
Mich.
4
Car.
Jones
versus
Powell
.
JOhn
Jones
Plaintiff
,
against
James
Powell
Defendant
,
in
an
action
●●
on
the
Case
for
a
Nusance
,
count
,
That
the
Plaintiff
,
10.
August
,
1
Caroli
,
was
,
and
is
,
and
for
forty
years
last
past
,
hath
been
possessed
for
divers
years
yet
during
,
of
a
Messuage
,
Coke
lib
:
4.
Aldreds
case
pleaded
in
new
Book
of
Entries
,
fol:
106.
an
action
of
the
case
for
erecting
a
Hogsty
,
Ad
nocumentum
aeris
adjudged
.
22
H
:
6.14
.
by
Newton
,
an
action
upon
the
case
lyeth
expresly
.
Eliz
Bland
against
Mosely
,
an
action
of
the
case
for
stopping
Lights
in
London
,
adjudged
a
void
Prescription
,
to
build
so
high
that
the
Neighbors
lights
are
therby
stopped
in
a
City
.
Old
Book
of
Entries
,
fol:
406.
in
the
Edition
1596.
action
upon
the
Case
brought
for
annoying
a
Piscary
with
a
Gutter
that
came
from
a
Dye-house
.
1.
And
there
an
action
brought
against
a
Dyer
,
Quia
fumos
foeditat
.
&
alia
sordida
juxta
parietes
querentis
posuit
,
per
quod
parietes
putridae
devenerunt
,
&
ob
metum
infectionis
per
horridum
vaporem
,
&c.
ibid.
morari
non
audebat
.
13
H
:
7.26
,
An
action
lyeth
against
a
Glover
,
because
he
with
a
Lime-pit
so
corrupted
the
water
,
that
the
Tenants
departed
.
F.
N.
B.
185.
b.
A
Writ
lyeth
to
the
Major
of
a
City
to
cleanse
the
Streets
from
filth
,
wherby
infection
might
grow
.
By
which
cases
it
appeareth
,
that
although
Sea-cole
be
a
necessary
Fuell
to
be
used
,
and
that
Brew-houses
are
necessary
,
yet
the
Rule
in
Law
is
,
Sic
utere
tuo
,
ut
alienum
inon
laedas
:
And
Chimneys
,
Dye-houses
,
and
Tan-fats
are
also
necessary
,
but
so
to
be
used
,
that
they
be
not
prejudiciall
to
their
Neighbors
.
And
in
this
Case
the
Iury
found
that
this
new
Brew-house
and
Privy
was
maliciously
erected
to
deprive
the
Plaintiff
of
the
benefit
of
his
Habitation
and
Office
,
and
that
the
Plaintiff
was
hereby
damnified
,
as
in
the
Declaration
is
alledged
.
And
upon
Conference
and
Consideration
of
the
Case
,
all
the
Iudges
did
concur
that
Iudgment
should
be
given
for
the
Plaintiff
.