Reports and cases of law, argued and adjudged in the courts at Westminster, in the times of the late Queen Elizabeth, and King James in four parts / collected by ... William Leonard, Esq. ...; with alphabetical tables of the names of the cases, and of the matter contained in each part ; published by William Hughes ... Reports and cases of law argued and adjudged in the courts at Westminster Part 1 Leonard, William. This text is an enriched version of the TCP digital transcription A47714 of text R19612 in the English Short Title Catalog (Wing L1104). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 1493 KB of XML-encoded text transcribed from 178 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2018 A47714 Wing L1104 ESTC R19612 12043411 ocm 12043411 53034 2248522470

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 Early English books online. (EEBO-TCP ; phase 2, no. A47714) Transcribed from: (Early English Books Online ; image set 53034) Images scanned from microfilm: (Early English books, 1641-1700 ; 570:4) Reports and cases of law, argued and adjudged in the courts at Westminster, in the times of the late Queen Elizabeth, and King James in four parts / collected by ... William Leonard, Esq. ...; with alphabetical tables of the names of the cases, and of the matter contained in each part ; published by William Hughes ... Reports and cases of law argued and adjudged in the courts at Westminster Part 1 Leonard, William. Hughes, William, of Gray's Inn. This text is an enriched version of the TCP digital transcription A47714 of text R19612 in the English Short Title Catalog (Wing L1104). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread [11], 336, [7] p. Printed by William Rawlins, Samuel Roycroft, and Miles Flesher, assigns of Richard and Edward Atkins, for H. Twyford, H. Herringman, T. Basset, R. Chiswell, B. Griffin, C. Harper, T. Sawbridge, J. Place, and S. Keble, London : 1687. Marginal notes. "A table of the cases": prelim. p. [6]-[11]. "The table ..." [i.e. index]: p. [1]-[7] at end. Reproduction of original in Cambridge University Library. eng Law reports, digests, etc. -- England. Law -- England -- Cases. eebo Reports and cases of law: argued and adjudged in the courts at Westminster, in the times of the late Queen Elizabeth, and King James. In four parts. T Leonard, William 1687 356 264886 161 0 0 0 1 0 6.46 B The rate of 6.46 defects per 10,000 words puts this text in the B category of texts with fewer than 10 defects per 10,000 words. 2009-10 Assigned for keying and markup 2009-11 Keyed and coded from ProQuest page images 2010-02 Sampled and proofread 2010-02 Text and markup reviewed and edited 2010-04 Batch review (QC) and XML conversion

I do Allow of the Reprinting of These Four Parts of Leonards Reports .

Febr. 20. 1685/6 . EDWARD HERBERT .

REPORTS AND CASES OF LAW : Argued and Adjudged in the Courts at Westminster , In the Times of the Late QUEEN ELIZABETH , AND KING JAMES .

In Four Parts .

The Second Impression , carefully Corrected , with the Addition of Many Thousand of References , never before Printed .

Collected by a Learned Professor of the LAW , WILLIAM LEONARD , Esquire , Then of the Honourable Society of GRAYS-INN .

Published by William Hughes of Grays-Inn , Esquire .

With Alphabetical TABLES of the Names of the Cases , and of the Matter contained in each Part.

LONDON , Printed by William Rawlins , Samuel Roycroft , and Miles Flesher , Assigns of Richard and Edward Atkins , Esquires .

For H. Twyford , H. Herringman , T. Basset , R. Chiswell , B. Griffin , C. Harper , T. Sawbridge , J. Place , and S. Keble , MDCLXXXVII .

Academiae Cantabrigiensis Liber bookplate

TO THE READER . Courteous Reader ,

THese Cases were Collected and taken in the French Tongue , by William Leonard Esquire , sometimes of the Honourable Society of Grays-Inn ; a Learned Professor and Practiser of the Common Law , in the time of the Reign of the late Queen Elizabeth : One Copy of some of these Cases ( many years past ) came into the hands of Sir Robert Hitcham Knight , afterwards Serjeant at Law ; Another Copy of other of these Cases came then into the hands of Humphry Davenport Serjeant at Law ; afterwards Sir Humpry Davenport Knight , late Lord chief Baron of the Court of Exchequer ; Both which said learned persons approved of them , and made use of them in the course of their several Practice . Some other Copies of some of these Cases are now dispersed abroad , and are in the hands of divers Practisers and Students of the Law , who make the like use of them . The Originals themselves of all these Cases ( amongst many others of the said Mr. Leonards collecting ) all of them under his own hand-writing , are now in my hands , having been delivered to me by a worthy Gent. of the said Society of Grays-Inn , who had them out of the Library , somtimes belonging to the said Mr. Leonard . These Cases having been lately , truly and carefully Translated by me out of the Original French Copy into English , have since the Translation thereof , been perused and approved of by many Eminent Professors of the Law. Wherefore I finding that the same do contain many excellent Matters and Points of Law , which have not heretofore been Printed , or published , do here offer the same unto thy Judgment upon a serious consideration , hoping they may be of some use and benefit to thee , in the like course of thy study and practice of LAW .

From my Study at Grays-Inn , Novemb. 20th . 1658. Will . Hughes .
The Names of the Learned Lawyers , Serjeants at Law , and Judges of the several Courts at Westminster , who argued the cases , and were Judges of the several Courts , where the Cases were argued viz. A. ANderson , Lord Chief Justice of the Common Pleas. Anger . Altham , afterwards one of the Barons of the Exchequer . Atkinson . Ayliffe , Justice of the Kings Bench. B. BEamount , Serjeant at law , afterwards Judge of the Common Pleas. Bromley , Lord Chancellor of England . Barkley . C. COok , after Lord Chief Justice of the Common Pleas. Clench , one of the Judges of the Kings Bench. Cooper , Serjeant at Law. Clark , Baron of the Exchequer . D. DAniel , Serjeant at Law , after Judge of the Common Pleas. Drew , Serjeant at Law. Dyer , Lord Chief Justice of the Common Pleas. E. EGerton , Solicitor of the Queen , after Lord Chancellor . F. FLeetwood , Serjeant at Law , Recorder of London . Fuller . Fenner , Serjeant at Law , after Judge of the Kings Bench. G. GAwdy , Judge of the Kings Bench. Golding , Serjeant at Law. Glanvile , Serjeant at Law , after Judge of the Common Pleas. Gent , Baron of the Exchequer . Godfrey . H. HAughton , Serjeant at Law , after Judge of the Common Pleas. Hammon , Serjant at Law. Harris , Serjeant at Law. Heale , Serjeant at Law. Hobart . K. KIngsmil , Judge of the Kings Bench. L. LAiton . M. MEad , Serjeant at Law , after Judge of the Common Pleas. Morgan . Manwood , Lord Chief Baron of the Exchequer . Mounson , Justice of the Common Pleas. O. OWen , Serjeant at Law , after Baron of the Exchequer . P. POpham , Attorney General of the Queen , after Lord Chief Justice of B. R. Periam , Judge of the Common Pleas. Pepper , Attorney of the Court of Wards . Plowden . Puckering , the Queens Serjeant at Law. R. RHodes , Judge of the Common Pleas. S. SNag , Serjeant at Law. Shuit , Judge of the Kings Bench. Shuttleworth , Serjeant at Law. TAnfield , Serjeant at law , after Lord Chief Baron of the Exchequer . Topham . W. WRay , Lord Chief Justice of the Kings Bench. Windham , Judge of the Common Pleas. Walmesley , Serjeant at Law , after Judge of the Common Pleas. Y. YElverton , Serjeant at Law , after Judge of the Kings Bench.
The Names of the Cases .

Note 1. P. stand for Principal Case 2. B. stand for a Vouched Case .

A. Sect. ALlington and Bails Case 34 p Albany and Bishop of Saints Asaphs Case , 39 p Ashpool , and Inhabitants of Everinghams Case 72 p Arden and Gents Case 75 p Arundel and Morris case 98 p Allen and Palmers case 133 p Atkinson and Rolfs case 141 p Atkins and Hales case 192 p Askew and Earl of Lincolns Case 196 p Ashegel and Dennis case 272 p Arundel , and Bishop of Gloucesters case 278 p Alexander and Greshams case 306 p Askew and Fuliambs case 310 p Austin and Smiths case 441 p Lord Abergavennies case 469 p Anonimus , 2 p 8 p 15 p 17 p 38 p 40 p 45 p 61 p 73 p 75 p 81 p 83 p 86 p 94 p 104 p 108 p 109 p 116 p 132 p 145 p 150 p 157 p 173 p 220 p 221 p 222 p 224 p 226 p 266 p 285 p 290 p 296 p 308 p 335 p 349 p 350 351 252 353 354 355 356 357 358 359 360 361 365 371 386 390 392 393 396 397 400 401 408 418 443 444 451. B. Bornford and Packingtons case 1 p Benicomb and Parkers case 31 p Bedows case 32 p Braybrooks case 51 p Bullers case 64 p Bishop of York and Mortons case 69 p Bunny and Wright , and Staffords case 77 p Bonefant and Sir Richard Greenfields case 78 p Beverleys and Cornwallis case 84 p Bracebridge & Baskarviles case 87 p Barker and Pigets case 89 p Blaunchstower and Friars case 91 p Basset and Kerns case 92 p Bret and Auders case 95 p Brook and Kings case 99 p Baldwin and Cocks case 101 p Bret and Shepherds case 114 p Baxter and Bales case 115 p Butler and Ayres case 118 p Bushies case 122 p Birds case 125 p Branchers case 139 p Bear and Underwoods case 142 p Beverley and Bawds case 148 p Beares case 154 p Bronker and Robothams case 162 p Brook and Doughties case 173 p Bilford and Foxes case 189 p Burgesses of Southamptons case 199 p Lord Buckhurst , and Bishop of Winchesters case 213 p Brookesley and Wickams case 232 p Bow●y and Popes case 234 p Bedel and Moors case 238 p Bulleyn and Grants case 244 p Boyton and Andrews case 259 p Bunbury and Birds case 265 p Bradstocks case 288 p Bagshaw , and Earl of Shrewsburies case 292 p Bishop and Harecourts case 295 p Byne and Playns case 303 p Blaygrave and Woods case 309 p Bownsel and Tylers case 314 p Beal and Tailors case 320 p Blunt and Whitacres case 327 p Bishop of Lincolns and Cowpers case 336 p Bennet and Frenches case 339 p Bracebridges case 355 p Bishop and Redmans case 375 p Baskervile and Bishop of Herefords case 379 p Bedingfield , and Bedingfeilds case 385 p Burgess and Fosters case 395 p Barret and Kings case 412 p Bighton and Sawls case 428 p Bond and Richardsons case 432 p Beares case 440 p Beal and Carters case 462 p Bond and Bails case 464 p Burchets case 466 p Birchleys case 466 p C. CAters case 12 p Cham and Dovers case 19 p Cordel and Gibbons case 22 p Carters case 55 p Case of the Mannor of Wadhurst 70 p Cooke and Songats case 137 p Sir Julius Caesars case 144 p Cibelt and Hills case 149 p Charnock and Worsleys case 157 p Carter and Booths case 170 p Colborn and Mixtons case 176 p Chamberlain and Thorps case 178 p Chamberlain and Stantons case 193 p Carie and Dennis case 201 p Chapman and Hursts case 208 p Lord Conniers case 228 p Creckmere and Patersons case 242 p Churchwardens of Fetherstons case 248 p Cheney and Langleys case 252 p Cockshall and the Mayor of Barltons case 269 p Collman and Sir Hugh Portmans case 273 p Cranmers case 279 p Castle and Ouldmans case 282 p Cottons case 297 p Cheney and Smiths case 298 p Lord Cobham and Browns case 299 p Chamberlains case 302 p Cook and Huets case 317 p Cleypools case 369 p Carriton and Godburies case 372 p Caries case 380 p Cole and Friendships case 391 p Crisp and Goldings case 405 p Collet and Andrews case 417 p Carter and Cleycocks case 427 p Corbets case 434 p Crossman and Reads case 448 p Cole and Walls case 463 p Cony and Barhams case 444 p Crew and Bayles case 465 p Lord Cromwel and All Souls case 467 p Corbet and Cleers case 467 b D. DUke of Northumberlands case 27 p Dayrel and Thynns case 28 p Sir Wolston Dixies case 125 p Docton and Priests case 136 p Dellabay and Hassalls case 167 p Dorrington and Dorringtons case 179 p Lord Dudley and Lacies case 195 p Sir Ed. Dyers case 203 p Degory and Roes case 211 p Dean and Cannons of Windsors case 228 p Dove and Williots case 243 p Dethicks case 337 p Danvers case 180 p Lord Darcie and Sharps case 381 p Lord Dacres case 394 p Darsley and Nevills case 414 p Dennis and Saint Johns case 453 p Dormers case 132 p E. EStops case 33 p Earl of Warwick and Lord Barckleys case 68 p Earl of Arundel and L. Dacres case 117 p English and Pellitories case 169 p Earl of Lincolns case 238 p Edwards and Tedburies case 268 p Erbery and Lattons case 270 p Estons case 341 p Englishes case 157 p Earl of Leicester & Tanfields case 377 p Elmes and Medcalfs case 426 p Evesq . of Coventry and Liechfields case 427 p F. FOrman and Bohans case 18 p Floud and Sir John Perrots case 35 p Fullwood and Fullwords case 74 p Fordleys case 88 p Ferrers case 146 p Foster and Thorns case 173 p Sir George Farmer and Brooks case 199 p Fox and Collins case 205 p Fisher and Boys case 228 p Fish and Browns case 253 p Fenwick and Mitfords case 256 p Foster and Pitfalls case 347 p Ferrand and Ramseis case 362 p Flemings case 403 p Fabian and Windsors case 425 p Frend and Batts case 450 p Foster and Wilsons case 458 p G. GIlbert and Sir George Harts case 5 p Gray and Jets case 63 p Gamock and Cliffes case 78 p Gill and Harewoods case 80 p Gellibrand and Harts case 83 p Gunerston and Hutchers case 103 p Gerings case 107 p Glosse and Haymans case 110 p Sir Thomas Greshams case 113 p Gates and Holliwels case 130 p Lord Greys case 156 p Gage and Paxtins case 158 p Gatefould and Penns case 174 p Gomersal and Bishops case 175 p Sir Henry Goodiers case 185 p Geslin and Warburtons case 187 p Gibbs case 225 p The Gild of Bostons case 228 p Galliard and Archers case 267 p Greenwood and Weldens case 294 p Green and Edwards case 300 p Gawton and Lord Dacres case 301 p Gore and Dawbneys case 316 p Greenliff and Bakers case 317 p Green and Pendletons case 318 p Guilfords case 322 p Gallery and Bunburies case 328 p Geofries and Coites case 329 p Greens case 348 p Gibbs and Rowleys case 367 p Gerrard and Sherringtons case 388 p Gravenor and Masseys case 398 p Glanvil and Mallaries case 421 p Gillam and Lovelaces case 435 p Greeves case 436 p Green and Hundred of Bucklechurches case 456 p H. HAddons case 10 p Harvy and Hervyes case 26 p Hungerfords case 36 p Higham and Harewoods case 42 p Henly and Broads case 53 p Hudson and Leighs case 65 p Heydons case 96 p Hawkes and Mollineux case 100 p Hamington and Ryders case 120 p Howel and Trivanians case 121 p Hudsons case 121 p Higham and Reynolds case 123 p Haithsome and Harvies case 166 p Hoskins and Jones case 177 p Hunt and Gilborns case 182 p Hedd and Challoners case 204 p Hayes and Allens case 210 p Hawkins and Lawses case 214 p Huson and Webbs case 229 p Hambleden and Hambledens case 230 p Hauxwood and Husbands case 249 p Howe and Connys case 254 p Holland and Franklyns case 257 p Hill and Hills case 321 p Hill and Lockhams case 331 p Harvy and Thomas case 332 p Hartopps case 342 p Henningham & Windhams case 346 p Hales case 374 p Huddy and Fishers case 377 p Hollingshed and Kings case 384 p Harris and Bakers case 417 p Hare and Okeleys case 439 p Hudsons and Leighs case 447 p Hoskins and Stapers case 468 p I. SIr Henry Isleys case 102 p Jerome and Neales case 143 p Jerome and Knights case 146 p Jennings and Winches case 214 p Ivory and Fryers case 216 p Isleys case 264 p. James case 264 p Jones case 281 p Jennings and Gowers case 311 p Jeofry and Coites case 329 p Johnson and Bellamies case 330 p Jennor and Hardeys case 383 p K. KEmpe and Hollingborns case 25 p Kimpton and Bellamies case 56 p Knights case 37 p Kinters case 59 p Kempe and Carters case 70 p Keys and Stedds case 105 p Knight and Footmans case 124 p Kinnersly and Smarts case 206 p Kirdler and Leversages case 209 p Kimpton and Dawbennets case 227 p Knight and Savages case 260 p Kirby and Eccles case 261 p Kensam and Redings case 334 p Kellet and Kellets case 355 p Kempton and Coopers case 437 p Knightly and Spencers case 467 p L. LEndel and Pinfolds case 24 p Lodge and Luddingtons case 26 p Lassels case 28 p Lepur and Wrothes case 44 p Lewknor and Fords case 62 p Leigh and Hamwers case 67 p Liveseys case 106 p Littleton and Perns case 186 p Lee and Maddox case 235 p L. Lumley and Fords case 263 p Long and Hemmings case 289 p Lancasters case 291 p Linacres case 313 p Lancaster and Lucas case 316 p Lacies case 363 p Lodges case 376 p Lees case 387 p Lee and Curetons case 412 p Lacy and Fishers case 413 p Loves case 421 p Lemons case 427 p Leigh and Okeleys case 438 p M. MOore and Farrands case 6 p Manies case 7 p Marquess of Winchesters case 18 p Marsh and Smiths case 33 p Molleneux case 39 p Marquess of Northamptons case 44 p Mascals case 82 p Moile and Earl of Warwicks case 85 p Martin and Stedds case 111 p Mounson and Wests case 112 p Mitchel and Hides case 119 p Lord Mountioys case 157 p Musket and Coles case 168 p Mebb and Friends case 178 p Mounson and Wests case 181 p Lady Mallories case 189 p Mallet and Ferrers case 191 p Marsh and Astreys case 203 p Marriot and Pascalls case 228 p Mustid and Hoppers case 241 p Matthew and Hassals case 245 p Mills and Snowbals case 287 p Matheson and Trotts case 293 p Martingale and Andrews case 319 p L. Mortdant and Vaux case 330 p Mordants case 207 p Manning and Andrews case 345 p Maunser and Annesleys case 374 p Mayor of Lynns case 404 p Maidwel and Andrews case 429 p Marshes case 433 p Mitchel and Hares case 452 p Marshes case 459 p Marbery and Worrels case 466 p N. LOrd Norris and Braybrooks case 28 p Nash and Edwards case 155 p Nash and Mollins case 325 p Norwood and Dennis case 455 p O. OLdfeild and Wilmers case 194 p Osbon and Kirtons case 258 p Offley and Sattingstons case 321 p Ognel and Underwoods case 339 p Ognel and Sheriffs of London 374 p Oglethorp and Hides case 430 p P. LOrd Paget and Sir Walter Ashtons case 4 p Lord Paget and the Bishop of Coventries case 9 p Punsany and Leaders case 14 p Parmort and Griffins case 47 p Partridge and Patridges case 48 p Pendleton and Gunstons case 60 p Potter and Steddals case 66 p Parson of Facknams case 67 p Prowse and Caries case 131 p Pearl and Edwards case 134 p Pawlet and Lawrences case 138 p Peirce and Leversuches case 163 p Page and Jordans case 165 p Piers and Hoes case 171 p Pierce and Howes case 179 p Palmer and Smalebrooks case 180 p Provost of Queens Colledge case 183 p Park and Mosses case 200 p Pexhals case 156 p Palmer and Thorps case 239 p Palmer and Knowles case 247 p Petty and Trivilians case 276 p Pagets case 284 p Palmes and Bishop of Peterboroughs case 312 p Pet and Basdens case 318 p Page and Fawcets case 328 p Pendleton and Haw's case 175 p Pawley and Siers case 370 p Penruddock and Newmans case 378 p Perry and Alleins case 420 p Pett and Callys case 422 p Piggot and Harringtons case 445 p Q. QUeen and Lord Vaux case 49 p Queen and the Bishop of Londons case 50 p Queen and Middletons case 58 p Queen and Lewes and Greens case 162 p Queen and Bishop of Canterburies case 190 p Queen and Buckberds case 207 p Queen and the Bishop of Canterburie , and Fanes case 280 p Queen and the Bishop of Yorks Case 307 p Queen and Braybrooks case 364 p Queen and the Dean of Christchurch case 399 p R. REaresby and Rearesbies case 16 p Richards and Bertletts case 23 p Rumney and Eves case 128 p Rivet and Rivets case 159 p Read and Nashes case 205 p Read and Johnsons case 217 p Rockwood and Rockwoods case 275 p Rigden and Palmers case 277 p Russel and Pratts case 278 p Randal and Browns case 339 p Russell and Handfords case 368 p Rotchesters case 380 p Rolston and Chambers case 382 p Ruddoll and Millers case 409 p Rawlins case 416 p Rider and Cobbams case 447 p S. STonely and Bracebridges case 10 p Sutton and Dowses case 13 p Smith and Peazes case 21 p Stacie and Carters case 30 p Lord Sturtons case 33 p Searches case 93 p Smith and Kirfoots case 97 p Savell and Woods case 122 p Sulhard and Everets case 126 p Stebbs and Goodlacks case 127 p Saint John and Pettits case 129 p Staffords case 151 p Samford and Wards case 152 p Stamp and Hutchins case 153 p Stone and Withypolls case 156 p Smith and Smiths case 159 p Stretton and Taylors case 161 p Skipwiths case 163 p Severen and Clarks case 164 p Leonard Sturtons case 171 p Stransham and Medcalfes case 177 p Stephens case 188 p Smith and Bustards case 198 p Schollers of All-souls and Tamworths case 212 p Seaman and Brownings case 223 p Slywright and Pages case 231 p Sames and Paines case 233 p Salloway and Lusons case 236 p Smith and Lanes case 237 p Sherly and Albanies case 240 p Sweeper and Randalls case 250 p Slugge and the Bishop of Landaffs case 255 p Smith and Edmunds case 291 p Steed and Courtneys case 265 p Smalwood and the Bishop of Lichfeilds case 284 p Sutton and Hallowaies case 286 p Somes case 297 p Sheldens case 326 p Sly and Mordants case 333 p Strait and Braggs case 338 p Sherewood and Nonnes case 339 p Sybthorp and Turners case 206 p Smith and Hitchcocks case 340 p Shaw and Nortons case 362 p Lord Staffords case 396 p Short and Shorts case 389 p Southcotes case 395 p Symms and Westcotes case 410 p Stile and Millers case 411 p Scovel and Cavells case . 446 p Stevensons case 457 p Sovers case 461 p Sutton and Danses case 467 p T. TReshams case 11 p Tringe and Lewes case 20 p Taylor and Moores case 41 p Troublefield and Troublefields case 46 p Tacker and Elmers case 90 p Toff and Tompkins case 172 p Tempest and Mallets case 246 p Thetford and Thetfords case 274 p Thetford and Thetfords case 283 p Tillocks and Holts case 323 p Trupenies case 330 p Thomas and Wards case 331 p Tedcastel and Halliwells case 344 p Tooly and Prestons case 406 p Trivilians case 414 p Tracy and Ives case 431 p Trussels case 460 p U. VPton and Wells case 202 p Vandrink and Archers case 304 p Vaughan and Alcocks case 305 p Underhil and Savoyes case 442 p W. WAde and Bemboes case 3 p Withy and Sanders case 29 p Wates and Jourdains case 37 p Watkins and Astwichs case 43 p Wilshalge and Davidges case 52 p Wood and Fosters case 54 p Walker and Nevills case 71 p Wiseman and Wisemans case 73 p Wakefords case 135 p Wilks and Prestons case 140 p Wheeler and Twogoods case 160 p Waynemans case 172 p Wignal and Brookes case 177 p Wooden and Hazells case 184 p Ward and Blunts case 197 p Wright and the Bishop of Norwiches case 218 p Whisker and Cleytons Case 219 p Ward and Blunts case 251 p Weston and Grendons case 255 p Woodshaw and Fulmerstons case 262 p Windham and Sir Edward Cleeres case 263 p Wickes and Dennis case 271 p Walgrave and Ogdens case 305 p Ward and Knights case 315 p Wiseman and Waringers case 339 p Weston and Garnons case 343 p Willis and Crosbies case 373 p Williams and Blowers case 402 p Walpoole and Kings case 407 p Wiggot and Clarks case 419 p Wangford and Sectons case 423 p Wilmer and Oldfeilds case 424 p Wolman and Fies case 449 p Willis and Whitewoods case 454 p Wade and Presthalls case 466 p Wharton and Morleys case 467 p Walgrave and Agars case 469 p Z. ZOuch and Bamfeilds case 102 p
REPORTS AND Cases of Law , Argued and Adjudged in the Time of Queen Elizabeth , From the twenty fourth to the three and thirtieth year of Her Reign .
I. Borneford and Packingtons Case . Hill. 25. Eliz. in the Kings Bench.

IN Trespas , It was found by special verdict , Custom of Free-Bench . That the Defendant was seised of the Manor of B. whereof the place where is parcel , demised and demiseable by Copy , &c. And that B. the Granfather of the Plaintiff was seised of the place where , &c. according to the custom of the said Manor , in Fee-simple , and that within the said Manor there is this Custom , That if any Copy-holder dieth seised , his Wife over-living him shall hold all the Land during her Widowhood as Free-bench , and shall be admitted Tenant to the Lord , 2 Brownl 21. and that the Heir shall not be admitted to it during the life of his Mother : And found also another Custom within the said Manor , That if any Copy-holder be convicted of Felony , and the same be presented by the Homage , that then the Lord might seize , &c. And it was further found , that the Grandfather of the Plaintiff took a Wife , and died seised , having issue A. Father of the Plaintiff . The Wife is admitted to her Free-bench , A. is convicted of Felony , and that is presented by the Homage ; and afterwards A. died , after which the Wife died , &c. It was argued by Atkinson , that A. is not within the danger of this Custom , for during the life of his Mother , who by a Claimer is Tenant to the Lord , and admitted to it , she is Copy-holder ; and it is not like to the Case lately adjudged of possessio fratris , without admittance , for there the party was admittable , and so he was not here : And also it appeareth by the Custom as it is found , That the Lord upon such matter shall seize , and therefore we ought to make construction that this Custom doth not extend to Cases where the Lord cannot seize ; but in the Case at Bar , the Lord cannot seize by reason of this Free-bench ; And we ought not by any construction to extend a Custom beyond the words in which it is conceived , but it shall be taken strictly , and not be supplyed by Equity with a Custom in the place of a Seisure . But notwithstanding all this , afterwards Iudgment was given against the Plaintiff .

II. Hill. 25 Eliz. in the Kings Bench.

A Copy-holder doth surrender to the use of one A. upon trust , that he shall hold the said Land until he hath levyed certain monies , and that afterwards he shall surrender to the use of B ; the monies are levyed , A. is required to make surrender to the use of B. he refuseth , B. exhibits a Bill to the Lord of the Mannor against the said A. who upon hearing of the Cause decrees against A. that he shall surrender ; he refuseth , now the Lord may seize , and admit B. to the Copy-hold , for he in such Cases is Chancellor in his own Court , per totam Curiam .

III. Wade and Bemboes Case . Hill. 25. Eliz. in the Kings Bench.

IN a Writ of Error by Wade against Bembo upon a Iudgment given in the Court of the City of Bristol , the Case was , That Bembo was Plaintiff in the said Court against Wade in an Action of Covenant , and declared of a Covenant made by word by the Testator of Wade with Bembo ; and declared also , that within the said City there is a Custom , That Conventio ore tenus facta , shall bind the Covenantor as strongly as if it were made by writing : And it was holden by the Court , that that Custom doth not warrant this Action , for the Covenant binds by the Custom the Covenantor , but doth not extend to his Executors , and a Custom shall be taken strictly , and therefore the Iudgment was reversed .

IV. The Lord Paget and Sir Walter Ashtons Case . 25 Pasch. 25. Eliz. in the Kings Bench ,

THe Lord Paget brought an Action of Trespass against Sir Walter Ashton , who justified because he is seised of three Messuages to him and his Heirs , and that he and all those whose estate he hath , &c. have had the Woodwardship of the Forrest of C. within which , the place where , &c. and also have had within the said Forrest Estovers without number : And that one Rowland Bishop of Coventry and Lichfield was seised of the Forrest aforesaid in the right of his Church , and by Indenture betwixt him and Sir Edw. Ashton his Ancestor , whose Heir he is , setting forth that divers debates had been betwixt the said parties concerning some profits within the said Forrest ; It was agreed betwixt them , that the said Sir Ed. Ashton should release unto the said Rowland all his right in the said Office and Estovers , and that the said Rowland shoud grant de novo unto the said Edw. and his Heirs the said Office , and one hundred loads of Estovers per annum out of the said Forrest : After which the said Ed. according to the said agreement , did release to the said Bishop ut supra , after which the said Bishop by Indenture reciting the said former Convenants in compl . Indenturae praedict. Convent . did grant to the said Sir Ed. the said Office and Estovers pro easiamento dicti Edwardi , & haered. suorum by assignment of the Officers of the said Forrest ; and if the assignment he not made within ten days after request , that then the said Ed. and his Heirs should cut dow wood where they pleased ; and averred , the things released were of as great value as the things granted : And upon this matter the Plaintiff did demurr in Law , and it was adjuded for the Plaintiff , for here no Inheritance in the things granted passed to the said Sir Ed. but only an Interest for his own life ; 1. Inst. 148. a. 398. b. ib. Dy. 253. 1 Cro. 644. for the grant was to Sir Ed. only without the word , Heirs ; and the reference to the Indentures , by which the Bishop hath covenanted to grant the Inheritance , nor the words in the grant imply an estate in Fee , s. pro easimento dict. Ed. & haered. suorum , and that in default of Assignment it should be lawful for Sir Ed. and his Heirs , shall not supply the defect of the words in the grant .

V. Gilbert and Sir George Harts Case . Mich. 25 and 26 Eliz. in the Kings Bench.

GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent , and declared , Escape . 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution , &c. And the Case was , That the said A. was taken in Execution in the time of the old Sheriff , and escaped also then : and afterwards the Defendant being Sheriff , the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid , upon which Execution was awarded by default , and thereupon issued a Capias ad satisfaciendum , by which A. was taken , and escaped : And by the opinion of all the Iustices , the Defendant in this Case shall be charged ; for notwithstanding that A. was once in Execution , which was determined by escape in the time of the old Sheriff , yet when Execution was now awarded against him upon his default in the Scire facias , the same shall bind the Sheriff out of whose custody he escaped .

VI. Moor and Farrands Case . Mich. 25 and 26 Eliz. in the Common Pleas.

MOore leased Lands to Farrand upon condition that he , 1. Cro. 26. Condition where shall not bind Administrators . 1. Anders . 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor ; Farrand died intestate , his Wife took Letters of Administration , and aliened without leave , and by Periam Iustice , she is not within the penalty of the Condition , for the Administrator is not meerly in by the party , but by the Ordinary : And by Meade and Periam , If a Lease for years upon such a Condition be extended upon a Recognisance , the same is not an alienation against the Condition : But if feme lessee for years upon such Condition taketh a Husband and dieth , the Husband is within the danger of the Condition , for he is Assignee : If the King grant to a Subject bona & catalla felonum , and the lessor for years upon such a Condition be out-lawed , upon which the Patentee enters , Now by Periam the Patentee is not bound by the Condition . Meade contrary , for the Condition shall go with the Land .

VII . Maynyes Case . Mich. 25 and 26 Eliz. in the Exechequer .

MAyney seised of Lands in Fee , took a Wife , Co. 1. Inst 41. ● . made a Feoffment to a stranger , committeth Treason , and thereof is attainted , and hath a Charter of Pardon and dieth . It was moved by Plowden in the Exchequer , if the Wife of Mayney shall have Dower against the Feoffee : Dower . Manwood Chief Baron , by reason of this Attainder Dower cannot accrue to the Wife , for her title begins by the Enter-marriage , and ought to continue and be consummated by the death of the Husband , which cannot be in this Case ; for the Attainder of the Husband hath interrupted it , as in the Case of Elopement : Attainder where an Estoppel . And this Attainder is an universal Estoppel , and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs , but every stranger may bar her of her Dower by reason thereof ; for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance ; and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates , 4. Ma. Dyer . 140. and the Pardon doth not help the matter , for the same extends but to the life of the Offender , but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force : See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag. 49.

8 Mich. 25 , and 26 Eliz. in the Exchequer .

4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz. IN the Exchequer it was found by special verdict , That the Guardians and Chanons Regular of Otlery , were seised of the Mannor of O , &c. and that 22 H 7. at a Court holden there , granted the Lands in question to W. and W. his Son for their lives by Copy , according to the Custom of the said Mannor , and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the ancient and accustomed Rent , and afterward surrendred their Colledge , &c. and afterward W. and W. dyed : And if that Lease so made during the customary estate for life , notwithstanding the Statute of 31 H 8. be good or not , was the Question , being within a year before the surrender , &c. It was argued by Egerton Sollicitor , that the said Lease is void by the Statute ; the words of which are ( whereof or in the which any estate or interest for term of life , year , or years , at the time of the making of any such Lease , had his being or continuance , and was not then determined finished , or expired ) and therefore we are to see , if that right or possession which W. had at the time of the making of the Lease were an interest , or an estate for life : And as to this word ( estate ) it is nothing else than measure of time , for an estate in Fee-simple is as much as to say , an interest in the Lands for ever , and the like of other estates , and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised : And although such customary Tenants are termed in Law Tenants at will , yet they are not simply so , nor meerly Tenants at will , but only Tenants at will , secundum Consuetudinem Manerii , Copy-holde●● Interest . which Custom warrants his possession here for his life , and therefore it is a more certain estate than an estate at will , for the Copyholder may justifie against his Lord , so cannot a Tenant at will , whose estate is determined at the will and pleasure of his Lessor : And although this estate is but by Custom , and by no Conveyance the estate is raised ; it is as material , so as it be an estate : and this estate being supported by Custom is known in Law an estate and so accounted in Law ; and the Law hath notably distinguished Copy-hold Tenancies by Custom , and Tenancies at will by the Common Law ; for a Copy-holder shall do Fealty , shall have aid of his Lord in an Action of Trespass , shall have and maintain an Action of Trespass against his Lord , his Wife shall be indowed , the Husband shall be Tenant by the Curtesie without new admittance : and it was adjudged in the Common Pleas , 8. Eliz. That if a Copy-holder surrender to the use of another for years , the Lessee dieth , his Executors shall have the residue of the Term without any admittance , M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture warranted by the Custom , it was adjudged that the Lessees should maintain Ejectione firm . although it was objected , that if it were so , then if the Plaintiff doth recover , Post 16 2 Len. 119. he should have Habere facias possessionem ; and then Copyholds should be ordered by the Laws of the Land , 10 Eliz. Lord and Copy-holder for life , the Lord grants a Rent-charge out of the Mannor , whereof the Copy-hold is parcel , the Copy-holder surrenders to the use of A. who is admitted accordingly , he shall not hold it charged , but if the Copy-holder dieth so that his estate is determined , and the Lord granteth to a stranger de novo to hold the said Lands by Copy , this new Tenant shall hold the Land charged : and so was it rated and adjudged in the Common Pleas. It was adjorned .

IX . The Lord Paget and the Bishop of Coventry and Leichfields Case . Mich. 25. & 26 Eliz. in the Kings Bench.

THE Bishop of Coventry and Leichfield was endicted of Trespass in the County of Srafford , Endictment . of breaking and entring of the Close of Thomas Lord Paget , called the Vineyard ; Challenge . the Bishop traversed the Endictment , and at the day of appearance of the Iury , the Bishop challenged the Array , because that he being a Peer of Parliament , no Knight was returned , &c. Vpon which challenge the Queens Counsel did demur in Law , but at last , for expedition , &c. the Court delivered to the Councel of the Bishop , a Bill sealed to save him the advantage of the said challenge : And the Enquest was taken , de bene esse , who found , that one A. by the Commandment of the Bishop entred into the said Close called the Vineyard , being then in the occupation of one B. at will , of the said Lord Paget , and did the Trespass , viz. digged a Turff there , and there left it , and so departed . The matter of challenge was many times argued , and it was argued against the said challenge , because that the King is party , against whom no Lord of Parliament shall have such Prerogative . To which it was answered on the other side , that so much the rather the challenge lyeth in the Case , for where a Peer of the Parliament is to be tryed upon an Endictment of Treason or Felony , it shall be per pares ; if upon appeal of Murder , or Felony by ordinary tryal , See 33. H. 8. Br. Tryal 42 and Br. Enquest , 49. It was said on the Plantiffs side , that here the Bishop is quodam modo , and the Venire facias issued at his own Sute , and therfore the mismaking of the Pannell is his own fault ; But by Gaudy Iustice , the Venire facias in this Case is reputed in Law , the Sute of the Queen , notwithstanding that the parry endicted for his expedition , doth pay the Fees for the Process , for that the Clarks of the Court have encroached for their gain , for otherwise there should be none paid by the Queen ; and by the better opinion of the Court , the challenge was holden good . Another matter was moved , because the Endictment is ( clausum Domini Paget ) and it appeareth by the Verdict , that the said close at the time of the Trespass was in the occupation of B. at the will of the Lord Paget : for the Lord Paget cannot have an Action of Trespass against the said Bishop , or the said A. upon the matter ; and by Wray , the Lord Paget cannot have Trespass , Quare clausum fregit & intravit upon this matter ; but for digging upon the Land , demised , or cutting of Trees , an Action lyeth , 19 H. 6. Tit. Trespass , 36. But here the Endictment is , that one F. entred by the commandment of the Bishop , upon which matter no Action lyeth against the Bishop , by the Lord Paget , and especially in this case where the said A. did not carry away the said Turff from thence . But by Wray ; notwithstanding that the Action of Trespass doth not lye for the Lessor , yet it is well enough by way of Endictment . Another exception was taken to the Endictment , because it is alleadged , 2 Len. 183. that A. by Commandment of the Bishop entred , and did the Trespass , and no place is shewed where the commandment was , and for this cause the Bishop was discharged .

X. Stonley , and Bracebridges Case . Mich. 25 & 26 Eliz. in the Kings Bench.

IN Ejectione firmae , by Stonley against Bracebridge , the case was , P●o. Com. 417. 418. Thomas Bracebridge Father of the Defendant was seised of the Mannor of Kingsbury , to him and to the heirs males of his body , and 32 H. 8. Leased a Field called Stalling , parcell of the said Mannor , to Tho. Coke for years , and afterwards , 4 E. 6. Leased the said Field ( the first Lease being in esse ) to Sir Geo. Griffith for seventy years , who assigned the same to A. Bracebridge Brother of the Lessor , and to Joyce Wife of the Lessor , and afterwards , 5 E 6. the said Tho. Bracebridge , the Lessor , by his Deed Indented , gave the said Mannor to the said Sir George by these words ( dedi , concessi , barganizavi , & vendidi ) Proviso , and upon condition , That the said Sir George , should pay to the said Thomas Bracebridge , within fifteen days after , ten hundred pounds , and if he fail of payment thereof , that then after the said fifteen days , the said Sir George should be seised of a Tenement , parcel of the said Mannor of the yearly value of three pounds ( now of sate in the occupation of Thomas Smith ) to the use of the said Thomas Bracebridge for his life , and after to the said Sir George , until he had levyed five hundred pounds for the payment of the debts , and the education of the children of the said Thomas Bracebridge , and after to the use of the Defendant in tail : And of the residue of the said Mannor , to the use of the said Tho. Bracebridge , and of the said Joyce his Wife for their lives , &c. Tho. Bracebridge , made livery to the said Sir George , in one place parcel of the said Mannor , which was in his own occupation in the name of the whole Mannor : the fifteen days incur without payment of the said ten hundred pounds , the Indenture is enroled , Coke attorns , Joyce dyes , Tho. Bracebridge grants the Lands to a stranger by Fine , and before Proclamations , Thomas his Son and Heir apparent , within age , enters in the name of the Feoffees by reason of the forfeiture , Proclamations are made , Tho. Bracebridge the Father dyeth , the Term of Coke expireth , A. enters , and leaseth to the Plantiff , who enters , upon whom Tho. Bracebridge the Son enters , upon which Entry the Action is brought , it was argued by Beamount the elder : Although here in the Indenture of bargain and sale , there is not an express consideration set down in the common form of a consideration , yet because the consideration is implied in the condition , it is good enough ( see the Proviso and condition , ut supra , that the said Sir George should pay , &c. ) As if I bargain and sell to you my Land , Proviso that you pay to me for the same at such a day one hundred pounds , that consideration set down in the form of a condition is as effectual , as if it had been formally expressed in the usual Terms . As to the second payment , Where a man bargains and sells his Lands by Deed indented to be enroled , and before enrolment he makes Livery to the Bargainee , and afterwards the Indentur is enroled , the Court discharged Beamount from the arguing of that Point , Live●y , where it prevents operation of an Enrolment . for by Wray , the Livery doth prevent the operation of the Enrolment , and Sir George shall be accounted in by the Livery , and not by the bargain and sale ; for Livery is of more worth , and more worthy ceremony to pass estates , and therefore shall be preferred : and then the Livery being made in such part of the Mannor , which was in the possession of the Feoffor in the name of the whole Mannor , no more of the Mannor passeth but that which was then in the possession of the Feoffor : And the Reversion of such part of the Mannor which was in Lease shall not pass without Attornment , but when the Enrolment cometh , now the whole passeth , and then the Reversion being setled by the Enrolment , the Attornment coming afterwards hath no relation : See 48 E. 3. 15 , 16. The Iury here have found the default of payment , whereby the conditional use which passed by the bargain and sale , upon the condition broken , shall be reduced to the Bargainor without any Entry , 1. Cro. 382. and then the uses limited after are void , for an use limited upon an use cannot rise ; quod fuit concessum per totam curiam : Then Bracebridge the Father , having the Inheritance of the said Mannor in his own right , and the interest de futuro for years in the right of his Wife joyntly with the said A. when he sells the said Mannor by Deed indented and enroled now thereby the interest for years which he hath in the Right of his Wife doth not pass , for a bargain and sale is not so strong a conveyance as a Livery . As if I have a Rent-charge in the right of my Wife , out of the Manor of D. which Manor afterwards I purchase , and afterwards by Deed indented and enroled , I bargain and sell the said Manor , &c. the Rent shall not pass . Then the said Thomas Bracebridge the Father having the said Right of an entail to him and to the Heirs Males of his body , and being Tenant for life , by his own conveyance , the Remainder in tail to his Son and Heir apparent , the now Defendant , when he levyeth a Fine , and the Son enters for forfeiture before Proclamations pass , and his Father dyeth , in that case the Defendant is not remitted unto the first entail , although after Proclamations pass in the life of the Father , and so he shall not avoid the Leases ; for notwithstanding that the Issue in tail by that Entry hath defeated the possession which passed by the Fine , yet as to the right of the old entail , the Fine doth retain its force , and so he entred , quodam modo , in assurance of the Fine : As if Tenant in tail doth discontinue and disseiseth the Discontinuee , and levieth a Fine with Proclamations , and the Discontinuee enters within the five years , now although the Fine as to the Discontinuee be avoided , so as the possession which passed by the Fine is defeated , yet the right of the entail doth continue bound : Egerton Solicitor contrary : and he conceived , that all the Mannor doth pass by the Livery to Sir George , and nothing of it by the Enrolment , and that the meaning of the parties was , that all should pass by the Livery , for if the assurance should enure by the bargain and sale , then the second uses limited upon default of payment , should never rise ; for an use upon an use cannot rise , and then the said uses limited for the payment of the debts of the Feoffor , &c. should be defeated ; and also where at the begining of the assurance , the condition was entire , the warranty entire , &c. and if such construction should be allowed , here shall be a divided condition , a divided warranty : And also the meaning of the parties that the whole Mannor should pass , by such construction should be dismembred , and part pass by the Livery , and part by the bargain and sale , and we ought to make such constructions of Deeds , that things may pass by them according to the meanings of the parties ; as if I be seised of a Mannor to which and Advowson is appendant , and I make a Deed of Feoffment of the same Mannor , cum pertinencijs , and deliver the Deed to the party , but no Livery of seisin is had , the Advowson shall not pass , for then it should be in gross , whereas the meaning of the parties was , that it should pass as appendant , and that in such case cannot be , for there is no Livery , therefore it shall not pass at all , and so it hath been adjudged : So if I bargain and sell my Mannor of D. and all the Trees in the same , and I deliver the Deed , but it is not enrolled , the Trees shall not pass , for the intent of the parties was , that the Trees should pass , as parcel of the Free-hold and not as Chattels . And as to the remitter , I conceive , that the Heir entring as Heir , by the Law is remitted , but where the Entry is given by a special Statute , there the Entry shall not enure further than the words of the Statute ; As Land is given to the Husband and Wife , and to the Heirs of the body of the Husband , the Husband levieth a Fine and dieth , the wife entreth , this Entry shall not avail to the issue in tail , for the Entry is given to the Wife by a special Law : And he cited Sir Richard Haddons Case , the Husband aliened the Lands of his Wife , they are divorced , the Husband dieth , the Wife shall not enter by 32. H. 8. but is put to her Writ of Cui in vita ante divor . And afterwards the same Term the Iustices having considered of the Case , delivered their opinions upon the matters by Wray chief Iustice , viz. That the one moyety of the Lease was extinct by the Livery , viz. the moyety of Ioyce the Wife of the Lessor ; and as to the other moyety it is in being , for here is no remitter ; for if any remitter had been in the Case , it should be after the use raised , which is not as yet raised , for the Land ought to remain in Sir George until the said five hundred pounds be levyed , and that is not found by the Verdict , and therefore for the said moyety , the Plaintiff had Iudgment .

XI . Treshams Case . Mich 25 & 26 Eliz. in the Exchequer .

SIR John Tresham seised of the Manor of D. holden of the King in Capite by Knights service , 4 H. 7. enfeoffed Edmund Earl of Wilts and N. Vaux Knight , who gave the said Manor to the said Sir John in tail , upon condition that he should not alien , &c. quo minus , &c. John Tresham dyed seised , by whose decease the Manor descended to Tho. Tresham , who entred , 2 Len. 55 , 56. and 18 H. 8. aliened with licence , by recovery , &c. N. Vaux the surviving Feoffee died , having issue W. Lord Vaux ; the purchasor died seised , his Son and Heir 14 Eliz. levied a Fine Sur Conusans de droit , &c. and that Fine was levied to the use of the Conusee , &c. and that without licence : The Lord Vaux within five years after the Fine levied , entred for the condition broken : and now issued forth a Scire facias against the Conusee for that alienation without licence , who made default , whereupon issued process to seize the Lands ; whereupon came Sir Tho. Tresham , Fine for Alienation without Licence . and shewed the whole matter aforesaid , and prayed to be discharged . It was said , that this Prerogative to have a Fine for alienation without licence , had lately beginning upon the original creation of Seignories , so as this prerogative is as it were paramount the Seignory , and shall go paramount the Condition , as well as the Condition is paramount the Alienation , but if the disseisor of the Tenant of the King maketh a Feoffment in Fee , now upon the entry of the disseisee , the person of the Feoffee shall be charged with a Fine , but the Land by the re-entry of the disseisee is discharged : and such is the opinion of the Lord Frowick , in his Reading upon the Statute of Prerogativa Regis , and the reason is , because the disseisor is not Tenant to the King , and so when he aliens , it cannot be said an Alienation by the Kings Tenant . See 45 E. 3. 6. If the Tenant of the King in chief seaseth for life with licence , and afterwards grants the Reversion over without licence , Entry for Condition , what acts it shall defeat . the Tenant for life is not bound to atturn in a Quid juris clamat ; wherfore it seems , that if such Tenant doth attorn , the King shall seize presently . This Entry for the Condition broken is not to have so violent a retrospect to the first livery to which the Condition was annexed , that it shall defeat all things mean between the Creation and the breach of the Condition , but it shall defeat all mean things which rise upon the act of the party , as Rent , Dower , &c. But charges which accrue by reason of Tenure , do remain , notwithstanding the Entry for the Condition broken : As if such a Tenant of the King maketh a Feoffment in Fee upon condition , which is broken , the Feoffee dieth seised , his Heir of full age , the Feoffor re-entereth , this re-entry by force of the condition broken hath not so avoided the descent , but the King shall have Relief upon the said descent , for the Relief is paramount the Livery , and the condition . So if a Feoffee upon condition disclaim in Avowry , Condition shall not avoid an Interest vested . by which the Lord brings a Writ of Right Sur Disclaimer , and hath Iudgment ; the Feoffee entreth for the condition broken , the said re-entry shall not avoid the interest of the Lord by the Iudgment on the Writ of Disclaimer , but he may enter at his pleasure ; and it was moved by Plowden who argued for Tresham , that if the Tenant of the King , being Non Compos mentis , makes a Feoffment in Fee , and dieth , his Heir entring upon the Feoffee shall not pay a Fine for the Alienation of his Father , but the person of the Father shall be charged with it . And at the end of this Term , after many Arguments and Motions , Iudgment was given for the Queen , that she should seize the Land and hold the same for the Fine , and that she should not be driven to sue the person of the Feoffee or Conusee : And by Manwood chief Baron , at the Commom Law in many Manors , Tenant in soccage upon every alienation shall pay a Fine , nomine relevii , a fortiori , in the Kings case , and therefore he was of opinion , That this Prerogative to have a Fine for alienation without licence is by the common Law , and not by any Statute .

XII . Caters Case . Mich. 25 and 26 Eliz. in the Exchequer Chamber .

A Bill of Intrusion was in the Exchequer against Cater , Intrusion . 7 Co. 12. 1 Anders . 95. who pleaded the Grant of the Queen , the Plaintiff replicando said , that before the Queen had any thing , &c. Sir Francis Englefield was seised of the Manor , of which , &c. and he being beyond the Seas , the Queen sent her Letters under the Privy Seal , Quod ipse in fide , & legeantiâ quâ dictae Reginae tenebatur , indirecte rediret in Angliam , praedict. tamen Franciscus ( spretis mandatis dict. Reginae ) venire recusavit , for which a Certificate was by the said Queen into the Chancery , Quod dictus Franciscus in portibus transmarinis sine licentia dict. Reginae remansit : And thereupon a Commission was awarded to seize the Lands of the said Sir Francis , which was entred in the Replication in haec verba , reciting also the Queens Privy Seal , and that the said Sir Francis did stay there ( spretis mandatis , &c. ) for which the Queen seised and granted to the Plaintiff : And afterwards the Statutes of 13 and 14. Eliz. were made : after which the said grant was made to the Defendant , upon which matter there was a Demurrer and Iudgment given for the Plaintiff . Error . And now Cater brought a Writ of Error in the Exchequer Chamber , and it was first assigned for Error , because that the Record is entred Inter Johannem Cater present . hic in Curia by I.S. Attornatum suum , and that cannot be , for it is oppositum in objecto , that one can be present in Court and also by Attorney , simul & semel , for the Attorney is to supply the default of the personal presence . To which it was said by Wray , Anderson and Periam , that the matter assigned was no Error , for there are many Presidents in the Exchequer of such Entries , which were openly shewed in Court. 48 E 3. 10. R 2. 20 H 7. 20 H 8. And by Manwood chief Baron it is not so absurd an Entry as it hath been objected , for if one hath an Attorney of Record in the Kings Bench , and he himself is in the Marshalsey , there is an Action against him , he is present as Prisoner , and also by Attorney ; and by them , notwithstanding that here appeareth a contrariety , for such Entry properly is ( presentem hic in Curia in propriâ persona sua ) yet because many proceedings are according , it is the more safe course to follow them , for if this Iudgment be reversed for this cause , many Records should be also reversed , which should be very perillous : An other Error was assigned , because it is not alledged in the Replication , of what date the Privy Seal was , nor that any notice of the said Privy Seal was given to Sir Francis ; to which it was said , that the Privy Seal need not any date , especially in this case , for the matters which are under the Privy Seal are not issuable . See 2 Eliz. Dyer . 177. Privy Seal . nor any traverse can be taken to it ; and this Privy Seal is not as other Writs and Praecipes are , returnable in any Court , but the Queen her self from whom originally it came shall receive it , and also the Message upon it , and she her self in such case is Iudge of the contempt , and no Record of that Privy Seal doth remain in any Court , but the Queen her self shall keep it , and then when the Queen is informed of the contempt , she makes a Warrant somtimes to the Chancellor to award a Commission , somtimes to the Treasurer and Barons of the Exchequer to the same purpose to seize the Lands , and that Warrant is signed , with the Seal manual of the Queen , and the Queen may certifie , and set down the cause of such seizure in such Warrant , and no other Certificate is made by the Queen , and the Queen may certify the same Commission by word of mouth , and if the other party will say that the Queen hath not certified it , he shall be concluded by the commission which is under the great Seal ; and diverse Prsidents were shewed openly in Court to that effect . And all the matter aforesaid , was agreed by the Chancellor , Treasurer , and the said Iustices , and no certificate at all needs to be in the Case , and then a superfluous Certificate being nought , shall not hurt : for Nugation is surplusage . Another matter was to consider , what interest the Queen hath in the Lands of Fugitives by the common Law ; And as to that they were all clear of opinion , Fugitives . that the Queen in such case as aforesaid may seize , and assign her interest over : And that such Assignees may grant Copy-holds , parcel of the Manor assigned , which grants shall bind him who cometh in after , cum manus Domini regis amoventur ; and also when the Statutes of 13 and 14 Eliz. come , Dy. 375 b. the Statutes do not amend the estate of the Queen , but the estate of the Queen doth continue as before , and all the Estates under it . And there was shewed unto the Court divers Presidents of seizures in such Cases , 18 E 2. Edmond de Woodstock , Earl of Kent , went beyond Sea without Licence of the King , and he went with Robert de Mortimer , and the King did certifie the same into the Chancery , reciting that he had sent his Privy Seal , &c. but that the said Edmond ( spretis mandatis nostris redire recusavit ) upon which issued a commission to seize , &c. And it was holden that the Queen having seised by force of the common Law , and making a grant of a Copy-hold out of it , now when the Statutes of 13 & 14 Eliz. are made , she hath not any estate thereby , for she had such interest before , and this new seisure after the Statutes works nothing , and nothing accrues to her thereby , whereof she can make a seisure : For she hath departed with the whole before , See 23 Eliz. Dyer 376. And note , that the grant of the Queen in the case at Bar was , quamdiu in manibus nostris fore contigerit . And afterwards Iudgment was given , that judicium praedictum in omnibus affirmetur .

XIII . Sutton , and Dowses Case . Ter. Mich. 25 & 26 Eliz. in the Common Pleas.

SUtton , Vicar of Longstoke , Libelled against Dowse in the spiritual Court , Tithes . and shewed in his Libel , that upon the Erection and Endowment of his Vicaridge , four quarters of Corn were assigned to the Vicar out of the Granary of the Prior of B. of the Tithes of the Parson of Longstoke , and that the Parson or Fermor of the said Rectory of Longstoke , had always paid the said four Quarters of Corn to the said Vicar and all his Predecessors , and alledged further , that the Lord Sands was seised of the said Rectory , and leased the Barn and Tithe-Corn parcel of the said Rectory , to the said Dowse , his Wife and Son , Habendum to Dowse for Term of his life , the Remainder to the Wife for Term of her life , the Remainder to the Son for life : And shewed further , that the said Dowse had covenanted with the said Lord Sands , to render the said four Quarters of Wheat to the Vicar and his Successors , upon which Dowse procured a Prohibition , and Sutton prayed a Consultation , and it was moved in stay of the Consultation that the Vicar had Libelled upon a Covenant wherein Dowse is taxed to pay the said Corn , and that is a lay Title , and determinable by the Law of the Land , and not in the Ecclesiastical Court : But as to that the opinion of the Court was , that the Libel is not grounded upon the covenant , as the sole Title to the said Corn against Dowse , but upon the Endowment of the Vicaridge , and the Lease by which Dowse is become Fermor of the Rectory . Another matter was moved , because that upon the Libel it appeareth , that the Lease aforesaid made by the Lord Sands was made to Dowse his Wife , and his Son , joyntly , in the Premisses , Habendum ut supra , in which case it was objected , that Dowse his Wife , and his Son , are all three Fermors of the said Barn and Tithes joyntly in possession , against all whom Sutton ought to have Libelled , &c. and not against Dowse only , for the Habendum hath not severed their estates which were joynt before , Co. 1 Iust. 783 l. qund tota curia negavit , for the Habendum hath severed the joynt estates limited by the Premisses , and hath distinguished it into Remainders , but if the Habendum had been Habendum successive , the estate had remained joynt : Another matter was moved , because it appeareth upon the Libel , that the Parson , or Fermor of the said Rectory ought to pay to the Vicar the said Corn , and also it appeareth upon the matter that Dowse is not Parson , nor Fermor of the said Rectory , for the Lord Sands had leased to Dowse and his Son , only the Barn and the Tith-Corn parcel of the said Rectory ; so as Dowse is Fermor but of parcel of the Rectory , and the residue of the Rectory doth remain in the Lord Sands , in which the said Sut. ought to have Libelled against the Lord Sands , and Dowse , and not against Dowse only ; And for that cause the Consultation was denyed . And in this case it was further agreed by the Court , that if upon a Libel in the spiritual Court , the Defendant makes a surmise in Banco to have a Prohibition , if such surmise be insufficient , the other party needeth not to demur upon it , and to have it entred upon Record , but as amicus Curiae , he shall shew the same to the Court , and the Court shall discharge him .

XIV . Punsany , and Leaders Case . Mich. 25 & 26 Eliz. In the Kings Bench.

OSmond Punsany brought an Action upon the case against Leader , and declared , Prescription of Foldage . that one Bedingfield was seised of the Manor of D. and that he and all those whose estate he hath in the said Manor time out of mind have had Libertatem Faldagij & cursum Ovium , in the Town of D. & pro meliori pasturatione omnium Ovium suorum , the Inhabitants of the said Town having any Lands within the said Town , every second year left their Lands to lye fresh and untilled , and prescribed further , that the Tenants of the Lands within the said Town might erect Herdals in in their Lands , with the Licence of the Lord of the said Manor , and not otherwise : and further declared , that the said Bedingfield had let to him the said Manor , and that the Defendant had erected Herdals upon his Lands without Licence , so as the profit of his Foldage is impaired by it : And all this matter was found by Verdict : And it was objected in stay of Iudgment , that the prescription is not good , for it is against Law and common right to abridge the Subject of the profits of his Lands : But the whole Court was clear of opinion , that the prescription is good enough , as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut , and v E. 1. Prescription , 55. A. seised of Lands may Plow it and Sow it , and cut and carry away the Corn , and afterwards when the Corn is carried , B. by prescription may have the said Land as his several , and the other who sowed it cannot meddle with that land , but to plow and sow it in season , &c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it , or to carry it away , nor have any profit but the Corn , and yet the Free-hold of the Land is in such person , &c. and that was holden a good Prescription , and a difference was taken by the Court , where one doth prescribe to take away the whole interest of the Owner of the Land , and where a particular profit is restrained : And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals , which is a reasonable prescription , See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there , that libera Falda is not any other , but to hav the Beasts of the Tenants to manure the lands of the Lord , &c. And afterwards Punsany the Plaintiff had Iudgment to recover .

XVI . Mich. 25 & 26 Eliz. at Serjeants Inn.

IN the Dutchy Chamber , the case was , that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster , rendring rent , with clause of re-entry , and that a lease was made to one Bunny ; It was found by Office that the Rent was arrear , and by another Office , that the Servant of the said Lessee , had tendred the rent in his absence , and by the commandment of his Master , and that afterwards one I. S. Receiver General of the Dutchy , received the said Rent , and had accounted for it , and upon his account it was allowed ; And this matter was opened at Serjeants Inn in Fleet-street , before Wray , Anderson , Manwood , Clench , Rhodes , Plowden , and Stanhop ; and it was argued by Shuttleworth , that in this case of rent reserved upon a Lease for years , made by the King of Dutchy-Land , The King not bound to demand Rent . the King is not bound to demand it , but he may for default of payment of it , re-enter without demand , and that the Lessee is tied to tender it at his peril , as well as if the Queen had been seised of the said land in the right of her Crown ; and as to that payment , the Statute of 1 H 4. is to be considered , by which it is enacted , that the possessions of the said Dutchy Taliter , & tali modo , & per tales officiarios & ministros in omnibus remaneant , deducantur , & gubernentur sicut remanere , deduci , & gubernari debuissent , si ad culmen Regis Dignitatis assumpti non fuissemus , and these words ought to be intended of things which concern the Lands themselves ; but this Act of demand is a personal thing , and concerns the person of the King , and toucheth the Majesty , and dignity of the King , and in all cases of the Dutchy the person of the King shall hold his priviledge , notwithstanding that the possession of the Land be carried in the course of a private person : And therefore if the Queen will alien Lands parcel of her Dutchy , she ought to make Livery , for now she meddles with the possession it self : but if the Queen will sue for parcel of her Dutchy , non omittas shall be in the Writ , for she cannot sue but as Queen , and the Queen hath such Prerogative , that none shall execute her Writs at her own sute , but the Officer of the Crown , 21 E 4. 60. for Livery , if it be not Land within the County Palatine , and for the residue , See 10 H. 4. 7. 3. Eliz. 216 , 217. Plowden , Lessee for years of Lands of the Dutchy , shall have aid of the King before Issue joyned , &c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine , to hold of him in Capite , the Feoffee shall hold it so , and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condition , and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy , and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee , and aliens , yet the Queen shall seise , and that hath been adjudged in the Exchequer Chamber ; and if the Queen make a Lease of such Land , and afterwards makes another Lease of the same Land without recital of the first Lease , it hath been adjudged that the second Lease is void . It was argued contrary by Beamount the younger , that this condition which goeth to the realty , to reduce the Land again , ought to be ordered and governed by the Queen , as it ought to be by a Subject ; and therefore , if the Queen will take advantage of this condition , she ought to make a Letter of Attorney under the Dutchy Seal , to her own Officer , authorizing him thereby to make demand of the said Rent , &c. And by Shuttleworth here be two Offices , the one contrary to the other , the best shall be taken for the Queen , 14 E 4. 5. in Skreens Case in the end of it : And if the Rent of the Kings Farmor be behind , now although that after the Receivor of the Dutchy doth receive it , yet the same doth not purge the forfeiture , as if the Bayliffs of a Manor receive rent of a new Feoffee , the same will not change the Avowry of the Lord without notice given to him , 41 E 3. 26. And if a Copy-hold escheat , the Steward without a special Warrant cannot grant it over de novo .

XVI . Rearsbie and Rearsbies Case Intrat . Trinit. 25 Eliz. rot. 746. Mich. 25 and 26 Eliz. in the Kings Bench.

REplevin by W. Rearsbie against A. Rearsbie , and L. Rearsbie , who avow the distress , because that one W. Vavasour was seised of the Manor of Deniby , whereof the place where , &c. is parcel in his Demesne as of Fee , and so seised gave the said Manor to one L. Rearsbie Father of the Plaintiff , and of the Avowants and Jane his Wife , and to the Heirs of Lyonel , who by his Will devised unto A. Rearsbie a Rent of four pounds out of the said Manor , with clause of distress , for his childs part , to be yearly paid , Lyonel the Father died 3 Eliz. and afterwards , 22 Eliz. Jane died , and for the arrearages of the said Rent encurred mean between the death of Loynel and Jane his Wife , &c. upon which Avowry the Plaintiff did demurr in Law , for the Rent doth not begin in effect , but after the death of the Wife of the Devisor , Construction of Devise . for such construction ought be made of the Devise , as not to charge the Inheritance with the whole arrearages , &c. and it was argued to the contrary , that the Defendant might well avow the distress for these arrearages ; for if he in the Reversion upon a Lease for life grant a Rent charge after the death of the Grantor , the Grantee shall distrein for all the arrearages encurred after the grant , etiam , during the life of the Grantor , Distress . quod Curia concessit : and it was said by the Council of the Avowant , that the Case at Bar is a stronger Case , for this Rent , as it appeareth by the words of the Devise , was devised to the Avowant for his livelihood , and for his childs part , which words imply a present advancement , and these words yearly to be paid are strong & pregnant to that intent . It was adjourned .

XVII . Hill. 25 Eliz. in the Kings Bench.

THe Earl of Northumberland brought debt upon arrearages of Accompt , the Defendant shewed that before the Accompt , Account . the Plaintiff of his own wrong did imprison the Defendant , and assigned Auditors to him being in prison , and so the Accompt was made by duress of imprisonment : And the same was holden a good Plea by all the Iustices of both the Benches . And Iudgment was given accordingly .

XVIII . Pasch. 26 Eliz. in the Kings Bench. Pasch. 26. Eliz. Forman and Bohans Case .

REplevin by Forman against Bohan , Replevin . the Defendant avowed for a Rent charge , and shewed , that one Wingfield was seised of the Manor of Wesham , whereof the place where , was parcel : And 33 H 6. made a Feoffment in Fee of the place where , &c. to one Orlow , rendring Rent and Sute at the Court of the said Manor , and that the said Wingfield was seised of the said Rent and Sute accordingly , and died thereof seised , and that the same descended to Anthony Wingfield as Son and Heir , 1 Cro. 39. &c. who was seised of the said Rent as parcel of the said Manor , and that the said Anthony , so seised of the said Manor and Rent , bargained and sold the said Manor and Rent , 26 H 8. to Nicholas Bohan Father of the Avowant , by these words ; Manerium de Wesham , & omnes omnimodos redditus , reputed , deemed , or adjudged part or parcel of the said Manor , who entred , and died seised , and the same descended to the now Avowant , as Son and Heir , &c. and averred , that the said Rent at the time of the bargain and sale aforesaid , & diu ante , was reputed parcel of the Manor aforesaid : Vpon which Avowry , the Plaintiff did demur in Law , and it was argued by Gawdy Serjeant for the Plaintiff , and he took an Exception to the Avowry , because the Avowant sheweth , that Anthony Wingfield 26. H 8. bargained and sold the said Manor to Bohan , Virtute Quar. bargaine & venditionis , & vigor . cujusdam Actus Parliamenti 27 H 8. de usibus , &c. the said Bohan was seised , &c. where he ought to have said ; by force of which bargain and sale the said Anthony Wingfield was seised of the said Manor aforesaid , to the use of the said Bohan , and that afterwards by reason of the said Statute of 27 H 8. the said Anthony then seised to the use aforesaid , the said Bohan was seised in his Demesne as of Fee : For it might be for any thing appearing in the Avowry , that before the said Statute of 27 H 8. Anthony Wingfield had made a conveyance upon consideration to him who had not notice of the use , so as the use being suspended , when the Statute came , it could not be executed , for there was not any seisin to the use , and to that purpose he cited the Case of 7 H 7. 3. where a gift of Trees by Cestuy que use is pleaded , without alledging that the Feoffors were seised to the use of the Donor at the time of the gift : To that Exception it was answered by Popham Attorney General , Averment . That there is a difference betwixt the Case at Bar , and the Case of 7 H 7. for where a man entitles himself by Cestuy que use , he ought to maintain such title by every necessary Circumstance , which the Law without expressing will not intend ; but where a man alledgeth a matter , which is but a conveyance , there needs no especial recital ; as if a man will pretend the grant of a Reversion , and that the lessee for years did attorn , he needs not to shew , that at the time of the Attornment the Grantor was seised , 1 Cro. 746. ●4● . &c. and he cited the Case of 10 E. 4. 18. In Trespass , the Plaintiff by way of Replication made to him a title , that A. was seised and leased to him at Will , by force of which the Plaintiff was possessed , until the Defendant did the Trespass , and Exception was taken to it , that the Plaintiff in his Replication had not averred , that A. was alive at the time of Trespass , and it was not allowed , for the subsequent words ( by force of which the Plaintiff was possessed until the Defendant did the Trespass ) do amount unto so much , for the Plaintiff could not be possessed by force of the said Lease at Will if A. were not alive . So here , Bohan could not be here seised by force of the said Statute , if the seisin of the use which was raised by the bargain and sale had not continued until the coming of the said Statute : As to the matter in Law , Gawdy conceived that the averment in the perclose of the Avowry is contrary to the matter of the Avowry , for the creation of the Rent set forth in the Avowry proves , that the Rent is not parcel of the Manor , but a Rent in gross , and then the general averment , that the Rent is parcel of the Manor , without shewing how , against the special matter of the Avowry , is not receivable . Reputation . And also nothing can be by reputation parcel of a Manor which in rei veritate cannot be parcel of a Mannor , but a Rent charge cannot be in rei veritate parcel of a Manor , ergo , nor by reputation : Popham contrary ; That the averment is not contrary to the matter of the Avowry , for the matter disclosed in the Avowry proves , that it is not rei veriate parcel of the Manor , but it doth not exclude Reputation , and the Averment doth not extend ad veritatem facti , which is set forth in the Avowry , but only to reputation , and so both stand together well enough : Rent charge parcel of a Manno● And that a Rent charge may be parcel of a Manor , see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case , where it is ruled , that title made to a Rent charge as parcel of a Manor is a good title , and the Assize awarded upon it , and in our Case the Reputation is enforced by the sute at the Court , which was also reserved upon the said Feoffment together with the said Rent , so as the intent of the parties to the Feoffment was , that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service , and so parcel of the Manor ; and as to the continuance of Reputation it sufficeth , if at the time of the bargain and sale aforesaid , which was 26 H 8. it was by many reputed parcel of the Manor , and he cited the Case of the Marquess of Winchester : The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor , and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment , that the Land then antea reputed parcel Manerii praedict . And because he did not shew certainly at what time the Land was reputed parcel of the Manor , Iudgment was given for the Queen ; for it might be for any thing in his Plea , that the said Land was reputed parcel of the said Manor before time of memory , which Reputation would not serve : but such Reputation ought to be within time of memory and understanding : He cited also the Case of the Earl of Leicester . King Edward the sixth seised of the Manor of Clibery , of which a Wood was parcel , granted the said Wood in Fee , which afterwards escheated to the King for Treason ; Queen Mary granted the said Wood to another in Fee , who granted it to the now Queen , who granted the said Manor & omnes boscos modo vel ante hac cognit . vel reputat . ut pars , membr . vel parcel . Maner . praedict. to the Earl of Leicester , and it was resolved in the Exchequer , that by that grant the said Wood did pass to the Earl , and Iudgment was given against the Queen , Dy. 362 ● . for it was part of the Manor in the time of E 6. at which time ( an t' hac ) without the word ( unquam ) shall be extended ad quoddamcunque tempus praeteritum . And Reputation needs not so ancient a Pedigree for to establish it ; for general acceptance will produce reputation : As the house of the Lord Treasurer now called Tibould was of late a private Manor , but now hath a new name by which it is known , and that within these twenty years , which is not so long a time as we have alleged for our Reputation , and would pass in a conveyance by such name ; so None-such . But as to Reputation , I conceive that Reputation is not what this or what that man thinketh , Reputation . quid . but that which many men have said or thought , who have more reason to know it ; & quaenam est inter illos reputatio , There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion ; the Case was , that King Hen. 6. was seised of a Manor , to which a Neif was regardant , who purchased Lands , which the King seised , and let by Copy as parcel of the said Manor , and so continued until the time of E 6. who granted the same to Allice Hardwick , and all Lands , Tenements , reputed parcel of the said Manor ; And it was adjudged , that the said Land so purchased by the said Neif , and demised by Copy , did pass by the said grant to Hardwick . And afterwards , the same Term , the Iustices , without any solemn Argument , shewed their opinions in the principal Case , viz. That this Rent did not pass by the bargain and sale made as above , by Anthony Wingfield , to Bohan father of the Avowant ; for here in the premisses of the Avowry is not any matter set forth importing Reputation , or by which it may appear that the Rent in question was ever reputed parcel of the said Manor , but rather to the contrary ; and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation . But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry , as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor , and as Bayliffs of the said Manor had accounted for it , as parcel of the Manor , and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor , the same had been good matter to induce a Reputation , & to have incorporated the said Rent with the said Manor : and so judgment was given against the Avowant ; and of such opinion ( as was affirmed by Wray ) was Anderson , chief Iustice of the Common Pleas , and Manwood , chief Baron of the Exchequer .

XIX . Cham and Dovers Case . Pasch. 26 Eliz. in the Kings Bench.

Ejectione firmae . IN an Ejectione firmae , the Case was , that one Michel was seised of the Manor of D. within which diverse parcels of Land , part of the said Manor , where customary Tenements demised and demisable by copy , &c. according to the Custom of the said Manor for one , two or three lives , within which Manor there was a Custom , scil. that the Lord of the Manor , for the time being , might grant Copy-hold estates for life in Reversion ; The Lord granted such Lands for life by copy in possession , took a wife , and granted the same Copy-hold to a stranger in Reversion for life , and died , the Copy-holder in possession died , the Land demised by copy is ( inter alia ) assigned to the Wife for her Dower , who had Iudgment to recover in a Writ of Dower , who entred and made a Lease thereof to the Defendant , who entred , against whom , the Lessee of the Copy-holder brought Ejectione firmae , Custom ad pasturandum , non ad colendum . and all this matter was found by Verdict , and further found , that every Copy-holder of the said Manor , might Lease his Copy-hold for a year , ad pasturandum , sed non ad colendum , and that the Lease made to the Plaintiff was for a year , ad pasturandum . 1. Cro. 469. Wells versus Partridge . Post 100. Popham Attorny General , of Council with the Defendant , took exception to the Declaration , because the Plaintiff had declared a Lease at the common Law , and the Iury have found a Lease by the custom , which cannot stand together : And such a Verdict doth not maintain the Declaration , as if the Plaintiff had declared upon a Lease for years of Lands , and the Iury found a devise for years , &c. but the exception was disallowed by the Court. As to the matter in Law he argued , that the Tenant in Dower should hold the Land discharged of the Copy-hold for her life , and he put this case , If the Lord of such a Manor taketh a Wife , a Copy-holder for life dieth , the Lord grants a Rent-charge out of the customary land , and afterwards grants the said land by copy for life , & dieth , the wife shall hold the land discharged of the Rent , but the Copy-holder shall be charged ; and he put a difference where the Lord grants such Copy-hold in possession , and where in Reversion , for in the first case the Wife shall hold charged , but contrary in the last : And he cited the Case of one Slowman , who being Lord of a Manor ( ut supra ) by his Will devised , that his Executors should grant estates by Copy , 2. Len 109. and died having a Wife , the Executors make estates accordingly , Dower discharged of a grant of Copy-hold . the Wife in case of Dower shall avoid them : Plowden contr . the Lord of such a Mannor is bound by recognisance , and afterwards a Copy-holder for life of the said Mannor dieth , the Lord grants his Copy-hold , de novo , the said new Grantee shall hold his Copy-hold discharged of the Recognisance , which Gawdy Iustice granted ; and by Wray , if the Lord of such a Manor grants a Copy-hold for three lives , & takes a Wife , the three lives end , the Lord enters and keeps the lands for a time , and afterwards grants them over again by copy , and dieth , the copy-holder shall hold the Land discharged of the Dower , and this is a clear case , for the copy-holder is in by the custom which is paramount the title of Dower and the Seisin of the Husband ; and by him in the case of the Earl of Northumberland , 17 Eliz. Dyer 344. That the grant of a copy-hold in Reversion by the Earl of Northumberland , doth not make such an impediment as was intended in the condition there , for it is by the custom , and not by the act of the party ; And afterwards , the same Term Iudgment was given for the Plaintiff , that he and his Lessor should hold the lands discharged of the Dower .

XX. Fringe and Lewes Case . Pasch. 26 Eliz. In the Kings Bench.

DEbt by Fringe against Lewes upon a Bond who pleaded , Debt . that the condition was , that whereas the Defendant was Executor to one Morris Degle , that if the Defendant should perform , observe , fulfil , and keep the Will of the said Morris Degle in all points and Articles according to the true intent and meaning thereof , that then , &c. and pleaded further , that the said Morris by the said Will bequeathed to the Poor of such a Town ten pounds , to be distributed amongst them , and also to the Church-wardens of the Parish ten pounds , and to I S. three pounds , and that he had distributed the said ten pounds to the Poor , and that he had paid the ten pounds to the Church-wardens , and as to three pounds , Uncore pri●● a good Plea. he said that he is and always was ready to pay the same to the said I. S. if he had demanded it , upon which there was a demurrer : And as to the ten pounds to be distributed amongst the Poor , the same was holden good enough without shewing the names of the Poor amongst whom the mony was distributed ; so the pleading of the first payment to the Church-wardens was sufficient without nameing of them , See 42 E 3. brief , 539. Scire facias out of a Recovery against Executors , and the Writ was challenged , because it was Scire facias Executors , not naming their proper names ; It was holden to be no exception , for Executors are as a corporation known , in that they are Executors ; and as to the third part of the Plea , scil. always ready and yet is , the plea is well enough , for this Obligation ( the Condition of which being general to perform the Will &c. Poph. 10● ) hath not altered the nature of the payment of the Legacy , but the same remains payable in such manner as before upon request , and not at the peril of the Defendant . See 22 H 6. 57 , 58. 11 E 4 10. 6 E 6. Br. Tender 60. And afterwards the same Term , the Court was clear of opinion , and so delivered the Law to the Counsel on both sides ; that in this case the Legacies are to be paid upon request , and not at the peril of the Executors in such manner as they were before the Obligation , and afterwards Iudgment was given against the Plaintiff .

XXI . Sir John Smith , and Peazes Case . Pasch. 26 Eliz. In the Kings Bench.

SIr John Smith brought Debt upon an Obligation against Peaze , who pleaded , that the Bond was upon condition to perform covenants contained in an Indenture , and shewed what , and that he had performed them , the Plantiff assigned the breach of one covenant , that where the Plaintiff had leased to the Defendant for years , certain messuages by the same Indenture , the Defendant by the same Indenture , did covenant to repair all the said Messuages , Covenant alia quam quae appunctuatae forent divelli per script , dicti Johannis Smith , and shewed further , that the Defendant had not repaired the said Messuages to him demised as aforesaid , and averred that the said house in which the breach of the covenant is assigned , non fuit durante termino praedicto appunctuata divelli , and upon that matter of reparation they were at Issue , and found for the Plaintiff : It was moved in Arrest of Iudgment , that the Averment in the Replication was not sufficient , for the Lease was made in November to begin the Michael . after , Averment . and it might be that the Messuage , in the not repairing of which the breach of the covenant is assigned , was appointed to be pulled down , scil. divelli , before the Term for years began , and then the Defendant is not bound to repair it , and then the breach of the covenant is not well assigned , and so the Averment doth not answer the exception , and because this clause ( alia quam ) is in the body of the Covenant , it ought to be satisfied by him who pleads it , scil. by him who assigns the breach in the Covenant , in which the exception is contained ; As by the Lord Dyer in his argument , in the argument of Stowels Case , reported by Plowden 376. Where a man pleaded the Feoffment of Cestuy que use , he ought to plead , that Cestuy que use , at the time of the Feoffment was of full age , sanae memoriae , &c. for that is within the purview , contr. upon the Statute of 4 H. 7. in pleading of a Fine , for that is in a clause by it self , which conceit of Plowden , the Lord Wray denyed to be Law , for he said , he that pleads the Feoffment of Cestuy que use , or a Fine according to the Statute of 4 H. 7. shall not be driven to shew that the Feoffor , or Conusor at the time of the Feoffment , or Fine levyed was of full age , &c. but he who comes in by such Fine , 〈◊〉 21 , or Feoffment shall shew the same for his own advantage . And at last after many motions it was resolved by all the Iustices , Averment ●here super●luous . that the Averment aforesaid was superfluous & ex abundanti , for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment , de non appunctuando , and if the house in the not repairing of which the breach of Covenant is assigned , was appointed to be pulled down , the same shall come in on the defendants part to whose advantage it trencheth , for such appointment doth discharge the Covenant as to that : In the same plea , it was moved in stay of Iudgment that one Sharp , Solicitor of the said Sir John in the said suit , had given eight shillings to the Iurors , mean betwixt the Charge and their Verdict , and that matter was testified by the oaths of two men , upon which the Court examined the said Sharp , who upon his oath denied the matter , and also the Foreman of the Iury to whom the mony was supposed to be given , who upon his oath denied the same : And it was moved , if receipt of mony by any of the Iurors should make the Verdict void ; and by Wray it shall not , for it is but a Misdemeanor , which is punishable on the person of him who takes the mony : But Gawdy and Ayliff Iustices , the Verdict is void . See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed .

XXII . Cordall and Gibbons Case . Pasch. 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench.

IN an Ejectione firmae , upon not guilty pleaded the Iury found the special matter , viz. that one Hierom Heydon was seised of two Messuages , whereof the Action is brought , and came to Cordall the Plaintiff , and prayed him to send him ten pounds ; Cordall asked him , what assureance he would give him for the re-payment of it ; he answered , that he would mortgage to him the said two Messuages , whereupon Cordall lent him the mony , and afterwards they both went to the said two Houses , and being before the doors , of them , Heydon called , Tenants at will of the Houses , and said to them , Sirs , I have borrowed of this Cordall ten pounds upon these Houses , and if I pay this mony at Michaelmas next , I must have my Houses again , and if not , then I bargain and sell these Houses to Cordall ; and my Will is , that you become his Tenants , after which Heydon put the said Cordall into the Houses , and seeing him in the Houses , he put in the Keys of the said Cordall , by the Windows , &c. And it was adjudged by the whole Court , that this conveyance , by word of mouth , was good enough to pass the estate , ut supra , and the words of bargain and sale in this Case , are as strong , as of gift and grant , See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11.

XXIII . Richards and Bartlets Case . Pasch. 26 Eliz. Intr. Mich. 25 & 26 Eliz. Rot. 72. In the Kings Bench.

DOrothy Richards Executrix of A. her former Husband , Assumpsit . brought an Action upon the Case upon a promise against Humfrey Bartlet , and declared , that in consideration of two weighs of Corn delivered by the Testator to the Defendant , he did promise to pay to the Plaintiff ten pounds , to which the Defendant said , that after the Assumpsit the Plaintiff in consideration , that the said two weighs were drowned by Tempest , and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence , scil. in toto thirty three shillings four pence , did discharge the said Defendant of the said promise , and averred further , that he hath been always ready to pay the said sum newly agreed , upon which there was a demurrer . And the opinion of the whole Court was clearly with the Plaintiff , first because that here his not any consideration set forth in the Bar , by reason whereof the Plaintiff should discharge the defendant of this matter , for no profit but damage comes to the Plaintiff by this new agreement , and the Defendant is not put to any labour or charge by it , therefore here is not any agreement to bind the Plaintiff , See 19 H. 6. Accord , 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case , 19 Eliz. Dyer , then admitting , that the agreement had been sufficient , yet because , it is not executed , it is not any Bar : And afterwards Iudgment was given for the Plaintiff .

XXIV . Lendall , and Pinfolds Case . Pasch. 26 Eliz. In the Kings Bench.

IN Trespass for breaking of his Close , by Lendal against Pinfold , Trespass . the Case was , that two brake the Close and entred , and did the Trespass , the Owner of the land brought an Action of Trespass against one of them , and had Iudgment , and execution accordingly , and afterwards brought Trespass against the other , Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass : And by Ayliff Iustice , it is a good Bar , and he likened it to the case of one Cobham , who brought an Action of Trespass of Assault and Battery , and recovered and had execution , and afterwards brought an Appeal of Mayhem against the same person upon the same matter , the said Recovery and execution is a good Bar , &c. so here as to the breaking of the close , but not as to the Entry : But by Wray , it is a good Bar for the whole , and he likened it to the case of Littleton , Pl. 376. A Release to one of the Trespassers , shall discharge both . Gawdy agreed in opinion with Ayliff .

XXV . Kempe , and Hollingbrooks Case . Pasch. 26 Eliz. In the Exchequer .

IN an Ejectione firmae for Tythes , the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted , that no Masters , Tithea . and Fellows of any Colledge in Cambridge , or Oxford shall make any Lease for life or years of any Farm , or of any their Lands , Tenements , or other Hereditaments to the which any Tythes , arable Land , Meadow , or Pasture doth , or shall appertain , unless the third part at least of the accient Rent be reserved , and payed in Corn for the said Colledges , &c. otherwise every Lease without such Reservation shall be void , &c. If now , the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind . It was argued , that the said Statute is to be intended of Tithes in kind , and also of such things to be demised which render Corn , Hay , &c. But the Tithes in London which is the thing demised in our case , doth not render any such thing , Tithes in London . but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be ( other Hereditaments ) to the which any Tithes , &c. Yet the said Statute doth extend to Tithes in gross , but they ought to be such Tithes which are of such nature as Tithe-corn , and Tith-hay : And Manwood chief Baron held clearly , that the Lease of these Tithes is good enough , notwithstanding the defect by the special Reservation which is limited and appointed by the Statute , and so by him , a Lease of a House , Rent , Mill , Ferry , &c. are out of the said Statute : And as to the Tithes , notwithstanding the words of the Statute are general , any Tithes ; yet he conceived , the Statute ought to be intended of Tithes of common Right , and not of such customary Tithes as those of London are , and therefore , if all the Parishoners prescribe in modo Decimandi , scil . to pay a certain sum of mony for all manner of Tithes , upon demise of such a Rectory , such special Reservation is not necessary , for these are Tithes against common Right , and no Tithes are within the purview of the said Statute but those which are annual , and therefore a Lease of Tithe-wood is out of the meaning of this Statute , for non renovantur in annum ; and he said that upon a Lease of the Tithes of Chery Trees , a rent ought to be reserved according to the Statute , and the Farmer may bring his Cheries to the Market , and buy Corn. Shute Iustice contrary , for the words of the Statute are general . And note , that this Lease was of the Rectory of Saint Lawrence in the City of London . There was another matter moved in this case , because the lease whereof the Action is brought , was made by the name of Master or Guardian , and the Fellows , whereas the true name of their Colledge is Master and Fellows . Misnosmer . And it was argued by Atkinson , that the same is not such a Misnosmer which makes the Lease void , for ( sive custos ) are words of surplusage , v. 7 H. 6. 13. And also the case of the Cooks , 20 Eliz. Plow. 531. The Corporation was by the name of Masters or Governors and Comonalty , mysterii coquorum , &c. And they made a conveyance by the name of Masters or Governors , and Comunalty , artis sive Mysterii , &c. the same is no such Misnosmer as shall make void the conveyance , for Art and Mistery are both of one sense .

XXVI . Harvey , and Harveys Case . Pasch. 26 Eliz. In the Kings Bench.

Consultation . CLare Harvey , one of the Daughters of Sir James Harvy Alderman of London Libelled in the Spiritual Court against Sebastin Harvy , Son and Executor of the said Sir James , for a Legacy bequeathed to her by her Father ; Sebastian did not appear , for which he was excommunicated and taken by a Writ of excommunicat . capiendo , and imprisoned ; and afterwards he came into this Court , and surmised to the Court , That the said Sir James in his life had given to the said Sebastian all his Goods and Chattells , and was also bound unto the said Sebastian in a Statute-staple of two thousand pounds , whereupon he had prohibition , and now the Plaintiffs counsel prayed a Consultation , quatenus non agitur ad validitatem facti , aut Statuti . And Egerton Solicitor of Counsel with the Plaintiff cited a Iudgment given in the like Case betwixt Lodge and Luddington , where such a special Consultation was granted : But Wray put a difference betwixt the said Case and the Case at Bar , for here in this Case is a gift by the Testator himself , but in the Case cited , the gift was by the Executor ; and also here is a Statute of two thousand pounds , in which Case the Obligations which could not pass by the deed , shalll be subject to the said Statute .

XXVII . The Duke of Northumberlands Case . Trin. 26 Eliz. In the Exchequer .

THe late Duke of Northumberland seised of five Messuages in the Parish of St. Sepulchres London , in the Tenure of W. Gardiner , Bargain and sale . 3 Co. 9. by deed intented and enrolled for money bargained and sold to I. L. all his Tenements situate in the Parish of St. Andrews in Holborn in the Tenure of W. Gardiner , to have to the said I. L. for life , the remainder to K. his Daughter in Fee. Atkinson , The bargain and sale is void by reason of the Misnosmer of the Parish , notwithstanding the truth of the Tenure , for by the grant and bargain and sale of all his Tenements in the Parish of St. Andrews nothing passeth , and the truth of the Tenure subsequent shall not help it : And by Manwood chief Baron , the sale is utterly void , for the falsity doth preceed the truth and certainty : And it was argued , that I. L. entring by colour of the same bargain and sale is a disseisor ; as the Case is betwixt Croft and Howel , 20. Eliz. Com. 537. Yet if he was but Tenant at Will when he made the Lease for years , the same was a Disseisin to the said Duke ; and then the Duke being disseised , he is attainted of treason , 10. Mariae . And now we are to see what things accrue to the Queen by the said Attainder : and as to that it was said , that at the Common Law a Right of Entry should Escheat , but not without office found thereof , no more than Lands in possession : And by the Statute of 26 H. 8. it is enacted , that every person attainted of high treason , shall forfeit all his Lands and Tenements which he had of any estate of Inheritance , by which Statute a Bishop , Abbot or Tenant in tayl in such Case shall forfeit even without Office : But in the Statute of 33 H. 8. there is a saving to every other person all such right , possession , so as in that Case by that Statute the King shall not be in possession without Office , but shall have a right , but cannot enter before Office or after . And he is to have Sci. facias against him , who hath the possession , and he shall make his defence as well as he can ; and the words of the said Statute , That the King shall be in actual possession , shall not be construed to extend to an actual and absolute possession , but such a possession , only which he had at the Common Law after Office found , so as the Statute doth not give to the King a larger possession but an easier , without the circumstance of an Office : And of that opinion was Manwood chief Baron , and Shute second Baron : And then it was moved further by Cook , because that the Quen by the Attainder hath but a Right , and the Queen makes the grant of the Messuages themselves , the same grant is void . And he granted that the Queen might grant a real Action , and a Right of Entry ; but such a grant ought to be conceived in special words , as to say , That the Duke of Northumberland was seised of five Messuages , and by such a one disseised , and after the Duke was attainted , and so granted ; for the Queen may grant such a Right by reason of her Prerogative , and therefore the same ought to be granted by special words , as in the Case of Mynes in the Commentaries , and according to that was the opinion of the Iustices in Cromers Case , 8 Eliz. which Case see reported by Coke in the Case of the Marquess of Winchester .

XXVIII . Dayrel and Thinns Case . Trin. 26 Eliz. In the Kings Bench.

Error . EDward Dayrel brought a Writ of Error against Sir John Thinn upon a Iudgment had by the Defendant against the Plaintiffs Father of the Manor of Mexden : And Error was assigned for want of warrant of Attorney . And the Plaintiff prayed one Certiorare to the chief Iustice of the Common Pleas , and another Certiorare to the Custos Brevium , both which returned , non inveni aliquod warr . and now Sir John Thinn being dead , the Plaintiff brought another Writ of Error by Journeys accounts against John Thinn Son and Heir of the said Sir John Thinn , 3 Cro. 91. 2 Cro. 13. 597. 396. 5 Co. Pag. 36. b. 446. who appeared and alledged Diminution , in hoc , that the Warrant of Attorney is not certified , and prayed another Certiorare unto the chief Iustice of the Bench , and another to the Custos Brevium , and it was argued by Clark , that in this Case Certiorare ought not to be granted , for a Certificate is in the nature of a tryal , which shall not be crossed in the same Action ; but the parties to the Action , and their Heirs shall be bound by it , especially when the matter is certified by one who is Iudge of the Record , and that Certiorare sued at the prayer of the Plaintiff shall be as peremptory , as if it had been sued at the prayer of the Defendant , for the Plaintiff may alledge Diminution as well as the Defendant , 7 E 4. 25. by Yelverton . And a man cannot have Certiorare of a thing which is contrary to the Record , which is certified , 11 E 4. 10 by Laicon : So Diminution cannot be alledged in this Warrant of Attorney , because it hath been certified here , that no Warrant of Attorney is to be found , &c. 9 E 4. 32. by Billing ; Egerton Sollicitor , contrary : For the Certiorare obtained at the sute of the Plaintiff , shall not prevent the Defendant . And the course of proceeding in a Writ of Error , when Error is assigned out of the Record , and not of a thing within the Record , is such : After Error assigned , before that a Sci. fac . issueth against the Defendant ad audiendum errores , the Plaintiff may pray a Certiorare to the Custos Brevium , in whose hands such collateral thing remain , for the Plea Roll doth remain in the custody of the chief Iustice , but the Original Writs , Essoins and Warrants of Attorney remain in the hands of the Custos Brevium ; and such a Certiorare the Court may grant to the Plaintiff , without making the Defendant privy to it . And notwithstanding that the Defendant hath pleaded , in nullo est erratum , and so hath affirmed the Record to be such as is certified , yet the Court ex Officio , shall award a Certiorare to ascertain themselves if there be any such Warrant of Attorney or not : which see 9 E 4. Certiorare . 32. by Billing , and therefore the Certiorare being awarded ex Officio , shall not prejudice the Defendant ; and to this purpose he cited the Case betwixt the Lord Norris and Braybrook in a Writ of Error , where the Lord Norris being Plaintiff prayed a Certiorare to the Custos Brevium , to certifie an Original Writ , upon which a common Recovery was had , and had it , and the Custos Brevium certified , that there was no Original ; and afterwards the Defendant prayed another Certiorare , and had it : and so in our Case here especially , because the Defendant was not party to the Record , nor hath day in Court , at the time that the said Certiorare was granted , for the Defendant is not party before the Sci. facias ad audiendum errore● be issued forth against him : and therefore he comes timely enough to pray a Certiorare . See 28 H. 6. 10. and 11. And I grant that the Certificate upon a Certiorare which was awarded after a Sci. fac . ad audiendum errores is peremptory and final , but contrary where it is granted before the awarding of such Scire facias : See Book of Entries 271. The Plaintiff assigneth Error in the Original Writ , & petit br. Domini Regis Custodibus Brevium , &c. ad breve illud origin . certificand . and upon the return of the Certiorare , the Plaintiff prayed a Scire facias ad audiendum errores . And see there 293. where it appeareth , fol. 272. that Certiorare issued at the suit of the Defendant in Error after he had alledged Diminution : and that is after Scire facias ad audiendum errores returned ; and see Certiorare before Sci. facias awarded 271 , &c. and this Certiorare is only ex officio , and awarded only to enform the Court : And in respect of the Certiorare the chief Iustice of the common Pleas , to whom the Certiorare is directed , is but a Minister , and not a Iudge . And as to the Case of 9 E 4. 32. before cited , he could not have a Certiorare , Diminution . for he could not alledge Diminution , because he had pleaded in Nullo est erratum , by which Plea he had confessed the Record which is certified to be a full and perfect Record , and fully certified , and against that matter he shall not alledge Diminution : And in our Case there is not any such contrariety as hath been objected , for the return of the Certiorare is , Non inveni aliquod warrant . not precisely , quod non habetur aliquod warrantum ; And therefore if the Court now at the prayer of the Defendant grant another Certiorare , upon which is a Retorn ( quod habetur warr . Attornat . ) the same is not contrary to the return of the first Certificate , but they may both stand together , for upon further search such Warrant of Attorney may be found : so upon the matter the Court shall not be enveigled by any such contrariety , for ( non inveni aliquod warrant . ) returned upon the first Certiorare , and ( inveni quoddam warr . ) upon the second Certiorare are not meer contrary ; And it seemed to Wray chief Iustice , that it would be hard to grant a new Certiorare in this Case , but if any variance could be alledged it should be otherwise , as it was adjudged in the Case of one Lassell , who certified no Warrant of Attorney , and afterwards it was moved for another Certiorare , as it is here , and because the Original was inter Johannem Lassels ar. executor . Testi . &c. where he was not named Executor in the first Certiorare ; upon that matter a new Certiorare was granted .

XXIX . Withy and Saunders Case . Trin. 26 Eliz. In the Kings Bench.

WIthy libelled against Saunders in the Spiritual Court , Tithes will not pass by grant without deed and now came Saunders and surmised , that Withy had libelled against him for Tithe-grass , and shewed , that all the claim that Withy had to the said Tithes was by a grant without deed , and by the Law such things would not pass without deed ; And also that the Spiritual Court would not allow of this Plea , and therefore prayed a prohibition : And the Court upon the first Motion conceived a prohibition should pass , for if the grant be without deed , nothing passed , and then hath not Withy cause to claim these Tithes against the said Saunders . And notwithstanding that Tithes are quodam modo spiritual things , and so demandable in a Court of that nature , yet now in divers respects they are become a Lay-fee , and lay-things , for a Writ of Assise of Mortdauncester , and an Assise of novel disseisin lyes of them , and a Fine may be levyed of them . But it hath been doubted , whether Tithes be devisable by Will : But at another day the matter was moved , and the Court was clear of opinion , that a Consultation should be awarded , for whether Withy hath right or not right to these Tithes , Saunders of common right ought to pay his Tithes , and he ought to sever them from the nine parts , and whosoever takes them , whether he hath right to them or no right , Saunders is discharged : But Saunders may prescribe in modo decimandi , without making mention of any severance , and may surmise , that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes , and afterwards a Consultation was awarded .

XXX . Stacy and Carters Case . Trin. 26 Eliz. in the Kings Bench.

STacy brought an Action of Trespass for breaking his Close against Walter Carter , And declared of a Trespass in Somers-Land in Tunbridge ; The Defendant pleaded , that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff , and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge , and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise , and further averred , that the Land where , &c. and the Land then put in view is one and the same , &c. upon which there was a Demurrer : Exception was taken to the form of the Demurrer , because in the perclose and conclusion of the Demurrer these words are omitted , Averment . Et hoc paratus est verificare . But as to that , it was said by the Court , that the Demurrer was well enough , with or without such Averment in the conclusion of it , which see oftentimes in the Commentaries , &c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion . Another Exception was taken to the bar , because the Defendant pleads , that heretofore Walter Carter had brought an Assise against the now Plaintiff , &c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter , &c. and the Land where , &c. is all one , &c. here is Warrhamum for Walterum , and notwithstanding that it was after demurrer , and not after verdict , it was adjudged amendable ; and as to the matter of the bar , it was said by the Defendants Council , that recovery of Lands in one Town , by Praecipe quod reddat , is not a bar for Lands in another Town ; but where the recovery is by Assise it is otherwise , for there the Plaint is general De lib. ten̄to , and the Plaintiff shall recover per visum Juratorum , and the view is the warrant of the Iudgment and Execution . And therefore if a recovery in an Assise be pleaded in bar , Not comprised , is not any Plea against it , as in the Case of recoveries upon a Praecipe quod reddat ; but not put in view , and so not comprised , &c. which proves that the Record doth not guid the recovery , but the view of the Iurors . See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith , that he holdeth the said Lands put in view joyntly with A. not named in the Writ , &c. and sheweth the deed of Ioynt-tenancy , which speaks of Tenements in B. and the plea holdeth good , because he alledgeth the Ioynt-tenancy and the Lands put in view : See 24 E 3. It was said on the Plaintiffs side , that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge , no more than a recovery of Lands in one County can extend to Lands in another County : See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise , &c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view , and adjudged no bar . See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise , and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudgment , for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town . See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion , that the plea in bar was not good , for in the Assise which is pleaded in bar in the principal Case , the Tenant there , who is now Plaintiff in this Action of Trespass , pleaded Nul tort nul disseisin , which is no plea , as to the Free-hold in Lee juxta Tunbridge , and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded , that he held the said Lands put in view joyntly , for there he agreeth with the Plaintiff in the Lands demanded , the which Lands are put in view ; but if in the Case at bar the Defendant being Plaintiff in the Assise , the now Plaintiff being then Tenant , had pleaded to the Land put in view in bar , and the Plaintiff in the Assise had recovered , now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass , might well plead this Recovery in bar , for by his plea in the Assise he hath tyed himself to the view , and to the Land put in view , but it is not so in the Case at Bar , where the Tenant in the Assise pleads , nul tort , nul disseisin , for there he doth not plead expresly to the Land put in view , but to the supposal of the Plaintiff , sc. de libero tenemento in Lee juxta Tunbridge : afterwards Wray , with the assent of the other Iustices awarded , that the Plaintiff should recover his damages : See by Wray , 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads , that he himself brought an Assise of the same Tenements , and his plaint was of Tenements in E. and the same Tenements put in view , and recovered , and holden a good Plea , because the Tenant hath said , that the same Tenements were put in view , and that took by Assise , upon which the Plaintiff said , not put in view , and so not comprised .

XXXI . Benicombe and Parkers Case . Trin. 26. Eliz. In the Kings Bench.

IN an Action of Trespass the Iury found this special matter , that the Grandfather of the Plaintiff was seised , and made a Feoffment to the use of himself for life , the remainder to the use of John Father of the Plaintiff in tail , the Grandfather died , the Father entred , Feoffments and by Indenture by words of bargain and sale , without any words of Dedi & concessi , conveyed the Lands to the use of A. in Fee , and in the same Indenture was a Letter of Attorney to make Livery , which was made accordingly ; and the said A. by the said Indenture covenanted , that if the said John should pay before such a day to the said A. forty shillings , that then the said A. and his Heirs would stand seised , &c. to the use of the said John and his Heirs ; and if the said John did not pay , &c. then if the said A. did not pay to the said John within four days after ten pounds , that then the said A. and his Heirs from thenceforth shall be seised to the use of the said John and his Heirs , &c. and the said John covenanted further , by the said Indenture , to make such further assurance as the Council of the said John should advise . Each party failed of payment . John levied a Fine to A. without any consideration ; it was adjudged upon this matter a good Feoffment well executed by the Livery , Hob. 151. Dyer 361. a More 194. Post . 195 , 196 , 197. More 35. b. notwithstanding that the words of the conveyance are only by bargain and sale ; and that the Covenant to be seised to the new uses upon payment , and not payment being in one and the same deed , should raise the use upon the contingency , according to the limitation of it ; and Iudgment was given for the Plaintiff accordingly .

XXXII . Bedows Case . Trin. 26 Eliz. In the Kings Bench.

IN an Action of Debt upon a Bill sealed against one Bedow ; he demanded Dyer of the Bill , which was , Memorandum that I John Bedow have agreed to pay to R. S. the Plaintiff twenty pounds , and thereupon there was a Demurrer , first , that the Deed wanted the words In cujus rei testimonium , &c. but notwithstanding that the Court held the Deed good , and said so it was lately adjudged : Another matter was because the words of the contract are in the preter Tense , I have agreed ; but notwithstanding that exception the Plaintiff had Iudgment to recover , as by Wray , these words dedi & concessi , according to the Grammatical sence imply a gift precedent , but yet they are used as words of a present conveyance , & Iudgment was given for the Plaintiff .

XXXIII . Marsh and Smiths Case . Pasch. 27. Eliz. In the Common Pleas.

1 Cro. 38. 39. GEorge Marsh brought a Replevin against Smith and Paget , who make Conusans as Baylies to Ralph Bard , and upon the pleading the Case was , That Sir Francis Askew , was seised of the Mannor of Castord in his Demesne , as of Fee , which Mannor did extend unto Daston , North-kelsey , Grants . Mannor . 2 Len. 41 , 42. South-kelsey D. and C. and had demesnes and services , parcel of the said Mannor , in each of the said Towns , and so seised , granted totum manerium suum de North-kelsey in North-kelsey , to the said Bard and his Heirs , and granted further , all his Lands Tenements , and Hereditaments , in North-kelsey ; and to that grant , the Tenants in North-kelsey did attorn ; And the Land in which the said Distress was taken is in North-kelsey ; the only question in the case was , if , by this grant to Ralph Bard , a Mannor passed , or not : And the case was argued by the Iustices ; And Periam Iustice argued , That upon this grant no Mannor passed , for before the grant , there was no Mannor of North-kelsey , or in North-kelsey , therefore no Mannor can pass , but the Lands and services in North-kelsey shall pass as in gross , for they were not known by a Mannor , but for parcel of a Mannor : And a Mannor is a thing which cannot be so easily created , Mannor , what it is . for it is an Hereditament which doth consist of many real things , and incorporated together before time of memory ; common reputation cannot be intended of an opinion conceived within three or four years , but of long time ; And appendancy cannot be made presently , but by a long tract of time : As an Advowson in gross cannot be made by an Act appendant , and the Queen her self by her Letters Patents cannot make a Mannor at this day , à multo fortiori a subject cannot , and the Queen cannot by her Letters Patents without an Act of Parliament annex a Mannor to the Dutchy of Lancaster , which see 1 Ma. Dyer 95. And where it is usual , that the Queen doth grant Lands , Reputation . tenendum de manerio suo de East Greenwich in communi soccagio , if upon the death of such a Grantee without heir , the said Land doth revert unto the Queen in point of Escheat , the said Land shall not be parcel of the said Mannor , for the Land was not parcel of the Mannor in truth , but in reputation : And he cited a case , that the Lord Sturton was seised of the Mannor of Quincamore , and was also seised of the Mannor of Charleton which was holden of the said Mannor of Quincamore ; The Lord Sturton was attainted of Felony ; and afterwards Queen Mary gave the said Mannor of Quincamore to Sir Walter Mildmay cum omnibus suis juribus & parcellis , it was adjudged that the Mannor of Charleton did pass , for it is now become parcel of the Mannor of Quincamore ; and I grant , that things which go with the Land shall pass well enough : As if the Queen grant to three Coparceners of three Mannors , 1 Inst. 122. a 32 ●● . 6 11. the liberty of Warren in all the said three Mannors , they afterwards make partition so as each Coparcener hath a Mannor , and the one of them grants her Mannor , the Grantee shall have Warren : Grants of the King. But if the Queen grant a Leet ( ut supra ) and the Coparceners make Partition , and each of them hath a Mannor , she shall not have also a Leet , but the Leet which was grantted doth remain in common , and there shall not be there , upon such partition , several Leets : And also I grant that in the case of two Coparceners of a Mannor , if to each of them upon partition be allotted demeans and services , each of them hath a Mannor , for they were compellable to make partition by the common Law being in by descent , See 26 H. 8. 4. 9 E. 4. 5. contrary of Ioynt-tenants , for they are in by purchase , and were not compellable by the common Law to make partition , and therefore upon partition betwixt them a Rent cannot be reserved for the equality of the partition : And in every Manor a Court is requisite , for a Court Baron is incident to a Manor , Court Baron . but a Court cannot at this day be founded or erected , but it ought to be of long time : And in our Case , no Court hath ever been holden in North-kelsey : And if I be seised of the Manor of B. which extends into C. and B. and I grant my Manor of B. in D. now a Manor passeth , and doth extend into D. and the residue which is in C. shall remain in me in gross , v. 9 E. 4. 17. Catesby ; And if I be seised of a Manor which doth consist of services , and of twenty Free-holders , and one hundred Acres of Demesnes , and I grant the services of my twenty Free-holders , and forty or twenty Acres of the said one hundred Acres , a Manor shall pass , although it was not granted by the name of a Manor ; but if I grant the services of three , four , or five of my Free-holders , and forty or twenty of the said one hundred Acres , upon such a grant no Manor shall pass : Windham Iustice contrary , We are not here to speak of the creation of a Manor , that is a forraign matter , but we are here to consider upon the division , and apportionment of a Manor . They that have argued in this case at the Bar , have stood much upon the words of the Conveyance , manerium suum de North-kelsey , and that Sir Fr. Askew at the time of that assurance , had not any Manor of North-kelsey , or in North-kelsey , but that is not any reason , for if Cestuy que use ( mean between the Statute of 1 E. 3. & 27 H. 8. ) will make a Feoffment of the Manor which was in use , by these words , manerium suum , the same had been good , and yet it is not manerium suum , but the Manor of the Feoffees , but it may be said suum , by receiving of the profits according to the trust and confidence reposed in the Feoffees ; so in our case , in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey , it may collaterally be said a Manor there , and notwithstanding that tempore concessionis ( proprie loquendo ) no Manor was in North-kelsey , yet now upon operation of the Law , upon this grant a new Manor shall rise , for in divers cases where a thing which was not in esse before , upon a grant may rise ; As if I grant unto you out of my Land a Rent de novo ; And also a thing which was not in esse before , may upon a grant take upon it a new nature ; As if I. seised of a great Wood , grant to you Estovers out of it , they were not before in me but as Woods and Trees , now by this grant they are become Estovers in the Grantee , so as they are in the Grantee in another nature , than they were in me : So in our case , although North-kelsey was not a Manor in Sir Fr. Askew , yet now upon the grant it is a Manor in Bard , 9 E. 4. 17. And as to the matter which hath been objected , because a Court cannot now begin , the same is not any reason , for the Court Baron is incident to the Manor , and also to every part of the Manor , and transitory through the whole Manor , and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord , where the Court Baron for the said Manor had always been held and not else-where , yet such a Court might be holden in any part of the Demeans in any other of the said Towns : The Lord Anderson , to the same purpose , It hath been argued of the other side , that the Manor doth not pass , because the grant is in these words , manerium de North-kelsey , in North-kelsey , I conceive that these words , ( de North-kelsey ) are void , as matter of surplusage , and the grant shall be construed as if the words had been manerium suum in North-kelsey : And a Manor is such a thing , as may be determined , divided , and suspended : As if the Lord of a Manor leaseth for years all the Demeans of the Manor , the Manor is suspended during the term for years , as lately it hath been adjudged . And a warranty may be divided , as if a Feoffment in Fee be made to two with warranty , and the one of them releaseth the warranty : vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns , B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth . And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case , &c. and afterwards it is a Parish-Church , now it is become presentable ; an Advowson appendant , as the soil upon the which the Church is built is parcel of the Manor . See 32 H. 6. 9. One Manor may be parcel of another Manor , as A. holdeth of B. twenty acres of Land , as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir , so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before , and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass . Post . 32. And I do not know any difference between the Case of Parceners , and the Case of Ioynt-tenants , for now they are both equally compellable to make partition : And he cited the Case of one Estopp . lately adjudged , viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York , and the Queen granted her Rectory of D. in Lincoln , these are several grants , and now upon the matter they are become several Rectories . And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor , and that such a Court cannot now at this day be erected , and therfore here cannot be a Manor ; here needs not the erection of any new Court , but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor : therefore every part of the Demeans of the Manor is capable of a Court to be holden there . As where one is seised of a Manor to which an Advowson is appendant , now is the Advowson appendant not only to the said Manor , but to every part of it ; for if he alien an acre , parcel of the Manor with the Advowson , the Advowson is now appendant to the said acre : See 43 E. 3. 26. So in the Case at Bar , because this liberty and franchise of a Manor is throughout the whole Manor , and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey , and of his Manor in North-kelsey , a Manor passeth ; which Windham also granted and agreed unto . Note at this time there were but three Iudges in this Court : And afterwards Iudgment was given for the Defendant .

XXXIV . Alington and Bales Case . Pasch. 27 Eliz. In the Kings Bench , Rot. 584.

1 Cro. 660. 661. ALington and others , Executors of Sir W. Cordel late Master of the Ross , brought an Action Debt against Bales : The Case was this , One Bream being seised of certain Lands , by Indenture bargained and sold the same to one Platt by these words ( give , grant , bargain , sell ) and by the said Indenture covenanted with Platt , that the said Platt and his Heirs should quietly enjoy the said Lands without interruption of any person or persons : And afterwards certain controversies rising betwixt them concerning the said Lands , Arbitrament . the said Bream and Platt submitted themselves to the award and arbitrament of Sir W. Cordel , to whom they were bounden severally for the performance of such award , the which Sir W. amongst other things awarded , that the said Platt and his Heirs should enjoy quietly the said Lands , in tam amplo modo & forma , as the said Land is conveyed and assured by the coveyance and assurance aforesaid : And the truth was , that the said Bream at the time of the said Assurance was bounden in a Recognizance of six hundred pounds to one More , 15. Eliz. and afterwards More 16 Eliz. sued a Sci. fac . upon the said Recognizance ; and 18 Eliz. the bargain and sale aforesaid was made ; and afterwards 19 Eliz. More sued forth Excution by Elegit , and the moyety of the said Land assured to Platt was delivered in Execution to More . And if upon the whole matter the Arbitrament was broken was the question . It was argued by Godfrey , that the Plaintiff ought to be barred ; and first , 1 Hob. 35. Mor. 175. 3 Len. 43. Post . 93. Post . 179 , 279. 1 Inst. 366. a. b. 388. Dy : 42. he conceived that these words in the Indenture ( give and grant ) did not help the Action , for the Lands passed with a charge , and the general words Dedi & concessi , do not extend to this collateral charge , but to the direct right of the Land only ; but if a stranger had put out the bargainee , there upon such general words , an Action would lie , but as the Case is , they do not give any cause of Action , for the Recognizance was a thing in charge at the time of the Assurance : and yet see 31 E 3. Br. Warr. Chartae , 33. A. enfeoffeth B. with warranty , who brings a Warrantia Chartae , and recovers pro loco & tempore , and afterwards a stranger doth recover against him a Rent charge out of the said Land , and it was holden , that upon the matter B. should have execution : the special words of the Aribitrament , upon which the Action is brought , are , that the said Platt and his Heirs should enjoy the said Lands in tam amplo modo & forma , as it was assured and conveyed to the said Platt ; ergo , not in more ample manner : 1 Cro. 660. 661. Owen Rep. 65. 2 Cro. 571. 1 Roll. 425. and the said Land was conveyed to Platt , chargeable to the said Recognizance , therefore if Platt enjoy it charged , there is no cause of Action : And as to the Covenant in the Indenture , that Platt and his Heirs should enjoy quietly the said Lands without interruption of any person , the same is a Collateral surety ; and the words of the Award are , that Platt shall enjoy it in tam amplo modo & forma , as it is conveyed and assured by the assurance aforesaid without interruption , these are not words of assurance , for the assurance doth consist in the legal words of passing the estate : scil. bargain , sale , Dedi , concessi , and in the limitation of the estate , and not in the words of the Convenant : And therefore it hath been adjudged , that if I. be bounden to A. in an Obligation , to assure to him the Mannor of D , &c. if A. tender to me an Indenture of bargain and sale , in which are many Covenants , I am not bound upon the peril of my Bond to seal and deliver it . Also here doth not appear any interruption against the Covenant in the Indenture , for here is not any lawful Execution , for it appeareth here , that More hath sued Execution by Elegit 4 years after the Iudgment in the Scire facias , in which case he shall be put to a new Scire facias , for the Sheriff in this Case ought to have returned , that the Conusor after the Recognizance had enfeoffed divers persons , and shewed who , and upon that matter returned , the Conusee should have a Sci. facias against the Feoffees , vide F. N. B. 266. And the Court was clear of opinion against the Plaintiff .

XXXV . Floud and Sir John Perrotts Case . Trin. 27 Eliz. In the Kings Bench.

FLoud recovered against Sir John Perrot , 1 Cro. 63. Post . 264. 3 Len. 240. in an Action upon the Case upon a promise , eighty six pounds , against which Floud and Barlow affirmed a Plaint of Debt in London , and attached the said moeny in the hands of the said Sir John , and had execution according to the custom of London . And now the said Floud sued a Scire facias against the said Sir John , who appeared , and pleaded the said Execution by attachment ; upon which Floud the Plaintiff did demur in Law : And it was adjudged no plea , for a duty which accrueth by matter of Record cannot be attached by the custom of London . And notwithstanding that the custom of London be layed generally in aliquo debito , and damages recovered are quoddam debitum , as it was urged by the Council of the Defendant : Yet the Law is clear , that Iudgments given in the Courts of the King ought not , Judgments in the Kings Courts not to be defeated by particular custom of places . nor cannot by such particular customs be defeated and avoided , as it was lately adjudged in a Western Case , Damages were recovered , the Sheriff by virtue of a Fieri facias levyed the money , which one to whom the Plaintiff was endebted , did attach by the custom , in the hands of the Sheriff ; but it was adjudged the attachment was not good , for the custom of attachment cannot reach upon a thing of so high a nature as a Record is ; the same Law of Debt upon a Recognizance and Statute , &c. and it was affirmed by Wray chief Iustice , that upon great deliberation it was agreed , by Bromley Lord Chancellor himself , the Lord Anderson , Mead and Periam Iustices , that where a Merchant , having in an Action recovered certain damages , became Bankrupt , upon which issued an Commission upon the Statute of 13 Eliz. of Bankrupts , that such Commissioners could not entermeddle with such damages , to dispose of them to the Creditors , according to the said Statute : But now see the Statute of 1 Jacobi . The Commissioners have power to dispose of such debts , &c.

XXXVI . Sir Walter Hungerfords Case . Trin. 27 Eliz. In the Kings Bench.

Grants of the King. IN a Replevin by Sir Walter Hungerford , the Case was this , the Queen being seised of a great Waste called Ruddesdown in the Parish of Chipnam , granted to the Mayor and Burgesses of Chipnam , the moyety of a Yard-land in the said Waste , without certainty in what part of the Waste they should have the same , or the special name of the Land , or how it was bounded , and without any certain description of it . And afterwards the Queen granted to the said Sir Walter the said Waste , and afterwards the said Mayor and Burgesses by warrant of Attorney under the Common Seal , authorized one A. to enter in the said Waste , and in the behalf of the said Mayor and Burgesses to make election of the said moyety , Election . &c. who did so accordingly . And upon this matter gives in evidence the parties did demur in Law , and the Iury were discharged . 12 Co. 86. 87. Dy. 372. b. 281. Noy . 29. And it was holden and resolved by the whole Court , that the grant to the Mayor , &c. was utterly void for the incertainty of the thing granted : And if a common person do make such a grant it is good enough , and there the Grantee may make his choice where , &c. and by such choice executed , the thing shall be reduced into certainty : which choice the Grantee cannot have against the Queen , which difference was agreed by the whole Court : And it was further holden , that this grant was not only void against the Queen her self , but also against Sir Walter Hungerford her Patentee . It was further holden by the Court , that if a common person had made such a grant , which ought to be reduced to certainty by Election , and the Corporation to whom the grant was made ( ut supra ) should not make their election by Attorney , but after that they were resolved upon the Land , they should make a special warrant of Attorney , reciting the grant to them , & in which part of the said Waste their grant should take effect , East , West , &c. or by buttals , &c. according to which direction the Attorney is to enter , &c.

XXXVII . Watts and Jordens Case . Trin. 27. Eliz. In the Common Pleas.

IN Debt by Watts against Jorden , process continued until the Defendant was Out-lawed , and upon the Capias utlagatum he appeared and pleaded to issue , which was found for the Plaintiff , and Iudgment given accordingly . And now came Jourden and cast in a Writ of Error , Error . and assigned for Error , that he appeared upon the Capias utlagatum , and pleaded to issue , the Original being determined , and not revived by Scire facias , upon his Charter of pardon ; Anderson Iustice was of opinion , that it was not Error , for the Statute of 18 Eliz. had dispensed with it , being after verdict ; for the words of the Statute are , For want of any Writ Original or Iudicial . Windham Iustice contrary , for the Statute doth not extend , but where the Original is imbeselled , but in this Case it is not imbeselled , but in Law determined , and at last the Writ of Error was allowed :

XXXVIII . Trin. 23 Eliz. In the Common Pleas.

THe Case was , A. seised of Lands by his Will devised , 3 Len 119. that his Excutors should sell his Lands , and died , the Executors levy a Fine thereof to one F. taking mony for the same of F. If in title made by the Conusee to the Land by the Fine , It be a good plea against the Fine to say , Quod partes ad finem nihil habuerunt , was the question . Fines levyed . Anderson conceived that it was : But by Windham and Periam , upon Not-guilty , The Conusee might help himself by giving the special matter in evidence , in which Case the Conusee shall be adjudged in ; not by the Fine , but by the Devise : As by Windham . A. deviseth , Devise . Co. 1 Inst. 113. a. that his Executors shall sell a Reversion of certain Lands , of which he dieth seised ; they sell the same without deed , and good ; for the Vendee is in by the Devise and not by the conveyance of the Executors : See 19 H. 6. 23. And by Periam the Conusee may help himself by pleading , as he who is in by the Feoffment or grant of Cestuy que use by the Statute of 1 R. 3.

XXXIX . Albany and the Bishop of St. Asaphs Case . Trin. 27 Eliz. In the Common Pleas.

ALbany brought a Quare impedit against the Bishop of St. Asaph , 1 Cro. 119. who justified for Lapse : The Plaintiff by Replication said that before the six months expired , he presented to the said Bishop one Bagshaw , Quare impedit . a Master of Arts and Preacher allowed , &c. The Defendant by way of Rejoynder said , that the Church upon the presentment to which the Action is brought is a Church with Cure of Souls , and that the Parishioners there are homines Wallici , Wallicam loquentes linguam & non aliam . And that the said Bagshaw could not speak or understand the Welch Language , for which cause he refused him , and gave notice to the Plaintiff of such refusal , and of the cause of it , &c. upon which the Plaintiff did demur in Law. And first it was agreed and resolved by the whole Court , that in the computation of the six months in such Cases , the Reckoning ought not to be according to the Kalender , January , February , &c. but Secundum numerum singulorum dierum , Co. 2 Inst. 361. Co. 6. 61. b. Yel . 100. 2 Cro. 141. Departure . allowing eight and twenty days to every month : Walmesley Serjeant argued for the Plaintiff , and he took exception to the Rejoynder ; for in that the Defendant had departed from his Bar ; for in the Bar the Defendant intitles himself to the presentment by reason of Lapse , and in the Rejoynder he confesseth the presentment of the Plaintff , and pleads his refusal of his Clark , and shewes the cause of it ; sc. the want of the Welsh Language , which is a Departure : And he cited divers Cases to the same purpose , 27 H 8. 3. In forfeiture of Marriage , the Defendant pleaded the Feoffment of the Ancestor of the Heir to divers persons , absque hoc , that he died in the homage of the Plaintiff ; the Plaintiff by Replication said , that the said Feoffment was made to the use of the said Ancestor and his Heirs : The Defendant by Rejoynder saith , that the said Ancestor did declare his Will of the said Lands , the same was holden a Departure , for he might have pleaded the same in Bar , and 21 H. 7. 17 , 18. & 37 H 6. 5. in Trespass the Defendant pleaded , that I. S. was seised of the Land where , &c. being Land devisable , and devised the same to him and his Heirs ; the Plaintiff by Replication said , that I. S. at the time of the devise was within age , &c. The Defendant by Rejoynder said , that the custom there is , that every one of the age of fifteen years might devise his Lands , &c. the same was holden a departure : But to this Exception the Court took not much regard : But as to the matter in Law , it was argued by Walmesley , that the defect of the Welsh Language assigned by the Defendant in the presence of the Plaintiff is not a sufficient Cause of refusal ; for notwithstanding that it be convenient that such a Presentee have the knowledge of such Language , yet by the Law of the Land , ignorance of such Language , where the party hath more excellent Languages , is not any disability ; and therefore we see , that many Bishops in Wales , who have the principal Cure of Souls , are English-men ; and the Welsh Language may easily be learned in a short time by converse with Welsh-men : And the Statute of 1 Eliz. which establisheth the Book of Common Prayer , ordaineth , that the said Book of Common Prayer shall be put in use in all the Parish Churches of Eng. and Wa. without any provision there for the translation of the said Book into the Welsh Language . But afterwards by a private Act it was done , by which it is enacted , That the Bishop of Wales should procure the Epistles and Gospels to be translated , and read in the Welsh Language , which matter our Presentee might do by a Curate well enough : And he conceived , that by divers Statutes , Aliens by the Common Law were capable of Benefices . See the Statute of 7 H 2. Cap. 12. 1 H 5 Cap. 7. 14 H 6. Cap. 6. and before the said last Statute Irish-men were capable of Benefices . Gawdy Serjeant contrary : and he confessed , that at the Common Law the defects aforesaid were not any causes of refusal ; but now by reason of a private Act made , 5 Eliz. Entituled , An Act made for the translating of the Bible , and of the Divine Service into the Welsh tongue , the same defect is become a good cause of refusal ; in which Act the mischief is recited , viz. That the Inhabitants of Wales did not understand the Language of England , therefore it was Enacted , That the Bishops of Wales should procure so many of the Bibles and Books of Common Prayer to be imprinted in the Welsh Language , as there are Parishes and Cathedral Churches in Wales , and so upon this Statute , this imperfection is become a good cause of refusal . And he likened it to the Case of Coparceners and Ioynt-tenants , Ante 28. who now , because that by the Statute of 32 H 8. Ioynt-tenants are equally capable to make partition as Coparceners were by the Common Law ; Now Partition betwixt Ioynt-tenants within age is as strong as betwixt Parceners within age . But as to that point it was said by the Lord Anderson , that it is very true , that upon the said Statute the want of the Welsh Language in the Presentee is now become a good cause of refusal ; but because the said Act being a private Act hath not been pleaded by the Defendant , we ought not to give our Iudgment according to that Act , but according to the Common Law. Another matter was moved , because here appeareth no sufficient notice given to the Patron after the said Refusal , for the Plaintiff did present the thirtenth of August ( the Church voyding the fourteenth of March before ) the nine and twentieth of August the six months expired ; the fourth of September the Defendant gave notice to the Patron of the refusal , and the fourteenth of September was the Collation ; and it was said by the Lord Anderson , that it appeareth here , that there are two and twenty days between the Presentment and the Notice , which is too large a delay : And the Defendant hath not shewed in his Plea any cause for the justifying or excuse of it and therefore upon his own shewing we adjudge him to be a disturber : See 14 H. 7. 22. 15 H. 7. 6. and note by Periam , it was adjudged in the Case of Mollineux , if the Patron present , and the Ordinary doth refuse , he ought to give notice to the person of the Patron thereof , if he be resident within the County , and if not , at the Church it self , which is void .

XL. Mich. 27 & 28 Eliz. At Serjeants Inn.

THis Case was referred by the Lords of Council to the Iustices for their opinions , I.S. by Indenture between the Queen of the one part , and himself of the other part , reciting that where he is indebted to the Queen in eight hundred pounds , to be paid in form following , twenty pounds at every Feast of St. Michael , until the whole sum aforesaid be paid , covenanted and granted with the said Queen , to convey unto the Lord Treasurer , and Barons of the Exchequer , and to their Heirs , certain Lands to the uses following , viz. to the use of the said I.S. and his Heirs , until such time as the said I. S. his Heirs Executors or Administrators shall make default in payment of any of the said sums ; and after such default , to the use of the said Queen , her Heirs and Successors , until her Heirs and Successors shall have received of the issues and profits thereof such sums of money parcel of the said debt as shall be then behind and upaid , and after the said debt so paid and received , then to the use of the said I.S. and his Heirs for ever . I.S. levyeth a Fine of the said Land to the said Lord Treasurer and the Barons , to the uses aforesaid ; and afterwards being seised accordingly , by deed indented and enrolled bargains and sels the said Land to a stranger : default of payment is made , the Queen seizeth , and granteth it over to one and his Heirs , quousque the money be paid , and after the money is paid : And upon conference of the Iudges amongst themselves at Serjeants Inn , they were of opinion , that now I.S. against his Indenture of bargain and sale , should have his Lands again , for at the time of the bargain and sale he had an estate in Fee , determinable upon a default of payment , ut supra , Post . 93. 3 Len. 43. Owen . Rep. 6. 1 Inst. 49. 2 which accrued to him by the first Indenture and the Fine , which estate only passed by the said Indenture of bargain and sale , and not the new estate which is accrued to him by the latter limitation after the debt paid , for that was not in esse at the time of the bargain and sale ; but if the conveyance by bargain and sale had been by Feoffment or Fine , then it had been otherwise , for by such conveyance all uses and possibilities had been carried by reason of the forcible operation of it .

XLI . Taylor and Moores Case . Hill. 28 Eliz. In the Kings Bench.

TAylor brought Debt upon an Obligation against Moore , Debt . Error . who pleaded in Bar , upon which the Plaintiff did demurre , and the Court awarded the Plea in Bar good , upon which Iudgment the Plaintiff brought a Writ of Error , and assigned Error in this , that the Bar upon which he had demurred , as insufficient , was adjudged good : Vpon which now in this Writ of Error the Bar was awarded insufficient , and therefore the Iudgment reversed : But the Court was in a doubt what Iudgment shall be given in the Case , viz. whether the Plaintiff shall recover his debt and damages , as if he had recovered in the first Action , or that he shall be restored to his Action only , &c. And Wray cited the Case in 8 E. 4. 8. and the Case of Attaint 18 E. 4. 9. And at last it was awarded , that the Plaintiff should recover his debt and damages : See to that purpose 33 H 6. 31. H 7. 12 , 20. 7. Eliz. Dyer 235.

XLII . Higham and Harewoods Case . Hill. 28. Eliz. In the Kings Bench.

More Rep. 221. 3 Len. 132. IN an Ejectione firmae the Case was , that one Butty was seised of the Land where , &c. and also of a Messuage , with which Messuage the said Land had been usually occupied , time out of mind , &c. and being seised and lying sick , commanded a Scridener to be brought to him , and the said Scrivener being brought to him , he gave him Instructions to make his Will , and amongst other things declared unto him , that his meaning was , that the said Messuage , and all his Lands in Westerfield should be sold by his Executors ; and the Scrivener in making of the Will penned the matter in this manner : I will that my house , with all the appurtenances , shall be sold by my Executors ; Butty died , the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict , and it was moved by the Plaintiffs Counsel , that the sale of this Land by the Executors is not warranted by the Will : Another matter was moved , scil. admitting that the Executors have authority by the Will to sell the Land , if the sale of parcel of the Land be good and warrantable : As if I make a Charter of Feoffment of ten acres , and a Letter of Attorney to make livery of them to the Feoffee , if the Attorney makes several liveries of the several acres the same is void : But by Cook the Cases are not like , for in the Case put he hath a special Commission , in which the party to whom , and all the other circumstances are set down certainly , contrary in the Case at the Bar , there the Commission is general , &c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole . More Rep. 222. Co. Inst. 113. a. And afterwards upon conference amongst the Iudges , Clench , Gawdy , and Wray , it was resolved , that by this devise the Lands do pass by the sale of the Executors to the Defendant , which sale also by process is warranted by the Will , for by Wray , these words , with all the appurtenances are effectual and emphatical words to enforce the devise , and that doth extend to all the Lands especially ; because it is found , that the Testator gave to the Scrivener his Instructions accordingly : And afterwards Iudgment was given against the Plaintiff . See 3 Eliz. Plowd. 210. Betwixt Sanders and Freeman , there the Devise is pleaded in this manner , Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth .

XLIII . Watkins and Astwicks Case . Trin. 28 Eliz. In the Kings Bench.

1 Cro. 132. IN an Ejectione firmae , it was found by special verdict , that one Maynard was seised , and made a Feoffment in Fee upon condition of payment of mony on the part of the Feoffor by way of Mortgage at a certain day , before which day the said Maynard dyed , his Son and Heir being within age , Tender to redeem a Mortgage . afterwards at the day of payment limited by the Mortgage , a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age , who refused it . And it was resolved by the whole Court , that the same is not a sufficient tender to redeem the Land , according to the Mortgage , for it is found by the Iury , that the Heir at the time of the tender was within age , 2 Len. 213. generally , not particularly of six or ten years , &c. then it might well stand with the verdict , that the Heir at such time was of the age of 18 or 19 years , at which age he is by the Law out of the Ward of his Mother , or any other prochein amy , in which Case it is presumed in Law , that he hath discretion to govern his own affairs : and in this Case the Mother is but a stranger , for the Law hath estranged the Mother from the government of the Heir ; but if the Iury had found that the Heir at the time of the tender was of tender age , viz. within the age of fourteen years , in which Case by Law he ought to be in Ward , in such Case the tender had been good .

XLIV . Leput and Wroths Case . Trin. 28. Eliz. In the Kings Bench.

A Replevin by Lepur against Wroth , 6 Co. 33. Replevin . 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex ; the Case upon the pleading was , that Robert Earl of Sussex was seised of the Manor of Burnham in Fee , and leased the same to the King for one and twenty years , and afterwards the said Earl died , by which the said Manor descended to Thomas late Earl of Sussex , and he being seised , 4 and 5 Phil. and Mary it was Enacted by Parliament , That the Lady Frances , Wife of the said Earl , by virtue of the said Act of Parliament should have , hold and enjoy ; &c. during the widowhood of the said Frances , for and in consideration of the Ioynture of the said Frances the said Manor : Provided always , and it is further enacted , Construction of Statutes . That it should be lawful for the said Earl , by his writing indented , dimissionem vel dimissiones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali , ita quod super omnes & singulos hujusmodi dimissionem & dimissiones antiquus redditus & consuetus vel eo major & amplior reservaretur , and that every such demise should be of force , and effectual in Law against the said Frances for term of her life , if the said term should so long continue : And further the said Act gave to the said Frances , Distress , Avowry , Covenant , &c. against such Lessee , and for the said Lessee against the said Dame ; And afterwards the said Thomas , the said former Lease not expired , leased the said Manor to Wroth the Defendant for one and twenty years , to begin at the Feast of Saint Michael next following ( and note the Lease was made the third of April before ) rendring three hundred and forty pounds per annum , which was redditus amplior antiquo & usuali . Popham Attorney general argued , that the said Lease did not bind the said Lady Frances , and that for two Causes : 1. because it is to begin at a day to come : 2. because it was made , a former Lease being in esse ; and he argued much upon construction of Statutes to be made not according to the letter , but according to the meaning of them : And he cited a Case upon the Statute of 2 H 5. 3. by which it is Enacted , that in no Action in which the damages do amount to forty marks , any person should be admitted to pass in trayl of it , who had not Lands or Tenements of the clear yearly value of forty shillings , yet the said Statute shall not be by construction extended , where in an Action between an English-man and an Alien , the Alien prayeth medietatem linguae ; and yet the Statute is general . So in our Case , although this private Act doth not seem to provide expresly but for two things : 1. Leases . the number of the years , 21 , & non ultra : 2. antiquus redditus vel eo amplior , yet in reason and good understanding we ought to think , that the intent of the Act was , that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion , or to begin at a day to come , for if by this Act the said Earl might make a Lease to begin three months after , by the same reason he might make a Lease to begin twenty years after , and also to begin after his death . It hath been objected , that the Lord Treasurer had a Commission to make Leases of the Queens Lands , and that by virtue thereof he made Leases in Reversion : I know the contrary to that , for every such Lease is allowed by a Bill assigned , and not by the ordinary Commission aforesaid , the words of our Act are , Dimissiones facere pro termino 21. annorum , that shall be meant to begin presently : As if I lease to you my Lands for one and twenty years , it shall be intended to begin presently ; and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops : That four years of a former Lease being in being , the Bishop leased for one and twenty years , the same was a good lease , notwithstanding the former lease , for the lease began presently betwixt the parties . And it hath been adjudged , that a lease for years by a Bishop , to begin at a day to come , is utterly void . And he cited the Case of the late Marquess of Northampton , who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years , and of the said Lands an ancient lease was made before the said Act , which was in esse , and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease , and that lease was allowed to be a good lease warranted by the said Statute , because that the first lease , which was in esse , was not made by force of the said Act , but if the said former lease had been made by virtue of the said Statute , the second lease had been utterly void .

XLV . Trin. 28 Eliz. In the Kings Bench.

Copy-hold . Surrender by Attorney not good . A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will , and thereby devised the Lands to his youngest Son and his Heirs , and died , the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room , and also after admittance to surrender the same to the use of B. and his Heirs , to whom he had sold it for the payment of his debts : And Wray was of opinion , that it was a good surrender by Attorney , but Gawdy and Clench contrary : 3 Cro. 218. 9 Co. 75. and by Gawdy ; If he who ought to surrender cannot come in Court to surrender in person , the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender , &c. and by Clench ; Lessee for years cannot surrender by Attorney , but he may make a deed purporting a surrender , and a letter of Attorney to another to deliver it .

XLVI . Troublefield and Troublefields Case . Trin. 28 Eliz. In the Kings Bench.

Dy. 337. b. Co. 1 Inst. 15. 2. b. 52. 245. b. 252. 6. Post . 51. Entry . THe Case was , that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life , the remainder over to his son in tail , and died , the Wife entred , and died , a stranger did intrude upon the Lands , and thereof made three several Feoffments to three several persons , he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised , and made a lease of the whole Land : And by Clench and Wray it was a good Entry for the whole , and by consequence , a good lease of the whole , Gawdy contrary : Note , all the Lands were in one County : See 16 Eliz. Dyer 337. 9 H. 7. 25.

XLVII . Parmort and Griffina's Case . Trin. 28 Eliz. In the Kings Bench.

IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger , the Defendant pleaded , Debt . that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures , and shewed what , &c. and alledged further , that in the said Indenture there is a proviso , that if aliqua lis , vel controversia oriatur imposterum , by reason of any clause , article , or other agreement in the said Indenture contained , that then , before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof , which being done , the Indenture and Obligation shall be void : And in fact saith , that Lis & controversia , upon which the Action is brought , groweth upon the said Indenture , upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife , and upon what article certain : The Court was clear of opinion , that the Bat was not good : And also the Court was of opinion , Proviso taken strictly . that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons , but only where strife and controversie doth arise upon the construction of any Covenant , &c. within the said Indenture ; so as the Defendant ought to have shewed such matter which fell within the Arbitrament , by the meaning of the said Indenture ; and Iudgment was given against the Defendant .

XLVIII . Partridge and Partridges Case . Mich. 28 , & 29. Eliz. In the Common Pleas.

IN Dower by Partridge against Partridge , the Case was , Dower . that Land was given to the Father for life , the reversion to his Son and Heir for life , the remainder to the right Heirs of the body of the Father : The Father and Son joyn in a Feoffment to the Vncle in Fee , scil. to the Brother of the Father . The Vncle takes a Wife , the Father dieth , the Son being his Heir in tail , the Vncle dieth without issue , so as the Land descendeth to the Son , as Heir to his Vncle , against whom the Wife of the Vncle brought Dower : It was moved , if the Son being Herein can to his Father , and Heir also to his Vncle , for the Fee descended , be now remitted ? for then no Dower accrueth to the Wife of the Vncle , for the estate of which she demands Dower is gone : but if the livery in which the Son joyned with his Father be the livery of the Son , Remitt● the same lies in his way in the impediment and preventing of the Remitter , so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle : Then Dower lyeth , for the same estate is inherited , of which the Wife demandeth her Dower : And the Court doubted , if it were the livery of the Son or not . And note , that the Feoffment was without deed . See Dyer 16 Eliz. 339.

XLIX . The Queen against the Lord Vaux and others . Mich. 28 & 29 Eliz. In the Exchequer .

A Bill of Intrusion was brought for the Queen against the Lord Vaux , Rich. Vaux , & Hen. Vaux , Intrusion . supposing to have intruded into the Rectory & Parsonage of Ethelborough in the County of Northampton , & shewed that in the time of Hen. the fourth , the Colledge of Saint Peter of Ethelborough was founded at Westminster , in the County of Midd. by the name of Decani & capituli ; and shewed further , that the Rectory of Ethelborough , was appropriated to the said Colledge , and that afterwards by the Statute of 1 E. 6. the said Colledge was dissolved , and the said Rectory , amongst other possessions of the said Colledge , came to the hands of the King , and that the Defendants , 1. Eliz. intruded into the said Rectory , and took one thousand Sheep , one thousand Calves , and one thousand Loads of Corn , bona & catalla dictae Dominae Reginae provenientia ex decimis rectoriae praedict. apud Westm. predict . The Defendants pleaded , &c. That the said Colledge of Ethelborough was founded in Ethelborough , Foundation . &c. per nomen Decani , canonicorum , & fratrum , &c. who leased the said Rectory so appropriated to one Clark for forty six years , in Anno 30 H. 8. who assigned the same to the Defendants , by force of which they justified the taking at Ethelborough , absque hoc , that the said Colledge of Saint Peter in Ethelborough , was founded , per nomen Decani & capituli Ecclesiae Sancti Petri de Ethelborough , at Westminster aforesaid , & absque hoc , that they took the said Sheep , &c. at Westminster , &c. Vpon which the Queens Attorny did demur in Law. Manwood chief Baron argued ; that Iudgment ought to be given for the Queen : Exception hath been taken to the Information , because mention is made in it of a Colledge , and it is not shewed what person was the Founder : And also an appropriation is alleadged of the Rectory aforesaid to the said Colledge , and the Appropriation is not shewed certain , who was Patron , Ordinary , &c. as to that he argued that the alledging of the Appropriation and foundation , is but matter of surplusage , and therefore the insufficiency of alledging the same shall not prejudice the Queen , for it had been sufficient to say , That the said Colledge of St. Peter , was seised of the Rectory aforesaid , and then to shew the Statute of Chauntries , 1 E. 6. and the same is a good title for the Queen , The possession of the Colledge , and the Dissolution of it by the Statute : For this Bill of intrusion is but in the Nature of a possessory action , Colledge in Reputation . as an action of Trespass , in which case it is sufficient to make title to the possession only , without relying upon the right ; but as to the curious and exact pleading of an appropriation , or a foundation , it needs not in this case ; for admit that the Colledge were not well and duly founded , yet such pleading is sufficient , for a Colledge in Reputation is within the Statute of 1 E. 6. and where the party claims by or under such Foundation , there the Foundation ought to be certainly shewed , not precisely but conveniently , General pleading . not as we plead a common Recovery , but as we plead the creation of a Bishop , scil. debito modo praefectus , without shewing the particulars of the creation , so if an Abbot will plead in discharge of his House of a Corody , he ought to shew the Foundation , and convenient certainty , which see L. 5. E. 4. 118. Robert Milam founded the Abby of Leicester , and conveyed the right of Patronage and foundership to the King by Attainder , and the same was good pleading , without shewing the particulars of the Foundation specially , so 3 H. 7. 6. in the Case of the Priory of Norwich , the pleading is , quod Prioratus de Norwich est de fundatione Episcoporum Norwich , for in such case , refert quis sit Fundor , so the King be not Founder ; but in our case , non refert quis fit Fundor , for whosoever be Founder , whether the King , or a Subject , all is one , the Statute in both Cases gives the possessions to the King : And as to the case of Appropriation , the pleading thereof is well , if it be conveniently shewed , in case where the party who shews it claimes by such Appropriation , as 6 H. 7. 14. 11. H. 7. 8. Concurrentibus his quae de jure , &c. without shewing the particulars of the Appropriation . Now in our case , the Queen is meerly a stranger to this Appropriation , and she doth not claim by it , but the possession of the Colledge is the title of the Queen , by the Statute of 1. E. 6. and therefore it sufficeth for the Queen to shew that the Colledge was seised , &c. without making mention of the manner of the Appropriation : And as to the traverse of the County , he conceived , that the County , is not traversable in this case , for when the Tithes are severed from the nine parts , they are presently vested in the party who hath right , Traverse . and they are things transitory , and also the taking of them , for the party may take them in any place as well as in his own Parish , scil. as well at Westminster , where the Queen supposeth the taking , as at Ethelborough where the Defendant doth justify , &c. and in such cases the place where is not traversable . See ● H. 6. 62 , 63. by Babbington , 35 H. 6. 5. In Trespass of Goods taken in the Parish of Saint Clements , in the County of Midd. the Defendant did justify by buying in open Market in the County of Essex , there needs no traverse , for the Defendant hath made title by an open Market , 34 H. 6. 15 , 16. In Trespass of Battery at D. in the County of Essex , the Defendant pleaded , that the Plaintiff made an assault upon him at B. in the County of Kent , and the Defendant fled , and the Plaintiff pursued him continually unto D. aforesaid , at which place the Defendant did defend himself , and so the hurt which the Plaintiff had was of his own assault , and demanded Iudgment if Action , the same is a good Plea without traversing of the County , for a Battery may be continued from one County to another . And it was observed by Manwood in citing of that case , that although , prima facie mirum videri potest that a Battery may be continued from Essex into Kent , because the River of Thames is betwixt them , and yet , re intellecta , it is plain , for one parcel of Land containing thirty Acres of Lands of the Coasts of Essex is within the County of Kent , See also 34. H. 6. 5. by Prisot , In Trespass of Goods taken at Coventry , the Def. doth justify the taking because the Plaintiff gave the said Goods to the Defendant at London , by force of which he took them at London , absque hoc , that he took them at Coventry , and that traverse not holden good , for the Defendant by such a gift might justify the taking of the Goods in any place as well as in the place where the gift was made ; but if in such case the Defendant had pleaded , that the Plaintiff delivered the said goods to him at London to deliver them over to A. by force of which he took them at London , and delivered them over accordingly , in such Cases the Defendant may well traverse the place supposed by the Declaration , for by his Plea he hath confessed an immediate delivery of the said goods to him by the Plaintiff ; and the delivery and the taking all at one time and at one place , and it had not been a good plea for the Defendant to say , that the Plaintiff delivered to him the said goods at London , by force of which he took them at Coventry , for the possession is confessed by the first delivery of the goods at London ; and the supposal of the Plaintiff of a taking in Coventry , and the justification of the Defendant of a taking by reason of a delivery at London , cannot stand together . But if the Defendant plead , that the Plaintiff gave to him the goods in London , by force of which he took them there , there he may take traverse to the place supposed by the Declaration , for by the gift it is lawful to the Defendant to take the goods in any place . So see 19 H. 6. 35. In false Imprisonment supposed in the County of W. the Defendant doth justify as Sheriff of the County of B. by force of a Writ to him directed to attach the Plaintiff , and so he attached him and imprisoned him at C. in the County of B. there the Defendant traversed the County supposed by the Declaration , for otherwise he doth not meet with the Plaintiff , and the authority of the Defendant doth not extend to the County supposed by the Declaration . See also to the same purpose 22 E. 4. 39. by Hussy , where the difference is taken when justification is by reason of a Warrant to take goods in any place whatsoever , and where in a place certain , as to the traverse of the Foundation , absque hoc , quod praedict. Collegium fundatum fuit per nomen Decani , & Capituli Ecclesiae colleglatae Sancti Petri de Ethelborough apud Westm. he hath here traversed that which was not alledged , for the placing of the last words of the traverse , scil. apud Westminst . in the end of the traverse seems by common construction to be intended thereby , that there is no such Colledge at Westm. and not that the Colledge was not founded at Westm. for then the traverse should be , absque hoc , quod collegium praedictum fundatum fuit at Westminster , per nomen , &c. But the most proper traverse , that the Defendant could have taken in this case had been , absque hoc , quod Decanus & Capitulum Ecclesiae collegiat . de Ethelborough was seised ; for the Corporation mentioned in the Bill , and that which is mentioned in the Bar , are not all one , but differ in this manner , scil. in the Bill the Dean and Chapter , &c. in the Bar the Dean , Cannons , and Bretheren , and perhaps there are two such Corporations , and then both cannot be seised , and therefore upon the seisin of one of them , the traverse shall be taken : And afterward Iudgment was given for the Queen .

L. The Queen , against the Bishop of London , and Scot. Mich. 28 & 29. Eliz. In the Common Pleas.

Quare Impedit . 3 Len. 175. THe Queen brought a Quare impedit against the Bishop of London , and Scot , and the Case was , that A. seised of an Advowson in gross , holden of the Queen in chief , aliened the same by Fine without Licence ; the Church became void , the Conusee presented ; The Queen without office found , brought a Quare impedit , the question was , if the Queen without office found , Office trove . should present ; And it was argued by the whole Court , that if the Alienation had been by Deed only , that there the Queen without office found should not have had the presentment , for upon such an Alienation by matter in fact , without Licence no Scire facias should issue without office found of the Alienation , Scire facias . but upon an Alienation without Licence by matter of Record , a Scire facias lyeth before office , which was granted by the whole Court : And in the last case the Queen shall have the mean profits from the time of the Scire facias returned , but in the first case from the time of the office found , See for that Stamford Prerogative , fol. penult. 8 E. 4. 4. It was also moved , if the Queen intituled to the presentment as above , pardoneth to the Conusee all Alienations without Licence , and Intrusions , if the estate of the Incumbent be thereby confirmed , but the Court would not argue that point ; but it was adjorned until another day .

LI. Braybrooks Case . Mich. 28 & 29. Eliz. In the Common Pleas.

Pines levyed . THe Case of one Braybrook was moved , which was , Land was given to A. for life , the Remainder to B. for life , the Remainder to the said Braybrook in Fee : B. being in possession levyed a Fine to a stranger , sur conusans de droit come ceo &c. A. dyed , if now Braybrook might enter for the forfeiture was the question : And it was agreed by the whole Court , that by that Fine the Remainder in Fee is not touched , or discontinued , Co. 1 Inst. 251 , b. 252. 2 Forfeiture . 9 Co. 104. Post . 211 , 212. 1 Cro. 219. 220. but because B. had done as much as in him lay for the disposing of Fee-simple by the Fine , and hath taken that upon him , the same amounts to a forfeiture : And it was also agreed by Anderson and Periam , that if Tenant for life in possession leveyeth a Fine , &c. if the Lessor doth not enter within five years after , he shall be bounden : Windham contrary , for by him it is in the election of the Lessor to re-enter immediatly for the forfeiture , or to expect the death of the Lessee .

LII . Willshalge and Davidges Case . Mich. 28 , & 29 Eliz. In the Exchequer Chamber .

WIllshalge brought Error in the Exchequer Chamber , En●r . upon the Statute of 27 Eliz. Cap. 8. against Davidge , upon a Iudgment given in the ●ings Bench , Hill. 28. Eliz. and assigned for Error , that where Davidge had heretofore brought Debt against the now Plaintiff , and declared upon diverse Contracts , scil. that he had sold to Willshalge such Merchandizes for so many Portugues , and such Merchandizes for so many Ducats , which in toto amounted to seven hundred pounds Sterling , which sum he demanded , scil. in Sterling many , 2 Cro. 88. 3 Cro. 536. Yel . 80. 135. 136. and not in Ducats and Portagues , according to the Contract ; And upon the Declaration the said Willshalge had demurred in Law , and the Court gave Iudgment for the Plaintiff , for it is in his election to demand his debt in which of those Coyns he pleased , either in the proper Coyn of the Contract , or of Sterling , scil . in currant mony . And afterwards the said Iudgment was affirmed .

LIII . Henly and Broads Case . Mich. 28 , & 29 Eliz. In the Exchequer .

HEnly brought Trespass against Broad in the Kings Bench , 3 Len. 77 : Trespass . and declared , that the said Defendant simul cum quodam I. S. clausum suum fregit , &c. The Defendant pleaded to Issue , and it was found for the Plaintiff , and it was objected in stay of Iudgment , that the count was not good , for it appeareth therein , upon the shewing of the Plaintiff himself , that the Action ought to be brought against another also , not named in the Writ , Counts . and because the same appears of the Plaintiffs own shewing , the Declaration was not good , and notwithstanding that said Exception , Iudgment was given for the Plaintiff . Vpon which Broad brought a Writ of Error , and assigned the same matter for Error ; And there the Case of 2 H. 7. 16. 17. was cited , Error . where a difference is taken , where the Plaintiff declares , that the Defendant with one B. did the Trespass , him naming in certain , and where the Declaration is , that the Defendant , cum quibusdam alijs ignotis , &c. See 8. H. 5. 5. And at length all the Iustices of the common Pleas , and Barons of the Exchequer were clear of opinion , that by the common Law the Declaration was not good , for the reason , and upon the difference aforesaid : but if in Trespass against one , who pleads that the Trespass was done by himself and one B. to whom the Plaintiff hath released , and the Plaintiff traverse the Release , in that case , for as much as the matter doth not appear upon the Plaintiffs own shewing , but comes in on the part of the Defendant , and not denied by him , the Declaration is good enough : And it was further agreed by them all , that now this defect after Verdict is helped by the Statute of 18 Eliz. for it doth not concern substance but only form : And afterwards the first Iudgment was affirmed .

LIV. Wood and Fosters Case . Mich. 28 , & 29 Eliz. In the Common Pleas.

Replevin . Owen Rep. 139. Godbolt 113. WOod brought a Replevin against Humfrey Foster and others ; and made his plaint of the taking of one thousand Cattle ; Foster pleaded , Non cepit , and the others , that the property was in another ; upon which matters they were at issue . And as unto the first issue , the Case upon the Evidence was : that the late Lord Windsore was possessed of certain Sheep , and by his Will devised them unto Eliz. his Daughter for her advancement in marriage , and of his Will made his Wife his Executrix , and died , his Wife took to her Husband one Puttenham , who being thus possessed leased the said Sheep with a Farm for eleven years by Indenture , upon which it was agreed between the said parties , that the Lessee should keep so much of the Rent reserved upon the said Lease , to buy therewith so many Cattle over , so as the whole stock of the said Sheep upon the said Farm should amount to the number of one thousand Cattle ; and the Lessee also covenanted to yeild and render to the said Puttenham at the end of the said Term one thousand Sheep between two years shorne , and four years shorne . Afterwards Puttenham by his deed gave unto one A. who had married the said Eliz. the said one thousand Cattle , to have them after the said Term ; the Term expired ; Puttenham sold and granted them unto Wood , who brought them away with him . And the said A. pretending that the said Sheep passed to him by the said grant of Puttenham during the said Term , seised them , and the same was noctanter as they were driven in the high-way , unde magna contentio orta suit between the said parties , the one charging the other with felony , whereupon the Constable of the Town where , &c. supposing the said matter would grow to an Outrage , seised the said Cattle as felons goods , and afterwards went to the house of the said Foster , which was near unto the high-way , and asked his advise upon the matter , but he would not meddle therewith : Afterwards one Perkins , who had bought the said Cattle of the said A. came to Foster , and shewed to him , that the high-ways there were not sufficient for pasturage of the said Cattle until the said controversy be determined , and prayed that the Cattle be delivered to him the said Perkins to keep in the mean time ; to whom Foster answered , that if the said Perkins would find sufficient sureties to deliver back the Cattle to him who had right , that he would be content the said Perkins should take them ; whereupon the said Perkins was bound to Foster to that purpose , and took away with him the said Cattle ; And it was also given in Evidence , that the servants of the said Foster had seised the Cattle for the use of their Master . And by the clear opinion of the Court upon the whole matter shewed , Foster non cepit , and according to such direction of the Court the Iury found , that Foster non cepit ; and as to the matter of property , the Court was clear of opinion , that the grant made by Puttenham of the said Cattle , during the Term , was utterly void , for Puttenham during the same Term had not in the said Cattle either a general or a special property , nor also after the Term ; but if after the Term expired the Lessee will not according to his covenant deliver to Puttenham one thousand Sheep , then Puttenham is put to his Action of covenant , for here the Lessee was bound to deliver to Puttenham at the end of the Term , not the same Cattle which were leased , but such a number of Sheep , and the same ought to be between two years shorne , and four years shorne , which could not be the Sheep demised , for they did exceed such degree before the end of the said term , & then the grant of Puttenham during the Term is meerly void : And then when after the Term , the Lessee , according to the covenant , delivered to Wood one thousand Sheep , he might well sell them to the Plaintiff ; And such was the opinion of the whole Court ; and it was said by Iustice Windham , that if I let certain Sheep to one for two years , Property . now upon that Lease somewhat remains in me , but that cannot be properly said a Property , but rather the possibility of a Property which cannot be granted over . See 11 H. 4. 177. 178. 22 E. 4. 10. 11. In the same plea it was also holden , that in a Replevin where the plaint is of one thousand Beasts , and the Defendant justifies by reason of property , upon which the parties are at issue ; Now upon the Evidence the Defendant may surmise a lesser number of Beasts , and drive the Plaintiff to prove a greater number than that which the Defendant hath confessed upon the Evidence ; Notwithstanding that the number set down in the plaint be by the plea of the Defendant quodam modo admitted , and the lesser number surmised , and the contrary not proved shall go in mitigation of the damages , and the Iury shall conform their verdict in the right of damages , according to the proof of the number , notwithstanding that the number set forth in the plaint be not by the Plea denied by the Defendant , and so it was put in ure in this Case : for the Plaint was of the taking of one thousand Cattle , but the proof extended but to eight hundred sixty five . Note also in the same Plea it was holden , that whereas one Chock was returned upon several Iuries in two several Courts at Westminster , and both the Iuries are adjourned to one day ; now in which of the said two Courts the said Chock was sworn , he shall be discharged of his attendance at the other Court the same day .

LV. Carters Case . Mich. 28 , & 29 Eliz. In the Common Pleas.

CArter brought an Action upon the Case against I.S. and declared , Assumpsit . that A. was possessed of certain Lands for years , the Inheritance thereof being in the Wife of the Plaintiff , upon which Lease a Rent was reserved : The Defendant , in consideration that the Plaintiff would procure the said A. to assign the said Lease to the Defendant promised to pay the said Rent to the Plaintiff for all the residue of the Term : It was objected that upon this matter the Action doth not lie , because that the Plaintiff hath a higher remedy , scil. an Action of Debt or Distress ; but the opinion of the whole Court was that the Action did lie , for here upon the promise an Action is given to the Husband alone in his own right , whereas the Rent is due to the Husband in the right of his Wife in its nature , and the Rent is also to be paid for the Land . But upon this Assumpsit it is payable to the person of the Husband . And afterwards Iudgment was given for the Plaintiff .

LVI . Kimpton , and Bellamyes Case . Mich. 28 , & 29 Eliz. In the Common Pleas.

GEorge Kimpton brought a Replevin against Wood and Bellamy , Replevin . who make Conusance as Baylies to George Burgain for Damage Feasance . The Plaintiff in Bar of the Conusance , sheweth ; That he himself , and all those whose estate he hath in one hundred and forty Acres of Land time out of mind , &c. have had common for all manner of Cattle in six Acres of Lands , whereof the place where , &c. is parcel , and so put in his Cattle , &c. against which , the Defendants say that the Plaintiff , &c. had common in forty Acres of Land , whereof the said six Acres are parcel , all lying in Communi campo , and that the Plaintiff , a long time before the taking , had purchased two Acres parcel of the said forty Acres , &c. upon which there was a demurrer in Law ; It was argued by Serjeant Shuttleworth , that the Replication to the Bar to the avowry is not good , for in the Bar to the Avowry , the Plaintiff hath shewed , that he hath common in six Acres , and the same shall be intended common in six acres only , for common in forty acres cannot be the common in six acres ; as 35 H. 6. 38. In Debt for Rent reserved upon a Lease for years , the Plaintiff declared that he leased to the Defendant ten acres of Land , rendring the Rent in demand , the Defendant pleaded , that the Plaintiff leased to him the said ten acres , and also such a Rectory , rendring the same Rent , the same is no plea without traverse , absque hoc , that he leased the ten acres only : See Dyer 29 H. 8. 32. And the whole Court was clear of opinion , that for want of such traverse , Traverse . the plea is not good ; for by Periam the Common supposed in the bar to the Conusans out of the six acres , cannot be intended the Common supposed in the Replication , scil. out of the forty acres . And by him if in Trespass the Defendant justifie by reason of Common in six acres of Land , upon which the parties are at issue ; and the Defendant in Evidence shews , that he hath common in forty acres , whereof the said six acres are parcel , the same doth not maintain his title , but the issue shall be found against him : Post . 80 , 81. But by the Lord Anderson , because that this Demurrer is general , the other party shall not take advantage of that defect of pleading , for the want of the Traverse , and that by reason of the Statute of 27 Eliz. For Traverse is but matter of form , and the want of the same shall not prejudice the other party in point of Iudgment , but the Iudges ought to judge upon the substance , and not upon the manner and form of the pleading : And as to the matter of the Common , Extinguishment . the Court was clear of opinion , that by the purchase of the said two acres , the whole Common was gone .

LVII . Knights Case . Mich. 28 , & 29 Eliz. In the Common Pleas.

KNight brought Debt against three Executors , and now surmised by his Counsel , that one of the Executors is dead , pendant the Writ ; Debt . and prayed the opinion of the Court , if the Writ should thereby abate or not ; for by some it is not like where a Writ is brought against two Executors , Abatement of Writ . for there if any of them dieth , pendant the Writ , it shall abate , for now the plural number is gone , for there is but one Executor , but in our Case the plural number continues : But notwithstanding that , the Court was clear of opinion , that the Writ should abate : Wherefore the Plaintiff seeing the opinion of the Court , prayed that upon his surmise aforesaid , he might have a new Writ by Iourneys Accounts , which was granted to him .

The Queen and Middletons Case . Mich. 28 , & 29 Eliz. In the Common Pleas.

Quare Imped . THe Queen brought a Quare Impedit against Middleton , and counted , that W. Lord Say was seised of the Manor of Bedington in the County of Hertford , to which Manor the advowson of the Church was appendant , & ad Ecclesiam praedict. praesentavit Coo Clericum suum , and afterwards died seised , having issue two Daughters , Mary married to the Earl of Essex and Ann to the Lord Mountjoy , who make partition , and the said Manor of Bedington , inter alia , was allotted to the said Mary for her part ; and afterwards the said Earl and Mary died , having issue Ann , who took to Husband the Marquess of Northampton , and afterwards 33 H. 8. a Fine was levyed of the said Manor inter &c. Querent . and the said Marquess and Ann Deforceants , by which Fine the said Manor was granted and rendred to the said Marquess for term of his life , the remainder to the said Ann his Wife in tail , the remainder over to Hen. the eighth in Fee ; the Marquess is attainted of High Treason , by which the King seised , and afterwards Ann died without issue , after which in the seisin of the Queen that now is the Church voided , by which it belonged to the Queen to present ; The Defendant did confess the seisin of the Lord Say , and the whole matter contained in the Count until the Attainder ; and pleaded further , that after the said Attainder Queen Mary leased the said Manor with the advowson to Rochester and Walgrave for forty years , if the said Marquess should so long live , who were possessed accordingly , and in their possession the Church became void , to which Avoidance one Twiniko did present the Defendant , who upon his presentment was instituted and inducted : Vpon which Plea the Queens Serjeant did demur in Law. It was argued by Serjeant Shuttleworth for the Queen , That the counter-pleading of the title of the Queen by the Incumbent , without shewing title in his own Patron could not be good , nothwithstanding the Statute of 25 E. 3. Cap. 7. before which Statute , the Incumbent could not plead any matter which went to the right of the Patronage , but only in discharge or excuse of the disturbance , and therefore we ought to observe the words of the said Statute , sc. the possessor shall be received to counter-plead the Kings title , and to have his Answer , and to defend his Right upon the matter , although he claim nothing in the Patronage ; upon all which words taken together it appeareth , that the Incumbent ought not only to counter-plead the title of the King , but also to shew and defend his own right , and that hath not the Defendant done here ; For Twiniko , of whose presentment he is in the Church , doth not claim under the lease made by Queen Mary to Rochester and Walgrave , but during their said Lease and their possession of it , by usurpation presented the Defendant , 46 E. 3. 13. by Finchden , The King brought a Scire fac . upon a Recovery in a Quare Impedit , the Defendant being Incumbent pleaded , that after the said Iudgment the King had presented to the said Church I.S. his Clerk , who was admitted accordingly ; and exception was taken because the Defendant did not shew a title in himself to maintain his possession , but it was not allowed ; for a difference is taken betwixt a Plea in a Quare Impedit , and a Plea in a Scire facias , Where in pleading the party must make title to himself . for in a Scire facias it is sufficient to extort the Plaintiff of execution without any title , contrary in a Quare impedit : And it is a general Rule , that in all Cases where an Office is to be traversed , none shall be received to traverse the title of the King , without making a title to himself , which see 38 E. 3. 18. So in the Case of the Lady Wingfield , 3 H. 7. 14. and Stamford 63 , 64. And it is true in Actions real it is sufficient to traverse the title of the Demandant , without making title to the Tenant himself : As in a Formedon , Ne dona pas ; But in Actions personal it is otherwise , as 2 H. 4 , 14. In Ravishment of Ward , it is not sufficient to traverse the title of the Plaintiff , but the Defendant ought also to make title to himself . Fenner Serjeant contrary : who took exception to the Writ , 2 Len. 5● . because it is brought against the Incumbent only without naming the Patron or Ordinary : For here the Defendant hath pleaded , that he is Parson impersonee of the Church aforesaid of the presentment of the said Twiniko , and that he is admitted , instituted and inducted , and hath continued in his Church so many days and years , in which Case the Writ ought to have been brought as well against the Patron and Ordinary , as against him the Incumbent : But in some Cases it is sufficient against the Incumbent only , as upon a Collation by Lapse , 9 H. 6. 32. by Babbington : So where the Defendant is disturber without any presentment , 7 H. 4. 93. so where the Defendant was deprived , and kept himself in 4 E. 4. 18. So where the Pope makes Provision , 11 H. 4. Quare Impedit 120. So a Scire facias upon a Recovery in a Quare Imped . shall be brought against the Incumbent only 1 H. 5. 8. for by the Iudgment in the Quare impedit , the right of the Patronage is bound ; and the Scire facias is only for the possession , which concerns the Defendant only , and no other . And to prove that by the Common Law , a Quare Impedit lay not ( but upon such special matter ) against the Incumbent alone , it is clear upon the said Statute of 25 E. 3. For before the said Statute the Incumbent could not plead any matter which did trench to the right of the Patronage , and therefore we ought not to presume that the common Law was so unreasonable to give an Action against a singular person , who could not by the Law shew and defend his own right , nor traverse the right of the other party : And as to the plea here , he conceived that the same plea which the Patron might have now after the Statute of 25 E. 3. the Incumbent shall have ; but he who is only a disturber not in by presentment , &c. he shall not plead any matter but in discharge or excuse of the disturbance , 47 E. 3. 8. The King in a Quare Impedit counted , That King H. was seised , and presented one A. King H. died , and the Advowson descended to King E. 3. A. died , the now King presented B. and now B. is dead , so it belongs to the King to present ; that the Defendant being Incumbent traversed the institution and induction of B. without making title to himself . So 44 E. 3. 19. in a Quare Impedit the King declared that he himself was seised and presented one B. who at his presentment was received , &c. B. died , by which it belonged to the King to present ; to which the Defendant being Incumbent pleaded , that the said B. is yet alive , and that plea was allowed without other title made to himself . Note , that at the first Argument of this case , that the Court was of opinion against the Defendant , because he had not in his plea any interest in the Advowson ; and by Periam the Patron himself could not have had such plea if he had been party to the Writ , therefore not the Incumbent ; and it is no good pleading in any Action , to discover in pleading any wrong , as force , disseisin , usurpation . But at length , Mutata opinione , all the Iustices were agreed , that Iudgment should be given against the Queen : And the Lord Anderson shewed openly the reason of their Iudgment , for here is not bare usurpation pleaded against the Queen , but also an estate , scil. a Lease for years in the said Advowson derived from Queen Mary , and that the Avoidance upon which the Action is brought falleth within the said Term , so as the Queen who is Plaintiff is encountred with the Lease of her Ancestor , against which she cannot make title to present , without special matter ; wherefore Iudgment was given against the Queen .

LIX . Kynters Case . Mich. 28 , & 29. Eliz. In the Common Pleas.

Debt . KYnter brought debt upon an Obligation , the condition was , that whereas the Plaintiff had bought of the Defendant a Ship , if then the Defendant shall enjoy the said Ship , with all the furniture belonging to the same without being disturbed for the said Ship or any furniture appertaining to it ; that then , &c. and the Case was , that after the sale of the said Ship a stranger sued the Plaintiff for certain monies due for certain Ballast bought by the Defendant for the same Ship and put into the said Ship before the sale of it , and in the said suit the Plaintiff obtained a Iudgment and Execution , and thereupon the said Ship was seised , and all the matter was , if Ballast be furniture of a Ship or not ; And it was moved by Serjeant Gawdy , that it was ; for Ballast is as necessary to a Ship as a Sail ; but the Court was against him , for somtimes a Ship may sail without Ballast , for it may be laden with such Merchandizes which are convenient Ballast in themselves , as Coals , Wheat , &c. Periam at the first doubted of it : and by him , if I be bound upon condition , ut supra , I am bound to deliver the Guns being in it at the time of the sale , but yet he conceived , that the Plaintiff should be barred because he had not specially shewed , that at the time of the sale the Ballast was in the Ship.

LX. Pendleton and Gunstons Case . Mich. 28 , & 29 Eliz. In the Common Pleas.

PEndleton informed against Gunston upon the Statute of 13 Eliz. Cap. 5. for that , where the said Pendleton had before brought a plaint of Debt against I.S. in the Guild-Hall of Norwich ; upon which issued out of the said Court an Attachment against the said I.S. by which the Sheriff of Norw . being ready by virtue of the said process to attach the said I. S. by his goods , there , the now Defendant in disturbance of the said process and the execution of it , did publish and shew to the Sheriff a conveyance , by which he claimed the said goods as conveyed to him by the said I. S , &c. and averred the fraud , &c. and it was moved by Serjeant Snagg , that the matter of which the Defendant is charged is not within the said Statute , because the avowing of the said conveyance doth not go in delay of the execution ; for no Iudgment is given but only in delay of process ; but the Court was clear of opinion to the contrary , and that by reason of the Statute and the words of it , scil. delay , hinder , or defraud Creditors of their just and lawful Actions , sutes , &c. for here is a delay ; for want of serving the said Attachment , the Appearance of I.S. to the sute of the Plaintiff is delayed , which mischief is within the remedy of the said Statute . And Periam and Rhodes Iustices conceived , that such avowing of such conveyance , where no sute is depending is within the said Statute , which Anderson doubted . See the pleading of this Case reported in the second Book of Entries , 207 , 208. 30 Eliz. per quod secta impedita fult , &c.

LXI . Mich. 28 , & 29 Eliz. In the Common Pleas.

FEnner Serjeant moved this Case . 4 Len. Alien , Purchasor . An Alien purchaseth Lands in Fee ; The Queen confirms it to the Alien , Office is found , if the confirmation shall bind the Queen ; and it seemed to some that it should , for by the Lord Anderson , Confirmation . when an Alien is enfeoffed he receiveth by the Livery the Fee-simple , of which he shall be seised , until Office be found ; and a Praecipe quod reddat lyeth against him . And by Fenner an Alien and Denizen Ioynt-tenants are disseised , they both shall joyn in Assize , vide 11 H. 4. 26. and by him , the Kings Nief being an Inheritrix takes a Husband , and hath issue , Office is found , the Husband shall be Tenant by the Curtesy , which see 33 E. 3. Traverse 36. It was argued of the other side , that the estate of the Alien is so feeble that a confirmation cannot enure upon it ; for an Alien cannot take but to the use of the King , and cannot be enfeoffed to another use ; and if he be , such use is void , for there is not a sufficient seisin in the Alien to carry an use . And it hath been adjudged in the Case of one Forcet , that where an Alien and the said Forcet were Ioynt-purchasors , and the Alien died , Forcer had not the whole by the Survivor , but that upon an Office found , the Queen should have the moyety : See Dyer 11 Eliz. 283.

LXII . Sir Roger Lewknor and Fords Case . Mich. 28 , & 29 Eliz. In the Common Pleas.

1 Cro. 17. Co. 5. Rep. 12. b. SIr Roger Lewknor seised of the Manor of Wallingford , leased the same to A. for years , and died , after which it was Enacted by Parliament , That the said Manor should from henceforth be deemed and reputed in the Heirs of the body of the said Sir Roger , begotten upon Eliz. his Wife , the said Sir Roger having three Daughters only , without any other issue : The Daughters married Husbands and had issue : A. assigned his enterest in the said Manor to B. C. and D. and also to one Shelley ; B.C. and D. assigned their interest to one Sponer , one of the Defendants , and Shelly assigned his fourth part to Ford another of the Defendants , excepting the Woods and Vnderwoods . Wast is committed ; one of the Daughters having issue dieth , living her Husband , the two surviving Sisters and their Husbands , the Term being expired , brought a Writ of Wast , leaving out the Husband of the third Sister , who was Tenant by the Curtesy , against Shelley and Sponer , who Tenuerunt . Shuttleworth Serjeant took Exception to the Writ : scil. praedictus Rogerus cujus haeredes ipsae funt , which shall be intended Heirs general , and by the Declaration it appeareth , that the Daughters have to them by Act of Parliament an especial inheritance as Heirs in special tail , and that by a special conveyance : and therefore the Plaintiffs ought to have brought a special Writ , according to their Case , as where Cestuy que use , maketh a lease for years by the Statute of 1 R. 3. and the Lessee committeth Wast , now the Feoffees ought to have a special Writ of Wast , according to their Case , 26 H. 8. 6. but that exception was disallowed , and the case cited out of 6 H. 8. is upon another reason , for in such case the estate of the Lessee for years is created by the said Statute . Another Exception was taken to the Writ , for the Writ is tenuerunt , which shall be intended prima facie , conjunctim tenuerunt , and in the Declaration it appeareth , that one of the Defendants is assignee of three parts of the Lands demised , and the other Defendant of the fourth part , and so separatim tenuerunt , but that Exception was also disallowed , because originally it was one and intirely demised interest and estate , and so it remaineth as to the Plaintiffs , although it be devised by the Lessee himself . Another Exception was taken to the Writ , because here it appears upon the Plaintiffs shewing , that Sir Roger Lewknor had three Daughters , and that they have all taken Husbands , and that they have issue , and that one of the said Daughters is dead , living her Husband , who is not named in the Writ , for which cause the Writ shall abate : See 22 H. 6. 24 , 25. But that Exception was also disallowed ; for as this Case is , there is not any reason , that the Tenant by the Curtesy should joyn in this Action , for no judgment shall be given here , that the Plaintiffs shall recover the place wasted , for the term is expired , as it appeareth by the words of the Writ , scil. quas tenuerunt , and the Tenant by the curtesy is in possession , and where Tenant by the curtesie and the Heir joyn in an Action of Wast , Tenant for life shall have Locum vastatum , and the Heir the damages , which see 27 H. 8. 13. As unto the matter of Law , upon the Exceptions of Woods and Vnderwoods , it was argued by Shuttleworth , that the Action of Wast was not well brought against Ford , &c. for the Assignment made by Shelley to Ford was with an exception of all Woods and Vnderwoods , and therefore Shelley remained Tenant , and he ought to answer for the Wood and the Vnderwood in the Action of Wast , for upon every demise of Lands the Woods there growing are as well demised as the Land it self , for so it appeareth by the Writ of Wast in domibus & boscis dimissis ad terminum annorum , &c. which proves , that the Trees are parcel of the demise , and so may be execepted : See Dyer 28 H 8. 19. by Shelley and Baldwin . A man leaseth a Manor , except Woods and Underwoods , the Lessee cuts the Trees , an Action of Wast doth not lie against him for the same , for the thing in which the Wast is supposed to be committed was not demised , &c. and therefore the Lessee shall be punished as a Trespassor and not as Farmer : Fenner Serjeant contrary , and that the Exception of the Woods and Vnderwoods is meerly void ; for Shelley who assigns his interest with the said Exception , hath not any such interest in the Woods and Vnderwoods , so as he can make such exception , for he had but an ordinary interest in them as Farmer , viz. House-boot , Hedge-boot , &c. which interest cannot by any means upon an Assignment be reserved to the Assignor , in gross of the estate , no more than if one hath common appendant to his Land , and he will make a Feoffment of the Land , reserving , or excepting the common . And he who hath the inheritance of the Land , hath an absolute property in the Trees , but the Lessee hath but a qualified interest , and therefore 21 H 6. 46. the Lessor during the term for years may command the Trees to be cut down : and 10 H. 7. 3. Lessee for years hath not any interest in the Trees , but for the loppings , and for the shadow for his Cattle : And in the Case cited , where Lessee for life and he in the Reversion make a Lease for life unto a stranger , and wast is committed , Co. 1 Inst. 42. 2. and they bring an Action of Wast , the Lessee for life shall have the place wasted , and he in the Reversion the treble damages , for in him was the true and very property of the Trees , and therefore the treble damages do belong unto him , and not to the Lessee for life , who joyneth with him ; and the reason wherefore the Lessee for life or years shall recover treble damages against a stranger who cuts down any Trees growing upon the Land to him demised , is not in respect of any property that the Lessee hath in the Trees cut down , but because he is chargable over to his Lessor in an Action of Wast , in which he shall render damages in such proportion . So see 27 H. 6. Wast . 8. A lease for life is made without impeachment of wast , a stranger of his own wrong cuts down Trees , against whom the Lessee brings an Action of Trespass ; in such Case he shall not recover treble damages , not for the Trees , but only for the breaking of the Close , and the loppings , for he is not chargeable over to his Lessor for the same , because that his Lease was made without impeachment of Wast ; and if the Lessee hath such a slender interest in the Trees where his Lease is without impeachment of wast , his interest is less , where it is an ordinary lease without any such priviledge : And the property which the Lessee for years hath in the Trees in such Case , is so appropriated to the possession , that it cannot be severed from it . Windham and Anderson Iustices were of opinion , that the Exception above is meerly void : For Ford the Assignee of Shelly is now Termer and Farmer , who alone can challenge interest in the Trees against all but the Lessor , and Shelley after his Assignment , is meerly a stranger . The interest of the Lessee , and also of his Assignee in the Trees is of necessity , and follows the Farm and the Land as the shadow doth the body ; And by him , where Lessee for years by reason of his lease is to have Wind-fals , yet he cannot imploy them but to the benefit and profit of his Farm , for if he sell them or spend them elsewhere he shall be punished . Rhodes and Periam Iustices , that the exception is good , as the fruits of the Trees , Shovelers , &c. And afterwards the Case was adjudged upon another point in the pleading , so as the matter in Law did not come to Iudgment : See Saunders Case . 41 Eliz. Where Lessee doth assign , excepting the Timber Trees , it is a void Exception .

LXIII . Gray and Jeffes Case . Pasch. 29 Eliz. In the Kings Bench.

1 Cro. 55. Action of assault and Batterry . IN an Action upon the Case by Gray against Jeffe , the Plaintiff declared , that where he had placed his Son and Heir apparent with the Defendant , to be his Apprentice , and to learn of him the Art of a Tailor : That the Defendant had so beaten his Son with a Spade , that he thereupon became lame , by reason of which he could not have so much with his Son in marriage of him as otherwise he might have , because the same lameness is a disparagement to his said son : And further shewed , that he himself might spend twenty pounds per annum in Lands . Haulton argued for the Plaintiff . The Action Quare filium & haeredem cepit & abduxit , is given to the Father in consideration that the marriage of his Son and Heir doth appertain to him by the Law , and here by the Battery the Son is become so same , that he is not so commendable to a Marriage as before , and if the Father had lost the whole marriage , then the Father should have had the Action Quare filium & haeredem , &c. but here he hath not lost the whole marriage , but the marriage is lessened by it , and therefore he shall have this Action . Tanfield contrary ; I confess , that the Father ought to have the marriage of his Son and Heir so long as he is sub potestate patris ; but here the Father hath committed all his interest , power and authority in his Son to the Defendant his Master , with whom he hath bound his Son Apprentice for seven years , during which term the Father hath not any thing to do with his Son or his Marriage . Wray : The Action Quare filium & haeredem , &c. is not given to the Father , because his marriage belongs to him , but because of the Education ; and such was the opinion of Clench Iustice , and the marriage doth not belong properly to the Father : For if the Son marrieth himself without the leave of the Father there is not any remedy for the Father . And afterwards Iudgment was given against the Plaintiff .

LXIV . Bullers Case . Pasch. 29 Eliz. In the Common Pleas.

●●●●evin . EDmund Buller brought a Replevin against two , who make Conusans as Baylies to A. for rent arrear reserved upon a lease for life , To which the Plaintiff in Bar of the Conusans pleaded , that two strangers had right of Entry in the place where , 2 Len. 196. &c. and that the said two Defendants by their Commandment entred , &c. and took the Cattle of which the Replevin is brought , damage feasant , absque hoc , that they took them as Baylies to the said A. and upon that Traverse the Defendants did demur in Law. 2 Len. 216. Post . 327. Shuttleworth Serjeant ; the Traverse is not good , for by that means the intent of the party shall be put in issue , which no Iury can try , but only in Case of Recaption . See 7 H. 4. 101. by Gascoign . If the Bayly upon the distress shews the cause and reason of it , he cannot afterwards vary from it , but the other party may trice him by Traverse ; but if he distrain generally without shewing cause , then he is at large to shew what cause he will , and the other party shall answer to it . ● Co. 7● . And it was said by the Court , that when a Bayly distreins , he ought , if he be required , to shew the cause of his distress , but if he be not required , then he is not tied to do it . Anderson . We were all agreed in the Case betwixt Lowin and Hordin , that the Traverse , as it is here , was well taken . The Number Roll of that Case is M. 28 , & 29 Eliz. 2494.

LXV . Hudson and Leighs Case . Pasch. 29 Eliz. In the Kings Bench.

HUdson recovered against Leigh in an Action of Battery , for which a Capias pro fine issued against Leigh ; and also a Capias ad Satisfaciendum , returnable the same Term at one and the same Return : Process . As to the Capias pro fine the Sheriff returned Cepi , and as to the Capias ad Satisfaciendum , non est inventus : And for this contrariety of the Return , the Court was of opinion , that the Sheriff should be amerced ; but it was moved by the Council of the Sheriff , Return of the Sheriff . that the awarding of the Capias pro fine was meerly void , for the Fine is pardoned by the Parliament . And it is also Enacted , That all process awarded upon such Fines shall be void ; and then the Capias pro fine being void , it matters not how or in what manner it be returned , for the Court shall not respect such process , nor any return of it , and then the Court not having resepect to that Return , there is not any contrariety , for the Capias ad Satisfaciendum only is returned , and not the Capias pro fine . And at another day it was moved again ; the Battery was supposed : Junij 1586. and Iudgment given the thirteenth of February the same year , upon which issued Capias pro fine , Escape . 5 Co. ●● . and before the Return thereof the Parliament ended , which pardoned such Fines and made all process thereupon void : And it was said by the Court , that if the Sheriff in such Case takes the party by a Capias pro fine , now upon that taking he is in Execution for the party , and if the Sheriff let him go at large , he shall answer for the escape : And in that case the Capias pro fine was well awarded , and the Court ought to regard it , and the Defendant lawfully taken by virtue of it , and also in execution for the party in Iudgment of Law ; and afterward , when the Parliament came and Enacted ut supra , although the process be made void thereby , the same ought to be meant as to the interest of the King in the Fine , and the vexation of the Subject by it , but not as to the Execution of the party , but the Sheriff shall answer for that . Execution . And it was also holden by the Court , that if the Plaintiff sueth an Elegit , then upon the Capias pro fine executed , the Defendant shall not be adjudged in Execution for the party , for he hath made his Election of another manner of Execution , scil. of the Land , and he shall never resort to an Execution of the body , 13 H 7. 12. And as our case is there was an Elegit obtained , but it was not on Record , nor any Record made of it , and therefore the election of the Execution remained to the Plaintiff . And as to the point aforesaid , that such process shall be void as to the King only , not as to the party : See now 5 Ja. C. 6. part . 79. Sir Edward Phittons Case .

LXVI . Potter and Stedals Case . Pasch. 29 Eliz. In the Common Pleas.

IN Trepass by Samuel Potter against Stedal the Case was , Trespass . Tenant for life of Land leased parcel thereof to hold at Will , and being in possession of the residue , levyed a Fine of the whole , the Lessor entred into the Land which was let at will in point of forfeiture , in the name of the whole ; it was holden the same is a good entry for the whole : Ante 56. But if the Disseisor leaseth for years part of the Land , whereof the disseisin was committed , Entry . 1 Inst. 252. and the disseisee afterwards entreth into the Land which continueth in the possession of the Disseisor in the name of the whole , the same Entry shall not extend to the Land leased , for here the Lessee is in by title , but in the other Case not , for when Tenant for life leaseth it at will , and afterwards levies a Fine , the same is a determination of the Will . 16 Eliz. Dyer 377. 1. In the same plea it was holden , that if there be lessee for life , the remainder for life , the remainder in fee , Lessee for life in possession levyeth a Fine Sur Conusans de droit , &c. to his own use , upon that Fine a Fee-simple accrues .

LXVII . Leigh and Hanmers Case . Pasch. 29 Eliz. In the Common Pleas.

Debt upon a Recognizance THomas Leigh Esquire brought an Action of Debt upon a Recognizance in the nature of a Statute Staple against John Hanmer Esquire , before the Mayor and Aldermen of Lond. in Camera Guild-hall Civitatis pr●ed . and demanded 1500 pounds , upon such Recognizance acknowledged 20 November 20 Eliz. and upon default of the said Hanmen , Owen 25. according to the custom of London used in course of Attachment , attached six hundred pounds in the hands of one W. Bolton of Grays-Inn , in part of satisfaction of the said debt of one thousand five hundred pounds ; and now within the year came the said Hanmer , & ad disonerandum debitum praedicti had a precept of Scire facias against the said Thomas Leigh , and after pleaded , and demanded Dyer of the said Recognizance , and had it , & quod ipse restitutionem of the said 600 pounds , in manibus dict. W. Bolton attachiat . habere debet : And upon the whole Record the Case was thus : Rowland Leigh Esquire , being seised of certain Manors and other Lands in the County of Glocest . had issue Eliz. his Daughter and Heir inheritable to the said Lands , and by Indent . dated 20 Maii 19 Eliz. granted Custodiam , regulam , gubernationem , educationem , maritagium dict. Eliz. to the said Thomas Leigh , after which the said Thomas Leigh by Indenture 14 Martii 29 Eliz. granted and assign●d the said custody , Dyer 190 , 191. rule , government , education , and marriage , and all his interest therein , and the said Indenture , to Sir John Spencer , after which the said Sir John Spencer and Thomas Leigh , by their Indenture the 26. of August 20 Eliz. granted and assigned to the said John Hanmer the said custody , rule , government , education and marriage o● the said Eliz. and all their interest in the same , and all the recited Indenturs ; by which last recited Indenture 29 August , the said John Hanmer covenanted with the said Leigh , that Thomas Hanmer Son and Heir apparent of the said John Hanmer , maritaret & in uxorem duceret dictam Elizabetham : ad vel antequam dicta Eliz. & dictus Tho. Hanmer perimplerint , suas separales aetates 14 annorum , si dicta Eliz. ad id condestendere & agreare vellet ; and afterwards before the said Tho. Hanmer and the said Elizabeth , suas separales aetates 14 annorum , perimplevissent , sc. 8 die Sept. 20 Eliz. the said Tho. Hanmer took to wife the said Eliz. the said Tho. Hanmer then being aetatis 13 annorum and no more , and the said Eliz. then being of the age of nine years and no more , and Tho. Hanmer aforesaid over-lived , &c. And pleaded further , that the said Tho. Hanmer after he attained his full age of fourteen years , and before any agreement or assent by the said Tho. Hanmer to the marriage aforesaid betwixt the said Tho. Hanmer and the said Eliz. had , at or after , idem Thomas Hanmer came to his age of fourteen years , scil. 10 die Sept. Anno 22 Eliz. ad dictum matitagium disagreavit , & maritagium illud renunciavit ; and all this matter was pleaded in Bar , as performance of the Covenant contained in the Indenture of defeazance made upon the Recognizance , whereupon the Action is brought . And concluded his plea , unde petit , judicium si dictus Tho. Leigh actionem suam praed●ct &c. Et quod ipse idem Johannes Hanmer restitutionem dict. 600 li sc. ut praefert a●achiat habere valeat . And all the question here was , if this marriage had by this manner , and afterwards renounced as is aforesaid , be such a marriage as is intended in the Covenant , so as the said Covenant be satisfied by it . And it was argued before the Mayor Recorder , and Aldermen of London , in their Guild-Hall by Angier of Grays-Inn , on the part of Leigh the Plaintiff ; and he in his Argument did much rely upon the definition of marriage , by Justinian in his Institutions . Nuptiae maris & faeminae conjunctio individua continens viae societatem ; and the marriage here in question is not according to the said difinition , for the persons , parties to this contract , are not persons able by Law to make such contract , because that non attigerunt annos nubiles , Ergo nuptiae esse non possunt , but only sponsalia , a step unto marriage ; And there is also rendred one reason of the said definition upon the word individua , individuam dico , quia non nisi morte aut divortio separandum , but the marriage now in question might be dissolved without death or divorce , as it is in our case by disagreement : And see Jurisprudentiae Romanae , Lib. 1. Cap. 33. Societas & consortium omni vita inter marem & faeminam ad concubitum , which is societatis hujus consummatio ; And as every Act doth consist upon three things , 1. Inceptio , 2. Progressio , 3. Continuatio , so is it in the Case of marriage ; but in this case when Thomas Hanmer took the said Eliz. to Wife , that is but an inception , but the progression and consummation of it is cut off by the disagreement ; and he much relyed upon the words of the Covenant , s● dicta Eliz. ad id condescendere & agreare vellet , so as there is not any liberty left to the Defendant for the agreement or disagreement of the Son , but he ought , to agree at the peril of his Father ; but if Eliz. will not agree , then the Defendant is not at any mischief , for in such case the Covenant doth not extend to him ; and also here the Father is bound that his Son , a stranger to the Obligation should marry the said Elizabeth , which he ought to procure at his peril , or otherwise he shall forfeit his Bond. Egerton Solicitor of the Queen argued to the contrary ; This marriage as much as concerns this Covenant , is to be considered according to the reason of the common Law , and not according to the rules and grounds of the Canon or Civil Law , not as a marriage to right , but as a marriage in possession , and marriage in possession is sufficient always in personal things and causes , especially where the possession of the Wife is in question , 2 Roll. 585. but where the possession of the Husband is in question , there marriage in right ought to be , and where marriage in possession fals in averment , there it shall not be tried by the Bishop , as in the Case of a marriage of right , where , never accoupled in loyal matrimony , is pleaded , but by the Country , for in case of Wife in possession , never accoupled in matrimony , is no Plea , Postea . 181. 12 Len 170. 171. ●3 Len. 129. but not his Wife , which see 12 E. 3. br. 481. A. brought an Action of Trespass against B. and C. B. pleaded that C. is Wife of the Plaintiff , and demanded Iudgment of the Writ ; the Plaintiff by Replication said , never accoupled in Lawful matrimony , but it was not allowed , but was driven to say , not his Wife , for if C. was the Wife of the Plaintiff in possession or by Reputation , it is sufficient to abate the Writ : see also 49 E. 3. 18. by Belknap , the right of the Espousal is always to be tried by the Bishop , but the possession of the marriage ▪ not as in Assize by A. and K. his Wife ▪ the Tenant demanded Iudgment of the Writ upon special shatter and concluded , so is the said K. our Wife , and not the Wife of A. So in a Cui invita by B. and C. his Wife , the Tenant pleaded , never accoupled in loyal matrimony , the same is no answer to the Wife , for she demanded in her own right , and if he who aliened was her Husband in possession , the Wife could not have other Action , for Assize doth not lie , because he was her Husband in fact at the said time in possession . And see also 50 E. 3. 20. adjudged according to the opinion of Belknap : And see also 39 E. 3. As to the marriage in right , as the case in question is ; for upon such marriage , if the Husband be murdred before disagreement , the Wife shall have an Appeal of Murder , and a Writ of Dower : so where Appeal is brought of the Rape of his Wife , although she be his Wife but in possession , and not in right , 11 H. 4. 13. by Hulls 168. and by Littleton , if the Wife be of the age but of nine years , she shall have Dower , which see also 35 H. 6. and yet Dower shall never accrue but in case of marriage in right , for there , never coupled in marriage , is a good Plea , See 12 R. 2. Dower 54. In Dower the Tenant pleaded , that the Husband at the time of his death was but at the age of 10 years , and the Demandant now but 11 years , and yet Iudgment was given for the Demandant , for by Charleton the same was a marriage in right until disagreement , See 22 Eliz. Dyer 369. A woman at full age marrieth a Husband of 12 years , who dieth before the age of consent , the same is a good marriage , and so ought to be certified by the Bishop ; and 7 H. 6. 11. by Newton , a woman married within age of consent may bring an Action as a feme sole , and the Writ did abate . Stamford Prerogat. 27. 19 E. 3. Judgment 123. In a Writ of Ward , the Iury found , that the Infant was of the age of 10 years , and no more , but they did not know whether she was married or not , but de bene esse , if she be married , assess damages one hundred pounds , and if not , five pounds ; upon which it appeareth that marriage at such an age is such a marriage upon which the Lord shall recover damages ; See 13 H. 3. gard . 148. such marriage in the life of the Ancestor , infra annos nubiles , if there be no disagreement shall bind the King : And after the death of the Ancestor , the heir shall remain in custodia Domini Regis , usque ad aetatem ut consentiat , vel dissentiat , 45 E. 3. 16. In a Writ of Ward , the Infant was found of the age of 12 years , and the Iurors gave damages 300 marks , if he were married , and 27 H. 6. gard . 118. & 47 E. 3. Br. Trespass 420. and Fitz. Action upon the Statute 37. Trespass de muliere abducta cum bonis viri , where the wife is within the age of consent : and if I be bounden unto another in an Obligation , upon condition to pay a sum of mony upon the marriage day of I S. now , if I S. be married within the age of consent , I am bound to pay the mony the same day , although afterwards the parties do dissent , and the Wife after such marriage shall be received in a Plea real upon the Default of her Husband ; and the words , si dicta Eliz. ad id condescendere & agreare vellet , are to be understood of an agreement at the time of the marriage , and here the time is limited for the solemnization of the marriage , scil. at or before they shall have accomplished their several ages of 21 years , makes the matter clear ; For it is in the election of Hanmer the Father , to procure this marriage , scil. that his Son shall take to Wife the said Elizabeth , at which of the two times he will , scil. at or before , &c. to the marriage before &c. is as effectual in respect of the performance of this condition , as if the marriage had been had after ; and as the case is , the condition could not be better performed , for if the marriage had been stayed till after 14 years , &c. although the marriage doth not ensue , yet the Obligation had been forfeited , and that the marriage be solemnized just at the age of both of 14 years , was impossible , for Thomas Hanmer was the elder by 2 years than the said Elizabeth , and therfore they ought to be married at such time which might stand with the condition , and the same is done accordingly : And as to that which hath been objected , That now by disagreement the marriage is determined , we ought to observe that Hanmer was bounden for the performance of the Covenant , and that his son and heir apparent maritaret , & in uxorem duceret dictam Eliz. ud vel ante , &c. which is executed accordingly , and he is not bounden for the continuance of the said marriage , but the continuance of the same ought to be left to the law , which giveth to the parties liberty to continue the marriage by agreement , or to dissolve it by disagreement : And therefore if I am bounden to you , that I S. ( who in truth is an Infant ) shall levy a Fine before such a day , which is done accordingly , and afterwards the same is reversed by Error , yet notwithstanding the condition is performed , &c. and afterwards Iudgment was given against the Plaintiff .

LXVIII . The Earl of Warwick and the Lord Barkleys Case . Pasch. 29 Eliz. In the Common Pleas.

AMbrose Earl of Warwick and Robert Earl of Leicester brought a Writ of Partition against the Lord Barkley , Partition . Challenge . in which the parties pleaded to issue . And now at the day of the Enquest the Defendant did challenge , that in the whole Pannel there were but two Hundreders ; and at the first it was doubted by the Court , if upon the Statute of 27 Eliz. cap. 6. by which it is Enacted ; That no further challenge for the Hundred shall be admitted if two sufficient Hundreders do appear , the Enquest shall be taken : But at length the whole Court was clear of opinion , that the said Statute did extend but to personal Actions ; but this Action of Partition is a real Action ; and Summons , and severance lieth in it , but not process of outlawry , and therefore here four Hundreders ought to be returned ; so in an Action of Wast , although it be in the personalty : and therefore the Council of the Plaintiffs prayed a Tales .

LXIX . The Archbishop of York and Mortons Case . Pasch. 29 Eliz. In the Common Pleas.

THe Archbishop of York recovered in an Assize of Novel disseisin against one Morton before the Iustices of Assize ; 3 Len. 159. Error upon recovery in Assize . upon which Iudgment Morton brought a Writ of Error before the Iustices of the Common Pleas , and after many motions at the bar , it was adjudged that a Writ of Error upon the said Iudgment did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland , Error shall be brought in the Kings Bench in England , 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how , and in what manner the Record shall be remanded to the Iustices of Assize , so as the Archbishop might have execution ; To which the Court said , that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there ; and then out of the Chancery by Mittimus to the Iustices of Assize . But Fenner made a difficulty of it to take such course for the remanding of it , for doubt they would not allow it to be a Record where it is not a Record , for upon the matter the Record is not removed , but remains with the Iustices of Assize . Then Anderson said , Sue Excution out of the said Record ; but because the Record came before us by Writ of Error , it shall be also removed and remanded by Writ : and so it was .

LXX . Kempe and Carters Case . Pasch. 29 Eliz. In the Common Pleas.

THomas Kempe brought Trespass , Copyhold . for breaking of his Close against Carter : and upon pleading they were at issue , if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict: secundum consuetudinem manerii praedict. and it was given in Evidence , that within the said Manor were divers customary Lands , and that the Lord now of late at his Court of the said Manor granted the Land , &c. per copiam rotulorum curiae , where it was never granted by copy before : It was now holden by the whole Court , that the Iury are bound to find , Dominus non concessit , for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae , yet , non concessit secundum consuetudinem manerii praedict. for the said Land was not customary , nor was it demisable , for the custom had not taken hold of it . In the same Case it was also shewed , that within the said Manor some customary Lands are demiseable for life only , Evidence of customs . and some in Fee ; and it was said by the Lord Anderson , that he who will give in Evidence these several customs , ought to shew the several limits in which the several customs are severally running , as that the Manor extends into two Towns , and that the Lands in one of the said Towns are grantable for lives only , and the Lands in the other in Fee , and he ought not to shew the several customs promiscuè valere through the whole Manor : And he remembred a Case of his own experience : scil. The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold , scil. Sook-land and Bond-land , and by several customs disseverable in several manners : As if a man be first admitted to Sook-land , and afterwards to Bond-land , and dieth seised of both , his Heir shall inherit both ; but if he be first admitted to Bond-land , and afterward to Sook-land , and of them dieth seised , his youngest Son shall inherit , and if of both simul & semel , his eldest Son shall inherit ; But if he dieth seised of Bond-land only , it shall descend to the youngest : and if customary Land hath been of ancient time grantable in Fee , and now of late time for the space of forty years hath granted the same for life only ; yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case , If customary Land within a Manor hath been grantable in Fee , if now the same Escheat to the Lord , and he grant the same to another for life ; the same was holden a good grant and warrantable by the custom , and should bind the Lord , for the custom which enables him to grant in Fee shall enable him to grant for life : and after the death of the Tenant for life , the Lord may grant the same again in Fee , for the grant for life was not any interruption of the custom , &c. which was granted by the whole Court.

LXXI . Walker and Nevils Case . Pasch. 29. Eliz. In the Common Pleas.

Dower . WAlker and his Wife brought a Writ of Dower against Jervice Nevil , and judgment was given upon Nihil dicit , and because the first Husband of the Wife died seised , a Writ of Enquiry of Damages was awarded , by which it was found , that the Land which she ought to have in Dower , the third part was of the value of eight pound per annum , and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem & assident damna to eight pounds ; and it appeared upon the Record , that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam , Damages . so as it appeareth upon the whole Record put together , that damages are assessed for eight years , where the Demandants have been seised for part of the said eight years , upon which the Tenant brought a Writ of Error , and assigned for Error , because damages are assessed untill the time of the Inquisition , where they ought to be , but to to the time of the Iudgment ; but the Exception was not allowed ; Another Error was assigned , because that where it is found , that the Land was of the value of eight pounds per annum , they have assessed damages for eight years , to eighty pounds , beyond the Revenue ; for according to the rate , and value found by verdict it did amount but to sixty four pounds : but that Error was not also allowed ; for it may be , that by the long detaining of the Dower , the Demandants have sustained more damages than the bare Revenue , &c. Another Error was assigned , because Damages are assessed for the whole eight years after the death of the Husband , where it appeareth , that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower ; and upon that matter the writ of Error was allowed .

LXXII . Archpool against the Inhabitants of Everingham . Pasch. 29 Eliz. In the Common Pleas.

IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham , the Iury found , that the Plaintiff was robbed 2 Januarii post occasum solis , sed per lucem diurnam , and that after the Robbery committed , the Plaintiff went to the Town of Andover , and advertised the Baylies of the said Town of the said Robbery ; and further found , that the said Town of Andover is not within the said Hundred of Everingham , and that there is another Town nearer to the place where , &c. the Robbery was done , than the said Town of Andover within the said Hundred , but the said Town of Andover was the nearest place where , &c. by the Kings high-way : It was moved that upon this matter , the Plaintiff should not have judgment , for that he hath not made his Fresh sute according to the Law , for he ought to have begun his Fresh sute within the Hundred where the Robbery was done : and it was also objected , that the Robbery was done post occasum solis , in which Case the Hundreders are not to pursue the Malefactors . And Walmsley Serjeant cited a Case out of Bracton : Si appellatus se defenderit contra appellantem tota dle usque ad horam in qua Stellae incipiunt apparere , recedat quietus de appello , and it is not reason to drive the Hundreders to Follow felons at such a time , 1 Cro. 270. when for want of light they cannot see them . And all the Iustices were clear of opinion , that if the Robbery was done in the night time , the Inhabitants are not bound to make the pursute : And by Rhodes , if in a Praecipe quod reddat of Lands , the Sheriff summons the Demandant upon the Land in the time of night , such a summons is meerly void .

LXXIII . Wiseman and Wisemas Case . Pasch. 29 Eliz. In the Common Pleas. Intrat . Trin 28. Rot. 1458.

IN an Action of Debt by Wiseman against Wiseman , the Case was , Debt . 1 And. 160. Owen 140. that one Wiseman was seised of the Lands , and by his Will devised , 1. I will and bequeath unto my Wife B. acre for the Term of her life , the remainder to my Son Thomas in tail : Item I will and bequeath unto my Son Thomas , Devises . all my Lands in D. and also my Lands in S. and also my Lands in V. Also I give and bequeath unto the said Thomas my Son all that m● Island or Land enclosed with water which I purchased of the Earl of Essex : To have and to hold all the said last before devised premisses unto the said Thomas my Son , and the Heirs of his Body : The only matter was , If the Habendum shall extend to the Island only , in which Case Thomas shall have but for life in the Lands in D. S. and V. or unto the Island , and also to the Lands in D. S. and V ; 2 Roll. 60. Roph. 126. in which Case he shall have Fee-tail in the whole . And it was argued by Fenner , that the Habendum should extend to the Island only ; as he said , the opinion of the Iustices of this Court was in 4 Eliz. in another Case . I devise my Manor to D. my eldest Son , and also my Land in S. in tail , in that Case the entail limited for the Land in S. shall not extend to the 1 Roll. 844. said Manor , and of such opinion was Weston , Welsh , and Dyer ; Brown contra , that the Son hath tail in both . But if the words of the devise had been , I devise my Manor of D. and my Lands in S. to my Son in tail , here the Son had an estate tail in both . So it hath been adjudged , that if I devise Lands to A. B. and C. successively as they be named , the same is good by way of Remainder . Walmesley contrary , and he relied much upon this , that the words of the Habendum are in the plural number , 2 Bulst. 180. 181. All the last before devised premisses , whereas the thing lately devised by the Will was an Island in the singular number , which cannot satisfie the Habendum , Extent of an Habendum . which is in the plural number , and therefore to verifie the plural number in the Habendum , the Habendum by fit construction shall extend to all the Lands in D. S. and V. and so upon his motion made at another day , it was resolved by all the Iustices , that the Habendum should extend to all the said Lands , and the Habendum should not streighten the Devise to the Island only .

LXXIV . Fullwood and Fullwoods Case . Pasch. 29 Eliz. In the Common Pleas.

Bail renders himself in Court. IN an Action upon the Case , the Defendant put in bail to the Court to answer to the Action ; and now Iudgment being given against him , he came into Court and rendred himself , and prayed , that in discharge of his sureties , that the Court would record the rendring of himself , which was granted : And the Court demanded of the Plaintiff , if he would pray execution for the body against the Defendant , who said , he would not , whereupon the Court awarded , that the sureties should be discharged ; and the Rule was entred , that the Defendant offered himself in discharge of his sureties , and Attornatus Querentis allocatus per curiam , &c. dixit se nolle , &c. Ideo consideratum fuit per curiam , quod tam praedict. defend . quam praedict. Manucaptores de recognitione praedict. & denariis in eadem contentis exonerentur .

LXXV . Pasch. 29 Eliz. In the Common Pleas.

THe Case was , He in the Reversion upon a Lease for years , makes a Charter of Feoffment to divers persons to the use of himself for life , Feoffments . and after to the use of his eldest Son in tail ; and the words of the Charter were , Dedi , Concessi , Barganizavi , & Feoffavi , and he sealed and delivered the deed , but no livery of seisin was made ; and afterwards he came to his Lessee for years , and said to him , that he had made a Feoffment , and shewed also the uses , but did not shew to whom the Feoffment was made ; to whom the Lessee said , you have done very well , I am glad of it : Attornment . And if that were a good Attornment was the Question : It was said , that that was the Case of one Arden . And Gent , and Manwood were of opinion , that the same was no Attornment , because it was not made to the Feoffee , scil. to the Grantee of the Reversion ; and so it was ruled in this Case , for Attornment ought to be to the Grantee himself , and not to Cestuy que use .

1 Cro. 251. Tythes , and where the spiritual court shall have jurisdiction of them . LXXVI . The Parson of Facknams Case . Pasch. 29 Eliz. In the Common Pleas.

THe Parson of great Facknam brought an Action of Trespass against the Parson of Hannington , and the Case was , If the Parson of one Parish claim by prescription a portion of Tythes out of the Parish of another , if the Spiritual Court shall have the Iurisdiction , for the tryal of it : And the opinion of the whole Court was clear , that it should , because that the matter is betwixt two spiritual persons , and concerning the right of Tithes . As 35 H. 6. 39. I. Vicar of B. brought Trespass for taking away of forty loads of Beans , &c. The Defendant pleaded , that he is Parson of the said Church of B. and the Plaintiff is Vicar , &c. and before the Trespass , &c. the Beans were growing in the same Town , and severed from the nine parts , and he took them as belonging to his said Church , and demanded Iudgment of the Court , &c. The Plaintiff said , that he and all his Predecessors Vicars , &c. time out of mind , &c. have used to have the Tithes of such a Close , &c. belonging to his Vicaridge , and within the said Close the Beans were growing and were parcel of his endowment ; and that at the time of the taking they were severed from the nine parts , whereupon he took them . And it was holden by Ashton and Danby , because it is confessed on both sides that the Beans whereof , &c. were Tithes , the Right of which would come in debate betwixt the Parson and the Vicar , and both are spiritual persons , that the tryal thereof doth belong to the Spiritual Court. See 6 E. 4. 3. 22 E. 4. 23. 24. in such a matter betwixt the Parson and Vicar there the Temporal Court was ousted of the Iurisdiction . See also 31 H. 6. 11. betwixt the Parson and the Servant of another Parson . 7 H. 4. 102. In Trespass by a Parson against a Lay-man , who said , that one A. is Parson of a Church in a Town adjoyning to a Town where the Plaintiff is Parson , and that A. let to him the Tithe , and demanded Iudgment , &c. and pleaded to the Iurisdiction , and by Gascoigne , the Plaintiff may recover his Tithes in the Spiritual Court.

LXXVII . Bunny against Wright and Stafford . Pasch. 29 Eliz. In the Kings Bench.

IN Trespass the Case was this : Leases within 1 Eliz. and 32. 7 , 8. made by Bishops . Grindal Bishop of Lond. leased parcel of the possessions of his Bishoprick for one and twenty years , and afterwards ousted the Lessee and leased unto another for three lives , rendring the antient and accustomed Rent , which was confirmed by the Dean and Chapter . And afterwards Grindal is translated : Cook argued , That the Lease is warranted by the Statute of 1 Eliz. At the Common Law a Bishop might make an Alienation in Fee-simple being confirmed by the Dean and Chapter : But by 32 H. 8. cap. 28. Bishops without Dean and Chapter , or their confirmation may make a Lease for one and twenty years , but with the confirmation of the Dean and Chapter may make a Lease for one thousand years . Co. 1. Inst. 45. 2. More 107. 1 Anderson 65. But by the Statute of 1 Eliz. the power of Bishops in that right is much abridged , for now with confirmation or without confirmation they cannot dispose of their possessions but for one and twenty years or three lives ; and this Lease is in all points according to the Statute of 1 Eliz. for first it begins presently upon the making of it : Secondly , the antient rent is reserved payable yearly during the term ; for although here be an old Lease in esse , yet the Rent reserved upon the second Lease is payable during the second term , for payable is a word of power and not of action , as 1 H. 4. 1. 2. 3. Lord , Mesne , and Tenant , the Mesne gives the Mesnalty in tail , rendring Rent , it is a good Rent , and well reserved , although here be not a present distress ; yet it may be the Tenancy will escheat , and then the Donor shall distrein for all the Arrearages : And so the Rent is payable by possibility . And 10 E. 4. 4. A. leaseth for years , and afterwards grants the Reversion to a stranger , if the Beasts of the stranger come upon the Lands during the term ; A. may distre●● for the Arrearages incurred , and if he happen seisin , he shall have a●● Assise during the continuance of the first term . And he cited a Case lately adjudged in the Exchequer . A Lessor entred upon Lessee for years , and made a Feoffment rendring Rent with clause of Re-entry , the Lessee re-entred , claiming his Term , and afterwards during the said Term for years , the Rent reserved upon the Feoffment upon demand of it is behind : Now hath the Lessor regained the Reversion : And so a Rent may be demanded although not distreinable . And all that was affirmed by Egerton Solicitor General : And see the words of the Statute of 32 H. 8. cap. 28. Rent reserved yearly during the said Lease due and payable to the Lessor , &c. such Rent , &c. and yet by the said Statute , such Leases may be good , although there be a former interest for years in being , if the same shall be expired , surrendred , or ended within one year after the making such new lease , and so not expresly payable in rei veritate , annually during the Term.

LXXVIII . Bonefant and Sir Rich. Greenfields Case . Pasch. 29 Eliz. In the Kings Bench.

Sale of Lands by the Executors of the Devisor . BOnefant brought Trespass against Sir Rich. Greenfield , and upon the general issue , this special matter was found : Tremagrie was seised of a Manor , whereof the place where , &c. was parcel , in his Demesne as of Fee , and by his Will devised the same to his four Executors , and further willed , Post . 260. that his said Executors should sell the same to Sir John Saintleger for the payment of his debts , if the said Sir John would pay for it one thousand one hundred pounds at such a day , and died , Sir John did not pay the mony at the day ; One of the Executors refused Administration of the Will , the other three entred into the Land and sold it to the Defendant for so much as it could be sold , and in convenient time . It was moved , that the sale was not good , for they have not their authority as Executors , but as Devisees , and then when one refuseth , the other cannot sell by 21 H. 3. Cestuy que use Wills , that is Executors shall alien his Land , and dieth , although the Executors refuse the Administration , yet they may alien the Land . 19 H. 8. 11. 15 H. 7. 12 Egerton Solicitor argued , that the sale is good by the Common Law , and also by the Statute 49 E. 3. 16 , 17. Devise , that his Executors shall sell his Land , and dieth , and one of the Executors dieth , another refuseth , the third may sell well enough , 1 And. 145. and the sale is good . See Br. Devise 31. 30 H. 8. 39 E. 3. Br. Assise 356. And he put a difference where an Authority is given to many by one deed , there all ought to joyn ; contrary , where the Authority is given by Will ; And if all the Executors severally sell the Lands to several persons , such sale which is most beneficial for the Testator shall stand , and take effect : And here it is found by verdict , that one of the Executors , recusavitonus Testamenti , Ergo , he refused to take by the Devise , for it was devised unto him to the intent to sell , therefore if he refuseth to sell , he doth refuse to take , and so it is not necessary that he who refuseth joyn in the sale , and although we are not within the express words of the Statute , yet we are within the sense and meaning of it . And afterwards it was adjudged , that the Condition , for the manner of it , was good .

LXXIX . Gamock and Cliffs Case . Pasch. 29 Eliz. In the Common Pleas.

Ejectione firmae . EJectione firmae was brought by Gamock against Cliff of the Manor of Hockly , in the County of Essex , and upon the evidence the case was : That the King and Queen , Philip and Mary , seised of the said Manor of Hockley , seased the same to Edmund Terrel for years , exceptis & Reservat . grossis arboribus super praemissis crescentibus & existentibus ; Proviso , Conditions . that if the said Lessee his Executors , or Assigns shall do any voluntary Wast in any of the Premisses before demised , that then the said demise shall be void and accounted none in Law ; the said King and Queen after that lease grant the Reversion to the Lord Rich and his Heirs , the Lessee cuts down certain great Trees , which at the time of the demise were not great , but little Trees , but after , tractu temporis became great , and at the time of the cutting down were great , upon whom the Lady Rich , Wife and Widow of the said Lord Rich , being Tenant in Dower , the said Manor ( inter alia ) being assigned to her in Dower , did enter , for the condition broken : It was moved ; If the exception did extend to the trees which at the time of the demise were but little trees , but afterwards at the time of their cutting down were become great ; for if the exception do extend to such Trees , then upon the matter they were not demised , and if so , then wast cannot be assigned in the cutting down of them , and then by the cutting of them , the condition is not broken : But if the exception shall be construed to extend to such Trees only which were great Tempore dimissionis , then those Trees in which , &c are demised , and by the cutting down of them , the condition is broken . And the Lord Anderson was of opinion , that the exception did extend to Trees , which at any time dimissionis praedict . became great , Where the Tenant in Dower shall take advantage of a condition . although at the time of the demise they were but little , so as upon the matter , such Trees were never demised , and so the condition doth not extend to them ; otherwise it should be if the words had been modo crescentibus & existentibus . Another matter was moved , because if the Lady Rich , being Tenant in Dower , and so in by the Law , not by the party , and so not privy , nor as Assignee , could enter for the condition broken : And the Court was clear of opinion , that because , that the words of the condition are , Quando dimissio praedict. erit vacua , &c. and no clause of reentry is reserved , so that privity is not requisite , the Lady Rich shall take advantage of the condition , 11 H. 17. Where the words of a Lease are , that upon the not going to Rome , that the Lease shall cease ; it was holden that the Grantee of the Reversion by the common Law should take advantage of such a condition ; contrary where the condition is conceived in words of re-entry , 21 H. 7. 12. It was moved further , that here is not any voluntary wast in the Lessee as to the condition , Dyer 281. Owen 93. because done by a stranger , and not by the Lessee himself , and for that the condition is not broken , only the Lessee is subject unto an Action of Wast ; otherwise , if the Lessee had expresly commanded the Vendee to cut them down , or had given to him express authority . The sale was , All his Woods growing , &c.

LXXX Gill and Harewoods Case . Pasch. 29 Eliz. In the Common Pleas.

GIll brought an Action upon the Case against Harewood , and declared , Assumpsit . that where the Defendant was endebted to the Plaintiff in such a ●um , and shewed how ; the Defendant in consideration that the Plaintiff , per parvum tempus deferret diem solutionis , &c. did promise to pay , & . And , upon Non Assumpsit pleaded , it was found for the Plaintiff , and it was moved in arrest of Iudgment , that here is not any consideration , for no time is limited for the forbearance , but generally , parvum tempus , which cannot be any commodity to the Defendant , for the same may be , but punctum temporis , &c. But the exception was not allowed , for the Debt in it self is a sufficient consideration .

LXXXI . Pasch. 29 Eliz. In the Common Pleas.

2 Co. 74. 5 Co. 38. 8 Co. 155. FEnner Serjeant would have drawn a Fine which was by Dedimus Potestatem , and the Fine was to two , and their heirs , but the Court would not receive such Fine for the incertainty of the Inheritance , which always in case of Fine ought to be reposed in a person certain , and not left to uncertainty of the Survivor , and the said Serjeant prayed presently , that the said Fine be received at the peril of the Conusees , but the same was denied him by the whole Court.

LXXXII . Mascals Case . Mich. 29 , & 30 Eliz. In Communi Banco .

Covenant . 2 Cro. 644. MAscal leased a House to A. for years by Indenture , by which A. covenanted with Mascal to repair the House Leased , and that it should be lawful for Mascal his Heirs and Assigns to enter into the House to see in what plight for matter of Reparation the said House stood , and if upon any such view , any default should be found in the not repairing of it , and thereof warning be given to A. his Executors , &c. Then within four months after such warning , such default should be amended : the House in the default of the Lessee became ruinous : Mascal granted the Reversion over in Fee to one Carre , who upon view of the House gave warning to A. of the default , &c. which is not repayred , upon which Carre , as Assignee of Mascal , brought an Action of Covenant against A. It was moved by Fenner Serjeant , that the Action did not lye , because the House became ruinous before his interest in the Reversion ; But the opinion of the whole Court was against him , for that the Action is not conceived upon the ruinous estate of the House , or for the committing of Waste , but for the not repayring of it within the time appointed by the Covenant , after the warning , so as it is not material within what time the House became ruinous , but within what time the warning was given , and the default of the Reparation did happen .

LXXXIII . Mich. 29 , & 30 Eliz. In Communi Banco .

Dower . IN a Writ of Dower , brought by a Woman of the third part of certain Lands , &c. The Tenant pleaded ; That the Lands of which Dower is demanded , are of the nature of Gavel-kind , and that the custom of such Land is , that Dower ought to be demanded of the moity of it , and not of the third part , upon which the Demandant did demur : And the opinion of Windham and Anderson Iustices was ; That such a Woman of such Land might at her pleasure demand her Dower either according to the Custom , 1 Cro. 825. Poph. 133. or according to the common Law ; for by Anderson , the common Law was before the Custom , quod quaere , And by Windham , if the Demandant here recover her Dower according to the common Law , yet if she taketh another Husband , she shall lose her Dower as if she had been endowed according to the Custom . Coke , an Apprentice the of Inner Temple being at the Bar , when this Case was moved , said unto Serjeant Shuttleworth , that the Case had been adjudged against the Demandant , and Scot Prothonotary did affirm , that the Lord Dyer was of opinion , that the Woman ought to be endowed according to the Custom , and not otherwise . And Sayer one of the Clarks of Nelson , chief Prothonotary said , that it was adjudged accordingly , 16. Eliz. and that the Case was betwixt Gelbrand Demandant , and Hunt Tenant .

LXXXIV . Beverlie and Cornwals Case . Mich. 29 Eliz. In the Common Pleas.

BEverlie brought a Quare Impedit against Cornwal , Quare Imped . 2 Roll. 805. Out-lawry pleaded . and had Iudgment to recover upon a Demurrer in Law : Which see Mich. 28 , & 29 Eliz. And now the Queen brought a Scire facias upon the matter , That the said Beverly after the said Iudgment was out-lawed in an Action of Trespass at the sute of I. S. and upon that a Scire facias issued , ad respondendum Quare dicta Domina Regina , should not have execution of the Iudgment aforesaid , by reason of the Out-lawry aforesaid , and declared in all as aforesaid : And further , that the said Cornwal had resigned . Vpon which Beverlie did demur in Law. And this Term it was argued by Puckering Serjeant for the Queen , that by that Out-lawry the Interest to present is tranferred to the Queen . Which see 5 H. 5. 3. Tenant at will of a Manor , to which an Advowson is appendant , is out-lawed in an Action of Trespass ; the Church voided ; by award of the Court it belongs to the King to present : And see 8 R. 2. scil. Quare Imped. 200 A. seised of an Advowson , the Church becomes void . A. is Out-lawed in a personal Action ; the King shall have a Quare Impedit in that Case . And as to the Exception taken , because the Out-lawry is not sufficiently layed in the Writ , but only generally , viz. utlagatus in Com. Lincoln , ad sectam . J.S. in placito transgressionis , without shewing the Out-lawry at large There is a difference where an Out-lawry is pleaded by way of ●●r , and disability of the person , &c. and where it is set down in a Writ , for a Writ ought shortly and compendiously to comprehend the cause of the Action , especially judicial Writs which are not tied to any form certain , especially because that the Out-lawry set forth in the Writ is a Record of the same Court : For the perclose of the Scire facias is , prout per recordum hic in curia plenius apparet : And that Record being in the Court the party cannot plead Nul tiel record , as if the Record had been in any other Court : But he ought to demand Dyer of the Record : Which vide 5 H. 7. 24. Walmesley Serjeant contrary . By Out-lawry in an Action personal , the King cannot seise Land , but only take the profits of it , 9. H. 6. 20. 21 H. 7. 7. And as our case is , nothing doth accrew to the Queen by this Out-lawry , for the Queen her self is seised of the Advowson , because she , usurpando presentavit , and her Clerk admitted ; and although Beverlie hath recovered in a Quare Impedit against the Presentee of the Queen ; yet because he is not removed by a Writ to the Bishop , the Queen continues Patron , and nothing remains in Beverlie that may be forfeited . But Rhodes and Periam contrary , for by Periam if after such Recovery the Incumbent dieth , the Patron shall present , for by the Iudgment in the Quare Impedit for Beverlie , the Patronage is rev●●ted in him without any other execution : And by Rhodes , If after such Iudgment the Patron dieth , his Executors shall have a Writ to the Bishop . And by Walmesley , the Scire facias doth not lie for the Queen , for that Writ always runs in privity of the Record upon which it is grounded , to which Record the Queen is a stranger , and by Out-lawry in an Action personal no Action real shall escheat , and therefore this Scire facias being in the nature of a Quare Impedit upon which it is grounded , which is a real Action , or at least a mixt , shall not be forfeited ; and also it shall be absurd to grant now a Writ to the Bishop for the Queen ; whereas Iudgment was given against the Queen , as in our case it hath been . And in no Case the Iudges shall respect the title of the Queen , being a stranger to the Writ : But where a title for the Queen doth appear upon the pleading or otherwise within the Record , 11 H. 4. 224. by Hankford . If a clear title for the King be confessed by the parties upon pleading , a Writ to the Bishop shall issue for the King ; so if such matter appear in Evidence , 3 Cro. 427. &c. the Land in question is seisable into the Kings hands . See 9 H. 7. 9. 16 H. 7. 12. so 21 E. 4. 3. by Choke and F.N.B. 38. e. In a Quare Impedit betwixt two strangers if title doth appear to the Court for the King , a Writ to the Bishop shall issue forth for the King ; but in our Case nothing is within the Record to intitle the Queen , but all the matter upon which a Writ to the Bishop is prayed for the Queen is out of the Record , and a foreign thing . And as to the Out-lawry , he conceived it is not sufficiently alledged ; for he ought to have made mention of the Exigent and of all the proceeding upon it , and the Iudgment of the Coroners , and for defect of that no title is given to the Queen ; and of that opinion was the Lord Anderson , and that it ought to be set forth in the Writ in what Term the said Beverly was out-lawed , and the Number Roll also , so that if Beverly had demanded Dyer of the Record , the Court might know it : And by Nelson chief Prothonotary , the Term in which the Out-lawry was , ought to be comprised in the Scire facias . Vide Book of Entries 485. where in a Quare Impedit for the King upon such a title , the King shewed in his Count , that A. was seised of such an Advowson , and granted the next Avoidance to B. and that afterwards one C. impleaded the said B. in a Writ of Account in such a Court , where Nihil was returned upon the summons , upon which issued forth a Capias , upon which is returned , Non est inventus , &c. upon which an Exigent , upon which the Sheriff did return , quod ad com . tent . &c. & ad v. comitat . tunc prox . praecedent . the said B. exactus fuit , & non comparuit , & quia ad nullum eorundem comitat . apparuit , utlagatus fuit , and after the the Church voided , and that by reason thereof it did belong to the King to present : vide ibid. 196. accordingly . And as to the Scire facias all the Iudges agreed , that upon the matter the Writ lay well enough : And it is good discretion in the Court to grant such a Writ : And by Rhodes , If two Coparceners of an Advowson make composition to present by turns , and afterwards one of them dieth , her Heir within age , and in Ward to the King ; The Church voideth , and the King is disturbed in his presentment , he shall have a Scire facias upon such composition , notwithstanding that he be a stranger to it : See F.N.B. 34 H. And by all the Iustices , if one recover in Debt upon a simple contract , and before execution the Plaintiff is out-lawed in an Action personal , the King shall sue execution : And see 37 H. 6. 26. Where in Debt upon an Obligation it was surmised to the Court , that the Plaintiff was out-lawed : And the Kings Attorney prayed delivery of the Obligation , &c.

LXXXV . Moile and the Earl of Warwicks Case . Mich. 29 , & 30 Eliz. In Communi Banco .

Quare Impedit . A Quare Impedit was brought by Walter Moile against Ambrose Earl of Warwick , and the Archbishop of Canterbury . And now came the Serjeanes of the Queen , and shewed an Office , to entitle the Queen to have a Writ to the Bishop , containing such matter , viz. That one Guilford was seised of the Manor of D. to which the Advowson of the Church was appendant , and that Manor was holden in chief by Knights service , and that Guilford and his Wife levied a Fine thereof to the use of themselves for their lives , the remainder over in tail to their eldest Son , and that Guilford is dead , but who is his next Heir , ignorant : And it was shewed by the Council of the other side , that the truth of the Case was , that the said Guilford was seised of the said Manor in the right of his Wife , and so levied the Fine , in which Case the said coveyance is not within the Statute of 32 H. 8. for it was for the advancement of the Husband , not of the Wife , which Anderson granted . Vide Dyer 19 Eliz. 354. Caverlies Case , but that is not in the Office : And it was moved at the Bar , that the Office is imperfect , because no Heir is found . But Anderson , the Office is sufficient for the King to seise , although it be insufficient for the Heir , &c. And it was agreed by the whole Court , Office trove . that the Court ought not to receive the Office , although one would affirm upon oath , that it is the very Office , but it ought to be brought in under the Great Seal of England ; and also the Court shall not receive it without a Writ ; and yet Nelson Prothonotary said , that the Statute of Huy and Cry of Winchester was brought into the Court without a Writ under the great Seal , A Record not to be brought into Court without a Writ . 63. and that was out of the Tower : And in that Case also the Iustices held , that if a Record be pleaded in the same Court where it abides , the other party against whom it is pleaded may plead Nul tiel Record , as if the said Record had bin remaining in another Court , which all the Prothonotaries denied , & that always it had been used to the contrary . At another day the Case was moved again . The Plaintiff in the Quare Impedit counted , that Richard Guilford was seised of the said Manor , &c. in the right of Bennet his Wife , and so seised , they both levied a Fine thereof to a stranger , Sur Conusans de droit come ceo , who rendred it to the Husband and Wife for their lives , the remainder to the Heirs of the body of the Husband , the remainder to the right Heirs of the Husband ; and they so being seised , the Husband alone levied a Fine to a stranger , Sur Conusans de droit come ceo , &c. and by the same Fine the Conusee rendred to the Husband and Wife in tail , the remainder to the Heirs of the body of the Husband , the remainder to the right Heirs of the Husband , the Husband died seised , the Wife entred and leased the said Manor to the Plaintiff , and then the Church did become void : And now the Queens Serjeants came and shewed unto the Court an Office , which came in by Mittimus : In which Writ the perclose is , Mandamus vobis quod inspectis , &c. pro nobis fieri faciatis quod secundum leges & consuetudinem Regni nostri Angliae faciend. Statuetis ; And the Office did purport , that the said Richard was seised of the said Manor , and held the same of the Queen , as of her Castle of Dover , by Knights service in chief , and levied the Fine , ut supra , and that the said Richard died , sed quis sit propinquior haeres dict. Ric. penitus ignorant ; and upon that Office prayed a Writ to the Bishop for the Queen : And two Exceptions were taken to the Office , First because it is not found by the said Office that the said Richard died seised , 1 Cro. 895. in which Case it may be for any thing that appeareth in the Office , that the said Richard after the said Fine had conveyed his estate in the said Lands unto others , or that he was disseised , &c. See 3 H. 6. 5. If it be not found of what estate the Tenant of the King died seised , the Office is insufficient . But see there by Martin , that such an Office is good enough for the King , but not for the Heir to sue his Livery upon it . And by Anderson , Periam , and Rhodes , that defect in the Office is supplyed by the Count , for there it is expressly alledged , that the said Richard died seised . Secondly , because no Heir is found by the said Office. To which it was said by the Lord Anderson , that peradventure at the Common Law the same had been a material Exception . But we ought to respect the Statutes of 32 and 34 H. 8. of Wills. And therefore as to the Wife the Queen is entitled to Primer seisin , because the conveyance was made for her advancement . And by Windham , the Queen in this Cale shall not have Primer seisin , for by the Statute the Queen shall not have Primer seisin , but in such Case , where , if no conveyance had been made , the Queen should have had Primer seisin ; but in this Case for any thing that appears before us , if this conveyance had not been made the Queen should not have had Primer seisin , forasmuch as no Heir is found , and if he died without Heir there is no Primer seisin , because there is not any in rerum natura to sue livery . Rhodes , Periam , and Anderson contrary ; Admitting that Richard died withou Heir , the Queen shall have Primer seisin against the Wife of Richard , notwithstanding the escheat . Walmesley Serjeant , If the Tenant of the King by Knights service in chief dieth seised of other Lands holden of a common person by Knights service , without Heirs , the King shall not have Primer seisin of such Lands holden of a Subject , which Windham granted : But by Anderson the Lord is put to sue an Ouster le mayne of the Land holden of him . And afterward Exception was taken to the Count , because the Plaintiff hath not averred the life of the Tenant in tail , that is , of Bennet the Wife of Richard , to whom the Land was entailed by the second Fine : But that Exception was disallowed by the whole Court , and a difference put by Anderson , Where a man pleads the grant of an Advowson in gross by Tenant in tail , in such case the life of the Tenant in tail ought to be averred , for by his death the grant ceaseth . But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant , in such case such averment is not necessary : So accordingly Smith & Stapletons Case , 15 Eliz. 431. And here it was moved , if , in as much as by the first Fine an estate for life was rendred to the Wife , and by the second Fine , in which she did not joyn , an estate tail was limited unto her , and now when the Husband dieth if he shall be remitted to her estate for life ; Co. 1 Inst. 357. 2 Cro. 489. which Windham granted ; for that was her lawful estate , and the second estate tortious . But by Rhodes , Periam , and Anderson the Wife is at liberty to make her election which of the two estates she will have . And as to the Writ to the Bishop for the Queen , the Court was clear of opinion , that it ought not to be granted upon this matter : But all the question was , if Regina inconsulta , the Court would or ought to proceed : And it was holden clearly by the whole Court , that the tenure alledged modo & forma , could not be a tenure in chief , for it is said , that the Land was holden of the King , as of the Castle of Dover , in Capite .

LXXXVI . Mich. 29 & 30 Eliz. In Communi Banco . Intr. Pasc. 28 Eliz. Rot. 602.

Wast . ● Cro. 40. 4● . WAst was brought by F. and his Wife agaist Pepy , and counted , that the said Pepy was seised , and enfeoffed certain persons to the use of himself for life , and afterwards to the use of the Wife of the Plaintiff and her Heirs . The Defendant pleaded , that the said Feoffment was unto the use of himself and his Heirs in Fee , &c. without that , that it was to the uses in the Count ; Vpon which they were at issue : And it was found by verdict , that the said Feoffment was unto the uses contained in the Count : But the Iury further found , that the estate of the Defendant by the limitation of the use was priviledged with the impunity for Wast , that is to say , without impeachment of Wast . And it was moved , if upon this verdict the Plaintiff shall have Iudgment : And Anderson and Rhodes Iustices , he shall , for the matter in issue is found for the Plaintiff , and that is the Feoffment to the uses contained in the Count ; and this impunity of Wast is a forrein matter not within the charge of the Iury , and therefore the traverse of it but matter of surplusage . As if I plead the Feoffment of I. S. To which the other pleads , that he did not enfeoff , and the Iury find a conditional Feoffment , the Court shall not respect the finding of the condition , for it was not in issue , and no advantage shall ever be had of such a liberty if it be not pleaded . 30 H. 8. Dyer 41. In Dower the Tenant pleaded , Ne unques seisi que Dower ; the Tenant pleaded , that before the coverture of the Demandant , one A. was seised of the Lands , of which Dower is demanded in tail , who made a Feoffment to a stranger , and took the Demandant to Wife , and took back an estate in Fee , and died seised , having issue inheritable : Now although upon the truth of the matter she is not dowable de jure , yet when the parties are at issue upon a point certain , Hob. 53. Owen . 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment . But if the Defendant had pleaded it in bar , he might have foreclosed the Demandant of her Dower : Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how the Tenant who made default was but Tenant for life of the Lands in demand , the reversion in Fee to himself , and prayed to be received . The Demandant did counter-plead the receit , saying , the Defendant had fee , upon which issue was joyned . And it was found , that neither the tenant , nor he which prayed to be received , had any thing in the Land ; In that case the Court did not regard the matter which was superfluous in the verdict , for they were at issue upon a point certain , that is , whether the Tenant was seised in Fee , for it was confessed of both sides , that he had an estate for life ; and with that matter the Iury was not charged , and they are not to enquire of it , and so it was found against the Demandant , for which cause the Receit was granted . 7 H 6. 20. The parties were at issue upon a dying seised , which is found by verdict , but the Iury further find , that the other party made continual claim ; this continual claim shall not be regarded in the point of Iudgment , because it was pleaded in avoidance of the descent . Windh . Iustice contrary , Forasmuch as it appeareth unto us upon the verdict , that the Plaintiff hath not cause of Action , and therefore he shall not have Iudgment ; As in Detinue , No advantage of impunity for Wast shall be taken , where the same is not pleaded though found by verdict . Judgment . Hob. 53. Owen . 91. The Plaintiff counteth of a bailment by his own hand ; the Defendant pleadeth , that he doth not detain , &c. the Iury find the Detinue , but upon a bailment by another hand : In this case , notwithstanding that the Detinue be found , yet the Plaintiff shall not have Iudgment : But Rhodes , Periam , and Anderson in the principal case were of opinion , Iudgment should be given for the Plaintiff , for in no case the party shall have advantage of such a Liberty of impunity of Wast , if he do not plead it ; And the Iurors are not to meddle with any matter which is not in issue : And if it be but matter of surplusage it is to no purpose . And afterwards Iudgment was given for the Plaintiff .

LXXXVII . Bracebridge and Baskerviles Case . Mich. 29 & 30 Eliz. In Communi Banco .

AN Action of Debt is brought against three Executors , Debt against Executors . one of them pleads in Bar a Recovery against himself in the Kings Bench : The other two plead plene administr . Against the first plea the Plaintiff did aver covin ; and upon the second plea they are at issue : The first issue is found for the Plaintiff , and as to the other plea , it was found , that the Defendants have in their hands thirty pounds of the goods of their Testator not administred . Note , the debt in demand was one hundred pounds , upon which the Plaintiff had Iudgment to recover the goods of the Testator , and thereupon had execution . Now the Plaintiff brought a Scire facias against the said Executors , supposing that many other goods of the Testator have come unto their hands after the Iudgment , and prayed execution thereof : upon which the Defendant did demur in Law. Vide 2● H. 6. 40. 41. In debt against Executors of forty marks , the Defendant pleaded , that he had fully administred , and it was sound , that the Defendant , at the day of the Writ brought , had of the goods of the dead twenty marks and no more , and gave damges five marks . There the Plaintiff had Iudgment for the twenty marks of the goods of the dead , and the five marks of their own goods : And as to the other twenty marks , that the Plaintiff should be amerced : 33 H. 6. 24. Where Executors plead that they have nothing in their hands , which is found accordingly : Afterwards goods of the Testator came to the hands of the Executors : Now the Plaintiff upon a surmise shall have out of the same Record a Scire facias to have execution of the said goods : Scire facias , to have Execution of Assets come to Executors hands , after ●iens enter maynes pleaded . But see 4 H. 6. 4. contrary , for there it is said , that upon the matter the original is determined , and so no Record , upon which a Scire facias can be grounded : And see Fitzh . abridging the Case Scire facias , 25. by the verdict and the Iudgment the Original is abated : Vide 7 E. 4. 9. by Moile , according to 33 H. 6. and so 46 E. 3. 9. by Belknap . And the Lord Anderson demanded of the Prothonotaries the manner of the entry of the Iudgments given in such Cases , who said , that their Entry is in this manner : ( i. e. ) Quod querens recuperet , that which is expresly found by the verdict , but nothing of the residue , for of that no mention is made at all . And the Court seemed to be of opinion , that where , upon nothing remaining in their hands , pleaded , It is found that some part of the sum in demand is in the hands of the Executors , there the Plaintiff upon a surmise of goods come to the hands of the Executors shall have a Scire facias ; 3 Cro. 272. Hob , 199. 1 Cro. 318. 319 592. 8 Co. 134. contrary , where upon such issue , it is found fully for the Defendants , that they have nothing in their hands .

LXXXVIII . Fordleys Case . Mich. 29 & 30 Eliz. In Communi Banco .

Tender pleaded . 9 Co. 79. Dy. 25. a. 1 Inst 207. Post . 69. 70. a. FOrdley brought debt upon an Obligation , the Condition was , that if the Defendant , viz. the Obligor deliver unto the Plaintiff the Obligee , at a such a day and place , twenty pounds or ten Kine , at the then choice of the Obligee , &c. that then , &c. The Court was clear of opinion , that the Defendant in pleading the performance thereof ought to tender to the Plaintiff as well the twenty pounds as the ten Kine , and for default thereof Iudgment was given against the Defendant . See the Number Roll T. 29 Eliz. 1. part. 324. vide 14 E. 4 4. b.

LXXXIX . Barker and Pigots Case . Mich. 29 & 30 Eliz. In Communi Banco .

EDward Barker brought Debt against Rich. Pigot Executor of the Will of E. Executrix of the Will of R. The Defendant pleaded , that he had fully administred the goods of his Testator E. upon which they were at issue , Debt . which was found for the Plaintiff . And it was moved in arrest of Iudgment , that here is not any issue joyned , which answers to the Action , for the Action is brought against the Defendant in the quality of the Executor of an Executor , and the verdict extends to the Defendant , but is Executor of the said E. for it is found by it , that the Defendant hath fully administred the goods of his Testatrix , without any enquiry of the Administration of the goods of the first Testator R. in which capacity the Defendant is charged . So as here the Writ charges the Defendant in the quality of an Executor of an Executor and in respect of the first Testator , and the issue and verdict doth concern the last Testator : Execution must follow the nature of the Action . And the whole Court was clear of opinion , that although that now after verdict Fee-tail be saved , and no Iudgment shall be given upon it , yet here the Court shall give Iudgment as upon a Nihil dicit , in which case the Execution of the Iudgment , shall not fall upon the goods of the last Testator according to the verdict , but shall follow the nature of the Action which was brought against the Defendant as Executor of an Executor .

XC . Thacker and Elmers Case . Mich. 29 & 30 Eliz. In Communi Banco .

THacker recovered in an Assize of Novel disseisin against Elmer certain Lands in Hackney , and had execution : Re-disseisin , and the Judgment in it . 1 Cro. 323. Elmer entred upon Thacker and ousted him , and Redisseised him . Thacker re-entred , and afterwards brought a Redisseisin ; And it was moved , whether Thacker against his Entry might have a Redisseisin : And the opinion of the whole Court was , that he might well maintain the Writ , for he is not thereby to recover any Land ; but the Defendant of that Redisseisin being convicted , shall be fined and imprisoned , and render double damages : Vide Book of Entries 502. the Iudgment in a Redisseisin is , Quod recuperet seisinam suam of the Land .

XCI . Blaunchflower and Fryes Case . Mich. 29 & 30 Eliz. In Communi Banco .

BLaunchflower brought debt upon a Bond against Elinor Frye , as Executrix of one Andrew Frye her late Husband , who pleaded , Debt . that this Writ was brought 9 July , 27 Eliz. whereof she had notice the first of October after , within which time one Lawrence had brought an Original Writ against the said Elinor as Administratrix of the said Andrew : And after the bringing of the Writ , the Bishop of Bath and Wels committed Administration of the goods of the said Andrew to the said Elinor , which Elinor confessed the Action , upon which Iudgment was given for the said Lawrence , beyond which she had not goods , upon which the now Plaintiff did demur in Law. And by Anderson , the Recovery pleaded in bar shall not bind the Plaintiff , because it appeareth unpon the plea of the Defendant , that the Administration was committed after the Writ purchased , which matter if the Defendant had pleaded , Administration granted , pendant the Writ . Lawrence could not have had Iudgment to recover . As where there are three Executors , and debt is brought against two of them , if they do not plead that matter in abatment of the Writ , but plead , &c. or confess the Action , so that the Plaintiff hath Iudgment to Recover , that Recovery shall not bind a stranger who hath cause of Action against them , but that he may well falsify it ; and yet it was said that in such Case , the Defendant by the obtaining of the Letters of Administration had made the Writ good against her , vid. 13 H. 4. Fitz. Executors , 118. Administration committed before the Writ purchased shall abate the Writ brought against the Defendant as Executor , but such Administration obtained , depending the Writ shall not abate it , vid. 21 H. 6. 8. 2 R. 3. 20. Another matter was moved by Anderson , because the Defendant had pleaded a Recovery by confession had against her without Averment that it was a true Debt , in which Case Covin is presumed . Windham and Periam were of opinion , that the matter of Covin ought to come in on the part of the Plaintiff , which Anderson denyed , vid. 9 E. 4. 13 , 14. 33. t●e Cardinalls Case .

XCII . Basset and Kerns Case . Roll. Tit. Election . Debt by Executors . 1 Cro. 819 In Communi Banco Intrat . Mich. 26 & 27 Eliz. Rot. 12.

BAsset the Executor of Moris Sheppheard brought debt upon a bond against Kerne , the Case was : That Kerne was bound to Moris in a Obligation upon Condition , that the said Kerne should pay to the said Morris his Executors , 1 Roll. 446. Tit. Condition . &c. at the choice and election of the said Morris , within a month after the death of the Lady Kerne , thirty pounds , or twenty Kine , Election . to which the Defendant pleaded that the Plaintiff within the month after the death , &c. did not make any choice or election , upon which the Plaintiff did demur in Law : And the Court was clear of opinion , that it was a good Plea in Bar , for the Obligor is not bounden to make a tender of both , viz. of the mony and the Ri●e ; but the Obligee himself is bounden at his peril to make election within the time limited ; As if I be bounden to you , to make unto you such further assurance within such a time by Fine or Feoffment as you shall chuse , it behoveth you to make election of your assurance , Fine , or Feoffment ; and in the principal Case , the election of the Plaintiff ought to precede the tender of the Defendant : vid. the Lord Lisles Case , 18 E. 4. 15. 17. 20. 21. Where the Defendant was bound to the said Lord to shew his Evidences touching such a House to the said Lord or his Council , the election was to the Defendant to whom he would shew them ; and there by Brian , if I be bound to you to marry your Daughter , or to go to York on your Businesses upon request , before you require me to marry your Daughter I may do it , or go to York , which Coke granted , vid. 13 E. 4. 4. Where the condition is in the disjunctive , before the day of performance the Election is to the Defendant , but if at the day he make default , the Election is to the Obligee ; vid. 9 E. 4. 36 , 37. And by Windham , if I be bound unto you in an Obligation of ten pounds , to pay to you such a day ten pounds in Gold , or Silver , if you do not make your election before the day , yet the duty remains payable , for the thing to be paid is parcel of the penalty , quod fuit concessum ; And as to the principal Case , the Court was clear of opinion , that upon this matter the Plaintiff should be barred . See before this Term , Forteleyes Case .

XCIII Searches Case . Mich. 29 & 30 Eliz. In Communi Banco .

Antea 68. Habeas Corpus . A Habeas Corpus issued forth out of the Court of Common Pleas , to the Steward and Marshal of the House , &c. for one Wil. Search , which was returned in this manner , viz. quod Domina Regina per litteras suas Patentes suscepit , in protectionem suam regiam , Johannem Mabbe , and his sureties , and of her further grace by the said Letters , voluit , that if any person should arrest , or cause to be arrested the said John Mabbe or any of his sureties , that then the Marshal of her House , or his lawful Deputy might arrest every such person , and detain them in Prison until such person should answer before the Privy Council for the contempt ; And that the said William Search caused one John Preston one of the said sureties of the said John Mabbe to be arrested , &c. And upon that return , the said William Search was discharged ; And also because that after the said discharge the parties caused the said William Search to be arrested again for the same cause , that is , by colour of the said protection ; An Attachment was granted against them .

Note , that the same Term , Mich. 29 & 30 Eliz. Another Habeas Corpus was directed to the Steward and Marshal of the Marshalsey , for one Howel , Habeas Corpus . who made return , that the said Howel was committed to his custody , per mandatum Francisci Walsingham Militis Principalis Secretarij , & unius de privato concilio Dominae Reginae , and that return was by the Court holden insufficient , because the cause upon which he was committed , was not set down in the return ; and therefore day was given to amend the return , and now they returned the Writ in this manner , ss. infra nominatus Johannes Howel commissus fuit , &c. ex sententia & mandato totius concilii privati Dominae Reginae ; Ita quod corpus ejus habere non possumus , &c. And that return was also holden by the Court to be insufficient , for ( by whatsoever person , or by what means soever he was committed ) the conclusion of the return ought to be , Corpus tamen ejus paratum habeo , and if it shall seem good to the Court , that the Prisoner shall have his Priviledge , and shall be dismis't , he shall be discharged , but if not , then he shall be remanded . And the Court took a difference , where one is committed by one of the Privy Council , for in such case the cause of the committing ought to be set down in the return ; But contrary where the party is committed by the whole Council , there no cause need to be alleadged .

XCV . Bret and Audars Case . Mich. 29 & 30 Eliz. In Communi Banco .

BRet brought Debt upon an Obligation against Audar , Debt upon a Bond to perform Award . Owen . 7. the Condition of which Obligation was , that the Defendant should stand to the Award , &c. And the Arbitrator awarded , that the Defendant should pay unto the Plaintiff ten pounds , without naming day or place ; And as to that the Defendant pleaded , that he was always ready , and yet is , &c. without shewing any tender : And it was moved , That although that would have been a good Plea in debt upon an Arbitrament , as the Case is , 7 H. 4. 97. See 21 E. 4. 40 , 41 , 42. Yet now by the Obligation and the Condition of it , the sum is payable in another manner than it was before , see the pleading of the Case , 21 E. 4. In Debt upon an Obligation to perform the Award ; That the Award was made between the Terms of Pasch. and Trinity , and he , the eighth of September after , tendred the twenty pounds , and the Plaintiff refused it . And the Lord Anderson put a difference between the Case , in 22 H. 6. 57. Tender . and the Case at the Bar , for in our Case the Obligation doth precede the duty which accrueth by the Award subsequent , but in the former Case the duty did precede the Obligation which was made for the further assurance of the duty : And here the Defendant ought to have pleaded the tender , and see 14. E. 4. 4. A. is bound unto B. that , where he hath granted to the said B. a Rent-charge out of such Land , now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant , that then , &c. there he needs not to plead any tender , for the Rent is not payable in other manner than it was before ; contrary if the Condition had been for the payment of the Annuity : And of that opinion was the whole Court , that he ought to have pleaded a tender . Another matter of the Award was , that the said Audar should yield up , surrender & relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff : As to that the Defendant pleaded , that he had yielded up , &c. All such Houses , &c. generally without shewing which in certain ; And for that cause the Court was clear of opinion , that the Plea was not good ; which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands , & Tenements , which were to I.S. in pleading the performance of that Condition , I ought to shew what Lands and Tenements in certain , for they pass out of me by the Feoffment ; See also 12 H. 8. 7. 13 H. 8. Non damnificatus , generally , where no Plea. 19. Another point of the Award was , That the said Audar should acquit and discharge , and save harmless the Plaintiff of such an Obligation , to which the Defendant pleaded , that Querens non fuit damnificatus , and that Plea was holden insufficient , for he ought to have shewed , how he had discharged him , and it is not sufficient to answer only to the damnification , as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition , it is not sufficient to shew , that I have conveyed the said Manor , but to shew by what manner of conveyance , viz. by Fine , or Feoffment , &c. 22 E. 4. 43. If the condition be to discharge the Plaintiff , &c. then the manner of the discharge ought to be shewed , but if it be to save harmless only , then non damnificatus generally is good enough , 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was , that the Obligor should keep without damage the Obligee , of such a sum of mony against B. to whom he was bounden for the payment of it , and the said Obligor pleaded that at such a day , &c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance , without that , that the Plaintiff was damnified by the said Obligation , before the delivery of it ; and it was holden by the Court , that if the Defendant had pleaded , that he had kept the Plaintiff without damage , and had not shewed how , that the Plea had not been good . See 22 E. 4. 40. The Lord Lisles Case . And afterwards Iudgment was given for the Plaintiff .

XCVI . Heydons Case . Mich. 29 & 30 Eliz.

RAlph Heydon pretending title to certain Land , entred into it , and made a Lease of it to try the title : Vpon which his Lessee brought an Ejectione firmae , in which the parties were at Issue ; And now at the day of the Enquest , the Iurors were called , and but five of them appeared , whereupon , the Defendant came and shewed to the Court , that the said Heydon by his Friends and Servants , had laboured the Iury , not to appear , and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title , that the said Heydon to procure the Iury not to appear , had surmised to them , that he and the Defendant were in course of an agreement , whereas in truth no such communication of agreement had any time passed betwixt them : And all this was openly deposed in Court , as well upon the oath of the Defendant himself as upon the oath of one of the Iurors , upon which the Court awarded an Attachment against the said Heydon , to answer the contempt ; And also granted to the Defendant , that he might sue a Decem tales with proviso , for his own expedition .

XCVII . Smith and Kirfoots Case . Mich. 29 & 30 Eliz. In Communi Banco .

Debt upon Arbitrament . SMith brought Debt upon an Arbitrament against Kirfoot , and declared that the Defendant and he , imposuerunt se in arbitrium , ordinationem , & judicium Johannis Popham ar. arbitratoris indifferenter electi , de jure , titulo , & inturesse in quibusdam Messuagijs , &c. Who taking upon him the burthen of the Arbitration , ordinavit , that the said Defendant should pay unto the Plaintiff ten pounds , in plenam satisfactionem , &c. and thereupon he brought his Action ; It was moved by Walmesley Serjeant , that the Declaration is not sufficient , for it appeareth that the Arbitrament set forth in the Declaration is utterly void ; because whereas ten pounds is awarded to the Plaintiff , nothing is awarded to the Defendant , and so the Award unequal , and so void . But the Court was clear of opinion , that notwithstanding that such an Arbitrament be void in Law , yet it may be for any thing that appeareth , that the award is good enough : 1 Cro. 904. ● Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award , but such part only of it which doth entitle him to the thing , &c. and if the Defendant will impeach the Award for any thing , that is to come in on his part , vide . ac . Book of Entries , 152. 123. vide . For the Arbitrament , 39 H. 6. 12. by Moile , 7 H. 6. 41.

XCVIII . Arundel against Morris . Mich. 29 & 30 Eliz. In Communi Banco .

RIchard Arundel sued an Audita Querela against Morris , and it was comprehended in the Writ ; That Morris had recovered against him a certain Debt , and that he was taken by a Capias ad satisfaciendum ; Audita Querela . at the suit of the said Morris , by Hickford Sheriff of the County of Gloucester ; who let him go at large , &c. And they were at issue , upon the voluntary escape , & it was found for the Plaintiff . It was objected in arrest of Iudgment , that the Writ of Audita Querela is not good , for the words are , that the Plaintiff , captus fuit virtute brevis nostri judicialis ; whereas this word ( judicialis ) is not in the Register ; but only brevis nostri de capiendo . But by the whole Court , the Writ is good , for the word ( judicialis ) is but a word of surplusage , and shall not make void the Writ : And afterwards Iudgment was given for the Plaintiff .

XCIX . Brook against King. Mich. 29 & 30. Eliz.

IN Debt upon an Obligation by Brook against King , the Defendant pleaded that the Bond was endorced , with such condition , viz. Debt . That it the said Defendant King shall procure one I.S. to make reasonable recompence to the Plaintiff for certain Beasts which he wrongfully took from the Plaintiff , that then , &c. And he said in facto , That the said I. S. had stolen the said Beasts from the Plaintiff , Condition against Law. and thereof he was endicted , &c. and so the condition being against the Law , the Obligation was void , upon which the Plaintiff did demurr in Law. And it was argued by the whole Court : That where the condition of an Obligation shall be said against the Law , and therefore the Obligation void , the same ought to be intended where the condition is expresly against the Law in express words , and in terminis terminantibus , Post . 103. and not for matter out of the condition , as it is in this case ; And Iudgment was given for the Plaintiff .

C. Hawks against Mollineux . Mich. 29 & 30 Eliz. In Communi Banco .

IN a Replevin by Hawks against Mollineux who avowed for Damage-fesant ; The Plaintiff in Bar of the Avowry , pleaded that Sir Gervase Paston Knight , was seised of a Messuage and twenty Acres of Land ; And that always those whose estate , Replevi● Yelv. 185. Prescription . &c. have used to have Common in the place where , &c. for all their Cattel commonable in this manner , viz. If the said Land be sowed by assent of the Commoner , then no Common , until the Corn be mowed , and when the Corn is mowed , then Common until the Land shall be sowed again by assent of the Commoners : And this Prescription was found by Verdict , and exception was taken to this prescription because against common right , so as a man cannot sow his Land without the leave of another . But the exception was disallowed by the Court ; for the prescription was holden to be good by the whole Court , for by the Law of the Land , the Owner of the Land cannot plow the Land where another hath Common ; but here is a benefit to each party , as well for the Owner of the Land against the Commoner , as for the Commoner against the Tenant of the Land , for each of them hath a qualified Interest in the Land .

CI. Baldwin and Cocks Case . Intr. Pasch. 29 Eliz. Rot. 1410. In Communi Banco .

Replevin . Owen 52. Post . 225. 1 Inst. 225. 2. BAldwin was Plaintiff in a Replevin against Cocks , and upon the pleading the Case appeared to be this , That Sir Richard Wayneman was seised of the place where , &c. and leased the same to one Truepeny and one Eliz. Reade for term of 21 years , if the said Truepeny and Eliz. or any child or children betwixt them begotten should live so long ; Eliz. within the term died without issue ; If now the term for 21 years be determined was the Question . And the Lord Anderson conceived , that the estate for years is not determined by the death of Elizabeth . And it was argued by Shuttleworth Serjeant , that upon the matter the term is determined : And he put the Case of the Lord Bray , 3 Eliz. Dyer 190. Where the Lord Bray sold unto four great Lords the marriage of his Son and Heir , to the intent to be married at the appointment and nomination of the said Lords , the Lord Bray died , one of the said Lords before any marriage , 5 Co. 9 1 Brown. 31. 46 , 47. 80. 101. 2 Br. 83. 148. or appointment , or nomination , died , the Son is married by the appointment , &c. of the surviving Lords ; That marriage is not within the intent of the Covenant , and adjudged that upon that marrriage no use shall accrue . And also he cited this Case adjudged in the Kings Bench. The administration is committed to one durante minore aeta●e of two Infants , one of them becomes of full age , the power of the Administration is determined , which Walmesley Serjeant granted , for it is but an authority ; but here in the Case at Bar is a matter of interest . And by Anderson all the construction of this lease and grant rests upon this point , if this word ( Or ) either shall be taken as disjunctive as it is in its nature , or as a conjunctive ; and if it be taken as a disjunctive , if it make the whole sentence in the disjunctive as if the limitation had been , if the Husband or Wife or any Child , &c. And Fenner , put this Case out of 17 E. 3. as he cited it . Land is given to I. S. in Fee so long as A. B. hath issue of his body . A. B. dieth without issue , his Wife priviment en●●ent , Now the estate is determined , and upon birth of the issue after shall not revive , which Rhodes and Anderson denied , for in many Cases the Law shall respect the existency of the child in the mothers belly : And see 7 Eliz. Plow. 289. where a Copulative shall be taken in the disjunctive , as a covenant with B. to make a lease for years of such Lands to the said B. and his Assigns , Exposition of words in deeds . 244. Post . 251. 1 Roll. 444. the same shall be construed , or his Assigns . And it was clearly agreed by the other parties , that if the words had been , If Truepeny , Elizabeth , or any child or children , &c. so long , &c. upon the death of any of them the interest is determined : And by Rhodes , Periam and Windham in the principal Case , the lease shall endure as long as any of the persons named in the Proviso shall live , and so seemed to be the meaning of the parties . And Anderson haesitavit in the words of the limitation , i. the Habendum to the said Truepeny and Eliz. for 21 years a festo Sancti Johannis Baptist . post terminum annorum ( the expiration of a former term ) if the said Truepeny and Elizabeth , or any child &c. And he conceived , that the limitation did go to the commencement of the lease only , and not to the expiration or determination , as if the lease should not begin if they all were not alive at the commencement of the lease : And all the other Iustices were clear of the contrary opinion , for by them this limitation shall go , and shall be referred to the determination of the Lease , and not to the commencement of it .

Anderson , If any cause should be , for which the lease should endure untill the years be encurred , notwithstanding the death of the Husband or Wife , it was because the lease was intended a common advancement to both , for it should be in vain to name the Wife in the lease , if the lease should cease by the death of the Husband . And afterwards after many arguments on both sides , it was adjudged , that by the death of Elizabeth , the lease was not determined , for the disjunctive before ( Child ) makes all the limitation in the disjunctive .

CII . Zouch and Bamfields Case . Mich. 29 & 30 Eliz. In Communi Banco .

THe Case between the Lord Zouch and Bamfield was now argued by the Iustices . And Rhodes the puisne Iustice argued , 1 And. 165. 3 Co. 88. that the Lord Zouch the Demandant should be barred . Four Exceptions have been taken to the bar : First , because it is not shewed in the bar that the moyety of those sixty messuages , &c. of which he pleads the Fine , was parcel of the Manor at the time of the Fine levyed ; for the pleading is , that the Grandfather of the Demandant was seised of the said Manor , unde medietas praedictorum 60. messuagiorum , &c. a tempore cujus contrar . memoria , &c. was parcel , and so seised de manerio praedict. unde , &c. Finis se levavit ; and he conceived that the pleading , notwithstanding that was good enough ; for he hath said as much in effect , contrar . cujus memoria hominum non existit , in the present tense , which amounts to this , that men cannot remember , &c. but that this moyety was parcel of the said Manor : As 10 H. 7 12. In an Assise of Common , the Plaintiff makes his title , that he was seised of a Messuage and Carve of Land in D. to which the said Common is appendant , and that he and all his Ancestors , and all those whose estate he hath , &c. have used to have Common , &c. Exception was taken to the title , because the Plaintiff doth not shew in his title , that he is seised of a Messuage , &c. for if he hath aliened the Messuage the Common passeth , so if he be disseised , &c. but the Exception was not allowed , for it appeareth upon the words of the title , that the Plaintiff is seised : i. all those whose estate he hath in the present tense , which words do shew and declare possession and seisin in the Plaintiff , the time of the plea pleaded ; so in this case , the substance of the words , in which the defect is assigned , is ut supra ; That men cannot remember , but that this moyety was parcel of the Manor , and then the words after , unde , &c. reddidit Manerium praedict. unde , &c. shall have the same construction as before . Periam conceived , that the Bar is nought for the cause aforesaid , for it is not so pleaded , that we can adjudge upon it , that the said moyety was parcel of the Manor at the time of the Fine levyed , and then the Fine cannot extend unto it . And the reason alledged by my brother Rhodes shall not help that matter , for the said words cannot be construed otherwise , but that no man can remember but the said moyety was parcel , but not that it is parcel , or at the time of the Fine levyed was parcel . Vide 32 H. 6. 24. In Trespass the Defendant pleaded , That A. was seised of the Manor of D. whereof the place , &c. is parcel , he ought to say expresly , that the place where was parcel of the Manor at the time of the trespass supposed . Windham conceived , that the plea was good , and that it appeareth well upon this plea , that the said moyety was parcel of the said Manor at the time of the Fine levyed , for he pleads , that the Grandfather of the Demandant was seised of the Manor of N. Unde medietas praedictorum , &c. a tempore cujus contrar . memoria hominum non existit , & sic scisitus existens , Finis se levavit ; sic scisitus ; i. e. seised of the Manor in such sort , as the Manor is set forth before , and that is good pleading , especially by way of bar , which if it be good to a common intent , is well enough ; and the word ( unde , &c. ) so often repeated after shall be idle and to no purpose if the Law shall not give such a construction . Anderson to the same purpose . And he much relyed upon the reason of Windham , and so seised . Another Exception was taken to the Bar , Averrment . because in pleading of the Fine , it is not averred , that the Conusor at the time of the Fine levyed was of full age , out of prison , &c. And as to that Rhodes took the difference between the pleading upon the Statute of 1 H. 3. where these disabilities are within the purview of the said Statute , and upon the Statute of 4 H. 7. where in the body of the Statute no mention is made of them , but afterwards in an especial Exception by it self ; and he cited the opinion of the Iustices , especially of the Lord Dyer in the Case reported by Plowd. 5 Eliz. 365. betwixt Stowel and the Lord Zouch . Periam to the same intent , and upon the same reason , and further he said that although the Statute of 32 H. 8. contains in its purview the same disabilities ; Yet this Fine is pleaded upon the Statute of 4 H. 7. and therefore the pleading of the same shall not be directed nor waged by the Statute of 32 H. 8. which doth not alter the pleading of a Fine which was before , nor the reason of it ; for it is not properly a Statute , nor do Fines receive any strength or virtue by it , but is but a construction of the said former Statute . And he put the Case betwixt Hide and Umpton ; where Umpton mean betwixt the Statutes of 32 and 34 H. 8. Declared his Will of all his Lands , which devise if it be good for two parts of the Land devised it was doubted , or that the devise should be void for the whole ; afterwards came the Stat. of 34 H. 8. and cleared the doubt , for to that intent it was made ; and in the said Statute there is a Proviso , that the said Statute shall not extend to the Will or the Devise of Tho. Umpton , or shall be prejudicial or hurtful to any person or persons for any Lands &c. contained or specified in the said Will or Devise , but that the said Will and Devise shall stand , remain and be in the same case , in force and effect in the Law , as the same was before the making of this Act. Now , notwithstanding that Proviso , the Will of Umpton was holden good but for two parts , for so the Statute of 34. H. 8. construed the Statute of 32 H. 8. So in our Case , the Statute of 32 H. 8. of Fines construes the Statute of 4 H. 7. to extend to Fines levyed by Tenant in tail , therefore the estate tail shall be adjudged in Law to be bound by the Statute of 4 H. 7. and not by 32 H. 8. which is rather a Iudgment upon the said Statute of 4 H. 7. than any new Statute . Windham to the same intent , and he relyed upon the reason aforesaid . And further said , if one will plead a Lease made by Tenant in tail upon the Statute of 32 H. 8. he need not to aver the full age of the Lessor , and yet that quality of full age is within the purview of the said Statute . First all Leases to be made , &c. by any person being of full age , &c. and so is the common use of pleadings . And of the same opinion was the Lord Anderson for the said Exception , for the reasons , and upon the difference aforesaid . Another Exception was taken to the Bar , because it is not alledged , that the said Fine was engrossed in the same Term in which it was levyed . And as to that , it was holden by Rhodes , that in pleading of a Fine it needs not to shew any engrossing of it ; and so are many Presidents , vide Plowd . Com. Smith and Stapletons Case , 15 Eliz. 428. Where a Fine was pleaded , Quaedam finalis concordia facta fuit in Octav. Sancti Hillarii 35 H. 8. & postea a die Pasch. in quindecem dies 36 H 8. concessa & recordata , &c. Super quem finem proclam . secundum formam Statuti factae fuer . viz. prima proclam . 7. Maii. Term. Pasch. 36 H. 8. without any mention of the engrossing of it : And see the Case betwixt Stowel and the Lord Zouch , where the Fine is pleaded as it is pleaded in the Case at Bar , quiquidem finis in forma praedict. levatus ( and that fine was levyed Pasch. 30 H. 8. ) ingrossatus fuit , & postea in Curia praedict. secundum formam Stattui , &c. lectus , & proclamatus fuit , viz. prim . proclam . Term. Pasch. 30 H. 8. And so upon the matter it is sufficient to shew , that the Fine was engrossed the same term in which it was levyed , for the Fine is pleaded to be levyed Term. Pasch. qui quidem Finis ingrossatus fuit , & postea proclam . viz. prim . proclam . Termino Pasch. which was the same Term it was levyed : And so , admit , that in pleading it ought to be shewed that the Fine was ingrossed in the same Term in which it was levyed , &c. Now it appears here to us by necessary consequence , that the Fine was ingrossed accordingly . And also the Ingrossment is pleaded as the Statute is penned , for the words of the Statute of 4 H. 7. are , after the engrossing of every Fine , the same Fine to be openly read and proclaimed in the same Court , the same Term , and so the words of our plea here pursue the words of the Statute ; for the said Statute doth not require by express words , that the Fine be engrossed the same Term , but the same is to be conceived by matter of construction and implication , and according to such manner of speech this plea is pleaded . And of the same opinion was Windham , and upon the same reason Anderson conceived , that the Tenant in pleading of the Fine ought to shew in express words , that the Fine was engrossed the same Term in which it was levyed ; for whosoever in pleading a plea will take the benefit of the Statute ought precisely to follow the Statute in all points ; and it is clear , that if the Fine be not engrossed , according to the Statute , that then it is not any bar by the Statute , and therefore it ought to be expresly alledged according to the Statute , and not by implication only .

Another Exception was taken to the Bar ( as was remembred by Windham ) i. pro ut per finem hic in Curia de recordo remanen-plenius apparet ; without saying , & per proclamation . inde , &c. But that Exception was disallowed by Periam and Windham , for the Fine had been good and well pleaded , without any such conclusion , pro ut , &c. And also the proclamations are endorsed upon the Fine , and then they appear upon the Fine , according to the words of the said conclusion . And so by Windham are many Presidents , and so in the said Case between Stowel and the Lord Zouch cited before , pro ut per finem illum hic de record . remanen . plane liquet . And See 1 Eliz. Plowden 224. between Willion and Barkly , a Fine pleaded without any pro ut , &c. Anderson took an Exception to the Bar at the beginning of it , i. Quod medietas 60 Messuagiorum , &c. parcel . medietatis 70 Messuag . praedict . that that is no good pleading ; for one moyety cannot be parcel of another moyety , for every moyety is entire .

Rhodes took Exception to the Replication , because the Demandant in avoidance of the Fine , that at the time of the Fine levyed Bamfield was seised , & semper postea , & hucusque , &c. of the moyety in Demesn , and doth not traverse the seisin of the Conusor at the time of the Fine levyed , for here two contrary pleas stand before us in equity of truth ; aeque vera , aeque falsa , aeque dubia , and a traverse would have made an end of all , and reduced the matter to certainty : And by Periam , the Bar is not answered , for every Bar ought to be traversed , confessed , or avoided , See 6 H. 7. 5 , and 6. where it is said by Hussey and Fairfax , where matter in fact is alledged by way of Bar it ought to be traversed , if it be not for the mischeif of tryal , as in case of Basterdy , where a thing is alledged to be done beyond the sea ; or to leave the matter in Law to the Court , without putting the same to the Iudgment of the Lay-people , &c. See also 5 H. 7. 12. Where it is holden , that a thing material alledged in the Bar ought to be directly traversed , or confessed , or avoided in fact or in Law , or conclude the other party by matter of estoppel : And that two affirmatives cannot make a good issue ; But the matter alledged in the Replication scil. that Bamfield was seised at the time of the Fine levyed shall be holden for void , and the matter alledged in the Bar , scil. that the Counsor was seised , as not answered ; for it shall be taken true , until it shall be avoided and destroyed by matter in Law , traverse , &c. Vide Librum . So he in default of traverse , the Bar is not answered but argumentative , scil. Bamfield was seised , ergo , the Conusor was not seised : And it is a common learning that in every Replication there ought to be certainty as to that : See the Case betwixt Fulmerston and Steward 2 Ma. 103. that a Bar ought not to be answered by argument : And as to the certainty which is requisite in a Replication . See the Case betwixt Wimbish and Talboies , Plow . Com. 4 E. 6. 42. where the Plaintiff shewed in his Replication his title as Heir , but because he did not shew , how heir , for want of such certainty in the Replication , the Plaintiff could never have Iudgment , although the Iustices for the matter in Law then in question were clearly resolved for the Plaintiff ; and here in this Replication the incertainty is such , that the Court doth not know to which to give credit , to the Plaintiff , or to the Def. and the bare matter of the Replication is not sufficient ; For in avoidance of a Fine , to say , that a stranger to the Fine , at the time of the Fine levyed , was seised , was never received , but that , partes Finis nihil habuerunt , that was the ordinary plea. Windham to the same intent ; that which the Demandant hath alledged in avoydance of the Fine , is but matter of Argument and implication . And we ought in this Case first to be insured of the matter of fact ; scil. Whether Zouch or Bamfield were seised , and the Court doth not know to which to give credit , 39 H. 6. 49. in Debt by an Executor , the Defendant pleaded , that the Testator made the Plaintiff and one A. his Executor , wich A. is living , and the Plaintiff pleaded , that the said A. died within such a Ward before the Writ brought , &c. and adjudged no plea , without traverse , without that , he was dead , for here are 2 affirmatives , whereon a good issue cannot rise , which see 32 H. 6. 23. The Def. in a Replevin avows for a Rent service , the Plaint . pleads , out of his Fee , the Avowant saith , within his Fee , he ought to traverse , without that it is out of his Fee , and for default of the traverse the pleading of both parties ; as to the several allegations of the seisin in Bamfield and Zouch may be true , for they both might be Ioynt-tenants of the said moyety at the time of the Fine levyed , in which case , as to the moyety of the moyety it is good enough . And yet when in pleading it is alledged , that A. was seised , &c. If the other party plead , that A. had nothing but joyntly with B. he ought to take a Traverse , without that , that A. was sole seised , and yet sole seisin is not expresly alledged ; but when the other party pleads , that A. was seised , it ought to be intended a sole seisin . Which See 1 E. 4. 9. 37 H. 6. 31. And it was never a plea admittable against a Fine , to say , that the Conusor had nothing at the time of the Fine levyed , which see 41 E. 3. 14. and also 38 E. 3. 13. 8 H. 6. 27. In Trespass the Defendant pleaded the Fine of the Ancestor of the Plaintiff , who said , at the time of the Fine levyed he himself was seised , without that that partes ad finem aliquid habuerunt , which see 46 E. 3. 14. and a Fine ought to be avoided by not seisin of the parties to the Fine , and not by the seisin of a stranger to the Fine ; and there is not any Book in the Law that alloweth such an averment of seisin in a stranger to the Fine , without answering to the seisin of the parties to the Fine , but 13 H. 8. In Assise , the Tenant pleaded a Fine upon Render of the Ancestor of the Plaintiff , to which the Plaintiff said , that before the Fine , at the time of the Fine , and afterwards continually , he himself was seised , and the same was held no plea against such a Fine upon a Render , notwithstanding the privity of blood ; contrary , against a Fine , which proves a gift precedent .

Anderson to the same intent . The Replication for want of Traverse is incurable , for we as Iudges do not know what to do , because that the truth of the matter in fact doth not appear unto us , and so neither the matter in Law ; for every plea ought to be traversed , or confessed , and avoided , otherwise nothing appears to us , and we cannot know whether the Conusor or Bamfield were seised at the time of the Fine levyed , for otherwise the matter in Law cannot rise ; and yet I well know , that although a traverse may be spared in respect of a matter in Law which should be choaked and put out of the Book by the traverse , or for the mischief of the tryal as aforesaid , where a thing is alledged to be done beyond sea . 19 E. 4. 6. In debt the Defendant pleaded , that the Plaintiff was born at Denmark , under the obedience of the King of Denmark , the Plaintiff by Replication said , that he himself was born at D. in England in the County of York , there he shall not take a traverse without that , that he was born at Denmark , for there such tryal connot be , but in such case the Defendant by way of Rejoynder shall say , that the Plaint . was born at Denmark , without that that he was born at D. in the County of York : And it is true , a supposal of a Writ or Count may be answered to an Affirmative ; but a matter alledged by express words cannot .

Rhodes , admitting now that the Bar be naught , and the Replication faulty , as it is , then I conceive , that if the point of the Action be confessed by the Bar , the Court shall give Iudgment upon the Bar , and shall not meddle with the Replication ; but if it be not confessed by the Bar , that then there shall be a Repleader . And I do conceive , that a Repleader may be awarded upon a Demurrer in Law : which see Plowd. 1 Ma. in the Case betwixt Browning and Beston 138. In Trespass the Plaintiff doth suppose the Trespass in two places , scil. in Bermestreet and in Southwark in the County of Surrey ; as to the Trespass in Southwark the Defendant doth justifie by special matter of a Lease , without answering any thing to the Trespass in Bermestreet . The Plaintiff doth reply , and makes his title by a Lease more ancient than the Lease to the Defendant ; upon which the Defendant doth demurr in Law. Now the defect in the Bar appearing , the Court awarded a Repleader . And 9 H. 6. 35. in a Replevin the Defendant avowed for damage fesant . The Plaintiff made title by Common . The Defendant pleaded a Release of the Common by deed , which was not a perfect deed , upon which the Plaintiff did demurr in Law : And the Replication , in which the imperfect Release was , was holden naught , but because there was a defect in the Bar to the Avowry by the title of Common , the Court awarded , that the parties should replead , not in respect of the vitious plea upon which it was demurred , but in respect of the defect in Bar : And so in this Case Periam said , that nothing should be awarded in this Case but where an Issue is joyned , for an Issue is always joyned upon a point certain . But upon a demurrer all the parts of the pleading , the Count , the Bar , &c. are referred to the Court , as well for the form as for the matter . The Book which hath been vouched to the contrary out of 9 H. 6. I have procured search to be made for the Roll , but it cannot be found , and it is inconvenient , that after a demurrer a Repleader should be granted , for then Causes should never have an end : And as to the Case betwixt Browning and Beston , the Repleader there was permitted by the assent of the parties , rather then awarded by the Rule of the Court.

Windham to the same intent , that no Repleader shall be in this Case , and he said , that in the time of the Lord Dyer the opinion of the Court was so : And as this case is , the plea a Bar being good , and the Demurrer being upon the Replication , no Repleader should be , for a Repleader shall never be granted , where the plea upon a Demurrer is not good ; but if the Bar be not good , and the Defendant doth demurr upon the Replication , there a Repleader may be . And as to Browning and Bestons Case he conceived , that the parties did plead de novo , but not replead , for if it had been a Repleader , then the parties should begin to plead where the first defect was , as if the defect be in the Bar , there the Repleader shall begin , but the Declaration shall stand : But in the said Case of Browning and Beston , the Plaintiff pleaded all de novo , as a new Count , &c. and yet the first defect was in the Bar , and therefore he conceived , that there it was not a Repleader , but that the parties by assent did plead de novo .

Anderson was of opinion , that as this Case is , no Repleader shall be , and yet he held the Repleader might be upon a Demurrer as well as upon an Issue joyned ; For a Demurrer joyned is an Issue to be tryed by the Iudges , &c. and such was the opinion of Manwood chief Baron . And the Iudgment in the Case betwixt Browning and Beston is not that the parties shall plead de novo , but that they shall replead . See there folio 138. a. and in that Case there might well be a Repleader , for there the truth of the matter in fact is confessed in the pleading , but in the Case at Bar it is otherwise , for the pleading is so obscure , that we do not know the truth of the matter , and the right of the matter doth not appear unto us .

And by Periam , as to that which hath been said , that upon the demurrer upon the Replication , the seisin of Bamfield at the time of the Fine is confessed . Sir , it s not so , for no more shall be holden confessed by a demurrer , but that which is duly and sufficiently pleaded , and because the seisin of Bamfield is not sufficiently pleaded , therefore not confessed ; and for proof of that learning , see the Case betwixt Wimbish and Talboies ; and the Case betwixt Hill and Graunge : 1 Mar. Plowd. 171. and see the Case betwixt Partridge and Croker ; and so was opinion of the Lord Anderson , who relyed much upon the Case , where it is said , that in pleading a plea , all matters in fact well and materially alledged by a general Demurrer are confessed to be true .

Rhodes . Now we are to see , if by the Statute of 27 Eliz. cap. 5. This defect in the Replication may be salved , and I conceive , that this Statute doth extend to all imperfections which happen by the Act ; Misprision , or negligence of the Clarks or Counsel ; for the Clyent propounds his Cause to the Clark and his Counsel to manage in the course of his suit , and if the Clark or Counsel err therein , or in that which to them belongeth , the Csyent as to that shall be releived by the Statute ; but if there be any defect in the matter , so as the matter will not serve , it is otherwise . As 5 H. 7. 1. In the Roll of a plea there were divers spaces ( for the year and day ) void and blank , in another Term , the Iudges could not amend them , but now by the said Statute they may . So colour in Assise wanting is helped by this Statute , so the usual averment , & hoc paratus est verificare , &c. left out , the Court hath power to amend it , and so by him the Court by this Statute hath power to amend that defect in Trespass .

Antea 43 , 44. Periam to the contrary . And that this default of Traverse is not amendable by the said Statute , for it is enacted by the said Statute , that upon a Demurrer the Iudges shall give Iudgment as the right of the cause and matter in Law shall require ; but in our case , as the pleading now is , no right of the cause or matter in Law appeareth according to which we can judge , for we upon this pleading cannot tell whether the Conusor or Bamfield was seised at the time of the Fine levyed , for upon the Demurrer upon the Replication the seisin of Bamfield is not confessed , because it is not well alledged : And if it had been well alledged , yet it had not been confessed , because that the Tenant who demurrs upon the Replication , hath in his Bar expresly alledged , that the Conusor was seised : An Original Writ of Debt against one as Executor in the debet and detinet could not be amended by 8 H. 6. but now by the Statute of 27 Eliz. it may . See 22 E. 4. 21 , 22. So nominare for praesentare in a Quare Impedit shall be now amended by this Statute ; And in a Writ of Formedon , discendere for remanere shall be amended by the said Statute of 8 H. 6. 44 E. 3. 13. vide . 11 H. 7. 1 , 2 3. In Assise , upon whom the Plaintiff , where it should be upon whom the Defendant entred ; And if the Averment usual as above was miss-set down , it was amendable , but if it were utterly left out , not , but now in both Cases it is amendable , so , defendit vim & injuriam quando , &c. if it be left out , it is amendable , for all these matters lye in the Conusance of the Clark , but in our Case , the right of the cause and matter doth not appear unto us , for if Bamfield was seised at the time of the Fine levyed , then as the Demandant and his Counsel pretend , the Law is with the Demandant , and if the Conusor and not the Demandant , then the Law is with the Tenant , as his Counsel hath argued , so as the right of the cause consists and depends upon the truth of the seisin , which matter doth not appear unto us : And if we enter in course of amendment , we do not know if the Demandant would have traversed , without that that the Conusor was seised , which shall not be a good Traverse , or absque hoc , quod partes ad finem aliquid habuerunt , &c. which although it be a good Traverse in Law , yet we do not know if the truth of the cause will serve to maintain such matter , and because without altering matter we cannot amend the Plea. Windham to the same purpose ; For by the Statute of 27 Eliz. we ought to judge in this case , as the right of the cause and matter in Law shall appear ; but in this case neither the right of the cause nor the matter in Law appeareth unto us , according to which we can judge , for we know not to which of the parties to give credit , touching the seisin of the Conusor , or Bamfeild at the time of the Fine levyed , for as to our judicial knowledge , both Pleas are to us equally dubious ; And he agreed the Cases put before touching amendment of matters upon default of the Clark , scil. de hoc ponit se super patriam , left out , so colour in Assize , and Trespass wanting , so , & hoc paratus est verificare , all which matters are amendable by the Statute of 27. Eliz. But he said , that if in Trespass the Defendant doth justify by a Lease for years , without shewing the place where the Lease is made , it is not amendable , for it is matter which lyeth in the notice of the party only , and not in our judicial knowledge : And as to the Case of 5 H. 7. 1. of the places left , he conceived it is not amendable in another Term by this Statute , for that is material , and the filling of those spaces the parties themselves shall supply and not the Court , for the Court shall never amend , where their amendment makes alteration of the substance of the pleading , or of the Verdict , as 20 H. 6. 15. In Trespass , the Plaintiff declared of a continuando usque diem impetrationis brevis , viz. 18. die Martii , where the Teste of the Writ was , 2 die Januarij , the Defendant pleaded to Issue , which was found for the Plaintiff , and that Misprision of the Teste or date of the Writ could not be amended . And no amendment upon this Stat. of 27 Eliz. two things are to be considered .

First , that the Iudges , in such amendment , medle not with matter , nor alter the substance .

Secondly , that they do not amend but according to their judicial knowledge .

Anderson , to the same intent , for as it hath been said before , the truth of the Case doth not appear unto us according to which we can judge , and I conceive that upon any amendment upon this Statute , we cannot take out one Roll and put in another , and as our case is we cannot amend this defect without taking out the whole Roll , and therefore in the Case of Leonard , which was late Custos brevium here , where in a Replevin he avowed for a Rent-service , and upon especial Verdict the Case was , that Sir Henry Isley held of the said Leonard by Fealty , and the Rent mentioned in the Avowry , and was attainted of high Treason , and the King seised and granted the Land to the Plaintiff , upon whom Leonard avowed for the Rent-service , and I and my companions were agreed , that the rent , notwithstanding the seisure and grant of the King remained distrainable of common right , but Leonard could not have return of the Cattel , because he had avowed for a Rent-service , & now it appeareth to us upon the Verdict , that he had right to so much rent , but not to such a Rent , but a Rent-seck distrainable of common right , so a Rent in another degree ; and we also agreed , that the Avowry was not amendable , for then upon such amendment , we ought to take out a whole Roll , which was not intended by this Statute : And he conceived also , that in debt against Executors in the Debet & detinet , such a Writ shall not be amended by this Statute , and he conceived , that his exception to the Bar , quod ad medietatem , 60. Messuag . &c. parcel . medietatis , &c. is relieved by this Statute , for the meaning appeareth : And also the exception , that it is not expresly shewed that the Fine was engrossed in the same Term in which it was levied . And Periam moved another matter , Co. 1 Inst. 71. b. 72. a. if now the parties demurring in Law as to part of the Land in demand , and being at Issue upon the residue , if the Court shall adjudge the matter in Law , before the Issue be tried , or not , 32 H. 6. 5 & 6. In Trespass for taking of his Cattel , the Defendant as to parcel pleaded not guilty , and as to the remnant pleaded another Plea , upon which the parties did demur , and there they proceeded to trial before the matter in Law determined , and found for the Plaintiff , and he had Iudgment thereupon for the damages , but the costs were suspended until , &c. And the Defendant brought his Writ of Error . 48 E. 3. 15. In an Action of Wast , as to parcel the Defendant pleads , no Wast , and as to the rest pleaded matter in Law , upon which there was a demurer joyned ; It was holden , that the Issue should not be tried until the matter in Law be determined : But it was said by Fulthorpe in Trespass , if the Defendant to parcel plead the Enquest , and to other parcel matter in Law , in such case he should proceed to trial presently , and damages should be taxed of the whole , as well of that upon which there was a demurrer in Law , as of that of which the Issue was joyned , ad quod non fuit responsum . See also 11 H. 4. 228. In Trespass , the Defendant pleaded to Issue for part , and for the residue did demur in Law , Process for the trial issued before the matter in Law determined ; And Periam conceived that the Court might proceed in such Case , the one way or the other : As to the matter in Law , whether the issue in tail upon this Fine should have the Averment , he conceived , that he should not have the said Averment , for that it should be very perilous to the Inheritances of the subjects . And he argued much upon the dignity of Fines out of Bracton and Glanvil , whom he called Actores , non Authores Legis ; & that Fines at the common Law were of great authority until the Statute of West . 2. And afterwards by the Statute of 34 E. 3. of non-claim , from whence they became to be of so little value in Law , that they were accounted no other than Feoffments upon Record , so as thereby no assurance was of Inheritances but a general incertainty until the Statute of 4. H. 7. by which Statute they were restored to their ancient power and virtue : After which Statute many shifts were devised , to creep out of it : So as the Statute of 32 H. 8. was made to take away all questions and ambiguities which were conceived upon the said Statute of 4 H. 7. And therefore we who are Iudges ought to frame our Iudgments for the maintaining of the authority of Fines , for so the possessions and inheritances of the Subjects shall be preserved ; And that is the reason , that if a stranger levy a Fine of my Land in my name , that I have not any remedy but a Writ of Deceit against him who levyes the Fine , so if a Feme-covert levyeth a Fine of her Land as a Feme-sole , the same shall bind her after the coverture , if the Husband do not enter upon the Conusee during the coverture and interrupt the possession gained by the Fine : And 17 E. 3. and our Books are very plentiful to this purpose that the Law doth aerge admit of such allegations against such Fines : A Fine was pleaded in Bar of Land in A. B. and C. he against whom it was pleaded was not received to aver against the supposal of the Fine , that there was no such Town or Hamlet as A. 46 E. 3. 5. A woman Tenant in tail , had Issue a Daughter , who was inheritable to the tail , the Daughter took a Husband , & they both living the Mother , and during her seisin , levied a Fine of the Land entailed to a stranger , sur conusans de droit , come ceo , &c. who rendred the Land to the Husband and Wife in specil tail , the Husband died having Issue , the Wife took another Husband , had Issue , and died , the Husband to entitie himself to the Land as Tenant by the curtesy , would in pleading have averred the seisin of the Mother at the time of the Fine levyed , and he could not , and yet he was a stranger to the Fine , but he was privy to the estate , and his claim was by her who levyed the Fine , 6 E. 3. 46. Fitz. Averment 40. In a Writ of Entry , sur dissei sin , the Fine of the Ancestor of the Demandant was pleaded in Bar by the name of W the Demandant in avoidance of it would have said that the name of his Father was R. to have avoided the Fine , but to that he was not received . And 3 E. 3. 32. scil. Averment , 42. In a Formedon , the Tenant pleaded Ne dona pas , The Demandant by Replication said , That a Fine was levied of the same Lands , between the Father of the Demandant , and one T. by which Fine the Father of the Demandant did acknowledge to T. the Lands come ceo , &c. and the said T. gave by the said Fine to the Father of the Demandant the Land in tail . Where it is said by Stone , that since the gift is proved by as high a Record , a man shall not aver against such matter in avoidance of the said Fine , &c. and yet the party against whom it was was a stranger to the Fine : And see 38 E. 3. 7. The Lord shall not be received against a Fine levied by his Tenant to aver the dying seised of his Tenant in his Homage . And as to the Issue in tail , he conceived , that the Averment doth not lie for him , for the Issue in tail is as much privy , as the Heir of a Tenant in Fee-simple . And see 33 E. 3. scil. Estoppel 280. In a Formedon , the Tenant voucheth , the Demandant Counter-pleaded , that the Vouchee nor any of his Ancestors had any thing in the Land in demand after the seisin , &c. to which the Tenant said , that to that the Demandant should not be received , for the Father of the Demandant after the gift levied a Fine to the Ancestor of the Vouchee of the said Land in demand , sur conusans de droit come ceo , &c. and the same was holden a good bar to the Counter-plea .

And it was said by the Iustices , That although the Statute of West . 2. of Donis conditionalibus , doth not avoid the Fine as to the fore-closing of the Issue in tail of his Formedon , yet it remaineth in force as to the restraining of the heir in tail to aver a thing against the Fine as well as against the heir in Fee-simple ; and in all Cases , where he against whom a Fine is pleaded claims by him who levieth the Fine , he shall not have the same Averment , but where he claims by a stranger to the Fine , there he shall have it well enough ; see 33 H. 6. 18. If my Father Tenant in tail , or in Fee , grant the Land by Fine , and afterwards I make Title to the same Land by the same Ancestor , and the Fine is pleaded against me , I shall not be received to say that those who were parties to the Fine had not any thing at the time of the Fine levied , but such a one an estranger whose estate , &c. but it is a good Plea for me to say , that after the Fine such a one was seised in Fee , and did enfeoff me , vid. 22 E 3. 17. before 33 E. 3. Estoppel 280. And Dyer 16 Eliz. 334. The Father is Tenant for life , the Remainder in Fee to his Son and Heir , levieth a Fine to a stranger , sur conusans de droit come ceo , &c. with warranty , and takes back an estate by the same Fine , in that case it was holden that the heir should not be received to aver continuance of the possession and seisin , either ante finem , tempore finis , or post finem , in the Tenant for life , for it is a Feoffment upon Record , and makes a discontinuance of the Remainder and Reversion . The only Book in our Law to maintain the Averment is 12 E. 4. 15. by Brian , who although he was a reverend Iudge in his time , yet he erred in this , that if Tenant in tail be disseised , and levieth a Fine unto a stranger , sur conusans de droit , come ceo , &c. that the Issue in tail may well say , that partes ad finem nihil habuerunt , but Coke and Lit. were clear of a contrary opinion and see in the same year , fol. 12 by Fairfax and Littleton , that if Tenant in tail , where the Remainder is over to a stranger , levieth a Fine sur conusans dodroit , come ceo , &c. he in the Remainder may aver continuance of seisin against that Fine , for he is not party , nor heir to the party , &c. And the Stat. of 4 H. 7. goes strongly , to extort such Averment out of the mouth of the Issue in tail , for the words concerning the same point are , saving to every person or persons , not party , nor privy to the said Fine , their exception to avoid the said Fine , by that , that those which were parties to the said Fine nor any of them had ought in the Land at the time of the said Fine levied : And it is clear , that the Issue in tail is privy to his Ancestor whose heir to the tail he is , which see agreed , 19 H. 8. 6. 7. And he vouched the Case of one Stamford late adjudged , Land was given to the eldest Son in tail , the Remainder to the Father in tail , the eldest Son levied a Fine , sur conusans de droit come ceo , &c. and died without Issue in the life of his Father , and afterwards the Father died ; the second Son shall inherit ; but if the eldest Son had survived the Father , and afterwards died without Issue , the second Son should have been barred .

Periam to the same intent : It should be very dangerous to the Inheritances of the Subjects to admit of such Averments , and by such means Fines which should be of great force and effect should be much weakned , and he put many Cases to the same purpose as were put before by Rhodes Iustice , and he shewed how that Fines , and the power of them were much weakned by the Statute of non-claim , whereof followed ( as the preface of the Statute of 4 H. 7. observeth ) the Vniversal trouble of the Kings Subjects , and therefore by the said Statute of 4 H. 7. Fines , for the good and safety of the Subjects were restored to their former Grandure and authority , which should be construed by us who are Iudges , strongly and liberally for the quiet and establishment of present possessions , and for the barring and extinguishing of former rights , and so did the Iudges our Predecessors ; which see in the Argument of the said Case between Stowel and the Lord Zouch : So see such liberal construction , 19 Eliz. Dyer 351. Where if Land be given to Husband and Wife in special tail , and the Husband alone levieth a Fine and dieth having Issue , the Issue is barred : And it hath lately been adjudged by the advice of all the Iudges of England , upon the Statute of 1 Ma. viz. All Fines levied , whereupon Proclamations shall not be dayly made by reason of Adjournment of any Term , shall be of as good force and strength to all intents and purposes , as if such Term had been holden and kept from the beginning to the end thereof , and not adjourned , and the Proclamations shall be made in the following Term , which reason in construction of the said Statute , the Iudges in the case of the Cooks of London , 20. Eliz. have observed , which see Plowden 538. For although Successors are not mentioned in the said Statute of 4 H. 7. but only Heirs , yet the Iudges did construe the said Statute to extend to them that they should be bounden as well as the Heirs ; for it is in the like mischief , and the said Statute was made for the publick good , and for the repose of the Inheritances of the Subjects of this Realm , and therefore the same ought to be largely extended in the meaning and sense of it , and for the benefit of the Possessors of the Lands , and to the destroying of former rights which were not claimed . It hath been said , that this Fine is but a Fine by conclusion , and not in verity ; and therefore not within the Statute . But without question , Fines by conclusion are within the Statute . And that is clear by the Saving , scil. to all persons other than parties to the said Fines , &c. And Periam was against the opinion in Stowells Case by Sanders 356. A Disseisor maks a Feoffment in fee upon condition , the Feoffee levies a Fine with Proclamation , five years pass , the condition is broken , the Disseissor re-entreth , and Periam conceived that in such Case the Disseissee is bounden , for by the Fine , and five years non-claim , the right of every stranger is barred , and when the Disseissor entreth for the condition broken , the Fine is not annoyed , but rather confirmed , and former rights shall not be revived . Windham to the same intent , and vouched the Books before remembred , and that the meaning of the Statute of 32 H. 8. made upon the Statute of 4 H. 7. was to bind the Issue in tail as strongly as the heir of Tenant in Fee-simple was bound at the common Law , and that Fines by conclusion are as fully within the purview of that Statute as Fines in verity , for Fines by conclusion are Assurances ; And as to the objection against our Fine , that it is not rite levatus because that partes ad finem nihil habuerunt , &c. the same is no reason , wherefore this Fine should not be rite levatus , for these words rite levatus , to the external form of a Fine are to be taken as to a Fine levied , coram Edmundo Anderson & socijs suis , where all the Iustices ought to be named , and so it seemed also to Periam and Anderson . Our case had little resemblance to the Case where Tenant in tail maks a Lease according to the Statute of 32 H. 8. if he be not seised at the time of the demise , it is void ; for the Stat. speaks seised in tail : but so are not penned the Statutes of 4 H. 7. & 32 H. 8. as 4 H. 7. a Fine levied shall bind privies , & strangers , &c. & 32 H. 8. Fines levied of any Lands entailed to the Conusor or any of his Ancestors , and it is not a Fine in respect of the possession which passeth by the Fine , but in respect of the Concord and Agreement ,

And Tenant in tail by these Statutes hath as great power to bind the right of the entail , although he cannot meddle with the possession , as the Tenant in Fee-simple at the common Law.

Anderson to the same intent , All the matter rests upon this point , if the Issue in tail be privy or not , for if he be privy , then clearly he is bounden . And as to that , the Issue in tail before the Statute of 32 H. 8. hath been always accounted privy . See 29 H 8. Dyer 32. Tenant in tail of the gift of the King levieth a Fine , the same shall bind his Issue , for they are privy . And he argued much upon the Cases cited by the other Iustices before , and especially upon the said Case of Stowel and the Lord Zouch ; how that the Issue in tail is there holden privy ; and that the Statute of Fines ought to be taken and construed to enfore the operation of Fines against former rights , and for the establishment of the present possessions and estates . And by him divers rights and persons are excepted by the said Statute , but this right in gross of possession , nor the Issue in tail , whose Ancestor being out of possession levieth the Fine is not excepted , therefore both of them comprehended in the Statute . And in his argument he stood much upon it , how dangerous a matter it should be , to receive such averments and allegations which go meerly in avoidance of Fines , for so every Fine might fall in the mouth of the Lay-Gens , which would be very inconvenient . And he concluded his Argument with this Case . Tenant in tail doth discontinue , and disseiseth his discontinnuee , and levieth a Fine , the discontinuee before the proclamations reentreth , the proclamations are made , Tenant in tail doth re-enter , and dieth seised ; against this Fine his Issue shall not be remitted . See as to the averment 3 H. 627. 33 H. 6. 18. 42 E. 3. 20. 8 H. 4. 8. 12 E. 4. 19. by Fairfax and Needham , and fol. 15. by Brian and Choke . And afterwards Iudgment was given , that the Demandant should be barred .

CIII . Gunerston and Hatchers Case . Intr. Pasch. 24 Eliz. Rot. 2112. In Communi Banco .

CHarles Duke of Suffolk was seised of three parts of the Manor of D. and Poole was seised of the fourth part of the said Manor , Avowry . and afterwards the Duke granted out of the said three parts a Rent-charge of five marks to Gunerston ; and afterwards the said Duke of the said three parts did enfeoffe Hatcher in Fee , after which Poole conveyed his said fourth part of the said Manor to the said Hatcher in Fee , and afterwards Hatcher being seised , ut supra , reciting the said several purchases , especially the said fourth part devised to Katherin Hatcher at Will , and Gunerston distreined the Cattel of Katherin Hatcher for the arrearages of the said Rent , and in a Replevin avowed the distress : and by the opinion of the whole Court the Avowry was not maintainable , for the fourth part of the said Manor , which was in the possession of Poole , was not charged with the Rent ; and although all the Manor be now in the possession of Hatcher , yet the Mannor is not so consolidated nor united by this unity of possession , but that the owner might well enough single out eandem quartam partem , and grant it , and the grantee shall hold the same discharged , as the said Poole held it ; and the beasts of the said Katherin shall not be distreined ; and so Iudgment was given against the Avowant .

CIV . Mich. 29 & 30 Eliz. In Communi Banco .

Voucher . Post . 291. IT was moved by Serjeant Walmesley , If a common Recovery be to pass at the Bar , and the Tenant is ready at the Bar and voucheth to warr . A. for whom one is ready at the Bar to appear for the vouchee by his warrant of Attorny ; It was holden , that this appearance is meerly void , for in such case the vouchee ought to appear in person , because without summons ; but where summons issueth , and the same is entred upon the Roll , there may the vouchee at the Return appear in person , or by Attorny , at his Election . And that was the clear opinion of all the Iustices , and also of the Prothonotaries .

CV . Keys and Steds Case . Mich. 29 & 30 Eliz. In Communi Banco .

IN a Formedon by Keys against Sted , the Case was , the Sted and his Wife were Tenants for life , Formodon . 2 Len. 9. the Remainder over to a stranger in Fee ; and the Writ of Formedon brought against Sted only , who made default after default , whereupon came his Wife and prayed to be received to defend her right ; which was denied her by the Court , for this Recovery doth not bind her , and it is to no purpose for her to defend her right in that Action which cannot here be impearched ; Whereupon he in the Remainder came and prayed to be received , and the Court at first doubted of the Receit , forasmuch as if the Demandant shall have Iudgment to recover , he in the Remainder might falsify the Recovery , because his estate , upon which he prayeth to be received , doth not depend upon the estate impleaded , scil. a sole estate , whereas his Remainder doth depend upon a joynt estate in the Husband and Wife , Falsifier of Recovery . not named in the Writ ; But at the last , notwithstanding the said Exception , the Receit was granted . See 40 E. 3. 12.

CVI. Liveseys Case . Mich. 29 & 30 Eliz. In Communi Banco .

Writ of Right . IN a Writ of Right against Thomas Livesey of the Mannor of D. & de duabus partibus Custodiae Forrestae de C. the Tenant did demand the view and he had it , and return was made , and now the Writ of Habere facias visum , was viewed by the Court , and it was , Visum Manerii & duarum partium Custodiae , &c. And it was holden by the Court not to be a sufficient view , for the Forrest it self ought to be put in view , scil. the whole Forrest , View . and not duae partes tantum , as where a Rent or Common is demanded , the Land out of which the Rent or Common is going ought to be put in view ; and there a Writ of Habere facias visum de novo issued forth .

CVII . Germys Case . Mich. 29 & 30 Eliz. In Communi Banco .

GErmy brought Debt upon a Bond against A. as Executor , Debt . 2 Len. 119. and the Case was , That the Testator of A. by his Will did appoint certain Lands , and named which , should be sold by his Executors , and the moneys thereof arising distributed amongst his Daughters when they have accomplished their ages of one and twenty years ; the Lands are sold , if the moneys thereof being in the hands of the Executors until the full age of the Daughters shall be assets to pay the debts of the Testator ? And by the clear opinion of the whole Court , Assets . Post . 224. the same shall not be assets , for that this money is limited to a special use .

CVIII . Mich. 29 & 30 Eliz. In Communi Banco .

IN an Action of Debt upon an Obligation , the Defendant saith , that the Plaintiff shall not be answered , for he is out-lawed , and shewed the Outlawry in certain , by the name of I. S. of D. in the County of , &c. The Plaintiff shewed , that at the time of the sute begun against I.S. upon whom the Out-lawry was pronounced , the said I.S. now Plaintiff , was dwelling at S. absque hoc , that he was dwelling at D. Vide 21 H. 7. 13. And it was holden a good Replication , to avoid the Out-lawry without a Writ of Error , by Anderson . 10 E. 4. 12. For if he were not dwelling at D. then he cannot be intended the same person : See 39 H. 6. 1.

CIX . Mich. 29 & 30 Eliz. In Communi Banco .

IT was agreed by the whole Court , and affirmed by the Prothonotaries , That if in Account the Defendant be adjudged to account , and be taken by a Capias ad computandum , and set to mainprize , pendent the Account before the Auditors , and doth not keep his day before them , that now a Capias ad computandum de novo shall issue forth against him .

CX . Glosse and Haymans Case . Mich. 29 & 30 Eliz. In the Common Pleas.

JOan Glosse brought an Action of Trespass , vi & armis , Trespass , vi & armis , against a Servant for carrying away his Masters goods . Owen 52. Mor● 248. against John Hayman , who pleaded the general Issue , and the Iury found this special matter , That the Plaintiff was a Grocer in Ipswich , and there held a Shop of Grocery , & quod illa reposuit fiduciam in the Defendant , to sell the Grocery Wares of the Plaintiff in the said Shop : And further found , that the said Defendant being in the said Shop in form aforesaid , cepit & asportavit , the said Wares , and did convert them , &c. It was moved in Arrest of Iudgment , that this Action , vi & armis , upon this matter doth not lie , but rather an Action upon the Case . But the Court was clear of opinion , that the Action doth well lie , for when the Defendant was in the Shop aforesaid , the Goods and Wares did remain in the custody and possession of the Plaintiff her self . And the Defendant hath not any Interest , possession , or other thing in them , and therefore if he entermeddle with them in any other manner , than by uttering of them by sale , according to the authority to him committed , he is a Trespassor ; for he hath not any authority to carry the Wares out of the Shop not sold , but all his authority is within the Shop . And Rodes put the Case of Littleton 25. If I deliver my Sheep to another to manure his Land , or my Oxen to plow his Land , and afterwards he kills them , I shall have an Action of Trespass against him : And afterwards Iudgment was given for the Plaintiff .

CXI . Martin and Stedds Case . Mich. 29 & 30 Eliz.

RIchard Martin , Alderman of London , brought an Action upon the Case against Stedd , and declared , That whereas the Queen by her Letters Patents dated , the 27. of August , anno 24. of her Reign , had granted to the Plaintiff the Office of Master of the Mint , through all England , to exercise the said Office , secundum formam quarundam Indent . betwixt the said Queen and the said Plaintiff conficiendam , and that in January following the said Indenture was made , by which it was agreed betwixt the said Queen and the Plaintiff , that the money , in posterum , should be made in such manner , &c. according to the true Standard ; and declared , that he had duly and lawfully made all the money according to the said Standard : Yet the Defendant , machinans , &c. had slanderously spoken and given out speeches in these words , Mr. Martin hath not made the money as good and fine as the Standard , by an half penny in the ounce , and so he hath saved four thousand pounds . It was objected against this Declaration by Walmesley Serjeant , that here the Plantiff hath declared upon the Letters Patents , and the Office given by the Letters Patents ought to be exercised according to the Indenture , &c. And here appears upon the Declaration no Indenture , for no enrolment of such Indenture is shewed , and if it be not enrolled , then there cannot be any Indenture betwixt the Queen . &c. and then the Qeeen cannot have an Action upon it for want of enrolment . See 21 H. 7. 21. 1 H. 7. 28. and 31. 5 E. 4. 7. and also if there be not a sufficient Indenture , then the Plaintiff is not Master of the Mint , and then also there is not any new Indenture : And then the Plaintiff ought to make the money according to the the old Standard , and then might the Defendant well justifie the words .

Another Exception was taken , because the Plaintiff is not at any damage , for the Queen cannot have against him but an Action of Covenant upon the said Indenture , because the Defendant hath not made the money accordingly , which matter is not actionable , no more than if the Farmer of the Queen had brought this Action against one , for speaking that he had broken the condition or covenants of his Lease . And as unto these words , So that the Defendant hath saved four thousand pounds , those words are not actionable , for it may be he hath saved this four thousand pounds to the Queen ; and such construction the Iudges ought to make of such ambiguous words in such cases , scil. in optimam partem . It was adjorned .

CXII . Mounson and Wests Case . Mich. 29 & 30 Eliz. In the Common Pleas.

Challenge . 3 Len. 22● . IN an Action of Trespass between Mounson and West , the parties were at Issue , and now at the Return of the Pannel the Defendant challenged the Array , because it was made by Bartholomew Armin , who took to Wife the Cosin German of the Plaintiff , & ex ea had Issue living , the mother being dead : And upon this challenge the Plaintiff did demur in Law ; And it seemed to the Lord Anderson , that it is not a principal challenge , but only to Favour . For the matter of the challenge is not consanguinity , but only affinity : And so it seemed to Periam . And Rhodes cited a case adjudged in the Kings Bench. Markham brought an Action upon the Case against Lee , who at the Nisi Prius challenged the Array , because the Sheriffs wife was sister to the Plaintiffs Wife , and that was before the Lord Dyer at Nottingham , and that challenge was holden there , not to be a principal challenge , upon which Error was brought in the Kings Bench : And Error assigned in that , and for that cause the Iudgment was reversed : And by Windham the Writ of Venire facias is , quia nulla affinitate , &c. so as affinity is presumed in Law not indifferent . And by Anderson that is to be intended of the Iurors , and not of the Sheriff , 22 E. 4. 2. The Array was challenged , because that the Sheriff , &c. had married A. Daughter of Eliz. Sister of the Mother of the Plaintiff , and that was holden a principal challenge 20 H. 7. 7. 26 E. 3. 21. And afterwards at another Term the Case being moved , Anderson , Rhodes and Windham were clear of opinion , Dy. 37. 191. 319. that it is a principal challenge ; but Periam haesitavit , and put a difference betwixt consanguinity and affinity , for affinity is not a principal challenge , unless it be averred , that the Issue , &c. is inheritable to the Land . And Anderson put the Case in 14. H. 7. 2. Where one challenged , because one of the Iurors had married the Mother of the Defendant , it was holden a principal challenge . And 15 H. 7. 9. where the challenge was for that the Brother of the Wife of the Defendant had married the Daughter of the Sheriff .

CXIII . Sir Thomas Greshams Case . Mich. 29 & 30 Eliz. In the Exchequer .

SIr Tho. Gresham being seised of the Manors of Walsingham and Milcham in the County of Norfolk , 12 Eliz. Revocation of uses . enfeoffed B. and C. to certain uses , and that was with clause of Revocation upon the tender of forty shillings , and that after such Revocation he might limit new uses ; and afterwards the year following , Sir Tho. Gresham made the like conveyance of his Lands in the County of Suffolk to the said persons , to the like uses , upon like clause of Revocation upon the tender of forty shillings , Sir Thomas tendered to the said Feoffees one sum of forty shillings , to revoke the uses raised upon both the Feoffments ; & afterwards raised divers uses of divers of the said Manors holden in Capite , Dyer . 372. and afterwards Sir Thomas died : And afterwards it was resolved by the opinion of the Iustices , that by that tender the uses were not revoked , but that the Revocation was utterly void , for two several sums of forty shillings ought to have been tendered , for they were several Indentures and could not be satisfied by one sum . After which by a private Act of Parliament , 23 Eliz. the said Revocation was enacted and adjudged to be good and sufficient in Law. And now the Lady Gresham was called by process into the Exchequer for a Fine due to the Queen for the said alienation , Fine for Alienation . because that now the said uses newly raised were good , and the said Manor possessed according to the limitation of them , for now the Revocation is good , because done by the said Statute which recited the whole special matter , and that for want of a sufficient Tender , the Revocation was void in Law ; and also reciting the new uses which were declared for the payment of his debts , and many honorable Legacies , & also for the security of those who had purchased underneath the said new uses : For remedy whereof it was enacted , & quod praedict. Revocationes bonae & sufficientes in lege habeantur , reputentur , & recognoscantur . And it was argued by Coke , that upon the matter , no Fine is due , for all those new uses took their essence and effect by that Act of Parliament , to which the Queen her self is a party , and the principal Agent , and therefore against her own Act she shall not claim a Fine , &c. And also the alienation without licence is a wrong and trespass ; and an Act of Parliament cannot do wrong , and if partition be made betwixt Parceners by Act of Parliament , no Fine is due to the Queen , which was in ure 23 Eliz. for by Parliament then a Partition was made betwixt the Co-heirs of the Lord Latimer , and I do not know that any Fine hath been demanded for it .

CXIV . Bret and Sheppards Case . Mich. 29 & 30 Eliz. In the Common Pleas.

Debt . BRet brought Debt upon a Bond against Sheppard , the Bond was endorced , upon condition , that where the Defendant was arrested at the sute of one A. if now the Defendant shall appear in the Kings Bench , where the process is returnable , that then , &c. And the Defendant said in fact , that he had appeared , secundum formam & effectum conditionis supradict. & hoc petit quod inquiratur per patriam , & praedict. Brett similiter : It was moved , that the parties should replead for this matter , upon which they are at Issue , scil. the appearance is not triable by Iury , but by the Record : And the Court was clear of opinion , that the parties should replead for the cause aforesaid : And it was moved by the Lord Anderson , that if A. be bound to appear in the Kings Bench at such a day , and A. at the said days goe to the Court , but there no process is returned , then the party may go to one of the chief Clerks of the Court , and pray him to take a Note of his appearance : And by Nelson , we have an acient form of entry of such Appearance in such Cases , Ad hunc diem venit I. S. & propter indemnitatem suam & Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur . And see for the same 38 H. 6. 17. And afterwards the Lord Anderson , inspecto Rotulo , ex assensu sociorum awarded a Repleader : And so by Nelson , it hath been done oftentimes here before , and put in ure : The same Law is , where at the day of appearance no Court is holden , or the Iustices do not come , &c. he who was bound to appear , ought to have an Appearance recorded in such manner as it may be ; and if the other party pleadeth Nul tiel Record , it behoveth that the Defendant have the Record ready at his peril , for this Court cannot write to the Iustices of the Kings Bench , for to certifie a Record hither .

CXV . Baxter and Bales Case . Mich. 29 & 30 Eliz. In the Common Pleas.

Debt not extinct by administration . BAxter brought Debt upon a Bond as Executor of I. against Bale ; who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default , upon which the Ordinary committed Letters of Administration to the Defendant , by force of which he did administer , so the debt is extinct , &c. but the whole Court was clear of opinion , that the debt was not extinct , for now by the probate of the Will the administration is defeated , and although the Executor made default at the day which he had by the Citation before the Ordinary , yet thereby he is not absolutely debarred , but that he may resort to the proving of the Will whensoever he pleaseth ; But if he had appeared and renounced the Executorship it had been otherwise ; and the debt is not extinct by the Administration in the mean time .

CXVI . Mich. 29 & 30 Eliz. In the Common Pleas.

IN a Franchise the parties are at Issue upon a matter triable out of the Franchise . And it was moved , if now the Record should be sent into the Common Pleas , and there tryed , and after trial sent back into the Franchise : Which Periam and Anderson utterly denied ; and by Periam , there is no reason that we should be their Ministers to try Issues joyned before them : And it is not like , 2 Len. 37. where in a Liberty or Franchise a Forrein Voucher is to warrant Lands , in such cases we shall determine the Warranty ; but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said , that such an Issue was tryed here of late . Quod nota .

CXVII . The Earl of Arundel , and the Lord Dacres . Case . Mich. 29 & 30 Eliz. At Serjeants Inne .

PHilip Earl of Arundel , and the Lord William Howard his Brother marryed the Daughters and Co-heirs of the late Lord Dacres : And now came Francis Lord Dacres as heir male of the said Family , and claimed the Inheritance , &c. And after long sute betwixt both parties , they submitted themselves to the award of Gilbert Lord Talbot , and of Arthur Lord Grey of Wilton , and Windham and Periam Iustices ; And before them at Serjeants Inne , the matter was well debated by the Council learned on both sides ; and as unto Greistock Lands , parcel of the Lands in question , the Case was . That Tenant in tail makes a Feoffment in fee unto the use of himself for his life , the Remainder in tail to his eldest Son , with divers Remainders over , with a Proviso , that if any of the Entailees do any act to interrupt the course of any entail limited by the said Conveyance , that then the use limited to such person should cease , and go to him who is next inheritable ; And afterwards Tenant in tail dieth , his eldest Son to whom the use in tail was first limited entreth , and doth an Act against the said Proviso , and yet held himself in and made Leases , the Lessees enter , the Lessor dieth seised , his Heir being within age , and in ward to the Queen ; It was holden by Shutleworth Serjeant , Yelverton , Godfrey , Owen , and Coke , who were of Council with the Heirs general of the Lord Dacres , that here is a Remitter , for by this Act against the Proviso , the use , Remitter . and so the possession doth accrue to the enfant Son of him , to whom the use in tail was limited by the Tenant in tail : Then when the Tenant in tail after his said Feoffment holds himself in , this is a disseissin ; for a Tenancy by sufferance cannot be after the cesser of an estate of Inheritance ; But admit that he be but a Tenant at sufferance , H●b. 255. Dy. 54. yet when he makes Leases for years , the same is clearly a disseisin , and then upon the whole matter a Remitter , and although the Enfant taketh by the Statute , yet the right of the tail descending to him afterwards by the death of his Father doth remit him , as if Tenant in tail maketh a Feoffment in fee to the use of himself for life , the Remainder in tail to his eldest Son inheritable to the first intail , notwithstanding that the eldest Son takes his Remainder by the Statute , and so be in ●● force thereof , yet when by the death of his Father , the right of the Entail descends to him , he is remitted .

CXVIII . Butler and Ayres Case . Mich. 29 & 30 Eliz. In the Common Pleas.

Dower . BUtler and his Wife brought a Writ of Dower against Thomas Ayre , Son and Heir of Bartholmew Ayre , first Husband of the said Margaret Wife of the Plaintiff , and demanded Dower of Lands in A. and B ; the Tenant pleaded , never seised que Dower , and the Iury found that the said Bartholmew was seised during the Coverture , de omnibus tenementis infra script . preterquam , the Tenements in ( sic ut dicta Margareta dotari potuit ) Exception was taken to this Verdict ; because that this preterquam , &c. doth confound the Verdict . To which it was said by the Court , that the preterquam is idle , and surplusage , for it is of another thing than that which is in demand , and the seisin of the first Husband of Lands in A. and B. is confessed , and the ( preterquam ) works nothing : Another matter was objected , because here the Iury have assessed damages , as in case where the Husband died seised , Dy. 370. the which dying seised is not found by the Verdict : In which Case it was said by the Court , the Demandant might pray Iudgment of the Lands , and release damages ; or the Demandant may aver that the Husband died seised , and have a Writ to enquire of the damages , quod omnes Pregnotarii concesserunt .

CXIX . Michel and Hydes Case . Mich. 29 & 30 Eliz. In the Common Pleas.

Dower . DOwer by Michel and his Wife against Lawrence Hyde , who appeared upon the grand Cape ; And it was because that the said Hyde in truth was but Lessee for years of the Land of which &c. in which case he might plead non-tenure , if now he might wage his Law of non-summons , so as the Writ be abated : for by the wager of Law he hath taken upon him the Tenancy , and affirmed himself to be Tenant , 33 H. 6. 2. by Prisoit , to which it was said by Rhodes , and Windham Iustices , that here the Tenant being but Lessee for years is not at any mischief , for if Iudgment and Execution be had against him , he notwithstanding might afterwards enter upon the Demandant . Another matter was moved , That where the Writ of Dower was , de tertia parte Rectoriae de D. and upon that the grand Cape issued , Cape in manum nostram tertiam partem Rectoriae , and the Sheriff by colour of this Writ took the Tythes severed from the nine parts , and carried them away with him : And it was agreed by the said Iustices , that the same is not such a seisure as is intended by the said Writ , but the Sheriff by virtue of such Writ ought generally to seize , but leave them there where he found them . And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor .

CXX . Hamington and Ryders Case . Mich. 29 & 30 Eliz. In the Common Pleas.

RIchard Haming . Executor of Isabel Haming . brought Debt upon an Obligation against Ryder , Debt . Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 And● 162. the Case was , that Kidwelly was seised , & leased for years to John Hamington Husband of Isabel , and afterwards John Hamington being so possessed , by his will devised , that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole , and if she died or married , that then his Son should have the residue of the said Term not expired ; John died , Isabel entred , Devises . to whom the said Lawr. coveyed by Feoffment the said Land in Fee , and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated , de omnibus prioribus barganijs , titulis , juribus & omnibus alijs oneribus quibuscunque , Isabel took to Husband , the Son entreth : If now the Covenant be broken was the question . It seemed to Anderson at the first motion , that this possibility which was in the Son at the time of the Feoffment , was not any of the things mentioned in the Covenant , scil. former bargain , title , right , or charge ; But yet it was conceived by him that the word bargain did extend to it , for every Lease for years is a contract , and although that the Land at the time of the Feoffment was not charged , yet it was not discharged of the former contract : And by Windham , if I be bounden in a Statute-staple , and afterwards I bargain and sell my Lands , and covenant ( ut supra ) here the Land is not charged , but if after the condition contained in the defeazance be broken , so as the Conusee extends , now the Covenant is broken ; And by him , the word ( charge ) doth extend to a possibility , and this possibility might be extinct by Livery as all agreed ; but not translated by grant , Ante 33. 3 Len. 43. Covenant . or extinguished by release , as it was lately adjudged in the Case of one Carter . At another day , it was argued by Walmesley , and he much relied upon the words ( clearly exonerated ) utterly discharged , or altogether exonerated , and without doubt it is a charge which may happen , and if it may happen , then the Land is not clare exonerated : And also former bargains do extend to it , and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly , and although , that at the time of the Feoffment it was but a possibility , and no certain interest , yet now upon the marriage of Isabel , it is become an actual burthen and charge upon the Land ; and he cited a Case adjudged , 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands , and covenants that the said Lands are discharged of all charges , in that case when the day when the Rent ought to begin is incurred , the Covenant is clearly broken , for the Lands were not clearly exonerated , &c. At another day the Case was moved at the Bar. And Anderson openly in Court declared , that he and all his companions were agreed , that the Land at the time of the Feoffment was not discharged of all former Rights , Titles and charges ; and therefore commanded , that Iudgment should be entred for the Plaintiff .

CXXI . Howel and Trivanians Case . Hill. 30 Eliz. In the Kings Bench.

HOwel brought an Action upon the Case against Trivanian in the Common Pleas , and declared , Assumpsit . that he delivered certain goods to the brother of the Defendant , who made the Defendant his Executor , and died , after which the Plaintiff came to the Defendant , and spake with him concerning the said goods , upon which communication and speech the Defendant promised the Plaintiff , that if the Plaintiff could prove , that the said goods were delivered to the Testator , 2 Roll. 594. that he would pay the value of them to the Plaintiff : And the Declaration was in consideration , that the said goods came to the hands of the Testator , and also afterwards the goods came to the Defendants hands , and upon non Assumpsit pleaded , It was found for the Plaintiff , and Iudgment given : And afterwards Error was brought in the Kings Bench , and Error assigned , because that the Plaintiff had not averred in his Declaration , that he had proved the delivery of the said goods to the said Testator , 1 Cro. 105. for the words of the promise are , si probare potuisset : And also it was assigned for Error , that here is not any consideration upon which this promise could receive any strength , for the Defendant hath not any profit or advantage thereby , scil. by the bailment of the said goods to the Brother of the Defendant ; And also it is a thing before executed , and not depending upon the promise , nor the promise upon it : As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London , and two men to whom the Master is well known , bail the said Servant , and after the Master promiseth to them for their friend-ship , to save them harmless from all costs and damages , and in an Action upon the Case brought upon that promise , the Plaintiff was barred , for here is not any consideration , for they bailed the Servant of their own head without the request of the Master , and the matter which is alledgged for consideration is executed before the Assumpsit , and the promise was not before the enlargment , and the said bailment was not at the instance , Claytons Rep. 45. 1 Cro. 756. or request of the Master . And the Case of one Hudson was cited , adjudged in the Kings Bench : The Defendant in consideration that he was Administrator , and natural Son of the Intestate , and that the goods of his Father have come to his hands , promiseth to pay the debt to the Plaintiff . And in an Action upon the Case upon that promise , the Defendant pleaded he made no such promise , and it was found that no goods came to the hands of the Defendant ; And it was holden , that the consideration that he was Administrator and Son to the Testator , was not of any force to maintain the Action , and afterwards in the principal Case the Iudgment was affirmed . And it was moved by Coke that Iudgment should not be given against the Executor of his own goods if he had not goods of the Testator , for the charge doth not extend beyond the consideration , i. e. That the goods of the Testator came to the hands of the Defendant . But Wray Iustice was of opinion , that Iudgment shall be of his proper goods , as in Case of confession . Kemp Secondary , if the Action be brought upon Assumpsit of the Testator , Iudgment shall be of the goods of the Testator ; but of the promise of the Executor , of his own goods ; but the Original Iudgment which is now affirmed was general .

CXXII . Savel and Woods Case . Hill. 30 Eliz. In the Kings Bench.

1 Cro. 71. 3 Len. 203. 265. Post , 128. THe Case was ; That a Parson did Libel in the spiritual Court against a Parishoner for Tythes of such Lands within his Parish , the Defendant came into the Kings Bench and surmised , and that he and all those whose estate he hath in the Lands out of which the Tythes are demanded , have used to pay every year five shillings to the Parish Clark of the same Parish for all the Tythes out of the same place : And it was argued by Coke , that that could not be , for a Parish Clark is not a person corporate , nor hath succession : But if he had prescribed , that they had used to pay it to the Parish Clark to the use of the Parson , it had been good : Also he ought to shew , that the Parson ought of right to find the Parish Clark , &c. And he cited the Case of Bushie the Parson of Pancras , who libelled in the Spiritual Court for Tithes , The Defendant to have a prohibition did prescribe , that he , and all those , &c. had time out of mind , &c. used to pay to the Vicar , &c. and at last a Consultation was awarded because it was triable in the Ecclesiastical Court , for both parties as well Vicar as Parson are spiritual persons , and the modus decimandi is not in question , but cui solvend . And at another day , it was agreed by the Iustices , that of common right , the Parson is not tied to find the Parish Clark , for then he should be said the Parsons Clark and not the Parish Clark : But if the Parson be tied to find such a Clark , Challenge . and such a sum hath been used to be paid to the Parish Clark in discharge of the Person , the same had been a good prescription , and so by way of composition ; and by Clench Tythes are to be paid to spiritual Persons , but a Parish-Clark is a Lay-person : And afterwards the Court granted a Consultation .

CXXIII . Higham and Reynolds Case . Hill. 30 Eliz. In the Kings Bench.

IN an Action of Trespass the Plaintiff declared , that the Defendant 1 Maii 28 Eliz. cut down six posts of the house of the Plaintiff at D. The Defendant doth justifie , because that the Free-hold of the house , 10 Aprilis 27 Eliz. was to I. S. and that he by his commandment the same day and year did the Trespass , &c. upon which the Plaintiff did demur in Law , because the Defendant did not traverse , without that that he was guilty before or after . And the opinion of Wray was , that the traverse taken was well enough , because the Free-hold shall be intended to continue , &c. Vide 7. H. 7. 3. But all the other three Iustices were of a contrary opinion to Wray : But they all agreed , that where the Defendant doth justifie , by reason of his Free-hold at the day supposed in the Declaration , there the traverse ( before ) is good enough : And afterwards Iudgment was given against the Defendant .

CXXIV . Knight and Footmans Case . Hill. 30 Eliz. In the Kings Bench.

IN Trespass by Knight against Footman , the Case upon the pleading was , that one Margaret had issue two Sons , Richard and Thomas , Surrender of Copy-hold Land . and surrendred to the use of Richard for life , and afterwards to the use of Thomas in Fee ; they both , Thomas being within age , surrender to the use of one Robert ●ap John in Fee , who is admitted ; Richard dieth , Co 1 Inst. 248. Thomas dieth , having issue A. who is also admitted , and enters into the Land , and if his entry be lawful , or that he be put to his plaint in the nature of a Dum fuit infra aetatem was the Question . And Wray was clear of opinion that it was : And if a man seised of Copy-hold Land in the right of his Wife , or Tenant in tail of a Copy-hold doth surrender to the use of another in Fee , the same doth not make any discontinuance , but that the issue in tail and the Wife may respectively enter ; 1 Cro. 372. 380. 391. 483. 717. More 596. and so was it holden in the Serjeants Case , when Audley , who afterwards was made Chancellor of England , was made Serjeant ; and afterwards it was adjudged , that the entry of the Enfant was lawful .

CXXV . Sir Wollaston Dixies Case . Mich. 29 Eliz. In the Exchequer .

AN Information was in the Exchequer against Sir Wollaston Dixie , upon the Statute of Vsury , & upon not guilty pleaded , Information upon the Statute of 13. Eliz of Usury . The Informe● gave in evidence an usurious Contract upon a bargain of Wares : The opinion of the Court was , that the Information being exhibited for the loan of money , that the Evidence was not pursuing nor leading to the Issue . And yet the Iury against the opinion of the Court upon that evidence found the Defendant guilty . And it was moved in arrest of Iudgment , that the Evidence did not maintain the Information , nor prove the Issue , ex parte Querentis , and it was said , there are three things within the Statute , i. three words , i. bargain , loan , and cheivizance , and these three are several things , and therefore , if the Information be conceived upon loan , and the Informer giveth in Evidence a corrupt bargain for cloth , as it is in this Case , the same doth not maintain the Information ; So if the Information be granted upon usurious contract by way of mortgage , and giveth in Evidence an usurious loan , ut supra . But if the Information had been conceived generally , upon an usurious agreement , and giveth in Evidence a loan , the same is good enough , for every loan is an agreement .

Manwood , There cannot be any loan without bargain , nor any forbearing without bargain , for he contracts or bargains to do it , viz. to lend , or forbear : Bargain of forbearing is where the first day of payment , is not kept and the parties have agreed for a further day for payment , &c. And it appeareth in this Case , that it was a bargain to forbear a sum of mony which should have been paid before ; And the Information here is upon a bargain by way of loan , where was a bargain for forbearing . Fuller , this word ( Bargain ) in the Statute cannot be intended a bargain for wares or such things , and so distinct from the other two things , &c. If in Information upon loan , an usurious contract had been given in Evidence , that would not maintain the Information : And it was moved in this Case , if the time of the loan or forbearance of the money shall be accounted according to eight & twenty days to every month , or by the months in the Kalender , viz. January , February , &c. And it seemed to some according to the days , as in case of the Statute of 23 Eliz. of Recusants ; and others conceived contrary in both Cases . And Fuller said , That in the Case of policy of Assurance made to warrant a Ship , one was bound to warrant a Ship for twelve months ; & the truth was , she did not perish within the time of the twelve months , being accounted according to eight and twenty days , but being accounted by the Kalender , as January , Feb. &c. it perished , &c. and it was said and holden , that he had not forfeited his Bond. Gent Baron . If I lend one a hundred pounds without any contract for Interest , and afterwards at the end of year he gives me twenty pounds for the loan thereof , the same is within the Statute , for my acceptance makes the offence ▪ without any bargain or contract . And by Clarke Baron , the place where the Defendant accepted excessive Interest ought to be shewed in the Information , but not the place where the contract for the loan or forbearance was made , for the same is not needful . See the Case betwixt Stradling and Morgan , Plowd. 200. for the setting down of the place in the Declaration , where the Extortion was committed : The Information here is by way of corrupt bargain and loan . The Defendant took at Dertford such a sum , where the taking is layed , apud Dertford , but no place of the corrupt bargain or of the loan . And by Gent. If I lend to Beesie for a year , and afterwards he takes further forbearance of another year beyond the rate , the same is within the Statute : but in all Cases , the place where the corrupt bargain was made ought to be certainly alledged : Manwood Baron , the Information is not good for the incertainty of the place , where the corrupt bargain was made ; and although there are many Presidents on the Informes part , it is not to purpose , for they were admitted without exception , and then they passed sub silentio , and so of no force . There are three things , or rather degrees of offences within the Statute . In usury , within the Statute , there ought to be corrupt loan , cheivisance , or shift , 1. corruption , 2. he ought to take more than eight pound for one hundred pounds , 3. it ought to be for lending or forbearing . There was a Case in this Court in the time of this Queen , that the Defendant had taken more than ten pounds in the hundred pounds , but in the Information no corruption in the bargain was alledged ; and therefore Iudgment was given against the Informer : But in the Case at Bar corruption is set forth in facto , and therefore as to that the Information is good enough : As unto the forbearing & giving of days of payment the same is alledged in the Information , but not according to the Statute , for the Statute is in the disjunctive , but the Information is in the copulative ; here in our Case the issue is Not guilty , under which general issue all the points of the Statute are included and ought to be tried ; as unto the corruption the same is not sufficiently laid , for no place is assigned where the corrupt bargain was made , ergo no visne for it to be tried , ergo , no trial can be , ergo , no issue for it , ergo , this point of the Statute doth not come in issue , nor can it be tried upon the general issue , Not guilty . Also he held , that all the Offence ought to be within the year , for if one make a corrupt bargain for this year , and ten years after he takes excessive usury , the same is not within the Statute to inform upon it . And in truth there is no such offence without corrupt bargain , so as he conceived , that the word ( Lending ) is a strange word , but where the Statute is forbearing or giving day of payment , & in the Information it is giving and forbearing in the copulative , that is good enough , for the one word enforceth the other , and is not double . Also the Information hath not shewed whose money it is , and therefore it is not good : And afterwards Iudgment was given against the Informer ; and a Writ of Error thereupon brought in the Erchequer Chamber . And it was argued by Popham Attorney General , that Iudgment ought to have been given for the Queen and the Informer , for the shewing of the place where the corrupt bargain was made needs not to be alledged in the Information , for the offence punishable by the Statute is the receipt of excessive usury , and not the contract : And it was the Case of one Bird , 20 Eliz. where the Plaintiff shewed the place of the Receipt , and not of the contract , and yet had Iudgment for the Queen , without any exception to it before Iudgment , or Error after , for the contract is but inducement to the receipt , and it shall be tried where the taking was ; therefore it is not necessary to shew the place of the bargain : And it was adjorned .

CXXVI . Saliard and Everats Case . Mich. 30 Eliz. In the Exchequer .

THomas Saliard and Hen. Everat being Recusants convicted , Recusants . Owen . Rep. 37. and not having paid twenty pounds for every month , a Commission issued forth to enquire of their Goods and Lands in the County of Suffolk , to levy thereon the Debt and penalty due to the Queen . And now the Commission being returned , the parties appeared , and by their Council shewed , that some of their Lands returned in the Commission are Copy-hold , and prayed as to those , Manus Dominae Reginae amoveantur , and that upon the Statute of 29 Eliz. cap 5. concerning Recusants : viz. that upon default of payment of penalties , &c. which process issued out of the Exchequer to take and seize all the goods , and two parts as well of all the Lands , Tenements and Hereditaments , Leases and Farms of such Offender , as of all other the Lands , Tenements , and Hereditaments , liable to such seisure , or to the penalties aforesaid , by the true meaning of this Act , leaving the third part , &c. And Popham Attorney General moved , If a Recusant hath more than a third part of his Lands in Copy-hold land , if this Copy-hold as to the surplusage shall be liable to the penalty . Manwood chief Baron conceived , that the Copy-hold is liable in this Case by the Statute , although not directly by express words , yet within the intent of it , and that by reason of these words all other the lands , &c. liable to such seisure , &c. Walmes . Serjeant , Copy-hold is not liable to a Statute Merchant or Staple ; also if the Queen hath the Copy-hold , how shall the Lord have the services which the Queen cannot do ? Also a Copy-hold is not an Hereditament within this Statute , which extends only to Hereditaments at the common Law , and not by custom : Also in Acts of Parliaments which are enacted for forfeiture of Lands , Tenements , and Hereditaments , by those words they shall not forfeit Copy-holds . Clark Baron , this Statute was made to restrain Recusants from taking the benefit of their Livings , and Copy-holds are their Livings as well as Free-holds , and by this Statute , the Queen shall not have every estate in the Copy-hold Land , but only the taking of the profits ; but the scope of the Statute was to impair the Livings of Recusants , and that by driving of them for want of maintenance to repair to the Church .

Walmesley , If the Statute had given to the Queen to seise two parts of their livings , then the Statute had extended to Copy-holds . Manwood , when a Statute is made to transfer an estate by name of Lands , Tenements , and Hereditaments , the Copy-hold is not within such Statute ; but if the Lords Signiory , his Customs and Services , are not to be impeached , or taken away by such Statute , then it is otherwise ; for such Statute doth not make another Tenant to the Lord ; And by him Copy-holder shall pay Subsidies , and he shall be assessed according to the value of his Copy-hold as well as of his Freehold , and in this Case , the Queen is to have the profits of the Lands only , but no estate . At another day , the case was argued for the Recusants by Snag Serjeant , and he said , that these words Lands , Tenements , and Hereditaments are to be construed , which are such at the Common Law , not by Custom : If I give to one all my Lands , Tenements , and Hereditaments in D. my Copy-holds do not pass , and Statutes which are made to take away Possessions and Hereditaments out of persons ought to be strictly taken , and not by Equity : The Statute of 13 Eliz. of Bankrupts enacts , that the Commissioners may sell the Lands and Tenements of the Bankrupts ; if the Statute had not made a further provision , the Commissioners could not sell Copy-hold Lands , but there are express words in the Statute for that purpose , i.e. as well copy as fee : Also the Staute of 13 Eliz. cap. 4. of Auditors and Receivers of the Queen doth not extend to Copy-holds : And it should be a great prejudice to the Lords of such Copy-holds , that the Queen should have the Land . Popham , the intention of the Law somtimes causes a liberal construction of a Statute in the letter of it , What Statutes extend to Copy-holds . somtimes a strict and precise exposition , and here it appeareth , that the intention of the Statute was , that the Queen should have all the goods of the offender , and two parts of the Lands , &c. Leases and Farms , and the Recusant but the third part of all his Lands only ; And therefore the Recusant is not to have any other thing but only that which is allotted to him by the Statute , and that is the third part , which is all the maintenance which the Law allows him ; and then if Copy-holds be not within this Statute , a Recusant who hath great possessions in Copy-holds , and hath no Free-hold should be dispunishable , and hath his full maintenance , against the meaning of the Statute : And he said that many things are within the meaning of a Statute , ●y . 5. 6. Co. 3. Inst. 109 Yel . 60. 12 Co. 12. which are not within the words , as Bonds , Obligations and Specialties made to Recusants , shall pass to the Queen by this Statute by force of the word , goods , according to the meaning of the Statute , and all personal things are within the Statute , &c. profits of the Lands , Advowsons , and the like ; and the very scope of the Statute was to take away from Recusants all personal things whatsoever , and two parts of real things , as Leases , Farms , Lands , Tenements , &c. with the intent that with the superfluity of their goods and possessions , she should not maintain Iesuits , and Seminary Priests , people more dangerous than the Recusants : And by him , Lands in ancient demesne are liable to the penalties by the Statute ; although not by express words ; So if a Recusant hath Lands extended by him upon a Statute acknowledged unto him , that Interest is not properly a Lease , or Farm , yet it is Land within this Statute liable , &c. And if I be Tenant by Elegit , or Statute , &c. of Lands in D. not having other Lands in the said Town , and I grant all my Lands in D. my Interest ut supra , shall pass ; contrary , If I have other Lands there : And I grant , that if I have Copy-hold Lands in D. and none other , and I grant all my Lands in D. Copy-hold Land shall not pass by such assurance ; because that Copy-hold cannot pass but by surrender ; If I put out a Copy-holder out of his Lands , the same is a Disseisin to the Lord of whom the Copy-hold is holden : And if I levy a Fine of such Lands and five years pass , not only the Lord is bounden as to his Free-hold and Inheritance , but also the Copy-holder for his possession , for the intent of the Statute of 4 H. 7. was to take away controversies , & litibus finem imponere , 5 Co. 124. and contention may be as well for Copy-hold as for Land at the common Law. One hath a Lease for years to begin at a day to come , he who hath the Free-hold thereof is disseised , the Disseisor levieth a Fine , five years pass , he who hath the Free-hold is bound by it , but not he who hath the Interest for years in futuro , as it hath been lately adjudged ; But he said , That if that point were to be handled again , the Law would be taken to the contrary ; but it is clear that a Lease in possession shall be bound by such Fine : And as unto any prejudice to the Lord it is clear , that notwithstanding that the Queen hath the Copy-hold Land , yet the Lord shall have the Rent during the possession of the Queen , which is the most valuable part of the services of the Copy-holder . The Statute of 1 E. 6. of Chantries , doth extend to Copy-hold , by the general words , Lands , Tenements , and Hereditaments , for otherwise the Proviso which excepts Copy-holds were not necessary : And in our Statute , the words are Lands , Tenements , and Hereditaments , which are forceable words , which proves that our exposition to extend it to Copy-holds is proper and agreeable to the Statute , and this in the first branch of it ; for Copy-hold is some Land , Tenement , or Hereditament ; the clause in this branch of the Statute is , and also all other the Lands , Tenements , and Hereditaments liable to such seisure , &c. the same is to be meant of such Lands which are bound with clause of revocation , of which is spoken in the former part of this Statute . He who departs out of the Realm against the Statute of 5 R. 2. shall forfeit his goods , and thereby his debts also : The King grants omnia bona & catalla felonum , Debts of Felons shall pass ; Ergo Copy-holds also , 2 L●n . 56. Post . 201. 202. by the name of Lands , Tenements , &c. as well as debts by the name of goods . In our Case , the meaning of the Statute was , that the Queen should have two parts of the whole estate of the Recusant , be it Copy-hold , Ancient demesne , &c. If upon the Statute of Bankrupts , a Copy-hold estate be sold to the King , the King shall pay the Rent , but shall not do any of the services , and in so much the Lord shall be prejudiced ; patiatur etiam & hic , rather than Recusants should not be punished ; and it is not a strange thing in Law , that the Lord of a Copy-holder should be prejudiced for the offence of his Tenant ; as where a Copy-holder is outlawed , the King shall have the profits of his Copy-hold Lands , and the Lord hath not any remedy for his Rent .

CXXVII . Stebbs and Goodlacks Case . Pasch. 30 Eliz. In the Kings Bench.

BEtwixt Stebbs & Goodlack , the Case was , the Parson of Letcome in the County of Berks , libelled in the Spiritual Court for Tithes , Fraud shall not avoid payment of Tithes . the Defendant shewed , that the custome of the Town of Letcome is , that the Parson shall have for his Tithes the tenth Land sowed with any manner of corn , and he shall begin his reckoning always at the first Land which is next to the Church , &c. The Parson shewed that the Defendant , by fraud and covin sowed every tenth Land which belonged to the Parson , ut supra , very ill and with small quantity of corn , and did not dunge or manure it as he did the other nine parts , by means whereof , whereas the other nine every of them yielded eight Cocks , the tenth yeilded but three Cocks , and for this matter the Parson libelled in the Spiritual Court and confessed the custome , but for abusing of the custom prayed to have his Tythes in kind ; the Defendant prayed a prohibition , and the Parson afterwards a consultation : And the opinion of Wray Iustice was that the custom was against common reason , and so void , but if it be a good custom , then the Parson shall have the Action upon the case .

CXXVIII . Rumney and Eves Case . Pasch. 30 Eliz. In the Kings Bench.

Copy-holder . IN Ejectione firmae by Jane Rumney against Lucie Eve , it was holden , that if customary Land do descend to the younger Son by custom , and he enters and leaseth it to another , who takes the profits , and after is ejected : Poph. 39. 4 Co. 22. That he shall have an Ejectione firmae without any admittance of his lessor or presentment that he is heir . For which the Defendant shewed , that there were thirty years incurred betwixt the death of the Father , and the making of the Lease , so that here is supina negligentia , which shall disable his person to make any demise , quod fuit concessum . In answer of which it was said , that the Lessor at the time of the death of his Ancestor was but of the age of two years , and that after his full age no Court had been holden for a long time , and that at the first Court that was holden , which was of late , he prayed to be admitted , but the Steward refused to admit him ; and the same was holden a good excuse of his negligence : And it was holden , that the Plaintiff ought not to shew that the Lease is warranted by the custom , 1 Cro. 469. 483. 717. 728. Ante 16. but that shall come of the other side ; and so it had been lately adjudged , which Wray granted : And by him , if a Copy-holder surrender in extremis to the use of himself for life , &c. If he shall be well again , the surrender shall stand , 4 Len. 30. 31. 8 Co. 100. for he hath reserved an estate to himself . It was further holden in this Case , that if a Copy-holder dieth , his Heir within age , he is not bound to come at any Court during his non-age to pray admittance , or to tender his Fine : Also if the death of the Ancestor be not presented , nor proclamations made , he is not at any mischeif , although he be of full age .

CXXIX . Saint-John and Petits Case . Pasch. 30 Eliz. In the Kings Bench.

IT was covenanted betwixt Saint-John and Petit , that Saint-John should present Petit to the Church of A. and that afterwards Petit should lease the Parsonage to Saint-John , or to any other person named by him , and that the said Petit should not be absent by eighty days , and that he should not resign ; and Petit was bound to perform these Covenants , & Petit is presented to the Benefice : Saint-John brought an Action upon the Obligation , pretending , that he could not enjoy his lease by reason of the absence of the said Parson , &c. And the Lease was made to the Curate at the nomination of Soint-John . The Parson said , that the Obligation is void by the Statute of 14 Eliz. cap. 11. See the Statute , All Leases , &c. made by any Curate shall be of no better force , than if it had been made by the beneficed Parson himself . Tanfeild by 13 Eliz. 20. When a Parson leaseth to his Curate , who leaseth over , The Statute doth not make the Lease void by any absence of the Parson , but of the Curate by forty days . Quaere . For that it seemeth , that by the Statute of 14 Eliz. the Curate cannot lease , &c.

CXXX . Gates and Halliwels Case . Pasch. 30 Eliz. In the Kings Bench.

BEtwixt Gates and Halliwel the Case was , one having two Sons , 3 Len. 55. devised , that his eldest Son with his Executors should take the profits of his Lands until his youngest Son should come to the age of two and twenty years , and that then the said youngest Son should have the Land to him and the Heirs of his body : It was holden clearly by the whole Court , that the eldest Son should have Fee in the interim until the youngest Son came to the said age .

CXXXI . Prowse and Carys Case . Pasc. 30 Eliz. In the Kings Bench.

PRowse brought an Action upon the Case against Cary for words : That the Plaintiff did subborn , procure , and bring in false Witnesses in such a Court at Westminster , &c. The Defendant pladed , Not guilty : And it was found , that he did procure and brought in false Witnesses , but was acquitted of the suborning . It was objected , 1 Cr. 296. 554. 607. That the Action doth not lie , for it may be , that the Defendant did not know that he would depose falsly : Thou art a forger of false Writings are not actionable , and so it was adjudged , for it may be understood of Letters of small importance ; but that Exception was not allowed , for it shall be taken in malam partem , and cannot be spoken of any honest man .

CXXXII . Pasch. 30 Eliz. In the Kings Bench.

A. Was bounden in an Obligation to B. upon condition , that if A ▪ deliver to B. twenty Quarters of Corn the nine and twentieth of February next following , datum presentium , that then , &c. and the next February had but eight and twenty days : And it was holden , that A. is not bounden to deliver the Corn , until such a year as is Leap-year , for then February hath nine and twenty days , and at such nine and twentieth day he is to deliver the Corn , and the Obligation was holden good .

CXXXII . Allen and Palmers Case . Pasch. 30 Eliz. In the Kings Bench.

THe Case was , a Copy-holder did surrender his Lands to the use of a stranger for life , Copy-holder surrenders where his heir shall be in by purchase . 2 Roll. 416. Co. 1 Inst. 226. and afterwards to the use of the right Heirs of the Copy-holder , who afterwards surrendred his Reversion to the use of a stranger in Fee , & died , and the Tenant for life died , and the right Heir of Palmer the Copy-holder entred ; And by Cook nothing remained in the Copy-holder upon the said surrender , but the Fee is reserved to his right Heirs , for if he had not made any such second surrender , his Heir should be in , not by descent but by purchase . And the common difference is , where a surrender is to the use of himself for life , and afterwards to another in tail , the remainder to the right Heirs of him who surrendreth , there his Heirs shall have it by descent ; contrary where the surrender hath not an estate for life or in tail limited to him , for there his Heir shall enter as a purchasor , as if such use had been limitted to the right Heirs of a stranger . And by him , if a Copy-holder surrender to the use of his right Heirs , the Land shall remain in the Lord until the death of the Copy-holder , for then his Heir is known , &c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life , and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten , they have issue , the Wife dieth , the issue cannot enter in the life of his Father , for then he is not his Heir . See Dyer 7 Eliz. 237. The Husband is sole seised in Fee , and levieth a Fine of the Land to the use of himself and his Wife , and the Heirs of the Husband , and they render the Land to the Conusor for the life of the Husband , the remainder to B. for life , the remainder to the right Heirs of the Husband : The Husband dieth , B. dieth : Now the Wife shall have the Land for the life of the Wife , for she shall not lose her estate by that render ; and this remainder to the right Heirs of the Husband is void , and the Land and estate in it is in him as a Reversion , and not as a Remainder . And a man cannot tail a Remainder to his right Heirs whilest he is living , unless it begin first in himself . See Br. 32 H. 8. Gard. 93.

CXXXIV . Pearle and Edwards Case . Pasch. 30 Eliz. In the Kings Bench.

THe Case was , that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years , Assumpsit . Consideration . 1 Cro. 94. and after some years of the Term expired , the Lessor in consideration that the Lessee had occupied the Land , and had paid his Rent , promised the Plaintiff to save him harmless against all persons , for the occupation of the Land past , and also to come : And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands , upon which he brought his Action ▪ Golding , Here is not a sufficient consideration , for the payment of the Rent is not any consideration , for the Lessee hath the ocupation of the Land for it , and hath the profits thereof ; and also the consideration is past . Cook , The occupation , which is the consideration , continues , therefore it is a good Assumpsit , as 4 E. 3. A Gift in Frank-marriage after the espousals , and yet the marriage is past , but the blood continues , so here ; and here the payment of the Rent is executory every year ; and if the Lessee be saved for his occupation , he will pay his Rent the better . Godfrey , If a man marrieth my Daughter against my will , and afterwards in consideration of that marriage I promise him one hundred pounds , the same is no good consideration , 2 Len. 111. which Clench Iustice denied . And afterwards the Plaintiff had Iudgment to recover his damages .

CXXXV . Wakefords Case . Pasch. 30 Eliz. In the Kings Bench.

Extinguishment of Copy-hold by Release . THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another , so as it is now no part , but divided from the Manor , and afterwards the Copy-holder doth release to the purchasor . It was holden by the Court , that by this Release the Copy-hold Interest is extinguished , and utterly gone ; but if was holden , that if a Copy-holder be ousted , so as the Lord of the Manor is disseised , and the Copy-holder releaseth to the Disseisor nihil operatur .

CXXXVI . Docton and Priests Case . Pasch. 30 Eliz. In the Kings Bench.

IN Trespass for breaking of his Close , 1 Cro. 95. it was found by special verdict , that two were Tenants in common of a house , and of a close ●djoyning to the house , and they being in the house make partition without deed of the house and the close , see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough : Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery : Vide 2 Eliz. Dyer 179. Partition by word out the County void , 19 H. 6. 25. Betwixt Tenants in common not good without deed ; 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed : Two Ioynt-tenants make partition by word , & make partition in another County , the same is no partition , for as to that matter the common Law is not altered by the Statute , but as to compel such persons to make partition . Wray Iustice conceived , that the partition here being without deed was not good , although made upon the Lands : Vide 18 Eliz. Dyer 35. And at another day Wray said , Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good ; but in this case it appears , that the parties who made the partition were in the house ( for they were Tenants in common of the Messuage and a close adjoyning to it ) and made partition , that one should have the house , 6 Co. 12. and the other the close , so as they were not upon the close when they made the partition , and then it was void for the close , and if for the close then also for the house . And Iudgment was given accordingly .

CXXXVII . Cook and Songats Case . Pasch. 30 Eliz. In the Kings Bench.

IN an Action upon the case by Cook against Songat , the Plaintiff declared , Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor , &c. and the Defendant claiming certain Lands parcel of the said Manor , to hold it by copy ; and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law , concerning the said Land , and the title of the Defendant to it : The Defendant in consideration that the Plaintiff promised to the Defendant , that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant , that then he would suffer the Defendant to enjoy the said Land accordingly without molestation : The Defendant reciprocally promised the Plaintiff , that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant , that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute : And shewed further , that I. S. had awarded the said Copy utterly insufficient , &c. yet the Defendant did continue the possession of the Land , &c. And by Godfrey , here is not any consideration : But by Gawdy , the same is a good and sufficient consideration , because it is to avoid variances and sutes : And Iudgment was given for the Plaintiff .

CXXXVIII . Pawlet and Lawrences Case . Pasc. 30 Eliz. In the Kings Bench.

GEorge Pawlet brought an Action of Trespass against one Lawrence , Parson of the Church of D. for the taking of certain Carts loaded with Corn , which he claimed as a portion of Tythes in the Right of his Wife ; and supposed the Trespass to be done the seven and twentieth of August , 29 Eliz. & upon Not guilty it was given in evidence on the Defendants part , that the Plaintiff delivered to him a Licence to be married , bearing date the eight and twentieth of August , 29 Eliz. and that he married the Plaintiff and his said Wife the same day , so as the Trespass was before his title to the Tythes : And it was holden by the whole Court , that that matter did abate his Bill : But it was holden , that if the Trespass had been assigned to be committed one day after that , it had been good ; but now it is apparent to the Court , that at the time of the Trespass assigned by himself , the Plaintiff had not Title , and therefore the Action cannot be maintained upon that evidence , for which cause the Plaintiff was Non-suit .

CXXXIX . Sir John Braunches . Case . Mich. 30 Eliz. In the Kings Bench.

Forfeiture . IN the Case of Sir John Braunch , it was said by Cook , that if a Copy-holder be dwelling in a Town long distant from the Manor , a general warning within the Manor is not sufficient , but there ought to be to the person notice of the day when the Court shall be holden , &c. For his not coming in such case cannot be called a wilful refusal : Copy-holder . So if a man be so weak and feeble that he cannot travel without danger , so if he hath a great Office , &c. these are good causes of excuse : It was also holden , that if a Copy-holder makes default at the Court , and be there amerced , although that the amercement be not estreated , or levyed , yet it is a dispensation of the forfeiture . Gawdy Iustice , If the Copy-holder be impotent , the Lord may set a Fine upon him , and if he will not pay the Fine , then it is reason that he shall forfeit his Land . Egerton Sollicitor , Warning to the person of the Copy-holder is not necessary , for then , if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal , and another in York , &c. the Lord ought to send his Bayliff to give notice of the Court to them , which should be very inconvenient , and by him continual default at the Court doth amount to a wilful refusal . And by the whole Court , general warning within the Parish is sufficient , 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold , but elsewhere , his Farmer may send to him notice of the Court : And it was further given in evidence , that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold : And it was holden that such a person so appointed , might essoin Sir John , but not do the services for him , for none can do the same but the Tenant himself .

CXL . Wilkes and Persons Case . Mich. 30 Eliz. In the Kings Bench.

JOhn Wilkes and Margery his Wife , and Thomas Persons brought Trespass , Quare clausum fregit , herbam suam messuit , & foenum suum asportavit , Trespass . ad damnum ipsius Johannis , Margeriae , & Thomae ; And exception was taken , that it was not the Hay of the Wife , nor she was not damnified by it , but her Husband : Wray Iustice , the Declaration is good enough , 1 Cro. 96. Record . for although it be not good for the Hay , yet clausum fregit & herbam messuit , makes it good : And Iudgment was given for the Plaintiffs .

CXLI . Atkinson and Rolses Case . Mich. 30 Eliz. In the Common Pleas.

IN an Action upon the case by Atkinson against Rolfe , the Plaintiff declared , that the Defendant in consideration of the love which he ●ore unto A. his Father , did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further , that he had discharged the Father of the Defendant from the said Debt , and is become bounden to the said I. S. in an Obligation for the payment of the said Debt , upon which Obligation the said I. S. hath sued the Plaintiff , and hath recovered , and had execution accordingly , and so hath not been saved harmless , &c. It was objected , that the Declaration was not good , because the Plaintiff hath not shewed in his Declaration , that he had given notice to the Defendant of the said Obligation , or of the suit brought against him ; but that was not allowed , but the Declaration was holden to be good , notwithstanding the exception . Shuttleworth . if I be bound to make to you such an assurance as I. S. shall devise , I am bound at my peril to procure notice : Notice . but if I be bound to you to make such assurance as your Counsel shall advise , there notice ought to be given unto me . It was adjorned .

CXLII . Bear and Underwoods Case . Mich. 30 Eliz. In the Common Pleas.

IN a Replevin it was agreed by the whole Court , that the Plaintiff cannot discontinue his suit without the privity of the Court ; for as Leonard , Custos brevium , said , the Entry is , Recordatur per curiam ; Discontinuance of suit in court . And if the Plaintiff would discontinue without moving the Court , the Defendant may enter the continuance if he will . It was also holden , that where an Original is discontinued , the Defendant shall not have costs ; but if the Plaintiff be non-suit the Defendant shall have costs , by 32 H. 8. 15. But after a discontinuance in a Latitat , the Defendant shall have costs by the Statute of 8 Eliz. cap. 2. And in this case it was agreed , that the Plaintiff may be non-suit after a Demurrer , and so he was .

CXLIII . Jerom against Neal and Clave . Pasch. 30 Eliz. In the Kings Bench.

GEorge Jerom , and Avice his Wife brought an Action of Trespass of Assault and wounding of the Wife , Assault and Battery . and the Action was laid in Midd. and brought against Neal and Cleave , who pleaded that Salisb. is an antient City , & that within the same , there is this custom , that if any make an Affray and assault any Officer of the said City , or any other person , if he upon whom such assault is made , complain unto the Mayor of the said City , that the Mayor for the time being may send for him who made the Affray as a Iustice of Peace , to make him to answer to it , and shewed further , that the said Jerom made an Affray within the said City ; of which complaint being made to the Mayor , the said Mayor sent the Defendants being Constables to bring the said Jerom to him , by virtue whereof , they went to the House of the Plaintiff , and signified to him the commandment of the said Mayor , and would have brought the Plaintiff to him , and the Wife of the Plaintiff did assault them , and they moliter put their hands upon the said Wife , Imprisonment not good . which is the same assault , battery , and wounding , &c. upon which it was demurred in Law. Coke for the Plaintiff ; This custom is not good or reasonable : See Magna charta 29. Nullus liber homo capiatur , vel imprisonetur , &c. nisi per legale judiciam parium suorum vel per legem terrae , therefore shall not be taken or imprisoned upon a bare suggestion , and see 24 E. 3. Br. Com. 3. where a Commission issued to take all which were suspected notoriously for Frionies and Trespasses , although they are not endicted , and the same was holden against the Law , and therefore it was revoked , and see the Statute of 5 E. 4. 9. 25 E. 4. 13. 28 E. 4. 13. 28 E. 3. 3. 37 E. 3. 18. & 42 E. 3. 3. 2. To be a Iustice of Peace doth not lye in Prescription . For one Iustice of Peace was before the Statute of 1 E. 3. and then the Commencement being known , prescription cannot be of it . 3. Admit , that the Mayor was Iustice of Peace , yet he cannot determin any thing out of the Sessions . 4. The Prescription is , that the Mayor might send for him , and doth not say within the City , and it shall be an unreasonable Prescription to say , that the Mayor might send for him in such Case , in any place within England . 5. It is not shewed that they of Salisbury have a corporation , so as they might be enabled to prescribe . 6. The wounding is not answered , for moliter injicere manus cannot be taken for a wounding ; it may well answer the battery , &c. Fleetwood Recorder of London , if the Statute of Magna Charta should be observed , no Felon is duly handled at Newgate , and here we have not pleaded by way of Prescription , but of usage ; consuetudo and usage are all one . 1 Cro. 268. And afterwards Iudgment was given for the Plaintiffs , for the Plea in Bar was holden to be naught , because the wounding is not answered ; and the Custom is too general , and also for the 4th exception .

CXLIV . Sir Julius Caesars Case . Pasch. 30 Eliz. In the Kings Bench.

FLeetwood came to the Bar and shewed , that Julius Caesar Iudge of the Admiralty had libelled against an Officer of the Mayor of Lond. Simon Nicholas , for measuring of Coals at Wiggins Key , in the Parish of St. Dunstan in the East , and it was upon the Thames , and prayed a prohibition , because such measuring of Coals had always appertained to the Mayor of London ; for the Statute of 28 H. 8. 15. gave Iurisdiction to the Admiralty in Case of robbery and murder : And that prohibition was grounded upon the Statutes of 13. & 15 R. 2. 2 H. 4. 11. And it was said , that this measuring whereof , &c. was in the body of the County ; And note , that the said Julius Caesar , being Iudge of the Admiralty had put in this Bill , ex officio judicis , upon which it was said by Wray Iustice , that it was hard that he should be both Plaint . and Iudge , and that his Iurisdiction should be tryed before himself , and afterwards , it was moved by Egerton Solicitor , who said he had spoken with the Lord Admiral , who told him that the Mayor of Lond. used to take a Fine for measurage , and had made an office of it , and that he conceived , the same is extortion , and being made upon the water , he conceived he is punishable in this Court , for by the same reason the Mayor might take a Fine for the measuring of Corn , Clothes , &c. Wray and Gawdy Iustices ; If it be extortion in the Mayor , there is no remedy for it in the Court of Admiralty : But in the Kings Court. Gawdy ; It shall be redressed here in a Quo warranto .

CXLV . The Town of Sussex . Pasch. 30 Eliz. In the Kings Bench.

THe Town of Green in Sussex was amereed for the escape of a Felon , Amercement . and the said Amercement was grounded upon an inquisition taken before the Coroner , by whom the escape was found ; and it was moved for the Town , that here is not any such escape found , Escape . for which the Town ought to be amerced , for it is found , that he who escaped , 10 die Januarij , 30 Eliz. circa horam quartam post meridiem , with a Pitchfork mortally struck one A. which A. of the said stroak died at eight in the Evening of the same day , and that then the other escaped , for which escape being made in the Night , the Town by the Law ought to be amerced , for it is not Felony , until the party dieth , which see 11 H. 4. and Coles Case , Pasch. 23 Eliz. 401. And therefore the Town nor any other was chargeable with the offendor before that the party was dead . Wray ; It should be hard , that the Town should be amerced upon this matter , for although the Town in discretion might have stayed the offender before the death of the party , yet it is not bound so to do : And the Court took time to advise of the Case .

CXLVI . Jerom and Knights Case . Pasch. 30 Eliz. In the Kings Bench.

JOan Jerom brought an Action upon the Case in the nature of Conspiracy against one Knight , and declared , Conspiracy , 1 Cro. 70. that the said Knight had malitiously caused the Plaintiff to be endicted of Felony , and to be arrained upon it , and that she was legitimo modo acquietat . &c. And the Case was , that the Defendant came into the Court where the Sessions was holden , and complained of the Plaintiff for the said Felony , for which the Iustices there comanded her to cause an Indictment to be drawn , &c. Coke upon the Books of 27 H. 6. 12. 35 H. 6. 14. 27 H. 8. 2. Fitz. 115. It appeareth , that if one come voluntarily into the Court and discover Felonies , and if it be true which he saith , or if he come in Court and draw an Indictment by the command of the Iustices , or if he be bound by order of Law , to cause the party to be Indicted , or to give in Evidence , although he do it falsely , yet he shall not be punished for the same in Conspiracy , or in an Action upon the Case ; But if he come gratis with malice in him before , and maliciosly and falsely cause the party to be Indicted , so as falsity and malice are the ground of it , &c. it is otherwise . Gawdy Iustice ; How shall it be tried , if he doth it with malice or not ? Coke , It may be enquired of , for malice makes the difference betwixt Murder and Manslaughter ; and in such case it is to be enquired , and here he came to do the same without Process or cohersion in Law. But if he will safely do such office , his direct course is to come to a Iustice of Peace , and to shew to him , that his Goods are stolen , and that he doth suspect such a one , and then upon examination he shall be bound to come and give in Evidence against the party , &c. and in such case although that his Evidence he false , yet he is not punishable : Owen 158. At another day , it was said by Coke in the same case , ut supra . If a man be bound to give Evidence against any person , although he give false Evidence , no Action lieth : Also if one come into Court gratis , and discloseth a Felony , and gives Evidence , if no malice proceed against the party , it is not punishable ; and here fore thought malice is alledged , and put in the Declaration , to which the Defendant hath pleaded not guilty ; And now he is found guilty . See the Statute of Westminster , 2. Cap. 12. Si inveniatur per inquisitionem quod aliquis sit abettator per malitiam , &c. Wray Iustice ; It should be hard to charge one with this Action , where he hath his goods stolen from him , and therefore causeth an Indictment to be drawn against one who he suspects of it , who shall be found guilty , who should be punished for it ; for many Malefactors notwithstanding that the Evidence against them be full and pregnant , in favour of life are acquitted , whereas by Law they ought to be hanged ; and it is not reason , Upon an Acquital of Grace , no Conspiracy lieth . that upon such an acquital of grace and mercy , he should have this Action ; if such person had used any words of malice before the Sessions , an Action upon the case would have lain : And afterwards Iudgment was given for the Plaintiff , Trin. 27 Eliz. 750. Ratford , and afterwards a Writ of Error was brought , Trin. 29 Eliz. Rot. 669. In the Original Action the Writ and Declaration were that the Defendant , malitiose intendens querentem in nomine , vita , fama , & bonis defraudare quandam Billam Indictamenti scribi fecit , & eam exhibuit to the grand Enquest , & ibidem false deposuit omnia in ea contenta esse vera , which by Coke is full matter of conspiracy ; for the drawing of an Indictment is not the office of a witness , but if it were by the commandment of the Court , or of one Iustice of Peace , it should be otherwise , for there he goes by course of Iustice , 21 E. 3. 17. If one conspire with another , and afterwards he procures himself to be one of the Indictors , his oath shall not excuse his malice before . Gawdy , If the party had taken upon him to proceed against the party upon any good presumtions , he might have pleaded it , as to say , he found the party in the house suspiciously , &c. but because he doth not plead any such matter , but generally not guilty , and the Writ and Declaration stand not answered specially , nor controlled with the Verdict , there is no reason but that the Iudgment should be affirmed ; And afterwards , the Iudgment was affirmed , and it was said by Wray , that here the words in the Writ and Declaration are all one as the words in a Writ of conspiracy , and the Defendant hath not shewed any special matter to enduce him to the proceedings .

CXLVII . Ferrers Case . Pasch. 30 Eliz. In the Kings Bench.

HUmphry Ferrers brought an Action upon the case , and declared , that he is seised of an ancient messuage in the Town of Tamworth , Prescription . and that he and all his Ancestors , whose heir he is , owners of the Messuage , &c. have used time out of mind , &c. to erect Herdells , in aperta platea of Tamworth juxta Messuagium praedict . every Market day , to make Penns there for Sheep , and that he , &c. have used for such penning of Sheep , there to take divers sums of mony of such persons who would Penn their Sheep there ; and further declared , that the Defendant had broken and pulled down his Herdels , per quod proficuum suum inde amisit ; And upon this Declaration , Godfrey did demur in Law , 1. The Plaintiff hath not shewed in his Declaration , specially where he hath used to erect his Herdels , but generally in aperta platea , without shewing in his own Land , or in the Land of another ; if in the Land of another , it is no good title , for although that those who fish in the Sea may prescribe to set Stakes on the Land adjoyning to the Sea , to hang their Nets to dry after they have done Fishing , and that is through the whole County of Kent 8 E. 4. for their prescription is for the common Wealth , but the same is not so here , but only for a private gain ; also no prescription is good , but where some profit comes to him who prescribes for it , which see in the case of the Abbot of Buckfast , 21 E. 4. 4. 21 H. 7. 20. Also the Declaration is , that the Plaintiff hath taken diversas denariorum summas , and see the Prior of Dunstables case , 11 H. 6. 19. 19 R. 2. Action surle Case 51. But the certainty of the sums do not appear in this Declaration , so as the reasonableness of the custom might be known : Also it appeareth here upon the Declaration , that Trespass , vi & armis , should lye and be brought , for the Declaration is , that the Defendant did break and pull down the Herdels which cannot be without express force , as 42 E. 3. 24. Trespass upon the case against a Miller , and declared that the Plaintiff used to grind at the said Mill without Toll , and that he sent his corn to the said Mill to be ground , and there the Defendant came and took two Bushels of his said corn ; And the Writ was upon the prescription to grind sine multura , and that the Defendant , praedict. querent . sine multura molire impedivit , and by Award of the Court the Plaintiff took nothing by his Writ , for he hath declared that the Defendant hath taken Toll , and therefore he ought to have a general Writ of Trespass . Beaumont , to the contrary ; A Market is as well for the common Wealth as a Fishing : Also he is at the costs for providing of Herdels , and the erecting of them , so ( as he hath declared ) he hath taken divers sums of mony for it ; and as to any sum not certain , it is well enough , for peradventure sometimes he hath taken a penny , sometimes two pence , as the parties could agree : And as to the exception of vi & armis , the same is not material , for the Plaintiff doth not rely upon the pulling down of the Herdels only , but upon the loss of the mony also , which he should have had if the Defendant had not broken his Herdels : And afterwards Iudgment was given for the Plaintiff .

CXLVIII . Beverly and Bawdes Case . Pasch. 30 Eliz. In the Kings Bench.

BEverly brought a Writ of Error to reverse an Out-lawry pronounced against him at the suit of one Bawdes , and shewed , Error . that he was outlawed by the name John Beverly of Humby in the County of Lincoln Gent. And that within the said County there are two Humbyes , scil. Magna Humby , & Parva Humby , and none without addition ; To which it was said , of the other side , that the truth is that there are two such Towns , and that Humby Magna is known as well by the name of Humby only , as taken for the name of Humby Magna : And upon that they are at Issue : And it was moved , Tryal by Inquest of what County or place . if the Inquest to try this Issue shall come de corpore comitatus , or from Humby Magna . And by Cooke , it shall be tryed by an Inquest of Humby Magna ; and he confessed , that if the Issue had been , No such Town ; then the Inquest ought to be of the body of the County , but here is another Issue to be tryed , 22 E. 4. 4. In Trespass done in Fulborn and Hinton in the County of C. The Defendant said , that there is no such Town nor Hamlet of Hinton within the same County . Iudgment of the Writ . See there by Briggs the tryal shall be , de corpore comitatus . See 14 H. 6. 8. Over-dale and Nether-dale , and none without addition , and so at Issue tryed by them of the body of the County , 35 H. 6. 12. And by him , wheresoever an Issue may be tryed by an Inquest out of a special Visne , there it shall never be tryed by the body of the County . As the case before , 22 E. 4. Trespass in two Towns A. and B. The Def. as to A. pleads , there was no such Town , and as to B. pleaded another plea. Now the whole Inquest shall come out of B. for the Inquest in one Town may try any thing within the same County , which see Fitz. Visne , 27. 22 E. 4. 4. And here in our case the Issue is , if Humby Magna be as well known by the name of Humby only , as by the name of Humby Magna . And therefore the same may well be tryed by Inquest out of the Town of Humby Magna . But by Wray Iustice , this Issue doth amount to no such Town , for the perclose of the plea is , and no Humby without addition ; and the book cited out of 22 E. 4. is not ruled , but is only the opinion of Brian . and afterwards it was awarded , that the tryal was well . Another matter was objected , because it is not shewed in the Writ of Error betwixt what parties the first Writ did depend , for otherwise how can the Plaintiff in the Writ of Error have a Scire facias ad audiendum Errores , if none be named in the Writ of Error against whom it shall issue . And Godfrey affirmed , that upon search of Presidents it was both ways , so as it is at the pleasure of the Plaintiff to do it or not . And Kemp Secondary shewed divers Presidents to that purpose : And afterwards the Out-lawry was reversed .

CXLIX . Cibel and Hills Case . Pasch. 30 Eliz. In the Common Pleas.

Debt for a Nemine pene . A Lease was made of a certain House and Land rendring Rent , and another sum , Nomine poenae ; and for the Nominae poenae the Lessor brought an Action of Debt : The Lessee pleaded , that the Lessor had entred into parcel of the Land demised , Roll. Tit. Extinguishment upon which they were at Issue , and found for the Plaintiff : and now the Lessor brought Debt for the Rent reserved upon the same Lease : to which the Defendant pleaded , ut supra , scil . an Entry into parcel of the Land demised : And issue was joyned upon it ; And one of the Iury was challenged , and withdrawn , because he was one of the former Iury : And the Issue now was , whether the said Cibel the Lessor , expulit & amovit & adhuc extra tenet , the said Hills . And to prove the same , it was given in Evidence on the Defendants part , that upon the Land demised there was a Brick-kill , and and thereupon a little small cottage , and that the Lessor entred , and went to the said cottage and took some of the Bricks and untiled the said cottage : Suspension of Rent by entry upon part of the Land . But of the other side it was said , that the Lessor had reserved to himself the Bricks and Tiles aforesaid , which in truth were there ready made at the time of the Lease made , and that he did not untile the Brick-kill house , but that it fell by tempest , and so the Plaintiff did nothing but came upon the Land to carry away his own goods : And also he had used the said Bricks and Tiles upon the reparation of the house . And as to the Extra tenet , which is parcel of the Issue , the Lessor did not continue upon the Land , Hob. 326. Rolls ubi supra . Post . 172. but went off it , and relinquished the possession : But as to this last point , it seemed to the Court , that it is not material if the Plaintiff continued his possession there or not , for if he once doth any thing which amounts to an Entry , although that he depart presently , yet the possession is in him sufficient to suspend the Rent , and he shall be said , extra tanere the Defendant the Lessee , until he hath done an Act which doth amount to a Re-entry . And afterwards to prove a Re-entry , it was given in Evidence on the Plaintiffs part , that the Defendant put in his Cattel in the Field where the Brick-kill was , and that the Cattel did estray into the place where the Defendant had supposed that the Plaintiff had entred . And by Anderson Iustice , the same is not any Re-entry to revive the Rent , because they were not put into the same place by the Lessee himself , but went there of their own accord . And such also was the opinion of Iustice Periam .

CL. Pasch. 30 Eliz. In the Common Pleas.

TEnant in tail covenanted with his Son to stand seised to the use of himself for life , and afterwards to the use of his Son in tail , the Remainder to the right Heirs of the Father : The Father levyed a Fine with proclamation and died . It was moved by Fenner , if any estate passed to the Son by the Covenant , for it is not a discontinuance , and so nothing passed but during his life , and all the estates which are to begin after his death are void . Anderson , The estate passeth until , &c. and he cited the case of one Pitts , where it was adjudged , that if Tenant in tail of an Advowson in gross grant the same in Fee , and an Ancestor collateral releaseth with warranty and dieth : That the same is a good Bar for ever .

CLI . Staffords Case . Pasch. 30 Eliz. In the Common Pleas.

THe case was , Attachment upon a Prohibition . More . 599. that the Parson of the Church of B. did libel in the Ecclesiastical Court for Ttithe-milk of eight Kine depasturing within such a Field within his Parish : The Defendant said , that he and all those , &c. had used time out of mind , &c. to pay every year a certain sum of mony to the Parson , &c. for the Tithes of the same Field ; which plea the Iudges of the Ecclesiastical Court would not allow , and therefore the party had now a Prohibition and an Injunction against the Iudges , Doctors , Proctors , &c. And afterwards the same Parson libelled again for the same Tithes against the same Parishioner ; and in both libels there was no difference , but that in the later libel it was for a less number of Kine , and now the Parishioner upon this matter prayed an Attachment upon the Prohibition , which was granted unto him by the Court , for otherwise a Prohibition should be granted to no purpose .

CLII. Samford and Wards Case . Pasch. 30 Eliz. In the Common Pleas.

SAmford brought a Ravishment of Ward against Ward , Ravishment of Ward . and counted hat one A. Ancestor of the Infant , whose Heir he is , was seised of certain Lands in Fee , and held the same of the Bishop of Winchester in Socage , and died , his Heir within the age of 14 years ; and that the custody of the Infant did belong unto him as his prochein Amy ; by force of which he seised him and was possessed , &c. The Defendant saith , that the Land was holden of him by Knights service , absque hoc , that it is holden of the Bishop of Winchester as the Plaintiff hath counted . And upon the Issue was joyned . And it was moved by Serjant Puckering on the Plaintiffs part , that the truth of the Case was , that all the Land descended is holden in Socage , and no part in Knights service , but that part of it is holden of another in Socage : And prayed the opinion of the Court , if that matter shall trench to the Issue as the same is joyned : And the Court was of opinion , that it did not : for if all be holden in Socage , it is not material if part of it be holden of another , so as it be holden in Socage .

CLIII . Stamp and Hutchins Case . Pasch. 30 Eliz. In the Common Pleas.

THe Case was , the Obligor makes his Executors and dieth ; 1 Cro. 120. the Executors become bounden to the Obligee for the payment of the said Debt , and the Obligee doth deliver back the Obligation of the Testator to them ; and afterwards another Creditor of the Testator sues the Executors , who pleaded , that they have fully administred , upon which they are at issue , and the said especial matter was found by verdict . And by Shuttleworth and Walmesley , The Iury have found for the Plaintiff , and that the Defendants have not fully administred : And yet they agreed the case of 20 H. 7. 2. The Executors paying to the Creditors of the Testator a Debt with their own goods , they may retain so much of the goods of the Testator ; but that case is not like to this , for here the Executors have not made any payment or satisfaction of the Debt , nor disbursed any mony , &c. nor other things , but only have made an Obligation , to pay a sum of mony at a day to come , before which day it may happen that the Obligation be cancelled or released ; but it may more fitly be compared to the case of 27 H. 8. 6. where an Executor had compounded with a Creditor of the Testator for the payment of 20 l. for a debt of 40 l. and had an Acquitance testifying the payment of the 40 l. where it was holden , that the other 20 l. is Assets . And by Rhodes , this making of an Obligation by Executors , Administration . Assets . ( although the Obligation , in which the Testator was bounden , be delivered to the Executors and cancelled ) is not any administration nor payment of the said debt due : So if the Executors pledge the goods for the payment of such a debt , yet they shall be accounted Assets until payment be made , which Periam denied . And Periam and all the other Iustices held clearly , Retainer by administrations . that if in such case the Executors make a sufficient Obligation to the Creditor of the Testator , and sufficiently discharge the Testator without fraud or covin , that they may retain the goods of the Testator for so much : and the goods retained shall not be said Assets : And this case is all one with the case of 20 H. 7. for here they have discharged the Testator , and the Executors do remain charged with the same to the Creditor ; and it is so fully administred , as if the Executors had expresly paid the debt . And it is not like to the case of 27 H. 8. cited before , for there , although they have discharged the Testator , yet they have not charged themselves , otherwise it is in the principal case ; and although they have appointed ulteriorem diem , for the payment of the said debt , yet the same is not material : But the Lord Anderson conceived , that if the Creditor doth deliver unto the Executors the Obligation as an Accquittance or discharge , and in consideration thereof they promise to pay the debt , the same is not any administration as to the said debt . And by some of the Serjants , If the plea stand good to prove fully administred , then Executors in such case may make an Obligation to pay the debt 40 years after , and so defraud the other Creditors , which is not reasonable : If a Feoffment in Fee made upon condition to pay certain mony at such a day , and at the day the Feoffees make an Obligation to the Feoffor for the payment of it , the same is no performance of the condition . And by Periam , If the Executor be taken in Execution for the debt of the Testator , he may retain so much of the goods of the Testator amounting to the sum for which he is in Execution , and it shall be accounted Assets in his hands . Anderson , If he to whom the Testator was endebted in 20 l. be endebted to the Executors in so much , and the Executor in satisfaction of the debt of the Testator releaseth his debt , the property shall be altered presently of the whole goods in the hands of the Executors , so where the Debtor makes the Creditor his Executor . And Iudgment was given for the Executors .

CLIV. Bears Case . Pasch. 30 Eliz. In the Common Pleas.

Formedon . A Formedon in the Discender was brought by Samuel Bear , James Bear , and John Bear of Lands in Gavel-kind ; and the Warranty of their Ancestor was pleaded against them in Bar , upon which they were at Issue . If Assets by discent . And it was found by special verdict , that Thomas , Father of the Demandants , was seised in Fee of the Lands supposed to be descended to the Demandants , being of the nature of Gavel-kind , and devised the same to the Demandants , being his Heirs , by the custom , and to their Heirs equally to be divided amongst them : Devise of Lands in Gavel-kind Owen . 65. Dy. 350. 1 Cro. 431. More 594. 558. Sty . 434. 3 Cro. 330. 443. 695. 696. And if the Demandants shall be accounted to be in of the Lands by descent , or devise , was the question ; for if by devise , then they shall not be Assets . Anderson , Let us consider the devise by it self without the words ( equally to be divided amongst them . ) And I conceive , that they shall be in by the devise , for they are now Ioynt-tenants , and the survivor shall have the whole , whereas if the Lands shall be holden in Law to have descended , they should be Parceners , and so as it were Tenants in common . And although the words subsequent , equally amongst them to be divided , makes them Tenants in common , yet that doth not amend the matter ; and so also was the opinion of Windham and Rhodes Iustices .

CLV . Nash and Edwards Case . Pasch. 30 Eliz. In the Kings Bench.

IN an Ejectione firmae by Nash against Edwards , 1 Cro. 100. it was found by special verdict , that one Dover Ancestor of the Plaintiff , whose Heir he is , being seised of certain Lands holden in Socage , devised the same by word to his three Sisters ; And a stranger being present recited to the Devisor the said words of his Will ; and he did affirm them : 3 Len. 79. And afterwards the said stranger put the said words in writing for his own remembrance , but did not read them to the Devisor , who afterwards died . And it was moved , If this devise being reduced in writing , modo & forma , be good or not . Spurling conceived that not , for the Statute intends a Will in writing , Devises . but not such writing as is here without privity or direction of the Devisor , and it is not like to the case of Brown and Sackvil , 6 E. 6. Dyer 72. For the Notes were written by the commandment of the Devisor , but here it doth not appear that the meaning of the Devisor was , that the devise should be put in writing : And devises in Law are favoured , as the case in the Chancery was , that Sir Richard Pexhal devised certain Lands to his Wife , and the Scrivener inserted of his own head a condition , scil. ( that she should be chast ) which was disallowed by the Devisor himself , for which after his death , the condition , although it was put in writing , was void . And by the whole Court the devise is void . And by Wray , 2 Len. 35. if he appoint A. to write his Will , and it is written by B. it is void ; but if after he had written the Will if he had read it to the Devisor , and he had confirmed it , it had been a good Will , which Gawdy granted : And afterwards Iudgment was given , that the Plaintiff should recover .

Stone and Withypolls Case . Trin. 30 Eliz. Rot. 771. In the Kings Bench.

STone brought an Action upon the Case against Dorothy Withypol the Executrix of W. Withypol her Husband , 1 Cro. 126. Owen . 94. 9 Co. 94. & declared that where hersaid Husband for certain yards of Velvet of the value of fourteen pounds , & pro diversis alijs mercimonijs , was endebted to the Plaintiff in the sum of ninety two pounds , and made the Defendant his Executrix & died , that after his death he came to the Defendant , and demanded of her the said debt , who gave to him such answer , Forbear me until Michaelmas , and then I will pay it you , or put you in sufficient security for the true payment thereof : And declared further , that at Michaelmas aforesaid , the Defendant did not pay , nor hath found any security , and shewed a request , to which the Defendant said that the said Testator at the time of the said Contracts for the Velvets and other Wares , was within age : Assumpsit . And upon that Bar the Plaintiff did demur in Law. Egerton Solicitor , for the Plaintiff . As I conceive these Contracts made by the Plaintiff are not meerly void , so that if an Action of Debt , or upon the Case , had been brought against the Testator himself , he could not have pleaded upon the matter Nihil debet , or Non Assumpsit , or Non est factum , but he ought to avoid the matter by special pleading , and therefore here it is a good consideration ; and I conceive that if the Testator at his full age had assumed to pay the debt , that that promise would have bound him , 9 Eliz. it was the Case of the Lord Grey , his Father was endebted to diverse Merchants upon simple Contracts , and died seised of diverse Lands which descended to his Son and Heir in Fee , the Creditors demanded their debts of the Heir , who answered unto them , if my Father were endebted unto you , I will pay it , and upon that promise an Action was adjudged maintainable , although the Heir by the Law was not chargeable ; and also here the Defendant is to have ease , and shall avoid trouble of Suits , for perhaps if she had not made such promise , the Plaintiff would have sued her presently , which should be a great trouble unto her , and therefore it is a good consideration . Cooke contrary , No consideration can be good , if not , that it touch either the charge of the Plaintiff , or the benefit of the Defendant , and none of them is in our case , for the Plaintiff is not at any charge , for which the Defendant can have any benefit , for it is but the forbearance of the payment of the debt , which she was not compellable to pay , and as to the suit of the Chancery , the same cannot make any good consideration , for there is not any matter in the Case which gives cause of suit in Chancery , for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound , &c. and the Obligee bring her into the Chancery , and if a man threaten me , that if I will not pay to him ten pounds , he will sue me in Chancery , upon which I promise to pay it him , no Action will lye : And an Infant is not chargeable upon any contract , but for his meat , drink , and necessary Apparel , 19 Z. 4. 2. And in Debt upon such necessary Contract , the Plaintiff ought to declare specially , so as the whole certainty may appear upon which the Court may judge , if the expense were necessary and convenient or not , and upon the reasonableness of the price , for otherwise , if the necessity of the thing , and reasonableness of the price doth not appear , the Chancellor himself would not give any remedy , or recompence to the party . Wray Justice conceived , that the Action would not lye , for the contract was void , and the Infant in an Action against him upon it may plead Nihil debet : And if an Infant sell goods for money and doth not deliver them , but the Vendee takes them , he is a Trespassor ; but if the Infant had been bounden in an Obligation with a surety , and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless , upon that promise an Action lyeth , for the Infant cannot plead non est factum , which see Mich. 28 , & 29 Eliz. in the Case of one Edmunds : And afterwards it was adjudged against the Plaintiff .

CLVII . Charnock and Worsleys Case . Trin. 30 Eliz. Rot 833. In the Kings Bench.

Owen . 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley ; the Case was that the Husband and Wife , the Wife being within age levyed a Fine , and the Wife upon inspection was adjudged within age , & it was moved , if the Fine should be utterly reversed , or as to the Wife only , & should stand against the Husband ; & by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish , that where such a Fine is reversed , the Plaintiff shall not have execution till after the death of the Husband ; and by Coke and Atkinson , a Fine acknowledged by the Husband and Wife , is not like to a Feoffment made by them , for in case of Feoffment something passeth from the Husband , but in case of a Fine all passeth out of the Wife , and the Conusee is in by her only : And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole , and also another Precedent , P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff , and N. Ford. and Jane his Wife Deforceants , the Wife being within age , and Iudgment was given quod finis praedict. adnulletur , & pro nullo penitus habeatur , and that the Husband and Wife should be restored , and thereupon a Writ issued to the Custos Brevium , to bring into Court the Foot of the Fine , and it was presently cancelled in Court. Wray , this is a strong Precedent , and we will not varse from it , if other Precedents are not contrary . Gawdy ( who was the same day made Iustice ) the Fine cannot be reversed as to one , and stand as to the other , and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture , and the Husband aliens , and takes back an estate to him and his Wife for their lives , they both are remitted , for the Wife cannot be remitted if the Husband be not remitted : And a Precedent was cited to the contrary , 7 Eliz. where the Case was that the Husband and Wife levyed a Fine , the Husband died , the Wife being within age the Wife took another Husband , and they brought a Writ of Error , and the Wife by inspection adjudged within age , Fine reversed as to one , to stand good against another . and the Fine was reversed as to the Wife and her Heirs . And it was argued by Golding , that here the Writ of Error ought to abate , for the Writ is too general , whereas it ought to be special , Ex querela A.B. nobis humillime supplicantis accepimus , &c. See the Book of Entries 278. Also the purclose of the Writ is , ad damnum impsorum , the Husband and the Wife , whereas the Wife only hath loss by it ; and as to the Fine it self , he conceived that it should be reversed but as to the Wife ; as if a man of full age , and a man within age , levy a Fine , in a Writ of Error brought , the Fine shall be reversed , as to the Infant only , and shall stand against the other ; and he cited the Case of the Lord Mountjoy , 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute , and afterwards he and his Wife levyed a Fine , and he said that during the life of the Husband , the Conusee of the Fine should hold the Land charged with the Statute : Also in the Precedent of 2 H. 4. the Iudgment is , that propter hunc & alios errores , the Fine should be reversed , and I conceive that another Error was in the said Writ , for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend . And see that where two parts are demanded in a Writ , 3 Co. 58 , 59. Modern Rep. 182. the Writ shall say so , Brief 244 Coke contrary , and as to the last matter I confess the Law is so in a Writ , but not in a Fine , for the same is but a Conveyance , for it I be seised of a Manor , and I grant to you two parts of the said Manor , it is clear , it shall be intended in three parts to be divided . And as to the principal matter , I conceive , when the Fine is levyed by the Husband and Wife , it shall be intended that the Land whereof , &c. is the Inheritance of the Wife , if the contrary be not shewed , and therefore if the party will have an especial Reversal , he ought to shew the special matter , as in Englishes Case : A Fine was levyed by Tenant for life , and he in the reversion being within age , bringeth a Writ of Error , now the Fine shall be reversed as to him in the Reversion , but not as to the Tenant for life , but here it shall be intended the Inheritance of the Wife , and that the Husband hath nothing but in the right of his Wife , and therefore she shall be restored to the whole , for nothing passeth from the Husband , but he is named with his Wife only for conformity , 11 H. 7. 19. A. takes to Wife an Inheretrir , who is attainted of Felony , the King shall not have the Land presently , by which it appeareth that all is in the Wife , and she shall be restored to the whole , and the Iudgment shall be according to the Presidents cited before : And as to the President cited 7 Eliz. the same is not to the purpose , for the second Husband was a stranger to the Fine , for it would be absurd to reverse the Fine as against him . Egerton Solicitor General ; Presidents are not so holy , quod violari non debeant , as to be rules to other Iudges , in perpetuum ; and I conceive that the Fine shall be reversed as to the Wife only , for the Fine is but a Conveyance , and the Husband may lawfully convey the Land of his Wife for his life ; and if the Husband alone had levyed the Fine , the same had bounden the Wife during his life : If a woman Lessee for life taketh to Husband him in the Reversion , and they joyn in a Fine , the Fine shall stand as to the Inheritance of the Husband , but shall be reversed as to the Interest of the Wife . Coke , it shall be intended here , all the Interest and estate in the Land to be in the Wife , as 20 H. 7. 1. Where the Husband and Wife are vouched , it shall be intended by reason of the Warranty of the Wife only , and so the Counter-plea shall be of the seisin of the Wife and her Ancestors . Wray , when the Husband and Wife joyn in the Fine , it shall be presumed the Inheritance of the Wife , and if it be otherwise , it ought to be specially shewed ; and as to that which hath been said , that if the Husband alone had levyed a Fine , it should have bounden the Wife during the life of the Husband , the same is true , but such Fine is but a discontinuance , but the right continueth in the Wife ; but when the Husband and Wife joyn in the Fine , all passeth out of her , and if the Fine in such case for the Inheritance shall be reversed in all , to whom belongs the Free-hold , & to whom shall he be attendant ? Gawdy , 12 H. 7. 1. In a Praecipe quod reddat against three , they vouch severally , the Voucher was not received , and yet they might have several Causes of Voucher , but the Law presumes they are Ioynt-tenants , and have a joynt cause of Voucher , if the contrary be not shewed : And afterwards Iudgment was given , quod finis predict . reversetur ; and Wray said he had conferred with many of the other Iustices , who were of the same opinion . Gawdy , the Fine shall be reversed in all , for this is an Error in Law of the Court , F. B. 21. D. For by this Fine the Husband giveth nothing divided from the estate of the Wife , but all passeth from the Wife , and therefore all shall be reversed , and if the Fine should be reversed as to the Wife only , then the Fine levyed now by the Husband alone is a discontinuance , by which the Wife by the common Law shall be put to her Cui in vita , and that is not reason . Also we cannot by this Reversal , make the Conusee to have a particular estate during the life of the Wife : And therefore the Fine is to be reversed for the whole , and as void for the whole to the Conusee .

CLVIII . Cage and Paxlins Case . Trin. 30 Eliz. In the Kings Bench.

1 Cro. 125. 3 Len. 16. DAniel Cage brought an Action of Trespass against Thomas Paxlin for Trespass done in a Close of Wood , called the Frith-Close , and in the Park , and for taking of certain Loads of Wood : the Defendant pleaded , that the Earl of Oxford was seised of the Mannor of W. of which the place where , &c. is parcel , and leased the same to J. S. for years , excepting all Woods , great Trees , Timber-trees , and Vnderwoods , &c. And covenanted with the Lessee and his Assigns , that he might take Hedg-boot , and Fire-boot super dicta premissa , and shewed further , that the said I. S. assigned his Interest unto the Defendant , and that he came to the said Close called the Frifth-Close , Lease of Lands excepting the wood and cut the Wood there for Fire-boot , as it was lawful for him to do , &c. And note , that after the Lease aforesaid , the said Earl had assured the Inheritance thereof to Cage the Plaintiff . And it was argued by Godfrey , that the Lessee cannot take Fire-boot in the said Close , for the wood , &c. is excepted , and was never demised , and by the exception of the wood , the soil thereof is excepted : See 46 E. 3. 22. A. leased for life certain Lands reserving the great wood , by that the soil also is reserved , vi . 33 H. 8. Br. Reservation , 39 , 28 H. 8. 13. 3 Len. 16. And by the words of the Covenant , the intent of the Lessor appeareth , that the Lessee shall have his Fire-boot out of the residue of the Lands demised , for praemissa here is equivalent with praedimissa : And he cited the Case moved by Mountaine cheif Iustice , 4 E. 6. in Plowden , in the Case betwixt Dive and Manningham , 66. A. leaseth unto B. a Manor for years , excepting a Close , parcel of it , rendring a Rent , and the Lessee is bounden to perform all Grants , Covenants , and Agreements , contenta & expressa aut recitata in the Indenture ; if the Lessee disturb the Lessor , upon his occupation of the Close excepted , he hath forfeited his Obligation , &c. But our Case is not like to that : Post . 122. And if I let the Manor of D. for years , except Green-meadow , and afterwards I covenant that the Lessee shall enjoy the Premisses , the same doth not extend to Green-meadow . Snagg Serjeant to the contrary , and by him praemissa , are not restrained to praedimissa , but to all the Premisses put in the former part of the Indenture of Demise , therefore the Lesse shall have Fire-boot in the one , and the other ; 2 Roll. 455. 2 Cro. 524. Post . 122. and he put a difference betwixt all Woods excepted , and all woods growing excepted , for in the one case the soil passeth , in the other not ; And as to the Case cited before in Plowden . 66. that is true , for exception is an Agreement : And he said that by that exception the soil it self is excepted , and these woods which are named by name of woods ; contrary where a Close containeth part in woods , and part in Pasture ; And by the exception of Timber-trees , and Vnder woods , all the other woods are excepted but not the soil : As if a man grant all his Lands in D. Land , Meadow , Pasture , and woods thereby passeth ; by exception of this Close of wood , the soil also is excepted , and he conceived , that although all the woods be excepted , yet by the Covenant an Interest passeth to the Lessee , Select Case 155 Hob. 173. Dy. 19 , 198 , 314. 21 H. 7 , 31. More 23. 1 Roll. 939. so as he may take Fire-boot without being put to his Action of Covenant : As 21 H. 7. 30. A. leaseth unto B. for life , and Covenants in the Indenture of lease , that he shall be dispunished of Wast , although the same be penned by way of Covenant , yet it is a good matter of Bar , being all by one Deed : And afterwards Iudgment was given for the Plaintiff , as to that Close of wood called Frith-Close ; but as to the Park , for the Defendant , for that Frifth-Close was all excepted , scil. the wood and the soil : And these words , supra praemissa , shall be intended such things which were demised , and no other , and by this Covenant , Dy. 199. Hob. 173. 2 Cro. 172. Bridg. 117. the Lessee hath power to take the wood upon the other Lands , although that the wood be excepted , for the soile was demised , and he shall not be punished in Trespass , and put to his remedy , by Action of Covenant against the Lessor : And by Wray , there is not any colour against the Plaintiff for the Frith-Close , if not that the Defendant had averred , that there is not any wood upon the other Lands not excepted but demised ; And this word , Praemissa , doth not extend by construction to this mentioned before , being excepted , but only to the things demised .

CLIX. Rivett and Rivetts Case . Trin. 30 Eliz. In the Kings Bench.

EDmund Rivett brought an Action upon the Case against Geoge Rivett , and declared , that where it was pretended by the Defendant , that one R. made his Will , and by the same devised certain Legacies to the Defendant , and the Plaintiff upon that had sued in the Prerogative Court of Canterbury for to disprove the said Will : And if he prosecutus fuisset , he might have disproved the said Will , and so defeated the Defendant of his pretended Legacies : Assumpsit . Owen 133 , 134. The Defendant in consideration that the Plaintiff , ultra non procederet , did promise to give to the Plaintiff one hundred pounds ; and averred , that he had surceased his said suit ; And further declared , that licet the Defendant , ad hoc requisitusfuerit tali die & anno , &c. It was moved in arrest of Iudgment , that here is not any consideration , for the Defendant hath not any means to compel the Plaintiff for to surcease his suit , for there is not any cross promise set forth in the Declaration ; And although that he doth surcease his suit , yet he may begin the same again , and therefore the Plaintiff ought to have shewed in his Declaration a Release or other discharge of it , as the case was 3 Eliz. reported by Bendloe . A. was bound unto B. in twenty pounds , and afterwards A. promised B. that in consideration the said A. should not be damnified by reason of the said Bond , to give the said B. ten pounds , and upon that promise B. brought an Action upon the Case , and shewed , that the Defendant was not damnified by reason of the said Bond. But it was adjudged , that the Action was not maintainable upon that matter , because that the Plaintiff did not shew in his Declaration , that he had released or otherwise discharged the Defendant of the said Bond , and so no consideration in the case .

Request . Another Exception was , because the request is not layed certainly , but generally , licet requisitus , and doth not say by whom he was required , or what thing to do : And afterwards a Precedent was shewed , Trinit. 28 Eliz. rot. 523. betwixt Smith and Smith . An Assumpsit , in consideration that the Plaintiff should not implead the Defendant upon Bond ; And the Plaintiff had Iudgment to recover . And as to the request it was said by Kempe , that there are many Precedents , that a Request generally layed is sufficient : And afterwards in the principal Case Iudgment was given for the Plaintiff .

CXL . Wheeler and Twogoods Case . Trin. 30 Eliz. In the Kings Bench.

WHeeler brought an Ejectione firmae against Twogood , and it was found by special verdict , that the Earl of Oxford was seised of the Manor of Hornely , in which were divers Copy-holds : And that the said Earl leased the said Manor to one Heywood for one and twenty years , to begin two years after . Except all casualties and profits of Courts , which severally did not pass the value of six shillings eight pence . And afterwards the Earl bargained and sold the Reversion to Anthony Cage : And afterwards a composition was made betwixt Anthony Cage and the Lessee , by which the Lessee did grant and covenant to and with the said A. Cage , that he would permit the said Anthony Cage peaceably to hold the Courts and to take the profits to his own use , Proviso , that the said Lessee should have the Rents of the Copy-holders & Free-holders : And afterwards the Lessee granted over his Interest in the said Term. It was moved by Towse , that by this Exception the Court Baron is not excepted nor severed from the Manor , nor destroyed , Covenant amounts to a grant . for it is incident to the Manor , and this Covenant betwixt the Lessee and Anthony Cage amounts to a grant of the Court to Anthony Cage . See 44 E. 3. Fitz. Mannors de faits 144 & 29 E. 3. Burr . 280. and see 37 H. 8. & 1 E. 6. Br. Leases 60. That where I.S. Covenants , & concessit to I. N. that he shall have twenty acres of Land in B. for one and twenty years , it is a good Lease , for this word concessit is as strong as dimisit . And it was moved , that here the Earl leased for years to begin two years after , and the Lessee being in possession , doth continue it after the two years , and afterwards before any entry the Lessee assignes over his Interest , that the same is not a good grant , but only a Right : But by the whole Court the grant was holden good , notwithstanding the said Exception : And it was holden also , that the Covenant ( ut supra ) was void ; for although that Anthony Cage hath authority to hold the Courts , yet it ought to be in the name of the Lessee .

CLXI . Stretton and Taylors Case . Trin. 30 Eliz. In the Kings Bench.

STretton did inform against Taylor upon the Statute of Vsury : Information upon the Statute of Usury . Retraxit by the Queens Attorney shall not bind the Informer . 1 Cro. 138. & 583. Qui sequitur tam pro Domina Regina , quam pro seipso : And the Queens Attorney entred upon it , &c. non vult prosequi , and that was pleaded in Bar against the Informer for the whole : And by Wray , the same is not any Barr to the Informer . But Popham the Attorney general said , that by the favour of the Court he would maintain the authority of his place , which his Predecessors had enjoyed , for he said , it cannot be found by any Record in this Court , Common Pleas , or the Exchequer , that the Informer had proceeded where the Attorney General had made such an Entry , for we have not used to do it without great consideration ; for if the Informer hath ceased to prosecute the Suit two or three Terms , then we used to enter a Non vult prosequi . For it is not reason that the Subject should be molested or attendant so long without just cause , and it is not against Law , that in personal Suits the act of one should prejudice the other : And the Queen is the principal party in this Suit , for the Replication shall be made in the name of the Queen only , and not of the Informer . And afterwards by Award of the Court it was ruled , that that Entry by the Attorney is not any Barr , quoad the Informer , so if the Queen be Nonsuit , so the Nonsuit of the Informer is no Barr against the Queen : And Wray said , that such was the opinions of Anderson and Gawdy Iustices , &c.

CLXII . The Queen against Lewis , Green , and others . Trin. 30 Eliz. In the Kings Bench. Intrat . Hill. 30 Eliz. Rot. 10.

AN Information for the Queen against Lewis , Green , and others : Grants of the King. 2 Roll. 51. 1 Co. 46. The Case was , King E. 6. was seised of the Manor of Stepneth , and twenty acres of Lands in Stepneth , called Stepneth Marsh , and of another Marsh also called Stepneth Marsh , and granted unto the Lord Wentworth and his Heirs the Manor of Stepneth , in the County of Midd. Nec non mariscam in Stepneth , appel . Stepneth Marsh in com . praedict. nec non omnia terr. & ten . eidem Manerio five premissis pertinent . And if twenty Acres , called Stepneth Marsh , not parcel of the said Manor pass , or not , was the Question : Cook , that they shall pass : Here this grant doth consist of three parts ; 1. The grant of the Manor ; 2. Nec non mariscum in Stepneth ; 3. Nec non omnia terras & tenementa dicto Manerio sive praemissis pertinen . And by the second clause these twenty acres shall pass , be the same parcel or not ; and the latter words cannot refer to that , for it is certainly expressed before . And the case lately agreed in the Court of Wards betwixt Bronker and Robotham was cited , which was , That the King being seised of the Manor of Sandridge and Newnam , parcel of the possessions of the Monastery of Saint Albans , and part of the Manor of Newnam extended into the Parish of Sandridge , and the King granted the Manor of Sandridge , nec non omnia terras & tenementa sua in Sandridge , dicto nuper Monasterio pertinen . nec non omnia terras & tenementa sua dicto Manerio de Sandridge pertinen . By which grant , although that the latter clause doth restrain it to the Manor of Sandridge , yet the general words of the second clause shall extend to make pass all the whole Manor of Newnam , which extended into the Parish of Sandridge , & a Decree was in the said Court accordingly .

Hob. 175. 303. Dy. 207. 6 Co. 39. At another day the case was argued , and the case put to be thus . King E. 6. was seised of the Manor of Hackney and Stepneth in the County of Midd. within which was a great Marsh , called Stepneth Marsh , parcel of the Manor of Stepneth , which the King had by exchange of the Bishop of London , and there were also twenty acres of Lands which were lying in Stepneth Marsh , and were known by the name of Stepney Marsh , late parcel of the possessions of the Priory of Grace , and granted unto the Lord Wentworth and his Heirs , Dominia sive Maneria sua de Hackney & Stepney , nec non mariscos suos de Stepney in Stepney praedict. nec non omnia Maneria terras & tenem . & mariscos dictis Maneriis aut caeteris praemissis pertinen . If these twenty acres pass in the general words in the first Nec non , or if the words in the second Nec non ( dictis Maneriis pertinen . ) doth restrain the generality of the first words , was the question : And by Phillips the twenty acres do not pass , for the grant of the King shall be always taken to a common intent : And because here the King hath these Marshes by several titles , that Marsh only shall pass , which by general entendment shall be intended to pass , scil. the great Marsh , which was in truth parcel of the Manor of Stepney , and not the twenty acres which the King hath by a special title , although , that ex vi termini , the grant may extend unto it : Also the grant of the King shall be taken , secundum intentionem Regis , Grants of the King taken according to his intent . and not in deceptionem ; and here it appearth , that the intent of the King was not , that these twenty acres should pass , i. the King grants Maneria sua & terras , and all Lands , &c. iisdem pertinen . but it is not part of any thing pertinen . to those twenty acres , therefore his intent was not to pass them . Secondly , the grant is to have them as fully as the Bishop of London had them , without mentioning of the Prior. Thirdly , as fully as the Bishop had granted them to us , but the Bishop had not granted these twenty acres to the King. Fourthly , in the Letters Patents the King recites the value of the Manor of Hackney and Stepney , but no value of the twenty acres , ( Quaere , what difference there is betwitxt Stepney Marsh and the Marsh of Stepny . ) As to the first , the grant is iisdem & ita praemissis pertinen . which word praemissis includes the premisses or otherwise should be void : Secondly , the words , as the Bishop had , and as amply as we have from the Bishop , are suplusage , & nihil operatur by them . And if the King had not the same of the Bishop it is not material , but they shall pass notwithstanding , because by a special name : As if the King grants to me Manerium de Dale , quod à nobis nuper concelat . fuit , and in truth it was not concealed , yet it shall pass by his special name : But if the grant had been , Proviso , that if the said Manor were concealed , &c. the same had been good , for it is good by way of Proviso , but not by reference . As to the valuation the same is not material , for who can restrain the bounty of the King. 29 E. 3. 7. and 8. The King granted omnes Advocationes pertinend . to such a Priory , quas nuper concessimus patri of the Patentee , although the King had not ever made such a grant , yet it is a good grant to the Sons , causa qua supra . Gawdy Iustice conceived , that the twenty acres did pass , and he confessed the case betwixt Bronkor and Robotham to be good Law , for there the intention is fully , that all appertaining to the Monastery , whether it were parcel of the Mannor of Newnam or of Sandridge , passeth , 6 E. 6. 8. Dyer . A man leaseth all his Meadows in A. containing ten acres , whereas in truth they are twenty acres , all passeth , &c. And if the King grant the Manor of D. to A ; and further saith , Damus & concedimus , so freely as I. S. had it , and I. S. never had it , yet the grant is good : And as to the misrecital of the value , the same is helped by the Statute . Clench Iustice to the same intent ; and the Iury hath found , that the twenty acres are parcel of Stepney Marsh . Wray to the same intent , Against express words no favour shall be given to the King. And note , that the Marshes pertaining to the Manor are in the third clause , ergo , the Marsh in the second clause shall be intended a Marsh in gross , or otherwise it should be idle . And afterwards Iudgment was given against the Queen .

CLXIII . Piers and Leversuchs Case In Ejectione firmae . Trin. 30 Eliz. In the Kings Bench.

IT was found by special verdict , that one Robert Leversuch Grand-father of the Defendant , was Tenant in tail of certain Lands , whereof , &c. and made a Lease for years to one Pur. who assigned it over to P. father of the Plaintiff . Robert Leversuch died : W. his Son and Heir entred upon P. who re-entred . W. demised without other words the Land to the said P. for life , the remainder to Joan his Wife for life , the remainder to the Son of P. for life with warranty , and made a Letter of Attorney therein to enter and deliver seisin accordingly . P. died before that the Livery was executed , and afterwards the Attorney made livery to Joan. W. died ; Ed. his Son and Heir entred upon the Wife , she re-entred , and leased to the Plaintiff , who upon an ouster brought the Action . Heale . When P. entred upon W. Leversuch the issue in tail , he was a disseisor , and by his death the Land descending to his Heir , the entry of W. Leversuch , the issue in tail , was taken away . 3 Cro. 222. Cook contrary . P. by his entry was not a disseisor , but at the Election of W. for when P. accepted such a deed from W. it appeareth that his intent was not to enter as a disseisor ; and it is not found that the said P. had any Son and Heir at the time of his death , and if not , then no descent ; and there is not any disseisin found that P. expulit Leversuch out of the Land . And Iudgment was given against the Plaintiff . And Cook cited a Case which was adjudged in the Common Pleas , and it was the Case of Shipwith ; Grand-father , Tenant in tail , Father and Son ; The Grand-father died , the Father entred and paid the Rent to the Lessor , and died in possession , and adjudged , that it was not any descent , for the paying of the Rent doth explain by what title he entred , and so he shall not be a Disseisor but at the Election of another .

CLXIV . Severn and Clerks Case . Trin. 30 Eliz. In the Kings Bench.

●ts . THe Case was , that A. by his Deed Poll recited , That ( whereas he was ) possessed of certain Lands for years of a certain Term ; By good and lawful conveyance he assigned the same to I. S. with divers Covenants , Articles and Agreements in the said deed contained , which are or ought to be performed on his part . It was moved , if this recital ( whereas he was ) be an Article or Agreement within the meaning of the condition of the said Obligation , which was given to perform , &c. Gawdy conceived , that it is an agreement : For in such case I agree , that I am possessed of it , for every thing contained in the deed is an Agreement , and not only that which I am bound to perform : As if I recite by my deed , that I am possessed of such an interest in certain Land , and assign it over by the same deed , and thereby covenant to perform all Agreements in the deed , if I be not possessed of such Interest , the covenant is broken . And it was moved , if that recital be within these words of the condition ( which are or ought to be performed on my part . ) And some were of opinion , that it is not within those words ; for that extends only in futurum , but this recital is of a thing past , or at the least present .

Recital . 2 Cro. 281. Yyl. 206. Clench . Recital of it self is nothing , but being joyned and considered with the rest of the deed it is material , as here , for against this recital he cannot say that he hath not any thing in the Term. And at the length , it was clearly resolved , that if the party had not that Interest by a good and lawful conveyance the Obligation was forfeited .

CLXV . Page and Jourdens Case . Trin. 30. Eliz. In the Kings Bench.

IN Trepass betwixt Page and Jourden the case was : A Woman Tenant in tail took a Husband , who made a Feoffment in Fee and died . The Wife without any Entry made a Lease for years : It was moved , that the making of this Lease is an Entry in Law. As if A. make a Lease for years of the Land of B. who enters by force of that Lease , A general entry amounts to a disseisin . now the Lessor without any Entry is a Disseisor . And it was resolved , that by that Leas● , the Free-hold is not reduced without an Entry .

CLXVI . Havithlome and Harvies Case . Trin. 30. Eliz. In the Kings Bench.

Action upon the Statute of 5 Eliz. cap. 9. 1 Cro. 130. 3 Cro. Goodwin . vers . West . HAvithlome brought an Action upon the Statute of 5 Eliz. cap. 9. against Harvy and his Wife for the penalty of ten pounds given by the said Statute against him who was served with process , ad testificandum , &c. and doth not appear , not having any impediment , &c. and shewed that process was served upon the Defendants Wife , and sufficient charges , having regard to her degree and the distance of the place , &c. tendred to her , and yet she did not appear . And it was found for the Plaintiff . It was moved in arrest of Iudgment , that the Declaration is not good , because the Plaintiff in setting forth that he was damaged for the not appearance of the Wife according to the process , hath not shewed how damnified : Also it was moved , that a Feme Covert is not within the said Statute , for no mention is made of a Feme Covert , and therefore upon the Statute of West . 2. cap. 25. If a Feme Covert fail of her Record , she shall not be holden disseisseress , nor imprisoned . Also here the Declaration is , that the Plaintiff tendered the charges to the Wife where he ought to have tendered the same to the Husband .

To these three Exceptions it was answered . 1. That although the party be not at all damnified , yet the penalty is forfeited . 2. Feme Coverts are within the said Statute , otherwise it should be a great mischeif , for it might be that she might be the only witness : And Feme Coverts , if they had not been expresly excepted , had been within the Statute of 4 H. 7. of Fines . 3. The wife ought to appear , therefore the tender ought to be to her : And afterwards Iudgment was given for the Plaintiff .

CLXVII . Dellaby and Hassels Case . Pasch. 30 Eliz. In the Kings Bench.

IN an Action upon the Case , 1 Cro. 132. the Plaintiff declared that the Defendant in consideration that he had retained the Plaintiff to go from London to Paris to Merchandize diverse goods to the profit of the Defendant , promised to give to him so much as should content him , and also to give him all and every sum of money which he should expend there in his Affairs ; and further declared , that he was contented to have twenty-pounds for his labour , which the Defendant refused to pay : And exception was taken to the Declaration , because there is not set down any place or time of the notification of his contentment , for the same is traversable . Gawdy , The Issue here is , non Assumpsit ; Assumpsit . and therefore that matter is out of the Book . Cook , If one assume to pay twenty pounds to another upon request , although the Defendant plead , non Assumpsit , yet if the place and time of request be not shewed , Iudgment many times hath been stayed , for no Action without a Request ; so here without notification of his contentment , no Action , therefore he ought to shew it . Gawdy , The ground of this Action is the Assumpsit , but that cannot be certain without Declaration , and thereof notice ought to be given to make certainty of the duty , but not to enforce the promise ; but in our case , without a Request Assumpsit will not lye ; But here it being but conveyance , the certainty of the time and place is not necessary to be shewed , but the general form shall serve , for it is but inducement : As if a man will plead a devise of goods to him , and assent of the Executors to take them , he need not to shew the time and place of the assent . Gawdy , at another day , said that Iudgment ought to be given for the Plaintiff ; the Assumpsit is the ground and cause of the Action , and the shewing of the contentment is only to reduce the Action to certainty : And Iudgment was given for the Plaintiff .

CLXVIII . Musket and Coles Case . Trin. 30 Eliz. In the Kings Bench.

WIlliam Musket brought an Action upon the Case against Cole , 1 Cro. 13. and declared that in consideration , that the Plaintiff had payed unto the Defendant forty shillings , for the Debt of Symon his Son , the Defendant promised to deliver to him , omnes tales billas & Obligationes , in which his Son was bounden to him ; which thing he would not do , and it was found by Verdict for the Plaintiff : And it was moved for stay of Iudgment , because the Plaintiff had not averred in his Declaration , that the said Defendant had Bills or Obligations , in which Simon his Son was bounden to the Defendant , Averment . for if there were none , then no damage . And see Onlies Case , 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant , promised , &c. Exception was taken to that Declaration by Manwood and Mounson Iustices , because it was not shewed , in what businesses certain , and betwixt what persons . Gawdy , The Plaintiff here is not to recover the Bills or Obligations , but damages only , and therefore needeth not to alledge any Bills in certain . And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs , omnia terras & tenementa quas habet in such Counties , and for not assurance , an Action of Covenant was brought , and the Plaintiff declared , that the Defendant had broken the said Covenant , and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties ; and the plea was not allowed , for the Land is not in demand , but only damages to be recovered . See also 46 E. 3. 4. and 20 E. 3. And in the principal case , the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages .

CLXIX . English , and Pellitary and Smiths Case . Trin. 30 Eliz. In the Kings Bench.

Assault and Battery . 1 Cro. 139 , 140. IN an Action of Trespass of Assault and Battery and wounding : The Defendants say , that they were Lessees of certain Lands , and the Plaintiff came to the said Lands , and took certain Posts which were upon the Lands , and they gently took them from him . S. pleaded , that he found the Plaintiff and P. contending for the said Posts , and he to part them mollite , put his hands upon the Plaintiff ; which is the same , &c. The Plaintiff replyed , De injuriis suis propriis absque tali causa per ipsos P. & S. allegat . upon which issue was joyned , which was found for the Plaintiff . It was moved in arrest of Iudgment , that here was not any issue , for the Plaintiff ought severally to reply to both pleas aforesaid , for here are several Causes of Iustification , and his Replication , absque tali causa , Nomen Collectivum . Post . 139. Dy. 182. doth not answer to both . Cook , This word ( Causa ) is , nomen Collectivum , which may be referred to every Cause by the Defendants alledged , reddendo singula singulis , and their Iustifications are but one matter , and the Defendants might have all joyned in one plea. Wray , Both pleas depend upon one matter , but are several causes ; for two justifie by reason of their Interest , and the third for the preservation of the Peace . And by him and the whole Court , although it be not a good form of pleading , yet by reasonable construction this word ( Cause ) shall be referred to every cause , and so the pleading shall be maintained : And afterwards Iudgment was given against the Plaintiff .

CLXX . Cater and Boothes Case . Trin. 30. Eliz. In the Kings Bench. Intrat . Hill. 30 Rot. 58. or 581.

IF a Writ of Covenant the Plaintiff declared , that the Defendant by his deed , bearing date the first of October , 28 Eliz. did covenant , that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise , Covenant . that he would procure Letters of Administration , by which he might convey such a Term lawfully to the Plaintiff , which he had not done , licet saepius requisitus , &c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches , and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear , that it was the Will of her Husband , they could not be received to prove it ; Vpon which it was demurred in Law. It was moved by Williams , that the Action doth not lie , for there is no time limited by the Covenant when the thing should be done by the Defendant , for which he hath time during his life , for as much as it is a collateral thing . See 15 E. 4. 31. if there be not a Request before ; but admit that the Covenant had been to perform upon request , Request . then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it , for that is traversable . See 33 H. 6. 47 , 48. 9 E. 4. 22. Gawdy , If the Covenant had been eypresly to do it upon request , there the request ought to be shewed specially : But when a thing upon the exposition of the Law only is to be done upon Request , such Request alledged generally is good enough . And by Wray , the Covenantor hath not time during his life to perform this Covenant , but he ought to do it upon request within convenient time ; but in some case a man shall have time during his life , as where no benefit shall be to any of the parties , as if the condition were to go to Rome : And as to the Request , he conceived , that it ought to be shewed specially and certainly ; for it is for the benefit of the Covenantee , for without request , the Action doth not lie , which Clench granted . And it was holden by the whole Court , that the bar shall not help the insufficient Declaration : No more , if the Defendant plead , Non Assumpsit , yet the defect in the Declaration of a Request not duly shewed , remaineth . Gawdy , The bringing of the Action is a Request . Clench , A Writ of Debt is a Praecipe , for which there , licet saepius requisitus , is sufficient ; but a Writ of Covenant is not so .

CLXXI. Piers and Hoes Case . Trin. 30 Eliz. In the Kings Bench.

IN an Action of Trespass , it was found by special verdict , Trespass . 1 Cro. 131. 1 Roll. 854. that A. seised of Land in the right of his Wife , being her Ioynture by a former Husband , he and his Wife made a Feoffment to a stranger and his Heirs , Habend . to the use of the stranger and his Heirs during the life of the Wife only . Shutleworth , The same is a forfeiture , for if the same Feoffment had been without any use expressed , Forfeiture . then it should be to the use of the Feoffor and his Heirs , and by consequence a forfeiture ; and as the case is here , it is also a forfeiture , for during the life of the Wife the use is expresly to the use of the Feoffee and his Heirs , and the remainder of the Fee-simple is to the use of the Feoffor , scil. the Husband and his Heirs . Popham , I conceive that here is a forfeiture , Owen 64. 2 Cr. 200 , 201. 3 Cr. 167. Hob. 373. for here are several limitations , limitation of the estate unto one , and of the use unto another : And the words ( for the life of the Wife ) do not refer to the estate , but to the use , with proximum antecedens ; And he resembled the same to the case of Leonard Sturton , in which he was of Councel . A man granted Lands , Habend . unto the Grantee , to the use of the Grantee , and the Heirs of his body ; the same is no estate tail in the Grantee , but only an estate for life , for the Limitation of the use cannot extend the estate . Cook contrary . The case is , that A. Wife of one Piers , being Tenant for life of the Ioynture of the said Piers , took to Husband Hoe , they both by Deed grant totum suum Messuagium to one Clarke , Habendum to him and his Heirs for the life of the Wife only , I conceive , that here is not any forfeiture , for it is but one intire sentence : And if there be a double construction of a deed , that which is most reasonable shall be taken , so as wrong be not done , Construction of Deeds . and therefore these words ( for the life of the Wife ) shall refer unto both , scil. the estate and the use , and their intent was not to commit a forfeiture , as appeareth by the words of the Deed , for they grant solum messuagium , and that was not but for the life of the wife ad solum usum of the Feoffee and his Heirs , during the life of the Wife , and violence should be offered to this word ( solum ) if the Feoffee or his Heirs , should have ultra the life of the Wife ; and the word ( tantum ) cannot otherwise be expounded , but that the estate for life only shall pass from them : And he cited the Case of 34 E. 3. Avowry 258. A. gives Lands unto B. in tail , and for default of such issue , to the use of C. in tail , rendring Rent , the same render shall go to both the estates : So a Lease for life to A. the remainder to B. to the use of C. the same use goeth out of both the estates , and not only out of the Remainder ; so here upon the same reason , Regula . these words , for the life of the wife , shall refer to the first estate , as well as to the use ; And in such Cases the rule of Bracton ought to be observed , viz. Benignae faciendae sunt interpretationes verborum , ut res magis valeat , quam pereat . As the Case in 6 H. 7. 7. in a Cessavit , the Plaintiff counted , that the Tenant held by Homage , Fealty , Sute at Court , and certain Rent , and in the doing of the services aforesaid , the Defendant had cessed , and in not doing of Homage and Fealty , a man cannot cesse by two years ; But it was holden that the said Cessavit should be referred to such services only , in which one might cease , and that is Sute of Court , and Rent ; And if pleadings shall have such favourable construction , a multo fortiori , shall a Deed , 4 E. 3. Wast . 11. A man leased for life , and by the same deed granted power unto the Lessee , to take and make his profit of the said Lands , in the best manner should seem good to him without contradiction of the Lessor or his Heirs ; yet by those words it is not lawful for him to do wast , for there it is said , that in construction of Deeds , we ought to judge according to that intent , which is according to Law and Reason , and not to that which is against reason : See 17 E. 3. 7. accordingly , so in the principal Case , the words in the Deed of Feoffment shall be so expounded , that the estate be saved and not destroyed .

Popham contrary , The Cases put by Coke are not like to the Case in question ; For where the Rent is out of both estates the same is but reason , for the Rent is in respect of the Land , and because he departs with both estates , it is reason the Rent issue out of both ; and the like reason is of the Case of an use , for if a man makes a Lease for life to A. the Remainder over to B. the same shall be to their use respectively , and if he do express the use , the same shall be accordingly , and shall bind both estates , but there Clark hath two estates , one by the common Law , and the other by the Statute ; 3 Cro. 167. But the words subsequent ( for the life of the wife only ) cannot refer to both estates : A. gives Lands to one & his Heirs for forty years , the same is but a plain Term for years : But if a Feoffment in Fee be made to one & his Heirs to the use of another for forty years , there the Fee passeth to the Feoffee , and the Term to Cestuy que use . Gawdy conceived , that it is not any forfeiture , for these words ( during the life of the wife only ) were put in the Deed to express the intent of the parties , and therefore the same shall not be void ; and he conceived that they were put in , to exclude the forfeiture , and therefore they shall serve for that purpose . And afterwards it was resolved by all the Iustices except Gawdy , that it was a forfeiture , for by the Feoffment the Fee-simple passeth , and that to the use of the Feoffor ; & the estate , and the use are several things , and the limitation for the life of the Wife cannot extend to both : And as to the Book of 24 H. 8. Br. Forfeiture 87. 3 Cro. 167 , 168. Tenant for life aliens in Fee to B. Habendum sibi & haeredibus suis , for Term of the life of the Tenant for life , the same is not a forfeiture , for the whole is but the limitation of the estate : And afterwards it was adjudged that it was a forfeiture , Gawdy continuing in his former opinion : And Wray said that he had conferred with the other Iudges of their House , and they all held clearly , that it is a forfeiture .

CLXXII . Toft and Tompkins Case . Trin. 30 Eliz. In the Kings Bench. Rot. 528.

UPon a special Verdict the case was , that the Grand-father , Tenant for life , the Remainder to the Father in tail , Discontinuance . 1 Cro. 135. that the Grand-father made a Feoffment in fee to the use of himself for life , the Remainder to the Father in Fee ; And afterwards they both came upon the Land , and made a Feoffment to Tompkins the Defendant . Coke , There is not any discontinuance upon this matter , for the Father might well wave the advantage of the forfeiture committed by the Grand-father ; then when the Father joyns with the Grand-father in a Feoffment , the same declares that he came upon the Land , without intent to enter for a forfeiture : It was one Waynmans Case , adjudged in the common Pleas , where the Disseissee cometh upon the Land to deliver a Release to the Disseissor , that the same is no Entry to revest the Land in the Disseissee : Then here it is the Livery of the Tenant for life , and the grant of him in the Remainder , and he in the Remainder here was never seised by force of the tail , and so no discontinuance . Godfrey , Here is a Remitter by the Entry , and afterwards a discontinuance , for by the Entry of both , the Law shall adjudge the possession in him who hath right , &c. Gawdy , This is a discontinuance , for when the Father entreth , ut supra , he shall be adjudged in by the forfeiture , and then he hath gained a possession , and so a discontinuance , for both cannot have the possession . Clench , The intent of him in the Remainder when he entred was to joyn with the Grand-father , and when his intent appeareth , that the estate of the Grand-father , and his own also shall passe , that doth declare that he would not enter for the forfeiture : Shute agreed with Gawdy .

CLXXIII . Broake and Doughties Case . Hill. 31 Eliz. Rot. 798. Trin. 30. Eliz. In the Kings Bench.

AN Action upon the Case for words , Action upon the Case for words . 1 Cro. 135. viz. Thou wast forsworn in the Court of Requests , and I will make thee stand upon a Stage for it : It was found for the Plaintiff . It was moved in arrest of Iudgment , that the Action will not lye for these words , for he doth not say , that he was there forsworn as Defendant , or witness : And Trin. 28 Eliz. betwixt Hern and Hex , thou wast forsworn in the Court of Whitchurch ; And Iudgment given against the Plaintiff , for the words are not Actionable , and as to the residue of the words , I will make thee stand upon the Stage for it , they are not Actionable , as it was adjudged between Rylie and Trowgood , If thou hadst Iustice thou hadst stood on the Pillory ; and Iudgment was given against the Plaintiff . Daniel contrary , thou wast forsworn before my Lord chief Iustice in an Evidence , these words are Actionable , for that is perjury upon the matter , and between Foster and Thorne , T. 23 Eliz. Rot. 882. Thou wast falsly forsworn in the Star-Chamber , the Plaintiff had Iudgment , for it shall be intended that the Plaintiff was Defendant or a Deponent there : And yet the words in the Declaration are not in the Court of Star-Chamber . Wray , Thou art worthy to stand upon the Pillory , are not Actionable , for it is but an implication ; but in the words in the Case at the Bar there is a vehement intendment , that his Oath was in the quality of a Defendant , or Deponent ; which Gawdy granted . In the Case 28 Eliz. Thou wast forsworn in Whit-Church Court , there the words are not actionable ; for that Court is not known to you as Iudges . And it may be it is but a great House or Mansion house called Whit-church Court : But here in the principal case it cannot be meant but a Court of Iustice , and before the Iudges there juridice , and the subsequent words sound so much , I will make thee stand upon a Stage for it . And afterwards Iudgment was given for the Plaintiff .

CLXXIV . Gatefould and Penns Case . Trin. 30 Eliz. In the Kings Bench.

Prescription for tythes . 1 Cro. 136. 3 Len. 203 , 265. Antea . 94. GAtefould Parson of North-linne libelled against Penne in the spiritual Court for tythes in Kind of certain pastures : The Defendant to have prohibition doth surmise , that he is Inhabitant of South-linne , and that time out of mind , &c. every Inhabitant of South-linne , having pastures in North-linne hath paid tythes in Kind for them unto the Vicars of South-linne , where he is not resident , and the Vicar hath also time out of mind payed to the Parson of North-linne for the time being two pence for every acre . Lewis , This surmise is not sufficient to have a prohibition , for upon that matter Modus Decimandi shall never come in question , but only the right of tythes , if they belong to the Parson of North-linne , or to the Vicar of South-linne , and he might have pleaded this matter in the spiritual Court , because it toucheth the right of tythes , as it was certified in the Case of Bashly by the Doctors of the Civil Law. Gawdy , This prescription doth stand with reason , for such benefit hath the Parson of North-linne , if any Inhabitant there hath any Pastures in South-linne . And afterwards the whole Court was against the prohibition , for Modus Decimandi shall never come in debate upon this matter , but who shall have the tythes , the Vicar of South-linne , or the Parson of North-linne ? and also the prescription is not reasonable .

CLXXV . Gomersal and Bishops Case . Hill. 31 Eliz. Rot. 175. Trin. 30 Eliz. In the Kings Bench.

1 Cro. 136. BIshop libelled in the Spiritual Court for tythe Hay ; the Plaintiff Gomersal made a surmise , that there was an agreement betwixt the said parties , and for the yearly sum of seven shillings to be paid by Gomersal unto Bishop , Bishop faithfully promised to Gomersal , that Gomersal should have the tythes of the said Land during his life . And upon an Attachment upon a Prohibition Gomersal declared , that for the said annual sum Bishop leased to the Plaintiff the said tythes for his life : And upon the Declaration Bishop did demur in Law for the variance between the Surmise and the Declaration ; for in the Surmise a promise is supposed , for which Gomersal might have an Action upon the Case , and in the Declaration a Lease . But note , that the Surmise was not entred in the Roll , but was recorded by it self , and the Declaration only enrolled . Godfrey , It was resolved in the Case betwixt Pendleton and Hunt , Prohibition for tythes . that an Agreement betwixt the Parson and any of his Parishioners is a good cause to grant a Prohibition , if he libel in the Spiritual Court against such Agreement , because the Spiritual Court cannot try it , and they will not allow such Plea. Curia , The Surmise is as a Writ , for which if variance be betwixt the same and the Declaration all his naught .

CLXXVI . Colebourn and Mixstones Case . Intrat . Hill. 31. Eliz. Rot. 146. Trin. 30. Eliz. In the Kings Bench.

COlebourn was sued in the Spiritual Court , for that being Executor to one Alice Leigh , he had not brought in a true Inventory of all the goods of the said Alice , but had omitted and left out a lease of two houses , and this suit was at the pursuit of two Daughters of the Testator . Colebourn sueth for a Prohibition ; and surmises and declares , how this Lease is extinct , and the matter was this , H. Leigh was seised of a house called the Marigold , and two other houses in London , and leased the said two houses to one Alice Cheap for 21 years , if she should live so long , and afterwards made a Lease in Reversion of the said two houses to the said Alice Leigh for 21 years , and afterwards he devised these two houses , Devises . and also the house called the Marigold to the said Alice Leigh for her life for to bring up his children , and died , after whose death the said Alice Leigh entred into the said house called the Marigold , and took the rents and profits of the said two houses for the space of 7 years , virtute testament . praedict . upon which Declaration the Defendants do demurr in Law. Coke , the Declaration is not good , and for the matter of it , it is clear , that by this devise unto Alice , her Term in futuro is not extinct without her agreement to it : And also in this Case the Devise is not for the benefit of the said Alice Leigh , but of her children , and she hath liberty to accept or refuse the said estate by devise , and to make her election : Extinguishment . And the Plaintiff hath declared , that she hath accepted the Rent reserved upon the Lease of the said two houses for 7 years : And therein the Declaration naught in divers respects . 1. He hath declared , that the said Alice Leigh hath accepted the Rents of the said two houses , by reason of the reversion , & virtue testament . praedict . by 7 years , which is double and treble ; for acceptance of a Rent at one day , scil. one rent day is a sufficient election : As if the Issue in tail , after the death of his Ancestor , who hath made a Lease not warranted by the Statute , once accepts the Rent , the Lease is affirmed ; but if in plea pleading , the acceptance of the said Rent for 3 years be pleaded , the same clearly is not good ; for no good Issue can be taken thereupon . 2. This acceptance is not pleaded ( as the Law wills ) and in the phrase of the Law , viz. to which devise she agreed , but pleads the acceptance of the Rent , which is matter of evidence , the which is not good pleading . As 5 H. 7. 1. One sweareth another to enter into his Land , and the same to occupy for a certain time , Estate executed . the same is a Lease in Law ; and if in pleading the party is to make his title to the same Land , he ought to plead it as an expres Lease , and not as a Licence ; and if the Lease be traversed , he may give the Licence in evidence . Tanfield , presently by the devise , the estate for life is in the Devisee and the Term extinct by it , and that is sufficient for the Plaintiff : And if there was any disagreement the same is to be shewed on the other side . But if Alice had not notice of the Devise , but dieth before notice , the same amounteth unto a disagreement . And as to the pleading of the Agreement , I conceive it s well enough pleaded , for if the Lease had not been she might have entred , and then if such Entry had been pleaded it had been good enough ; and then because she could not enter by reason of the said Lease , she hath taken the rents and profits which is an actual agreement , and as strong as an Entry . Also we have shewed that she had entred into the house called the Marigold , Assent not to be apportioned . of which the Devisor died seised in possession , and that is a sufficient agreement for the whole , for it is an entire Legacy . As 18 E. 3. Variance 63. If the Reversion of three acres be granted , and the Tenant for life attorneth for one acre , it is a good attornment for the whole , for he cannot apportion his assent : and 2 E. 4. 13. If the Executor deliver unto the Devisee goods to him devised to redeliver them to him again at such a day , the same is a good assent , and execution of the Devise , and the words of the re-delivery are void . Gawdy , The devise doth not vest the estate in the Wife until agreement , where a man takes in a second degree , as in a Remainder the same vests presently before agreement , but where he taketh immediatly it is otherwise , and he held the agreement was well enough pleaded . Wray , Presently upon the death of the Testator , the Free-hold rested in the Devisee , and it was not an Agreement , ut supra , by taking of the Rents , yet the entry into the Marigold was a consent , and an Execution of the whole Legacy ; and as to the rest he agreed with Gawdy . Clench , The Free-hold rested presently in Alice Leigh before agreement , also the entry into the Marigold is an execution of the whole Legacy to the Devisee , for her entry shall be adjudged most beneficial for her ; and that is , for all the three houses .

CLXXVII . Stransham and Medcalfes Case . Trin. 30 Eliz. In the Kings Bench.

1 Cro. 178. STransham libelled in the Court of the Bishop of Norwich against Medcalfe , for a portion of Tithes , as Farmor of the Rectory of Dunham : the Parson of Stonham came in and said , that the Land , whereof the Tithes are demanded , is in his Parish of Stonham , and not in the Parish of Dunham ; and afterwards sentence passed against Stransham ; who brought an Appeal , and notwithstanding that , by the Statute of 32 H. 8. cap. 7. the spiritual Iudges may proceed to make process against the Appellant for costs , for the principal matter , scil. parcel , or within such a Parish or not , is tryable at the Common Law. Cook now prayed a Consultation ; and he confessed ( ut supra ) that the matter was tryable at the Common Law ; but yet the costs were not given for the matter , but for the unjust vexation , No Prohibition for costs in the spiritual Court. and it was his suit and own act to prosecute the same in the Spiritual Court. Note , that Stransham had a Prohibition to stay the proceedings for the costs , for in some cases the Plaintiff himself , who libelleth , may have a Prohibition , and that was the case betwixt Wignal and Brook. And afterwards a Consultation was granted by the Court ; for Stransham had begun the suit in the Spiritual Court in the principal matter , and therefore he cannot have a Prohibition for the costs . But afterwards Iudgment was stayed , for the said Statute speaks specially in case of Tithes , where the Court hath Iurisdiction , and here it hath not of the matter : But it was said , that if a Consultation be once granted , 1 Cro 277. the party shall never have another Prohibition in the same cause , as it was holden in the case betwixt Hoskins and Jones .

CLXXVIII . Chamberlain and Thorps Case . Pasch. 31 Eliz. Rot. 186. In the Kings Bench.

Recognizances in London , by custom . 1 Cro. 186. IN Debt upon a Recognizance acknowledged in London , the Plaintiff declared , that London is antiqua Civitas , and that they have used time out of mind , &c. That the Mayor take Recognizances of any person being of full age , and not a Feme Covert , every day in the year , except Sundays , Holy-days , Counsel days , and days of Quarter Sessions and Gaol-delivery ; And declared further , now that the Defendant such a day did acknowledge a Recognizance to him , &c. Tanfield , the Declaration is not good , but the custom , as it is laid is unreasonable , for thereby the Mayor may take Recognizances of Idiots , men of Non sanae Memoriae , &c. nor is it restrained to any persons , or to any matters , but is too general , and therefore cannot be a good custom . Gawdy , The Declaration is good notwithstanding the Exception for want of averment , for that ought to come in on the other side . And as to the custom I conceive it is not good , for it is hard , That they should take Recognizances of all Persons , and for all Causes which rise out of the City , and through the whole Realm , as well as within the City : also none shall take a Recognizance , but a Iudge of Record , and a Recognizance cannot be taken by prescription . As to the first Exception , Wray agreed with Gawdy ; and as to the Custom , he held the same to be good . For it hath been always allowed , and their customs are confirmed by Act of Parliament which makes them good . But if the custom be not confirmed by Parliament it is not good ; also it is not an unreasonable Custom , for it is for the benefit of the Subjects to have security for their Debts . Coke , The Recognizance makes the Debt local , and therefore 13 Rich. 2. bar . 649. Debt was brought in London upon a Recognizance acknowledged in the Chancery at Westminster , and the Writ was abated ; for the Recognizance makes it local there ; and by him the custom stands with reason : The Mayor is such a person who may take a Recognizance , for he is a Iudge of Record . See 1 H. 7. 20. and Br. Recognizance 8. and the Recognisee cannot have an Action of Debt upon this Recognizance elsewhere than in London . For it is not a Debt out of the Iurisdiction of the Court , for the Recognizance hath made it local . Wray , If the Recognisor be within age , the same shall come in of the other side , and the Plaintiff needs not shew the same in his Declaration . Cooke , It was agreed betwixt Mabbe and Frend , That such a Recognizance was good . Tanfield , The said Recognizance was taken for Orphans goods which is a thing within their Iurisdiction . Clench , They of London cannot take Recognizance of more than they can hold plea of it . Wray , They have used of long time to take Recognizances , and their customs are confirmed by Parliament , and a more strange custom than this hath been allowed of here before , scil. That a feme Covert shall sue an Action alone without her Husband , for she is a sole Merchant ; Also they do certifie Recognizances ore tenus . Gawdy , A feme Covert may have an Action within the City , but not here .

CLXXIX . Pierce against Howe . Hill. 32 Eliz. Rot. 434. In the Kings Bench.

AN Action upon the Case for these words , Action upon the case for words . 1 Cro. 185. Pierce hath taken a false Oath in the Consistory Court of the Bishop of Exeter , and upon the Declaration , the Defendant did demur in Law. And by Prideaux these words are Actionable , although the perjury be supposed to be committed in the spiritual Court ; For he shall be excommunicated if he will not appear , and he shall do pennance in a White sheet , which is as great a disgrace as to be set upon the Pillory . And it was ruled in an action upon the case betwixt Dorrington and Dorrington , upon these words , Thou art a Bastard , that an action lyeth , and yet Bastardy is a spiritual matter , and there determinable ; So for these words , Thou art a Pirate , an action lyeth , and yet Piracy is not punishable by the common Law , but in the Court of Admiralty . And these words , He hath taken a false oath , do amount to these words , He is forsworn . Wray conceived , that the words are not actionable , for there is a proviso in the Statute of Eliz. cap. 9. That the said Act shall not extend to any Ecclesiastical Court , but that every such offendor shall be and may be punished by such usual and ordinary Laws as heretofore have been , and is yet used , and frequent in the said Ecclesiastical Court. Gawdy upon these words , an action doth not lye , for they are not pregnant of any perjury in the Pl. for he may be meer passive in it : for if one of the Masters of the Chancery minister an Oath unto any person , or any Commissioners , &c. and the Plaintiff sweareth falsly , a man may say , That the Master of the Chancery , or the Commissioner hath taken a false oath , and yet he is not guilty of falsity . And afterwards Wray , mutata opinione , That the Proviso in the said Statute , is to this intent , That notwithstanding the said Statute , such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as it was before , but the same doth not take away or restrain the authority of the Common Law , but that such an offence may be here examined . And it hath been lately adjudged in the Star-Chamber , That such perjury was examinable there , for it is not restrained : and as to the latter exception , upon these words ( he hath taken a false oath ) it shall be intended actively , and not passively , and if so , the Defendant ought to have so pleaded it , and afterwards Iudgment was given for the Plaintiff .

CLXXX . Palmer and Smalbrooks Case . Trin. 30 Eliz. In the Kings Bench.

1 Cro. 178. Owen 97. 3 Len. 227. IN an action upon the Case by Palmer against Smalbrook , The Plaintiff declared , That the Defendant had recovered a certain Debt against A. and thereupon purchased a Writ of Capias against A. to take his body , and delivered the said Capias to the Plaintiff being then Sheriff , and prayed a Warrant for the serving of the said Capias ; and that he would name in it , one B. for special Bailiff , and promised the Plaintiff that if B. arrested A. by force of the said Capias , and suffered him to escape , That he would not sue the Plaintiff for the escape : and shewed further , That he made a Warrant according to the said Capias , and therein named and appointed the said B. his special Bailiff , who arrested A. accordingly and afterwards suffered him to escape , and the Defendant notwithstanding his promise aforesaid , sued the Plaintiff , for the said escape . And it was found for the Plaintiff ; It was moved in arrest of Iudgment , That the promise is against the Law , to prevent the punishment inflicted by the Statute of 23 H. 6. upon the Sheriff , and it is meerly within the Statute , and so the promise void . Cooke , The same is not any Bond or promise taken of the Prisoner , nor of any for him , and therefore it is not within the Statute , as it was in Danvers Case . Wray , A promise is within the Statute as well as a Bond ; but the Statute doth not extend but where the Bond or promise is made by the Prisoner , or by any for him ; And after Iudgment was given for the Plaintiff .

CLXXXI . Mounson and Wests Case . Hill. 30 Eliz. In the Common Pleas.

IN Trespass by Mounson against West , the Iury was charged and evidence given , and the Iurours being retired into a house for to consider of their evidence , Owen 38. Plowd. 520. Co. 1 Inst. 227. Dyer 37. they remained there a long time without concluding any thing ; and the officers of the Court who attended them seeing their delay , searched the Iurours if they had any thing about them to eat ; upon which search it was found , that some of them had figs , and others pippins ; for which the next day the matter was moved to the Court , and the Iurours were examined upon it upon Oath . And two of them did confess that they had eaten figs before they had agreed of their verdict : and three other of them confessed , That they had Pippins , but did not eat of them , Where Jurors shall be fined for eating before verdict ; but it shall not make void the verdict . and that they did it without the knowledge or Will of any of the Parties . And afterwards the Court set a fine of five pound upon each of them which had eaten , and upon the others who had not eaten forty shillings . And they would advise , if the verdict was good or not , for the Iury found for the Plaintiff . And afterwards at another day , the matter was moved , and Anderson was of opinion , That notwithstanding the said Misdemeanor of the Iury , the verdict was good enough , for these victuals were not given to them by any of the Parties to the action , nor by their means , or procurement . Rhodes thought the contrary , because some of the Iurors had eaten , and some not , contrary if all of them had eaten . See 14 H. 7. 1. A Iury was charged and before their verdict , they did eat and drink , and it was holden that upon that Misdemeanor , their verdict was void , for which cause a venire facias de novo was awarded . And it was prayed by the Counsel of the Defendant West , That the said Misdemeanor so found by examination might be entred of Record , which the Court granted . And afterwards at another day , the matter was moved again . And upon great advice and deliberation , and conference with the other Iudges , The verdict was holden to be good notwithstanding the Misdemeanor aforesaid . See 24 E. 3 24. 15 H. 7. 1. 2 H. 7. 3. 29 H. 8. 37. and 35 H. 8. 55. where it was holden , where the eating and drinking of the Iury at their own costs is but fineable , but if it be at the costs of the parties , the verdict is void . And see Book of Entries 251. The Iurors after they went from the Bar ad seipsos of their verdict to be advised , comederunt quasdam species , sci . raisins , dates , &c. at their own costs , as well before , as after they agreed of their verdict ; And the Iurors were committed to prison ; but their verdict was good , although the verdict was given against the King.

CLXXXII . Hunt and Gilborns Case . Hill. 30 Eliz. In the Common Pleas.

IN Dower brought by Hunt and his Wife against Gilborn , The Defendant pleaded , That the Land of which Dower is demanded , Dower of Gavelkind by Custom . Ante. 62 , 63. 1 Cro. 825. is of the nature of Gavelkind , and that the custom is , That in Dower of Land of such nature The Wife ought to be endowed of the moity of such Land , Tenendum quam diu non maritata remanserit , & non aliter ; upon which plea in Bar , the Demandants did demur in Law ; and the Lord Anderson was of opinion , That the Custom is strongly pleaded against the Dower in the affirmative with a Negative & non aliter ; and that is confessed by the Demurrer , That Dower out of such Land ought to be so allowed , and so demanded , and in no other manner . And by Periam , If those words ( & non aliter ) had not been in the Plea , yet the Demandants should not have Iudgment : For Dower by moiety , & non maritatis , is as proper in case of Gavelkind , as Dower of the third part of Land at the Common Law , and as the descent in such case of Lands to all the Sons . And afterwards Iudgment was given against the Demandants .

CLXXXIII . The Case of the Provost and Scholars of Queens Colledge in Oxford . Hill. 30. Eliz.

THe Provost , Fellows , and Scholars of Queens Colledge in Oxford , are Guardians of the Hospital , or Meason de Dieu in Southampton . And they make a Lease of the Land parcel of the said Hospital to one Hazel for Term of years by the name Praepositus Socii & Scholares Collegii reginalis in Oxonia , Gardianus Hospitalis , &c. And in an Ejectione firmae upon that lease It was found for the Plaintiffs ; and it was objected in arrest of Iudgment , That the word Gardianus , ought to be Gardiani , for the Colledge doth consist of many persons , and every person is capable , and it is not like unto Abbot and Covent : But the whole Court was of opinion , that the Exception was not good , but that as well the Lease as also the Declaration was good , for the Colledge is one body , and as one person : And so it is good enough Gardianus .

CLXXXIV . Wooden and Hazels Case . Hill. 30 Eliz. In the Common Pleas.

IN an Ejectione betwixt Wooden and Hazel they were at issue upon , Not Guilty : and a Venire facias awarded returnable , Tres Trinit . And the Essoin adjudged and adjorned by the Plaintiff until Michaelmas Term ; Nisi Prips . And at next Assises , the Plaintiff not withstanding that Essoin , and the adjorning of it procured a Nisi Prius , by which it was found for the Plaintiff : And now it was moved in Court for the stay of Iudgment , because no Nisi Prius ought to issue in the Case . Essoin . For the Essoin was adjudged and adjorned until Michaelmas Term by the Plaintiff himself . And Leonard custos Brevium said , That the words of the Statute of Westminster 2 cap. 27. Postquam aliquis posuerit se in aliquem inquisitionem ad proximum diem allocet . ei esson . Imports , That the Essoin shall not be taken at the return of the Process against the Iury , although the Iury be ready at the Bar. Anderson was of opinion , That the awarding of the Nisi Prius ut supra , is but a misawarding of the Process , and then relieved by the Statute . And afterwards the case being moved at another day , 1 Cro. 367. the Court was clear of opinion , That no Nisi Prius ought to issue forth in this case , because that the Plaintiff himself , by the adjorning of the Essoin , cast by the Defendant until Michaelmas Term , had barred himself of all Proceedings in the mean time : But afterwards it was surmised to the Court on the Plaintiffs part , that he the Defendant was not essoined , for the name of the Defendant is Edward Hazel , and it appeared upon the tryal that Edward Russel was essoined , Amendment . but no Edward Hazel , and then if no Essoin , no adjornment , and then the Plaintiff is at large , &c. and may proceed , &c. But the Remembrance of the Clark was Edward Hazel , as it ought to be , and yet it was holden of no effect , being in another Term : And afterwards the Counsel of the Defendant prayed , that the Roll in hac parte , be amended according to the Remembrance of the Clark : But the Court utterly denied that , for no Statute gives amendment , but in the affirmance of Iudgments , and Verdicts , and not in defeazance of Iudgments or Verdicts : and afterwards it was resolved by the whole Court , That Iudgment be entred for the Plaintiff .

CLXXXV . Sir Henry Goodiers Case . Hill. 32 Eliz. Intratur M. 29 & 30. Eliz. Rot. 2116.

IN an Ejectione firmae the Case was , Sir Ralph Rowlet possessed of certain Lands for years made his Will , and ordained Sir Nicholas Bacon , Renouncing of an Executorship . Owen . 44. Office of Executors . 54. 1 Cro. 92. 9 Co. 37. Keeper of the great Seal of England , Sir Robert Catline , Lord Chief Iustice of England , Iustice Southcote , and Gerrard Attorney General his Executors , and died . And afterwards the said persons named Executors , sent their Letters to the Chief Officer of the Prerogative Court as followeth . Whereas our Loving friend Sir Ralph Rowlet Knight , lately deceased , made and ordained us Executors of his last Will , and whereas our business is so great , that we cannot attend the execution of the said Will , Therefore we have thought good to move the bearer hereof Mr. Henry Goodier one of the Co-heirs of the said Sir Ralph to take upon him the execution of the said Will . And therefore we pray you to grant Letters of Administration in as ample manner as the justice of the cause doth require ; and afterwards an Entry was made in this manner in the same Court , Executores Testamenti praedict. executionem inde super se assumere distulerant & adhuc distarent : And upon that the said Goodier obtained Letters of Administration , and granted a Lease to A. for years , of which the said Sir Ralph Rowlet died possessed . And afterwards Sir Robert Catline claiming as Executor , granted the same Term to another , &c. and all the matter of difficulty was , If this Letter written by the Executors be a sufficient Renunciation of the Executorship in Law , so as the Executors cannot afterwards claim or use the said authority , &c. 2. If the Entry of the said Renuntiation be sufficient and effectual . And it was argued by Ford , one of the Doctors of the Civil Law , That as well the Renunciation as the Entry of it is good and sufficient in Law , so that none of the Executors could not after entermeddle . And he said , That in their Law , there is not any certain form of Renuntiation , but if the meaning and intention of the Renouncer appeareth , it is sufficient without any formal Terms of Renunciation : And he put many rules and Maximes in their Law to the same purpose , Ego dico me nolle esse haeredem , are sufficient words to such intent . Non vult haeres esse quin ad aliam transferre debet haereditatem . Qui semel repudiavit haereditatem non potest eam repetere . Quod semel placuit , post displicere non potest . Variatio non permittitur in contractibus . So that after the Executors have signified to the Officer of their Court their pleasure to renounce the Execution of the Will , they cannot afterwards entermeddle , nam interest reipublicae ut dominia rerum sint in certo . And as to the Entry of the said Renunciation inter acta Curiae , distulerint et adhuc distarent , that was the error of the Clark. And it is Rule in our Law , veritas rerum gestarum non vitiatur Errore factorum . And the Lord Anderson demanded of the said Doctor , how far those words haeres , et haereditas did extend in their Law , who answered , That haereditas comprehends all Chattels , as well real as personal , Inheritance as well as Chattels , for by their Law , Haereditas nihilaliud est quam successio in universum jus quod defunctus habuit tempore mortis suae . And afterwards the Court gave day to the other party to hear an Argument of their side , but the case was so clear , That no Professor of the Civil Law would be retained to argue to the contrary . And afterwards Iudgment was given , That the said Renunciation , and the entry of it was sufficient .

CLXXXVI . Littleton and Pernes Case . Mich. 30 Eliz. In the Common Pleas.

Debt . LIttleton brought Debt upon an Obligation against Humphry Pernes , who pleaded , that the said Obligation was endorced with this condition , for the performance of certain Articles and Covenants contained in certain Indentures , by which Indentures the Plaintiff first covenanted , that Edward brother of Humphry should enjoy such Land until the Feast of Michaelmas next following , rendring such Rent at the end of the said Term : and the said Humphry covenanted , that the said Edward at the Feast aforesaid should surrender quietly and peaceably the said Lands to the Plaintiff , and that the said Plaintiff to such of the said Lands as by the Custom of the Country , tunc jacebant frisca , should have in the mean time free ingress , egress , &c. at his will and pleasure , with his servants , ploughs , &c. And as to that Covenant , the Defendant pleaded , Quod permisit querentem habere intrationem & exitum , &c. in tales terras , quales tunc jacebant secundum consuetudinem patriae , &c. And Exception was taken to this plea , because he hath not shewed in certain , which Lands they were which then then did lie Frecy , according to the custom of the Country ; which Anderson allowed of , but Walmsly strongly insisted to the contrary : And he confessed , that where an Act is to be done , according to a Covenant , he who pleads the performance of it ought to plead it specially ; but as our case is , here is no Act to be done , but a permittance as abovesaid , and it is in the Negative , not a disturbance , in which case permisit is a good plea ; and then it shall come on the other side on the Plaintiffs part , to shew in what Lands the Defendant non permisit : Which difference see agreed , 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case .

1 Co. 127. Another Exception was taken to it , that the Defendant had covenanted , that his brother Edward should pay to the Plaintiff the said Rent ; To which the Defendant pleaded , that his said brother had payed to the Platntiff before the said Feast of Michaelmas , in full satisfaction of the said Rent , three shillings , and that was holden a good plea ; and upon the matter the Covenant well performed , for there is not any Rent in this Case , for here is not any Lease , and therefore not any Rent . For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent , 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease , and therefore neither Rent . But if A. had covenanted with C. himself , it had been otherwise , because it is betwixt the same parties . And if the Lessee covenant to pay his Rent to the Lessor , and he payeth it before the day , the same is not any performance of the Covenant , causa patet , contrary of a sum in gross : Another Covenant was , that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded , that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable , and therefore the Plaintiff had Iudgment to recover .

CLXXXVII . Geslin and Warburtons Case . Mich. 30 Eliz. In the Common Pleas.

1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. & 31 Eliz. rot. 333. upon the general Issue , the Iury found a special verdict , that before the Trespass supposed one Martin Frenze was seised of the Lands , of which the Action was brought in tail to him and his Heirs males of his body , so seised suffered a common Recovery to his own use , Devises . and afterwards devised the same in this manner : I give my said Land to Margaret my Wife , until such time as Prudence my Daughter shall accomplish the age of nineteen years , the Reversion to the said Prudence my Daughter , and to the Heirs of her body Lawfully begotten , upon condition that she the said Prudence shall pay unto my said Wife yearly during her life , in recompence of her Dower of and in all my Lands 12 pounds , and if default of payment be made , then I will that my said Wife shall enter and have all my Lands during her life , &c. the Remainder ut supra , the Remainder to John Frenze in tail , &c. Martin Frenze died , Margaret entred , the said Prudence being within the age of fourteen years ; Margaret took to Husband one of the Defendants , John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error , because the Writ of Entry upon which the Recovery was had , was Praecipe quod reddat unum Messuag . and twenty acras prati in Dickelborough , Linford Hamblets , without naming any Town : And thereupon the Iudgment was reversed . And it was further found , that in the said Writ of Error , and the process upon it , Hutt. 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten . existentem liberi ten . praemissorum , ad ostendendam quid haberet , vel dicere sciret quare Judicium praedict. non reversaretur : The Iury further found , that the said Margaret , depending the said Writ of Error was possessed virtute Testamenti & ultimae voluntatis dict. Martini , reversione inde expectant . dictae Prudentiae pro ut lex postulat : And they further found , Error . that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast , &c. and they found , that the said John Frenze , praetextu Judicii sic reversat . entred into the premisses as Heir male , ut supra . And so seised , a Fine was levyed betwixt John Frenze Plaintiff , and one Edward Tindal , Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants , and that was to the use of the said John Frenze : And that afterwards Humphry Warburton and the said Margaret his Wife , brought a Writ of Dower against the said John Frenze , Edw. Tindal , and Prudence his Wife , of the said Lands : The said Edward and Prudence made default , and the Demandants counted against the said Frenze , and demanded against him the moity of the third part of the said Lands : To which the said Frenze pleaded , that the default of the said Edward and Prudence idem John Frenze nomine non debet , quia he said , that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought , &c. and pleaded in Bar , and it was found against the said John , and Iudgment given for the Demandants of the third part of the whole Land , and seisin accordingly : And that afterwards , 17 Eliz. the said Frenze levyed the Fine to the said Tindal , to the use of the said Tindal and his Heirs : And they found , that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day , and there did demand the Debt of the said twelve pounds , Dower . to the said Margaret , by the said Martin Frenze devised to be paid unto them , and there remained till after Sun-set of the said day , demanding the Rent aforesaid , and that neither the said Tindal nor any other was there ready to pay the same .

And first it was moved , if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent , or but a sum in gross : And the opinion of the Court was , that it was a Rent , and so it might be fitly collected out of the whole Will , where it is said , that Prudence his Daughter should have the Land , and that she should pay yearly to Margaret twelve pounds in recompence of her Dower , &c. But if it be not a Rent , but a sum in gross , it is not much material to the end of the case : For put case it be a Rent , the same not being pleaded in Bar , the Dower is well recovered , and then when default of payment is made , if the Wife of the Devisor shall have the whole , was the Question : And the Court was clear of opinion , that by the suit and Iudgment in the Writ of Dower , the Wife of the Devisor had lost all the benefit which was to come to her by the devise : For the said Rent was devised to her in recompence of her Dower , so as it was not the meaning of the Devisor that his Wife should have both ; And therefore by the Recovery in Dower she had dismissed her self of the Rent , and by consequence of the benefit of the penalty for not payment of it .

CLXXXVIII . Stephens Case . Hill. 30 Eliz. In the Common Pleas.

Fines levyed to raise an use . IN an Ejectione firmae the case was , that the Father covenanted with one A. that in consideration of a Marriage to be had betwixt the Son of the Covenantor and the Daughter of A. that he before such a day would levy a Fine , which Fine should be to the uses of the Son and Daughter in tail for the Ioynture of the Daughter . The Fine is levyed accordingly to the uses aforesaid : The Father dieth , but in the Fine no mention is made of any marriage had : And upon that matter the Court was clear of opinion , that notwithstanding that the marriage was not accomplished , yet the estate tail was well enough executed in the Son and Daughter , for the Fine without any consideration doth carry the uses , but without a Fine such a consideration would not raise such an use without accomplishment of the marriage , for the consideration executed ought to produce the use . But in this case the uses are perfected by the Fine , and A. upon the matter might have had covenant against the Father to have the Fine before the marriage .

CLXXXIX . Billford and Foxes Case . Mich. 30 Eliz. In the Common Pleas.

BIllford brought an Action of Debt against Fox and his Wife , Executrix of one A. her former Husband , Debt . process continued against them till the Exigent , upon which the Husband appeared , and put in a supersedeas for himself only , 1 Cro. 118. without making mention of his Wife , and the case being moved to the Iustices , they demanded of the Prothonotaries what was to be done , for the same is practise and a dangerous case for example . And it was answered by the Prothonotaries , that the Court cannot remedy it , for now by the Supesedeas the Husband is sine die , for he shall not be driven to answer without his Wife , as this case is , and he is impleaded , as in the right of his Wife , and therefore the Wife shall be waived , Supersedeas by the Husband is not good for the Wife . and the Husband discharged . See the Book of Entries 187. Debt against the Husband and Wife , and process continued until the Exigent , the Husband rendred himself , and the Wife was waive , and Iudgment given , quia videbatur Justiciariis hic that the Husband absque praefata uxore sua respondere non potuit , & ratoni dissonum sit , ipsum in Curia hic , cum in eadem loquela respondere non potuit , ulterius detineri , ideo eat inde sine die . And so see 43 E. 3. 18. Detinue against the Husband and Wife , the Wife is waive , and the Husband rendred himself at the Exigent . And the point of the Action was upon a bailment to the Wife , dum sola suit , and the Husband was sine die , for he could not answer in such case without the Wife . But at the last the Iustices advised thereof , and gave order that the Supersedeas should by stayed without recording the appearance of the Husband . And by Anthrobus one of the Attorneys of the Court , that was the case of the Lady Malory and her Husband , who were sued in an Action of Debt , and process continued against them till the Exigent , upon which the Husband appeared and put in a Supersedeas for himself , without speaking of his Wife ; and his Supersedeas was not allowed , but process continued until Out-lawry .

CXC . The Queen against the Bishop of Canterbury and others . Hill. 30 Eliz. In the Common Pleas.

THe Queen brought a Quare Impedit against the Archbishop of Canterbury , the Bishop of Chichester , and the Incumbent : And counted , Quare Impedit . that Ashburnham was seised of the Advowson , and that he was out-lawed in an Action personal at the suit of such a one , and shewed the whole Out-lawry certain . And Exception was taken to the Count , because in the setting down of the Out-lawry , the process is alledged to be returned by the Sheriff , but the name of the Sheriff is not there expressed . As to that , it was agreed by the Court that the truth is , that it is provided by the Statute of 12 E 2. cap. 5. That the Sheriffs in their returns put their names to the said Returns ; but it is not requisite so to plead it , for the omitting thereof doth not make the Return void , but the Sheriff shall be amerced .

Another matter was objected , for that whereas the Patron had pleaded one plea , and the Incumbent the same plea by himself in Bar. The Queen demurred in Law in this manner , quoad seperalia placita per dictos , 1 Cro. 140. Dyer 181 , 182. Ante 124. &c. seperaliter placitat . &c. Dicta Domina Regina necesse non habet , nec per legem terrae tenetur respondere : And the Court was clear of opinion , that the Demurrer ought to have been several , upon the plea of the Patron by it self , and upon the plea of the Incumbent by it self .

CXCI. Mallet and Ferrers Case . Hill. 30 Eliz. In the Common Pleas.

IN Trespass of Battery ; the parties were at Issue upon not guilty , Damages increased of a Maim by the Court. and at the Nisi prius it appeared , that the Thumb of the right hand of the Plaintiff was clear cut off , and so maimed ; And it was found for the Plaintiff , and damages taxed to forty pounds , and now the party came in person into Court , and prayed , in respect of the heinousness of the Maim , that the Court would encrease the damages ; Dyer 105. 1 Cro. 223. 544. Sty . 310 , 311. which damages , upon great consideration had , were made one hundred pounds , and Iudgment given accordingly . See that the cutting off any of the Fingers is a Maim , 28 E. 3. 54. by Stone ; and as for the damages further assessed by the Court , than the damages taxed by the Iury , See Book of Entries , 46. 8 H. 4. 135. 39 E. 3. 20.

CXCII . Atkins and Hales Case . Hill. 30 Eliz. In the Common Pleas.

RIchard Atkins of Lincolns-Inn brought a Writ of Forger of false Faits against Hale of Gloucester , and counted upon the Forger of an Indenture , Forger of false faits . in quo continetur quod quidam Abbas Monasterii de Gloucester Demisit Situm Manerii de R. & terras dominicales , &c. The Defendant pleaded , Not guilty . And it was given in evidence on the Plaintiffs part , a Lease supposed to be made and forged ; containing that the said Abbot leased the said Site and all the demesne Lands of the said Manor , exceptis duobus seperalibus clausuris inde , &c. vocat . &c. And it was moved , if this Evidence doth not maintain the Issue . And it was holden by the whole Court , that the Evidence was good enough , for it is not necessary to construe terras Dominicales , omnes terras Dominicales , for the Lands not excepted are terrae Dominicales , and so the Count is satisfied by that Evidence , &c.

CXCIII . Chamberlain and Stauntons Case . Hill. 30 Eliz. In the Common Pleas.

CHamberlain brought Debt upon an Obligation against Staunton , and upon non est factum , Deeds , and sealing of them . Owen 95. the Iury found this special matter , that the Defendant subscribed and sealed the said Obligation , and cast it upon a certain Table , and the Plaintiff took it without any other delivery , or any other thing amounting to a delivery . And the Court was clear of opinion , that upon that matter the Iury had found against the Plaintiff , and it is not like the case which was here lately adjudged , that the Obligor subscribed and sealed the Obligation , and cast it upon a Table , saying these words , this will serve , the same was held to be a good delivery , for here is a circumstance , the speaking of these words , by which the Will of the Obligor appeareth , that it shall be his deed .

CXCIV . Oldfield and Wilmers Case . Hill. 30 Eliz. In the Common Pleas.

Arbitrament . Postea . 304. IN Debt upon an Obligation , the Defendant pleaded , that the Obligation was endorced with condition , that the Defendant should stand to the Award of I.S. &c. who awarded , that the Defendant should pay to the Plaintiff at such a day 100 l. or should find two sufficient Sureties to be bound with him to the Plaintiff to pay the said 100 l. to the Plaintiff , by twenty pound a year , until the whole sum be paid : And pleads further , that he had performed the said Award . The Plaintiff by Replication saith , that the Defendant hath not paid unto him the said one hundred pounds , and so in that assigned the breach of the Award , and upon the Replication the Defendant doth demur in Law , because by the pretence of the Award , the Defendant had election either to pay the one hundred pounds at the day , or to find two Sureties for the payment of it by twenty pounds per annum , &c. for so is the Award in the disjunctive . But the Court was clear of opinion , that the Replication was good , for although that the Award be set down and conceived in words disjunctive , yet in Law and in substance it is single , for as to the finding of Suretis the Award is void , and so nothing is awarded but the payment of the one hundred pounds at the day , 1 Cro. 4. to which the Plaintiff in his Replication hath fully answered : And Iudgment was given for the Plaintiff .

CXCV. The Lord Dudley and Lacyes Case . Hill. 30 Eliz. In the Common Pleas.

Audita querela . THe Lord Dudley brought an Audita querela against Lacy , and upon it a Scire facias against the same party ; And at the day it was moved by the Counsel of Lacy , that in as much as no execution was sued against the person of the Lord upon the Statute Merchant in which the said Lord was bound to the said Lacy , so as he was not in prison , a Scire facias ought not to issue , but a Venire facias . And the Court was clear of opinion , That it is at the election of the party grieved , which of them he will sue , scil. a Scire facias , or a Venire facias . See 15 E. 4. 5. by Cooke , Scire facias and Venire facias are all one in effect : Another matter was moved on the part of Lacy ; 1 Cro. 208 , 384. That this Audita Querela ought to be sued in the Chancery and not in the Common Pleas. But the Court was clear of opinion , that the party might sue in which of the Courts he would . See 16 Eliz. Dyer 332. An Audita Querela upon a Statute Merchant directed to the Iustices of the Common Pleas ; but upon a Statute Staple , the Suit shall be in the Chancery by Audita Querela directed to the Chancellor , or by Scire facias directed to the Sheriff , quod sit in Cancellaria , &c.

CXCVI. Askew and the Earl of Lincolns Case . Hill. 30 Eliz. In the Common Pleas.

ASkew was bound to the Earl of Lincoln in a Statute Staple , Audita querela . the Earl sued execution , by which Askew was put in prison ; and now the friends of Askew offered the mony in Court , and cast an Audita Querela for Askew , and prayed he might be bailed , and the mony remain in Court till the Audita Querela determined . But the Earl presently demanded the mony to be delivered to him , but the Court denied it , and commanded the Prothonotaries to keep the mony , until the Audita Querela were determined : And let Askew to bail for the costs of suit .

CXCVII . Ward and Blunts Case . Trin. 31. Eliz. In the Kings Bench.

WArd brought an Action of Trover and Conversion against Blunt of forty loads of Corn : Trover and Conversion . as unto twenty loads the Defendant pleaded not guilty , and as to the residue a special plea , upon which the Plaintiff did demur in Law , and it was adjudged for the Plaintiff , upon which issued a Writ of Enquiry of Damages , which is returned : It was moved , that the Writ of Enquiry of Damages ought not to have issued forth , for the Issue doth yet depend untryed , and the Book of 34 H. 6. 1. was vouched , and there the case was , that in Trespass against many , one of them made default after a plea pleaded ; Now a Writ of Enquiry of Damages shall be awarded , but shall not issue forth until the plea of the others be tryed ; and if the Issue be tryed for the Plaintiff , then the Enquest who tryed the Issue shall assess damages for the whole , and if for the Defendant against the Plaintiff , then the Writ which was awarded to issue forth . See 44 E. 3. 7. Cook , It is in the discretion of the Court , to award such Writ or not , which Wray granted , but it is usual here to grant the Writ presently . Gawdy , The case in 39 H. 6. is not like this case , for in this case the Trespass is divided , and as it were apportioned in twenty loads , and twenty loads , but in the other case not .

CXCVIII. Smith and Bustards Case . Trin. 31 Eliz. Rot. 666.

IN an Ejectione firmae it was found by special verdict , that one S. was seised of Lands , and leased the same to F. for 31 years , 10 Co. 129. yeilding and paying twenty pounds per annum at the Font-stone in the Temple Church ( the Land it self lying in Essex ) upon the Feasts of the Annunciation of our Lady and St Michael , or within twelve days after either of the said Feasts , by even portions , upon condition , that if the said Rent or any part thereof be unpaid by the said space of twelve days , Proxime post aliquod festorum vel dierum solutionis inde , that then it should be lawful for the Lessor to re-enter . T. assigned his interest to Bustard the Defendant , at Michaelmas the Rent is behind , and the twelfth day after the Lessor demanded the Rent at the Temple Church , and for not payment thereof re-entred . Dyer 142. Towse , The re-entry of the Lessor was not lawful , for by the said Reservation the Rent was not due until the twelfth day after Michaelmas , for before that he cannot have an Action of Debt , or distrein for it ; Conditions expounded liberally for the party who is to perform it . and these words ( dierum solutionis ) are greatly material , for conditions are odious in Law , and if the words thereof be doubtful , they shall be construed for the avail of him who is bound by it . As in the case of 28 H. 8. 17. If I be bound to you upon condition , to pay to you before the Feast of St. Thomas twenty pounds , if there be in one year two Feasts of St. Thomas , the latter Feast shall be my day of payment . Wray , This Rent is not due until the last day of the twelve days , for neither debt or distress lieth for it , then the day of payment mentioned in the condition ought to be the last day of the last twelve days , and dict. spatium shall be construed the same number of days , and not the same days . 4 Len. 91. And at last it was resolved and adjudged , that the entry of the Lessor was not congeable , but he ought to expect the latter day of the twelve days .

CXCIX . Sir George Farmer and Brooks Case . Trin. 31. Eliz. In the Kings Bench.

IN an Action upon the Case the Plaintiff declared , that time out of mind , Prescription . Owen 67. 1 Cro. 203. 8 Co. 125. &c. there had been a Manor called Tocester , and also there had been there a Town called Tocester , and that all the Messuages , Lands and Tenements within the said Town had been holden of the said Manor , and that he is Lord of the said Manor , and that he , and all those whose estate he hath in the said Manor , have used to have a Bake-house , and a Baker , to bake white bread and house bread for all the Inhabitants and Passengers there , which bread hath been of a reasonable Assize and price , and sufficient for all the Inhabitants and Passengers there ( but doth not say wholsom ) and that time out of mind , &c. no person had or used any Bake-house there , but by the appointment of the said Lord of the Manor for the time being : But that now the Defendant had erected a Bake-house unto the Nusance of the Plaintiff : The Defendane shewed , that at the time he had set up his Bake-house , there were three Bakers there ; and shewed , how that he was Apprentice to the Trade , and that at the time , he set up the said Bake-house for the benefit of all persons , as it was lawful for him to do . Morgan , The matter only is , if this prescription made by the Plaintiff be good or not : It is to be considered , if all prescriptions at the Common Law are one , and if all prescriptions be guided by one rule and line : And I conceive , that prescription at the Common Law is but one : And there are two points in prescriptions , Vsage and Reasonableness , but they are not guided by one line , for some prescriptions are against strangers , and then there ought to be consideration and recompence : Some prescriptions against privies , as between Lord and Tenant , for there the Tenure is sufficient , & volenti non fit injuria . For the first , see 5 H. 7. 9. where in Trespass the Defendant doth justifie , that the place where , is his Free-hold , and that he had a Foldage , and that he , and all those whose estate he hath , &c. have used , that if any man depasture his Sheep with the Sheep of the Defendant for the day time , that it was lawful at night to take all the Sheep and put them in his fold all the night , and in the morning to put them out , and the same was holden a good prescription , for which the Plaintiff traversed the prescription : And for the other see 11 H 7. 13 , 14. 21 H 7. 40. betwixt Lord and Tenant , that every Tenant for every pound-breach should forfeit three pounds ; and see the Prior of Dunstables case , 11 H. 6. 19. Br. prescription 98. The Prior declared , that he and his Predecessors time out of mind , &c. had had a Market in D. every week one day , and that Butchers and others , who sold victuals , should sell the same in the high street upon stalls of the Prior to them assigned , and that the Prior should have one penny for every stall every day ; and shewed , that the Defendant had sold in his house , whereby the Prior had lost the advantage and profit of his stalls there . And the same was holden a good prescription . And on the other side , the Defendant did prescribe , that he and all house-holders of D. had used to sell in their houses : The same was holden a naughty prescription . See 43 E. 3. 5. and see also Suit ad moliendum , upon prescription without tenure , for peradventure he had not any Mill there before , and now it is an ease to the neighbours : Vide Register 105. where the Writ is , Cum querens habeat ratione Dominii sui apud R. talem libertatem quod nullus in eadem villa uti debeat seu consuever . Officio , sine Mysterio tinctoris sine licentia ipsius querentis , the same is good by way of prescription , but is void by way of grant : And there the Defendant is forbid to use the trade of his Dye-house whithin his Manor without his licence , which appeareth upon the Writ which is in the Register ( which Register was made by the Iudgment and advise of the grave Iudges of the Law ) and there is remedy given for the like case , as in the case at the Bar. And see F. B. 122. b. Sectam ad furnam , and although such a manner of prescription should bind a stranger , yet here our case is stronger , for the Defendant is our Tenant . And Hill. 15 Eliz. Rot. 166. an express Iudgment was given in such case for the Plaintiff . Buckley contrary , although here be a loss to the Plaintiff , yet there is not a wrong , as the case in 12 H. 8. 3. If I have an acre of Land adjoyning to your acre , and my acre is drowned , I may make a sluce to carry away the water , and although that by so doing your acre is drowned , yet I shall not be punished for it , because it is lawful for me to make a trench in my own Land , and then if it be any Nusance to you , you may make a trench in your ground , and so carry away the water until it come to a River or ditch . See the case 11 H. 4. of Schoolmasters 200. for it is damnum absque injuria . And it is against the liberty of the Common-wealth , 1 Cro. 112 , 113. that liberty of Contracts be not free but restrained with Priviledges to one only : Vide 22 H. 6. 14. If one erect a Mill neer to my Mill , no Action lieth against him , for it is for the use of the Kings Subjects , and God forbid , that Bread and the baking of it should be restrained to any special person , especially in a Market Town . And as to the case of the Prior of Dunstable , that is not to the purpose , for there he prescribed to have a Market and the correction of it ; and the fault there is not in the usurping of a Market in Nusance of the Plaintiff , but because the Defendant sold meat there secretly , so as the Plaintiff could not have the correction of it . See 22 H. 6. 14. And it is not reasonable , that such profits be restrained and drawn from the publick good to the private commodity of any person . And he cited a case which was ruled in the Exchequer 9 Eliz. upon an Information exhibited there by the Burgesses of Southampton , that the King had granted to the Burgesses of Southam . that all the sweet Wines brought within the Realm should be unladen at Southam . only : Grant of the King void . And it was agreed by Wray , that such a grant was not good to deprive the Common-wealth of such a benefit , and to appropriate it to one , which might be profitable to many : And it was further said by the Lord Wray , that if the King will grant by his Letters Patents , that A.B. shall be of Counsel only with the Defendant in the Chancery , and C.B. with the Plaintiffs in the Exchequer Chamber , the same is no good grant , &c.

CC. Park against Moss and How. Trin. 31 Eliz. In the Kings Bench. Intrat . Hill. 31 Rot. 31.

Trover and Conversion . 1 Cro. 181. More 352. 1 Roll. 893. IN an Action upon the Case upon Trover and Conversion . The Defendant pleaded , that one A. recovered in Debt against I. P. Executor of E. P. one hundred pounds and twenty pounds in Damages : The Debt of the goods of the Testator , and the Damages of the goods of the Testator , si quae fuerint , and if not , of the goods of the Executor . Vpon which A. procured a Fieri facias directed to the Sheriff of N. who made his Warrant to the Defendants to execute the said Writ . And before Execution I. P. died intestate , and administration was committed to the Plaintiff , and the Defendants afterwards did execution of the proper goods of I. P. and sold them , and deliver'd the mony to the Sheriff , which is the same Trover and Conversion , and averred that E. P. had no other goods . The Plaintiff by Replication said , that the Sheriff upon return of the said Writ of Execution , returned as to the principal Debt , That the goods of the Testator were wasted , and as to the Damages that he could not execute the Writ , quia tarde .

Tanfield , I conceive that the false return of the Sheriff shall not make the Defendant punishable , for they did execution secundum exigentiam brevis , and delivered the monies coming thereby to the Sheriff ; and if they should not be excused it should be a great inconvenience , for it is necessary that the Sheriff have inferiour Officers under him . As 37 H. 6. an Executor named in the Will , named one to take the goods of the Testator in such a place , who did accordingly , and afterwards the Executor doth refuse ; yet the servant shall not be punished for that medling , 13 H. 7. 2. 21 H. 7. 23. Where it is said by Read chief Iustice , that if the Baily delivereth the body of one who he hath taken in Execution to the Sheriff , he shall be excused , although that the Sheriff doth not return the Capias ; And we have pleaded in this case , that we have delivered the mony to the Sheriff , and that is confessed by the demurrer . Altham , I conceive that this Execution after the death of the party is not good . For an Administrator is another person , wherefore new process shall issue against him , as in all cases where the person is changed : 18 E. 3. If one sueth a Certificate out of a Statute , and before execution had he dieth , his Executors shall not have execution upon that Certificate , but first they ought to have a Scire facias : And 28 H. 8. Dyer 29. Transcript of a Fine is removed by the Ancestor out of the Treasury into the Chancery , and comes in by Mittimus to have execution , and the Ancestor dieth before Execution ; Now the Heir cannot proceed without a new Mittimus , for he is another person . See 36 H. 8. Br. Statute Merchant 43. and in our case here , at the time of the Execution these are not the goods of the Executor , for he is not in esse , and it ought to appear whose goods they are which are taken in Execution : If Lands be recovered against the Father who dieth , and the Heir be ousted by Execution , without a Scire facias against the Heir , he shall have an Assise . And 6 E. 6. Dyer 76. is our case . A. is condemned in Debt , and a Fieri facias is awarded , and before execution A. dieth intestate : The Sheriff levyed the Debt upon the goods of the Intestate in the hands of the Administrators ; upon which the Administrators brought Error and reversed the Execution . Tanfield , The Execution is erronious , but is not void , but shall stand until it be reversed by Error . And it was holden by the whole Court , that the false return of the Sheriff should not prejudice the Defendants : At another day it was moved again , and it was holden , that the averment , that the goods put in Execution were the goods of the Testator the day of the Writ of Execution sued , was a good averment without saying , Execution against an Administrator , after the death of the Intestate of the Intestates goods ; good . Execution shall relate to the date of the Writ . 3 Cro. 106 , 330 1 Roll. 893. The day of Execution done , for the award of the Writ of Execution shall bind all his goods against whom the Iudgment was given which he had at the day of the Writ of Execution awarded . And it was also holden , That notwithstanding the death of the party against whom , &c. The Sheriff might do execution of the goods of the dead in the hands of his Executors , according to the opinion of Bryan . 16 H. 7. 6. and afterwards in the principal Case Iudgment was given against the Plaintiff .

CCI. Carie and Denis Case . Trin. 31. Eliz. In the Kings Bench.

THe Case was ; Vpon a Latitat , the Sheriff returned , Retorn of the Sheriff . That by vertue of the said process he had arrested the Body of the Defendant , and that such a day after , and before the Return of the Latitat , a Habeas Corpus came to him to bring the body immediately into the Chancery , which was done accordingly , and there the Prisoner was discharged by the Order of the said Court : And the same was holden a good Return , for the Sheriff is bound to obey the Kings Writs , and to execute them , and he cannot compel the party to put in Sureties to appear here : And the truth was , That the party was brought before the Master of the Rolls , and he did discharge him . And per Curiam , the same is no offence in the Court ; but it was an ill act of the Master of the Rolls : For we oftentimes have persons here upon Habeas Corpus who are also arrested by Process out of the Exchequer , or of the Common Pleas , but we will not discharge them before they have found Sureties for their appearance , &c. and so the said Courts use to do reciprocally : and we cannot punish the Sheriff , for the Hebas Corpus was first returnable before the Latitat , but the party may have an action against the Sheriff , but we will speak with the Master of the Rolls , &c. and afterwards Baill was put in . But afterwards another Exception was taken to the Return : scil. a custodia nostra exoneratus fuit , which might be intended as to the Cause in the Chancery only , and not for the Cause here , for he hath not alledged , that he hath not alledged , That he was committed to any other in custody , and for that cause day was given to the Sheriff to amend his Return .

CCII. Upton and Wells Case . Trin. 31. Eliz. In the Kings Bench.

IN an Ejectione firmae by Upton against Wells , Iudgment was given for the Plaintiff , and upon the habere facias possessionem , The Sheriff retuned that in the Execution of the said Writ he took the Plaintiff with him , and came to the house recovered , and removed thereout a woman , and two children , which were all the persons which upon diligent search , he could find in the said house , and delivered to the Plaintiff peaceable possession to his thinking , and afterwards departed , and immediately after three other persons which were secretly lodged in the said house expulsed the Plaintiff again : 2 Len. 12 , 13. Latch . 165. upon notice of which he returned again to the said house to put the Plaintiff in full possession , but the other did resist him , so as without peril of his life , and of them that were with him in company he could not do it . And upon this Return the Court awarded a new Writ of execution , for that the same was no Execution of the first Writ , and also awarded an Attachment against the parties .

CCIII . Marsh and Astreys Case . Trin. 31 Eliz. In the Kings Bench.

1 Cro. 175. MArsh brought an Action upon the Case against Astrey , and declared , That he had procured a Writ of Entry sur disseisin against one A. and thereupon had a summons for Lands in London , and delivered the said Summons to Astrey being Vnder-Sheriff of the same County ; virtute cujus , the said Astrey summoned the said A. upon the Land , but notwithstanding that did not return the said Summons . Astrey pleaded Not guilty ; And it was tryed in London , where the action was brought for the Plaintiff ; and it was moved by Cook in arrest of Iudgment , That here is a mis-trial , for this issue ought to be tryed in the County where the Land is , because that the cause is local ; but the Exception was not allowed , for the action is well layed in London , and so the trial there also is good . Trial. Another Exception was moved because the action ought to be against the Sheriff himself , and not against the Vnder-Sheriff , for the Sheriff is the Officer to the Court , and all Returns are in his Name ; and I grant that an action for any falsity or deceit lyeth against the Vnder-Sheriff , as for embesseling , rasing of Writs , &c. but upon Non feasans , as the Case is here , the not Retorn of the Summons , it ought to be brought against the Sheriff himself . See 41 E. 3. 12. And if the Vnder-Sheriff take one in Execution , and suffereth him to escape , debt lyeth against the Sheriff himself . Another Exception was taken because the Declaration is that the said Astrey Intendens & machinans ipsum querent . in actione sua praedict. prosequend . impedire , &c. did not retorn the said Summons , but doth not say , tunc exist . Vnder-Sheriff . Snag , contrary , If a Baily Errant of the Sheriff , take one in Execution , and he suffer him to escape , an action lieth against the Baily himself . And that was agreed in the Case of a Baily of Middlesex , and Sir Richard Dyer Sheriff of Huntington , and his Vnder-Sheriff , who suffered a Prisoner to escape , & the action was brought against the Vnder-Sheriff ; for it may be the Sheriff himself had not notice of the matter , because the Writ was delivered to the Vnder-Sheriff , and he took a Fee for it , and therefore it is reason that he shall be punished . As if a Clerk in an Office mis-enter any thing , he himself shall be punished , and not the Master of the Office , because he takes a fee for it . But if the Retorn made by the Baily be insufficient , Then the Sheriff himself shall be amerced ; but in the principal case it is clear , That the action lieth against the Vnder-Sheriff if the party will , and such was the opinion of Gawdy and Clench : As to the other matter , because it is not alledged in the Declaration , That the Defendant was Vnder-Sheriff at the time , the Declaration is good enough notwithstanding that , for so are all the Presidents , and if the Defendant were not Vnder-Sheriff the same shall come in of the other side . See 21 E. 4. 23. And afterwards in the principal Case , Iudgment was given for the Plaintiff .

CCIV. Hedd and Chaloners Case . Trin. 31 Eliz. In the Common Pleas.

1 Cro. 176. 2 Roll. 42. 176. IN an Ejectione firmae by Hedd against Chaloner upon a Demise for years of Jane Berd , It was found by especial Verdict , That William Berd was seised in fee , & made a Feoffment to the use of himself for life , & afterward to the use of his two Daughters Joan & Alice in fee , and died , and Joan entred into the Land , and by Indenture by the name of Jane Berd , leased the same to the Plaintiff for three years . And it was further found ; That Joan intended in the Feoffment , and Jane who leased , are one and the same person . Wray , It hath been agreed here upon good advice and Conference with Grammarians , that Joan and Jane are but one Name . And Women because ( Joan ) seems to them a homely name , would not be called Joan but Jane : But admit that they were several Names , Then he and Gawdy were of opinion , it should not be good : But afterwards , it was said by Gawdy , That this action is not grounded meerly upon the Indenture , but upon the Demise , and that is the substance , and the Indenture is but to enforce it , sci . the lease , 44 E. 3. 42. Another matter was moved here , the remainder was limited to Joan and Alice in fee , by which they are Ioint Tenants , and then when one of them enters , the same vests the possession in them both ; Then by the demise of Joan a moyety passeth only to the Plaintiff . Wray , Here the Term is incurred , and the Plaintiff is to recover damages only , and no title at all is found for the Defendant , and so there is no cause but that Iudgment should be given for the Plaintiff ; and thereupon Iudgment was given for the Plaintiff .

CCV . Read and Nashes Case . Trin. 31. Eliz. In the Kings Bench.

IN an action of Trespass by Read and his Wife against Nash , for entring into a house called the Dayry-house ; upon Not guilty pleaded , The Iury found this special matter , Sir Richard Gresham Knight , was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will , and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life , the Remainder to the first son of the said Sir Thomas Gresham in tail , the Remainder to the second son , &c. the Remainder to the third son , &c. The Remainder to Sir John Gresham his brother ; Proviso , That if his Son go about or made any Alienations or discontinuance , &c. whereby the premisses cannot remain , descend and come , in the form as was appointed by the said Will , otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years , whereupon the old and accustomed Rent shall be reserved , That then such person shall forfeit his estate . Sir John Gresham dyed ; Sir Thomas Gresham his son built a new House upon the Land , and , 4 Mariae , leased to Bellingford for one and twenty years , rendring the antient Rent . And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands : and 5 Eliz. he made a Iointure to his Wife in this manner , sci . He covenanted with certain persons to stand seised to the use of himself , and his Wife for their lives , and afterwards to the use of his Right Heirs , and afterwards , 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently ( which was a year before the expiration of the said Lease made unto Bellingford ; ) which Lease being expired , Read entred . It was argued by Cook , That here , upon the words contained in the Proviso , Sir Thomas had power and authority , not being but Tenant for life , to make a Lease for years , or Iointure , and that upon implication of the Will , which ought to be taken & construed according to the intent of the parties ; for his meaning was to give a power , as well as an estate , otherwise the word ( otherwise ) should be void ; and it is to be observed , That the parties interessed in the said conveyance were Knights , and it is not very likely , That the said Sir Richard Gresham did intend , that they should keep the Lands in their own manurance as Husbandmen , but set the same to Farm for Rent . And it is great Reason , although he wille● that the order of his Inheritance should be preserved , yet to make a Provision for Iointure ; and it is great reason and cause to his family to enable and make them capable of great Matches , which should be a strengthning to his posterity , which could not be without great Iointures , wherefore I conceive it reasonable to construe it so , That here they have power to make Iointures for their Wives . It hath been said , That no grant can be taken by implication , as 12 E. 3. Tit. Avow . 77. Land was given to I. and A. his wife , and to the heirs of the body of I. begotten : and if I. & A. dy without heir of their bodies , betwixt them begotten , that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife , by implication being in a grant , but otherwise it is in Case of a devise , as 13 H. 7. 17. ( and there is no difference ) as some conceive ( when the devise is to the heir , and when to a stranger ) but these cases concern matter of Interest , but our case concerns an Authority : And admit that Sir Thomas hath power and authority to make this lease , Then we are to consider if the Iointure be good , for if it be , Then being made before the Lease , Use cannot rise out of a power . it shall take effect before , and the woman Iointress is found to be alive . But I conceive , That this Iointure is void , and then the Lease shall stand , for an use cannot rise out of a power , but may rise out of an estate of the Testator , and out of his Will , 19 H. 6. A man deviseth , That his Executors shall sell his reversion , and they sell by Word , it is a good Sale , for now the Reversion passeth by the Will . But an use cannot be raised out of an use , and a man cannot bargain , and sell Land to another use than of the Bargainee . And it is like unto the case of 10 E. 4 , 5. The disseisee doth release unto the disseisor rendring Rent , the render is void , for a rent cannot issue out of a right , so an use cannot be out of a Release by the disseisee , for such release to such purpose shall not enure as an Entry and Feoffment : Also here after that conveyance Sir Thomas hath built and erected a New house , and no new Rent is reserved upon it , and therefore here it is not the ancient Rent , for part of the sum is going out of the new house . But as to that , It was said by the Iustices , do not speak to that , for it appears that the Rent is well enough reserved . Another matter was moved for that , That a year before the Expiration of the Lease made to Billington , this Lease was made to Re●d for 21 years to begin presently from the date of it ; although by the same authority he cannot make Leases in Reversion , for then he might charge the Inheritance in infinitum . But yet such a Lease as here is he might make well enough , for this Lease is to begin presently , and so no charge to him in the Reversion , as in the Case betwixt Fox and Colliers , upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease , to begin presently , It was holden a good Lease to bind the Successor , for the Inheritance of the Bishop is not charged above one and twenty years in toto . But if a Bishop make a Lease for years , and afterwards makes a Lease for three lives , the same is not good , 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing , for twenty years , it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years , and after for eleven years , and yet the Statutes are in the Negative , but this power in our Case is in the Affirmative ; and the Inheritance is not charged in the whole with more than one and twenty years .

CCVI. Kinnersly and Smarts Case . Trin. 31 Eliz. In the Kings Bench.

〈◊〉 upon a usurious Contract . 1 Cro 155. IN Debt upon a Bond , The Plaintiff declared , That the Bond was made in London ; The Defendant pleaded , That an usurious Contract was made betwixt the parties at D. in Stafford-shire , & that the Obligation was made for the same contract . The Plaintiff by Replication saith , that the Bond was made bona fide , & non pro usura , and that Issue was tryed in the County of Stafford , and was found for the Plaintiff : And it was moved in arrest of Iudgment , that that Issue ought to be tryed in London , where the contract was made . Gawdy conceived , that the tryal is well , As 8 E. 3. 8. In debt upon an Obligation in London , the Defendant pleaded , that the Obligation was made by duresse at York , the same Issue shall be tryed at York . At another day the case was put more certain , scil. that the contract was made at W. in Stafford-shire , by which it was agreed , that for a Horse and two Tun of Iron , the Plaintiff should have for them and the forbearing of the mony for such a small time fifty pounds ; whereas in truth they were but of the value of forty pounds , Tryal . and that the said Bond was made for the payment of the said fifty pounds . Cook , The Issue is well tryed , for the ground of the matter is the usurious contract , and those of Stafford-shire may better know it than they of London . And according to this Tryal it hath been before adjudged . H. 28. Eliz. rot. 209. Betwixt Sybthorpe and Turner . And P. 31. Eliz. rot. 303. betwixt Payne and Wilkenson , where the Issue was , absque hoc , that it was a corrupt agreement , but the pleading was , ut supra . And afterwards Iudgment was given for the Plaintiff .

CCVII. The Queen and Buckberds Case . Trin. 36 Eliz. In the Kings Bench.

THe Queen recovered against Buckberd in a Quare Impedit ; Quare Impedit . 1 Cro. 162. and thereupon a Writ of Error was brought , and it was assigned for Error , that the Queen , post tempus semestre , had Iudgment to recover damages for the value of the Church for half a year . Cook , The same is no Error , as it was adjudged , 7 Eliz. 236. See also 34 H. 6. 51. And these damages are not as damages , but as a penalty inflicted upon the disturbance . See Book of Entries , 483. The King in a Quare Impedit counted to his damage of forty pounds , and 484. 1000 li. and although , tempus semestre transierit , yet the King shall recover damages , but the value of the Church for half a year , for the King at all times may present in his own right ; for nullum tempus occurrit Regi . Damages in a Quare Impedit where by King , & e contra . At another day it was moved by Fenner Serjeant , and he conceived , that here the Queen is not to recover damages , for she doth not present in her own right , for the Incumbent had two Benefices without Qualifications , & therefore the first was void , and the Lapse encurred , and therefore the Queen did present in the right of the Crown , and so is not verus Patronus . 14 E. 3. Quare Impedit 54. The King shall not recover damages , although he count of damages , 3 H. 6. Damages 17. And as to the case of 7 Eliz. it doth not appear there , that the King did present by reason of his Prerogative , & he shewed divers Presidents , that the King shall not recover damages in such case . P. 7. H. 5. rot. 402. 2 H. 6. rot. 316. For the Statute was intended to give damages to the very Patron , and not otherwise . Cook , Where the King presents by Lapse he is verus Patronus hac vice , as Grantee of the next Avoidance : Vide T.E. 1. Quare Impedit 181. The King recovered damages in the case of a Prior. Godfrey said , he had searched the Roll of 7 Eliz. and there is more reported in the Book than is in the Roll , for Iudgment is given for the Presentee , but as for the damages , the Court would advise of it . Gawdy , It is clear , that the Queen shall not recover double damages , Where only single damages . for she cannot lose her presentment , quia nullum tempus occurrit , and because eo quod tempus semestre transierit , but she shall have single damages , for they are given for the wrong and disturbance , and not for the presentment ; and therefore the damages are well awarded . Wray , If the King be not within one part of the Statute ( as it is agreed as to the double damages ) it is hard that he be within the other branch .

Popham Attorney general , The Queen ought to recover damages , but only single damages , but not double damages ; and the words of the Statute are general , therefore the Queen shall have the benefit of it , and of all Statutes made for the benefit of the Subjects , the King shall take advantage : The Statute of Gloucester gives damages in a Writ of Cosinage , Ai● and Besail , and the King brings an Action upon the seisin of his Ancestors , he shall recover damages , and in construction of Statutes , the opinions of them which were next to the making of them is to be much respected : Vide 19 E. 2. Rot. 90 , 19 E. 1. Rot. 255 , 231 , 136. And always the King counts to his damage , &c. and that should be in vain , if he should not recover damages : And as to the Presidents shewed to the contrary , that was the default of those Clerks which the King had presented ; and when in a Quare Impedit the King had prevailed , they contented themselves with the Incumbency without regard of the damages : But if damages be not to be given , yet the Iudgment to recover the presentment is not erronious . And the Iudgment only as to the giving of damages shall be reversed , and the Defendant in the Quare Impedit here shall not assign the same for Error , because no damages are given , 5 Co. 58. for it is for his advantage . And always where it is found for the Queen in a Quare Impedit , they enquire of the value of the Church , A man shall not assign for error , that which is for his advantage . which should be a trivolous thing , if the Queen should not recover damages . Gawdy , Of things transitorie the Queen may be disturbed , and if she be , wherefore shall she not recover damages ? but the doubt is , if the intent of the Statute be , if the party shall have single damages in any case : And here in this case the Iudgment is one and entire , and if it be reversed in part it shall be reversed in the whole ; as in Dower , the Tenant pleads , that he is always ready , &c. the Demandant shall have Iudgment to recover her Dower , and a Writ shall issue forth to enquire of the damages . And see also 17 E. 3. In an Assize of Darrein presentment , the Plaintiff had Iudgment to have a Writ to the Bishop : And the Assize was taken after for the damages : And in the mean time the Defendant brought a Writ of Error , and it was holden maintainable , for they are several Iudgments ; but it is not so here , for the Entry is , Quod querens habeat bre. Episcopo , & quia nescitur quae damna , &c. for it is one Iudgment .

Wray , It is but one Statute , and therefore it shall be construed with one construction , and it should be a strange construction , that the King should be within one part of the Statute , and out of the other . And 34 H. 6. 3. The Kings Attorney could not have damages , which is a great proof and authority , that the Iudgment for damages in such case is Error : The experience and usage of Law is sufficient to interpret the same to us , and from the time of E. 3. until now , no damages have been given in such case . Thrice this matter hath been in question , 1. 3 H. 9. and the Iustices there would not give damages , 34 H. 6. there the Councel learned of the King , could not have damages for the King. And 7 Eliz. there was no damages : And whereas it hath been said , that a man shall not have a Writ of Error , where Iudgment is given for his benefit , that if Iudgment be entred that the Defendant be in Misericordia , where it ought to be , Capiatur , yet the Defendant shall have a Writ of Error . And he conceived also , that here is but one Iudgment : Clench , The first President after the making of that Statute was , that damages were given for the King in such case ; but afterwards the practice was always otherwise , & that the said Statute could not be construed , to give in such case damages , & the reason was because the Iustices took the Law to be otherwise : And the King is not within the Statute of 32 H. 8. of buying of Tythes , nor any Subjects who buy any title of him : And here in our case , the Queen is not verus Patronus but hath this presentment , by Prerogative : And if title do accrue to the Bishop to present for Lapse , yet the Patron is verus Patronus .

At another day the case was moved , and it was said by Wray , that he had conferred with Anderson , Manwood , and Periam , who held , that the Queen could not have damages in this case , but Periam somewhat doubted of it . Gawdy , In 22 E. 4. 46. In Dower the Demandant recovered her Dower , and damages by verdict , and afterwards for the damages the Iudgment was reversed , and stood for the Lands . Clench , It shall be reversed for all , for there is but one Iudgment . And afterwards Iudgment was given , and that the Queen should have a Writ to the Bishop and damages . Popham , The Court ought not to proceed to the examination of the Errors , without a Petition to the Queen , and that was the case of one Mordant , where an Infant levyed a Fine to the Queen , and thereupon brought a Writ of Error , and afterwards by the Resolution of all the Iudges , the proceedings thereupon were stayed . See 10 H. 4. 148. a good case .

CCVIII . Chapman and Hursts Case . Trin. 31 Eliz. In the Kings Bench.

BEtwixt Chapman and Hurst , Tythes . the Defendant did libel in the spiritual Court , for Tythes against the Plaintiff , who came and surmised , that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish , that the now Defendant being Farmor of the Rectory there : The Defendant , in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum , during the Term , for his Tythes , he promised , that the Plaintiff should hold his said Land without Tythes , and without any sute for the same , and thereupon prayed a Prohibition : And by Gawdy ; the same is a good discharge of the Tythes for the time , and a good Composition to have a Prohibition upon ; and it is not like unto a Covenant . See 8 E. 4. 14. by Danby .

CCIX. Kirdler and Leversages Case . Trin. 31 Eliz. In the Common Pleas.

IN Avowry the case was , Avowry . 1 Cro. 241. that A. seised of Lands leased the same at Will , rendring rent ten pounds per annum , and afterwards granted eundem redditum , by another deed to a stranger for life , and afterwards the lease at will is determined . Periam was of opinion , that the Rent did continue ; and although that the words be , eundem redditum , yet it is not to be intended , eundem numero , sed eundem specie , so as he shall have such a Rent , scil. ten pounds per annum : As where the King grants to such a Town , easdem libertates quas Civitas Chester habet , it shall be intended such Liberties , and not the same Liberties , so in the principal case : Also he held , that a Rent at will cannot be granted for life , and therefore it shall not be meant the same Rent : But it was afterwards adjudged , that the Rent was well granted for the life of the Grantee .

CCX . Heayes and Alleyns Case . Trin. 31 Eliz. In the Common Pleas.

Cui in vita . 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn . And the case was this , The Discontinuee of a Messuage , had other Lands of good and indefesible title adjoining to it , and demolisht and abated the said house , and built another which was larger , so as part of it extended upon his own Land , to which he had good title . And afterwards the heir brought a sur cui in vita , and demanded the house by the Name of a Messuage , whereas part of the house did extend into the Land to which he had no right . And by Periam , The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant , Demand , and the manner of it , in a writ . as demand of a Messuage except a Chamber : And it was argued by Yelverton , That the Writ ought to abate , for if the Demandant shall have Iudgment according to his Writ , then it shall be entred quod petens recuperet Messuagium , which should be Erronious , for it appeareth by the verdict it self , that the demandant hath not title to part of it ; and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land , containing 10 Feet . 16 E. 3. Br. Mortdanc . of a piece of Land containing so much in breadth , and so much in length . And the moyetie of two parts of a Messuage , and 33 E. 3. br. Entrie 8. a Disseisor of a Marsh ground made Meadow of it ; Now in a Writ of Entry it shall be demanded for Meadow . Drue Serjeant contrary , and he confessed the Cases put before , and that every thing shall be demanded by Writ in such sort , as it is at the time of the action brought : as a Writ of Dower is brought of two Mills , whereas during the Coverture they were but 2 Tofts ; but at the day of the Writ brought , Mills ; and therefore shall be demanded by the name of Mills , 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly , part of a Msseuage may be demanded by the Name of a Messuage : and if a House descend to two Coparceners , if they make partition that one of them shall have the upper Chamber , and the other the lower , here if they be disseised , they shall have several Assisses , and each of them shall make his plaint of a Messuage ; and by him a Chamber may be demanded by the name of a house . And afterwards the Writ was awarded good , but a special Iudgment was given , ita quod querens recuperet Messuagium praedict. viz. so many feet in length , and so many in breadth , according to that which was found by the Verdict .

CCXI. Degory and Roes Case . Trin. 31 Eliz. In the Common Pleas.

Debt . DEgory brought Debt upon an Obligation against Roe , as heir to his Ancestor , The defendant pleaded , That his Ancestor by his deed did covenant with Sir W. Winter , and A. Marsh , to stand seised to the use of himself for life , and afterwards to the use of the Defendant and his heirs , and so he had nothing by descent . The Plaintiff replicando said , non convenit ; and it was found by special verdict That such a deed of Covenant was made by the Ancestor of the Defendant , but the first use was limited to the Covenantor and his wife , for their Lives , &c. And that he delivered the same to I. S. as his deed , to the use of the said Sir W. Winter , and the said Marsh , if the said Sir W. Winter would agree to the same , and take the charge of it upon him , and if he will not agree , That then it should not be his deed , and further found , That Sir W. Winter died before any agreement ; and it was moved by Periam , If the same be presently the Deed of the Ancestor , or if it do not take effect till the condition be performed , sci . until Sir W. Winter hath agreed to it . See 14. H. 8. 17 , 18 , 19 , 20 , 23. And by Walmesly , Deeds , when to take effect . The same is not the Deed of the Ancestor until Sir William hath agreed ; But by Anderson and Periam , although Sir William Winter doth not agree to it , yet it is the deed of Roe ; for although a deed be upon condition , ut supra , yet because he delivered it as his deed , and the Condition is subsequent to it , It shall be taken for his deed , and the condition after shall be void , because repugnant : For although that in Estates limited to men , the estate may be precedent , and the condition subsequent , & the not performance of the condition may destroy the estate , for the estate is always subject to the condition , yet it is not so in Deeds , for being once the deed of the party , it can never cease to be his deed , after it is once delivered as his deed , Owen , Although the same be the deed of the party , yet it is not well pleaded ; & he conceived the issue is found against him , for the Covenant is pleaded , to stand seised unto the use of himself for life , the Remainder over : To which the Plaintiff Replicando saith , non convenit , so as the Issue is , if any such Deed of Covenant was , and the Iury find , That the Covenant was to stand seised to the use of himself , and his wife , &c. so as it is not such a Deed as the Defendant hath pleaded , for other estates are limitted by it , and therefore it shall not be intended the same Deed. Periam , The same is not material , for the substance of the Plea is , Nothing by descent , &c. and it was adjourned .

CCXII. The Scholars of All-souls in Oxford , and Tamworths Case . Trin. 31 Eliz. In the Common Pleas.

IN a Writ of Night by the Colledge of All-souls in Oxford against Tamworth : Writ of Right 1 Cro. 232. the Writ was , Quod clamat tenere de nobis in liberam puram et perpetuam Elemosinam . And exeception was taken to it , because it ought to be in liberam Eleemosinam , sans pura & perpetua , also it ought to be Eleemosina , with a Double e , and not Elemosina , with a single e , but the exception was not allowed . For as to the first Exception , it is but surplusage , and as to the other , It is the common course . Another exception was taken to the Writ , because the words are quod clamat esse jus & haereditatem suam , without saying in jure Collegii . Anderson , The Writ is good enough . If a Parson plead that he is seised , he shall say in jure Ecclesiae , for he hath two capacities , and without such words here shall be intended seised in his own Right : But if an Abbot plead that he was seised , there needs not such words , for he hath no other capacity ; so of Dean and Chapter , Mayor and Comminalty : And afterwards , the Writ was awarded good , and that the Tenant should answer over , &c. See Book Entries 236 , 237. It was also moved , If the Colledge shall count of its seisin within 30 years , because that the Corporation never dies , and then if he count of its own possession , the same is without limitation . And it was holden , that if the Guardian of the Colledge which now is , was ever seised , he ought to count upon a seisin within thirty years ; But upon the seisin of his Predecessor he ought to count of a seisin within 60 years as another common person ; for the change of the Teste of such a seisin , is as the dying seised , and descent of a common person .

CCXIII. The Lord Buckhurst and the Bishop of Winchesters Case . Trin. 31 Eliz. In Communi Banco .

Quare Impedit . THe Lord Buckhurst brought a Quare Impedit against the Bishop of Winc. and counted , that he was seised of the Manor of D. to which the Advowson was appendant , and that the said Church became void , and that he presented Maurice Sackvil his Clark. The Defendant pleaded , that he was seised of the said Advowson , as in gross , and presented one Maurice Sackvil , absque hoc , that the Advowson was appendant . It was moved , that the Defendant ought to traverse the Presentment , and not the Appendancy , especially as the cause is here , where they both present one and the same person : To which it was said , that that doth not appear , for the Defendant hath pleaded , that he presented Maurice Sackvil , but doth not say , praedict , Maurice Sackvil , so as it may be he is not the same person , but another . See 10 H. 7. 27. The Traverse is well taken ; contrary where the Plaintiff declares of an Advowson in gross , and that he to the same presented , and the Defendant pleadeth , that he is seised of such a Manor to which the Advowson is appendant , &c. without that , that the Advowson is in gross , there he shall traverse the presentment , for the presentment shall make it in gross . See 13 H. 8. 12.

CCXIV. Jennings and Winches Case . Trin. 32 Eliz. In the Common Pleas.

Assumpsit . IN an Action upon the Case by Jennings against Winch. The Plaintiff declared upon an Assumpsit by the Defendant , 1 Maii. 32. Eliz. and counted upon a Mutuatus for twenty shillings , and an Indebitatus for four pounds . The Defendant pleaded , that he being endebted to the Plaintiff in five pounds , and W. S. in another five pounds , they became bounden to the Plaintiff in twenty pounds for the payment of ten pounds in satisfaction of the said sum of five pounds , and five pounds , and that the Obligation was sealed before the day of the Assumpsit supposed , and added , that the same is the same debt , and that the Obligation was made for the same debt . And by the opinion of the whole Court , the same cannot be a good plea , for an Obligation cannot deraign a Contract or an Assumpsit afterwards made . And the truth of the matter was , that the Obligation was made after the Assumpsit , although that the Plaintiff declared of an Assumpsit made after . And in that case it was holden , that the Defendant might plead the special matter ; that the Obligation was made after the said Assumpsit , absque hoc , that he Assumpsit , &c.

CCXV . Hawkins and Lawse Case . Trin. 32 Eliz. In the Common Pleas.

Debt . HAwkins brought an Action of Debt against Lawse , Executor of one A. for Rent reserved upon a Lease for years made to the Testator . 3 Cro. 62 , 63. The Defendant pleaded , fully administred , and upon the Evidence it appeared , that the said A. made the Defendant his Executor , and that he did meddle with the possession of divers goods of the Testaor , and so administred , and afterwards ●●●used in Court ; and that the Administration was afterwards committed to one B. and that the Inventory of the goods of the Testator came to one thousand pounds : And it was given in Evidence for the Defendant , that he himself had paid certain debts , and that divers persons have recovered against the Administrator divers sums of money amounting to one thousand pounds , & ultra ; And it was moved , if that evidence did maintain the Issue for the Defendant , because that the Defendant had pleaded , plene adminstravit , which implies an Administration by himself . And now upon the Evidence it appeareth , that the greatest part of the goods of the Testator were administred by the Administrator .

Periam , If that Administrator ( who in truth is but a stranger ) pay any debts with the goods of the Testator without commandment of the Executor , the same is not an Administration , Administration . and the Executor cannot give such matter in Evidence , to prove his plea of fully administred . Drew Serjeant , If an Executor of his own wrong , 3 Cro. 62 , 63. meddle with the goods of the Testator , and afterwards the Administrator meddle with the residue and administer them ; In Debt against the Executor , who pleads fully administred , if he can prove that he himself hath administred part , and the Administrator the Residue , the same is good Evidence to maintain his Issue . Periam , It may be so there , but here in our case , the Defendant is the very Executor , and he hath administred , in which case afterwards he cannot refuse ; and so the Administration is not well committed , and is granted without cause ; and he to whom the Administration is committed is a meer stranger , and what he did was without warrant ; and therefore it is no Administration to prove the Issue : And then the whole matter by direction of the Court was found by special verdict . And by Periam , in this case an Action may be brought , either against the Executor of his own wrong , or the Administrator , but not against both of them joyntly . See 21 H. 6. 8. by Yelverton and Portington . Periam , If the Testator mortgages a Lease for years and dyes , and the Executors redeem it with their own monyes , the said Lease shall be Assets in their hands , for so much as the same is worth , above the sum which they have paid for the redemption of it .

CCXVI . Ivory and Fryes Case . Trin. 32 Eliz. In the Common Pleas.

IT was ruled by the whole Court in this case : That if A. make B. his Executor , and B. makes C. his Executor and dieth , and a Debt is due to A. the first Testator . If C. bring an Action of Debt for the said Debt , as Executor to B. the Writ shall abate : It was moved , if an Infant within the age of one and twenty years be made Executor , and administration is committed , durante minore aetate , in whose name the Action shall be brought , in the name of the Infant , or the Administrator . Periam , If the Will be proved before the Administration be committed , the Action shall be brought in the name of the Infant Executor .

CCXVII . Read and Johnsons Case . Trin. 32 Eliz. In the Common Pleas.

IN an Action upon the Case betwixt Read and Johnson , Assumpsit . the Plaintiff declared that where the Defendant was endebted to him , 1 Cro. 242. he assumed to pay it : And upon Non Assumpsit pleaded , this special matter was found , that the Plaintiff ●ased unto the Defendant certain Lands for years , rendring rent eight pounds per annum , and that the said Rent was behind for three years , and that the Defendant was not otherwise endebted to the Plaintiff , nor made any other promise but the contract upon the Reservation of the Rent : And by the clear opinion of the whole Court , the Action doth not lye , because he hath a proper Action , scil. an Action of Debt , in which no wager of Law lyeth .

CCXVIII . Wright and the Bishop of Norwiches Case . Trin. 32 Eliz. In the Common Pleas

Quare Impedit . Dy. 348. 360. IN a Quare Impedit betwixt Wright and the Bishop of Norwich , it was moved , if the King hath title to present for Lapse , and presents ; and his Clerk is admitted and instituted , but not inducted , and dyeth before Induction ; If now the King shall present for the said Lapse , because the Church was not full against the King. And the Iustices were all clear of opinion , that the King might repeal such presentment before induction : And as to the principal matter , the Court seemed to incline , that the King might present again .

CCXIX. Whiskon and Cleytons Case . Mich. 30 & 31 Eliz. In the Common Pleas. Intrat . Trin. 30 Eliz. Rot. 1160.

Devises . IN an Ejectione firmae , upon a special verdict found , the case was this , That C. was seised in Fee , and devised the same to Solomon Whiskon his God-son after the death of his Wife ; and if he fail , then he willed all his part to the discretion of his Father , and died ; Solomon survived , Post . 283. the Father being dead before without any disposition of the Land . Gawdy was of opinion , that upon those words , that the Father had a Fee-simple , as , I will that my Lands shall be at the disposition of I. S. by these words , I. S. hath a Fee-simple , quod Periam concessit ; and they amount to as much as , I will my Land to I. S. to give and sell at his pleasure : And by Windham and Periam , there is no difference where the Devise is , that I. S. shall do with the Land at his discretion , and the devise thereof to I. S. to do with it at his discretion .

CCXX . Mich. 31 Eliz. In the Common Pleas.

A leased to B. for years , and before the expiration of the said Term leased the same by Indenture to a stranger to begin presently , and the first Lessee committed Wast . A. brought an Action of Wast against the second Lessee , and declared upon a Lease made for years without speaking of the Indenture . And Gawdy Serjeant demanded the opinion of the Court , if the Defendant might safely plead no Wast ? And they conceived , that it should be dangerous so to do . Then it was demanded , if the Defendant plead , that the Plaintiff had nothing tempore dimissionis , whereof he had counted , if the Plaintiff might estop the Defendant by the Indenture , although he had not counted upon it , and if such Replication be not a departure . And it seemed to Periam , and Leonard , Custos brevium , that it was not , for it is not contrary to the Declaration , but rather doth enforce the Declaration .

CCXXI . Mich. 31 Eliz. In the Common Pleas.

WAlmesley Serjeant demanded the opinion of the Court upon this matter . Land is given to Husband and Wife in special tail ( during the Coverture ) they have issue , the Husband is attainted of Treason and dieth , the Wife continues in as Tenant in tail , the issue is restored by Parliament , and made inheritable to his Father , saving unto the King all advantages which were devolded unto him by the Attainder of his Father , the Wife dieth . And he conceived , that the issue was inheritable , for the Attainder which disturbed the inheritance is removed , and the blood is restored , and nothing can accrue to the King , for the Father had not any estate forfeitable , but all the estate did survive to the Wife , not impeachable by the said Attainder . And when the Wife dieth , then is the Issue capable to enherit the estate tail . Windham and Rhodes , prima facie , thought the contrary , yet they agreed , that if the Wife had suffered a common Recovery , the s●me had bound the King.

CCXXII . Mich. 31 Eliz. In the Common Pleas.

IN an Action upon the Case the Plaintiff declared , Assumpsit . that he had delivered to the Defendant , diversa bona ad valentiam 10 li. the Defendant in consideration thereof did promise to pay to the Plaintiff the Debt owing , pro bonis praedictis , and did not shew , that the Defendant bought the said goods of the Plaintiff , and so it doth not appear that there was any Debt ; and then a promise to pay it , is meerly void , which was agreed by the whole Court.

CCXXIII. Seaman and Brownings Case . Mich. 31 Eliz. In the Common Pleas.

GEorge Seaman brought Debt upon a Bond against W. Browning and others , Executors of one Marshal ; the condition was , Debt . that where the said Marshal had sold certain Lands to the Plaintiff , if the said Plaintiff peaceably and quietly enjoy the said Lands against the said Marshal , &c. and assigned the breach in this , that the said Marshal had entred upon him , and cut down five Elms there , upon which the parties were at issue ; And it was found , that A. servant of the said Marshal , by commandment of his said Master , had entred and cut , &c. in the presence of his said Master , and by his commandment , for he is a principal Trespassor : And it was so holden by the Court.

CCXXIV. Mich. 31 Eliz. In the Common Pleas.

IF the Kings Tenant by Knights service dieth , his Heir within age , 8 Co. 172. and upon Office found the King seiseth the Body and Land , yet the Heir during the possession of the King may sell the Lands by Deed enrolled , or make a Lease of such Land , and the same shall bind the Heir notwithstanding the possession of the King ; but if he maketh a Feoffment in Fee , it is utterly void , for the same is an intrusion upon the possession of the King ; but where the King by Office found is entituled to the Inheritance , as that his Tenant dieth without Heir , whereas it is false , for which the King seiseth , in such case the Tenant of the King , before his Ouster le mayne , cannot make a Lease for years , or sell the Land by Deed enrolled : The Case depended in London before the Iudges of the Sheriffs Court. The King , by colour of a false Office , which doth falsly entitle him to the Inheritance , is seised of certain Land ; he who hath right , leased the same for years by Deed indented ; and then an Ouster le mayne was sued , and he enfeoffed a stranger ; And it was holden , that the Lease should not bind the Feoffee , although it was by Deed indented , for the Feoffee is a stranger to the Indenture , and therefore shall not be estopped by it . 18 H. 6. 22. A stranger shall not take advantage of an Estoppel , and therefore shall not be bound by it : As if one take a Lease for years by Indenture of his own Lands , the same shall bind him , but if he dieth without Heir , it shall not bind the Lord in point of Escheat .

CCXXV. Gibbs Case . Mich. 31 Eliz. In the Common Pleas.

Trover and Conversion . 1 Cro. 861. Owen . 27. GIbbs brought an Action upon the Case upon Trover and Conversion of a Gelding ; and the Case was , that one P. had stolen the said Horse , and sold the same unto the Defendant in open Market , by the name of Lister , and the said false name was entred in the Toll-book . And it was holden clear by the Court , that by that sale the property was not altered .

CCXXVI . Mich. 31 Eliz. In the Common Pleas.

Owen . 45. Hutton . 105. 1 Cro. 734. Post . 322. TEnant in Socage leased his Lands for four years , and died , his Heir within the age of eight years , the Mother being Guardian in Socage , leased the Land by Indenture to the same Lessee for fourteen years ; It was holden by the Court , that in this Case the first lease is surrendred , but otherwise upon a Lease made by Guardian by Nurture .

CCXXVII . Kimpton and Dawbenets Case . Mich. 31 Eliz. In the Common Pleas.

IN Trespass , the Defendant did justifie by a grant of the Land , where , &c. by Copy : The Plaintiff by Replication saith , that the Land is customary Land ( ut supra ) and claimed the same by a former Copy : The Defendant by Rejoynder saith , that well and true it is , that the Lord may grant Copies in possession at his pleasure , and also estates by Copy in Reversion , with the assent of the Copy-holder in possession , but all estates granted by Copy in Reversion without such assent , have been void . It was argued , that this custom is not good , for it is not reason , that the Lord in disposing of the customary possessions of his Manor should depend upon the will of his Tenant at will ; and the same is not like to the case of Attornment , for there the Attendancy is to be respited , which is not to be done here , for the Copy-holder in possession shall continue attendant to his Lord , notwithstanding such a grant in Reversion : And see for the unreasonableness of the custom , 19 Eliz. 357. in Dyer , Sallfords Case : It was moved on the other side , that the Custom was good enough ; and 3 H. 6. 45. was vouched , That every Freehold of a Manour upon alienation might surrender his Land , &c. It was adjourned .

CCXXVIII . Marriot and Pascalls Case in a Writ of Error . Mich. 30 , & 31 Eliz. In the Exchequer-chamber .

RObert Marriot one of the Attorneys of the Court of Exchequer , Misnosmer of a Corporation . 10 Co. 123. brought an Ejectione firmae against Mary , Pascal , and upon Not guilty pleaded , the Iury found a special Verdict , containing this matter ; viz. That King H. 7. the fourth year of his Reign erected and founded an Hospital , by the name of the Master and Chaplains of the Hospital of King Henry the eighth , de le Savoy : And afterwards in the time of Queen Mary , the said Master and Chaplains being seised , &c. leased the same to the Defendant by the name of W. Holgil Master of the Hospital , Henrici nuper Regis Angliae septimi vocat . le Savoy & Capellani Hosspitalis praedict. And afterwards by the former name ( which was in truth their very name ) leased the same to Thomas Fanshaw , who leased the same to the Plaintiff : And if the Lease aforesaid made unto the Defendant in ●●rm and by the name aforesaid , be a good Lease , was all the question . And this matter was argued , and many times debated in the Exchequer , as well at the Bench as at the Bar. And it was agreed by Clerk and Gent , Barons there , That the said Lease made to the Defendant was utterly void by reason of the Misnosmer . Manwood argued strongly to the contrary ; and Iudment was given for the Plaintiff , according to the opinions of the said two Barons : Vpon which the Defendant brought a Writ of Error in the Exchequer-chamber before the Lord Chancellor , Treasurer , &c. And now this Term it was argued by Godfrey on the part of the Defendant : Three variances have been supposed in this Lease from the Original Foundation of the Hospital in the name of it . 1. The name of the Foundation is the Master of the Hospital , &c. Et Capellani dict. Hospitii ; So that in the Lease rests part of the name ( Capellani ) as not immediately annexed to Master , as it is in the name of the Foundation . But as to that point , the Iustices Assistants delivered Godfrey from the arguing of it , as of a variance not material : Another variance hath been objected , because that in the Foundation the words are Hospitalis Regis H. 7. and in the Lease the words are , Hospitalis Henrici septimi nuper Regis Angliae , so as this word ( Nuper ) is Surplusage , and ex abundant . But of that matter he was also discharged , because it is no variance in substance : But all the difficulty rested in this , that in the Foundation the words are ( de le Savoy ) and in the Lease ( vocat . le Savoy ) And he put the Case 4 Mar. Dyer 150. The Colledge of Eaton was incorporated by the name of Praepositi & Collegii regalis S. Mariae de Eaton juxta Windsor , and a Lease is made by the name Praepositi & Sociorum Collegii regalis de Eaton , and that was holden a void Lease : And I confess that in the names of Corporations , we ought to resort to the Foundation of the Corporations , for the name of a Corporation is as a name of Baptism , & ought to be as precisely observed , but that ought to be intended in matter of substance , & not otherwise , vide 10 Eliz. Dyer 278. The Dean & Chapter of Carlile was incorporated by the name of Decanus & Capitul . Ecclesiae Cathedralis Sanct. & individuae Tri. Carl. and they make a Lease by the name , Decanus Ecclesiae Cathedralis S. Trin. in Cant. et totum Capit. de Ecclesia praedict. And the same was holden a good Lease , notwithstanding that variance , which is not in substance of the name . And the Dean and Chapter of Peterborow was incorporated by the name of Decanus et Capitul . Ecclesiae Petriburgensis , and they made a Lease by the name Decanus et Capitulum Ecclesiae de Peterborow , and holden good enough , because the variance was not in any matter of substance : And he cited the Case betwixt Croft and Howel , 20 Eliz. Plow . Com. 537. The Cooks of London were incorporated by the name of Masters , and Governors , and Commonalty of the Mistery of Cooks , and they by the Name of Master and Wardens of the said Craft and Mistery of Cooks made a Conveyance , and it was holden that the variance assigned in the abundance of this word ( Craft ) in the Conveyance , which was not in this Corporation , was not any material variance , but only matter of surplusage , for ( Craft ) and ( Mystery ) are all one , and of one sense , &c. And so in the principal Case , The Hospital de le Savoy , and the Hospital vocat . le Savoy , sound the same , and in effect do not differ . And as it was said by the Lord Chief Baron in his Argument in the Court of Exchequer , in this case , four things are only to be respected in the Name of a Corporation : Post . 162 , 164. First the Name of the living persons who are the Corporation , as in our Case the Master and Chaplains : Secondly , the house in which they are resident , and make their aboad : Thirdly , The Name of the Founder : Fourthly , the place upon which the place of their aboad is built and erected . And if these four matters are sufficiently set down , although not formally , it is good enough . It hath been objected , That the Hospital de le Savoy , and the Hospital vocat . le Savoy , do much differ , for de le Savoy , implieth the demonstration of the Place , but vocat . le Savoy , trencheth only to the Name , As if the Dean & Chap. de Pauls in London , make a Lease by the Name of Dean and Chap. of St. Paul vocat . London , so if the Master and Fellows of Trinity Colledge ; in Cambridge make a Lease by the Name of Master & Fellows of Trinity Coll. vocat . Cambridge , such Leases are utterly void . I do well agree those Cases , for the Dean and Chapter is not all London , but part of London , and therefore cannot be called or said London ; and so Trinity Colledge is but part of Cambridge , and therefore cannot be called Cambridge ; but here in our case , The Hospital is not parcel of the Savoy , but the whole Savoy is the Hospital , and there is not any part of the Savoy , which is not the Hospital ; But if Trinity Colledge in Cambridge make a Lease by the Name of Master and Fellows Collegii vocat . Trinity Colledge in Cambridge , it is a good Lease : And he put a difference , where the word in the Name of the Corporation , which precedes ( de ) is all one and of the same Nature with the word which follows ( de ) and where on the contrary , as in our case , The word which precedes ( de ) is Hospital , and the words which follow ( de ) are le Savoy , are all one and the same thing , so as the Hospital and Savoy are all one and the same , and therefore may be well called Le Savoy , and also ( de ) and ( vocat . ) in construction are the same , & so our Lease is good enough : And it is found by verdict , That this Hospital was erected upon the Manor of Savoy , and thereupon it is now commonly called Le Savoy , without any addition of Hospital , for as it was called Savoy before it was erected into an Hospital , so it is also called after the Erection ; and true it is that the misnaming of a Corporation in any small thing shall abate a Writ , for there is only delay , yet it is not of force in a Conveyance , unless the misnaming be in a point material . Coke to the contrary , The variance from the true Name of a Corporation which shall prejudice a Conveyance ought to be in matter of substance , for variance in matter of form and circumstance will not hurt it , sed parum differunt quae re concordant . And first it is to be confessed , That the Name of a Corporation is as the Name of Baptism , which admits of no variance , and therefore it is said 38 E. 3. 15. by Knivet , when a Man founds a Chantry or a house , &c. it ought to bear such a Name as his Founder hath given to it , for that is its proper name . And so it hath been Reported by Bendloes , Serjeant , 4 and 5 Phi. and Mar. That it was holden for a positive Law , by all the Iudges of England , That the mistaking of the Name of a Corporation in any matter of Substance , makes the Conveyance utterly void , for a name is given to a Corporation upon the Foundation , and that by the same Name they shall implead and be impleaded , but that ut idem nomen , et sub eodem nomine sint habiles ad perquirend . & concedend . to be impleaded , and to implead , but that is to be meant idem re , for it is not necessary , that it be idem litera , for , qui haeret in litera haeret in Cortice , but if it be idem re with the Foundation it is well enough . And therefore it hath been adjudged , That where the Colledge is incorporated by the Name of Masters and Fellows Collegii St. & individ . Trin. in Cantabrig . and they make a Lease by the Name of Collegii Trin. this is good enough , for the word Trinity , implies , and imports St. & individ . And therefore such variance was holden not material . But here in our case is a variance in Substance , betwixt the Name given to the Hospital upon the foundation , and the name usurped in the Lease . And the same will clearly appear upon my Argument , viz. If the Name given to this Hospital upon the foundation of it , and the Name usurped in the Lease be not unum in sensu ( not in your private understanding as private persons , but in your judicial knowledge upon the Record quod coram vobis residet , as Iudges of Record ) then this lease is void ; For although you as private persons , otherwise than by Record , know , That the Hospital of Savoy , and the Hospital vocat . le Savoy , are all one Hospital ; you ought not upon that your private knowledge to give Iudgment , unless also your judicial knowledge agree with it ; that is , the knowledge which is out of the Records which you have before you : But if the Name given upon the Foundation , and the usurped Name be not idem sensu in your Iudicial knowledge ; and you cannot otherwise conceive the Identity of these two Hospitals , nor make any Construction to imagine it but by the Record , for the Record is your eye of Iustice , and you have no other eye to look unto the cause depending before you , but the Record ; and to this purpose he cited the case of 7 H. 4. 108. Where a man killed another in the presence of a Iudge traveling on the way where the murther was , And at the next Assises in the said County before the same Iudge , another man is indicted of the same murder , and arraigned , and convicted by verdict ; In that case , The Iudge he ought not to carry himself according to his private knowledge , which he hath of the said fact , sci . to acquit the Prisoner , but all that he can do is to respite Iudgment against the party , because of the Iudges knowing to the contrary , and to make further Relation thereof to the King for his Pardon of grace for the Party . So in our Case , It may be that you in your private knowledge know , That the Hospital de le Savoy , and the Hospital vocat . le Savoy , is all one , but that doth not appear unto you upon the Record which is before you , but it may be for any thing that appears in the Record , that they are diverse and several Hospitals ; Therefore the Lease is void . To prove my Minor , I do say that this word ( de ) as here , de Savoy , designes a place , so as by this Word ( de ) the place is become parcel of the Name , but this word vocat . locum non denotat , but only the very name , and so here is a material difference and variance , for here by pretence of the Name in this Lease , there is not any place of the Corporation in the Name , but the Corporation is transitory , which cannot be , for a Corporation especial consisting of many persons , as Corpus aggregatum ought to have a certain place of their abiding , or otherwise it cannot be discerned by the Law , and it is but a Mathematical thing , and nothing else but a fiction , and they cannot be otherwise considered in Law , but as they are circumscripti within the bounds of their house , and they cannot appear but by Attorney : and if a Prebend consist upon a Manor , & afterwards the Manor by Writ be demanded against the Prebend , and he lose it , here he hath lost his Name , because he hath lost that which giveth to him his Name , by Contrary by Blake , for his estate and place in the Chapter , doth remain unto him : And secondly , for another Cause here is a material variance , for this word ( de ) supposeth a place before the Foundation , as the place upon which the Hospital was erected was called Le Savoy before the Erection of it ; but these words ( vocat . le Savoy ) supposeth the same Name Savoy was imposed upon the Foundation . Thirdly , these words ( de le Savoy ) do import the Hospital to be part of the place , which before the Foundation , was called Savoy , but vocat . trencheth only to all the place called Savoy : Fourthly ; ( de le Savoy ) is matter of certainty and verity ; ( vocat . ) but matter of Reputation . And so for these four reasons , great difference in substance appeareth betwixt the very name of the Hospital , and the Name usurped in the Lease . And he cited the Case 29 Eliz. in the Kings Bench betwixt Hall and Wingat . King E. 4. did incorporate the Dean and Cannons of Windsor , by the Name of Dean and Cannons of the King and Queens Free Chappel of Saint George the Martyr within his Castle of Windsor ; and made a Lease by another Name , viz. by the Name of Dean and Cannons of the King and Queens Free Chappel there , and the same Lease was made in the time of Queen Mary , and it was holden that the same was a variance in Substance . And he cited another Case 30 Eliz. in the Kings Bench betwixt Fisher and Boys . A Colledge in Oxford was by Act of Parliament incorporated by the Name of Warden and Scholars , Domus sive Collegii Scholarium de Merton in universitate Oxoniae , and they make a Lease by the Name Custos Domus sive Collegii de Merton in Oxonia , and Scholares ejusdum Domus , and the variance in that point , because in the very name of the Foundation , Domus five Collegii Scholarium de Merton , and in the usurped Name in the Lease Domus sive Collegii de Merton , was holden material , and the true name was de Merton in universitate Oxoniae , but in the Lease , in Oxonia only , leaving out the word Vniversity , and the same was holden a variance in substance : For Oxford doth contain in it self the Vniversity , which is a thing of it self , and also the City is a thing by it self : and it may be that there is a Colledge in the City called Merton Colledge , and also a Colledge which is called by such Name in the Vniversity : and so in our Case , it may be that there is an Hospital which is called the Savoy , and also another which is Le Savoy , and then the Court shall be enveigled , &c. And in the end of the Argument , the Lord Treasurer , which was the Lord Burleigh , put this Case , which was adjudged in his time . The Guild of Boston in Lincolnshire , was incorporated by the Name of the Guild of St. Nicholas , and our Lady the Virgin Mary , &c. and they made a Lease for years by the Name of the Guild of our Lady the Virgin , and St. Nicholas , Religione quadam motus ut nomen Virginis Mariae , in charta dimissionis , proponeretur nomini Sancti Nicholai ; and it was adjudged a void Lease for the variance aforesaid . And afterwards at another day , the matter was argued by Atkinson , on the part of the Defendant . Starkey 21 E. 4. 56. saith , That the Name of the Corporation , by which it is incorporated , is as properly the Name of a Corporation , as the Name of Baptism is the Name of a single and individual person , and yet there is a great difference in the misprision of them , for the Name of Baptism doth consist of one word , and therefore it cannot admit of any variance , but the name of a Corporation doth consist of many words : in which case variance in words which are supplyed by other words , and not in matter of substance , shall not hurt ; and that hearing is notably discussed in the case of the Cooks of London , cited before by Godfrey . Four things are to be considered in the Name of a Corporation , which are of the Essence and Substance of it : First , the persons incorporated , of which the Corporation doth consist , as here the Master and Chaplains de Savoy . Secondly , The quality of the Corporation , as Dean and Chapter , Mayor and Commonalty : Thirdly , the Patron or Founder , as , Merton Colledge ; Fourthly , The Place whereupon the Corporation is founded . As to this last point , see 31 E. 3. 28. and fo. 15 by Knivet ; and see 6 Eliz. Dyer . King H. 8. erected the Dean and Prebend of Chester , by these words , scil. Decanus et Capit. Cathedralis Ecclesiae Christi , et Sanctae Mariae Virginis Cestriae . And afterwards by Letters Patents , gave to the said Dean and Chapter , certain Manors , Decano et Capitulo Ecclesiae Cathedralis Christi et Sanctae Mariae Virginis , by us before erected , and that grant was holden void , because that the place where , &c. is not expressed in the said Letters Patents , for Cestria is the local place of the Incorporation . And as to the Objection made upon the word ( de ) that this word ( de ) goeth only to part , and ( vocat . ) goes to the whole , and so here is a great difference ; the same is not any reason , for this word ( de ) extends as well to the whole as to part . As a Rent granted percipiend . de Manerio de D. the same shall go to the whole Mannor , 5 E. 4 , 5. ad respondendum I. Abbati Monasterii Sanctae Mariae Ebor. where the Obligation was , Abbati Monasterii Sanctae Mariae Virginis extra Muros Ebor. and yet the Writ was well enough , notwithstanding such variance , a fortiori , in the case of a conveyance and Interest . And I conceive that it appeareth in the Record , That the Lease given in evidence of the part of the Defendant , is a Lease made by the Master and Chaplains of the Hospital of the Savoy , for it is found by verdict , That King Henry the eighth , upon the Site of the Manour of Savoy , betwixt the house of the Bishop of Worcester , and the house of the Bishop of Carlisle , and that it was incorporated by the Name , &c. and that afterwards Q. Mary by her Letters Patents , reciting the foundation of the said Hospital called the Savoy , and lamenting the Ruin of it , being surrendred in the time of E. 6. did restore it , by which it appeareth , That the Hospital of the Savoy , and Hospital called the Savoy is one and the same in respect of the Bounds , Foundation , and Situation . And in the whole course of our Books , no case can be found , That any Corporations have avoided their own acts , by such cause of Misnosmer , nor of such matter , is any question moved in our Books . And as to that which hath been objected , That although the Iudges in their private knowledge well know , That the House de le Savoy , and the House vocat . the Savoy , be all one , yet they ought not to judge according to such their private knowledge , but according to their judicial knowledge , which they have out of the Record . I conceive , That the Iudges of necessity ought to use in such cases their private knowledge ; as where Misnosmer of a Colledge was objected , viz. Trinity Colledge in Cambridge , where it was incorporated by the Name of Masters , Fellows , and Scholars Collegii Sanctae & individuae Trin. and they made a Lease by the Name of Master , Fellows , and Scholars of the Colledge of Trinity , the same was holden a good Lease , for the Iudges knew well enough , That this word Trinity doth imply in it self Sancta & individua , but by what knowledge ? not by their judicial knowledge , but by their private knowledge ; So in our case . Egerton the Queens Sollicitor to the contrary : It is a clear and plain Rule in our Law , That the name of a Corporation is as a name of Baptism to a natural man , and if there be any difference , I conceive , that the Law requires more strict certainty in the name of a Corporation than in the Name of any particular person , For a name is more necessary to a Corporation than to another , for when an infant is born , he is presently a perfect creature , before any name given him , and the giving of the Name is not a matter of necessity , but of policy for distinction , &c. but in the case of a Corporation , The Name is the substance and essence of it , and it is not a Body before a Name be imposed upon it , and therefore in the Charters of Corporations there is always such a clause , per tale nomen implacitare , & implacitari , acquirere , &c. possint , and without their Name , they are but a Trunk : but contrary in the case of particular persons ; Land is given primogenito filio J. S. It is a good gift , although there be no Name of Baptism : Lands given omnibus filiis J. S. is a good name of purchase , and if a man be bound in an obligation by a wrong or false Name , and in an action brought upon the same , if it appeareth upon evidence , that he was the same person which sealed and delivered it , the same is sufficient , and the Bond shall bind him . But contrary in the case of a Corporation , and we cannot give any thing to a Corporation by circumstances , inducing or implying their true name . As Land given to the first Hospital which the Queen shall found , Ante. 161 , 162. although that it sufficiently appear , That such a one was the Hospital which the Queen first founded , yet the gift is void : And he denied , That the four things remembred before are necessarily required in the Name of a Corporation : for if the Queen will found a Corporation , as an Hospital by the Name of Utopia , the same is well enough without any respect of persons , place , Founder , &c. set forth in the Charter . And also other things besides the said four things are sometimes necessary in a Corporation ; As if the Queen will found an Hospital by the Name , Quod fundavimus ad roga . Christ . Hatton Cancel . Angliae . all the same ought to be expressed in every grant made by , or to the said Hospital ; So Quod fundavimus ad relevandum pauperes ; and sometimes the number of the persons incorporated , if it be in the Charter , it ought to be used in all acts made by or to them ; As Master and sir Chaplains ; so as the said four things recited before , are not so necessary in the Name of a Corporation , but so far forth as they are parcel of the Name given to them in the Charter of the Corporation : And in our case , 1. The place de le Savoy , is part of their name , set down in the Charter of their Corporation , and therefore the same ought to be precisely followed . And he relyed much upon the argument of Cook in noting material variances betwixt de le Savoy , and vocat . le Savoy , as ( de ) signifies part ( vocat . ) the whole ; ( de ) signifies the place de facto , vocat . implyes reputation only . There is a place near unto Whitehal called Scotland , because that the Kings of Scotland , when they came to our Parliament used there to reside , as the Lord Treasurer affirmed . There is also a place in England called Normandy , and another called Callais , and also a place here in Westminster called Jerusalem , but these , Scotland , &c. but by Reputation , so as what difference is betwixt the very Scotland and Scotland here , &c. such and so much difference is there betwixt the Hospital de le Savoy , and the Hospital vocat . the Savoy . And as to that which hath been objected by Atkinson , That that word ( de ) signifies as well the whole as part , as a Rent granted percipiend . de Manerio de D. I confess that this word ( de ) hath many significations , so that we ought not only to consider what ( de ) signifyes of it self , but rather to observe what goes before , what follows ; for , as saith Hillary , intelligentia verborum ex causa dicendi sumenda est . And this word ( de ) is a material word in the Name of a man , therefore also in the name of a Corporation , 26 H. 6. 31. Assise by I. de S. and it was found for him , and afterwards the Tenant in the Assise brought attaint , and in the rehersal of the Assise in the writ of attaint he was named I.S. leaving out ( de ) and for that cause the Writ did abate , 28 E. 3. 92. Debt brought by the Executor of John Holbech , where the Testament was John de Holbech , and for want of this word ( de ) in the Writ , it was abated by Award . And in a Praecipe quod reddat against Mich. de Triage , he cast a Protection for Michael Triage , leaving out ( de ) and for such variance the Protection was disallowed , and a Petit cape awarded . And although the Iudges in their private knowledge know well enough , That the Hospital de le Savoy , and the Hospital vocat . the Savoy , be all one , yet in point of Iudgment they ought not otherwise receive information , but out of the Record , and therefore , if sufficient matter be not within the Record to inform the Iudges of the Identity of the said two Hospitals , their private knowledge shall not avail . And he cited the cause of the Lord Conniers , where the Parties being at issue , and the Iury charged for the trial of it ; It was found by special verdict , That a fine was levyed of the Lands in Question , &c. but nothing found of the Proclamations , whereas in truth , the Proclamations were as well given in evidence as the fine , But found , Quod finis levatus fuit prout per recordum finis ipsius , in evidenciis ostensum , plenius apparet , Now in that case , although that the Iustices , knew well enough , That the Proclamations were expressly given in evidence , yet because it did not appear unto them as Iudges out of the Record , They would not give Iudgment , according to the truth of matter , but according to the Record , for they cannot take notice if the Proclamations be in the Chirographers Office or not : But after it appeared unto them , That that defect was but a slip of the Clerk , they commanded the Record to be brought before them , and the Proclamation to be inserted in the verdict ; and then gave Iudgment according to the verdict reformed as aforesaid . And as to the Case of Martin Colledge cited before , he said he was of Councel in it , and he knew , That the Iudgment there was not given for the cause alledged by Cook , but because that this word , Scholars , was left out in the Lease . And he held , that if in the principal Case , the Lease had been , That the Master and Chaplains of the house called the Hospital of the Savoy , &c. it had been well enough , for there is , de le Savoy . See a good case 36 H. 6. fitz . Brief . 485. by Danby a Corporation cannot be Tenants of Lands , but according to their Corporation , and their foundation , and their very Name , nor they cannot be impleaded , nor take Lands by a wrong Name , nor purchase , nor dispose of their possessions , but by their true Name . And afterwards the matter was compounded by the mediation of Friends : and Fanshaw had the Lease for a certain sum of mony . See now Cook 10 Report , The Case of the Mayor and Burgesses of Lyn Regis : See also Cook 11. Report . 18. Doctor Arays Case , to this purpose .

CCXXIX . Huson and Webbs Case . Mich. 30 & 31 Eliz. In the Common Pleas.

RObert Huson brought an action of Debt against Anne Webb , Debt lieth not against Executor of an Administrator . 1 Cro. 121. Yel . 20. 9 Co. 87. Administratrix of Joan Webb , and declared of a Contract without specialty , The Defendant pleaded , That she had fully administred , and it was found against her . And now it was moved for the Defendant , That upon the matter an action of Debt doth not lye against the Executor or Administratrix ; which was granted by the Court. But the doubt was , If now , forasmuch as the Defendant by pleading the plea above , hath admitted the action , she shall now take advantage of the Law in that point . For the reason why this action doth not lye against an Executor or Administrator is , because the Testator himself might have waged his Law , if he had been impleaded upon it ; and by intendment of Law the Executor or Administrator cannot have notice of such a Debt , or of the discharge of it ; But now by answering to the Declaration as above , the Defendant hath taken notice of the Debt , and in manner confessed it . And by Rhodes and Anderson , Iudgment shall be given against the the Plaintiff , because it is apparent to the Court , that the action doth not lye . And by Anderson , If Iudgment be entred against the Administratrix , in such an action upon Nihil dicit , the Court , ex officio shall give judgment against the Plaintiff . Periam and Windham doubted at the first that the Defendant by her plea had admitted the whole matter upon the specially administred , pleaded , and had taken notice of the Debt , 41 E. 3. 13. 46 E. 3. 10 , 11. 13 E. 4. 25. 13 H. 8. Fitz. Execut. 21. And afterwards Anderson , ex assensu of the other Iudges , caused to be entred , Querens capiat nihil per breve .

CCXXX . Hambleden and Hambledens Case . Mich. 30 & 31 Eliz. In the Common Pleas. Intrat . Mich. 29. & 30 Eliz

Devises . 1 Cro. 163. 1 And. 381. THe case was , William Hambleden the Father of the Plaintiff , and the. Defendant , was seised of the Lands , &c. And by his Will devised to his Eldest Son , Black Acre ; to his second Son , White Acre ; and to his third Green Acre , in tail . And by his said Will further willed , That in Case any of my said Sons do dye without issue , that then the Survivor be each others heir , The Eldest son dieth without issue , &c It was moved by Gawdy Serjeant , That the second Son shall have Black Acre in tail , and he cited the Case 30 E. 3. 28. propinquioribus haeredibus de sanguine puerorum , for the construction of such devises . Walmesley argued , That both the surviving Brothers should have the said Black Acre , for the words of the devise are quilibet supervivens , which amounts to uterque ; and the Court was in great doubt of this point . And they conceived , That the estate limited in Remainder to the Survivor , &c. is a fee-simple by reason of the words , Each others heir ; And also they conceived , That both the Survivors should not have the Land , for the same is contrary to the express words of the devise , The Survivor shall be each others heir , in the singular number ; see 7 E. 6. Br. Devise 38. A man seised of Land hath issue three Sons , and deviseth part of his Lands to his second Son in tail , Heb. 75. and the residue to his third son in tail : and willeth , That none of them shall sell the Land , but that each shall be heir to the other , The second son dieth without issue , the same Land shall not revert to the eldest Son , but shall remain to the third son , 1 Len. 261. notwithstanding the words each shall be heir to the other .

CCXXXI . Slywright and Pages Case . Mich. 30 , & 31 Eliz. In the Common Pleas.

Maintenance . More . 266. 1 And. 201. Golds . 101 , 102. AN Information was in the Common Pleas , by John Slywright against Page , upon the Statute of 32 H. 8. of Maintenance ; and declared that the Defendant took a Lease of one Joan Wade , of certain Lands , whereas the said Joan was not seised nor possessed thereof according to the Statute ; and upon Not guilty , the Iury found this special matter , That Edmund Wade was seised , and made a Feoffment in fee thereof unto the use of himself , and of the said Joan , who he then intended to marry , and the heirs of the said Edmund . The marriage took effect , Edmund enfeoffed a Stranger , who entred , Edmund died , Joan not having had possession of the said Land after the death of Ed. her husband nor bing now in possession , by Indenture demised the said Land to the Defendant for years , without any Entry or delivery of the Indenture upon the Land , The said Defendant knowing the said Joan never had been in possession of the said Land , and also the Defendant being Brother of the half blood to the said Joan. The first Question was , If the Lease being made by one out of possession , and not sealed or delivered upon the Land , and so not good in Law as to pass any interest , be within the Statute aforesaid . And the whole Court was clear of opinion that it was : for by colour of this pretended Lease , such might be undertaken & advanced to the trouble & disquiet of the possession , for amongst the vulgar people , it is a Lease , & it is a Lease by Reputation : Another matter was moved , because that the entry of the wife is now made lawful by 32 H. 8. and then she might well dispose of the Land .

But as to that , It was said by the whole Court , That the meaning of the Statute was to repress the practises of many , That when they thought they had title or right unto any Land , they for the furtherance of their pretended Right conveyed their interest in some part thereof to great persons , and with their countenance did oppress the possessors : And although here the Lease was made by the said Joan to her Brother of the half blood , yet by the clear opinion of the Court the Lease is within the danger of the Statute , and yet in some Case the Son may maintain his Father , & the Kinsman his Kinsman . And note in this case it was holden by the Iustices , That of necessity it ought to be found by verdict , That the Defendant knowing that the Lessor never had been in possession . And Iudgment was given for the Plaintiff .

CCXXXII . Brokesby against Wickham and the Bishop of Lincoln . Mich. 30 , & 31 Eliz. In the Common Pleas.

IN a Quare Impedit , the Plaintiff counted , Quare Impedit . 3 Len. 256. 1 Cro. 173. Owen 85 , 86. Popham . 189. That Robert Brokesby was seise of the Advowson , and granted the next Avoidance to the Plaintiff , and Humphrey Brokesby , and that afterwards the Church became void , and after during the avoidance , Humphrey released to the Plaintiff , and so it belongs to him to present . And upon this count the Defendant did demar in Law. For it appeareth upon the Plaintiffs own shewing , that Humphrey ought to have joined with the Plaintiff in the action , for the Release being made after the Church became void , is not of any effect , but utterly void . So is the grant of the presentment to the Church where the Church is void , for it is a thing in action . See the Lord Dyer , 28 H. 6. 26. 3 Ma. Dyer 129. 11 Eliz. Dyer 283 , Walmsley Serjeant put this Case , Two Ioint-tenants of a Rent , the one may release to the other , but if the Rent be behind , now the one cannot Release his Interest in the Arrearages to the other . And afterwards in the Principal case Iudgment was given that the Release was void .

CCXXXIII . Sammes and Paynes Case . Mich. 30 , & 31 Eliz. In the Common Pleas. Intr. Trin. 29 Eliz. Rot. 721.

IN an Ejectione firmae the case was , That the Mother being seised of certain Lands , had issue two Daughters , Tenant by the curtesie . 1 And. 184. Goldsb . 81. 82. 8 Co. 34. and by Indenture covenanted with diverse persons to stand seised to the use of Eliz. her eldest Daughter in tail , upon condition that the said Eliz. should pay to her other Daughter within a year after the death of the Mother , or within a year after the said other Daughter should come to the age of eighteen years , 300 l. And if the said E. should fall in the payment of the sum aforesaid , or should dye without issue before such payment , then to the use of the said second Daughter in tail , The Mother dieth , E. taketh Husband , hath issue , & afterwards dieth without issue before the day of payment . And if the Husband shall be tenant by the curtesie or not , was the Question , And by the Court cleerly , he shall be , For as to the condition of payment of the said Sum , the same is not determined ; for she died without issue before the day of payment , scil. before the second Daughter came of the age of eighteen years ; & as to that there is no condition broken ; & as to the point of dying without issue , The same is not a condition but rather a Limitation of the Estate , and the same is no more than what the Law saith , and the estate tail in Elizabeth is spent and determined by the dying without issue ; and doth not cease , or is cut off by any Limitation ; and afterwards Iudgment was given for the Tenant by the curtesie . And by Anderson , If a Feoffment be made to the use of I. S. and his heirs , until I. D. hath done such a thing , and then unto the use of I. D. and his heirs , the thing is done , and I. S. dieth , his wife shall be endowed .

CCXXXIV . Bowry and Popes Case . Mich. 30 , & 31 Eliz. In the Common Pleas.

1 Roll. 676. Plow . Queries vers. finem . BOwry brought an Action upon the Case against Pope , and declared , that in the time of E. 6. the Dean and Chapter of Westminster , leased two houses in Saint Martins in London to Mason for sixty years , The which Mason , leased one of the said Houses to one A. and covenanted by the Indenture of Lease with the said A. that it should be lawful for the said A. his Executors , and assigns to make a window in the shop of the house so to him assigned , and afterwards in the time of Queen Mary , a window was made accordingly , where no window was there before . And afterwards A. assigned the said house to the Plaintiff . And now Pope having a house adjoining , had erected a new building super solum ipsius Pope ex opposito the said new Window , Nusance . so as the New Window is thereby stopped . The Defendant pleaded , Not guilty , and it was found for the Plaintiff ; and it was moved for the Defendant in arrest of Iudgment , that here upon the Declaration appeareth no cause of action , for the window , in the stopping of which the wrong is assigned , appears upon the Plaintiffs own shewing to be of late erected , scil. in the time of Queen Mary , The stopping of which by any act upon my own Land , was holden lawful and justifiable by the whole Court. But if it were an antient window time out of memory , &c. there the light or benefit of it ought not to be impaired by any Act whatsoever ; and such was the opinion of the whole Court. But if the case had been , That the house & soil upon which Pope had erected the said building , had been under the estate of Mason , who covenanted as abovesaid , Then Pope could not have justified the nusance , which was granted by the whole Court.

CCXXXV . Lee and Maddoxes Case . Mich. 30 , & 31 Eliz. In the Common Pleas. Intrat . Mich. 29 , & 30 Eliz. Rot. 1737.

Covenant . WIlliam Lee brought a Writ of Covenant against Richard Maddox , & Isabel his Wife , and declared , That one Errington the first husband of the said Isabel was endebted to the Plaintiff in 20 l. and that one Georgy Ashley was also endebted to the said Errington , in the like sum of 20 l. And also that the said Errington made and constituted the said Isabel his Executrix , and died , and afterwards the said Isabel by Indenture dum ipsa sola fuit , reciting that whereas her said late husband was endebted to the Plaintiff in the sum aforesaid , and whereas the said George Ashley was also endebted unto her said late Husband in the like sum , Now for the better satisfaction of the Plaintiff for his said Debt , she appointed and constituted the Plaintiff , atturnatum suum irrevocabilem ad petendum , levandum , recuperand . & recipiend . ad usum suum proprium in nomine dict. Isabellae de dicto Georgio , the said twenty pounds ; And the said Isabel covenanted , quod ipsa ad requis . dict. quer . de tempore in tempus , adjuvaret , & manu teneret quamlibet & omnes sectam & sectas quam vel quas dictus querens commensaret & prosequeretur in nomine dictae Isabellae , against the said George , to the use of the Plaintiff Non existendo Non-suit voluntarie , or making any Discontinuance , Release , Revocations , Anglice , Countermand , without the assent of the Plaintiff : And declared further , that the Plaintiff had brought a Suit against the said George for the said Debt , and shewed all in certain . And that the said Isabel , depending the said Suit , Countermand . had taken to Husband the Defendant without the assent of the Plaintiff : And if by this Marriage the said Suit be countermanded was the Question . And first it seemed to the Court that the Declaration was insufficient , Request . because there is not any request surmised in the Declaration , for the words of the Covenant are , Quod ipsa ad requisitionem , &c. So as it seemed to the Iustices , that the Plaintiff ought to have notified to Isabel that he had commenced such Suit , otherwise the Action will not lye . And also the Court was of opinion , that here is not any Countermand , for by the taking of the Husband the Writ is not abated , but only abateable ; and therefore the Plaintiff ought to have shewed , 1 Roll. 781. that by the taking of the Husband , the Writ by Iudgment was abated , otherwise it is not any Countermand , and their no cause of Action .

CCXXXVI . Salway and Lusons Case . Mich. 30 , & 31 Eliz. In the Common Pleas.

MAtthew Salway brought a Writ of Right against Luson , Writ of Right . 2 Len. 36. and the Writ was , Messuag . & 200. acr . jampnor . & bruerae . And exception was taken to the Writ , because jampnor . & bruerae , are counted together , where they ought to be distinguished severally , As so many acr . jampnor . and so many acr . bruer . although it were objected on the part of the demandant in the maintenance of the Writ , that in the Register the Writ of Right is reditu unius librae of Cloves and Mace together , Abatement of a Writ . without distinction or severance . And it was said , that in a Writ of Right we ought to follow the Register , and therefore a Writ of Right was abated , because this word ( Pomarium ) was put in the Writ , for in the Register there is no such Writ , because the word Gardinum comprehends it : But in other Writs as Writs of Entry , &c. it is otherwise . See the Case of the Lord Zouch , 11 Eliz. 353 , In a Writ of Entre sur disseisin mille acr . jampnor . & bruer . But this exception was not allowed , for it may be that jampnor . & bruer . are so promiscuous that they cannot be distinguished : Vide 16 H. 7. 8. 9. The respect the Iustices had to the Register , was such , as they changed their opinions and conformed the same to the Register . Another exception was taken to the Writ , because thereby the Demandant doth demand Duas partes Custodiae del Hay in the Forrest of C. And the Court was of opinion that the Writ ought to be Officium Custodiae duarum partium de Hay , &c. and not Duas partes Custodiae , As Advocationem duarum partium Ecclesiae , And not Duas partes Ecclesiae . Another Exception , because the Writ was , duas partes , &c. in tribus dividend . where it should be Divis . for Dividend . is not in any Writ , but only in a Writ of Partition ; And by Windham the parts of this Office are divided in Right , which the Court granted . Another Exception was taken , because that in the Writ it is not set down in what Town the Forrest of C. is , so as the Court doth not know from whence the Visne should come : For no Venire shall be de vicineto Forestae , as de vicineto Hundredi , 1 Cro. 200. & Manerii ; And the same was holden to be a material Exception . Another Exception was taken , Visne . because a Writ of Right doth not lye of an Office : for at the Common Law an Assise did not lye of it , but now it doth by the Statute of West . 2. Cap. 25. for it was not Liberum ten . but the party grieved was put to his Quod permittat : And of this opinion was the whole Court.

CCXXXVII . Smith and Lanes Case . Mich. 30 , & 31 Eliz. In the Common Pleas.

THe Queen was seised of a Manor whereof Bl. acr . was holden by Copy in Fee ; the Queen leased Bl. acr . to B. for one and twenty years , who assigned the same to the Copyholder , who accepted of it . The Queen granted Bl. acr . to C. in Fee , Copyholder determined by acceptance of a Lease . 2 Co. 16 , 17. the term expired , C. entred , and his entry was holden to be congeable , for by acceptance of the sam Term , the Customary Estate was determined , as if the Copy-holder had accepted it immediatly from the Queen : It was also holden by the Court , that a Lease for years under the Seal of the Exchequer may be pleaded , and that without making mention of the Commission , by which the Court of Exchequer is authorized to make such Leases : And so are all the Presidents as well in this Court as in the Court of Exchequer . And whereas the Court was upon the point of giving their Iudgment , It was objected by Shuttleworth Serjeant , That here is pleaded a Bargain and Sale of Land , without , saying pro quadam pecuniae summa : And he stood much upon the Exception , and the Court also doubted of it , and demanded of the Prothonotaries what is their form of pleading : Bargain and Sale , and consideration of it . And by Nelson cheif Prothonotary ; these words Pro quadam pecuniae summa , ought to be in the pleading . Scot Prothonotary contrary . Anderson conceived it was either way good , but Pro quadam pecuniae summa is the best : And so Leonard Custos Brevium conceived . And the opinion of the Iustices was , that a Bargain and Sale for dives Causes and Considerations is not good without a sum of money . 1 Co. Mildmays Case . And by Windham , Bargain and Sale Pro quadam pecuniae summa , although no money be paid , is good enough , for the payment or not payment is not traversable : And by Periam , If Pro quadam pecuniae summa , be not in the Indenture of Bargain and Sale , yet the payment thereof is averrable . And for this Exception the Iudgment was stayed .

CCXXXVIII . Bedel and Moores Case . Mich. 30 , & 31 Eliz. In the Exchequer Chamber .

Action upon the Case for not performing an Award . BEdel brought an Action upon the Case against Moore in the Kings-Bench , and declared , That the Defendant did assume to perform the Award of J.S. and assumed also , that he would not sue Execution upon a Iudgment which he had obtained against the Plaintiff in an Action of Account , &c. And shewed further , that the Award was made , &c. ( which Award in Law was utterly void ) and that the Defendant had not performed the said Award , and also that he had sued Execution against the Plaintiff . 10 Co. 131. 5 Co. 108. The Defendant pleaded Non-assumpsit , and it was found for the Plaintiff , and Iudgment given accordingly . Vpon which Moore brought a Writ of Error in the Exchequer-chamber , upon the Statute of 27 Eliz. And assigned Error , Error . because the Plaintiff had declared upon two Breaches , whereas for one of them there was not any cause of Action , for the Award is void in Law , & then no breach could be assigned in that ; and then when the Iury hath assessed Damages intirement for both breaches , whereas for one there was not any cause of Action by the Law , the Verdict was void , & then the Iudgment given upon it reversable ; for it is not reason that the Plaintiff have Damages for such matter for which the Law doth not give an Action .

And if the Iury had assessed damages severally , viz. For the not performance of the Award so much , Damages . and for the suing forth Execution so much , then the Iudgment had been good , and the damages assessed for the not performance , &c. void . Manwood Chief Baron : The verdict is well enough , for here the whole Assumpsit is put in issue , and there is but one issue upon the whole Assumpsit , but if several issues had been joined upon these several points of the Assumpsit , and both had been found for the Plaintiff , and damages assessed entirely for both breaches , then was the Iudgment reversable , for being several issues the Iury might have assessed the damages severally , scil. for each issue several damages , but here is but one issue , and it was the folly of the Defendant that he would not demur in Law upon the Declaration for one part , scil. the not performance of the Award , and traverse the other part , scil. The suing of the Execution , or the Assumpsit of it . And in our case , it may be that the Iury did assess the damages for the suing of the Execution without any regard had to the performance of the Award : And note that the verdict for assessing of the Damages was in these Terms , scil. Et assidunt damna occasione non performationis Assumpsionis praedict. &c. And Cook who was of Councel in this Case , put this Case . The late Earl of Lincoln , Admiral of England , brought his Action of Scandalis Magnatum , and declared , That the Defendant exhibited in the Star-chamber against him a Bill of Complaint , containing diverse great and infamous slanders : viz. That the said Earl was a great and outragious oppressour ; and used outragious oppression , and violence against the Defendant , and all the Country also . The Defendant pleaded , Not guilty , and found for the Plaintiff , and assessed damages , and it was moved in stay of Iudgment , first , That the Plaintiff had declared upon matter of slander for part , for which an Action lyeth , and for part not . For the oppression supposed to be made to himself , no Action lieth , because every subject may complain for wrong done unto him , and although he cannot prove the wrong , an Action will not lye . But as for the oppression done to others by the supposal of the Bill an Action lieth , for what is that to him , he hath not to do with it , for he is not pars gravata . But because the Iury assessed Damages entirement , the Iudgment was arrested , for the cause aforesaid . And afterwards in the principal case , the last day of this term , Iudgment was staied .

CCXXXIX . Palmer and Thorps Case . Hill. 31. Eliz. In the Kings Bench.

BEtwixt Palmer and Thorpe , the Case was this , 1 Cro. 152 A man demised his Manour of M. for thirty two years , and the day after let the same Manour for forty years , to begin from Michaelmas , after the date of the first Lease , and the Tenant attorned . And by Cook the same is a good grant , although to begin at a day to come , for it is but a Chattel ; and so was the opinion of Wray Chief Iustice , for a Lease for years may expect its commencement , as a man seised of a Rent in Fee grants the same for twenty years from Mich. following , and good , for no estate passeth presently , but only an Interest . See 28 H. 8. 26. Dyer .

CCXL . Sir Anthony Shirley and Albanyes Case . Hill. 31 Eliz. In the Kings Bench. Rot. 668.

IN an Action upon the Case , upon Assumpsit by Sir Anthony Shirley against Albany . Assumpsit . 1 Cro. 150. The Plaintiff declared , That he was seised of the Manor of Whittington for the term of his life , the Reversion to the Earl of Arrundel in Fee , and so seised , surrendered all his Estate to the said Earl , who afterwards by his Deed granted a Rent-charge of 40 l. per annum out of the said Mannor to him , and afterwards conveyed the Manor to the Defendant in Fee. And afterwards , 27 Maii 22. Eliz. upon a Communication betwixt the Plaintiff and the Defendant concerning the said Rent ; the Defendant did promise to the Plaintiff , that if the Plaintiff would shew unto the Defendant any Deed , by which it might appear that he ought to pay to the Plaintiff such a Rent , he would pay that which is due , and that which should be due from time to time . And further declared , that 27 April 27 Eliz. he shewed unto the Defendant a Deed , by which it appeared that such a Rent was granted , and due ; And for eighty pounds due for the two last years , he brought the Action . The Defendant pleaded , that after the said promise , and before the shewing of the said Deed , scil. 14 Jan. 22 Eliz. the Plaintiff entred into the said Land , and leased the same for three years . The Plaintiff Replicando said , that 1 Decem. 27 Eliz. the Defendant did re-enter , upon which they were at Issue , and it was found for the Plaintiff . It was moved by Glanvil Serjeant , that by the entry the Promise was suspended , and being a personal thing once suspended , it is always extinct . Wray , The Action is brought for the Arrerages due the two last years , and so at the time of his re-entry the Plaintiff had not cause of Action , and therefore it could not be suspended . Suspension of Rent . Ante. 110. Gawdy , When the Plaintiff sheweth the Deed , the Defendant is chargable to arrerages due before and after the promise ; wherefore if the entry maketh a suspending of the Rent , the suspension doth continue : but I conceive here is not any suspension , for this promise is a meer collateral thing , and so not discharged by the entry into the Land , for it is not issuing out of the Land . But if the Plaintiff before the Deed shewed had released all Actions , the same had been a good Bar ; and I conceive that the Deed was not shewed in time , for it ought to be shewn before any arrerages due after the promise , but here it is shewn five years after : But that was not denied by all ther other Iustices . Another exception was taken , that where the promise was , that if the Plaintiff shewed any Deed by which it might appear , that the Defendant should be charged with the said Rent , and the Declaration is , by which it might appear , that the Plaintiff ought to have the Rent , &c. so as the Declaration doth not agree in the whole . See 1 Ma. 143. in Browning and Bestons Case , the Condition of the Lease was , if the Rent should be arrear , not paid by two Months after the Feast , &c. and the Rejoynder was by the space of two months , &c. And the pleading holden insufficient , for per duos menses doth not affirm directly post duos menses , but by Implication and Argument : And here it was holden , that the Condition was a good consideration . Another exception was taken , because the promise is layed , All the Rent ad tunc debitum aut deinceps debend . It was holden , that this word ( ad tunc ) doth refer to the time of the shewing of the Deed , and not to the promise . And as to the last exception but one , it was resolved , that the Declaration , notwithstanding the same , was good enough ( scil. ) ostendit factum per quod apparet quod redditus praedict. solvi deberet in forma praedict. Another exception was taken , because here no breach of the promise is alledged , for it is pleaded , thath eight pounds de annuali redditu arrer . fuer . but it is not said , de redditu praedict. 8 l. ergo it may be another Rent , and then the promise , as to this Rent , is not broken . Wray , Although the word ( praedict. ) be wanting , yet the Declaration is well enough , and it shall be intended the Rent mentioned before . See 21 H. 7. 30. b. Where ( Villa West . ) shall be intended Villa praedict. 19 E. 4. 1. In a Quare Impedit the Plaintiff doth entitle himself by grant of the next Avoydance cum acciderit , and doth not shew in his Count that the same was the next Avoydance , and yet the Count was holden to be good , for so it shall be intended ; so here : And he said , It is not necessary that a Declaration be exactly certain in every point , but if one part of it expound the other , it is well enough : And although the Identity of the Rent doth not appear by the word praedict. yet it appeareth by other circumstances , as by the days of payment , &c. and no other Rent can be intended . And now , this Exception is after Verdict , and therefore favourably to be taken : And afterwards Iudgment was given for the Plaintiff .

CCXLI. Musted and Hoppers Case . Hill. 31 Eliz. In the Kings Bench.

IN an Action upon the Case , the Plaintiff declared , Assumsit . p 1 Cro. 149. That where he and one Atkinsal , were joyntly and severally bounden by Obligation in fifty pounds , to a stranger , for the only Debt of the said Atkinsal , which Atkinsal died , and the Defendant married afterwards his Wife , and so the Goods of Atkinsal came to his hands ; yet the Plaintiff , the first day of May after , which was the day of payment of the money , paid five and twenty pounds for avoiding the Forfeiture of the penalty . The Defendant as well in consideration of the Premisses , as in consideration that he might peaceably enjoy the Goods of the Testator promised to pay the said sum , cum inde requisitus fuer . And upon Non Assumpsit , the Iury found the payment of the said sum , and all the precedent matter : And that the Defendant in consideration praemissiorum , promised to pay the said sum if he might peaceably enjoy the Goods of the said Testator . It was moved in arrest of Iudgment , that although here the Iury have found sufficient cause of Action , yet if the Declaration be not accordingly , the Plaintiff shall not have Iudgment . Verdict . And here the Plaintiff hath declared upon two Considerations , and the Iury hath found but one , scil. if he peaceably enjoy the Goods of the Testator . Also the Plaintiff declared of a simple promise , and the Iury have found a Conditional , Si gaudere potest , &c. And so the promise set forth in the Declaration , is not found in the Verdict .

Gawdy was of opinion , That the first consideration is good , Consideration . for the Plaintiff entred into Bond at the request of the Defendant , and then the promise following is good : But the second consideration is void , scil. That the Defendant shall enjoy the goods of the Testator , &c. as if it had been that he should enjoy his own goods . And all the Iustices were clear of opinion . That the Promise found by the Iury is not the promise alledged in the Declaration , and so the issue is not found for the Plaintiff , and so the judgment was stayed .

CCXLII. Creckmere and Pattersons Case . Trin. 30 Eliz. In the Kings Bench. Rot. 568.

Devise conditional . 1 Cro. 146. 1 Roll. 410. 1 Inst. 236. b. UPon a special Verdict , the Case was this , Robert Dookin was seised of certain Lands in Fee , and having issue two Daughters , devised the same to Alice his Eldest Daughter , that she should pay forty pound to Ann her Sister at such a Day ; the money is not paid , whereupon Ann entreth into the moiety of the Land : And it was holden by the whole Court , that the same is a good Condition , and that the Entry of Ann was lawful . It hath been adjudged , That where a man devised his Land to his wife , Proviso , My will is , That she shall keep my house in good Reparations , that the same is a good Condition . Wray , A man deviseth his Lands to B. paying 40 l. to C. it is a good condition ; for C. hath no other remedy , and a Will ought to be expounded according to the intent of the Devisor .

CCXLIII . Dove and Williots and others Case .. Hill. 31 Eliz. In the Kings Bench.

1 Cro. 160. IN an Ejectione firmae , upon a special Verdict , the case was , That W. was seised of the Land , where , &c. and held the same by Copy , &c. and surrendred the same unto the use of E. for life , the Remainder to Robert and A. in Fee , Robert made a Lease to the Defendant ; E. Robert , & A. surrendred the said Land , scil. a third part to the use of Robert for the life of E. the Remainder to the Right heirs of Robert , and of another third part to the use of Robert for life , the Remainder to E. the Remainder to Richard , &c. and of another third part to the use of A. and his Heirs . After which Partition was made betwixt them , and the Land where , &c. was allotted to Richard , who afterwards surrendred to the use of the Plaintiff . It was holden , That Iudgment upon this verdict ought not to be given for the Plaintiff , For the Lessee of Robert had the first possession ; and that Lease is to begin after the death of E. who was Tenant for life , and when E. and he in the Reversion joyn in a surrender , thereby the estate for life in that third part is extinct in Robert , who hath the Inheritance , and then his Lease took effect for a third Part. So that the Parties here are Tenants in Common , 1 Inst. 200. betwixt whom Trespass doth not lye .

CCXLIV . Bulleyn and Graunts Case . Hill. 31 Eliz. In the Kings Bench.

Copyhold . UPon Evidence to a Iury , the Case was , That Henry Bulleyn the Father , was seised of the Land being Copyhold , and had Issue three Sons , Gregory , Henry , andy Thomas , and afterwards surrendred to the use of the last Will , Devise . 1 Cro. 148. and thereby devised the said Land to Joan his Wife for life , the remainder to the said Henry , and the Heirs of his body begotten : Joan died , after admittance , Henry died without Issue , and afterwards the Lord granted it to Thomas and his Heirs , who surrendred to the use of the Defendant then his Wife for life , and afterwards died without Issue : Gregory eldest Son of Henry Bulleyn entred , &c. Coke , When the Father surrendreth to the use of his last Will , thereby all passeth out of him , so as nothing accrueth to the Heir , nor can he have and demand any thing before admittance . Wray , The entry of Gregory is lawful , and admittance for him is not necessary , for if a Copyholder surrendereth to the use of one for life who is admitted , and dieth , he in the Reversion may enter without a new Admittance . It was moved by Coke , if this Estate limited to Henry be an Estate tail , or a Fee conditional , For if it be a Fee-simple conditional , then there cannot be another Estate over : but yet in case of a Devise an Estate may depend upon a Fee-simple precedent , but not as a Will , but as an Executory Devise . Wray , It is not a conditional Estate in Fee , but an Estate tail . Coke , They who would prove the Custom to entail Copyhold Land within a Manor , it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies , Copyhold Estate . but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter . Wray , That is not so , for Customary Lands may be granted in tail , and yet no surrenders have been made within time of memory .

CCXLV . Matthew and Hassals Case . Mich. 31 Eliz. In the Kings Bench.

IN an Ejectione firmae , betwixt Matthew and Hassal , the Plaintiff had Iudgment to recover , and the Defendant brought a Writ of Error , Error . 1 Cro. 144. and assigned Error in this , that the Iudgment was entred , Quod querens recuperet possessionem , &c. where it should be ( Terminum ) vent . in ten . praedict. See 9 Eliz. Dyer 258. Coke contrary , That the Iudgment is good enough , for the Writ of Execution upon it is Habere facias possessionem , and in a real Action the Writ is , Quod perens recuperet sesinam , and not terram . And afterwards Iudgment was affirmed .

CCXLVI . Tempest and Mallets Case . Hill. 31 Eliz. In the Kings Bench.

IN an Action of Trespass by Tempest against Mallet , Iudgment was given , and Eror brought , and assigned for Error ; 1 Cro. 153 , 145. that whereas the Action was brought against four , one of them died , Mesne betwixt the Award of the Nisi prius , and the Inquest taken : And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record , that the Plaintiff shewed unto the Court the death of one of the Defendants , and prayed Iudgment against the others . See 4 H. 7. 2 Eliz. 175. And there is a difference , where in an Action of Trespass there is but one Defendant , and where many . Another Error was assigned , the Defendant Obtulit se per Higgins Attornat . suum , without shewing his Christian Name , as John , or William ; for Higgins only without the Christian Name , is not any Name , for it is but an addition to shew , which John , or William . Coke . The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted , that after Verdict , Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried , or any default or negligence of any the parties , their Counsellors or Attorneys ; and of necessity this default here in the Christian Name ought to be the fault of one of them . See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney , &c. Glanvil , The Statute provides for default of Warrant of Attorney , &c. Then ( Coke ) To what end was the Statute of 18 Eliz. made ? for the Statute of 32 H. 8. provides for defects of Warrants of Attorney . Glanvil , The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed , but the later Stat. is general . Another Error was assigned , Quod defendens Capiatur , where the Offence , & so the Fine is pardoned by Parliament , and therefore the entry of the Iudgment ought to be , Et de fine nihil , quia perdonatur . Coke , The Iudgment is well enough , for in every general Pardon some persons are excepted ; & it doth not appear if the Defendant here were one of them , and then the Fine is not pardoned , 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that , as it was holden in Serjeant Harris Case : but if the Defendant be charged with the Fine , then he ought to plead the pardon , and to shew that he was not any of the persons excepted . And afterwards at another day the Defendant did alledge , that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record , that the Defendant did appear upon the Supersedeas by Attorney , who had his full Name , and therefore prayed a Certiorari de novo , to certifie the same matter , vide 9 E. 4. 32. Wray , A Case here greatly debated betwixt the Lord Norris and Braybrook , In nullo est erratum . and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum ; for this Plea , in nullo est erratum , goes but to that which is contained within the body of the Record , and not unto collateral matter , scil. Warrant of Attorneys : And afterwards the Writ of Error was allowed , and upon the day of return thereof , it appeared upon the Record of Supersedeas , that the Defendant did appear by such a one his Attorney : But it was said by the Court , that there ought to be two appearances , the one upon the Supersedeas , and the other when the Plaintiff declares . See as to the name of the Attorney , Tirrells Case , 1 Mar. Dyer 93.

CCXLVII. Palmer and Knowllis Case . Hill. 31. Eliz. In the Kings Bench.

1 Cro. 160. PAlmer recovered Debt against Knowllis , and sued Execution by Elegit , upon which the Sheriff returned , that he had made Execution of the lands of the Defendant by the Oath of twelve men , but he could not deliver it to the party , Execution . for it is extended to another upon a Statute , upon which the Plaintiff sued a Capias ad satisfaciendum . And now came the Defendant by his Counsel , and moved that after Elegit returned , the Plaintiff could not resort to the Execution by Capias , and therefore prayed a Supersedeas , Caplas after Elegit . because the Capias erronice emanavit . But the whole Court was clear to the contrary ; for upon Nihil returned upon Elegit , the Plaintiff shall have a Capias , 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias , or Elegit , 34 H. 6. 20. and here the special return doth amount to as much , as if the Sheriff had returned Nihil : Also the Statute of West . 2. which giveth the Elegit , is not in the Negative , and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned , for after the former extent ended , he ought to have a new Elegit ; which Wray granted : And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend . and came into Court in the Custody of the Sheriff , and the Case was opened , and in the whole appeared to be worthy of favour ; but by the Law he could not be helped , and although he instantly prayed a Supersedeas , yet the same was denied unto him .

CCXLVIII . The Church-wardens of Fetherstones Case . Hill. 31 Eliz. In the Common Pleas.

AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk , and declared , Church-wardens . 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell , and declared , that the Trespass was done 20 Eliz. And it was found for the Plaintiffs . And now it was moved by Godfrey in arrest of Iudgment , That it is apparent upon the Declaration , That the Trespass was done in the time of their Predecessors , of which the Successor cannot have action ; and actio personalis moritur cum persona . See 19 H. 6. 66. But the old Church-wardens shall have the action . Cook contrary , and that the present Church-wardens shall have the action , and that in respect of their office , which the Court granted . And by Gawdy , Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick , That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors , contrary by Yaxley . See by Newton and Paston , That the Executors of the Guardian in whose time the Trespass was done , shall have Trespass .

CCXLIX . Hauxwood and Husbands Case . Pasch. 31 Eliz. In the Kings Bench.

IN an Action upon the Case , the Plaintiff declared for disturbing of him to use his common , &c. and shewed , that A. was seised of certain Lands , to which this Common was appendant , Prescription . 1 Cro. 153. for the term of his Life , the Remainder to B. in tail , and that the said A. and B. did demise unto him the said Lands for years , &c. Pepper , The Declaration is not good , for it is not shewed how these particular estates did commence . See 20 E. 4. 10. By Piggot , Lessee for life and he in the Remainder , cannot prescribe together ; and he in the Remainder cannot have common . Also he declares , That Tenant for life , and he in Remainder demised to him , whereas in truth it is the demise of Tenant for life , and the Confirmation of him in the Remainder ; also he doth not aver the life of Tenant for life . Popham , He needs not to shew the commencement of the particular estates , for we are a stranger to them , the Prescription in them both is well enough , for all is but one estate , and the Lease of both . See 27 H. 8. 13. The Lessee for life , and he in the Reversion made a Lease for life , and joyned in an action of wast , and there needs no averment of the life of the Tenant for life , for he in the Reversion hath joyned ; which Gawdy granted as to all . And said the particular estates are but as conveyance unto the action . Wray conceived the first Exception to be material , &c.

CCL . Sweeper and Randals Case , Rot. 770. Trin. 31 Eliz. In the Kings Bench.

IN an Action of Trespass for breaking of his Close , and carrying away his goods , by Sweeper against Randal , upon Not guilty pleaded , i Cro. 156. The Iury found , That one John Gilbert was seised of the Land , where , &c. and leased the same to the Plaintiff at Will , who sowed the Land , and afterwards the Plaintiff agreed with the said Gilbert , to surrender to him the said Land , and his interest in the same ; and the said Gilbert entred , and leased to the Defendant , who took the Corn. It was moved , if these words , I agree to surrender my Lands , be a present and express surrender . Gawdy , It is not any surrender , for Tenant at will cannot surrender , but it is but a relinquishing of the estate , if it be any thing ; Surrender . but in truth it is not any thing in present , but an act to be done in future . Wray , I agree . A. demiseth the Manor of D. at will , it is no Lease , no more shall it be here any Surrender , or any relinquishing of the estate . Clench conceived , That the intent of the Party was , to leave his estate at the time of the speaking , otherwise those words were void , for he might leave it at any time without those words . Gawdy , If such was his intent , the Iury ought to find it expressly ; and afterwards Iudgment was given for the Plaintiff .

CCLI . Ward and Blunts Case . Trin. 31. Eliz. In the Kings Bench.

Trover and Conversion . 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex , and the conversion of them ; The Defendant pleaded , That before the conversion , he was seised of certain Lands called Harminglow in the County of Stafford , and that the Corn whereof , &c. was there growing , and that he did sever it , by force of which he was possessed , and the same casually lost ; and that the same came to the hands of the Plaintiff , and the Plaintiff casually lost the same , and the same came to the hands of the Defendant at Henden , aforesaid , and he did convert the same to his own use , as it was lawful for him to do : upon which the Plaintiff did demur in Law. Atkinson , The Plea is good , for the conversion is the point of the action , and the effect of it . For if a man take the same , and do not convert , he is not guilty . And here the Defendant doth justifie the conversion , wherefore he cannot plead , Not guilty . The general issue is to be taken where a man hath not any colour , but here the Defendant hath colour , because the Corn whereof , &c. was growing upon his Land , which might enveigle the Lay people , and therefore it is safest to plead the special matter . But admit , that it doth amount but to the general issue ; yet there is not any cause of Demurrer , but the Plaintiff ought to shew the same to the Court , and pray that the general issue be entred ; and the Court ex officio ought to do it . Egerton , the Queens Solicitor , contrary . The Plea in Bar is not good ; The Plaintiff declares of a Trover of his goods , ut de bonis suis propriis , and the Defendant pleads , That he took his own goods , which is not any answer to the Plaintiff . See 22 E. 3. 18. In Trespass of taking and carrying away his Trees , The Defendant pleads , That they were our Trees , growing in our own soil , and we cut them and carryed them away , and the plea was challenged , wherefore the Defendant pleaded over , without that that he took the Trees of the Plaintiff . So 26 Ass. 22. and 30 E. 3. 22. Another matter was , The Plea in Bar is , That before the time of the Conversion , the Defendant was seised of the Land , and sowed it ; and that after the Corn was severed , ( but he doth not say that he was seised at the time of the severance ) and then it might be that he had severed the Corn of the Plaintiff , &c. and that was holden by the Court to be a material exception , wherefore Iudgment was given for the Plaintiff : But as to the first Exception , the same was disallowed , For the Court ex Officio , in such case ought to cause the general issue to be entred , but the Plaintiff ought not to demur upon it .

CCLIV . Cheiny and Langleys Case , Hill. 31. Eliz. Rott. 638. Trin. 31 Eliz. In the Kings Bench.

THe case was , That Tenant for life of certain Lands leased the same for years by Indenture , with these words ; I give , grant , 1 Cro. 157. Leases . bargain , and sell my interest in such Lands for twenty years , To have and to hold , in such manner , and form as I my self did hold the same , and no otherwise : Tenant for life died within the Term , and he in the Reversion entred , and the Lessee brought an action of Covenant . Godfrey , The action doth not ly , for here is not any warranty , for the Plaintiff is not Lessee , but Assignee , to whom this Warranty in Law cannot extend ; but admit that the Warranty doth extend to the Plaintiff , yet it is now determined with the estate of the Tenant for life , and so the Covenant ended with the estate . See 32 H. 6. 32. by Littleton 9. Eliz. Dyer 257. Covenant . And if Tenant in tail make a Lease for years ( ut supra ) and afterwards dieth without issue , the Covenant is gone ; and after Iudgment was given against the Plaintiff .

CCLV. Fish , Brown and Sadlers Case , Intrat . Mich. 29 Eliz. Rot. 606. Trin. 31. Eliz. In the Kings Bench.

AN action upon the Case was brought by Fish and Brown against Sadler , Hill. 29 Eliz. rot. 606. and they declared , Action upon the Case . That they were proprietaries of certain goods , which were in the possession of one A. against which A. Sadler one of the Defendants had commenced a feigned and covenous suit in the Ecclesiastical Court in the Name of one Collison , to the intent to get the said goods into his possession , of which the Plaintiffs having notice , and to the intent that the said Plaintiffs should suffer the Defendant to recover and obtain the said goods by the said suit , the Defendant did promise to the Plaintiffs to render to them a true accompt of the said goods ; and shewed further , That by the said suit the Defend . did obtain the said goods by sufferance of the Plaintiff . Tanfeild , It is a good consideration , the Plaintiffs were not parties or Privies at the beginning of the suit , & it is not like Onlies Case in 19 Eliz. Dyer 355. Where in an action upon the Case Onlie declared , Assumpsit and consideration . That the Defendant Countess , &c. being a Widow , had divers suits and businesses , and that the Plaintiff at her request had bestowed great labour and travail , and had expended circa the affairs of the said Countess 1500 l. Whereupon she promised to the Plaintiff to pay all the said expences , and such a sum above , for that matter which is the ground of the action , is maintenance , and malum prohibitum , but such matter is not here ; for it is lawful for a man to use means to get his goods . Gawdy ; All covins are abhorred in Law , and here the Plaintiffs are privies to the wrong , and therefore , it cannot be any consideration . Wray , Although that the suit at the beginning was wrongful and covenous , yet when the Plaintiffs who were owners of the said goods do assent to such proceedings , now the suit is become just and lawful ab initio , Corin. and so no wrong in the consideration , but all the wrong is purged by the agreement . If any covin be , the same is between Sadler and him who is sued , to whom the Plaintiffs are not privies . Clench , If this privity betwixt the Plaintiffs and Sadler had been before the said suit ; then the consideration is without any fraud . Cooper Serjeant conceived here is not any good consideration , upon which the Promise of the Defendant may be grounded , for the Defendant hath not any benefit by it , and he cited the case between Smith and Smith 25 Eliz. Egerton , Here the consideration is good enough , for the Plaintiffs forbear their own suit , which was a hinderance unto them . Clench was of opinion , that the Plaintiff should not have Iudgment , for that suit was begun by Sadler in the Name of Collison without his privity , and therefor it was unlawful , and the same was for the goods of another man , which is unlawful also , and then when the unlawful act is begun , the illegal agreement afterwards that they shall proceed is unlawful also , and therefore there cannot be any consideration : and as to the covin , it is not material , for without that the matter is illegal enough . Also the Declaration is not good in this , because it is not shewed in what Court the suit did depend , so as it might appear unto us , that they had power to hold plea of it . Gawdy agreed with Clench in the first point , and also in the last ; and by him , in the assumpsit , the Plaintiff declares , that a suit was depending betwixt the Defendant and another , and where the Plaintiffs if they were produced might have given strong witness against the Defendant , the said Defendant in consideration that the Plaintiffs would not give Testimony against him , promised to give to the Plaintiff 20 l. the same consideration will not maintain this action ; because it is unlawful for any man to suppress testimony in any cause . 1 Cro. 337. Wray , Here is a consideration good enough , For where Sadler should lose costs upon the first suit , now upon this promise upon his account he shall be allowed the same , the which is a benefit unto him : and as to the shewing in what Court the suit doth depend , that needs not by way of Declaration , but the same shall be shewed by way of Evidence , and it is not traversable , and it is but inducement to the action . And as to the covin , that is not here , for covin is always to the prejudice of a third person , but so it is not here : But in truth this suit was unlawful , for Sadler so to sue in the Name of another , and therefore it cannot be a good consideration . And for that cause , it was awarded , Quod querens nihil capiat per billam .

CCLIV . How and Conneys Case . Trin. 31 Eliz. In the Kings Bench.

Trespass . 1 Cro. 159. IN an action of Trespass by How against Conney , the case was , That one Smith was seised of two houses , and leased one of them to his Brother for life , and afterwards by his Will devised , viz. I give to my Executors , All my Lands and Tenements free and copy , to hold to them , and they to take the profits of them for ten years , and afterwards to sell the said Lands and Tenements ; and afterwards died , his Brother died before the quarter of a year after : and it was found , That the Executors entred into the house undemised , and took the profits , but not into the other , and that at the end of the said ten years , they sold the whole . Godfrey , The house only which was in possession , shall pass by the Will. ( To hold unto them ) doth imply matter of possession , so as nothing passeth but that whereof they may take the profits , the which cannot be of a bare Reversion ; also by this devise , the Executors have not interest in the thing devised but for ten years , Plow . 66. Shop . 437. whereas the Brother of the Testator had an estate for life , which by possibility might continue above twenty years , and to prove that , the meaning of the devisor to be collected upon the words of the Will ought to direct the construction of the Will , he cited Chicks case , 19 Eliz. 357 and 23 Eliz. 371. Dyer . At another day it was argued by Cook , That both the Houses pass , and the words ( take the profit ) do not restrain the general words before , ( viz. All my Lands and Tenements ) but rather expounds them , sci . such profits that they might take of a Reversion , cum acciderit , for it may be that the Brother shall die within ten years . And he cited the case 34 H. 6. 6. A man seised of diverse Reversion upon estates for life , devises them by the name of omnium terrarum & tenementorum , which were in his own hands , and by those parols the Reversion did pass ; and yet the Reversion ( to speak properly ) was not in his hands : and if the Brother had died in the life of the devisor , they had clearly passed , and then his death or life shall not alter the case . And he resembled the case to the case in 39 E. 3. 21. The King grants to the Abbot of Redding , That in time of vacation the Prior and Monks shall have the disposition of all the possessions of the said Abbey ad sustentationem Prioris & Monachorum , 3 Cro. 290. and if in the time of vacation they shall have the Advowsons , was the question , for it was said , That advowsons could not be to their sustentation : But yet by the better opinion the grant of the King did extend to Advowsons , for it shall be intended such sustentation as Advowsons might give . Godfrey , Our Case is not like to the case of 34. H. 6. for there the Devisor had not any thing in possession , and therefore if the Reversion did not pass , the devise should be utterly void . Gawdy conceived that the house in possession only passed , for the devise extends to such things only , whereof the Profits might be taken , but here is not any profit of a Reversion . Clench , and Wray contrary , The intent of the devise was to perform the Will of his Father , and also of his own Will ; and in case the house in possession was not sufficient to perform both the Wills , all shall pass , and therefore the devise by favorable construction is to be taken largely , so as the Wills might be throughly performed ; and also the devise is general , and further all his Lands and Tenements , which are not restrained by the Subsequent words ( to take the profits ; ) for to have and to hold , and to have and to take the profits is all one .

CCLV. Slugge and the Bishop of Landaffs Case . Trin. 31 Eliz. In the Kings Bench.

SLugge libelled against the Bishop of Landaff in the Ecclesiastical Court , because where he was presented by the Dean and Chapter of Gloucester to the Church of Penner , the Bishop did refuse to admit him , and now the Bishop sued a Prohibition , and shewed , Prohibition . Quod non habetur talis Rectoria cum cura animarum in eadem diocesi , sed perpetua vicaria . And by Popham a Prohibition doth not lye , but the matter ought to be determined in the Ecclesiastical Court , and when he who is presented to the same Church , whether it be a Church or not , shall be tried in an action of trespass ; and the like matter was ruled , Mich. 14. Eliz. betwixt Weston and Grendon , who was presented by the Queen , and it was holden , that because institution and admission do belong to the Ecclesiastical Court , and not to the Kings Court , that no Prohibition should lye , and therefore he prayed a Consultation . And note , That the Defendant in the Prohibition did not demur formally upon the suggestion ; for the Iudges use , if the suggestion be not sufficient to maintain the Prohibition , to grant a Consultation without any formal demurrer upon the Suggestion , if the insufficiency of the Suggestion be manifest ; Trial. which was granted by the whole Court. Cook , That a Consultation ought not to be granted , for whether there be such a Rectory or not shall be tried here . So 2 H. 4. 30. Prior or not Prior , 49 E. 3. 17 , 18. Wife , or not Wife , but never accoupled in loyal matrimony by the Bishop , Ante. 53. 54. 44 E. 3. So within or without the Parish , 50 E. 3. 20. So , 45 E. 3. Quare Impedit , 138. In a Quare Impedit , no such Church within the County . Afterwards , at another day , Popham put the case , Slugge was presented to the vicaridge of Penner , the Bishop refused to admit him , and admitted one Morgan Bletthen unto the Parsonage of Penner , at the presentment of the Lord St. John ; Slugge sued the Bishop for contumacy , per duplicem querelem , The Bishop said , Non habetur talis vicaria , upon which matter he sued a Prohibition , and he conceived , That the Prohibition did not ly , for a Vicar is but he that gerit vicem Personae , to supply his place in his absence , so as the same is a spiritual matter which ought not to be tried here : Also the libel is , to have Admission and Institution , and the other matter ariseth by their Plea , sci . Quod Rectoria de Penner est Ecclesia cum cura animarum , absque hoc quod habetur talis Vicaria , and so it is but an incident to the principal matter , wherefore it shall be tried there , and he prayed a Consultation . Cook , We have shewed , That in the time of E. 3. one L. was seised of the Manour of Penner , to which the Church of Penner is appendant ; and we alledge presentments from the time , and we convey it to the Lord St. John , which now is , and they would now defeat us by this surmise , That there is no such Church with cure of Souls , which is triable here . Popham the libel doth contain nothing but contumacy in the Bishop , in that he hath not admitted Slugge , and the other matter comes in the Replication , and afterwards by assent of the parties a Consultation was granted , quoad institutionem of Slugge only , but that they should not proceed further .

CCLVI. Fennick and Mitfords Case . Pasch. 31 Eliz. Rot. 154. In the Kings Bench.

Mo●e 284. 2 Co. 91. THe Case was , A man seised of Lands in Fee , levieth a Fine to the use of his wife for life , the remainder to the use of his eldest son , & the heirs males of his body , the Remainder to the use of the right heirs of the Conusor , The Conusor makes a Lease for a thousand years to B. the eldest son dieth without issue male , having issue a daughter , the Conusor dieth , the wife afterwards dieth , the eldest son enters and leaseth the Lands to the Plaintiff . Atkinson , That upon this conveyance a Reversion was left in the Conusor , although by the fine all is conveyed out of the Conusor ; and so ( as it hath been objected ) the use limited to the right heirs of the Conusor , is a new thing : For it is to be observed , When a man is seised of Lands , he hath two things , the Land , or the Estate , and secondly the use which is the profits ; and if he make a Feoffment without consideration , by that the estate and possession passeth , but not the use , wherefore the use descends after to the Son and Heir . And in our case if the Wife and Son had died without issue in the life of the Father , all should be in the Father and his Heirs . And if a man make a Feoffment in Fee , unto the use of his last Will , it shall be unto the use of the Feoffor and his Heirs , and in our case , this limitation to the Right Heirs of the Conusor is , as if no mention had been made of it , and then it should be to the Father , and his Heirs . And afterwards it was adjudged , That it was a Reversion , and no Remainder , Co. Inst. 22. b. Post . 88. and by Gawdy , This Limitation , To his Right Heirs , is meerly void . Wray , As if he had made a Feoffment to the use of one for life , without further Limitation .

CCLVII . Holland and Franklins Case . Hill. 31 Eliz. Rot. 723. In the Kings Bench.

IN a Replevin , Replevin . Owen 138 , 1●9 . 2 Len. 121. 3 Len. 175. the Defendant made Conusans as Bailiff to Thomas Lord Howard , and shewed , How that the Prioress of Holliwel was seised o● the Manor of Prior in her demes●e as of Fee , &c. and 4 Nov. 19 H. 8. by Deed enrolled sold unto the Lord Audley , the said Manor , who died having issue a Daughter , who took to Husband Thomas late Duke of Norfolk , who had issue the said Lord Howard , and that after their death the said Manor descended , &c. The Plaintiff in bar of the Conusans shewed , That the said Deed was primo deliberatum , 4 Nov. 30 H. 8. And that mean betwixt the date and the delivery , scil. 12 October , The said Prioress leased the said Manor to one A. for ninety nine years , and conveyed the Term to the Plaintiff , absque hoc , that the Prioress bargained and sold the said Manor to the Lord Audley , ante dimissionem praedict. dicto A. fact . upon which there was a Demurrer . Cook , Averment . This Averment of another delivery than the Deed doth purport against the Deed enrolled , shall not be received , no more than a man may aver , That a Recognizance was acknowledged at another day , &c. for every Record imports a truth in it , and express averment shall not be received against it , but a man may confess and avoid ; See 7 H. 7. 4. It cannot be assigned for Error , that in a Redisseisin , the Sheriff non accessit ad tenementa , as he hath retorned , for that is against his Retorn which is Recorded , and the date of the Record is the principal part of it , which see 37 H. 6. 21. by all the Iustices , That matter of Record hath always relation to the date , and not to the Delivery , contrary of a Deed which is not of Record , for the same shall have relation always to the delivery ; and see 39 H. 6. 32. by all the Iustices , Relation of Records and Deeds . averment against a Deed enrolled that it was not delivered shall not be received ; so in the Case betwixt Ludford and Gretton , 19 Eliz. Plowd. 149. It is holden by all the Iustices , That the Kings Charter hath relation to the time of the date , because that matters of Record carry in them by presumtion of Law for the Highness of them , truth , and therefore one cannot say , That such a Charter was made or delivered at another day , than at that at which it bears date ; So of a Recognizance , Statute , &c. but against Letters Patents a man may say , Non concessit , for perhaps nothing passeth thereby , Averment . and then it is not contrary to the Record . Atkinson contrary , I confess that the party himself ( whose Deed it was ) cannot take a direct averment against a Deed enrolled , but he may confess and avoid it , so as he leave it a Record , as if a Fine were levyed by another in my name of my Land , I am bound by it ; but if the Fine were levyed by another in my name I am not bound , for I may confess and avoid it , and yet leave the Record good ; but here the Plaintiff is a stranger to his Deed enrolled : And some Records shall bind all persons , as Certificates of Bastardy , &c. for all may give evidence in such case , 2 H. 5. Estoppel 91. A. makes a Feoffment in Fee , Co. 3 Inst. 230 , 231. and afterwards before the Coroner confesseth a Felony supposed to done before the Feoffment , the Feoffee shall have an averment against it . Egerton the Queens Solicitor , contrary , Matter of Record cannot be gainsaid in the point , or in matter of implication , and therefore against that he cannot say , Non est factum , 16 E. 3. Abb. 13. A Deed enrolled in pais , cannot be denyed , 24 E. 3. 64. A Deed enrolled is not a Record , but a thing recorded , which cannot be denyed . And here this plea is a violent averment against the Deed , for it amounts to as much as if he had said , Not his Deed at the time of the enrollment : but I confess that such a Deed may be avoided by a thing which stands with the Deed by matter out of the Deed. It hath been objected , That this acknowledging of the Deed ought to be made by Actorn●y , and therefore made in person it is not any acknowledgment , and so against such acknowledgment , Non est factum may be pleaded , and a Fine or confession in a Writ of annuity upon prescription , or in assise shall bind the house , See 16 E. 3. Abb. 13. That a fine , Recognizance , and Covenant of Record shall bind the House in such case . And the acknowledgment of the Prioress alone will serve in this Case , for the Nuns are as dead persons : And posito , that a Master of the Chancery comes into the Chapter-house , and receives such an acknowledgment , I conceive that it is good enough . It hath been objected , That here the Plaintiff is not estopped to take the averment , because we have not pleaded our matter by way of Estoppel ; certainly the same needs not here , for the Record it self carries the Estoppel with it , and the truth appeareth by the Record , and the Court ought to take hold of it . Godfrey contrary , A Deed enrolled may be avoided by matter , which is not contrary to the Record , as 19 R. 2. Estoppel 281. in sur cui in vita , a Release of the Mother of the Demandant with warranty was pleaded in Bar , and that enrolled , To which the Demandant said , That at the time of the Release supposed to be made , our mother had a husband one F. and so the Deed was void , and so avoided the Deed by matter dehors , scil . Coverture ; so of enfancy , but not by a general averment : A man no lettered shall avoid a Deed enrolled by such special matter ; so an obligation made against the Statute of 23 H. 6. and these special matters shall utterly avoid the Deeds against whom they are pleaded ; but in our case we do confess the Deed to be good to some intent , 1 Len. 84. scil. after our Lease expired , for which our case is the better case . And at another day it was objected , That the Deed could not be acknowledged without a Letter of Attorney , being a Corporation , which consisted upon divers persons , as Prioress and Covent , and they are alwaies to be intended to be in their Chapter-house , and cannot come into Court to acknowledge a Deed : To which it was answered by Cook , That this acknowledgment being generally pleaded , it shall be intended , that it was done by a Lawful means , and there is no doubt , but that such a Corporation may levy a Fine , and make a Letter of Attorney to acknowledge it , and see , 2 Ma. Fulmerstones case 105. It was further objcted , 2 Inst. 674. That this Deed was enrolled the same day that it beareth date , for the pleading is per factum suum gerens Datum , 2 Novemb. 29 Hen. 8. et iisdem die & anno irrotulat . And by the Statute such a Deed ought to be enrolled within six Months next after the date , so as the day of the date is excluded , and so it is not enrolled within six Months : As to that it was answered by Cook , That the time of computation doth begin presently after the delivery of the Deed , as in the common Cases of Leases , If a man makes a Lease for years to begin from the day of the date , the same is exclusive ; but if it be To have and to hold from the date of the Deed , it shall begin presently . And an Ejectment supposed the same day is good , and then here , this Enrolment is within the six Months ; Dyer 220. b. 1 Cro. 717. and yet see 5 Eliz. 128. Dyer , Pophams case . It was also objected , That it is alledged in the conusans , That the Manor was sold to the Lord Audley , and that the Deed of Bargain and Sale was acknowledged and enrolled in the Chancery , the said Lord being then Lord Chancelor , and he cannot take an acknowledgment of a Deed , or enrolment of it to himself , for he is the Sole Iudge in the said Court , so as the Deed is acknowledged before himself , and enrolled before himself , and that is good enough , for here we are not upon the common Law , but upon the Statute , and here the words of the Statute are performed . And the enrolment of the Deed is not the substance of the Deed , but the Deed it self . Also the acknowledgment of the Deed , after it is enrolled is not material , for he is estopped to say that it is not acknowledged . And as to the matter it self , a man shall not have averment against the purport of a Record , but against the operation of a Record , as not put in view , not comprised , partes ad finem nihil haberunt , &c. And against Letters Pattens of the King , Non concessit , is a good plea , which see 18 Eliz. for by such plea it is agreed , that it is a Record , but that nihil operatur .

CCLVIII. Osborn and Kirtons Case . Hill. 31 Eliz. In the Kings Bench. Rot. 258.

IN Debt upon an Obligation , The Defendant cast a Protection , Debt . upon which the Plaintiff did demur . Tanfield , The Protection is not good , for the Defendant is let to Bail , and so is intended always in prison , for so the Record makes mention , and then the Protection quia moratur in portubus Zeland is against the Record , Protection . and the Court ought to give credit to Records especially . Secondly , The words of the Protection are , That Kirton is imployed in Obsequio nostro , which is no cause of protection , for the usual form ( and so is the Law ) that such a person be imployed in negotio Regni , for the defence of England , &c. For if the King will give aid unto another Princes Subjects employed in such service , he shall not have Protection . And afterwards variance was objected betwixt the Bill and Declaration , and the Protection : for the Bill is against John Kirton of A. Gentleman , & the Protection is John Kirton only : But the same was holden no such variance being only in the Addition , for before the Statute 1 H 5. additions were not necessary in any actions .

CCLIX . Boyton and Andrews Case . Mich. 30 Eliz. Rot. 156. In the Kings Bench.

IN Debt upon an Obligation , the Condition was , Debt . 1 Cro. 135. to make sufficient assurance of certain Lands to the Obligee before the tenth day of March 17 Eliz. And if it fortune the said Obligee be unwilling to receive , or mislike such assurance , but shall make Request to have one hundred pounds for satisfaction thereof , Then if upon such Request , the Obligor pay one hundred pounds within five months , That then the Obligation shall be void . And at the day , the Obligee doth refuse the assurance , and afterwards 27 Eliz. request is made to have the hundred pounds , It was the clear opinion of the whole Court , That the said Request was well enough for the time , and he might make it at any time during his life , & he is not restrained to make it before the day in which the Assurance is to be made , and afterwards judgment was given for the Plaintiff .

CCLX . Knight and Savages Case . Mich. 29 , & 30 Eliz. Rot. 546. In the Kings Bench.

A Writ of Error was brought upon a Iudgment given in Leicester in Debt : Tanfield assigned Error , Error . 2 Cro. 206. 2 Cro. 109. 654. Sty . 91. Yel . 164. 165. Post . 302. because in that Suit there was not any plaint , and in all inferior Courts , the plaint is as the original at the common Law , and without that no process can issue forth . And here upon the Record nothing is entred but that the Defendant summonitus fuit , &c. and therefore the first entry ought to be A. B. queritur adversus , C , &c.

Clench , A Plaint ought to be entred before process issueth , & the summons which is entred here , is not any plaint , and for that cause the Iudgment was reversed : It was said , That after the Defendant appeared , a Plaint was entred , but it was said by the Court , That that shall not mend the matter , for there ought to be a plaint out of which the process shall issue , as in the Courts above out of the original Writs .

CCLXI . Kirby and Eccles Case . Trin. 31 Eliz. In the Kings Bench.

1 Cro. 137. IN an Action upon the Case the Plaintiff declared , Quod cum quaedam communicatio fuisset betwixt the Plaintiff , and one Cowper , That Cowper should mast certain Hogs for the Plaintiff , the Defendant did promise , That in consideration , that the Plaintiff promised give unto the Defendant three shillings and four pence , for the fatting of every Hog , That the said Hogs should be redelivered to him well fatted ; to which promise and warranty , the Plaintiff giving faith , delivered to the said Cowper one hundred and fifty Hogs to be masted ; and that one hundred of them were delivered back , but the residue were not : It was moved , That here is not any consideration for which the Defendant should be charged with any promise : but it was argued , on the other side , That the Promise was the cause of the Contract , and being made at the time of the Communication and contract , should charge the Defendant ; but if the promise were at another time , it should be otherwise . There was a Case lately betwixt Smith and Edmunds , Two Merchants , being reciprocally endebted the one to the other , agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith , who promised that he would not deliver them to the parties until all accounts were ended betwixt them ; and yet he did deliver them , and for that an Action brought against him was adjudged maintainable : yet there was not any consideration , nor was it material , for the action is grounded upon the Deceit , and so is it here , upon the Warranty : And of that opinion were Clench and Wray , Iustices ; but Gawdy was of a contrary opinion .

CCLXII . Woodshaw and Fulmerstones Case . Hill. 30. Eliz. Rot. 699 In the Kings Bench.

WOodshaw , Executor of Heywood , brought Debt upon a Bond against Richard Fulmerstone , and the Writ was dated October Mich. 29 & 30 Eliz. and the Condition of the Bond was , That if Fulmerstone died before his Age of one and twenty years , and before that he had made a Ioynture to A. his Wife , Daughter of the Testator Heywood , Then if the said Defendant caused one hundred pounds to be payed to the said Heywood , within three months after the death of the said William , that then the Bond should be void ; and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready , &c. The Plaintiff doth traverse , absque hoc , that the said Heywood died intestate . Tanfield , It appeareth of Record that the Plaintiff hath not cause of action , for this one hundred pounds , was to be paid within three Months after the death of William Fulmerstone , 1 Cro. 271 , 325 , 565. as the Defendant hath alledged , which is also confessed by the Plaintiff , and this Action is entred Mich. October 30 Eliz. scil . within a month after the death of William Fulmerstone , and so before the Plaintiff hath cause of action , and therefore he shall be barred . Gawdy , Where it appeareth to the Court , that the Plaintiff hath not cause of Action , he shall never have Iudgment , as in the Case betwixt Tilly and Wordy , 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action , for where a man is bound in an obligation , the same is a duty presently , Obligation . and the condition is but in defeazance of it , which the Defendant may plead in his discharge .

CCLXIII . Windham and Sir Edward Cleers Case . Trin. 31 Eliz. In the Kings Bench.

ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject , Action upon the Case of sclander . 1 Cro. 130. and of good fame all his life time , nor ever touched , or reproched with any offence of Ro●ery , &c. the Defendant , malitiose & invide machinams ipsum Rogerum , de bonis , nomine , fama et vita deprivare , directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff : And it was alledged in the said Warrant , That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested , and so detained until he had entred into a Bond for his appearance , &c. whereas in truth , he was never accused thereof , nor ever stole such horse ; and whereas the Defendant himself knew that the Plaintiff was guiltless ; by reason of which , he was greatly discredited , &c. And it was found for the Plaintiff ; And it was moved , that upon this matter an Action doth not lye , for a Iustice of Peace if he suspect any person of Felony , or other such Offence may direct his Warrant to arrest him . 14. H. 8. 16 Gaudy and Clench , If a man be accused to a Iustice of Peace for Felony , for which he directs his Warrant to arrest him , although the accusation be false the Iustice of Peace is excused , but if the party in truth was not accused before the Iustice , it is otherwise : It was a Case lately betwixt the Lord Lumley and Foord , where Foord in a letter written by him , had written , It is reported , That my Lord Lumley seeketh my life : If it was not Reported , an Action upon the Case lieth , but if reported , no Action lieth : So here , if he was accused no Action lieth , but if not , an Action lieth : And afterwards in the principal Case , Iudgment was given for the Plaintiff .

CCLXIV . Isleys Case . Trin. 31 Eliz. In the Kings Bench.

ISley and others were Plaintiffs in an Ejectione firmae , and upon the general Issue it was found for the Plaintiffs , and 4 days after the verdict given , was moved in stay of judgment a special ma●ter in Law , whereof the Iustices were not resolved for the law , but took advisement and gave day over ; and in the mean time one of the Plaintiffs died , which matter the Defendant shewed to the Court in further stay of the Iudgment : But by Coke , the same is not any cause , for the Postea came in Quindena Pasch . which was 16 Aprilis , at which day the Court ought to have given Iudgment presently , but took time to be advised , and the 19 of April , one of the Plaintiffs died ; And the favour of the Court ought not to prejudice us ; for the Iudgment here shall have Relation to the 16 of April , at which time he was alive ; and it was so of late adjudged in the Case of Derick James , who died the day after the verdict , and yet Iudgment was not stayed , for the Court after verdict cannot examine surmises , and they have not a day in Court to plead , and in our case , It was but a day of Grace , and no entry is made of it ; Although no plea can be now pleaded after verdict , yet as amicus curiae , one may inform us of such matter : And sometimes in such case , Iudgment hath been stayed , as 9 Eliz. and sometimes notwithstanding such Exception , as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices . And because the same was a hard verdict , and much against the Evidence , It is good discretion upon this matter to stay Iudgment , and such was the opinion of the Court.

CCLXV. Steed and Courtneys Case . Trin. 31 Eliz. In the Kings Bench.

Error . 1 Cro. 116. Owen 93. More . 691. Prescription to levy a fine , not good . ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter . And two Errors were assigned : First , The Plaint was , quod teneat convent . de duobus tenementis . Whereas in truth , the word Tenement doth not comprehend any certainty , for in the Word ( Tenement ) is understood , Messuage , Land , Meadow , Pasture , &c. and whatsoever syeth in tenure : And 11 H. 6. 18. by grant of Lands and Tenements , Rent or Common shall pass . And an Ejectione firmae both not lye of a Tenement , nor a forcible entry supposed in a Tenement , 11 H. 7. 25. & 38 H. 6. 1. Another error was , because the Fine was levyed in the Court of the City of Exceter : Which see 44 E. 3. 37 , 38. Those of Exceter can prescribe to have the Conusans ; but the same ought to be by special Charter of the King by express words . Egerton the Queens Solicitor , who sate under the Iustices , and was not of Counsel in the case said , 2 Inst. 515. 1 Roll. 489. That he was of Counsel in a case betwixt Bunbery and Bird , where such a Fine levyed in Chester by prescription was in question , was by a Writ of Error reversed : And afterwards in the principal case the Fine was reversed for the first Error .

CCLXVI. Trin. 31 Eliz. In the Kings Bench.

1 Cro. 96. 97. THe Case was this , Grandfather , Father and Son : The Grandfather seised of a house called the Swan in Ipswich , devised the same to his eldest Son for life , the Remainder to A. Son of his eldest Son , and the heirs males of his body , Devises . the Remainder to the right heirs of the Devisor , and to the heirs males of his body , and died . The Father and Son died without issue male , the Son having issue a Daughter , who entred and assured the Land unto one Hawes , and covenanted , That she was seised of the said Messuage of a certain and sure estate in Fee-simple . Godfrey , That the Daughter shall take the last Remainder , as right heir at the time that it ought to be executed , & to the heirs males of her body , as if it had been devised to her by her proper Name , so she hath but an estate tail , and so the covenant is broken . Cook contrary : At the time that the devise took effect by the death of the Devisor , the Father was his Right heir , so as the Remainder vested in him immediately , Antea 182. and shall not expect in abeyance until the Father and Son dye without heir male of the Son , for the Father is a person able to take , so that upon the death of the Devisor , the Father is Tenant for life , the Remainder to the Son , and the heirs males of his body , the Remainder to the Father in tail ut supra , the Reversion to the Father in fee , and the Daughter hath the same Reversion by discent after the Entayls spent ; all which Wray Iustice granted .

CCLXVII Galliard and Archers Case . Mich. 31 & 32 Eliz. In the Common Pleas , Intrat . Trin. 31 Eliz. Rot. 1529.

GAlliard brought an Action upon the Case against Archer ; Trover and Conversion . The Plaintiff declared , That he himself was possessed of certain goods , which by trover came to the hands of the Defendant , who hath converted them to his own use : The Defendant pleaded , Postea . ●●● . That before the Trover supposed , one A. was possessed of the said goods as of his proper goods , and sold them to the Defendant , and that he had not any notice that the said goods were the goods of the Plaintiff , upon which the Plaintiff did demur in Law. And by Anderson the plea is not good , for the Plaintiff may chuse to have his Action against the first finder , or against any other , which gets the goods after by Sale , Gift , or Trover ; And by some , Postea . 253. The Defendant having the goods by Sale , might traverse the finding : See Contr. 27 H. 6. 13. a. And see by some , In detinue , where the Plaintiff declares of a Bailment , The Defendant may say , That he found them , and traverse the Bailment , 39 H. 6. 37. by Moile ; and by Windham Iustice , The Defendant may traverse the property of the goods in the Plaintiff , 12 E. 4. 11.

CCLXVIII . Edwards and Tedbuties Case . Mich. 31 & 32 Eliz. In the Common Pleas.

EDwards of London was endebted unto one A. of the same City , Bailment of goods to a Carrier . and Edwards delivered goods to one Tedbury Carrier of Exceter , who went to him to carry for him certain Wares to be carried to Exceter , to certain Tradesmen there , the said goods to be delivered to them , &c. And so the said goods , Wares , and Merchandizes , being in the possession of the Defendant Tedbury to be carried to Exceter , the said A. caused them to be attached in the hands of the said Carrier , for the Debt of the said Edwards , The said Carrier being then priviledged in the Common Pleas , by reason of an Action there depending . And by the clear opinion of the whole Court , the said Attachment ought to be dissolved : Attachment of goods . For the Carrier for the reason aforesaid is priviledged in his parson , and his goods , and not only in his own goods , whereof the property belongs to him , but also in such goods in his possession for which he is answerable to others , &c. And so it was adjudged .

CCLXIX . Cockshal , and the Mayor , &c. of Boaltons Case . Mich. 31 & 32 Eliz. In the Common Pleas.

HEnry Cockshal brought an Action upon the case against the Mayor , Con●pi●●●● . Town-Clark , and Goal or of Boalton , in the County of L. and declared , That where he himself had affirmed a Plaint of Debt in the Court of the said Town , before the said Mayor , &c. against I.S. and thereupon had caused the said I.S. to be arrested , The said Defendants did conspire together to delay the Plaintiff of his said suit , in peril of his Debt , had let the said I. S. go at large without taking Bail. Periam Iustice conceived , That upon that matter , the Action doth not lye , for the not taking of Bail is a judicial act , for which he shall not be impeached : But all the other Iustices were strongly of opinion against him , for the not taking of Bail is not the cause of the Action , but the Conspiracy .

CCLXX. Erbery and Lattons Case . Mich. 31 & 32 Eliz. In the Common Pleas.

1 And. 234. IN a Replevin , The Defendant doth avow because he is seised of such a Manor within which there is a Custom , That the greater part of the Tenants at any Court within the said Manor holden appearing may make By-laws , for the most profit and best government of the Tenants of the said Manor , &c. and that such By-laws should bind all Tenants , &c. and shewed further , That at such a Court holden within the said Manor the Homage there , being the greater part of Tenants of the Mannor aforesaid , at the Court aforesaid appearing , made this By-law , scilicet , That no Tenant of the said Manor should put into such a Common any Steer being a year old or more , upon pain of six pence for every such Offence , and that it should be lawful to distreyn for the same : And the Court was Clear of opinion , That the By-law was utterly void , For it is against Common Right , where a man hath Common for all his Cattel Commonable , to restrain him to one kind of Cattel , &c. But if the By-law had bin , That none should put in his Cattel before such a day , the same had bin good , for such By-law doth not take away , but order the Inheritance ; For the nature of a By-law is to put Order betwixt the Tenants concerning their affayrs within the Manor which by law they are not compellable to do : And by Periam , The Avowant ought to have averred , That this By-law was for the Common profit of the Tenants : See the Lord Cromwells Case . 15 Eliz. Dyer 322. and afterwards in the Principal Case , Iudgment was given against the Avowant .

CCLXXI. Wicks and Dennis Case . Mich. 31 & 32 Eliz. In the Common Pleas.

Replevin . WIcks brought a Replevin of Dennis , who avowed , That one Dennis his Father was seised of the Manor , &c. and granted out of it to the avowant a Rent of twenty pounds per annum , and further granted , That if the said Rent be arrear unpaid six days after the feasts , &c. wherein it ought to be paid , si licite petatur , That then it should be lawful to distrein ; The grantor afterward by Indenture Covenanted with the Lord Treasurer and others , to stand seised of the same Manor , unto the use of himself and his heirs , until he or his heirs have made default in they payment of one hundred pounds per annum , until three thousand pounds be paid , and after default of payment , to the use of the Queen and her heirs , until the sum of three thousand pounds should be paid and levied ; The grantor afterwards levied a fine to the said Lord Treasurer and others to the uses aforesaid , the Rent is arrear ; default of the payment of the hundred pounds in made , Office is found , The Queen seised the land , the Avowant during the possession of the Q. demanded the Rent , & the arrearages thereof , The Queen granted over the Manor to W. & B. & D. the grantee did distrain for the rent , & arrearages demanded , ut supra . It was moved by H. Serjeant That this demand of several sums payable at several days before , is not good ; for every sum ought to be severally demanded when it was first due , scil. si licite petatur , scil. within the six days ; for otherwise without such demand , distress is not lawful , and he resembled it to the case of Sir Thomas Gresham 23. Elizabeth Dyer , 372 of several Tenders . Periam conceived that the demand ought to be several . Anderson , That the demand is good enough . And as to the demand made during the possession of the Queen , It was holden by the whole Court to be good enough ; for although the possession of the Queen be priviledged , as to the distress , yet the demand is good , Demand of Rent charge during the possession of the King ; good . without any wrong to her prerogative ; for the Rent in right is due , and the possession of the Queen is in right charged with it , and the Rent , is only recoverable by Petition , as it was by way of distress ; and if the partie sueth to the Queen by Petition for the said Rent , he ought to shew in his Petition , that he hath demanded the Rent , for if the possession had bin in a common person , he could not distreyn before demand , nor by consequence have Assise : And the Rent , notwithstanding the possession of the Queen , is demandable and payable for to entitle the party unto Petition against the Queen , and to distress against the subject when the possession of the Queen is removed . And see 7 H. 6. 40. disseisee may make continual claym , although the possession of the Land of which he is disseised be in the King. And 34 H. Br. seisin 48. If the heir at full Age intrude upon the possession of the King , and pays Rent to the Lord of his Land holden of a subject , the same is a good seisin , and shall bind the heir after he hath sued his livery 5 E. 4. 4. and see 13 H. 7. 15. That distress taken upon the possession of the King is not lawful , but seisin obtained during it , is good . So in 21 H. 7. 2.

CCLXXII . Ashegells and Dennis Case . Mich. 31 , & 32 Eliz. In the Com. Pleas. Int. M. 30 & 31. Rot. 458.

AShegel brought a Quare Impedit against Dennis , Quare Impedit . 1 Cro. 163. Hob. 304. and the Plaintiff Counted that the Defendant had disturbed him to present ad vicariam de D. and shewed that the Queen was seised of the Rectory of D. and of the Advowson of the vicaridge of D. and by her letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis , & etiam vicariam Ecclesiae praedict. And it was holden by the whole Court , That the Advowson of the vicaridge by these words doth not pass ; nor so in the Case of a common person , much less in the Case of the King : But if the Queen had granted Ecclesiam suam of D. then , by Walmesley Iustice , the Advowson of the vicaridge had passed .

CCLXXIII . Collman and Sir Hugh Portmans Case . Mich. 31 , & 32 Eliz. In the Common Pleas.

IN Ejectione firmae by Collman against Sir Hugh Portman it was found by special verdict , Ejectione firmae That the lands where were holden by Copy of the Manor of D. whereof Sir H. Portman , was seised , and that the Plaintiff was Copyholder in Fee , and further found , That the said Sir H. pretending the said Copy-hold lands to be forfeited , Surrender of Copy-holder . entred into Communication with Collman touching the same , upon which Communication it was agreed betwixt them , That the said Collman should pay to the said Sir Hugh five pounds , which was paid accordingly , & that in consideration thereof , Collman should enjoy the said Customary lands , except one Wood called Combwood for his life , and also of Alice his wife , durante sua viduitate , and that Collman should have Election whether the said lands should be assured unto him and his said wife by Copy , or by Bill , &c. & he chose by Bill , which was made accordingly ; and further found , That the said Sir H. held and enjoyed in his possession the said Wood , &c. & upon this matter , The Court was clear in opinion , That here is a good surrender of the said lands , and that for life only , and that the said Sir Hugh had the Wood discharged of the customary interest .

CCLXXIV . Thetford and Thetfords Case . Mich. 31 , & 32 Eliz. In the Common Pleas.

Debt . IN an Action of Debt for Rent , the Plaintiff declared , That Land was given to him , and to T. his wife , and to the heirs of their bodies , and that his wife leased the Lands to the Defendant , and that the Donees were dead , and that the Plaintiff as heir , &c. for rent arrear , &c. and upon Non demiserunt , the Iury found that the Husband and Wife demiserunt , by Indenture , and afterwards the husband died , and the wife entred , and within the term died : Now upon the matter it seemed clear to Anderson , that the Iury have found for the Defendant , scil. Non demiserunt , for it is now no lease ab initio , because the Plaintiff hath not declared upon a Deed. Hutt. 102. Dy. 91. 2 Co. 61. 1 Ma. Dyer 91. and also the wife by her disagreement to it , and the occupation of the Land after the death of her Husband , hath made it the Lease of the Husband only .

CCLXXV . Rockwood and Rockwoods Case . Mich. 31 , & 32 Eliz. In the Common Pleas.

Assumpsit . 1 Cro. 163. IN an Action upon the case , the case was this . The Father of the Plaintiff and Defendant being sick , and in danger of death , and incending to make his Will , In the presence of both his Sons the Plaintiff and Defendant , declared his meaning to be , To devise to the Plaintiff his younger Son a Rent of 4 l. per annum , for the term of his life out of his Lands , and the Defendant being the eldest Son ( the intention of his Father being to charge the Land with the said Rent ) offered to his Father and Brother , That if the Father would forbear to charge the Land with the said Rent , he promised he would pay the 4 l. yearly to his Brother during the life of his Brother , according to the intention of his said Father ; Whereupon the Father asked the Plaintiff if he would accept of the offer and promised of his Brother : who answered , he would ; whereupon the Father relying upon the promise of his said eldest Son , forbore to devise the said Rent , &c. so as the Land descended to the Eldest Son discharged of the Rent : and the opinion of the whole Court in this case was clear , that upon the whole matter the action did well lye .

CCLXXVI . Petty and Trivilians Case . Mich. 31 , & 32 Eliz. In the Common Pleas.

Livery of seisin . HUmphrey Petty brought Second Deliverance against William Trivilian , and upon especial verdict the case was , That A. was seised of certain Land , and Leased the same for years , and afterwards made a Deed of Feoffment unto B. and a Letter of Attorney to the Lessee , C. and D. conjunctim vel divisim in omnia & singula terras et Tenementa intrate et seisinam inde , &c. secundum formam Chartae , &c. Lessee for years by himself makes Livery and seisin in one part of the Land , and C. in another part , and D. by himself in another part ; It was first agreed by the Iustices , that by that Livery by Lessee for years his Interest and Term is not determined , for whatsoever he doth , he doth it as an Officer , or Servant to the Lessor . Secondly , It was agreed , That these several Liveries were good and warranted by the Letter of Attorney , especially by reason of these words , In omnia & singula , &c. So as all of them , and every of them might enter and make Livery in any and every part . And so it was adjudged .

CCLXXVII . Rigden and Palmers Case . Mich. 31 & 32 Eliz. In the Common Pleas.

RIgden brought a Replevin against Palmer , who avowed for damage feasant in his Freehold : The Plaintiff said , Replevin . That long time before that Palmer had any thing , he himself was seised , until by A. B. and C disseissed , against whom he brought an Assise , and recovered , Avowry . and the estate of the Plaintiff was mean between the Assise , and the recovery in it : The Defendant said , That long time before the Plaintiff had any thing , One Griffith was seised , and did enfeoff him ; absque hoc , that the said A. B. and C. vel eorum aliquis aliquid habuere in the Lands , at the time of the Recovery . Walmsley Iustice was of opinion , That the Bar unto the Avowry , was not good , for that the Plaintiff hath not alledged , That A.B. and C. Ter-Tenants tempore recuperationis , and that ought to be shewed in every recovery , where it is pleaded . And then when the Defendant traverseth that which is not alledged it is not good . Windham contrary : For the Assise might be brought against others as well as the Tenants ; as against disseisors : But other real actions ought to be brought against the Ter-Tenants only , and therefore it needs not to shew , that they were Ter-Tenants at the time of the Recovery ; and also the traverse here is well enough : Another Exception was taken , because the Avowry is , That the place in which , conteineth an 100 Acres of Land , The Plaintiff in bar of the Avowry saith , that the place in which , &c. conteins 35 Acres , &c. but that Exception was not allowed , for it is but matter of form , & is helped by the Statute of 27 Eliz. Another Exception was taken , as to the hundred of Cattel , and doth not shew in certain , if they were Ewes , Sty . 71. 264. or Lambs , or how many of each : which also was dissallowed , for the Sheriff upon Returno habendo may enquire what cattel they were in certain , and so by such means the Avowry shall be reduced to certainty .

CCLXXVIII . RUssell and Prats Case . Mich. 31 & 32 Eliz. In the Exchequer Chamber .

RUsell brought an action upon the case against Prat , and declared , That certain goods of the Testator casually came to the Defendants hands ; and upon matter in Law Iudgment was given for the Plaintiff , sed quia nescitur quae damna , Error . &c. Ideo a writ of Enquiry of Damages issued , and now Prat brought a Writ of Error in the Exchequer Chamber upon the Statute of 27 Eliz. cap. 8. But note , That the Iudgment was given before the said Statute , but the Writ of Enquiry of Damages was retorned after the said Statute , Writ of Enquiry of Damages . & the said Statute doth not extend but to Iudgments given after the making of it . And it was moved , That the said Iudgment is not to be examined here ; but by the clear opinion of Anderson , Manwood , Windham , Walmesley , Gent , and Clark , Iustices of the Common Pleas , and Barons of the Exchequer , the Writ of Error lyeth here by the Statute , 1 Cro. 235. for in an action of Trespass ( as this case is ) full judgment is not given , until the Writ of damages be retorned ; And if before the Retorn of it any of the parties dieth , the Writ shall abate : and the first Iudg●ent which is given before Award of the Writ is not properly a Iudgment , but rather a Rule , and order , and so in a Writ of accompt , where Iudgment is given that the Defendant computet cum querente , he shall not have Error upon that matter , for it is not a full Iudgment . See 21 E. 3. 9. So as to the Iudgment in a Writ of Trespass , scil. That no Writ of Error lyeth before the second Iudgment after the Return of the Writ of Enquiry of Damages are given : And also it was holden by all the said Iustices and Barons , That an Executor shall have an action upon the case de bonis testatoris , casually come to the hands and possession of another , Action , de bonis Testatoris . and by him converted to his own use in the life of the Testator , and that by the Equity of the Statute of 4 E. 3. 7. de bonis asportatis in vita Testatoris .

CCLXXVIII . Arrundel and the Bishop of Gloucesters , and Chaffins Case . Mich. 31 & 32 Eliz. In the Common Pleas.

Quare Impedit . SIir John Arrundel brought a Quare Impedit against the Bishop of Gloucester , and Chaffin , and counted upon a disturbance to present 1 Novembris . Chaffin , as incumbent pleaded , That 1 Maii next after the said 1 Novemb. he himself was presented to the Church by the Queen , the presentment to the said Church being devolved unto her by Lapse . Vpon which the Plaintiff did demur in Law : And the plea was holden insufficient , for the Plaintiff counted upon a Disturbance to him 1 Novem. and the Defendant entitleth himself to an incumbency 1 May after , in which case the disturbance set forth in the Count is not answered by traverse , nor confessed , nor avoided : And of that opinion was the whole Court : For the disturbance , of which the Plaintiff hath declared , is confessed . And afterwards , It was moved by the Queens Serjeants , That the Queen might have a Writ to the Bishop , Writ to the Bishop . for the title of the Queen appeareth to be by Lapse which is confessed , But the whole Court were clear of opinion against it : For although it appeareth that he was lawfully presented to the said Church , and so once lawfull Incumbent , yet it appeareth also , That the title of the Queen is once executed , and so gon , and nothing remains in the Queen , and now when the Defendant hath lost his incumbency by ill pleading ( as he may ) as well as by Resignation or Deprivation , yet the same shall not turn to the advantage of the Queen , for where the Queen presents for laps , and her Clark is instituted and inducted , the Queen hath no more to do , but the Incumbent must shift as well as he can for the holding of it , for by what manner so ever he loseth his incumbency the Queen shall not present again ; otherwise it had been , if the Queen be Patron , and afterwards the Plaintiff had a Writ to the Bishop .

CCLXXIX . The Lord Pagets Case , in a Monstrans de Droit . The Case was . Mich. 31 & 32 Eliz. In the Exchequer Chamber .

More 193 , 194 1 Co. 154. 1 And. 259. THomas Lord Paget , Father of William Paget , was seised of the Mannor of Burston , and divers other Mannors in three several Counties in his demesne as of fee , and so seised by Indenture , between the said Lord of the one part , and Trentham and others on the other part , and in consideration that the said Trentham and others , with the profits of the said Mannors should pay his debts , and such sums of money which were contained in such a Schedule , and which he should appoint by his last Will , covenanted to stand seised of the said Mannors to the use of the said Trentham of one Eusal , &c. for the term of four and twenty years , and after the Expiration or end of the said Term of twenty four years , unto the use of the said William Paget , his Son in tail , with diverse Remainders over : And afterwards the said Lord Paget was attainted of high Treason . It was here holden and agreed by all the Iustices , and by the Council of both sides , That the uses limited to Trentham , and others are void , for here is not any consideration sufficient to raise an use , for the mony which is appointed for the payment of his debts is to be raised of the profits of the Lands of the said Lord , Declaration of uses . which is not any consideration on the part of Trentham and others : But if the consideration had been , That they with the Profits of their own Lands should pay the debts , &c. It had been a good Consideration : It was agreed also , That the term for twenty four years to Eusal is void for want of sufficient consideration : And then it was moved , If this Lease being void , The use limited to the said William Paget , Son of the said Lord Paget should being presently upon the death of the Lord Paget , or should expect until the twenty four years were encurred after the death of the Lord Paget , or not at all . And it was argued , That an use to be raised upon an impossibility should never rise , as if I covenant to stand seised to the use of B. and his Heirs , after the end of the term for years , which I.S. hath in the Mannor of D. whereas in truth , I. S. hath not any term in it , the said use shall never rise : so here , Use cannot rise out of a possibility . No use to the Son can rise , for the lease for twenty four years shall never end , for it never can begin for want of sufficient consideration as is aforesaid ; and if the said use in tail should at all rise , it should not rise before the expiration of the said twenty four years . As if I covenant to stand seised of certain Lands to your use when my Son and Heir shall come to the age of one and twenty years , now if my Son dieth before such age , The use shall not begin before the time in which my Son ( if he shall live ) should attain unto his said age . Egerton the Queens Solicitor , Vses may be limited to begin at times certain before which they shall not begin : and so in our case , the use in tail in limited to begin when the term of twenty four years , is ended , and therefore until the Term be ended no use shall rise : and the use is limited to rise upon the end of the time or term of four & twenty years , and not upon the end of the estate ; and so William Paget hath begun his Monstrans de Droit before his time . The Lord Paget had but an estate for life ; and if so , Then the Remainders are not continggent uses , but vest presently : as if a man covenant , That after his death his Son and Heir shall have his Lands , now the Father hath but an estate for life , and the inheritance is vested in the Son. Cook , I covenant , That after twenty four years ended , I and my Heirs will stand seised to the use of my Son , &c. there the use in Fee doth vest in my Son presently : So I covenant , That after my death , I and every one who shall be seised , &c. shall be seised of the said Land to the use of my Brother , the said use shall rise to my Brother presently : I devise ▪ That after the death of such a Monk , I.S. shall have the Land , nothing passeth to I.S. till the death of the Monk ; but if Land be devised to a Monk for life , and afterwrds to another in Fee , the Devisee in Fee shall have the Land presently . Manwood , A devise or use limited to one for life , the Remainder in tail , the first devisee doth disagree . Cook , the Remainder doth vest presently . Manwood , I devise lands unto one until my Son comes of full age . Cook , The remainder doth vest presently . Manw. A use limited to one to begin at Mich. next , the remainder over , if in the mean time the Lessee obtain the good will of I.S. which he cannot obtain , the same remainder is not good . And if one covenant to stand seised to the use of Salisbury plain , for the life of I. S. and after the remainder to A , it is a plain case , That he in the remainder shall take presently , 37 H. 6. 36. Cestuy que use willed , That his Feoffees should make an estate to A. for life , the remainder to C. in fee , & A. would not take the estate , C. shall have a Subpoena against the Feoffees after the death of A. See there the case ; And if Land deviseable , be devised to one for life , the Remainder over to another in Fee , and the Devisee for life doth refuse ; Quaere , if the Devisee in Remainder shall enter presently , See Fitz. Subpoena ; And also he put the Case , where Land is devised to a Monk for life , the Remainder over to another in Fee , he in the Remainder shall enter presently , see the same Case in Perkins 108. for the Monk never took any thing by the devise , & notwithstanding that there is not any particular estate upon which a Remainder can depend , yet the intent of the Devisor shall be observed in as much as it may , and the particular estate limited to the Monk is meerly void , of which every stranger shall take advantage , &c. And it was resembled to a Case in Baintons Case , where an use in Remainder limited upon good consideration shall be good in Law , although the particular use be not grounded upon good consideration , & so faileth : And he urged a Case alleadged by Popham in the Case of the Earl of Bedford , that if in Cranmers Case , the estate for years limited to the Executors , 2 Le● . 5. 6. had been limited to Administrators , it had been meerly void , and the use in tail limited in tail should begin presently , & that was by reason of the interval betwixt the death of Cranmer , & the taking of the Letters of Administration , in which mean time there is not any person capable , and therefore the Remainder shall vest presently , which is a fit case to prove the Case at Bar : And he remembred that in the Argument of Cranmers Case , Lovelace Serjeant , would have an Occupancy in the Case of such a Term limited to Administrators , quod omnes Justiciarii negaverunt : and in the said Case of Cranmer , it was holden that the Lease for years being void , the estate in the Remainder did begin presently , without expecting the effluxion of the years , &c. And truly , a Term imports in it self an Interest , but if the limitation had been after the Term of twenty four years , &c. the same implyeth but a bare time : And to that purpose he cited the Case 35 H. 8. Br. Exposition , 44. A. Leaseth to B. for ten years , & it is covenanted betwixt them , that if B. pay unto A. within the said ten years one hundred pounds , that then he shall be seised to the use of B. in Fee , B. surrenders his Term to A. and within the said ten years pays the one hundred pounds to A. here B. shall have Fee , for the years are certain ; contrary , if the Covenant had been , If he pay within the Term.

Popham Attorney General Contrary , The use shall not go beyond the Contract , & here the Term doth not vest , in that it was Limited for want of sufficient consideration , of the Lord Paget , & the intent was not that his son should have possession of the land before the term of 24. years expired .

Use what it is . A use is a thing in Conscience , according to confidence to be guided by the intent of the parties : & upon such Case at the Common Law W. Paget should not have a Subpoena before the years expired , and this word ( Term ) doth not alter the Case ; and there is a great difference betwixt an use raised by Feoffment and an use raised by Covenant , For in the first case the Feffor doth dipossess himself utterly , & if it takes not effect to one purpose it shall take effect to another purpose : But in the Case of a Covenant it is otherwise , for the use riseth according to the contract & not otherwise , & here the Contract is , That W. Paget shall have the Land not immediatly after the death of his Father , but after the 24 years expire .

Owen Serjeant , It hath been agreed of both sides , That every use shall go according to the intent of the parties , and here it appeareth , That it was the intent of the Lord Paget , to put all the use out of himself , and I see not any difference betwixt an use raised by Covenant and a use raised by Feoffment . For a use limited utrovis modo to Pauls Steeple for the life of A. and after to the use of B. in Fee , the first use is void , but the second good ; and here the meaning of the Lord Paget plainly appears , for there is a Proviso in the Indenture , That after the said debts and legacies paid , the use limited for 24 years shall cease , and it is exprestly averred , that they are paid 11. H. 4. A. leaseth for life , the remainder in tail to himself , the Remainder over to a stranger in Fee , the mean Remainder limited by A. to himself is void , and the remainder over shall be immediate to the estate for life . Egerton , The words of the Indenture , and the intent of the parties are the rules of uses , The first use is void , For the intent of the Lord Paget was void , because contrary to the Law , and Eusal , to whom the use for years was limited , could not take presently , for his estate is limited to begin after the death of the Lord Paget ; and there is a great difference betwixt uses raised by Covenant , and by Feoffment , For when a use is raised by Feoffment , there all is out of the Feoffor , the land is gone , the use is gone , the trust is gone , nothing remaineth but a bare authority to raise uses out of the possession of the Feoffees , & being new uses , there although some of them be void , yet the other shall stand ; but where a use is raised by way of Covenant there the covenantor continues in possession , there the uses limited , if they be according to Law , shall raise & draw the possession out of him , but if not , the possession shall remain in him , until a lawful use shall arise , which before its time shall not rise for any defect in the precedent use . And here is no Term , therefore no end , for that which hath not a begining hath no ending , And if there be no estate , then no Term , & if there be so , then it is to be taken for the time of 24. years , which is not as yet expired , and then was there in the Lord Pawlet an estate descendable for 24 years , which by the Attainder doth accrue unto the Queen . And he cited the Case of 13 Eliz. Dyer . 300. Feoffment to the use of himself for life , and afterwards to the use of a woman which he entendeth to marry , until the issue which he should beget on the said woman should come unto the age of 21. years , and then to the use of the woman during her widow-hood ; They are married , the Husband dieth without issue , the Wife shall hold the land : But by him , if this use had bin raised by way of Covenant it should be otherwise . Coke Admit that all the uses be good , yet his meaning was , That the debts and legacies being paid W. Paget should have his land , for it is provided by the Indenture , That when the debts & legacies are paid , the estate for 24. years shall cease . Manwood , The payment of the debts cannot end that which never was , and as to the two first estates , they were never out of him , therefore they came unto the Q. by his attainder . Coke , After debts and legacies paid all other estates but the estate of W. Paget cease , therefore William Paget shall have the Land . And the rule of Shelly 35 H. 8. 56 is worthy to be received , scil. That learning is honest , & wished to be used , that every man learned in the Law , do construe Deeds according to the meanings of the makers . Manwood , A Feoffment to the use of Salisbury Plain for the life of I. S. the Remainder over , the same use shall come into possession presently , for there is not any person capable of the particular estate , but where the first use is limited to a Bastard , the remainder over , there , the Remainder shall not come into possession presently , for the Bastard is a person capable , but not by such form of conveyance in consideration of natural affection . Popham , In the case of Bastard , there was an estate for life executed to the Father in possession , & then a Remainder to a Bastard , the Remainder to the Sons lawfully begotten ; but here in our Case no estate is created to precede the estate of William Paget , upon which the Remainder can depend .

At another day , It was argued by Coke , It is to be agreed on both sides , That the estate for four and twenty years is meerly void , and also the first use limited to Trentham and others , and it is not reason , that the use limited to William Paget , should expect until the four and twenty years be expired by effluxion of time , and to that purpose he cited Cranmers Case , where an estate in use was limited to Cranmer for life , the Remainder to his Executors for one and twenty years , the Remainder over in tail to his Son and Heir , &c. Cranmer is attainted of Treason and Heresy , so as he could not make a Will , or Executors , there it is holden , That the term is void , because no Executors , and that the Remainder in use should vest presently , and should not expect until the said number of years expire by effluxion of time . And difference hath been put betwixt the case of Cranmer , and the Case at Bar , because in Cranmers Case there was a possibility at the beginning that the Term for years might be good , for the term became void by matter ex post facto , sci . By the attainder of him , which disabled him to make Executors , but in the Case at Bar , the term for twenty four years was expresly void ab initio : But that difference is without reason , for what reason is there , That the Remainder should be father off the possession when the estate for years is originally void , than when it becomes void by matter ex post facto ? Suppose that the Lord Paget had by Indenture covenanted as above for the two first uses , ( being in truth void in Law ) and afterwards by another Indenture , reciting , That whereas he had covenanted , That in consideration That A. with the profits of his Lands should pay his debts , &c. to stand seised of the said Lands for his own life : Now he covenants , to stand seised to the use of William Paget , and his Heirs , should not he presently be seised to the use of William Paget , and his Heirs , although the words be , That then and from thenceforth ? For I hold it a clear case , that his estate begins presently , being limited , to begin upon a void estate , althouh the limitation be by words de futuro . And to this purpose he cited the case 3 E. 6. Br. Lease 62. A man leaseth for years , Habendum post dimissionem inde fact . to J.S. finitam , where no such demise is made , the same Lease shall begin presently : If an Indenture be made to a Monk , and another , Habend . to the Monk for one and twenty years , and after the end of that , to the other for one and twenty years , the other shall have it presently . And he put a Case 7 E. 3. in the new Impression 19. and in the old Impression 317. Where one Maud brought a Formedon in the Remainder , and counted that one Hamond was seised , and gave the said Tenements to one Robert , &c. in tail , and that for want of such issue , that the Tenements should return to the said Hamond for life , the Remainder to the Demandant in Fee , and counted further , That Robert is dead without issue , and that Hamond is also dead , &c. It was holden , although that the Remainder reserved to the Donor , be void , yet the Remainder over in Fee is good , &c. And in that case although that the Remainder in Fee was future , sci . After the death of Hamond , & the estate reserved to Hamond meerly void , & that originally , & not by matter ex post facto , yet the Remainder in Fee was good , and should begin presently upon the death of Robert without issue , and should not expect the death of Hamond . Mr. Attorney hath given a Rule , That the intent of the parties is the Direction of uses , as also of Wills , and therefore I will put one Case of Wills , 37 H. 6. 17. If a man devise Lands to a Monk for four and twenty years , and after the same ended to another in Fee , here the Monk being a dead person cannot take the estate limited to him , & therefore it is void : but the Fee limited to the other is good , and shall take effect presently : If it be so in a Will , why not so also in uses ? For the intents of the parties do direct the constructions of both : And our case here is a stronger case than the case cited 37 H. 6. 36. for there where Land is devised to a Monk for life , there may be colour of an Occupant during the life of the Monk , who might take it , although the Monk himself cannot take it , and so the Remainder doth not take effect presently as to the possession , but shall stay till after the death of the Monk ; But here is not any colour of an Occupancy , for the estate here is a Lease for years , which cannot admit an Occupant . And see also 37 H. 6. 36. If a man devise that his Feoffees shall make an estate to I. S. for life , the Remainder over to C. in Fee , and I. S. will not take his estate , C. shall have a Sub-poena against the Feoffees to make an estate to him , leaving out I. S. and see Amy Townsends Case in the Commentaries , where the Husband seised in the Right of his Wife , makes a Feoffment in Fee to the use of himself , and his wife for their lives , the Remainder over to another , the husband dyeth , the wife refuseth the estate limited to her by the Husband , she brings Sur cui in vita , not against the heir , but against him in the Remainder , to whom the Land doth accrue by the refusal of the wife ; not against the heir of the Feoffor ; and I grant , That where an estate in use , or otherwise is to begin upon a condition precedent which is impossible , or against the Law , the estate shall never rise or begin . And here the Case of the Lord Borroughs , 35 H. 8. Dy. 55. was cited , Where the Father covenanted in consideration of marriage of his Son , that immediately after his death his eldest Son shall have the possession or use of all his Lands according to the same course of inheritance , as then they stood , and that all persons now seised , or to be seised , should be seised to the said use and intent , and it was holden , That upon that matter no use is changed : But if the Words had bin Immediately after his death , they should remain , then although the words of the Limitation be In futuro , the use of the Fee shall rest in the Son presently ; and the words In futuro ought not to be interpreted , but in benefit of him to whom the use , and estate is limited , 9 Eliz. Dyer . 261. A. Leaseth for thirty years , and four years after the beginning of the said term he makes another Lease for years by these words , Noverint , &c. dictis 30 annis finitis & completis , demisisse omnia praemissa , to the said , &c. Habendum & tenendum a die confectionis praesentium , termino praedict finito , usque ad finem 30 annorum . And by the opinion of all the Iustices , This new Lease shall commence in possession at the end of the former term , and not before , and if it should not be expounded , the second Lease should be in effect an estate ; but for ten years , which was not the intent of the parties , and every grant shall be expounded most strongly for the grantee , and to his advantage , to which purpose he said he had vouched this Case . Also by him there is not any difference , where the use is limited by way of covenant , or upon a Feoffment : And if a man enfeoffeth B. upon condition that he shall enfeoff C. now if he offer to enfeoff C. and he refuseth , the Feoffor may re-enter . But if the condition were to give to C. in tail , then upon such refusal of C. the Feoffor shall not re-enter . See 2 E. 4. 2. 19 H. 6. 34. E. si Equitas sit adhibenda in construction of conditions a multo fortiori in case of Vses : A Feoffment in Fee upon condition , that the Feoffee shall grant a Rent charge to J. S. who doth it , but J. S. refuseth , the Feoffor shall not re-enter , for that was not the intent of the condition : If in the principal case , Post . 266. the limitation of the use had been after the expiration of twenty four years , then no use should rise before the twenty four years expire , but where , not the time , but the estate is material , there , if the estate be void , the use shall go to him in the Remainder presently , and shall not stay the time , 1 Co. 154. &c.

Egerton Solicitor , first it is to see , if the use limited to William Paget be good ; secondly , if William Paget doth not come before his time to shew his Right : If this use limited to William Paget be a Remainder or an estate to begin upon a contingent , or a present estate , the estates formerly limited being void ; and he conceived , that it is not a Remainder , for there is not any estate upon which it may depend ; And the words are after the estate for twenty four years ended or expired , that then and from thenceforth to the use of William Paget , &c. so that no use is limited to him before the particular estate is ended , therefore no Remainder , for a Remainder ought to begin when the particular estate begins . Without doubt that was not the intent that William Paget should have the Land during the life of his Father , and yet the use limited during the life of his Father , was void , and if the Remainder should take effect during the said twenty four years against Eusall and his companions , wherefore should it not also take effect against Trentham and the others , to whose use it was limited during the life of the Lord Paget : And here , the use limited to William Paget is to begin upon a collateral contingent , upon which if it cannot rise , it shall not rise at all ; and I conceive that the use limited to William Paget , shall never rise , or begin , for it is limited to begin when the term of twenty four years is ended , and that is never , for that which cannot begin , cannot end , and this Term is meerly void , Ergo , it cannot begin , Ergo , it cannot end , then this thenceforth cannot be , and so this contingent can never fall . H. 6. & 7. E. 6. A Lease was made for years upon condition , that if the Lessee do not pay such a sum of money , that he should lose his Indenture , the meaning and sense of these words is not that he should lose the Indenture in parchment , but that he should lose his Term : The Iudgment in an Eectjone firmae , is , Quod querens recuperet terminum suum , that is to be understood , not the time , but his Interest in the Land for the Term ( And Coke secretly said , that in that case there is not any contingent , for the estates precedent never began . ) And as to the Case cited before by Coke , Br. Leases 62. If the last Lease be made by Indenture , reciting the former Lease , certainly the second Lessee shall not be concluded to claim the Land demised presently , but shall tarry until the years of the first Term be expired by effluction of time . And as to Mawnds Case cited before , there is an estate upon which a Remainder may depend , scil. the estate tail alledged to Robert , &c. If such as now is limited to William Paget had been limited at the Common Law to a younger Son , the eldest Brother should have the Land in the Interim discharged of any use , and now after the Statute , no use limited to William Paget , before the contingent ; where , therefore , is it in the mean time ? In the Lord Paget , who being attainted , it accrues to the Queen ; and out of the possession of the Queen , this use shall never rise , although that the contingent be performed , for now the use is locked up ; A use doth consist in privity of the estate and confidence of the person , if these be severed , the use is gone : And here , if the possession be in the Queen , she cannot be seised to another use . Note by Godfrey , that the opinion in Baintons Case , 8 Eliz. Dyer 37. is not Law , and so hath the Law been taken of late . Popham contrary ; If before the Statute of 27 H. 8. the Father covenant in consideration of Advancement of his Son to stand seised to the use of I. S. for life , and after the death of I. S. to the use of my Son in Fee , here the estate of I. S. in the use is void , and yet the estate in the use limited to my Son , shall not take effect before the death of I. S. for the estate of my Son is not limited to take effect till after the death of I. S and therefore the possession of the Father is not charged with the use during the life of I.S. But if by way of Feoffment I.S. had refused , the Son should have it presently , and the Father should not have it , for he by his Livery hath put all out of him , and it was not the intent of the Feoffment , that the Feoffee should have the Land to his own use . Popham allowed the difference mentioned before out of 2 E. 4 & 19 H. 6. betwixt a Feoffment upon condition to enfeoff a stranger , and to give in tail to a stranger , and that is grounded upon the intent of the parties . And Owen Serjeant put the Case cited before 1. 3 Eliz. Dyer 330. A Feoffment is made by the Husband to the use of himself for life , and afterwards to the use of one Ann , whom he intended to marry , for , during , and until the Son which he should beget on the body of the said woman had accomplished the age of thirty one years , and after such time that such Son should come unto such age unto the use of the said woman , quamdiu she should live sole , they entermarry , the Husband dyeth without Issue , the wife entreth immediately , and continues sole , and her Entry was adjudged lawful , and the estate in Remainder good , although she never had any Son , and thereupon a Writ of Error was brought , and the first Iudgment was affirmed ( & note by Tanfield , and others at the Bar , that that was the most apt case to the purpose in the Law ) and the reason of such Iudgment was , because they took it , that Deeds ought to be expounded according to the meaning of the parties , and estates in possession : I grant there ought to be a particular estate , upon which a Remainder may depend , but the same is not necessary where the Conveyance is by way of use : And if I covenant that A. shall have my Lands to him & his Heirs , to pay my Debts and Legacies , the same is by way of bargain and sale , and nothing passeth without Enrolment . And here the Attainder doth not prevent the use , as it hath been objected by Master Solicitor , for the use doth rise before the Attainder , for William Paget had a Remainder in tail , in the life of his Father , upon the first limitation , &c. Periam Iustice , I lease my Lands to you , to begin after the expiration of a Lease which I have made thereof to I.S. and in truth he hath not any Lease , the same Lease shall never begin . Manwood chief Baron , I lease my Lands to you , or grant a Rent to you to begin after the death of Prisoit Serjeant at Law , when shall that begin ? Coke , Presently . Manwood , cujus contrarium est Lex .

CCLXXX . The Queen against the Arch-Bishop of Canterbury , Fane , and Hudson . Mich. 31 & 32 Eliz. In the Common Pleas. Rot. 1832.

THe Queen brought a Quare Impedit against the Arch-Bishop of Canterbury , the Bishop of Chichester and Hudson , Quare Impedit . 4 Len. 107. Hob. 303. 175. Owen . 155. and counted that John Ashburnham was seised of the advowson of Burwash , & was outlawed in an action of Debt , during which Out-lawry in force , the Church voided , for which it belongs to the Queen to present . The Arch-Bishop and Bishops plead , that they claim nothing but as Metropolitan and Ordinary , Fane pleaded that King E. 4. Ex gratia sua speciali , &c. and in consideration of faithful service , &c. did grant to the Lord Hastings the Castle and Barony of Hastings , and Hundred , &c. Et quod ipse haberet omnia bona & catalla tenentium , residentium & non residentium , & aliorum residentium quorumcunque hominum , de & in Castro Baronia , &c. or within the same , pro munero debit . &c. tam ad sectam Regis , &c. quam , &c. Ut legatorem , & quid ipse faceret , per se vel per his sufficient Deputies , &c. And from him derived to the now Earl of Huntington as Heir ; and the said Earl so seised , and the said Ashburnham seised of the advowson as appendant to the Manor of Ashburnham , holden of the said Barony , the Church aforesaid during the Out-lawry aforesaid , became void , For which the said Fane , ad dictam Ecclesiam usurpando presentavit the said Hudson , who was admitted and instituted , &c. with this , That idem T.C. verificare vult , that the said Church of Burwash is , and at the time of the grant was , within the Precinct , Liberty , and Franchise aforesaid , and that the said Manor of Ashburnham , at the time of the grant aforesaid was holden of the said Barony : and the Incumbent pleaded the same Plea : & if by that grant of King Edward the fourth , to the Lord Hastings , scil. omnia bona & catalla , &c. The presentment to the Church should pass or not , was the question . Shutleworth Serjeant , argued for the Queen , he confessed that the King might grant such presentment , but it ought to be by special and sufficient words , so as it may appear by them , that the intent of the King was to grant such a thing , for the general words ( omnia bona & catalla ) will not pass such special Chattel in the Kings grant : And he conceived that by the subsequent words , no Goods or Chattels shall pass by such Grants , but such which may be seised , which the avoidance of a Church cannot be , & quod ipse liceret , per se vel ministros suos ponere se in seisinam , 8 H. 4. 114. 15. the King granted to the Bishop of London , that he should have Catalla felonum & fugitivor , de omnibus hominibus & tenentibus de & in terris & feodis praedict. and of all resiants within the Lands and Fees aforesaid , Ita quod , si praedict. homines , tenentes & residentes de & in terris & feodis praedict ▪ seu aliqui eorum , seu aliquis alius infra cadem terra & feodis pro aliqua transgressione , &c. vid. librum , &c. and by Tirwit , By that Grant the goods of those who are put to Pennance shall not pass ; so of the goods of one Felo de se , vid. 42 E. 3. 5. One being impanelled on the Grand Enquest before the Iustices of Oyer and Terminer , pleaded the charter of the King of exemption from Enquests , and because in the said charter was not this clause , More . 126. licet tanget nos & haeredes nostros , upon challenge , it was rejected , and the party charged and sworn : And if the King grant to me to appropriate an advowson , which in truth is holden of the King , such a grant is void , if there be not special words by which it might appear that the King had notice of it , and that his intent was that the grant should extend unto it , 16 E. 3. Grants 58. & 33 E. 3. Grants 103. So here the Presentment is a special chattel , and is not usually intended or thought upon , when men speak generally of goods and chattels . But admit that it be , yet the Plea doth not lye in the Defendants to plead , for they do not derive any Interest under this grant , but are meer strangers to it , and therefore they shall not take any advantage , by laying this grant in the Queens way , for the Q. hath good title against all persons but those who claim under the grant , but that is nothing to the Defendants , for one cannot cross the title of the King , if he do not make a title to himself , As 39 E. 3. 18. 37 E. 3. 11. If the title of the King be found by a false Office , the party grieved cannot traverse the Kings title without making title to himself found by Office , and then the King may choose whether he will maintain his own title found by Office , or traverse the title of the other . Walmesley , contrary : This Title of Presentment is a Chattel , Rex habebit omnia catalla felonum , &c. A Term of years is a Chattel , so the Issues and Profits of the Lands of men outlawed for Felony , so a right of Action for Goods , Therefore a Title to present ; and if such a Title accrue to the King , by such general words they shall pass from the King. And as to that which hath been objected , That the Gra●● of King Edward the fourth doth not extend but only to such Goods and Chattels which may be seised , he cited the Case of 39 H. 6. 35. b. Where the Grantee of a Rent for Term of years granted omnia bona & catalla sua , tam viva quam mortua , the Rent doth pass , and yet the Grantor cannot put him in seisin of it , but ought to expect the day of payment of it . And this Title to present is not a thing in action , for if no disturbance be made , the party may have the benefit of it without any action . Anderson conceived , That this Title to present cannot pass by those general words ( bona & catalla ) for they do not extend to Rights , or things in Action , for such things only which are commonly known and understod , shall pass by such words : By grant of Goods , Chattels real will not pass ; for when men speak of Goods , Household-stuff , mony , and such personal things only are understood : So a man cannot be said to have a Chattel but where he is possessed of it , and here this Interest is but jus praesentandi . Periam , This Interest is a Chattel , for if the Church become void , and before presentment the Patron dieth , the Executors shall have the presentment , for it was a Chattel vested in the Testator : It was adjorned .

CCLXXXI . Jones Case . Hill. 31 Eliz. Rot. 1527. In the Common Pleas.

HEn. Jones had stolen the Plate of Trinity Colledge in Oxford , and by mediation of his friends it was concluded and agreed , that no Evidence should be given against him at the Sute of the Colledge , and that the Colledge should be recompenced for the losse , and two of his Friends , Brien and Brice were bound uto Doctor Underhil , Rector of Lincoln Colledge in Oxford , ( but unto the use of the Master and Scholrs of Trinity Colledge ) upon condition that if the said Obligor paid forty pounds within six months after , the said Hen. Jones should be acquitted & released of the troubles wherein he now is , with the safety of his life , that then , &c. In debt upon the Obligation The Defendants pleaded that he was indicted at the Assises at Ox. & arraigned upon it , scil. for the stealing of the said Plate , and found guilty thereof , and had his Clergy , and was burned in the hand , & he demanded Iudgment of this Action , upon which there was a Demurrer : Wind. If the words had been to pay the money , after that Henry Jones should be released and acquitted of the troubles in which he now is without any more , the Defendants had been bounden to pay the mony . Periam , If the words of the condition had been , that after Henry Jones should be acquitted of the Felony , then no mony payable , but here the words are with safety of his life : but here he conceived , that the intent of the Obligation was , that no Evidence should be given , and so to save his life from the Gallows , for which the Defendants might have shewed the special matter , Ante. 73. and averred that the Obligation was made for the discharge of a Felon , and so against the Law , &c. but now , they cannot take advantage of it , and afterwards Iudgment was given for the Plaintiff .

CCLXXXII . Castle and Oldmans Case . Pasc. 31 Eliz. In the Common Pleas.

CAstle brought Debt against Oldman for a pain ●ossessed in a Court Baron , Debt . 2 Roll. 106. 3 Cro. 79. 2 Inst. 143. and declared That the Defendant was presented at the Court Baron for such an offence , and if he did not amend it before the next Court , he should pay such a pain : And at the next Court it was presented , That the Defendant had not amended it , and so he had incurred the pain upon which the Action is brought , and now the Defendant would wage his Law , and it was much doubted whether wager of Law lay in the Case . Shutleworth , 13. H. 7. 31. Vpon a Recovery in a Court Baron , wager of Law lyes not , by Conisby , which Periam denyed ; And by him upon an account by another hand , it doth not lye , for it is a matter of which the Country may have Conusance ; so here the matter is notorious , whi●h lyeth in the knowledge of all the Iurors who presented it : And by him , the pain ought to be afferred , which Anderson denied . For there is a difference betwixt an amercement and a pain , which Windham granted . And see for the amerciament in the Leet , 10 H. 6. 7. 12 R. 2 Ley. 43. But in a Court Baron , because it is not a Court of Record ; so in Debt upon an Arbitrament , the Law lyeth . And Waler one of the Secondaries shewed unto the Court a President , 6 Eliz. Where debt was brought by Sir Thomas Tyndal , upon a pain forfeited for the breaking of a By-law in a Court Baron against Tyler ; and the party was received to Wage his Law.

CCLXXXIII . Thetford and Thetfords Case . Pasch. 31 Eliz. In the Common Pleas.

IN Wast the Plaintiff declared , upon the demise of the moyety of the Manor , whereof part of the Tenants were Copy-holders , and part Freeholders , and that A. was seised of the Manor , and had 〈◊〉 two Daughters , and dyed seised , the Daughters entred , and made partition of the Demeans only , but the Services of the Free-holders and Copy-holders did remain in Common ; One of the Daughters took Husband the Husband and the Wife make a Lease of the moyety of the Manor to the Plaintiff for years by word , rendring Rent , the Lessee entred into the Demeans allotted to the Wife of the Lessor . Partition . The Husband died , and the Wife brought an Action of Wast . Anderson , By the partition the Demeans are now become in gross , and severed from the Manor ; And if partition be made of a Manor , so as the Demeans be allotted to one Sister , and the Services to the other , now the Mannor is dissolved , yet if the other Sister dieth without issue , and her part descendeth to the other , now it is become a Manor again , which Windham and Periam granted , 6 Co. 64. See 12. H. 4. 271. And Anderson was of opinion , that the moyety of the Demeans did not pass by the words of the moyety of the Manor , as if one seised of a Manor maketh a Feoffment in Fee of part of the Demeans , and afterwards re-purchaseth them , and then makes a Feoffment of the whole Manor , the Demeans repurchased will not pass thereby , for they were once severed from the Manor , and not re-united by the purchase . Periam , Although that in truth it is not a Manor nor any part of a Manor , yet if it hath beeen reputed the moyety of the Manor , it shall pass by such name , which Anderson grant,ed , but it is not like to our Case . Periam , This is an ancient partition , as appeareth by the Verdict , ten years past , and also it hath been reputed the moyety of the Manor , therefore it shall pass . Windham concessit Periam , The intent of the Grantor is the best Interpreter of these words , without relying strictly upon the words . Anderson , If we shall take the intents of men for Law , we shall fall into many confusions in our proceedings , but the Law is to judge of the meanings of men by their words . Ever in the constructions of Wills , the intent of the Testators have not had further favour than the words have given leave . As to the other point : It was argued by Walmsley , that the Lease made by the Husband and Wife without Deed was void , See 1 Ma. Dyer . 91. And if the Wife after the death of her Husband accepts the Rent upon such a Lease reserved , it shall not bind her , for the consent of the Wife ought to be at the beginning of it , which cannot be without Deed. Anderson conceived that the Lease is not meerly void , See 15 Eliz. Smith & Stapletons Case , Plowd. 431. Periam , The matter is clear , for although the Plaintiff declares generally of a Lease made by the Husband & Wife , yet the Iury hath found , that it was by Indenture , and that is pursuant enough . And if the Husband and Wife make a Feoffment of the Wives Land , it is the Feoffment of doth of them ; which Walmesley granted : It was adjorned .

CCLXXXIV . Smalwood amd others , against the Bishop of Lichfeild and others , Quare Impedit . Trin. 31 Eliz. In the Common Pleas.

HUmphrey Smalwood , Richard Say , and Thomas Say , Executors of William Say , Quare Impedit . 1 Cro. 241. brought a Quare Impedit against the Bishop of Coventry and Lichfeild , and M. Incumbent , quod permittat praesentare ad Archidiaconatum de Derby , which was void , Et ad praesentationem Testatoris in vita sua , & nunc in retardationem executionis Testamenti , did belong to the Executors : Exception was taken because these words ( In retardationem executionis Testament ) could not be applied to a disturbance in the life of the Testator . Windham , There is not any Writ in the Register of Quare Impedit , upon a disturbance made to the Testator . Anderson , What then ? therefore no remedy because no Writ according to his special matter , 25 E. 3. 25. Goods are taken out of the possession of the Testator , upon which the Executors brought Trespass , In retardationem executionis Testamenti , Writ abated , for it ought to be where the Executors themselves were possessed . Periam , The Advowson it self is valuable , not the presentment , therefore it cannot be said in retardationem . Periam , Before the Statute of 4 E. 3. 73. In Case were damages were only to be recovered , the Action moritur cum persona , but where the thing it self was to be recovered , there the Action accrued to the Executors . Anderson , 7 H. 4. 73. Ejectione firmae of an Ejectment made unto the Testator was maintained by the Executors be equity of the Statute of 4 E. 3 cap. 6. And by the opinion of the whole Court , the Executors might have a Quare Impedit upon a disturbance made to the Presentment : It was objected also , that a Quare Impedit doth not lye of an Archdeaconry-ship , for it is not local , nor any Indenture made of it , but is only a matter of function , but it was not allowed , for ●iii Archdeacon hath Locum in Coro : And by the Statute a Quare Impedit lyeth of a Chappel , and by the equity of it , of a Prebend , &c. See the Statute of West . 2. Quare Impedit of a Chappel , Prebend , &c. It was moved , if the Executors had presented after the death of the Testator , whether the Archdeacon ought to receive the Clark of the Testator , or of the Executors , and the opinion of the Court was , That the Bishop should have election therein : And afterwards Iudgment was given , that the Writ should abate , for the disturbance to the Testator cannot be supposed new matter ( In retardationem executionis Testamenti ) But yet it was agreed , that the Executors might have their special Writ upon their Case for the said disturbance .

Trin. 31 Eliz. In Communi Banco .

IN an Action brought against one as Executor , who pleaded that he refused , upon which the parties were at Issue : The Bishop did certifie , 1 Cro. 81. 3●● . 2 Len. 180. quod non recusavit , whereas in truth he had refused before the Commissary : Tenner Serjeant moved to have the advice of the Court upon that matter , and argued that the Court ought to write to the Commissary : Which was denyed by the whole Court , for he is not the Officer unto the Court to that purpose , but the Bishop himself is the Officer : And the party cannot aver against the Certificate of the Bishop , no more than against the Retorn of the Sheriff : The Court was also of opinion , that the only remedy for the Defendant was by Action upon the Case against the Bishop for his false Certificate : But it was moved , That the Issue joyned upon the refusal ought to be tryed by Iury , and not by the Certificate of the Bishop , and so was the opinion of Windham and Walmesley . Periam , Where the Issue is whether the Executor did refuse before such a day , or after , there the tryal shall be by Iury ; contrary where the Issue is upon refusal generally , because the refusal is before him as a Iudge , as also is Resignation .

CCLXXXVII . Sutton and Holloway and Dickons Case . Mich. 31. Eliz. In the Common Pleas.

IN an Ejectione firmae by Richard Sutton against Robert Holloway , and Thomas Dickons , S●vil . 99. Owen . 96. Co. 1 Inst. 227. a 3 Cro. 77. upon not guilty pleaded , the Iury found this special matter , scil. That the said Thomas Dickins had not any thing in the Lands in question at the time of the making of the Lease , upon which the Action is brought , scil. Who leased by Indenture to the Plaintiff for certain years , who entred , and afterwards the said Thomas Dickins , contra Indenturam suam praedictam intravit upon the Plaintiff , and , If the same should be a good Lease by Estoppel was the question ; the Iury having found the truth of the matter , scil. That the Lessor had not any thing at the time of the demise ; Walmesley objected , That the Iury ought not to find the Indenture , because it was not pleaded , for the Plaintiff doth not declare upon any Indenture ; Hob. 227. but the Exception was not allowed , but in old time the Law was such , 22 E. 3. but at this day the Law is otherwise , See Scholastica's Case , 14. Eliz. Plowd. 411. But where a Release or other writing ought to be pleaded , there it ought to be shewed to the Court. Walmesley , In rei veritate , the Lease is void , for a man cannot let Land in which he hath not any thing : but in respect of the parties themselves , the Lessors and Lessee both are concluded to say , That is no Lease , for none of them can say to the contrary : But here the Iury which is a third person , Estoppel . is not estopped to say the truth , but they may find the special matter and the truth of the Case , and the Estoppel hath not place there ; but the truth of the matter appearing to the Iudges , the Iudges ought to adjudge upon the same , scil. If a man may make an effectual lease of Lands , in which he hath not any thing . At another day it was moved by Shu●l . Although that the Iury be not estopped , yet the parties themselves are estopped , for the Law makes the Estoppel betwixt the parties , and the Law will not permit a man to say any thing against his own Deed being indented , nor any matter contained in it . Periam and Anderson clearly for the Plaintiff , That it is a Lease by Estoppel ; and by Periam , It hath been adjudged in the Kings Bench , That the Iury in such case are compellable upon pain of Attaint to find the Estoppel : Walmesley , Here the Estoppel is out of Doors , for the truth of the matter disclosed by the Verdict , not by the parties only maketh the Estoppel , & he much replied upon the case of Littleton , 149. a. A woman seised of Lands in Fee , taketh a Husband , who alieneth to another in Fee , the Alienee leaseth to the Husband and Wife for their lives , now the Wife is remitted , and seised in Fee as before , here if the Alienee , i. e. the Lessor , brings an Action of Wast against the Husband and Wife , the Husband cannot bar the Plaintiff by the truth of the matter ; scil. the Remitter of his Wife ; for he is estopped to say against his own Feoffment , and his retaking of the particular estate to himself and his Wife : But if in an Action of Wast , the Husband make default at the Grand Distress , and the Wife prayeth to the received , she may well shew the whole matter : So here the Iury : Windham , The Plaintiff ought to have demurred upon the Evidence : Periam , What if the Defendant will not joyne with the Plaintiff in the Demurrer ? Windham , there the Court ought to over-rule them , & if the parties had demurred upon the Evidence , we should have adjudged upon that Evidence , that a man cannot lease lands in which he hath not any thing : And here , the Estoppel could not be pleaded , for the Defendant hath pleaded the general Issue , but if he had pleaded Non demisit , then the Estoppel should have holden place .

CCLXXXVII . Mills and Snowballs Case . Pasch. 31 Eliz. In the Common Pleas.

A Iury did surmise at the Bar , that he was a Tenant in Ancient demesne , and had his Charter in his hand , Priviledge of Exemption from Juries . 1 Cro. 142. and prayed to be exempted from the Iury and discharged , but the Court did not regard it , but caused him to be sworn . And Windham said , that he might have his remedy against the Sheriff ; and Nelson Prothonotay said , if he had made default and lost Issues , he might shew his Charter in the Exchequer upon the Amercement estreated , and there he should be discharged : In that Case , it was holden by the Court , That if a Feoffment be made of a House , and the Deed be delivered in the House without other circumstance , the same doth not amount to a Livery of seisin , but if he do any act by which the intent of the Feoffor appeareth that the Feoffee should have Livery and Seisin ; Livery of seisin . as if the parties go of purpose to the place intended to pass , to the intent that the Deed may be delivered in that kind , the same doth amount to a Livery , by Anderson , and the whole Court.

CCLXXXVIII . Bradstocks Case . Mich. 32 & 33 Eliz. In Communi Banco .

RObert Bradstock seised in Fee of certain Lands , made a Feoffment in Fee to the use of himself in tail , Estates . and for want of such Issue to the use of John Bradstock , his Brother in tail , and for want of such Issue to the use of Henry Bradstock , another Brother in tail , Conditions . Provided always , That if the said John or Henry do go about to avoid any estate or demise by Copy , made or to be made of the Premisses , or any part thereof , that then his estate should cease . Robert died without Issue , John entred and levyed a Fine , Sur conusans de droit come ceo , &c. of the Land : And the opinion of the whole Court was , That this Fine was not any offence against the said Proviso ; for these words ( made or to be made ) do not extend to estates made or limited by the said Feoffment , but only to estates before made , and to be made afterwards .

CCLXXXIX . Long and Hemmings Case . Mich. 32 & 33 Eliz. In Communi Banco .

IN a Quare Impedit by Long against Hemming and the Bishop of Gloucester , or the Church of Frombillet , upon the pleading the Issue was , Quare Impedit . 1 Cro. 209. If Tho. Long Father of the Plaintiff did enfeoff the Plaintiff of the Manor of From. to which the Advowson of the said church was appendant before he granted the Advowson to one Strengtham who granted it to the Def. or not . And the Iury gave a special Verdict , scil. That the Abbot of S. was seised of a capital Messuage in Frombillet , & of one hundred Acres of Land there , And that there was a Tenancy holden of the said capital Messuage by such Services , and that the said capital Messuage had been known time out of mind , by the name of the Manor of Frombillet , and that the Advowson was appendant to it , and conveyed the said capital Messuage and Advowson to the King by the dissolution , and from the King , to the said Thomas Long , who so seised , without any Deed did enfeoff the Plaintiff of the said Manor , and made Livery and Seisin upon the Demesnes , And that the said Thomas Long by his Deed made a grant of the said Advowson , to the said Strengham , and afterwards the Free-holder attorned to the Plaintiff : And by the clear opinion of the whole Court , here is a sufficient Manor to which an Advowson may be well appendant , and that in Law the Advowson is appendant to all the Manor , but most properly to the Demesnes , out of which at the commencement it was derived , and therefore by the attornment afterwards , within construction of the Law shall have relation to the Livery , the Advowson did pass included in the Livery : And the grant of the advowson made mesne between the Livery and the attornment was void ; and afterwards Iudgment was given , and a Writ to the Bishop granted for the Plaintiff .

CCXC. Mich. 32 & 33 Eliz. In Communi Ban●o .

Debt . A Made a Bill of Debt to B. for the payment of twenty pounds at four days , scil. five pounds at every of the said four days , and in the end of the Deed , covenanted and granted with B. his Executors and Administrators , that if he make default in the payment of any of the said payments , that then he will pay the residue that then shall be un-paid ; and afterwards A. fails in the first payment , and before the second day B. brought an action of Debt for the whole twenty pounds , It was moved by Puckering Serjeant , S●y . 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred ; And also if B. will sue A. before the last day , that it ought to be by way of covenant , not by Debt : But by the whole Court , the action doth well lye for the manner , for if one covenant to pay me one hundred pounds at such a day , an action of Debt lyeth , a fortiori , Owen . 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant , for the word covenant sometimes sounds in covenant , sometimes in contract , secundum subjectum materiae .

CCXCI. Lancasters Case . Mich. 32 & 33 Eliz. In Communi Banco .

Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights & Titles upon the Statute of 32 H 8. And upon not guilty pleaded , It was found for the Plaintiff , & it was moved in arrest of Iudgment , because the Informer had not pursued the Statute , in this , that it is not set forth , that the Defendant nor any of his Ancestors , or any by whom he claimed , have taken the profits , &c. and the same was holden a good , and material Exception by the Court : & although it be layed in the Information , that the Plaint . himself hath been in possession of the Land by twenty years before the buying of the pretended Title , for that is but matter of argument , & not any express allegation , for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson , It hath been adjudged by the Iudges of both Benches , that if an Information be exhibited upon the Stat. of Vsury , by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year , there the Information is not good , if it be not alledged in it , that the said twenty pounds was received by any corrupt or deceitful way or means : And in the principal Case , for the Cause aforesaid , Iudgment was arrested .

CCXCII . Bagshaw and the Earl of Shrewsburies Case . Mich. 32 & 33. Eliz. In the Common Bench.

BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury , for the arrerages of an Annuity of twenty Marks per annum , Annuity . granted by the Defendant to the Plaintiff , Pro Consilio impenso & impendendo , The Defendant pleaded , that before any arrerages incurred , he required the Plaintiff to do him Service , and he refused : The Plaintiff by replication said , that before the refusal , such a day and place the Defendant discharged the Plaintiff of his Service , &c. And the opinion of the Court was , that the Plea in Bar was not good , for he ought to have shewed for what manner of Service to do , the Plaintiff was so retained , and for what kind of Service the Annuity was granted ; and then to have shewed specially what Service he required of the Plaintiff , and what Service the Plaintiff refused . Another matter was moved , If the discharge shall be peremptory , and an absolute discharge of the Service of the Plaintiff , and of his attendance , so that as afterwards the Defendant cannot require Service of the Plaintiff . And by Walmesly Iustice , it is a peremptory discharge of the Sevice , for otherwise how can he be retained with another Master ; and so he should be out of every Service . Windham contrary , For here the Plaintiff hath an Annuity for his life , and therefore it is reason that he continue his Service for his life , as long as the Annuity doth continue , if he requirreth : But where one is retained but for one or two years , then once discharged , is peremptory and absolute .

CCXCIII . Matheson and Trots Case . Mich. 31 & 32. Eliz. In the Common Bench.

BEtwixt Matheson and Trot the Case was , Sir Anthony Denny seised of certain Lands in and about the Town of Hertford , 2 Len. 190. holden in Socage , and of divers Mannors , Lands , and Tenements in other places holden in chief by Knights-service , and having Issue two Sons , Henry and Edward , by his last Will in writing , devised the Lands holden in Hertford to Edward Denny his younger Son in Fee , Devises . and died seised of all the Premisses , Henry being then within age : After Office was found without any mention of the said Devise ; the Queen seised the Body of the Heir , and the possession of all the Lands whereof the said Sir Anothony died seised , and leased the same to a stranger , during the Minority of the Heir ; by force and colour of which Lease the Lessee entred into all the Premisses , and did enjoy them according to the Demise . And the Heir at his full age sued Livery of the whole , and before any entry of the said Edward in the Land to him devised , or any entry made by the said Henry , the said Henry at London , leased the said Lands by Deed indented to I.S. for years , rendring Rent , by colour of which the said I.S. entred , and paid the Rent divers years to the said Henry : And afterwards by casualty the said Henry walked over the Grounds demised by him , in the company of the said I. S. without any special entry or claim there made , I.S. assigned his Interest to I.D. who entred in the Premisses , and paid the Rent to the said Henry , who died , and afterwards the Rent was paid to the Son and Heir of Henry : And after four and twenty years after the death of the said Sir Anthony , the said Edward entred into the Land to him devised by the said Devise ; and leased the same to the Plaintiff , Descent , where tokes away entire . &c. And it was moved here , if this dying seised of Henry of the Lands in Hertford , and descent to his Heir , should take away the Entry of Edward the Devisee . And by Anderson cleerly , If here upon the whole matter be a descent in the Case , then the Entry of Edward the Devisee is taken away , although that the Devisee at the time of the descent had not any Action or other remedy , for it shall be accounted his folly that he would not enter , and prevent the descent . But Windham , Periam , and Walmesly Iustices , 2 Len. 147. 1 Cro. 920. 3 Cro. 145. Owen . 96. were of a contrary opinion , For a Devisee by a Devise hath but a Title of Entry , which shall not be bound by any Descent , as Entry for Mortmain , for Condition broken . And after long deliberation they all agreed that there was not any Descent in the Case , for by the Devise , and death of the Devisor , the Frank-tenement in Law , and the Fee was vested in the Devisee Edward : And then when the Queen seised , and leased the same during the Nonage of Henry , and the Lessee entred , he did wrong to Edward , and by his Entry had gained a tortions Estate in fee , although he could not be said properly a Disseisor , nor an Abator : And afterwards when Henry after his full age , when by his Indenture he leased without any special Entry , ut supra , and by colour thereof the Lessee entred , now he is a wrong-doer to Edward the Devisee and by his Entry had gained a wrongful Possession in Fee : and then the paying of the Rent to Henry , nor the walking of Henry upon the Land without any special claim , did not gain any Seisin to him : and so he was never seised of the Land , and could never dye seised , and then no Descent ; and then the Entry of Edward was lawful , and the Lease by him made to the Plaintiff was good : And so Iudgment was given for the Plaintiff .

CCXCIV. Greenwood and Weldens Case . Mich. 32 & 33 Eliz. In the Common Bench.

Replevin . IN a Replevin between Greenwood and Welden ; The Defendant made Conusans as Bayliff to John Cornwallis , & shewed how that seven acres of Land called Pilles , is locus in quo : and at the time of the taking were holden of the said Cornwallis by certain Rent , and other Services : And for Rent arrear he made Conusans , as Bayliff to Cornwallis . The Plaintiff pleaded out of the Fee of Cornwallis , upon which they were at Issue : And it was found that the Plaintiff is seised of seven acres called Pilles , hoden of Cornwallis , ut supra : But the Iury say , That locus in quo doth contain two acres , which is called Pilles , and these two acres are , and then were , holden of Agmondesham of the Middle-Temple : And if upon the whole matter , videbitur Curiae , &c. And by the opinion of the whole Court , out of his Fee upon that matter is not found , for although it be found , that the two acres be holden of Agmondesham , yet it may be that they are within the Fee of Cornwallis , for it may be that Cornwallis is Lord Paramount , and Agmondesham Mesne , and then within the Fee of Cornwallis : And therefore for the incertainty of the Verdict , a Venire facias de novo was awarded .

CCXCV. Bishop and Harecourts Case . Mich. 32 & 33. Eliz. In the Common Bench.

Assumpsit . 1 Cro. 210. IN an Action upon the Case , The Plaintiff declared , that the 5 Junij , 30 Eliz. the Defend , ( in consideration that the Plaintiff the same day and year , sold and delivered to the Defend ▪ a Horse ) did promise to pay the Plaintiff a hundred pounds in Trinity Term then next ensuing , and shewed that the Term began 7 Junij after : And upon Non assumpsit pleaded , it was found for the Plaintiff . And it was moved in arrest of Iudgment , That it appeareth upon the Declaration , that the Plaintiff hath not cause of Action , for the Trinity Term intended is not yet come , for the day of the Assumpsit is the fifth of June , and the fourth day was the first day of the said Term , scil. the day of Essoins , and the seventh day 4. die post , and then the promise being made at the day aforesaid , after the Commencement of the said Term , the same is not the Term intended , but the Plaintiff must expect the performance of the promise until a year after : And of that opinion was Anderson , but the three other Iustices were strongly against him to the contrary , for by common intendment amongst the people , the Term shall not begin until 4. die post , and so it is set down usually in the Almanack ; And afterwards Iudgment was given for the Plaintiff .

CCICVI . Mich. 32 & 33. Eliz. In the Common-Bench .

COoper Serjeant came to the Bar , and shewed that A. Tenant in tail , the Remainder over to B. in Fee. Co. 2 Inst. 483. 484. 1 Cro. 323. 471. 567. Hob. 496. 3 Cro. 224. A. for a great sum of mony sold the Land to I. S. and his Heirs , and for assurance , made a Feoffment in Fee , and levied a Fine to the said I. S. to the use of the said I. S. and his Heirs : And note that by the Indenture of Bargain and Sale , A. covenanted to make such further Assurance within seven days , as the said I. S. or his Heirs , or their Council should devise : And shewed , that before any further assurance was made , the said I. S. died , his Son and Heir being within age : And now by advise of Council , and of the Friends of the Infant , it was devised that for such further assurance and cutting off the Remainder , a common Recovery should be suffered , in which the said Infant should be Tenant to the Praecipe , and should vouch the Vendor , Common Recovery suffered by an Infant by his Guardian . and because that the said Term of seven years is almost expired , and that the said Recovery is intended to be unto the use of the said Infant and his Heirs , it was prayed that such a Recovery might be received and allowed . And two Presidents in such Case were shewed in the time of this Queen : one the Case of the Earl of Shrewsbury , and the other one Wisemans Case : But the Iustices were very doubtful what to do ; But at last upon good assurance of people of good Credit , that it was unto the use of the Infant and upon the appearance of a good and sufficient Guardian for the Infant in the Recovery , who was of ability to answer to the Infant if he should be deceived in the passing of that Recovery ; and upon consideration had of the two Presidents , and upon Affidavit made by two Witnesses , that the said intended Recovery was to the use of the Infant , the Recovery was received , and allowed .

CCICVII . Cottons Case . Mich. 32 & 33 Eliz. In the Common Bench.

IT was found by special Verdict , that Berwich and Tesdel seised of certain Lands , conveyed the same to Sir Thomas Cotton for life , Fines levied to use . Co. 2 Inst. 519. 1 Cro. 219. the Remainder to Wil. Cotton , & primogenito filio suo , & haeredi masculo , & sic de primogenito ad primogenitum dict. William , the Remainder to the right Heirs of the body of Sir Tho. Cotton , and Wil. Cotton lawfully issuing , the Remainder to the right Heirs of Sir Tho. Cotton : Wil. had Issue a Son born here in Eng. and went beyond Sea to Antwerp , and there continuing , and his Son being within age in England , Sir Thomas Cotton levied a Fine of all the Land , sur conusans de droit come ceo , &c. And afterwards by Indenture convenanted to stand seised to the use of himself for life , and afterwards to the use of Rober Cotton his Son in Fee : William died at Antwerp , his said Son being within age in England , Sir Tho. Cotton died , Robert entred , and leased the Lands for years to Sary , and the Infant Son and Heir of William leased the Land to one Chewn at Will , who entred and ousted Sary , who thereupon brought Ejectione firmae . It was here holden by the Court , that Sir Tho. Cotton was Tenant for life the , Estates . Remainder to William for term of his life , the Remainder to the Heirs of both their bodies issuing : So as unto one Moyety Sir Thomas Cotton had an Estate tail dependant upon the said Estates for life ; and so the Fine levied by him was a Bar to the Issue of William for a Moyety . And as to the other Moyety they held that the said Fine was not any Bar , but that the party interessed at the same time might avoid the Fine at any time during his Nonage , & five years after , for Wil. his Father was not bound by the Statute of 4 H. 7. because at the time of the Fine levied , he was beyond the Seas , and although he never returned but died there , yet by the equity of the Statute his Issue shall have five years after his death to avoid the Fine , if he were of full age , and if he were within age , then during his Nonage , and five years after . At another day the Case was argued and put in this manner , viz. Lands were given to Sir Thomas Cotton for life , without Impeachment of Wast , the Remainder over to Cheny Cotton his eldest Son , & primogenito filio & haeredi Masculo , of the said Cheny , & sic de primogenito filio in primogenitum filium , the Remainder to the Heirs Males of the body of the said Cheny , & for want of such Issue , the Remainder to Wil. Cotton his second Son , & primogenito filio , in primogenitum filium , the Remainder over to the said Sir Thomas , and the said William , and the Heirs Males of their bodies lawfully begotten . Cheny Cotton died without Issue , William having Issue , went beyond the Sea , Sir Thomas Cotton , 19 Eliz. levied a Fine with Proclamation , and afterwards William the Father died in Antwerp , his Son being within age , Sir Thomas by Indenture limited the use of the Fine to himself for life , the Remainder over to Robert Cotton his third Son in Tail , Sir Thomas died ( but it doth not appear at what time ) William the Son being yet within age entred ( but non constat quando ) and 31 Eliz. leased the Lands to the Defendant at Will . Drue Serjeant argued for William Cotton . And he conceived , that William the Father had an Estate-tail , and then the entry of William the Son was congeable for the whole : But admitting that it is not an Estate-tail in William the Father for the whole , yet he hath by the second Remainder an Estate-tail in the Moyety , and then his Entry good as to one Moyety ; and then Robert being Tenant in Common of the other Moyety , Tails . his Lessee without an actual Ouster cannot maintain an Ejectionae firmae against the Lessee of his Companion . And he conceived here is a good Estate-tail in William Cotton by virtue of the Limitation to William , & primogenito filio & haeredi Masculo ipsius Guliel . & sic de primogenito filio in primogenitum filium , &c. for according to the Statute of West . 2. the will of the Donor ought to be observed , and here it appeareth that the intent of the Donor was to create an Estate-tail , although the words of the Limitation do not amount to so much . And the Estates mentioned in the Statute aforesaid , are not Rules for Entails , but only Examples , as it is said by Trew , 33 E. 3 F. Tail 5. & see Robeiges Case , 2 E. 2. 1 Fitz. Tail : and 5 H. 5. 6. Land given to A. and B. uxori ejus , & haeredibus eorum & aliis haeredibus dicti A. si dict. haeredes de dictis A. & B. exeuntes obierint sine haeredibus de se , &c. and that was holden a good Entail ; so a gift to one and his Heirs , si haeredes de carne sua habuerit , & si nullos de carne sua habuerit revertatur terra , and adjudged a good tail : So 39 E. 3. 20. Land given to Husband and Wife , & uni haeredi de corpore suo ligitime procreat . & uni haeredi ipsius haeredis tantum , And that was holden a good Tail ; and so he conceived in this Case , that although the words of the Limitation are not apt to create an Estate-tail according to the phrase and stile of the said Statute of West 2. yet here the intent of the Donor appears to continue the Land in his Name and Blood , for William the Son could not take with his Father by his Limitation , for he was not in rerum natura , and therefore all shall vest in William the Father , which see 18 E. 3 Fitz. Feoffments & Fait . 60. Now it is to see , if upon the Limitation to Sir Thomas Cotton and William his Son , by which the Remainder is limited to Sir Thomas Cotton and William , and the Heirs Males of their bodies issuing , the said Sir Thomas Cotton & Wil. have a joynt Estate-tail ; in respect that the Issue of the body of the Son , may be Heir of the Body of the Father : and so because they might have one Heir which shall be inheritable to his Land , it shall be one entire Estate-tail in them : But he conceived that they are several Estates-tail , and that they are Tenants in Common of an Estate tail , 3 & 4 Phil. & Mar. Dyer 145. Land given to the Father and Son , and to the Heirs of their two Bodies begotten , the Remainder over in Fee , the Father dieth without other Issue than the Son only , and afterwards the Son dieth withou Issue , a stranger abates : Or if the Son hath made a Discontinuance , if he in the Remainder shall have but one or two several Formedons was the Question . And by Saunders , Brook , and Brown , but one Formedon , and Quaere left of it ; yet admitting that , yet notwithstanding that , it might be that they had several Estates-tail , 17 E. 3. 51. 78. Land given to a man and his Sister , and to the Heirs of their two Bodies issuing , they have several Estates tail , and yet one Formedon . And see 7 H. 4. 85. Land given to a man and his Mother , or to her Daughter in Tail , here are several Entails And here in the principal Case , Sir Thomas Cotton hath one Moyety in Tail expectant upon his Estate for life : and therefore as to the Moyety of Sir Thomas Cotton he is bound by the Fine . And the other Moyety is left in the Son , who may enter for a Forfeiture upon the alienation made by his Father , as well in the life of the Father , as afterwards . Now after this Fine levied , the entry of William the Son by virtue of his Remainder is lawful after the death of Sir Thomas , although that William the Father was beyond the Sea at the time of the Fine levied , and there afterwards died , William the Son being within age . The words of the Statute of 4 H. 7. are , Other than Women Covert , or out of this Realm , &c. so that they or their Heirs make their Entry , &c. within five years after they return into this Land , &c. So that by the bare letter of the Act , Will. the Son hath not remedy , nor relief by this Act against the Fine , because that William , the Father died beyond the Sea , without any return into England ; yet by the Equity of the Statute he shall have five years to make his Claim , although his Father never return , for if such literal construction should be allowed , it should be a great mischief , and it should be a hard Exposition , for this Statute ought to be taken by Equity , as it appeareth by diverse Cases , 19 H. 8. 6. My Vncle doth disseise my Father , and afterwards levies a Fine with Proclamations ; my Father dieth , and after within five years my Vncle dies , that Fine is no Bar to me , yet the Exception doth not help me , for I am Heir to him that levied the Fine , and so privy to it , but my Title to the Land , is not as Heir to my Vncle but to my Father : So if an Infant after such a Fine levied , dieth before his full age , his Heir may enter within five years after , and yet that Case is out of the Letter of the Statute . And by Brown and Sanders , If the Disseisee dieth , his Wife enseint with a Son , the Disseisor levieth a Fine , the Son is born , although this Son is not excepted expressly by the words , because not in rerum natura at the time of the Fine levied , &c. yet such an Infant is within the equity and meaning of the said Statute . See the Case betwixt Stowel and Zouch , Plow . Com. 366. And by him , It was holden , 6. Eliz. that an Infant brought a Formdon within age , and adjudged maintainable , although the words of the Statute be , That they shall take their Actions or lawful Entries within five years after they come of full age : And he also argued , that here , when Sir Thomas being Tenant for life , levyed a Fine , which is a Forfeiture , he in the Remainder is to have five years after the Fine levyed , in respect of the present forfeiture , and also five years after the death of the Tenant for life : And that was the case of one Some adjudged accordingly in the Common Pleas : It hath been objected on the other side , That the Defendant entring by color of the Lease at Will made to him by William who was an Infant , that he was a Disseisor as well to the Infant as to the Lessor of the Plaintiff , who had the Moyety as Tenant in common with the Infant , and then when the Lessor of the Plaintiff entred upon the Defendant , and leased to the Plaintiff , and the Defendant enentred and ejected the Plaintiff , he is a Disseisor ; to which he answered , That the Defendant when he entred by the Lease at Will , he was no Disseisor , for such a Lease of an Infant is not void , but only voidable , &c. and then a sufficient Lease against the Plaintiff , although not against the Infant . Beaumont Serjeant , to the contrary ; By this manner of gift , William the Son took nothing , but the estate setled only in William the Father , but not an estate tail , by the words , haeredi masculo , &c. And voluntas Donatoris , without sufficient words cannot create an estate tail ; but where the intent of the Donor is not according to the Law , the Law shall not be construed according to his intent : But this intent shall be taken according to the Law. And he held that Sir Thomas and William had several estates in tail , and several Moyeties , and not one entire estate , and here , upon all the matter , Sir Thomas is Tenant for life of the whole , the Remainder of one moyety to him in tail , the Remainder of the other moyety unto William in tail , and , rebus sic stantibus , Sir Thomas levying a Fine of the whole , now as to one moyety which the Conusor had in tail , the Fine is clearly good , and so as to that , Robert the Lessor of the Plaintiff had a good Title , as to the said moyety ; and as to the other moyety he conceived also , that William is bound , for this Statute shall not be construed by Equity , but shall bind all who are expresly excepted , and that is not William the Son , for his Father never returned , and then his Heir is not releived by the Statute● Also William had a Right of Entry at the time of the Fine levyed , scil. for the Forfeiture , and because he hath surceased the time , for the said Right of Entry , he shall not have now five years after the death of Tenant for life , for he is the same person , and the second saving which provides forfuture Rights , extends to other persons than those who are intended in the first saving , and he who may take advantage of the first saving , cannot be releived by the second saving , for no new title doth accrue to him in the Reversion or Remainder , by the death of Tenant for life , for that title accrued to him by the forfeiture , so as the title which he hath by the death of the Tenant for life , is not the title which first accrued unto him : Also by this Forfeiture , the estate for life is determined , as if Tenant for life had been dead ; for if Tenant for life maketh a Feoffment in Fee , the Lessor may have a Writ of Entry ad terminum qui praeterijt . Fitz. 201. which proves , that by the Forfeiture the estate is determined , and then no new title doth accrue to him in the Remainder , by the death of the Tenant for life , but that only which he had before the alienation , so that his non-claim after the five years shall bind him . Then , when William the Infant having a Right to a moyety , and Robert the Lessor of the Plaintiff a Right to the other moyety , and the Infant leaseth unto the Defendant at Will , who entreth , now is he a Disseisor as well to Robert as to the Infant : Then if the Defendant be Disseisor and hath no title by the Infant , Robert who hath Right in a moyety may well enter into the whole , for he hath the possession per my & per tout by his Entry , and then when the Defendant doth eject him , he hath good cause of Action . And after at another day the Case was moved , and it was agreed , That for one moyety the Infant is bound , for Sir Thomas had an estate tail in a moyety , for he was Issue of the body of the Comisor : But for the other moyety , the Fine levyed by Tenant for life , William the Father being then Tenant beyond the Sea , It was holden by Anderson , Windham , and Walmesly , that the Infant was not barred , notwithstanding the objection abovesaid , That William the Father never returned into England , and notwithstanding the words of the Statute of 4 H. 7. And by Walmesley , If an infant make his claim within age it is sufficient to avoid the Fine , and yet the said Statute seems to appoint to him time within five years after his full age , so that according to the very words , a claim made before or after should be vain , yet in Equity , although he be not compelsable to make his claim until the time allowed by the Statute , yet if he make it before , it is good enough . And by Anderson , Although that William the Father did not return , yet if he makes not his claim within five years after the death of his Father being of full age , and without any impediment , &c. he shall be barred . If in such case a man hath many impediments , he is not compellable to make his claim when one of the impediments is removed , but when they are all removed . So if the Ancestor hath one of the said impediments , and dieth before it be removed , and his Heir is within age , or hath other impediment , he is not bound to make is claim till five years after his impediment is removed . And Somes case cited before was holden and agreed to be good Law , for the Forfeiture may not be known unto him . And as to the objection against the Lease at Will , because it was made by an Infant , and no Rent reserved upon it , nor the Lease made upon the Land , and therefore the Lessee should be a Disseisor , To that it was answered , Be the Defendant a Disseisor , or not , it is not material here , for if the Plaintiff had not title according to his Declaration , he cannot recover , 1 Cro. 220. 1 Cro. 438. whether the Defendant hath title or not , for it is not like unto Trespass where the very possession without other title is good , contrary in Actions against all who gave not title ; but in Ejectione firmae , if the title of the Plaintiff be not good and sufficient , be the title of the Defendant good or not , he shall not recover : And afterwards Iudgment was given for the Defendant , Hill. 33. Eliz.

CCXCVIII . Cheny and Smiths Case . Mich. 32 & 33 Eliz. In Communi Banco .

IN an Ejectione firmae by Cheny and his Wife against Smith : The Plaintiffs declared upon a Lease made by the Master of the House or Colledge of S. Thomas of Acons in London to I.S. who assigned it over to Knevit , who by his Will devised the same to his Wife , whom he made also his Executrix , and dyed , and afterwards she took to Husband one Waters , and died ; Waters took Letters of Administration of the Goods and Chattells of his Wife , and afterwards leased to the Plaintiffs : And upon not guilty they were at Issue . And it was given in Evidence That the Lease given in Evidence , was not the Lease whereof the Plaintiffs have declared , for the ori●inal Lease shewed in Court , is , Master of the House , or Hospital , where the Lease specified in the Declaration is , Master of the House or Colledge , 38 E. 3. 28. And some of the Iustices conceived that there is not any material Variance ( but if the parties would , it might be found by special Verdict ) For by them Colledge and Hospital are all one . And afterwards the Court moved the Plaintiffs to prove if the wife were in as Executrix , or as Legatee , for by Anderson , and Periam , until election be made he shall not be said to have it as Legatee , especially if it be not alledged in fact , that all the debts of the Testator are paid : And Anderson doubted , although that it be alledged , that the debts be paid , If the Executor shall be said to have the said Lease as a Legacy , before she hath made Election , vid. Weldens Case , and Paramours Case in Plowd . And afterwards it was given in Evidence , That the wife after the death of the Husband had repaired the Banks of the Land , and produced Witnesses to prove it , as if the same should amount to claim it as a Legacy ; and the Court said , that that matter should de referred to the Iury : 1 Roll. 620. And it was further shewed in Evidence , that the said Wife Executrix , and her said Husband Waters formerly made a Lease by Deed , reciting thereby , that where the Husband was possessed in the right of his said Wife as Executrix of her first Husband , &c. And by the opinion of the whole Court , the same was an express claim as Executrix ; and then when the Wife died , if the Husband would have advantage of it , he ought to take Letters of Administration of the Goods of her first Husband , and not of the Wife ; but if she had claimed the Land and the Term in it as Legatee , and had not been in possession , Administration taken of the Rights and Debts of the Wife , had been good as to that intent , that his Wife was not actually possessed of it , but only had a Right unto it , and of such things in Action , the Husband might be Executor or Administrator to his Wife , but here they have failed of their title : The Administration being taken of the goods of the Wife , where it should be of the Goods of the Testator the first Husband ; And for this cause the Plaintiffs were non-suit , and the Iury discharged . And it was agreed by all the Iustices , that if the Wife before Election had taken Husband , that the Husband might have made the Election in the Case aforesaid .

CCXCIX . The Lord Cobham and Browns Case . Mich. 32 & 33 Eliz. In the Common Bench.

THe Case between the Lord Cobham and Brown , was , that the Abbot of Grace was seised of the Mannor of Gravesend in the County of Kent , which Mannor doth extend to the Parishes of Gravesend , and Milton , and that the said Abbot and all his Predecessors , &c. time out of mind , &c. have had a Water-Court within the said Mannor , which Court had been holden at Gravesend Bridge in the end of it , and that all the Inhabitants within the said Parishes , which have Boats either entirely or joyntly with others , and have used to transport or carry passengers from Gravesend to London , & e contra , and have used to fasten their Boats at the said Bridge of Gravesend , have used to do suit at the said Court , and there have used to enquire of all mis-orders , and mis-demeanors of Water-men there , and that the said Abbots , &c. have used to have the Fines and Amercements of the same Court , and conveyed the said Mannor to the Plaintiff , and that at a Court there holden , The Defendant being sworn with the residue of the Enquest to enquire of such dis-orders , refused to give his Verdict , for which for the said contempt , the Defendant , by the then Steward was amerced twenty shillings , for the which Amercement the Plaintiff brought an Action of Debt : It was moved by Beaumount Serjeant ; That the Action did not lye , for the Prescription upon which the Action is grounded is not good ; first , he claims to have this Court within his Mannor , and as a thing appertaining to it , and yet he claims suit at his Court of all the Inhabitants of the said two Parishes , & to have them Suitors at it , being meer strangers to the Mannor , & which do not hold of it , for although it be alledged , that the said Mannor doth extend in the said Parishes , yet the same doth not prove that every part of the said Parishes is within the said Manor , and if it be not so , the Prescription may extend as well to all the County of Kent , as well as to the said two Parishes , for such a Prescription cannot bind but those which are Tenants of the said Manor , and cannot extend to strangers , which see 21 H. 7. 40. The Case of Pound-breach . Secondly , it is not alleadged here , that the Steward ought and had used to assess Amercements , for by the common Law no Steward hath authority to assess Amercements or Fines in a Court Baron , for there the Suitors are Iudges & not the Steward ; & that this Water-Court is a Court Baron , it appeareth by the Declaration , for there it is said that it is a Court belonging to such a Manor , and that prima facie shall be meant a Court Baron , if the contrary be not shewed , vi . Fitz. 75. g. Thirdly it is not shewed that the Amercement was affered , which see ib. 75. Harris Serjeant , to the contrary : This Court upon the whole matter is in nature of a Leet for the reformation of mis-orders between the Watermen , and the prescription here will warrant such a Court well enough , And there are many Courts in England which are not Court Barons , but grounded upon Prescription , 40 E. 3. 17. The Court before the Chancellor of Oxford , Prescription to have Swan mote , and it is reason that this Prescription should hold place , for here is quid pro quo , for Watermen receive their carriage and loading at this Bridge , and also discharge their loading there , and they use to fasten their Boats there , and therefore in lieu of that benefit , it is reason that they be attendant at the Court which is upon the said Bridge , and upon that reason is the Prescription of Toll Traverse , 5 H. 7. 9. And to have a Land Bird , 2 R. 3. 15. And Toll of every Vessel which passeth the River , 21 H. 7. 16. And this Court may be a Court within the Manor , and yet no Court Baron , but in the nature of a Leet , and the Prescription shall be good in Law by reason of the recompence to the Suitors , and then , if it be not a Court Baron , but rather in the nature of a Leet , then it follows , that the Suitors are not Iudges but the Steward ; and it behoves not to prescribe for the Amercement , for that is incident to a Court Leet , for otherwise how can the Suitors be compelled to do their suit at it , or their defaults , or contempts at the same be punished ? and as to the affering of the Amercement , it needs not here , for it is a Fine for the open contempt , and despite done unto the Court , and not an Amercement , and it may well be assessed by the Steward alone , vi . 23 H. 8. Br. Leet , 37. Drill Serjeant , to the contrary : For this Prescription is not reasonable , to drive strangers to do suit at a Court Baron , for there is sufficient consideration in the Case of Tenants of the Manor ; for it may be at the beginning , the Tenancies were given upon such consideration to do such suit : But in the principal case , the Prescription is their ground , and therefore unreasonable , because without consideration , 22 E. 4. 43. see the case there , and 21 H. 7. 20. A custom alleadged , that if any Tenant distrain the Beasts of another Damage Feasant , That he ought to bring such Beasts to the pound of the Lord of the Manor ; and if not , That at the next Court he should be amerced twelve pence , and the same was holden no good custom , because against common Right and common Law. Puckering Serjeant : If this Court shall be reputed in Law a Court Baron , then the Prescription , for the maner of it is not good , for in such case , the Amercement cannot be assessed by the Steward ; But he held , that this Court is in the nature of a Court Leet , and not a Court Baron , and all Inhabitants within the Precinct of it , are bounden to do their suit at it by reason of their Resiancy , & their trade there , if they have Boats , or shares in Boats , and such Court is for the better government of such Watermen , and the exercise and practise of their trade , and for the redressing of misdemeanors betwixt them , and so this Court hath a reasonable commencement , being instituted for the publick good , and if customs which concern the private benefit of any be allowable ; as the Mayor and Burgesses of a Town prescribe to have of every Tun which cometh in any Ship into their Port , and put upon the Land 6. d. for Toll . See 21 H. 16. A fortiori , a Custom or Prescription which concerns the publick good , is good : & it is not strange that such Court hath been maintained by Prescription , for the Court of Stanneris is so without any commencement or erection , but by Custom . And although that Toll cannot be paid at any Market for things brought to Market , but for things sold , yet by custom Toll shall be paid for every thing brought to Market , and for the standing of the Seller there ; for the sale of Victuals is for the good of the Common-wealth , which thing is the ground of the Prescription in the principal Case , & therefore the Prescription in the manner of it is good : and if the prescription be good for the Court , then to have a Steward to keep the Court , to assess Fines for contempts and disorders is good without any special prescription , for it is incident to it . Periam Iustice , If it be a Court-baron then cannot the Steward impose or assess any Fine : which Windham granted ; but he said it is not a Court-baron , but a Court by prescription . Periam , If the Plaintiff claim it as belonging to his Manor , it shall be intended a Court-baron , but yet a man may have a Court within his Manor by prescription , which is not a Court-baron . Anderson was of opinion that it is not a Court-baron , for although it be appertaining to the Manor , yet that is not any proof that it is a Court-baron : For a Leet may be appertaining to a Manor . It was adjourned .

CCC . Green and Edwards Case . Mich. 32 & 33 Eliz. In Communi Banco .

1 Cro. 216. 217. BEtween Green and Edwards the Case was this , Land is demised to A. for nine years , if he shall so long live , and if he die within the Term , that B. his Wife shall have it durante toto residuo termini praedict . The Husband dieth during the Term : If the Wife shall have the residue of the Term was the Question . And by Periam & Walmesly Iustices , by the death of the Husband the Term is determined , & thereupon nothing can remain , especially by way of grant , but by way of Devise it might be . See 9 Eliz. 253. A Lease for forty years to A. if he shall live so long , and if he die within the Term , that E. his Wife shall have the residue of the years : Where it was holden , that by the death of A. the Term is determined , and then there is no residue , and so the Limitation is void , vide 3 & 4 Phil. & Mar. 150. Anderson , If the Husband and Wife had been parties to the Deed of Demise , then the residue of the Term should go to the Wife after the death of the Husband : and this word ( Terminum ) shall not be taken for the Interest which is given to the Husband , but for the time , so it is as much as to say , that if the Husband die before forty years expired , that then his Wife shall have the residue for forty years ; and it is reason to make such construction rather than to construe the said part of the Deed to be void : For if in the construction of this Grant , the Term shall be taken for the Interest , then the Limitation shall be void . And in all Grants , the Deeds shall be taken most beneficially for the Grantee , and most strongly against the Grantor , especially ut res magis valeat quam pereat : And here are several Grants and several Terms : But if such matter be limited to the Wife not named in the Deed , all is void , for it is incertain when the Term shall begin , & it cannot vest during the particular Estate , and it is not certain , whether the Husband shall survive the Term , or not . And by Walmesly & Windham the said Limitation is meerly void : As if a Termer grants all his Term for so many years as shall be behind after his death , the same is a void Grant , for the Lessee may over-live all the Term , and then it is incertain when it shall begin : And in this Case this word , Term , shall be taken for the Interest , and not for time , vide 35 H. 8. Br. Conditions 203. vide Co. 1. part , in the Rector of Chedingtons Case , this Case vouched .

CCCI. Gawton and the Lord Dacres Case . Mich. 32 & 33 Eliz. In the Common Bench.

IN Debt upon Surplusage of an Accompt by Gawton , against George Lord Dacres ; It was said by Periam Iustice , and not denied by any , that if I make J. S. my Auditor , generally to take Accompts of all my Bayliffs and Receivors , that he is not a sufficient Auditor without a Patent ; for when a man is made an Auditor generally , he is an Officer , and an Officer cannot be without a Deed. But if a Bayliff , or Receiver be accomptable to me , it is as cleer on the other side , that I may appoint one to be my Auditor to take the accompt of him , pro hac vice by word ; which Anderson granted : But if he afterwards takes an accompt of any by force or colour of the said Warrant without my Commandment , he is not a sufficient Auditor to such intent , either to take the accompt , or to assess the arrerages if the accomptant be found in arrear , or to make allowance if he be found in Surplusage : And by him . If one become my Bayliff of his own wrong , without my appointment , he is accomptable to me , but I am not compellable to make him any allowance for his Expences about my business . And if I assign to such Bayliff of his own wrong an Auditor , he cannot make allowance of such Expences . Anderson , If my Auditor make allowance to my Bayliff for any collateral Expences , which he hath expended in my affairs , which do not concern my Manor , whereof he is Bayliff , such allowance shall not bind me . And note , that in this Action the Plaintiff declared that he was Bayliff to the Defendant of certain Manors , Receiver of certain monies , and so retained , ad diversa negotia procurandum : And upon accompt the allowance was made unto him for his Board-wages , and other Expences in riding Circa negotia . And by Anderson , 3 Len. 149. these allowances shall not bind the Defendant ; for as Bayliff of a Manor , no Expences shall be allowed unto him , but those which the Bayliff hath expended within the Manor : And if I retain one to go about my business he is not accomptable . Windham , If I retain one to follow my business , and deliver to him mony to disburse in such business , he is accomptable . Anderson , It is so truly , but it is not in respect of the said Retainer , Devises . but as he was Receiver , and if he expend more than he hath received , he doth it without Warrant and no allowance shall be made unto him . If the Bayliff be found in Surplusage in the conclusion of the accompt , the Auditor ought to enter . Allocatur super determinationem Compt. in surplusagiis , so much for such and such Expences , allocatis allocandis upon the next accompt : But in this Case it appeared upon the Evidence , that the Entry upon the foot of the accompt was , And so he is in Surplusage upon the determination of this accompt twenty six pounds : But the Auditor being examined , said , that it was not his meaning to allow unto him so much , but only to find and express the certainty of the whole accompt , and so refer the allowance of it to the Defendant to whom he was Auditor : and upon that the Court said to the Iury , if they believed the Auditor , that they should find against the Plaintiff , for upon the matter here is not any accompt , and so no allowance ; for the allowance if it had been according to Law ought to be entred , before Allocatur , &c. and such allowance is as a Iudgment , but here is not any allowance , for the Auditor did refer the same to the Defendant : But if the Iury doth not give credit to the Auditor , then the Court moved the Iury to find it specially that the party was Auditor without Deed , and the finding of the accompt as it is set down in the Declaration , and the manner of the conclusion of it . viz. That the Plaintiff was in Surplusage upon the determination of the accompt for his Expences in riding Circa negotia defendentis , and for his Board-wages twenty six pounds .

CCCII . Chamberlayns Case . Mich. 32 , & 33 Eliz. In the Common Bench.

IN this Case it was moved , whether Beasts taken in Withernam , might be used and worked by the party as his proper Beasts : Owen . Rep. 124. 2 Cro. 148. And it was said by the Court , that Beasts distrained , as Cows , could not be milked , nor Horses wrought , but they ought to be put in the Pound open , and there the Owner might milk them and fodder them . But if Cows be taken in Withernam , because they are delivered to the party in lieu of his own Cattel , Cattel taken in Withernam , worked . 3 Leu. 235. 236. he may milk them , or if they be Oxen , or Horses , reasonably work them , otherwise he should be at great charges of keeping and pasturing of them , and no profit , or consideration for it . Anderson , It should be a great inconvenience to the Common-wealth : For if the Cows are not milked , the milk is lost , and also the Cows impaired thereby .

CCCIII. Byne and Playnes Case . Mich. 32 & 33 Eliz. In the Common Bench.

Assumpsit . 1 Cro. 218. IN an action upon the case by Byne against Playne , the Plaintiff declared , that whereas he himself had recovered against Thomas Ward in the Court of the Queen in Southwark , holden before Omesley Steward there for the Mayor of London , the sum of twenty pounds , and had obtained out of the said Court a Levari facias directed to the Bayliff to do execution upon the Goods of the said Thomas Ward , which then were in the possession of the said Plaintiff ; and where the said Bayliff by vertue of the said Writ was ready to have done execution of the said Goods , the Defendant came to the now Plaintiff , and assumed to him , that in consideration that the said Plaintiff would deliver to the Defendant the said Goods , that he would in fourteen days after Michaelmas next pay to the Plaintiff twenty pounds , or otherwise deliver to him the said Goods again , if in the mean time no other makes Title unto them , and prove them to be his own Goods . And further , that the Plaintiff shall have free ingress and regress to a Chamber in the house of the Defendant in the mean time . And upon Non-assumpsit pleaded , it was found by the Iury , that such a Recovery was in the said Court , and that the Defendant did assume , &c. But they further say , that before the said Recovery , the said Thomas Ward was possessed of the said Goods as of his own proper goods : And , by Deed indented , sold them to his Brother R. W. in consideration of a certain sum of mony , with a Proviso , that the said Tho. Ward , notwithstanding the said sale should have the possession of them for four years , which are not yet expired , paying to the said R. Ward twenty shillings by the year , and if , at the end of the said four years , the said Thomas did repay the said sum of mony to the said R. Ward , that then the said sale should be void . And they further say , that the said Robert Ward made Title to the said goods by vertue of the said sale . Exception was taken to the Declaration , because it was not shewed by what Authority or Title the Court was holden ; Also it sheweth , that the Bayliff was ready to do Execution upon the said Goods , but doth not shew where the said goods then were , but the exceptions were not allowed , for these matters are but inducement and conveyance to the action , and not the matter , or substance of it . Another exception was taken , because the request is not sufficiently alleadged , Licet saepius requisitus , but that exception was not allowed , for here the Assumpsit is to pay at a certain day , and then the request is not material ; but where a Request is parcel of the Assumpsit , Request . there an express Request ought to be taxed , as if the payment should be upon Request . As to the matter in Law , here is not any consideration , for the goods were not subject to execution , for Thomas Ward had but a special property in them , but the general property was in R. Ward , and so no cause to deliver them back to the Plaintiff ; and here by the Verdict the forain title is proved ; for proof ought to be by Verdict , which see Perk. 154. a. & 7. R. 2. Tit. Bar. 241. For it appeareth , before the said Recovery , Thomas sold the goods with promise , ut supra . Owen , Although it be found that R. Ward had the general property , yet Thomas had the special and present property , and that against R. Ward himself , so that during the said four years R. Ward could not entermeddle with the goods ; and though that no execution can be had against him who hath such a special property , yet that is not the case here , for here one who hath the possession of certain goods , delivers them to another , and in consideration thereof , he to whom the delivery is made , promiseth to re-deliver them unto the Bailee , or to pay so much mony , this is a good consideration , when a lawful property or title he hath who makes the Delivery . And of that opinion were all the Iustices , for it appeareth , that the Plaintiff had a possession of the said goods , and that the said Thomas Ward had a special property , and because of such possession was chargeable to an action of the said Thomas Ward , be it that the Plaintiff comes to the said goods by baylment or Trover , for by Periam , if goods come to another by Trover , and he delivereth them over , he is answerable to him who hath right unto them : The Delivery of these goods to the Defendant , is a good consideration , and the Defendant hath benefit by the use of them , and the property of the goods is not to be argued in this case , but the Delivery to the Defendant is the only matter : And because the Delivery of the goods to the Defendant , and the Assumpsit upon it , it was holden , although the goods were not liable to execution , yet the Assumpsit was good , and afterwards Iudgment was given for the Plaintiff .

CCCIV. Vandrink and Archers Case . Mich. 32 & 33 Eliz. In Communi Banco .

VAndrink brought an action upon the case against Archer , and declared , Trover and conversion . that whereas he himself was possessed of twenty Ells of Linnen cloath , as of his own goods , the same came to the hands of the Defendant by Trover , and he knowing the said goods to be the goods of the Plaintiff , sold them unto persons unknown , and the mony thereof proceeding did convert to his own use : The Defendant pleaded , that as to twenty four Ells of the said Linnen cloath , long time before the losing , one Copland was possessed thereof , ut de bonis suis proprijs , Ante. 189. and sold them to the Defendant , who before any notice that they were the goods of the Plaintiff , & before any request , sold them to persons unknown : And as to the other three Ells , he was always ready to deliver them to the Plaintiff , and yet is , and upon these Pleas , the Plaintiff did demur in Law. Owen Serjeant , for the Plaintiff , That both Pleas are insufficient , the first Plea is not an answer but by argument , for the Plaintiff declares of a commission of his own goods , and the Defendant answers to a commission of his own goods , 33 H. 8. Br. Action sur le case , 109. In an action upon the case the Plaintiff declares , that the Defendant found the goods of the Plaintiff , and delivered them to persons unknown , Non deliberavit modo & forma , is no Plea , but he ought to plead not guilty ; and in an action upon the case , the Plaintiff declared , that he was possessed of certain goods , ut de bonis suis proprijs , and the Defendant found them , and converted them to his own use ; It is no Plea for the Defendant to say , that the Plaintiff was not possessed of the said goods as of his proper goods , but he ought to plead not guilty to the mis-demeanor , and give in Evidence , that they were not the goods of the Plaintiff , and 4 E. 6. Br. action upon the case 113. The Plaintiff declared that he was possessed of certain goods as of his proper goods and lost them , and the Defendant found them and converted them to his own use ; the Defendant pleaded , that the Plaintiff pawned the said goods to the Defendant for ten pounds , for which he detained them according to the said pawn , and traversed the conversion ; and by some it was holden , that he ought to plead not guilty , & give the especial matter aforesaid in Evidence ; and 2 & 3. Phil. and Ma. Dyer 121. The case of the Lord Mountegle , in an action upon the Case , the Plaintiff declared upon a Trover of a Chain of Gold , and that the Defendant had sold it to persons unknown , the Defendant pleaded , That ipse non vendidit modo & forma , & upon that the Plaintiff did demur in Law. And see 27 H. 8. 13. Where goods come to one by Trover , he shall not be charged in an action , but for the time he hath the possession ; But that is to be intended in an Action of Detinue , and not in an action upon the Case , for such action upon the Case is not grounded upon the Trover , but upon the mis-demeanor , that is , the Conversion . And as to the other Plea it is utterly insufficient , for the Plaintiff declares of a Conversion , and he pleads a possession , that he is always ready , and so doth not answer to the point of the action . Yelverton Serjeant , to the contrary , and he conceived for the first Plea , that it is a direct answer , for he hath justified his sale to persons unknown , for that he hath bought the goods of one Copland whose goods they were , and because the Plaintiff hath demurred upon the Plea , he hath confessed the truth of the matter contained in it , scil. that the property of the goods was to Copland , and so in Defendant by the said sale , and then he hath good cause to convert them to his own use by sale or otherwise ; And he conceived , that there is a difference , 27 H. 8. 13. betwixt Baylment , and Trover , for in case of Trover , the parry is not chargeable but in respect of the possession , which being removed , the action is gone against the Finder , for he who findeth goods is not bound to keep them , nor to give an account for them . And he put the case reported by Dyer , 13 & 14 Eliz. 306 , 307. R. Fines brought an action upon the case , and declared , he was possessed of a Hawk , as of his proper goods at W. and casually lost it at B. and that it afterwards casually came to the hands of the Defendant by Trover , and that he knowing it to be the Plaintiffs Hawk , sold the same for mony to persons unknown ; The Defendant pleaded that the Hawk first after the losing of it came to the hands of one Jeoffryes , who sold it to one Rowly , who gave it to the Defendant at A. who sold it to Poulton , and the same was found a sufficient Bar ; and it is hard where goods , as Oxen or Horses come to another by Trover , that he should be charged to keep them and pasture them until the Owner claimeth them , and therefore it is not reason but that he discharge himself by the quitting of the possession of them . And as to the other Plea , the matter of the Plea is good enough , and the defect is but in the form , which because the Plaintiff upon his Demurrer hath not shewed to the Court according to the Statute , he shall not take advantage of it , but the matter of the Plea is sufficient , scil. the finding , and the offer to deliver it to the Plaintiff . Anderson Iustice , For the examination of the insufficiency of this Plea , the nature of the action , and the cause of it is to be considered ; the nature of the action , it is an action upon the case , the cause , the Trover , and conversion ; Then for the latter Plea his readiness , to deliver it , It cannot be any answer to the Declaration of the Plaintiff : For this action is not Debt or Detinue , where the thing it self is to be delivered , for in such case , the Plea had been good , but the Conversion is the special cause of this Action , which by this is not answered , and for the other Plea , the Declaration is not answered by it . But here is some matter of justification , for when a man comes to goods by Trover , there is not any doubt but by the Law he hath liberty to take the possession of them , but he cannot abuse them , kill them , or convert them to his own use , or make any profit of them , and if he do , it is great reason that he be answerable for the same , but if he lose such goods afterwards , or they be taken from him , then he shall not be charged , for he is not bound to keep them , and so he conceived Iudgment ought to be for the Plaintiff . Windham Iustice , neither Plea is good ; as to the first Plea , he confesseth the conversion , but hath not conveyed unto himself a sufficient title to the goods by which he might justifie the Conversion , for the Plaintiff declares of a conversion of his own goods , and the Defendant justifies , because the property of the goods was in a stranger who sold them to him , which cannot be any good title for him without a Traverse , unless he had shewed , that he bought them in an open Market , and then upon such matter he might well have justified the Conversion . And as to the other Plea , the same is naught also , for the goods are not in demand , and their the said Plea is not proper to say , that he is ready to deliver them , for damages only for the conversion are in demand , and not the goods themselves , and therefore the same is a Plea but by Argument , scil. He is ready to deliver , Ergo , he hath not converted , and yet the same is not a good argument , for if a man find my Horse , and rides upon him , or hereby he becomes Lame , or otherwise by excessive travel misuseth him , so as my Horse is the worse thereby ; He may be ready to deliver me my Horse , and yet this action will ly , for such an abusing of the Horse is a Conversion to his own use . Periam Iustice , Post . 224. The latter Plea clearly is insufficient , for it amounteth but to Not guilty , but for the first Plea , he doubted of it , for first the property is not traversable , nor the knowing ; but upon the general Issue pleaded , such matter may be given in Evidence . And he conceived , That where a man buyes goods of one who comes to them by Trover , that he may sell them , and shall not be answerable for them . And although it may be said , that the said matter may be given in evidence , yet it is not good to put the same to the people , but to refer the matter to the Iudgment of the Court. Walm . Iustice , The latter Plea is clearly insufficient , but for the first he doubted of it , for he conceived that the sale of the goods is not a Conversion . Anderson , The first Plea is , ut supra , and nothing in that is material or traversable , for all the Plea may be true , and yet the Defendant is guilty , for it may be that the Defendant himself sold them to the Plaintiff , or to another who sold them to the Plaintiff , and that afterwards the Defendant found them , and here the Conversion is confessed , and not so voided by sufficient justification , and by him , the sale to persons unknown is no good Plea , for his sale is his own Act , and it cannot be but he must have notice of the buyers , and therefore he ought in his Plea to shew their names . Periam , Contrary to that matter as to the naming of the buyers , for it should be an infinite thing for a Draper to take notice of every on who buyeth and Ell of Cloath of him . And afterwards the same Term Iudgment was given for the Plaintiff upon the insufficiency of the Plea.

CCCV . Walgrave against Ogden . Mich. 32 & 33 Eliz. In Communi Banco .

Trover and Conversion . 1 Cro. 219. AN action upon the case was brought upon a Trover and conversion of twenty barrels of Butter , and declared , that by negligent keeping of them , they were become of little value , upon which there was a Demurrer in Law : And by the opinion of the whole Court upon this matter , no action lieth ; For a man who comes to Goods by Trover , is not bound to keep them so safely , as he who comes to them by Baylment . Walmesley , If a man find my Garments , and suffereth them to be eaten with Moths by the negligent keeping of them , No Action lieth : Ante 223. but if he weareth my Garments it is otherwise , for the wearing is a Conversion .

CCCVI . Alexander and the Lady Greshams Case . Mich. 32 & 33 Eliz. In Communi Banco .

Debt for arrerages of annuity . ALice Alexander , Administratrir to her last Husband , brought an Action of Debt for the arrerages of an Annuity , against the Lady Gresham , Executix of Sir Thomas Gresham her late Husband , incurred in the life-time of her late Husband Sir Thomas Gresham : The Defendant pleaded , that she had fully administred ; The Plaintiff replyed , Assets , scil. That the Defendant had divers Goods in her hands not administred , which were the goods of the said Sir Thomas at the time of his death , upon which they were at Issue . And it was found by special Verdict , that Sir Thomas Gresham being seised of divers Manors and other Lands in Fee , devised them by his last Will to his Wife the Defendant , Devises . to use at her own pleasure : And by his said Will requested his Wife to pay his Debts and Legacies : and further it was found , that at the Parliament holden 22 Eliz. a private Act was made , 2 Cro. 139. Ante. 87. by which it was enacted , that the said Lady should take upon her the charge of all her Husbands Debts , and for the discharge thereof , she shall sell so much Land as will yield so much mony as will serve for the payment of the said Debts , and if she shall fail therein , that then certain Commissioners shall be appointed for the sale of so much Land , &c. and for all such Debts as the said Lady should not acknowledge to be good & true Debts , that then the Creditors to whom they were due , should repair to the said Commissioners , and they should determine both of the certainty of the sum of the due Debts , and of the Damages for the forbearing thereof : and that afterwards the said Creditors should have their remedy against the said Lady for such sums of mony so agreed upon by the said Commissioners : and found the Statute at large , and that the said Lady Gresham had sold certain Lands parcel of the Possessions of the said Sir Thomas , by which sale she had received the sum of twenty thousand pounds , which yet is unadministred for the greatest part of it . And if upon the whole matter the said sum of twenty thousand pounds be Assets , then they find for the Plaintiff , but if not , then for the Defendant .

And it was moved by Hammon Serjeant , that here is Assets upon this matter , and that by the Common Law , for it appeareth upon the Will , that the Lands were devised to the Lady , to the intent that she should pay his Debts . And although the words of the Charge are , that the Testator requests the Lady to pay his Debts , the same in a Will doth amount to a Condition , and so the meaning of the Devisor appeareth to be , that the money which is levied by such sale shall be Assets , &c. 2 H. 4. 21 , 22. Assets . A man makes a Feoffment in Fee to divers persons , upon condition that they sell the Land , and the money thereof coming distribute for his Soul ; The Feoffor dieth , the Feoffees ( who were also Executors of the Feoffor ) sell the Lands , the mony thereof coming is adjudged Assets . And see 3 H. 6. 3. And although it be not Assets by the Common Law , Roll. part 1. 920. yet it is Assets by the special Statute , which ordains , that he shall be charged with the Debts , and that the Lands shall be sold . And it was found by the Verdict , that such Lands were sold , and such money levied upon the sale , which are administred . And although the said twenty thousand pounds were never the Goods of the Testator , yet as the Case is , 3 H. 6. 3. If Executors recover Damages in trespass of Goods taken away in the life of the Testator , such Damages so recovered are Assets . So if Executors redeem a Pledge with their own proper Goods , the same is Assets in their hands , by Kingsmill , V●vasour , and Fisher , 20 H. 7 42. And where the Executors took of one who was indebted to their Testator in a simple Contract , the same is Assets , 31 E. 3. And see many Cases of such special Assets , 7 Eliz. in Plowdens Comment . in Chapman and Daltons case , 292. It hath been obiected , that the special Assets enacted by Parliament , do not maintain the general Assets intended in the Issues but he conceived the same is well enough . As 27 H. 8. 21. In an Action upon the Statute of 21 H. 8. for that the Defendant hath occupied Land to farm against the Statute . The Defendant pleaded , Non tenuit ad firmam contra formam Statuti : And gave in Evidence , that he had taken to Farm for the maintenance of his house , the same is a good Evidence , and shall maintain the Issue , for he did not occupy against the form of the Statute : for there is a clause in the Statute to that purpose . Puckering Serjeant to the contrary , That it cannot be said Assets by the Statute , and that the Plaintiff upon this general Issue shall not take advantage of the special Assets enacted by Parliament : And here the Plaintiff hath not pursued the Statute , for in case the Defendant will not confess the Debt , by the Statute the Commissioners ought to determine of it , and assess damages for the forbearing and then the party is to have her remedy for all as shall be so determined by the Commissioners by action of Debt : and because the Plaintiff hath not followed the said Statute , those twenty thousand pounds shall not be Assets as to her , for they are not agreed of the Debt , nor of the Damages for it ; but the Commissioners are to appoint sale of the Lands , so as the money arising of the sale of any Lands , shall not be Assets but of such Lands which have been appointed to be sold by the order of the Commissioners . And as to the Common Law , the same is not Assets ; but where Lands devised to be sold by the Executors for the payment of Debts and Legacies , in such case the money arising of such sale is Assets . And see 9 Eliz. 264. Dyer , A man devised his Lands to be sold by his Executors , and that the money thereof coming shall be disposed in payment of Legacies expressed in his Will , the Land is sold ; by Catlin , Dyer and Sanders , the money thereof coming is Assets : but 4 , & 5 Ph. & Mar. Dyer 152. the Law was otherwise taken . Where a man devised that his Executors should sell his Land , and that his Daughters should have such portions out of the monies thereof coming , the Land is sold accordingly , the Daughters sued the Executors in the Spiritual Court. In that Case a Prohibition lieth , for it is not a Legacy Testamentory , but out of the Land , &c. And also in the principal case , the Lands are not devised to be sold ; but there is only a Request to his Wife , that she would pay his Debts without any condition , or express direction , or limitation , 30 H. 8. Land devised to Executors to sell and the money thereof coming to be divided between his Children : the money shall not be Assets , and if it be not Assets by the Common Law , but special Assets by a special Law , the Plaintiff ought to have shewed the same in his Declaration , and then to have maintained against the Defendant the said special Assets upon the Statute : As if in Debt upon an Obligation , the Defendant will plead , Non est factum , and give in Evidence the Statute of 23 H. 6. the same shall not maintain his Plea of Non est factum ; but he ought to have pleaded the special matter in Bar. And see 4 H. 7. 8. So the Plaintiff here ought to have in her Replication shewed the especial matter upon the Statute . Anderson and Walmesly conceived , that the same is Assets within the Stat. and that the Defendant is chargable as Executrix , otherwise there is no remedy , and the Act confirms her to be Executrix , and ordains , that she shall take upon her the charge of payment of Debts , and that the Goods and all the Monies which come by sale of the Lands and Woods shall be Assets . And because that by the said Act the money coming by sale of Woods and Lands are joyned together with the Goods of the Testator in the same plight , all are in the same degree , and both equally Assets . Periam did not speak to that ; but Windham held , That these Assets found by the Verdict , are not Assets intended in the Will , and that the Plaintiff hath not pursued the Statute , which makes such matter Assets . It was adjorned .

CCCVII . The Queen and the Bishop of Yorks Case . Pasch. 33 Eliz. in the Common Pleas.

Quare Impedit . 1 Cro. 240. THe Queen brought a Quare Impedit against the Bishop of York , and one Monck ; and counted upon a Presentment made by him , Hen. 8. in the right of his Dutchy of Lancaster , and so conveyed the same to the Queen by descent : The Bishop pleaded , that he and his Predecessors have collated to the said Church , &c. and Monck pleaded the same plea , Collation gains not the Patronage of the King. 6 Co. 50. a. upon which there was a Demurrer . And it was moved by Beaumont Serjant , That the plea is not good , for a Collation cannot gain any Patronage , and cannot be an Vsurpation against a common Person , much less against the Queen , to whom no Lapses shall be ascribed ; and although the Queen is seised of this Advowson in the right of her Dutchy ; yet when the Church becomes void , the Right to present vests in the Royal person of the Queen : and yet see the old Register 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei tempus . Hammon Serjeant , By these Collations the Queen shall be put out of possession , and put to her Writ of Right of Advowson ; but the same ought to be intended not where the Bishop Collates as Ordinary , but where he Collates as Patron , claiming the Patronage to himself , for such a Collation doth amount to a Presentation ; and here are two or three Collations pleaded , which should put the Queen out of possession , although she shall not be bound by the first during the life of the first Incumbent . Vide Br. Quare Impedit 31. upon the abridging of the Case of 47 E. 3. 4. That two Presentments the one after the other shall put the King out of possession , and put him to his Writ of Right of Advowson , which Anderson denied . And it was holden by the whole Court , Here is not any Presentation , and then no possession gained by the Collations : and although the Bishop doth collate as Patron , and not as Ordinary , yet it is but a Collation . And there is a great difference betwixt Collation and Presentation , for Collation is a giving of the Church to the Parson , and Presentation is a giving and offering of the Parson to the Church , and that makes a Plenarty , but not a Collation . And although that the Queen hath the Advowson by the right of her Dutchy , yet that makes not any matter , for the person of the Queen priviledgeth all her Capacities : Plenarty no Plea against the sting . and therefore Plenarty is no plea against the Queen , be she seised of the Advowson in the Right of her Crown , or of her Dutchy ; but when she claims by Lapse , it is otherwise . And afterwards Exception was taken to the Writ , because it is not set forth in the Writ how the Queen claimed the Advowson ; as where the King had Right to present by reason of the Temporalties of the Bishop in his hands , the Writ shall say , Ratione Archiepiscopatus Cant. nuno Vacant . or Ratione Custodiae : And so because this Advowson is parcel of her Dutchy , the Writ ought to say so . And Anderson chief Iustice was of opinion , that the Writ was good enough , notwithstanding the want of that clause , Ratione Ducatus , for both ways it is good and sufficient , generally or specially ; as where a man hath an Advowson in the Right of his Wife , and the Husband brings a Quare Impedit , the Writ shall be general , ad suam special . Donationem , without the mentioning of his Wife . See the Book of Entries 483. the Writ is general , but the Count is special . And there is the very case of the Dutchy of Lancaster , and then the Writ is general , but the Count is ratione Ducatus sui Lancastr . And such an avoidance of a Church , parcel of the Dutchy , may be granted under the Great Seal : And see the case of the Dutchy of Lancaster in Plowden to that purpose ; and afterwards a President was shewed , in An. 32 H. 6. where the Writ was general , and the Count was Ratione Ducatus .

CCCVIII . Pasch. 33 Eliz. in the Common Pleas.

A Man made a Lease for years to begin at the Feast of our Lady Mary , for one and twenty years , Lease . without shewing the certainty at which Feasts the Annunciation , Purification , &c. yet the Lease is good enough , and the Lessee may determine the certainty of the beginning of the Term by his Entry , at which of the said Feasts the said Term shall begin , by Anderson chief Iustice ; but Periam doubted of it .

CCCIX . Blagrave and Woods Case . Pasch. 33 Eliz. in the Common Pleas.

IN an action of Trespass brought by Blagrave against Wood , Surrender to the Steward out of Court. Co. 4 Rep. 20. of Lands in Totting in the County of Surrey , concerning a Surrender made to the use of Sir Thomas Holcroft , by Alice Pagnam , 7 E. 6. before one Forcet then Steward there : The Issue was , If at the time of the said surrender , the said Forcet was Steward of the said Manor . And the Iury found a special Verdict , scil. That the said Forcet circa 9 Aprilis , 7 E. 6. was retained by one Elizabeth Pagnam , then , before and afterwards Lady of the said Manor , to be her Steward there for the keeping of the Courts of the said Manor ; and this Retainer was only by Word in the Countrey , and no Fee or Annuity given for the exercise of the said Office : and that the said Forcet , according to the said Retainer , had kept Courts there divers times . And further , that such a day and year at St. Dunstans in the East , the said Forcet took a Surrender , which was entred in the Rolls the next Court : and that before that and after he took divers Surrenders as well out of Court , as in Court , and had holden divers Courts there . And upon this Verdict , it was moved by Snagg Serjeant , That Forcet upon the matter found by the Verdict is not such a Steward , that may take Surrenders out of Court , being retained only by word , although to do other Acts in Court he be a sufficient Steward , for in the Court he is as a Iudge , and no body is to dispute his Authority there . And there is a great difference betwixt a Steward of a Manor , and a Steward of Courts ; and a Steward of one Manor hath not as great an authority as the Steward of another Manor , for a Steward of a Manor may take Surrenders in any place , otherwise it is where a Steward is retained to keep Courts , for he hath no authority to keep Court , and all his power is within the Court , Vide Co. 4 part . 30. Dame Holcr●fts Caso . and not without . See 8 Eliz. Dyer 248. Drew Serjeant to the contrary . Here Forcet upon this Retainder was Steward at the Will of the Lady of the Manor , which Will shall not be said to be determined , until the Lady doth discharge him : and the difference which hath been taken betwixt Steward of Courts , and a Steward of a Manor is nothing to the purpose , for there is not any reason in it : and it is true , an Assise cannot be brought of such an Office , without a Patent of it , for it cannot pass for life without a Deed ; and although a Steward in the Courts of Copyholders be a Iudge , yet he may be appointed without Deed : as where two submit themselves to the arbitration of others , now the Arbitrators are Iudges as to that intent , and yet they may be appointed Arbitrators , and discharged without Deed , 19 H 6. 6. 5 E. 4. 3. 21 H. 6. 30. but they cannot by their award transfer Free-hold from one to another , 21 E. 3. 26. 14 H. 4. 18. and 17. by Culpeper and Skreen ; and see as to a Steward retained by word , 8 Eliz. 248. and see 12 H. 7. 25 , 26 , 27. where a Bayliff of a Manor may be appointed without Deed , and so of an under-Sheriff , and yet he is a Iudge . Owen Serjant contrary , Here Forcet at the time of this Surrender was not Steward , but the Retainer void . 1. No Fee is allowed unto him for the exercise of the said Office , 3 H. 6. A Labourer may be retained without promise of any Sallary in certain , for it is appointed by the Law. 2. He is not retained by Deed , and although he may be retained without Deed to hold Court , pro hac vice , yet if the Retainer be for life , or for years , it ought to be by Deed. 3. He was retained to keep the Court , but not to be Steward , which shall be intended to hold Court , and then when that is past his authority shall cease , and then all which he doth afterwards is void . But if he had been retained to be Steward of the Manor , then the Surrender taken out of Court had been well enough . 4. There is not any custom found by the Verdict , to warrant such a Surrender taken out of Court , and then if the Surrender be not warranted by their custom it is void . Yelverton to the contrary , In all cases in real actions which concern Lands , the Suitors are the Iudges ; but in personal actions under the sum of forty shillings the Steward is Iudge : and although he be a Iudge , yet he may be appointed without Deed. And whereas it hath been objected , that no Fee is appointed for the exercising of the Office , the same is not material as to the Grant , but the party is not compellable without a Fee to do the service : and a man may be constituted Bayliff of such a Manor without Deed , and yet more doth appertain to the Office of the Bayliff , than to the Steward : as if the Lord of a Manor be beyond the Sea , * * More 1 Rep. the Writ of Right shall be directed to the Bayliff of the Manor : and see 21 H. 7. 36 , 37. Where the Sheriff , or Steward of a Manor may be without Deed : and here in the principal case , the Retainer is not to keep one Court , but to keep the Courts of the Lady of the Manor , scil. all her Courts , until he be discharged . It was adjourned .

CCCX . Ascew and Fuliambs Case . Pasch. 33 Eliz. In the Common Pleas.

Andita Querela . 1 Cro. 233. AScew was bounden by Statute to Fuliamb , and there was not two Seals put to the Statute , and Execution was sued upon the said Statute , the Conusor brought an Audita Querela , and they were at Issue , if two Seals were to the said Statute , and tried for the Plaintiff in an Audita Querela by the Sheriff of the City of Lincoln ; And it was moved by Glanvil Serjant , That the Issue ought to have been tryed by the Certificate of the Mayor of Lincoln , before whom the acknowledgment was , and not by Iury , which was denyed , for the Issue is not whether any such Statute was acknowledged or not , but whether the Statute in question hath two Seals or not , and that is not recorded by the Mayor , as the Statute it self is : Another Exception was taken , It appeareth by the Margent of the Record , that the Issue was tryed by the County of Lincoln , where it ought to be tryed by the County of the City of Linc. for Linc. only is in the Margent . But to that it was said , that such is the usual form , to which the Preignothories agreed , and the Book of 18 E. 3. 25. was urged , where execution of Lands of the Conusor was awarded upon a Statute Merchant , and the Statute was to pay , &c. 16 E. 3. But the Original Writ which issued to take the body of the Conusor was 14 E. 3. And upon that Error brought : And the Court agreed that case , but these two cases do differ , for there the Process was misawarded , not so here : And although a Writ of Error may lye , yet the same doth not prove , but that an Audita Querela may lye also : And afterwards Iudgment was given for the Plaintiff .

CCCXI. Jennings and Gowers Case . Pasch. 31. Eliz. In the Common Pleas.

IN the Case betwixt Jennings and Gower , the words were ; 1 Cro. 219. That if the wife of the Devisor would permit one Wats to enjoy such a Term for the Term of three years next following , that then she should have all the residue of his Goods and Chattels as his sole Executrix , &c. Anderson chief Iustice conceived , That she should not be Executrix ; For she is to be Executrix , upon a condition precedent to be performed before that she be Executrix : And the condition is impossible to be performed , and then she shall never be Executrix , for where an estate is to be created upon a condition impossible to be performed , there the estate shall never come in esse , and here the condition is impossible , for how can she suffer Wats to enjoy the Term for 3. years , next following , & the 3. years ought to be past before she hath any power , either to permit , or resist , for until the three years be encurred , she cannot be Executrix , nor before the three years expired can she bring any action as Executrix , for her authority doth not begin before the three years be expired . Walm . Peri. & Wind. contrary ; Although a grant upon a condition precedent doth not take effect until the condition be performed , yet such a construction ought not to be used in this case , so the intent of the Devisor in this case shall stand : If the condition had been , that if the wife will find meat and drink to such a person until his death , That then she shall be Executrix , shall not the Wife be Executrix till after the death of such party ? truly yes , for otherwise she should never be Executrix , which is utterly against the meaning of the Testator ; for it was not his intent that the Ordinary should commit Administration of his goods in the mean time : And afterwards Anderson changed his opinion , and agreed with the other Iustices : Periam , The subsequent words prove directly , that the meaning of the Testator was , to make his Wife Executrix immediately , until she were disturbed by the said Wats , for the words are , that if she refuse to suffer the said Wats to enjoy , &c. Then his Son shall be his Executor , which words imply , that by a disturbance made by the Wife her Executor-ship should cease , and that the Son should have it , which cannot properly be if she was not Executrix from the beginning . And it is the usual course in the construction of Wills , to consider all the clauses of the Will , and to judge upon all the words of the Will , and not upon one part only , and such construction the Iudges used in the cases of Param . and Yardley , and Welden , and Elhing And afterwards at another day Iudgment was given for the Wife ; That she was Executrix presently , and her authority should not expect until the three years were expired , if not that any actual disturbance can be proved to be or have been made by the Wife against the Will of the Devisor , and the words of the Will , will receive such construction , that she shall be Executrix until an actual disturbance of Wats .

CCCXII . Palmes and the Bishop of Peterboroughs Case . Pasch. 33. Eliz. in the Common Pleas.

Quare Impedit . 1 Cor. 241. IN a Quare Impedit by Margaret Palmes against the Bishop of Peterborough , who pleaded , That the Plaintiff did present unto him one I. S. of whom the Bishop asked if he were within Orders ; and if he had his Letters of orders , and because the Presentee could not shew the Bishop his Orders , he refused him : And commanded him to come another time and shew to him his Orders , and that the Presentee did never do it , nor offered to the said Bishop his said Orders , without that he did disturb him in other manner . And by Periam and Anderson it is no Plea , for upon his own shewing the Defendant is a disturber : Refusal of the Bishop . Degg . 75. For although that the Statute of 13 Eliz. requires that no man shall be admitted to a Benefice with cure of souls , if he be not a Deacon , yet the Statute doth not extend , to compel the Clark to shew his Orders , and therefore when he for such a frivilous cause doth refuse to admit him , the same is a disturbance ; And afterwards exception was taken to the Count , because that the Plaintiff being Tenant for life of the Advowson of the gift of her Husband , Co. 5 Rep. 57. had not alleadged any Presentment in her Husband , or any of his Ancestors , but only in her self : But that was not allowed , for that point hath been lately over-ruled in this Court , in the case betwixt Specot and the Bishop of Exeter , & 8 H. 5. 4. adjudged accordingly , Vi. 9 H. 7. 23. And the clear opinion of the Court was , that the Count was good notwithstanding that exception : As to the matter of the Plea the Court doubted of it , for the Plea was , that the Bishop demanded , of the clerk presented , his Letters of Orders , and Letters Testimonial , of his good behaviour , and his Letters Missive , and he did not shew them but requested of the Bishop the space of a week , to satisfie the Bishop in those points , which was allowed unto him , but he never returned , for which cause the Bishop afterwards refused , &c. And it was said upon that Plea , that the Clark who is presented , ought to make proof to the Bishop that he is a Deacon , and that he hath Orders ; otherwise by the Statute of 13 Eliz. the Bishop is not bound to admit such Clark , Degg . 75. but the Statute doth not compel the Clark to shew his Orders , for perhaps he hath lost them , but how his Orders should be proved , it was much doubted : Anderson , The Bishop may examine him upon oath , if he hath Orders or not ; But as to the Letters Testimonial of his good behaviour and sufficiency , the Bishop ought to examine the same himself , and if he give day and defer the Admission because he is not resolved therein , he is a Disturber if the Clark come to him in a convenient time : And the Bishop cannot refuse a Clark for the want of Letters Testimonial .

CCCXIII. Linacers Case . Pasch. 33. Eliz. in the Common Pleas.

2 Leon. 96. Co. 5. Rep. 86. IN an Audita Querela brought by Linacer , It was said by Anderson chief Iustice , That if a man be in execution by his Body and Lands upon a Statute ; If the Sheriff permit the Conusor to go at Liberty , yet the Execution of the Land is not discharged ; But if he go at large by the consent of the Conusee , then the whole Execution is discharged : And the Conusor shall have his Land again presently .

CCCXIV . Brownsall and Tylers Case . Pasch. 33 Eliz. In the Common Pleas.

THe Case was , that Tenant in tail brought a Writ of Entry , Sur disseisin and the Writ was general , and it was moved , if the Writ was good , and 21 H. 6. 26. was vouched , where it is holden , that the Writ ought to be special , scil. to make mention of the tail : But it was holden by the Court , that the general Writ is good enough . And then the Count ought to be special . Vi. Fitz. 191.

CCCXV. Ward and Knights Case . Trin. 30. Eliz. In the Kings Bench.

IN an Action upon the case , the Plaintiff declared , Toll . 1 Cro. 227. That whereas Lostock parcel of the Mannor of E. in the County of Suffolk is an ancient Town , and ancient Demesn of the Crown of England , and that , time out of mind , &c. all the men , and Tenants of ancient Demesn ought to be quitted of Toll in all places within the Realm , for them , their Goods and Chattels , &c. And whereas the Queen by her Letters Patents the tenth of September , the nineteenth of her Reign , commanded all Mayors , Bayliffs , Constables , &c. to permit and suffer the men and Tenants of ancient Demesn , to be quit of Toll , Murage , and other exactions throughout the whole Realm ; And whereas the Plaintiff was an Inhabitant , and Tenant in Lostock aforesaid , and such a day and year carried his Goods to Yarmouth in the said County , the Defendant not ignorant thereof , had taken and carried away a Cable of the Plaintiffs goods , of the value of eight pounds for Toll , to dis damage , &c. The Defendant pleaded by Protestation , that Lostock was not ancient Demesn , and by Protestation that the Tenants of ancient Demesn ought not to be quit of Toll , he said . That the Town of Yarmouth is an ancient Borough , Prescription . and that they had been incorporated by the name of Bayliff and Burgesses , &c. And that they have had , time out of mind , &c. an Officer called a Water-Baly , and that , time out of mind , &c. they and their Predecessors have had and taken Toll of the Tenants and Inhabitants of Lostock , for any of their goods brought thither to Merchandize with , and if it be not paid , they have used time out of mind , to distrain for it by their Water-Bayly : And said , that the Plaintiff such a day brought to the said Town of Yarmouth , two thousand weight of Cable Ropes to sell , for which there was due for Toll six pence , for Murage six pence , for Thronage four pence , and the Defendant being Water-Bayly demanded of the Plaintiff the said sum which he refused to pay , for which he took the said Cable , nomine districtionis , for the said Thronage , &c. Golding for the Plaintiff , the Defendant hath not set forth in himself any authority to demand the duty : For he shews , that they have used to distrain by their Water-Bayly , but not that they have used to demand it by him , and it may be , that they have several Officers , one to demand it , and another to distrain for it . And always when a man demands a thing against common Right , he is to shew authority express in the whole : And as to the matter in Law , scil. The Prescription to have Toll of the Tenants in ancient Demesn , it cannot have a lawful beginning : As 21 H. 7. 40. The Lord of a Mannor says , that he hath had a Pound within his Mannor , time out of mind , &c. And that he hath used to have of every one who breaks his Pound , three pounds , the same is a void custom to bind a stranger , for it cannot have a lawful beginning , and see 5 H. 7. 9. b. One prescribed , that if any Cattel be taken in such a place , Damage Feasant , that he might distrain them and put them in Pound until the Owner had made amends , at the will of him who distrained them , the same is a void Prescription , for it cannot have a lawful beginning , and time cannot make such a thing to be good . The King may grant Tollage , Pontage , &c. but not to the prejudice of another , as 22 E. 3. 58. The King cannot grant to one Thorough-toll to pass by Highways , for it is an oppression to the people , for every High-way shall be common to every one , see 16. E. 3. Grants 53. and here the Tenants of ancient Demesn are quit of Toll by the common Law , and not by Prescription , which see Fitz. 14. and such Tenants have an Inheritance in such Liberties , which the King by his grant cannot take away , and then if it cannot have a lawful beginning , it cannot be good by Prescription : also this Prescription is against the Common-wealth , therefore it is a void Prescription , and the Common-wealth is much respected in Law , and things which in themselves are justifiable by reason , are not justifiable if they be injurious to others , as 21 E. 4. & 8 E. 4. 18. Fishers may prescribe to dry their Nets upon the Lands of others , and none can prescribe against such a Prescription ; so here , all Lands which are ancient Demesn , are holden in Socage , so as they were all Husbandmen , who manured their Lands for the sustentation of the Kings Subjects , to which they had such such priviledges to be the better able to follow their Husbandry , and therefore to disable such profitable Subjects , and to prescribe against these Liberties and Priviledges , is to take away the name of ancient Demesn , and to make their Lands at the common Law. Hobart contrary : To shew the authority to demand is not necessary , for our Prescription is not upon demand to distrain : For the common Officer hath authority to demand , for they ought to demand it , who ought to take the thing demanded , and those are the Bailiffs and Burgesses , and then when their Water-bayly doth it , it is as much as if it had been done by the corporation , which see 48 E. 3. 17. The Mayor and comminalty of Lincoln , brought an action of covenant against the Mayor and comminalty of Derby , and declared , that the Mayor and comminalty of Derby had covenanted with the Mayor and comminalty of Lin. that they should be quit of Murage , Pontage , Custom and Toll within the Town of Derby , of all Merchandises of those of the Town of Lin. and further declared , That I.W. and H.M. two Burgesses of the Town of Derby , had taken certain Toll of certain Burgesses of the Town of Lin. &c. Exception was taken to this Declaration , because they had alleadged the taking of such Toll , not by the corporation of Derby , but by I. and H. two of the Burgesses of it , in which case the Plaintiffs might have an action of Trespass against the Burgesses , for the act of any of the corporation is not the breaking of the covenant , made by the comminalty , but it was not allowed ; for if the common Officer of the Town doth any thing for their common use , as it is intended such thing was done by the Officer , it is reason all the Town be answerable for it , and the whole comminalty by intendment cannot come at one time to take , &c. and so in our case , for as much as the corporation ought to make the demand , and their common Officer doth it to their use , the same is the act of the whole corporation . As to the matter in Law , we have pleaded specially ; That we took Toll only of those things which are brought by Sea by Merchants , and not otherwise , and I conceive that Tenants in ancient Demesn , are not discharged of Toll , for all things , but only for such which arise out of their Tenements , or are bought for their Tenements or Families there , and their sustentations , according to the quantity of their Tenements , 9 H. 6. 25. 19 H. 6. 66. They shall be quit of Toll , of all things sold and bought coming of their Lands , or for the manurance of their Lands : And 7 H. 4. 111. Tenants of ancient Demesn , ought to be quit of Toll for Oxen or Beasts bought and sold for tillage , and manurance of their Lands , and for their sustenance and maintenance of their Families , and for putting them to Pasture to make them fat and more vendable , and so to sell them , &c. And see accordingly , F.N.B. 224. D. See Crook 138. 139. 28 Eliz. A Iudgment was given for the said parties , for the Plaintiffs : but there the Plaintiff declared generally , and the Defendant did demur in Law generally , wherefore by common intendment , the Cattel were bought for the tillage and manurance of their Lands : For there it was not shewed ( as it is here ) that it was to Merchandize : Also we have justified , not only for Toll , but also for Trouage , and that they have not shewed , and therefore as to the Trouage our justification is good enough , for their priviledge shall not be construed to extend beyond the words of it : As the priviledge of the Law is , That if I leave my horse at a Smiths Forge to be shod , there my horse cannot be distrained , but if I or my Servant take the Saddle from the Horses back , and lay it in the Smiths Forge , the Saddle may be distrained . Then here are two customs meeting together , and to begin together , and the one was not before the other , then the particular custom shall stand : And I conceive that by the Writ , de exoneratione sect . Fitz. N. B. 161. b. The Tenants in ancient Demesn , have not always such priviledges , for the Writ saith , quod si ita sit , then , &c. and nisi ipsi , & eorum antecessores tenentes de eodem manerio venire consueverunt temporibus retroactis , and see the same matter in the Register , 181. And afterwards Iudgment was given , quod querens nihil capiat par billam , for the Iustices were of opinion , that the Tenants in ancient Demesn should pay Toll for their Merchandizes .

CCCXVI. Lancaster and Lucas Case . Mich. 32 , & 33 Eliz. in the Kings Bench.

TRespass was brought for entring into the Parsonage-house of Ringhall , and divers Lands appertaining to it : Leas●● . The Defendant being Farmor of the Parsonage , pleaded , Not guilty ; and the Iury found , that one Tybbin was Parson of the said Church , and that one Ash and Dorothy his Wife , Wivell and Drausfield were Patrons of the said Church , scil. Ash and his Wife in the Right of his Wife , Wivell as Tenant by the Curtesie , the Reversion to his Son , and Drausfield also as Tenant by the Curtesie , but without Issue by his Wife , &c. so as the Inheritance of the said Parsonage was in Wivell and Ash ; and afterwards the Bishop of Chester being Ordinary , the Parson and Patron , 4 E. 6. joyned in a Lease of the Rectory ( which Lease was void as to the Wife of Ash ) to S. who assigned it to the Defendant . All the Lessors dyed : and further found , that Ash and Wivell were Heirs of the Patronage , and that the Church being void , the Presentment came to the Bishop by reason of Lapse , and that the Successor of the Bishop had Collated his Clark. Cook argued , And he conceived that the same now Incumbent should avoid the Lease in toto ; and the case is but this : Three Coparceners Patrons of an Advowson , or Tenants in Common , the Parson , three Patrons , and the Ordinary joyn in a Lease ( where the one of them is a Feme-covert , and so her Act void ) If the Successor of the Incumbent being presented by Lapse shall avoid it in all : And he conceived that he should , for all three have interest in the Parsonage , and all three ought to agree , but the agreement of the one is worth nothing : But it hath been said , that that is but matter of assent , and that the assent of the one is as strong as the assent of them all ; Atto●nment . As if many Ioynt-tenants hold by certain Services , and the Lord granteth the Services to a stranger , and one of the Ioynt-tenants attorneth to the Grant , the same is as sufficient as if they had all attorned , Lit. 128. 566. Otherwise it is of a Rent-charge , for there all the Ioynt-tenants of the Lands charged upon the grant of the said Rent ought to attorn to the Grant ; for the Ter-tenant ought to attorn , and one of them is not Ter-tenant : And in case of a Rent-charge , the Avowry is upon the Lands : but Attornment differs from our case , for Attornment is but a bare assent , without any interest in him who attorns , for an Abator may do it ; but here is matter of Interest , and in Attornment , Attornment for one acre is effectual for all , 18 E. 3. Fitz. variance 63. but otherwise it is in case of Confirmation for one acre , the same doth not extend to the rest , for in such case an Interest passeth . So here , the one of them is not Patron , therefore all of them ought to concur , 31 E. 3. Grants 61. That such act of the Patron shall not bind but according to the Estate of the Patron , which see Lit. 112. 528. as if Tenant in Tail confirm , the same shall not bind the Presentee of the issue , See Fitz. Grants 104 In R. 2. The case was that the Bishop of Covent . and Lichfeild had two Chapters , one of Coventry , the other of Lichfeild , and he made a conveyance , but one Chapter only did confirm it , the same doth not bind the Successor , for both are but one Chapter in respect of the Bishop , and see the case abridged by Statham Title Assize , for if the Bishop is chosen by both Chapters , there a confirmation must be of them both : The case in Dyer 11 Eliz. 282. Thark , Archbishop of Dublin , hath two Deans and Chapters , the one surrendreth without the assent of the Bishop , and afterwards the other Dean and Chapter confirmeth a Lease made by the Bishop , the same is good : I confess that ; for the Surrender was by Act of Parliament , and so one sole Chapter remained : And in our case , the Lease cannot be good in part , and void for the residue , for all are but one Patron , as 22 H. 6. 47. Two Coparcenes are , they make composition to present by Turns , a Writ of Annuity is brought against the Incumbent , he shall have aid of both . And see the Case betwixt Gore and Dawbney in the Exchequer Chamber upon a Writ of Error , where two are accountable , an Account made by the one is not good , for both the Accountants shall make but , one account , and therefore the Account of the one cannot be good : And the Lord Anderson put this Case , two Ioynt-tenants of a Manor , the one of them doth grant a Copy , the same is void , for he is not Dominus pro tempore : And see as to the assent of them all , &c. 3 Eliz. 190. Dyer . But it hath been objected , That now the Incumbent comes in by the Ordinary , and not by the Presentment of the Patron , and the Ordinary is bound by the confirmation of his Predecessor , so that the collation of the Bishop by Lapse , is in the right and sted of the Patron , and as the Presentee of the Heir of the Patron shall avoid , &c. so also of the Ordinary : and 20 E. 3. Br. Presentment 12. The Patron shall have a Writ of Darrein-presentment upon the present ▪ of the Bishop for Lapse , and 22 H. 6. If a man can recover an Advowson , and after the Bishop collate for Lapse , the same is an Execution of the Iudgment , and will make a possessio fratris , as Moyle saith : And in our case this confirmation is void in all , because Non sunt concurrentes ii qui in hac parte concurrere debuerant : And it is an entire Act , and cannot be avoided in part , and stand for the residue , and the Presentee comes in in the right of the Heir , for which he may avoid it , &c. Popham contrary , it is to be here considered , if the Ordinary hath Interest in the Church by this Lapse , or only an authority ; for if he hath an Interest , then it will follow , that every one of his Successors shall be bound by his Confirmation , and also their Presentees : It hath been objected , that there ought to be a full and entire Patron who makes such a Lease , otherwise it is void : But that is not so , as if the Patron be Tenant for life , his Lease or Confirmation shall not be void in all , but shall be good during his life , which see 31 E. 3. Grants 61. and 19 Eliz. 356. A Parson makes a Lease for forty years , the Bishop being Patron and Ordinary confirms it , the Patron dyeth , the Bishop presents , and afterwards is translated , this Lease shall stand during the life of the Bishop , and of the new Incumbent who found the Church charged , and then such Lease may be good for part , and void for part . See for the same , 2 E 3. 8. If the Advowson of a Church be appropriated unto a Prior and his Successors , if afterwards the wife of the Grantor be endowed of it , and present her Clerk , the Church is become dis-appropriated during the life of the Wife , but afterwards shall stand . See the case cited to the contrary , 29 Eliz. in the case of the Earl of Bedford 7 Co. 8. At the beginning the Patron was not restrained to any time to present his Clerk , but the six months was appointed at the instance and suit of the Ordinaries by a Canon , confirmed in the councel of Lateran , before which time , the Ordinaries had not any Lapses , but after the said Canon , they had an Interest in the Church , and this appeareth in the Register : And see F.N.B. 37. f. that after the Ordinary is entituled to Lapses , The Plaintiff in a Quare Impedit cannot have a Ne admittas , for now the Ordinary hath an Interest : And if the Bishop hath Title to present by Lapse , and before Presentment he dyeth , so as his temporalties come to the King , the King shall present , which proves that it is an Interest , and the Civilians call it , Interesse caducum & conditionale : And in our case the confirmation of the Coparcener shall bind the other Coparceners ; in a Nativo habendo , shall bind them all , and the villain shall be free for ever . And it was moved also , if an usurper , or the Clerk who is in by him shall avoid this clause , and by the words of the Statute of West . 2. Si tempus semestre transierit per impedimentum alicujus , ita quod Episcopus Ecclesiam conferat , & verus Patronus ea vice praesentationem suam amittat , adjudicentur damna ad valorem Ecclesiae pro duobus annis ; Wherefore what the Patron loseth , the Ordinary hath the same , therefore it is an Interest , and in lieu of that loss the Statute gives damages to the Patron , &c. And the case was adjorned to be further argued at another day , &c.

CCCXVIII . Pet and Baldens Case . Pasch. 33. Eliz. Rot. 392. In the Kings Bench.

IN a prohibition the Plaintiff declared , Prohibition . 1 Cro. 274. that whereas Michael Pett was seised of divers Lands , and made his Will , by which he made the Plaintiff his Son his Executor , and thereby devised unto A. his Wife one hundred pounds , in consideration and recompence of her Dower of all his Lands , and dyed , and the said A. took to Husband the Defendant : And that after betwixt the Plaintiff and Defendant , colloquium quoddam habebatur , &c. upon which conference and communication , the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds , promised to make to him a discharge of the said one hundred pounds , and also of the Dower of his Wife , and shewed further , that notwithstanding that the said Pett was ready , and offered the said one hundred pounds , and Dower also , yet , &c. Vpon which there was a Demurrer in Law ; It was moved by Tan. that here is not any cause to have a prohibition , for the agreement upon the communication is not any cause , for it doth not appear that it was performed . Coke , A Prohibition lieth , for the Wife cannot have both , money , and Dower , for that was not the meaning of the Devisor , and therefore it hath been holden , that if a man deviseth a Term for years to his Wife , in satisfaction and recompence of her Dower , if she recovereth Dower , she hath lost her Term ; Also here is modus and conventio which alters the Law , scil. mutual agreement : So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years , &c. as it was in the Case betwixt Green and Pendleton , &c. it is good .

CCCXIX. Martingdall and Andrews Case . Mich. 32 & 33. Eliz. In Banco Regis .

Action upon the case for Wast IN an Action upon the Case , the Plaintiff declared , that one Mildmay was seised of a House in A. and that he and all those whose estate , &c. time out of mind , &c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis , and shewed , that the said Mildmay enfeoffed him of the said House , and that the Defendant stopt the said way , to his damage , &c. And it was found for the Plaintiff , and it was moved in Arrest of Iudgment , that the title to the way is not certainly set forth , i.e. pro quibusdam averiis suis , quod omnes Justiciarii concesserunt : But Gawdy Iustice conceived , that the same was no cause to stay Iudgment : For it appeareth to us , that the Plaintiff hath cause of Action , although that the matter be incertainly alleadged , and of this incertainty the Defendant hath lost the advantage , having surceased his time by pleading to it , as 20 E. 3. Trespass for taking and carrying away of Charters , the Defendant pleaded Not guilty , and it was found for the Plaintiff to the damage , &c. And Error was brought , because the Plaintiff had not set down in his Declaration , the certainty of the Lands comprized in the Charters : But non allocatur , for the Defendant ought to have challenged that before , and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant , by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln , and declared , that at a certain day he required the Defendant to make him assurance of all the Lands , &c. And the Writ of Covenant was general , quod teneat conventionem de omnibus terris quas habeat in , &c. And it was objected ( as here ) that the Writ wanted certainty , as how many Acres , or such a Mannor , but non allocatur , for here the Plaintiff is not to recover Land , but only Damages , and the Writ was awarded good . Fenner Iustice , the Cases are not like to the Case at Bar , for in the said Cases , the certainty is not needful , but for the taxing of the Damages ; but here , the certainty of the number of the Cattel is part of the title .

CCCXX . Beale and Taylors Case . Mich. 32 , & 33 Eliz. In the Kings Bench.

UPon Evidence to a Iury , Leases . 1 Cro. 222. it was holden by Gawdy and Clench Iustices , that if a Lease for years be made , and the Lessor covenants to repair during the Term ; if now the Lessor will not do it , the Lessee himself may do it , and pay himself by way of Retainer of so much out of the Rent , which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent . A Lease for years by Indenture , and the Lessor , covenants to repair the Houses , and afterwards the Lessor commands the Lessee to mend the Houses with the Rent , who doth it accordingly , and expends the Rent in the charges , &c. So 11 R. 2. Bar. 242. The Lessor covenants , that the Lessee shall repair the Tenements when they are ruinous , at the charge of the Lessor : In debt for the Rent , the Lessee pleaded that matter , and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent , and demanded Iudgment , if action , Jones 242. Yelv. 43. &c. and good . Fenner Iustice contrary , for each shall have action against the other , if there be not an express Covenant to do it . Quaere , If the Lessor covenant to discharge the Land leased , and the Lessee , of all Rent-Charges issuing out of it . If a Rent-charge be due , if the Lessee may pay it out of his own Rent to the Lessor , ad quod non fuit responsum .

CCCXXI. Offley and Saltingston , and Paynes Case . Mich. 32 , & 33 Eliz. In the Kings Bench.

OFfley and Saltingston , late Sheriffs of London , Escape . 1 Cro. 237. brought an Action upon the Case against Payne , because that he being in Execution under their custody for fifty three pounds , in which he was condemned at the Suit of one Spicer , made an escape , the debt not satisfied , by reason whereof they were compelled to pay the money ; The Defendant confessed all the matter , but further pleaded , that after the Escape Spicer had acknowledged satisfaction ( being after the Escape ) upon Record of the sum recovered , upon which there was a Demurrer : Owen Serjeant argued , that the acknowleding of satisfaction , being after the Escape , was not any Plea , for when the Plaintiffs Sheriffs have paid the money recovered , there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne . It was holden by the Iustices , that the Plaintiffs in this Action ought to shew , that they had been impleaded by him who recovered , for they cannot have this Action before they are sued . For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant , and to be satisfied by him . It was said by Glanvil Serjeant , that by the Escape the Debt was cast upon the Sheriffs , and the Defendant discharged : and that it was the Case of Sir Gervas Clyfton , who being Sheriff suffered him who was in Execution , and in his custody , to go and see a Play , and the same was adjudged an Escape , and the party could not be in Execution again : And then he said , that this acknowledgment of satisfaction could not be any Bar to the Plaintiffs . At another day the Case was moved again . And then it was the clear opinion of the whole Court , that the Action was maintainable , although that the Plaintiff in the first Action had acknowledged satisfaction : And it hath been adjudged here in this Court , in the Case betwixt Hill and Hill , that notwithstanding such satisfaction , that the Action lieth . See F.N.B. 130. b. for the payment after doth not take away the Action , but mitigate the damages only , for the Act of a third person shall not take away an Action once vested .

CCCXVII . Greenliff and Bakers Case . Mich. 32 , & 33 Eliz. In the Kings Bench.

Assumpsit . 1 Cro. 193. THe Plaintiff declared , that whereas he was bound to the Defendant in an obligation of forty pounds for the payment of twenty pounds , the Defendant the second of No. after , in consideration that the Plaintiff at the Request of the Defendant had paid the said twenty pounds without suit at Law , promised to deliver to the Plaintiff before such a day an Obligation , by which one A. was bounden to the Defendant in forty pounds , with a Letter of Attorney to demand the same of the said A. and to sue for it in the name of the Defendant , which he had not done , and in that matter the Plaintiff had Iudgment , and thereupon the Defendant brought a Writ of Error ; First , here is not any consideration ; for the payment of the mony is no more than he ought to do , and which he was compeliable to do , &c. Secondly , the same is no benefit to the Plaintiff , but only a matter of charge to sue the said Bond against A. Thirdly , upon the Venire facias , the Sheriff returned but twenty three Iurors . As to the first Error it was the opinion of Gawdy and Fenner Iustices , that here is not any consideration , for the Defendant hath not any benefit by it , and the Plaintiff doth no more than he ought to do , and the payment was in respect of the Debt , and not of the Defendants Request . And by Gawdy , upon this promise an action doth not lye , for the Plaintiff is not to have any benefit by it , but travel . Fenner contrary , and that the Action lieth for that ; as to the third Error , the same is helped by the Statute of 32 H. 8. and the Statute of 18 Eliz. of imperfect and insufficient return of any Sheriff : Fenner , Not only the return is naught , but also the Pannel is insufficient . And it was moved by Tanfield , that it was adjudged in this Court , Pasch. 25 Eliz. betwixt Cook and Huet , that where A. was bounden to B. in forty pounds , B. promised to A. that if A. would pay the mony without suit he would deliver him the said Bond , by which he is bound to the said B. and it was holden a good consideration , Quod fuit concessum per totam Curiam ; but that is not like to the case at Bar , and it was holden in the same Plea , That if the Obligor pay the duty at the day and place , that if the Obligee will not deliver the Bond , yet the Obligor shall not have the Detinue for it .

CCCXII . Guildfords Case . Mich. 32 , & 33 Eliz. In the Kings Bench.

Indictment upon the Statute of 23 Eliz. GUilford was Indicted upon the Statute of 23 Eliz. cap. 1. for withdrawing divers persons , her Majesties Subjects , from the Religion established in England to the Roman Religion , and to promise obedience to the Church of Rome , and for that he himself was with-drawn from the obedience of the Queen . Coke took Exception to the Indictment , because that the Indictment was not found within the year after the offence committed . In the said Act there is a Proviso , That all offences against the Act , shall and may be enquired of within the year and day after the offence committed . Popham Attorney General , This case is not within that Proviso , but doth depend upon other Statutes before , viz. 1 , 5 , & 13 Eliz. touching the acknowledging of her Majesties supream Government in causes Ecclesiastical , or other matters touching the service of God , or coming to Church , or establishing of true Religion within this Realm , shall and may be enquired as well before the Iustices of the Peace , as other Iustices named in the said Statute , within one year and a day after such offence committed : And he said , these words in the Proviso refer only to such offences contained in the said Act , which toucheth the Supremacy and causes Ecclesiastical , &c. and such offences ought to be enquired within the year and day : But this Indictment here doth consist upon other matter , for withdrawing himself from the obedience of the Queen , which is an offence out of the compass of the said Proviso , and therefore the enquiry of it not restrained unto any time ; and the Statute of 13 Eliz. extends to Bills , Writings , Instruments , &c. and not to the words ( with-drawing by words ) which is supplied by 13 Eliz. ( with-drawing by other means ) and the restraint of the Enquiry at the time , goes to the hearing of Mass , and saying of Mass , and not ( repairing to the Church ; ) but as to with-drawing , the same is at large , not restrained by that Statute : And he said , that this Indictment doth consist upon many offences , some to offences within the Proviso , and as to those the Indictment is void : Some to other offences , as Treason , the offence of with-drawing , the Enquiry of which is not restrained , and therefore this Indictment shall stand : Also it was the intent of this Statute , not to restrain this Court , but only the Iustices of Peace , for they are specially named . Coke conceived , that this word Touching , &c. did not extend to any thing contained in the Statute of 23 Eliz. but only to offences within the Acts of 1 , 5 , & 13 Eliz. which were incertain before ; also this Proviso is in the Disjunctive , against this or against the Acts of 1 , 5 , or 13 Eliz. so as that which follows is to be applied to the last Disjunctive , and not to the whole sentence ; and always when a thing is named certain , and after general things , the words subsequent shall be referred to the general words , and not to that which is certain . Also if ( Touching , &c. ) doth refer to this Statute , the sentence would have begun with it ; but here it begins with the Supremacy , of which nothing is spoken in this Statute , and therefore it ought to be referred to the Statute which begins it , and that is 1 Eliz. and then it shall be preposterous to come after 23 Eliz. and these words ( shall and may ) ought to be so construed , ( shall ) is restrictive of it self , and ( may ) shall be referred to that which was restrained before , as the proceedings upon the Statute of 1 Eliz. cap. 2. were restrained to the next Sheriffs ; And he conceived , that this Court is as well restrained to Time as any other Court , for the words are as well before Iustices of the Peace , as before other Iustices named in the said Statutes , and in the Statute of 5 Eliz. this Court is especially named : Wray , This Proviso begins with Iustices of the Peace , therefore it doth not extend to offences which are Treason ; and the meaning of this Statute of 23 Eliz. was to enlarge the Statutes of 1 , & 5 Eliz. for where the offence against the Statutes before was to be enquired at the next Session , and the other within six Months ; now by this Statute it may be enquired at any time within the year and day , but it doth not extend to restrain the proceedings against offences of Treason , for the words of the Statute are , That such offences shall be inquired before Iustices of Peace within a year , &c. But in the next clause , the Iustices of Peace may punish all offences against this Act , but Treason , by which it appeareth that no offences are restrained to time , but those which the Iustices of the Peace have authority to hear and determine , and that is not Treason : Gawdy to the same purpose : For all the Proviso is but one sentence , and there the whole shall be referred to spiritual offences , as the not coming to Church , &c.

CCCXXIII . Filcocks and Holts Case . Mich. 32 , & 33 Eliz. In the Exchequer , Error .

Assumpsit . IN an Action by Filcocks against Holt , Administrator of A. the Plaintiff declared , how that the Husband of the Defendant , who died intestate , was indebted to the Plaintiff in ten pounds by Bill , and that the Defendant in consideration , that the Plaintiff would permit the Defendant to take Letters of Administration , and give to her further day for the payment of the said ten pounds , promised to pay the said ten pounds to the Plaintiff , at the day : And upon a Writ of Error brought in the Exchequer , upon a Iudgment in the Kings Bench , in that case , It was assigned for Error , that here is not any consideration , for by the Law she is to have Administration , being wife of the Intestate ; and as to the giving of further day for the payment of the ten pounds , the same will not make it good , for it doth not appear that she was Administratrix at the time of the promise made , and then she is not chargeable , and then , &c. And such was the opinion of the Court. And it was said by Periam Iustice , and Manwood chief Baron : That the Bishop might grant Letters of Administration to whom he pleased , if he would forfeit the penalty limited by the Statute : ●atch . 67 , 68. Also it was said , where an Executor or Administrator is charged upon his own promise , Iudgment shall be given de boni● propriis , for his promise is his own act .

CCCXXIV . Adams and Bafealds Case . Mich. 33 Eliz. In the Kings Bench.

Action upon the Case . AN Action upon the Case was brought , and the Plaintiff declared , That where such an one , his Servant , departed his service without cause or license , the Defendant knowing him to be his Servant , did retain him in his Service , and so kept him . Tanfeild , The Action doth not lye , for if my Servant depart out of my service , and another doth retain him , an Action doth not lye at the Common Law , if he do not procure him to leave my service , and afterwards retain him , or immediately taketh him out of my service . And this Action is not grounded upon any Statute . See 11 H. 4. 176. 47 E. 3. 14. 9 E. 4. 32. Gawdy , The Action lieth , for here is damage and wrong done to the Plaintiff . Fenner contrary , For the wrong is in the departure , and not in the Retainer ; and upon the Statutes it is a good Plea to say for the Defendant , that the party was vagrant at the time of the Retainer , and the ( sciens ) doth not alter the matter .

CCCXXV . Nash and Mollins Case . Mich. 32 & 33 Eliz. In the Kings Bench.

Prohibition . 1 Cro. 206. Tithes . NAsh and Usher sued a Prohibition against Mollins , for that the Defendant had libelled against them in the Spiritual Court , for Tithes of Wood , growing in Barking Park in Essex ; the other did surmise , that the Lands were parcel of the possessions of the Prior and Covent of Cree Church , and that the said Prior , and his Successors , time out of mind , &c. had held the said Lands discharged of Tithes , and held them so at the time of the Dissolution , &c. and the other part traversed it , whereupon they were at Issue , if the Prior , &c. held the Land discharged , tempore Dissolutionis , &c. And now on the part of the Plaintiff in the Prohibition certain old persons were produced , who remembred the time of the Monasteries , and that they did not pay any Tithes then , or from thence : Exception was taken to the suggestion by Coke , that here is nothing else than a Prescription , de non Decimando , for here is not set forth any discharge , as composition , unity of possession , priviledge of order , as Templarii , Hospitiarii , &c. ●enner Iustice : Spiritual persons may prescribe in non Decimando , for it is not any prejudice to the Church : Wray , Although it is not set down the special manner of discharge , yet it is well enough , for we ought to take it that it was by a lawful means , as composition , &c. or otherwise : For the Statute is , that the King shall hold discharged as the Abbot , &c. and we ought to take it , that it was a lawful discharge of Tithes tempore dissolutionis : And afterwards the Iury found for the Plaintiffs in the Prohibition : But no Evidence was given to prove , that the Defendant did prosecute in the Spiritual Court , contrary to the Prohibition .

CCCXXVI . Sheldons Case . Mich. 32 , & 33 Eliz. In the Kings Bench.

SHeldon , Talbot , and two other , four persons in all , Indictment upon the Statute of 23 Eliz. were Indicted upon the Statute of 23 Eliz. of Recusancy ; the words of the Indictment were , Quod illi nec eorum uterque venerunt to any Parish Church , &c. It was moved by Atkinson , That the Indictment is not good , for uterque doth refer unto one of them , and not where they are many , as here , and so is an insensible word , and so upon the matter there is no offence laid to their charge . And the Iustices doubting of it , demanded the opinions of Grammarians , who delivered their opinions , that this word ( uterque ) doth aptly signifie one of them , Exposition of words . and in such signification it is used by all Writers : Gawdy , I conceive , that the opinions of the Grammarians is not to be asked in this case ; But I agree , that when an unusual word in our Law comes in question , for the true construction of it , then the opinion of Grammarians is necessary : But ( uterque ) is no unusual word in our Law , but hath had a reasonable Exposition heretofore , which we ought to adhere unto , which see 28 H. 8. 19. Three bound in an Obligation : Obligamus nos & utrumque nostrum , and by the whole Court ( uterque ) doth amount to quilibet : And see 16 Eliz. Dyer 337 , 338. Three Ioyntenants in Fee , and by Indenture Tripartite each of them covenanteth and granteth to the others , & eorum utrique , to make assurance , and there it was holden that the word ( uterque ) doth amount to quilibet . Wray , Admit it shall be so taken in a Bond , yet it shall not be so taken in an Indictment : As if a man make a Lease for years , rendring Rent payable at the day of St. Martin , although there be two days of St. Martin in the year , yet the reservation is good , and the Rent shall be taken payable at the most usual day of St. Martin there in the Country : But in an Indictment , if an offence he laid to be done on St. Martins day , without shewing which in certain , it is not good . Fenner , The word uterque is matter of surplusage , and therefore shall not hurt the Indictment .

CCCXXVII . Blunt and Whiteacres Case . Mich. 32 & 33 Eliz. In the Kings Bench.

Error . A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin , where the Defendant did avow as Fermor of the Manor of F. in the County of Berks , to St. Johns Colledge in Oxford , and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor , Amercement . and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House , being a customary Tenant of the said Manor , according to a pain imposed upon him at a former Court , for which he was amerced by the Steward to ten shillings , and was also presented for not ringing of his Swine , for which he was amerced three shillings four pence , and for these Amercements he distrained : And upon Nihil dicit Iudgment was given for the Avowant to have return , upon which a Writ of Error was brought : And Error assigned , in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants , and of common Right he cannot do it . See 48 E. 3. And such Amercement is Extortion , for the Lord cannot be his own Iudge , and therefore he ought to enable himself to distrain by Prescription ; Another Error , because the Fine is laid to be assessed by the Steward , 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors , for they are Iudges , and not the Steward : Another , because that in the Avowry it is set down , quod praesentatum fuit , that he had not repaired a certain House ; but he doth not say , in facto & categorice , &c. that he had not repaired , for that is matter traversable . 4. Here is no offence , for a Copy-holder is not bound to repair by the Common Law , if it be not by Prescription , for he cannot have House-boot upon the Land as a Termor may , if it be not alledged a custom . Fenner , The Steward may assess Fines for a contempt ; but not Amercements if not by Prescription . Gawdy , The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands ; but otherwise it is of a common Trespass , or a Trespass done in the Land of another ; but for the Distress he ought to prescribe , and the Iudgment was reversed .

CCCXXVIII . Page and Fawcets Case . Pasch. 29 Eliz. Rot. 121. In the Kings Bench.

Error . 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn , where by the Record it appeareth , that they prescribe to hold Plea every Wednesday , and it appeared upon the said Record that the Court was holden , 16 Feb. 26 Eliz. which was dies Dominicus , and that was not assigned for Error in the Record ; but after in Nullo est erratum pleaded , it was assigned at the Bar : And Almanacks were shewed to the Court in proof of it , and it was holden clearly to be Error ; but the doubt was , if it should be tried by Iury , or by the Almanacks , and it was said , that the Iustices might judicially take notice of Almanacks , and be informed by them , and that was the Case of one Robert in the time of the Lord Catline , and by Coke ; so was the Case betwixt Galery and Bunbury , and afterwards the Iudgment was reversed .

CCCXXIX . Geofries and Coites Case . Trin. 33 Eliz. In the Kings Bench.

IT was found by special Verdict , 1 Cro. 25● that one Avice Trivilian was Tenant for life , the Remainder to her Son in tail , the Remainder over ; Tenant for life , and he in the Remainder in tail make a Lease for life , the Remainder for life rendring Rent ; Tenant for life dieth , he in the Remainder dieth , and his Son accepteth of the Rent of the Tenant for life in possession , who dieth . The Issue in tail entreth , he in the Remainder for life entreth , &c. And it was conceived , that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder . See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices .

CCCXXX . The Lord Mordant and Vaux Case . Pasch. 33 Eliz. In the Kings Bench.

THe Lord Mordant brought an Action of Trespass against George Vaux , and declared of a Trespass done in quodam loco , 1 Inst. 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden . The Case was , William Lord Vaux was seised thereof , and thereof levied a Fine to the use of the Lord Vaux , which now is , for life , and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns , until Ambrose Vaux should return from the parts beyond the Seas , and should come to the Age of 21 years , or dye , if they should so long live : And after the return of Ambrose from beyond the Seas , and the age of 21 years , or death , whichsoever of the said days or times should first happen , to the use of the said Ambrose and the Heirs of his body begotten , with divers Remainders over . Ambrose returned , Plow . Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age ( for it is not pleaded that he was of full age ) levied a Fine to the use of George Vaux , the Defendant in tail , with divers Remainders over . Afterwards the Lord Vaux being Tenant for life , enfeoffed the Lord Mordant in Fee , upon whom the said George Vaux entred for a forfeiture , upon which Entry the Lord Mordant brought the Action . Buck argued for the Plaintiff . Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas , and his full age , and the estate doth not begin until both be past ; and he said , that no use did arise to Ambrose until the time incurred , for the time of the beginning is uncertain and upon a Contingent , as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life , and after to the use of B. who he intendeth to marry , until the Issue which he shall beget on her shall be of the age of 21 years , and after the Issue shall come of such age , then unto the use of the said B. during her Widowhood , the Husband dieth without Issue , the Wife entreth , and her Entry holden lawful . But Error was brought upon it ; And also Calthrops case was cited to the same purpose , 16 Eliz. Dyer 336. This estate limited to Ambrose doth refer to the estate limited to Muriel and Ann , and not to the time , for ever the first estate is to be respected , as 23 Eliz. Dyer 371. He in the Remainder in Fee upon an estate for life deviseth it to his Wife , yielding and paying during her natural life yearly 20 shillings , and dieth , living Tenant for life , the Rent shall not begin until the Remainder falleth : So as the general words refer to the beginning of the estate , although the words imply that the Rent shall be paid presently : And see also such construction , 9 Eliz. 261. A Lease was made for thirty years , and four years after the Lessor makes another Lease by these words , Nos dictis 30 annis finitis , dedisse & concessisse , &c. Habend . & tenend. a die confectionis praesentium , termino praedict. finito , usque terminum , &c. And although , prima facie , the beginning of this Term seems incertain , yet the Iustices did respect the former estate , and so the Lessee hath the Interest of the Term from the making of the Deed , but no estate until the first Term expire : Then Ambrose before his age of 21 years levying a Fine , the Fine shall not bind the Feoffee , for it enures only by way of conclusion , and so binds parties and privies , but not a stranger : And the party needs not to plead against this Fine , quod partes to the Fine Nihil habuerunt , for that appeareth upon their own shewing . Wiat contrary ; The state of Ambr. accrues and rises when any of the said times come , first full age , return , death , for the words are , And after the return of Ambrose from beyond the Seas , and the age of 21 years , or death , &c. This word ( or ) before ( death ) disjoyns all , and makes the sentence in the Disjunctive , and he cited a case lately judged in the Common Pleas : A Lease was made to Trewpeny and his Wife for one hundred years , if he and his Wife , or any Child or Children betwixt them begotten should so long live ; the Wife died without Issue , the Husband held the Land , &c. for the Disjunctive before ( Child ) made the sentence Disjunctive . Gawdy Iustice , That had been Law if no such word had been in the Case . And Wiat said , That although the return be incertain , yet it is certain enough that he shall come to the age of 21 years , or dye . And also this is by way of use , which needs not to depend upon any estate , and if the Remainder shall vest presently upon his return , then it would be doubtful what Remainder it is , if it be a Remainder depending upon the estate for the life of Ann and Muriel , or for years , i.e. until Ambrose shall come of the age of 21 years : But be it incertain , yet the Fine is good , for here is a Remainder in Ambrose , and both are but particular estates , and there is not any doubt , but that one may convey by Fine , or bar by Fine such contingent uses , for which see the Statute of 32 H. 8. All Fines to be levied of any Lands intailed in any wise to him that levieth the Fine , or to any his Ancestors in possession , reversion , &c. which word ( use ) goes to contingent uses , for at the time of the making of that Statute , there was no other use . Fenner Iustice remembred the Case adjudged M. 30 & 31 Eliz. betwixt Johnson and Bellamy , 2 Len. 36. which ruled this Case . Gawdy Iustice , Here is a certainty upon which the Remainder doth depend , i. e. the death of Ambrose ; but the Case had been the more doubtful if no certainty at all had been in the Case . Atkinson contrary ; Here the Lord Vaux is Tenant for life , the Remainder to George in tail ; now when the Lord Vaux levies a Fine , this is a forfeiture , and then the Entry of George is lawful . It hath been objected on the other side , that this Remainder was future and contingent , and not vested , therefore nothing passed to George by Ambrose . The words are ( quousque Ambrose shall return . ) This word ( quousque ) is a word of Limitation , and not of Condition , and then the Remainder may well rise when the Limitation hapneth . It hath been said , that this Remainder is contingent , and then the Remainder which is to vest upon a contingency , cannot be granted or forfeited before that the contingent hapneth : And he cited the Case of 14 Eliz. 314. Dyer . A Fine is levied to A. to the use of B. for life , the Remainder to E. in Tail , the Remainder to B. in fee. Proviso , That if B. shall have Issue of his Body , that then after such Issue , and 500 l. paid to , &c. within six months after the birth of such issue , the use of the said Lands , after the death of the said B. and the said six months expired , shall be to the said B. and the heirs of his body : And it was holden , that before the said contingent hapneth , B. had not any estate tail , for there it was incertain if the said contingent would happen ; but in our case , the contingents or some of them will happen , or run out by effluxion of time , and that makes the Remainder certain in Ambrose . And he also argued , that the Limitations are several , by reason of the Disjunctive , and the last part of the sentence , and that the said sentence is in the Disjunctive appeareth by the subsequent words ( which of the said days or times shall first happen ) And then the return of Ambrose ( for that first hapned ) vests the Remainder in him , and therefore the Plaintiff ought to be barred . Buckley contrary : The estate of the Daughters doth depend upon a Copulative , i.e. the return of Ambrose and his full age , and both is but one Limitation ; it is clear , that the first Limitation is upon a contingent , and the remainder cannot vest until both are performed . And as to that which hath been said , that there is a certain Limitation , i. e. the return of Ambrose , 18 Eliz. the Case was , Lands were given to Husband and Wife , the Remainder to such of them as should survive the other , for years , the Husband makes a Lease for years and dieth , it was holden , that although the Limitation was upon a certain estate , yet because it is not known in which of the parties the estate secondly limited shall begin , the Lease is void ; So here it is not certainly appointed when the estate limited to Ambrose shall begin , upon the return , full age , or death of Ambrose , and he said , that here are but two times of Limitation , first return and full age , second death ; return and full age determines the estate of the Daughters , and also the death , if it shall first happen , and if these three times shall be construed in the Disjunctive , 2 Len. 2● . the same would overthrow the estate of the Daughters , which is an estate for years determinable , upon the death of themselves or Ambrose . The last words of the Limitation do not distinguish or disjoyn it , but respect the estate precedent . And by Clench Iustice , If the use limited to Ambrose , shall depend only upon the Limitation of his death , the same should be void , for then he should not he in esse to take . But the other Iustices were of a contrary opinion , and that the use is good , 7 H. 4. Gawdy , Although that here be three things , yet but two times ; for the words are not ( or ) at such of the said days or times , as shall first happen , for that would alter the case : But here these words ought to be intended as if they were spoken before in the Limitation of the estate to the Daughters , and cannot divide the former Limitation : and he said , that if by reason , that the Limitation upon the death , which is certain , it shall vest in Ambrose presently , then if after the other Limitation shall fall , then his Remainder which vested in him upon the said certain Limitation should be devested , and should now accrue to him upon the other Limitation , which should be absurd and inconvenient , &c. It was adjorned .

CCCXXXI . Thomas and Wards Case . Trin. 32. Eliz. In the Kings Bench.

IN Ejectione firmae , by Thomas against Ward , Ejectione firme . 1 Cro. 102. upon a Lease made to him of the Manor of Middleton Cheney by one Chambers , the Defendant pleaded , that long time before the Lessor of the Plaintiff had any thing , the Bishop of Rochester was seised , and leased the same to the Defendant : the Plaintiff by Replication said , that the said Lease was upon condition , viz. The Lessee by the Indenture of the said Lease , did covenant that he would not put out , or disturb any of the Tenants inhabiting within the said Manor out of their Tenancies , doing their duties according to the custom of the said Manor ; and shewed , that the Defendant had put out one Ann Green a Tenant dwelling there upon a Tenement parcel of the said Manor , late in the possession and occupation of the said Ann , and that the Bishop had re-entred for the condition so broken , and made a lease to the Lessor of the Plaintiff , upon which Replication , the Defendant hath demurred in Law : Tanfeild argued for the Defendant , that the Bishop had no cause to re-enter , for there is not any condition in the Case , but only a Covenant , for it comes in only on the part of the Lessee , and they are words of Covenant only , whereas every condition ought to be the words of the Lessor , and the Bishop hath sufficient remedy by Action of Covenant : But if the words had been indifferent and absolute without depending on the Lessor or Lessee , then it had been otherwise , as 3 E. 6. Dyer , 65. Non licebit , to the Lessee , dare , concedere , vel vendere statum vel terminum , without the Licence of the Lessor , under pain of forfeiture , the same is a good condition , but here it is meerly a Covenant , and it cannot be both . Haughton . Although the words sound in Covenant , and be the words of the Lessee , yet the Lease being made by Indenture , the same is the Deed of both , and every word in it is spoken by both parties , and although that he may have an Action of Covenant , yet he cannot thereby overthrow the Lease , as by Entry , by condition broken , and yet by the words it seems the meaning of the Indenture was , that by the breach of this Covenant , the estate should be defeated , for so are the words , sub poena forisfactur . And here by way of Action he cannot have the benefit of the whole Covenant , and therefore he shall have it by way of condition : And see the case betwixt Browning and Beston , Plow. 132. If it happen the Rent to be behind , that then the Lessee Covenants , that although the Rent be not demanded , that the said Lease should be utterly extinct , void , and of no effect ; and 24 Eliz. there was a case betwixt Hill and Lockham , where by the Indenture of Lease , the Lessee Covenanted to grind all his Corn at the Mill of the Lessor , and afterward in the end of the said Indenture , the Lessee covenanted to perform all the Covenants , sub poe●a sorisfactur . and by the opinion of the whole Court , the same was a condition : And see 21 H. 6. 51. where in an Obligation where A was bound to B. the condition is written in this manner , Praedict. B. vult & concedit , That if the said A. doth stand to the Arbitrament of such a one that then , &c. the same is a good condition , although they are the words of the Obligee , and the Deed of the Obligor , and so here is a good condition . And such was the opinion of Wray and Gawdy , and Fenner did not contradict it : Wherefore Tanfeild said , Admit here it is a condition , yet here is not any breach of it sufficiently set forth , for the breach is assigned because he had put out a woman , unam tenentem , & inhabitantem , out of certain Lands parcel of the said Manor , late in the possession and occupation of the said woman , and that might be , that she was but Tenant at Will , and the Covenant doth refer only to Copy-holders : And it may be also , that she had disseised one of the Tenants of the Manor , in which case , the putting out of such a Tenant being in by wrong , is no breach of condition . Also it is not averred in facto , that Ann was Tenant of any part of the Mannor : Also the Replication is , That the said Defendant had ousted the said Ann , where she had done her duty , fecit debitum suum , before the Ouster , and that might be , that she had done her duty once , but not after , and therefore he ought to have said , that she had done her duty always , before her putting out , and this word ( duly ) being single , is too general , for it may be understood of curtesie , where the words in the Indenture are ( Doing their duty according to the custom of the Manor . ) And also it might be , that Ann Green was Tenant and Inhabitant , but was not put out of the Land which was parcel of the Manor . And Wray said , that these Exceptions were incurable : And therefore Iudgment was given against the Plaintiff .

CCCXXXII . Harvy and Thomas Case . Mich. 31 & 32 Eliz. Rot. 414. In the Kings Bench.

THe Case was , Leases . 1 Cro. 216. Husband and Wife seised of Lands in the Right of the Wife , the Husband alone makes a Lease by word for years : Afterwards the Husband and Wife levy a Fine , and after the Wife and Husband both dye , It was holden clearly by the whole Court , that the Conusee should avoid the Lease .

CCCXXXIII . Sly and Mordants Case . Trin. 32. Eliz. Rot. 314 In the Kings Bench.

IN an Action upon the Case the Plaintiff declared , 1 Cro. 191. 2 Len. 103. 3 Len. 174. Dy. 250. 1 Cro. 198 , 199. that whereas he was seised of certain Lands , the Defendant had stopped a Water-course , by which his Land was drowned , and found for the Plaintiff , It was moved in arrest of Iudgment , that it appeareth upon the Plaintiffs own shewing , that the Plaintiff hath the Free-hold , and therefore he ought to have an Assize , but the same was not allowed , and therefore the Plaintiff had Iudgment .

CCCXXXIV . Kensam and Redings Case . Trin. 33. Eliz. In the Kings Bench.

THe Case was , Grants of the King 1 Cro. 244. Hob. 170. That the Queen by her Letters Patents granted the Site of the Manor of Brokeley lying in W. and all the Lands , Pastures , Woods , Vnder-woods , and Hereditaments , parcel or appertaining to the said Site , exceptis omnibus grossis arboribus , boscis & maremio ; and further in the said Letters Patents there was a Proviso , that the Lessee should have sufficient House-boot , and Hedge-boot , &c. And if , notwithstanding the said Exception , the Lessee should have the Vnderwoods , was the question : And it was argued , that the Lessee should have subbois , i. e. Vnderwoods , for that is granted by express words , and the exception extends only grossis arboribus , for this word ( grossis ) in the exception extends to all that which follows : Gawdy Iustice , If it were in the case of a common person , it is clear , that upon such matter the Vnderwoods are not excepted , 7 E. 6. Dyer , 79. A Lease is made of a Mannor except Timber and great Woods , the Vnderwoods shall pass . Fenner Iustice , The Proviso , that the Lessee should have House-boot , shews the Queens intent , that the Vnder-woods should not pass . Wray , If this word ( bois ) in the exception should not extend to Vnder-woods , it should be vain and signifie nothing , which should be hard in the Case of the Queen .

CCCXXXV . Trin. 33. Eliz. In the Kings Bench.

IN an Action upon the Case the Plaintiff declared of Trover and of a Bag of mony , and the conversion of it , Trover and Conversion . 1 Cro. 97. 201 , 555 , 693. The Defendant pleaded , that the Bag of mony was delivered to him as a pawn to keep until A. and B. were agreed , which of them should have it , and pleaded further , that A. and B. were not yet agreed , who of them should have it , for which cause he kept it , absque hoc , that he converted it to his own use , upon which the Plaintiff did demur in Law ; It was moved that the Conversion is never traversable . Wray , Generally Conversion is not traversable , but upon such special matter as is here : Or if A. lend money to B. and B. delivereth a thing of the value to A. in pawn , now the Conversion is traversable ; see the same case , 4 E. 6. Br. Action upon the Case , 113. so here . Fenner agreed with Wray .

CCCXXXVI . The Bishop of Lincoln and Cowpers Case . Mich. 33. Eliz. In the Kings Bench.

Prohibition . THe Bishop of Lincoln sued a Prohibition against Cowper , who had libelled against him in the Spiritual Court for Tithes out of the Manor of D. Tithes . 1 Cro. 216. Post . 331 , 332. And the Bishop did suggest , that he and all his Predecessors had been seised of the said Manor , and that as long as it was in their possessions , had been discharged of Tithes , and shewed , that in the time of E. 6. the said Manor was conveyed to the Duke of Somerset in Fee , and afterwards was re-granted to the Bishop and his Successors ; It was moved , That the Prescription was not good , because de non decimando ; And admit that the Prescription be good , that same is interrupted by the seisin of the Duke of Somerset ; and although that the Manor be re-assured to the Bishop of Lincoln , yet the Prescription is not revived : as Homage Ancestrel if it be once in a Forrain Seisin , although it be re-assured , yet it is not revived . But by Wray , Gawdy , and Fenner , The Prescription is good in the Case of a Spiritual person , but not in the case of a common person . And they all were clear of opinion , that the Prescription is not gon by this Interruption , for Tithes are not issuing out of the Lands , neither can Vnity of possession extinguish them , neither are they extinguished , by a release of all right of Land , &c. See for this Case , Co. 11. part of his Reports in the Case of Pridle and Napper .

CCCXXXVII . Dethick , King of Arms Case . 33. Eliz. In the Kings Bench.

Indictment . 1 Cro. 224. Yelv. 34. Noy 250. Misnosmer in an Indictment . WIlliam Dethick , against Garter King of Arms , was indicted upon the Statute of 5 E. 6. for striking in the Church-yard : For that the said Dethick in Pauls Church-yard in London , struck I.S. It was moved ; If Cathedral Churches be within the meaning of the Statute : The Court was clear of opinion , that they were . And afterwards the Defendant pleaded , that before the Indictment found , he was created and crowned by the Letters Patents of the Queen which he shewed , chief and principal King of Arms , and it was granted by the said Letters Patents , that he should be called Garter , and that that name is not in the Indictment , and demanded Iudgment : The Kings Attorney by Replication said , That by the Law of Arms and Heraldry , every one who is made King of Arms before he receives his Dignity ought to be led betwixt two Officers of Arms , by the Arms , before the Earl Marshal of England , or his Deputy , and before him are to go four Officers of Arms , whereof the one is to bear his Patent , another a Collar of Esses , the third a Coronet of Brass double guilt , fourthly a Cup of Wine , and his Patent shall be read before the Earl Marshal ; and afterwards his Coronet shall be set upon his Head , and the Collar of Esses about his neck , and afterwards the Wine poured upon his Head : And that the Defendant had not received these Ceremonies , for which cause he is not King of Arms , nor to be called upon , to which the Defendant did demur in Law. Broughton argued for the Defendant , and he took Exception to the Replication , because it is pleaded there , that secundum legem Heraldorum , Garter upon his Creation ought to receive , &c. of which Law this Court cannot have Conusance , and therefore the Replication ought to be , scil. Secundum legem Angliae : If in Appeal the Defendant wage Battel , although that belongs unto Arms and Heraldry , yet it shall be pleaded according to the Law of the Land , and shall not speak of the Law of Arms. So if an Infant be made a Knight , and he be to plead in discharge of his Wardship , he shall plead according to the Law of the Land , and yet the degree of a Knight belongs to the Law of Arms , 11 E. 3. Dower against the Earl of Richmond , who was also Duke of Britain , who pleaded to the Writ , That he was Duke of Britain , and not so named in the Writ ; but the Court did not regard it , for they cannot have knowledge of it , so not here of the Law of Heraldry : Also this Court cannot write to the Heralds to certifie it , as they may to the Marshal of the King , or to the Bishop : But we have sufficiently shewed our matter , scil. That we have Letters Patents of the Queen , and that we were sworn in the said Office , and so we are King of Heralds by matter of Record , against which is pleaded only matter in defect of ceremony and circumstance , which is not material . An Earl is created with the ceremonies of putting a Sword broad-wise about his Body , and a Cap with a Coronet upon his Head. Yet the King may create an Earl without such ceremonies : And may also create an Earl by word , if the same be after Recorded ; when a Knight is made , Spurs ought to be put upon his Heels , yet without such ceremony such degree may be conferred to and upon another , for such ceremonies are or may be used , or not used at the Kings pleasure . Afterwards it was objected , that the same is but a name of Office , but not a name of Dignity . To which it was answered , that this word Coronamus always imports Dignity , and this is a Dignity and Office , as Earl , Marquess , &c. Fenner Iustice , The Patent is , Nomen tibi imponimus , and therefore ( Garter ) is parcel of his Name : And therefore he ought to be Indicted by such Name . And it should be hard , to tye Estate and Degrees to ceremonies . Gawdy was of opinion , That this is but a name of Office , and therefore the Indictment good , as 1 Mar. Writ of Summons of Parliament issueth without these words ( Supream Head ) and the Writ was holden good , for it is not parcel of the Name , but addition only : So here , Fenner and Wray contrary , for the words are Creamus , Coronamus , Nomen imponimus , Ergo , part of his Name , which Clench also granted , and afterwards Dethick was discharged .

CCCXXXVIII . Strait and Braggs Case . Pasch. 32 Eliz. Rot. 318. In the Kings Bench.

IN an Action of Trespass , 2 Len. 1●9 for breaking his Close in H. the Defendant pleaded , that long before the Trespass , the Dean and Chapter of Pauls were seised of the Manor of C. in the said County of H. in Fee , in the Right of their Church , and so seised King Edward the Fourth by his Letters Patents , Dat. An. 1. of his Reign , granted to them all Fines pro licentia Concordandi , of all their Homagers and Tenants , Resiants , and Non-resiants within their Fee , and shewed , that 29 Eliz. A Fine was levied in the Common Pleas , betwixt the Plaintiff and one A. of eleven Acres of Lands , whereof the place where is parcel , and the Post-Fine was assessed to 15 s. and afterwards Scambler the Forain Opposer did allow to them the said 15 s. because the said Land was within their Fee : And afterwards , in behalf of the said Dean and Chapter , he demanded of the Plaintiff the said fifteen shillings , who refused to pay it , wherefore he in the Right of the said Dean , &c. And by their commandment took the Distress as Baily , &c. for the said 15 s. and afterwards sold it , upon which the Plaintiff did demur in Law. It was moved , that it is not averred that the Land whereof the Fine was levied was within their Fee ; but they say that Scambler allowed it to be within their Fee , and the same is not a sufficient Averment ; which the Court granted . And it was the opinion of the Court , that the Dean and Chapter cannot distrain for this matter , but they ought to sue for it in the Exchequer , as it appeareth 9 H. 6. 27. In the Dutchess of Somersets Case . Gawdy , This Grant doth not extend to the Post Fine , for Fine pro licentia Concordandi , is the Queens Silver , and not the Post Fine . Wray , All shall pass by it , for it is about one and the same matter , and they were of opinion to give Iudgment for the Plaintiff .

CCCXXXIX . Sherewood and Nonnes Case . Trin. 32 Eliz. Rot. 451. In the Kings Bench.

Covenant . IN an Action of Covenant , the Plaintiff declared , that Charles Grice and Hester his Wife were seised of certain Tenements calle Withons , with divers Lands to the same appertaining , and of another parcel of Land called Dole , containing eight Acres , to them and the heirs of the body of the said Charks on the body of the said Hester his wife lawfully begotten , and so seised , 15 Eliz. leased the same to the Defendant by Indenture for years , by which Indenture the Lessor covenanted , that the Lessee should have sufficient House-boot , Fencing-wood , and Hoop-wood upon the Lands during the Term ; and that further the Lessee covenanted for him , his Executors and Assigns , with the Lessor , &c. That it should be lawful for them to enter upon the Lands during the said Term , and to have egress and regress there , and to cut down and dispose of all the Wood and Timber there growing , leaving sufficient House-boot , Fencing-wood and Hoop-wood to the Lessee , upon the Lands called the Dole , for his expences at Withons ; and further , that he would not take any Wood or Timber upon the Premisses , without the assent or assigment of the Lessor or his Assigns , otherwise than according to the Indenture and true meaning thereof . And further declared , That the said Charles and his Wife so seised , levied a Fine of part of the Land to R. S. and his heirs , to whom the Defendant attorned , and that the said R.S. afterwards devised the same to I. his Wife , the now Plaintiff for years , the Remainder over to another , and died , and that the Defendant had felled and carried out of the Lands called Withons , twenty loads of Wood without the assent and assignment of the Lessor or his Assigns , for which the Plaintiff as Assignee brought the Action . The Defendant pleaded , That after the Lease John Grice and others by assignment of Hester had cut down and carried away fifty loads of Wood in the said Lands called the Dole , and so they had not left sufficient Woods for his expences at Withons according to the Indenture , for which cause he took the said twenty loads of Wood upon Withons for his expences , upon which the Plaintiff did demur in Law. Godfrey , The Plea is not good ; This Plea is no more , but that sufficient Wood was not left upon the Dole for his expences , and although there be not , yet the Defendant cannot cut Wood elsewhere , for he hath restrained himself by the Covenant . Also the Covenant of the Lessor is , That the Lessee shall have sufficient Wood upon the Dole for his expences at Withons , but in his satisfaction he doth not alledge , that he had need of Wood for to spend at Withons , nor doth aver that he hath spent it there , for otherwise he hath not cause to take , &c. And the meaning was , that the Lessee should have sufficient Wood when he had need of it . Hobart for the Defendant , He would not speak to the Plea in Bar ; but he conceived that the Declaration was not good , for here no breach of Covenant is assigned , for the Covenant is in the Disjunctive , scil. That the Defendant should not take Wood without the assent or assignment of the Lessor or his Assigns : And the Plaintiff chargeth the Defendant with cutting of Wood without the assent and assignment of the Lessor , so he would compel us to prove more than we ought , for if he did it with their assent only , or by their assignment only , it is sufficient ; but if the Covenant had been in the copulative , both was necessary : And for the nature of Copulatives he cited the Case , where two Churchwardens bring an Action of Trespass , the Defendant pleads , That the Plaintiffs are not Churchwardens , upon which they are at Issue . The Iury find , That the one was Church-warden , and the other not , and for that the Plaintiffs could not have Iudgment , for if the one of them be not Churchwarden , then the Plaintiffs are not Churchwardens , for the copulatives ought not to be disjoyned : And he cited the case lately ruled in the Common Pleas betwixt Ognel and Underwood concerning Crucifield Grange , A. leased unto B. certain Lands for forty years , B. leased part of the same to C. for ten years . A. grants a Rent-charge out of the Lands in tenura & occupatione B. It was resolved , That the Lands leased to C. should not be charged with that Rent , for although it was in tenura B. yet it was not in his occupation , and both are exquisite because in the copulative : So here , the Lessee may cut Wood with the assent of the Lessor without any assignment . Also here , the substance of the covenant cannot charge the Defendant , for although it be in the Negative , yet it is not absolute in the Negative , but doth refer unto the covenant precedent ; for the words are , That the Lessee shall not cut Woods , aliter quam , according to the intent of the Indenture , where the covenant precedent is not , that the Lessee shall not cut Woods but in the Dole , but that the Lessor might cut down any Trees in the Dole leaving sufficient for the Lessee , which covenant in it self doth not restrain the Lessee to cut down any Trees in any part of the Lands demised , nor abridgeth the power which the Law giveth to him by reason of the demise . Then when this last covenant comes , i. e. That the Lessee will not cut , aliter , then according to the meaning of the Indenture without the assent , &c. the same doth not restrain him from the power which the meaning of the Indenture gives , and so no breach of covenant can be assigned in this . For by virtue of the Lease , the Lessee of common Right may take necessary Fuel upon any part of the Land leased : Also this first covenant being in the Affirmative doth not abridge any Interest , as 28 H. 8. 19. The Lessor covenants , That the Lessee shall have sufficient Hedge-boot by assignment of the Baily . It is holden by Baldwin and Shelley , That the Lessee may take it without assignment , because there are no Negative words , & non aliter . So 8 E. 3. 10. A Rent of ten pounds was granted to Husband and Wife , and if the Husband overlive his Wife that he shall have three pounds Rent , and if the Wife do over-live the Husband , she shall have forty shillings , there it was holden that the Rent of ten pounds continued , not restrained by the severance of any of them . And although peradventure it appeareth here , that the meaning of the parties was , That the Lessee should not cut down any Wood but in the Dole , yet forasmuch as such meaning doth not stand with the Law , it shall be rejected , as it was holden to be in the case betwixt Benet and French , where a man seised of divers Lands , devised parcel of it called Gages , to the erecting of a School , and another parcel unto B. in fee , and all his other Lands unto one French in Fee , The devise of Gages was holden void , because too general , for no person is named ; and it was further holden , that it passed by the general devise to French , and yet that was not the meaning of the Devisor : Also the Plaintiff is not Assignee but of parcel of the Reversion , for if the Reversion is granted to him for years , Owen Rep. 152. 1 Co. 215. and such Assignee cannot have an Action of Covenant , for a Covenant is a thing in Action , and annexed to the Reversion , so that if the Reversion doth not continue in its first course as it was at the time of the creation of the Covenant , but be altered or divided , the Covenant is destroyed , and therefore it was holden , 32 H. 8. betwixt Wiseman and Warringer , where a Lease for years was made of one hundred Acres of Lands , rendring ten pound Rent , and afterwards the Lessor granted fifty Acres of it , that the Grantee should not have any part of the Rent , but all the Rent was destroyed . So in our case here , the Grantee hath but parcel of the estate , a Term for years , and so is not an Assignee intended , as the case betwixt Randal and Brown in the Court of Wards : ● Co 96●●●● . Randal being seised of certain Lands , covenanted with B. that if he pay unto him , his Heirs and Assigns , five hundred pounds , that then he and his Heirs would stand seised to the use of the said B. and his Heirs . Randal devised the Land to his Wife during the minority of his Son , the Remainder to his Son in Fee , and died , having made his Wife his Executrix . Brown at the day and place tendred the money generally , the Wife having but an estate for years in the Land took the money . It was holden , that the same was not a sufficient tender , for the Wife is not Assignee , for she hath an Interest but for years , and here the Son is to bear the loss , for by a lawful Tender the Inheritance shall be devested out of him , and therefore the Tender ought to be made to him and not to his Wife . Also as the case is here , he is no Assignee , for although Charles Grice and his Wife hath the Reversion , to them and the Heirs of the body of Charles , and levy a Fine without Proclamations , nothing passeth but his own estate , and then the Conusee hath not any estate , Raph. Rep. 91. ● C●o. 804. ●05 . but during the life of Charles , and then when a man is seised to him and his Heirs during the life of another , he hath not such an estate as he can devise by the Statute , and then when he deviseth it to his Wife for years , it is void , &c. It was adjorned .

CCCXL . Smith and Hitchcocks Case . Trin. 33 Eliz. In the Kings Bench.

Assumpsit . ● C●o. 201. IN an Action upon the Case the Plaintiff declared , that whereas the Defendant was indebted to him , 19 Maii 30 Eliz. The Defendant in consideration that the Plaintiff would forbear to sue him until such a day after , promised at the said day to pay the debt . The Defendant pleaded , how that 29 Maii 29 Eliz. he was indebted unto the Plaintiff in the said sum , for assurance of which afterwards he acknowledged a Statute to the Plaintiff , upon which he had Execution , and had levied the money , absque hoc , that he was indebted to the Plaintiff , antea , vel post , the said day , aliquo modo , upon which the Plaintiff did demur . It was argued that the Traverse was not good , for the consideration in Assumpsit is not traversable , because it is but conveyance , and amounts to the general Issue , as in debt upon the sale of a Horse , it is no Plea for the Defendant to say , that no such Horse was sold to him . Patridge , If the conveyance be the ground of the Suit it is traversable ; an Action upon the Case against an Hostler , it is a good Plea that he is not an Hostler , 2 H. 4 7. See 26 H. 8. Br. Traverse 341. In an Action upon the Case , the Plaintiff declared , that whereas the Defendant , habuit ex deliberatione of the Plaintiff certain goods , the said Defendant in consideration of ten shillings , Assumpsit & eidem querenti promisit salvo Custodire , &c. Non habuit ex deliberatione , is a good Plea. Godfrey , The Defendant doth not answer the point of our Action , which is the Assumpsit , but only by way of Argument , 11 E. 4. 4. In Trespass upon the Statute of 5 R. 2. by the Master of a Colledge and his confreers , the Defendant doth justifie by reason of a Lease made by a Predecessor of the Plaintiff , and his Confreers , by their Deed under their Common Seal , the Plaintiff , Replicando saith , That at the time of the making of the Lease there was no such Colledge , and it was holden no Plea , for it is no answer but by Argument . Gawdy Iustice , In all cases where the Defendant may wage his Law , there the conveyance is traversable . Wray , The cause of the Action is the Assumpsit , therefore the consideration is not traversable , for it is not the point with which the Plaintiff is charged : And it is common here , that the Declaration in such Action upon the Case , Traverse . in consideration of divers sums of money , without any more certainty is good , which should not be good if the consideration were traversable , but the consideration is to be given in Evidence ; and it is also common , that in an Action upon the Case in Trover and Conversion , the Trover is not traversable , for the Conversion is the point of the Action . Fenner Iustice , The debt here is no cause of the Action , but only the Assumpsit . In debt upon Arbitrament , the Arbitrament is traversable : So in debt for Rent upon a Demise , the Demise is traversable , Antea 189. for the Arbitrament and Demise is the cause and ground of the Action . At another day it was moved again , and Gawdy , mutata opinione said , that consideration Executory is traversable ; As where one in consideration that he may marry my Daughter , or of service promiseth to pay , the same consideration is traversable , contrary of a Consideration executed . And afterwards Iudgment was given for the Plaintiff .

CCCXLI . Estons Case . Trin. 33 Eliz. In the Court of Wards .

ESton was seised of Lands in Fee holden of the King in chief , 1 Cro. 243. and took a Wife seised of other Lands holden in Socage , they have Inne , and the Husband dieth ; and afterwards the Wife dieth . Owen Serjeant conceived , That the Queen should not have the Wardship of the Land of the Wife , or the primer seisin of it : And if the Husband had survived his Wife being Tenant by the Curtesie , the Queen should not have Primer seisin of it after his decease . Wray , If the Father be seised of Lands holden in Soccage , and the Mother of Lands holded in Knights service , and the Husband over-lives his Wife being Tenant by the Curtesie the King shall have all . Anderson denied that , and he conceived , That the opinion of Stamford is not Law ; and yet see 13 H. 4. 278. Where the Father is seised of Lands in chief , and the Mother of other ; and the Father dieth , and afterwards the Mother dieth , both shall be in ward . And it was said , That if there be Grandfather , Father , and Son , and the Father dieth seised of Lands holden in Socage ; and afterwards the Grandfather dieth seised of Lands in Knights service , the Lands in Socage shall not be in ward . Anderson held strongly , That the Queen should have Primer seisin of the Lands of the Mother . Wray contrary . Quaere .

CCCXLII . Ellis Hartops Case . Trin. 33 Eliz. In the Court of Wards .

ELlis Hartop was seised of divers Lands , whereof part was holden of the King in Knights service , and devised two parts thereof to W. Denham and his Heirs , to the use of T. his brother , and his wife , and afterwards to the use of the said T. and his Heirs males . T. died in the life of the Devisor , and afterwards a Son is born ; First it was agreed that a Devise might be to the use of another ; Then , when Cesty que use dyeth in the life of the Devisor , the Devisee shall take it , and when a Son is born , it shall go to him : But if the use be void , then the Devisee shall have it to his own use , for every devise doth imply a consideration : Coke was of opinion , That the Son takes by descent , when Cestuy que use , to whom Land is devised , doth refuse the use , the Devisee cannot take it , for he shall not have it to his own use , for if the use be void , the devise is also void : And the use is void , for Cestuy que use died in the life of the Devisor , which see Bret and Rygdens case . A man seised of three Acres , bargains and sells one of them , without shewing which , and that before the Statute of 27 H. 8. The Bargainee dyeth before Election , no Election descends to the Heir , for then he should be a Purchasor : And by Wray , and Anderson , The devise is void , and it is all one with Brett and Rigdens case . And by Anderson , a man deviseth Lands to the use of one , which use by possibility is good , and by possibility not good ; If afterwards Cestuy que use cannot take , the Devise shall be to the use of the Devisor and his Heirs .

CCCLXIII . Weston and Garmons Case . Trin. 33. Eliz. In the Kings Bench.

Assize . 1 Cro. 226. ASsize was brought of a Rent of fifty pounds per annum , and the Plaintiff made his plaint to be disseised of his Free-hold in H. E. and H. W : And shewed , that John Vaughan and Amy his Wife , who before was the wife of one Weston , and Mother of Sir Henry Weston , the Plaintiff in the Assize was seised of the said Manors of H.W. and H.E. lying in Barton and Kinton in Fee. And 18 Eliz. a Fine was levied betwixt Robert Vaughan , and Miles Whitney Complainants , and the said John Vaughan and Amy his Wife , and Francis their Son Deforceants of the said two Manors , inter alia per nomen of the Manors of H.E. and H.W. and of fifty Messuages , three hundred Acres of Lands , two hundred Acres of Meadow , cum pertinentiis , in the said Towns , by which Fine the said Deforceants , did acknowledge the right of the said Manors and Tenements , to be the Right of the Complainants , come ceo , &c. with warranty , of the said Husband and Wife , for which the Complainants did render a Rent of fifty pounds , per annum , with clause of distress , in dictis Manerijs , to the said , John & Amy , & the Heirs of Amy , and also rendred the Tenements aforesaid , with the Appurtenances to the said John and Amy for their lives , the Remainder to the said Francis their Son in tail , the Remainder to the said Amy and her Heirs ; and that John and Amy dyed , by force whereof the said Rent descendeth to the said Plaintiff , as Son and Heir of the said Amy , and that the said Francis entred into the said Mannors as in his Remainder , and was seised in tail , and was seised of the said Rent by the Hands of the said Francis , and afterwards thereof did enfeoff the said Garmons the Defendant , &c. The Tenant pleaded , That the Plaintiff was never seised so as he could be disseised , and if , &c. Nul tor . nul disseisin , which was found for the Plaintiff who had Iudgment and Execution , upon which the Tenant brought a Writ of Error : Stephens assigned Error , First , the Fine is levyed of two Manors , inter alia , so as no other Lands passed by the Fine besides the Manors , and so the Rent is granted out of the said Lands and Manors , and no other Lands which passed by the Fine , and then upon the Plaintiffs own shewing it appears , that all the Tenants of the Lands charged with the Rent in demand , are not named in the Assize : Second Error : This Rent is granted only out of the Estate tail , for Amy hath Fee in both , as well the Rent as the Land , and then when the Estate tail is determined , the Rent is also determined , and he hath not averred the life of the Tenant in tail , or any of his Issue , wherefore it shall be intended that he is dead without issue , and then the Rent is gone , and then he hath not any cause to have Assise : Bourchier , As to the first conceived and argued that it is not Error , for although these words ( inter alia , &c. ) yet it shall not be intended that the Conusor had any other Lands , or that the Rent is issuing out of other Lands than those two Manors which are expressed , & not inter alia : As to the second , the continuance of the tail needs not to be averred , for the Tenant in tail hath enfeoffed the Tenant of the Land , by which the estate tail is discontinued ; And although the Tenant in tail be dead without issue , yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder . Fenner Iustice was of opinion , Vaugh. Re● 175. That the Per nomen should go unto the Mannors only , and should not extend to the inter alia : For if a man in pleading saith , that J.S. was seised of twenty acres of Land , and thereof ( inter alia ) did enfeoff him per nomen of Green-wead , the same shall not have reference to the inter alia , but only to the twenty acres : And the averment of the continuance of the Tail needs not , for the Estate-tail is discontinued . Gawdy Iustice was of opinion , That the per nomen should go as well to the inter alia , as to the two Manors , and then all the Ter-tenants are not named in the Assise , and the same not to be pleaded , for it appears of the Plaintiffs own shewing , and there needs no averment of the continuance of the Tail for the cause aforesaid . Clench Iustice , The per nomen doth refer to all , which see by the Fine , which shews that other Lands passed by the Fine , than the said two Manors . And as to the second point he said , There needed no averment . Gawdy , As to the first Error , the same cannot be saved by any way , but to say , That the Conusor was not seised of any other Lands than the said two Manors , and then the Fine doth not extend unto it , and then no Rent is granted out of it . Fenner , In the Common Pleas , in the great case of Fines , it was holden , that in pleading of a Fine , it needs not to say , That the Conusor was seised , for if the Conusor or Conusee were seised , it is sufficient : for such pleading is contrary in it self ; for a Fine , sur conusance de droit come ceo , &c. doth suppose a precedent Gift : It was also objected , That here is a confusion in this Fine , for the Rent is rendred to the Husband and Wife , and to the Heirs of the Wife , and the Land is rendred to the Husband and Wife for their lives , the Remainder to Francis in Tail , the remainder to the Wife and her Heirs : And these matters cannot stand together in a Fine , but the one will confound the other : But as to that , it was said , that the Law shall Marshall these two renders , so as they both shall stand ; And it is not like unto a Rent-service , for a Rent-service issueth out of the whole Estate : And therefore if a Remainder upon an Estate for life Eschears , the Seigniory is gone even during the life of the Tenant for life ; which see , 3 H. 6. 1. contrary of a Rent-charge : For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life , he shall have the Rent during the life of the Tenant for life . And of that opinion were all the three Iustices , for the Conusors took by several Acts , and the Estate is charged , for it cometh under the Grant. Fenner Iustice , There is a difference betwixt a Rent service and a Rent-charge , or Common , for that shall charge only the Possession , but a Rent-charge shall charge the whole Estate : And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail , or for life , the Rent is extinct ; which Gawdy denied : And this Case was put , The Disseisee doth release to the Lessee for years of his Disseisor , nihil operatur : But if the Disseisor and Disseisee joyn in a Release to such Lessee , the same is good , for first it shall enure as the Release of the Disseisor , and then of the Disseisee , &c.

CCCXLIV . Tedcastle and Hallywels Case . Mich. 32 & 33 Eliz. In the Kings Bench.

Debt . 2 Roll. 594. 1 Cro. 234 , 235. IN Debt upon a Bond , the Defendant pleaded , That the Condition was , That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff , if the Defendant John Hallywel during his Apprenticeship , or any other for him , by his consent or agreement take , or riotously spend any of the Goods of his said Master the Plaintiff : If then the Defendant within one month after notice thereof given to him , do pay and satisfie the Plaintiff for all such sums of Monies , Wares , &c. so taken or riotously spent by the Defendant , or by any other by his procurement or consent , the same being sufficiently proved ; that then , &c. The Defendant by protestation ; Quod nec ipse , nor any other by his procurement or consent had taken , or riotously spent the Goods of the Plaintiff : for Plea saith , That the Plaintiff before the Writ brought had not sufficiently proved , that the said John Hallywel took , or riotously spent any of the Plaintiffs Goods : Vpon which the Plaintiff did demur in Law. It was argued by Daniel , That the proof is sufficient and good for the time , if it be tried in the Action upon this Obligation : and the proof intended is proof by twelve men , for it is not set down before what person it shall be proved , nor any manner of proof appointed , and therefore it shall be tried according the Law of the Land : which see 10 E. 4. 11. 7 R. 2. Bar. 241. Godfrey contrary , This case is not like to the cases before , for here is a further matter . First warning , and a month after Notice pay , &c. And if the proof shall be made in this Action , the Defendant shall lose the benefit of the Condition , which gives time to pay it within a month after , for in all such cases the precedent Act of the Obligee is traversable , as 10 H. 7. 13. I am bound by Obligation to enfeoff such a person of such Lands as the Obligee shall appoint . In an Action brought against me , I shall say-that the Plaintiff hath not appointed , &c. And here ought to be Notice first , and proof ought to precede the Notice by the meaning of the Condition , and so this differs from the other cases put , for here proof is not the substance of the whole : Owen Serjeant , It is the folly of the Defendant to put himself to such an inconvenience , for now he ought to pay the mony without delay of any month : And here the Defendant ought to plead , That he hath not imbezelled any goods of the Plaintiff , and the Plaintiff Replicando shall say , and shew the Special matter that he hath given Notice to him thereof . See 15 E. 4. 25.

CCCXLV. Manning and Andrews Case . 18 Eliz. In the Kings Bench.

Devise . 4 Len. 2. IN Ejectione firmae , the Iury found by special Verdict : That Richard Hart , and Katharine his Wife , and divers other persons , 1 H. 8. were seised of the Lands in question , to the use of Richard and his Heirs , ad per implend . ultimam volunt . dict. Rich. who the first of August , 8 H. 8. by his Will in writing devised , That his Feoffees should be from thenceforth seised to the use of his said Wife for her life , and after to the use of W. H. his Son for his life , without impeachment of Wast , and after the death of the said Katharine his Wife , William his Son , and Joan Wife of the said William , his Feoffees should be seised to the use of the next Heir of the Body of the said William and Joan lawfully begotten , for the term of the life of the same Heir , and after the decease of the same Heir , to the use of the next heir , of the same heir lawfully begotten , and for default of such issue , to the use of the heirs of the body of the said William and Joan lawfully begotten , for the term of life or lives of every such heir , or heirs , More Rep. 368. and for default of such heirs to the use of the heirs of the body of the said William , and for default , &c. to the right heirs of William . And further he willed , That if any of the said heirs shall set , alien , say to mortgage , the right , title and interest which they or any of them shall have in or out of the same Lands , or by their consent or assent suffer any Recovery to be had against them , &c. or do any other Act , whereby they or their heirs , or any of them may or ought to be disinherited ; that then the use limited to such heir so doing shall be void and of no effect during his life : And that his said Feoffees shall be thenceforth seised to the use of the heir apparent of such Offender , as though he were dead . Richard Hart died , William had issue by the said Joan his wife a Son named Thomas , and died , and afterwards 31 H. 8. Joan died , Katharine died , Thomas entred , and had issue Francis and Percival . Thomas by Deed indented , 1 August 4 Eliz. bargained and sold to Andrews , and levied a Fine to him with warranty : And afterwards 6 Eliz. Francis levied a Fine to the said Andrews , Sur conusans de droit come ceo : And further by the said Fine released to him with warranty , at the time of which Fine levied Percival was heir apparent to the said Francis , Francis after had issue I. and F. who are now living . The heir of the Survivor of the Feoffees within five years after the age of Percival , and seven years after the Fine levied , enter to revive the use limited to Percival , who entred , and leased to the Plaintiff . This case was argued by the Iustices of the Kings Bench , &c. First , It was agreed by the whole Court , That Richard Hart being seised with seven others , unto the use of himself and his heirs , might well devise all the use , Use suspended . yet the Land devised . although his use was in part suspended , because he was joyntly seised with seven others to his own use , and so the use for the eighth part suspended , for when this Devise is to take effect , i. e. at the time of his death , all the possession of the Land by the Survivor passeth from the use , and then the use being withdrawn from the possession shall well pass . And by Wray , A use suspended may be devised : As if Feoffees to use before the Statute of 27 H. 8. be disseised , by which disseisin the use is suspended , and afterwards during the disseisin , Cestuy que use , by his Will deviseth , That his Feoffees shall re-enter , and then make an estate to I. S. in Fee , the same is a good devise , for by that disseisin the trust and confidence reposed by Cestuy que use in the Feoffees , is not suspended : Secondly , It was holden that here a use implied was limited to Joan the wife of William , although there be not any express devise of it , according to the Book of 13 H. 7. 17. Thirdly , when a use is limited to the Heir of the body of William and Joan lawfully begotten for life , and afterwards to the Heir of the body of the same heir for life , &c. Geofry Iustice was of opinion , That here is in effect an estate tail , for the estates limited are directed to go in course of an estate tail ; for he wills , That every heir of the body of his Son shall have the Land , and the special words shall not make another estate to pass , but that which the Law wills : As if Lands be given to one for life , the Remainder after his death to the Heirs of his body lawfully begotten , notwithstanding that the words of the limitation imply two several estates , yet because the Law so wills , it is but one estate . Gawdy Iustice said , That every issue begotten betwixt William and Joan should have an estate for life successive , and a Remainder in tail expectant as right heir of the body of William , A Contingent shall hinder the execution of an estate in possession . and this estate tail shall not be executed in possession by reason of the mesne Remainder for life limited to the heir of the body of William and Joan , and although that these mesne Remainders are but upon a contingent , and not in esse , yet such regard shall be had to them , that they shall hinder the execution of the estates for life , and in tail in possession : As if an estate be made to A. for life , the Remainder to the right heirs of B. in tail , the Remainder in Fee to A. although the estate tail be in abeyance , and not in esse during the life of B. yet in respect thereof the Free-hold and Fee shall not be conjoyned . Southcote Iustice , To the same purpose : And he put a case lately adjudged betwixt Vaughan and Alcock : Vaughan and Alcocks case . Land was devised to two men , and if any of them dieth , his heirs shall inherit , these devisees are Tenants in common , because in by devise , but contrary if it were by way of Grant : Lands are devised to A. and B. to be betwixt them divided , they are Tenants in common . Wray , William and Thomas have but for life , for they are purchasors by the name ( heir ) in the singular number , but when he goes further , and says , for want of such issue to the heirs of the body of William , in the plural number , now Will . hath an Inheritance : And if a devise be made to one for life , and then to his heir for life , and so from heir to heir in perpetuum for life , here are two estates for life , and the other Devisees have Fee , for estates for life cannot be limited by general words from heir to heir , but by special words they may : And here , Thomas being next heir of the body of William and Joan , hath an estate for life , and also being heir of the body of the said William , hath a Remainder in tail to him limited , & the mesn remaineth limited to others , i. e. to the next heir of the body of Thomas being in abeyance , Co 11. Rep. 80. because limited by the name heir , his Father being alive , shall not hinder the execution of these estates , but they shall remain in force according to the rules of the common Law : Then Thomas so being seised levyeth a Fine against the Provision of the Will , by which Thomas hath forfeited his estate for life , and so his next heir shall have the Land during his life : And a great reason wherefore the heirs , ut supra , after the two first limitations shall have tail , is , because that if every heir should have but for life , they should never have any Interest in the Lands by these limitations , for by the express words of the devise , none shall take but the heir of the first heir for ever , i. e. When Thomas aliens , by which the use vests in Francis , and when afterwards Francis levieth a Fine , then the use vests in Percival H●rt , being next heir of the said Francis at the time of the Fine levyed ( notwithstanding that afterwards Francis had a Son which is his next heir ) and therefore the use in Percival by the birth of the said Son in Francis shall not be devested , Estate vested , shall not be devested . because it was a thing vested in him before by purchase , 9 H. 7. 25. A enfeoffs B. upon condition on the part of A. to be performed , 1 Cro. 61. and dyeth , having issue a Daughter , the Daughter performs the condition , and afterwards a Son is born , the Daughter shall hold the Lands against the Son : So 5. E. 4 6. A woman hath issue a Daughter , and afterwards consents to a Ravisher , the Daughter enters , and afterwards a Son is born , yet the Daughter shall hold the Lands for ever , i. e. And Geofries Iustice said , Francis being in by force of the Forfeiture , shall not be subject to the limitation of the Will , i. e. to any forfeiture if he alien , for the estate which Francis hath for his life is but an estate gained by the offence of his Father , and the use was limited to him upon the Will of Richard , and then the said estate is not subject to the Proviso of the Will , and then hath not Francis committed any forfeiture : And admit Francis shall forfeit , yet Percival shall get nothing thereby , but the estate which Francis had at the time of the Fine levied , scil. the Free-hold only , for no estate of Inheritance was in him living his Father . As to the regress of the Feoffees , Geofries was of opinion , That where an use is limited to a person certain , and thereupon vested in the person to whom it is limited , That the Entry of the Feoffees in such case is not requisite , notwithstanding that the first estates be discontinued , but where the use ( as in our case ) is not limited to a person certain in esse , but is in abeyance , not vested in any person upon the limitation of it , some estate ought to be left in the Feoffees to maintain that use , and to render it according to the limitation , and in our case , these uses not in esse at the time of the making of the Statute of 27 H. 8. could not be executed by the said Statute , but now at the appointed time by the limitation shall be raised and revived by the Entry of the Feoffees , but here by the Fine and Non-claim , the Feoffees are bound , and their Entry taken away , and so no use can accrue to Percival Hart by such Entry . Southcote Iustice was of opinion , that the Feoffees cannot enter at all , because that by the Statute of 27 H. 8. nothing is left in them at the time of the making of the Statute , which saves the right of every person , &c. other than the Feoffees , so as no right is saved to them but all is drawn out of them by the operation of the Statute , and the second saving of the Statute , saves to the Feoffees all their former Right , so as the Right which the Feoffees had by the Feoffment to the use is utterly gone . But Percival Hart may well enter , for he is not bound to the five years after the Fine levied , for he had not right at the time of the Fine levied , but his right came by the Fine . Wray chief Iustice , The Feoffees are not to enter , for the Statute of 27 H. 8. hath two branches , 1. gives the possession to Cestuy que use in such manner as he hath in the use . 2. takes away all the right out of the Feoffees , and gives it to Cestuy que use , so as nothing at all remains in the Feoffees ; for if an Act of Parliament will give to me all the Lands , whereof my brother Southcote is seised , and that I shall be in the Seisin thereof , now is the actual possession in me without my Entry : so where an use is often executed by the Statute , Cestuy que use without any Entry hath an actual possession . i. As to the uses contingent , nothing remains in the Feoffees for the setling of them when they happen , but the whole estate is setled in Cestuy que use , yet subject to such use , and he shall render the same upon contingency : And if any estate should remain in the Feoffees , it could be but an estate for life , for the Fee simple is executed in Cestuy que use , with an estate in possession , and then the Feoffees should be seised to another use than was given them by the Livery . Also if a Feoffment be made unto the use of the Feoffor , and his heirs , until J.S. hath paid unto the Feoffor 100 l. from thenceforth the Feoffor and his heirs shall be seised to the use of the said J.S. and his heirs , if upon such Feoffment any thing should remain in the Feoffees before the payment by I.S. the same should be a Fee-simple , and then there should be two Fee-simples of one and the same Lands , one in the Feoffor , and the other in the Feoffees , which should be absurd , and therefore the best way to avoid such inconveniences is to continue the Statute , that it draws the whole estate of the Land , and also the confidence out of the Feoffees , and reposeth it upon the Lands , the which by the operation of the Statute , shall render the use to every person in his time according to the limitation of the parties : And also if any Interest doth remain in the Feoffees , Then if they convey to any person upon consideration who hath not notice of the use , then the said use shall never rise , which is utterly against the meaning of the said Statute , and the meaning of the parties , and therefore , to construe the Statute , to leave nothing in the Feoffees will prevent all such mischief : And if a Feoffment in fee be made to the use of the Feoffor for life , and afterwards to the use of his wife which shall be for life , and afterwards to the use of the right Heirs of the Feoffor ; The Feoffor enfeoffeth a stranger , taketh a wife , now cannot the Feoffees enter during the life of the Feoffor , and after his death they cannot enter , because they could not enter when the use to the wife was to begin upon the intermarriage , and then if the Entry of the Feoffees in such case should be requisite , the use limited to the wife by the Act of the Feoffor should be destroyed against his own limitation , which is strong against the meaning of the Act aforesaid , for by the said act , the Land is credited with the said use , which shall never fail in the performance of it . And such contingent estates in Remainder may be limited in possession , a Fortiori in use , which see 4. E. 6. Coithirsts case , 23. And Plesingtons case , 6 R. 2. And it is true , at the common Law , the Entry of the Feoffees was requisite , because the wrong was done unto them by reason of the possession which they then had ; but now by the Statute , all is drawn out of them , and then there is no reason that they medle with the Lands wherein they have now nothing to do , and the scope of the Statute is , utterly to disable the Feoffees to do any thing in prejudice of the uses limited , so as the Feoffees are not to any purpose but as a Pipe to convey the Lands to others ; So as they cannot by their Release or confirmation , &c. bind the uses which are to grow and arise by the limitation knit unto the Feoffment made unto them , which see Br. 30. 30 H. 8. Feoffments to uses 50 A. covenants with B. That when A. shall be enfeoffed by B. of three Acres of Lands in D. that then the said A. and his Heirs shall be seised of Land of the said A. in S. to the use of B. and his Heirs , and afterwards A. enfeoffeth a stranger of his Lands in S. And afterwards B. enfeoffeth A. of his Lands in D. now the Feoffee of A. shall be seised to the use of B. notwithstanding that the said Feoffee had not notice of the use , for Land is bound with the use in whose hands soever it come : And see the like case , ibid. 1. Ma. 59. Vpon the reason of which cases many assurances have been made , for it is the common manner of Mortgage , i. e. If the Mortgag or pay such a sum , &c. that then the Mortgagee and his Heirs shall be seised after such payment , to the use of the Mortgagor and his Heirs ; In that case although that the Mortgagee alien , yet upon the payment , the use shall rise well enough out of the possession of the Alienee , and the Lands shall be in the Mortgagor without any Entry : For the Mortgages could not enter against his own alienation , to revive the use which is to rise upon the payment , and therefore without any assistance of such Entry , it shall arise : As at the Common Law , Land is given to A. in tail , the Remainder to the right heirs of B. A. levies a Fine , makes a Feoffment , suffers a Recovery , &c. although the same shall bind the Issues , yet if B. dyeth , and afterwards A. dyeth without issue , now notwithstanding this Fine , &c. The right Heir of B. may enter : And always a use shall spring out of the Land at his due opportunity , and it is a collateral charge which binds the Lands by the first Liberty , and cannot be discharged , vi . 49. Ass. 8. & 49 E. 3. 16. Isabell Goodcheapes case : A man deviseth , that his Executors shall sell his Lands , and afterwards dyeth without heir , so as the Land escheats to the King , yet the authority given to the Executors shall bind the Lands in whose hands soever it comes , &c. And so a title of Entry continues notwithstanding twenty alienations : But an use is a less thing than a Title of Entry , especially an use in contingency , and an use as long as it is in contingency cannot be forfeited : As if the Mortgagor be attainted and pardoned mean betwixt the Mortgage and the day of Redemption , &c. Then when Thomas levies a Fine , Francis may well enter ; And Thomas before the Fine had an estate tail executed to his Free-hold , and therefore by the Fine he gave an estate of Inheritance to the Conusee , and then no right of entail remained in Francis , but he took an estate for life only , and that as a Purchasor by the limitation of the Will , and then when Francis levied a Fine , his estate was gone ( which was but for life ) and then the right of the entail , and all the other estates which are especially limited are also gone , and so Percival Hart , to whom no estate was specially limited hath not any cause to enter , &c. And it was further said by Wray : Husband and Wife Tenants in special tail , the Husband levies a Fine with Proclamations and dieth , the Wife enters , the issue in tail is barred , but if the Wife enter after the death of her Husband , and before the Proclamations pass , the issue is not bound by the Fine : And if Tenant in Tail granteth totum statum , and after levieth a Fine thereof with Proclamations , come ceo , &c. The Issue is barred ; contrary where the Fine is upon a Release , &c.

CCCXLVI . Henningham and Windhams Case . 18 Eliz. In the Kings Bench.

ARthur Henningham brought a Writ of Error against Francis Windham upon a common Recovery had against Henry his Brother , Error . Owen Rep. 68. and the Case was , That Land was given in special tail to Thomas Henningham , Father of the said Henry and the said Arthur , the Remainder in general tail ( the estate tail in possession was to him and the Heirs Mairs of his body ) Thomas had issue the said Henry and three Daughters by one woman , and the said Arthur and two other Sons by another woman , and dyed seised . Henry entred , and made a Feoffnent , a common Recovery is had against the Feoffee , in which Henry is vouched , who vouched over the common Vouchee according to the usual course of common Recoveries . Henry dyed without issue , Error and Attaint , by him to whom the Land is to descend . and Arthur brought a Writ of Error being but of the half blood to Henry : And it was resolved by the whole Court , That Error and Attaint always descends to such person to whom the Land should descend : If such Recovery , or false oath had not been ; As if Lands be given to one and the Heirs Females of his body , &c. and suffers an erronious Recovery and dyeth , the Heir female shall have the Writ of Error : So upon Recovery of Lands in Borough English , for such Action descends according to the Land , quod fuit concessum per totam Curiam : But it was objected on the Defendants part : That because that the Feoffee being Tenant to the Praecipe is to recover in value a Fee-simple , and so Henry is to yield a Fee-simple which should descend to the heir at the Common Law if this Recovery had not been , therefore he to whom the same should descend , should have the Writ of Error , for he hath the loss : But the said Exception was not allowed : And it was said , That Tenant in tail upon such a Recovery , shall recover but an estate in tail , scil. such estate which he had at the time of the warranty made , &c. And afterwards Iudgment was given that the Action was maintainable : So if a man hath Lands of the part of his mother , and loseth it by erronious Iudgment and dyeth ; That the Heir of the part of the Mother shall have the Writ of Error .

CCCXLVII . Foster and Pitfalls Case . 18 Eliz. In the Kings Bench.

IN Ejectione firmae the Case was : 1 Cro. ● . Brook devised Lands to his Wife in general Tail , the Remainder over to a stranger in Fee , and dyed , he took another Husband , and had issue a Daughter : The Husband and Wife levyed a Fine to a stranger : The Daughter as next Heir by 11 H. 7. entred : It was agreed by the whole Court , That an estate devised to the wife , is within the words . but not within the meaning of the Statute : Secondly , It was resolved , That no estate is within the meaning of the Statute , unless it be for the Ioynture of the Wife : Thirdly Resolved , That the meaning of the Statute was , That the wife so preferred by the Husband should not prejudice the issues or heirs of her Husband ; and here nothing is left in the Issues or heirs of the Husband , so as the Wife could not prejudice them , for the Remainder is limited over .

CCCLXVIII . Greenes Case . 18 Eliz. In the Kings Bench.

Acceptance of Rent . 1 Cro. 3. 3 Co. 64. b. GReene made a Lease for years rendring Rent with clause of Re-entry , and the Rent due at the Feast of the Annunciation was behind being demanded at the day , which Rent the Lessor afterwards accepted , and afterwards entred for the condition broken , and his Entry holden lawful , Entry . Plow . Com. in Browning and Bestons Case . for the Rent was due before the condition broken ; but if the Lessor accepts the next Quarters Rent , then he hath lost the benefit of Re-entry , for thereby he admits the Lessee to be his Tenant . And if the Lessor distrain for Rent due at the said Feast of the Annunciation after the forfeiture , he cannot afterwards re-enter for the said forfeiture , for by his Distress he hath affirmed the possession of the Lessee : So if he make an Acquittance for the Rent as a Rent , contrary , if the Acquittance be but for a sum of mony , and not expresly for the Rent , all which tota Curia concessit .

CCCXLIX . 20 Eliz. In the Common Pleas.

THe Case was , Lessee for life , the Remainder for life , the Remainder in tail , the Remainder in fee : The two Tenants for life make a Feoffment in fee. Dyer , A woman Tenant for life in Ioynture , the Remainder for life , the Remainder in fee ; the Tenants for life joyn in a Feoffment , Entry for Forfeiture . the Entry of him in the Remainder in fee is lawful by 11 H. 7. And if Tenant for life be impleaded , and he in the Remainder for life will not pray to be received , he in the last Remainder may ; and so in our case , inasmuch as he in the Remainder for life was party to the wrong , he in the Remainder in tail shall enter : Which Harper and Munson granted , Dyer 339. a. i. e. Manwood , Although that this Feoffment be not a Disseisin to him in the Remainder in tail , yet it is a wrong in a high degree ; as by Littleton , A Disseisor leaseth for life to A. who aliens in fee , the Disseisee releaseth to the Alienee ; it is a good Release , and the Disseisor shall not enter although the Alienation was to his disinheritance , Lit. 111. which Dyer granted : And if Tenant for life alieneth in fee , and the Alienee enfeoffeth his Father , and dieth , the same descent shall not avail him no more than in case of Disseisin . Livery of Seism . It hath been objected , that this is the Livery of the first Tenant for life , and the confirmation of him in the Remainder for life . Dyer was of opinion , That by this Livery the Remainder for life passeth , and this Livery shall be as well the Livery of him in the Remainder as of the Tenant in possession ; and although where an estate is made lawfully by many , it shall be said the Livery of him only who lawfully may make Livery : Yet where an estate is wrongfully made it shall be accounted in Law , the Livery of all who joyn in it . And in this , the Remainder for life is extinguished by the Livery in the Feoffee , and the Livery of him in the Remainder for life shall be holden a void Livery , especially when he joyns with such a person who hath not authority to make Livery ; As if the Lord and a Stranger Disseise the Tenant , and make a Feoffment over , the whole Seigniory is extinct , as if he solely had been seised : so if he in the Reversion , and a Stranger disseise for life , and make a Feoffment over , the Seigniory is gone , and yet it is the Livery of the Lessee only . And although it be but the confirmation of him in the Remainder for life , yet thereby the Remainder is gone and extinct . And afterwards Iudgment was given , that the Entry of him in the Remainder in tail was lawful : And it was said by the L. Dyer , That if Tenant for life be , the Remainder for life , the Remainder in fee , Tenant for life in possession alieneth in fee , that he in the Remainder in fee cannot enter , for it was not to his disinheri●in .

CCCL . 20 Eliz. In the Kings Bench.

THe Case was , That a Capias ad Satisfaciend was delivered to the Sheriff , 5 Co. 88 , 89. and after the Sheriff did arrest the party against whom the Capias issued , by force of a Capias Utlagatum , and then the party in the Capias came to the Sheriff , and prayed that the party remain in Execution for his debt also , and notwithstanding that the Sheriff let the Prisoner go at large , and upon both Writs returned , Non est inventus . It was the opinion of all the Iustices , That the Sheriff was not bound in point of Escape to detain the Prisoner for the Debt of the Plaintiff ; and it is not like where one is in the Fleet in Execution , there ( if other condemnations in other Courts be notified to the Warden of the Fleet ) he shall be chargeable with them all . It was holden also , per Curiam , That if the Body had been returned by Capias Utlagatum , that the Court at the prayer of the party would grant that the Prisoner might remain in Execution for the debt as in case of a Capias pro fine .

CCCLI . The Lord Saint John and the Countess of Kents Case . 19 Eliz. In the Common Pleas.

IN Evidence given to the Iury in an Action of Debt brought by the Plaintiff against the Defendant : Grants of Executors of omnia bona sua . 1 Cro. 6. It was said by Dyer and Manwood Iustices , That if Executors grant omnia bona sua , that the goods which they have as Executors do not pass , which see 10 E. 4. 1. b. by Danby : but the contrary was holden by Wray chief Iustice of the Kings Bench , and by Plowden . in Bracebridges case , P. 18 Eliz. and they denied the opinion of 10 E. 4. to be Law , for by such Grant made by Executors , the goods of the Testator do pass .

CCCLII. 19 Eliz. In the Common Pleas.

NOte , It was said by Dyer and Manwood , Iustices , That if one be condemned in an Action upon the Case , Abatement of Writ . 3 Len. 68. or Trespass upon Nihil dicit , or demurrer , &c. And a Writ issueth forth to enquire of the Damages , and before the return of it the Defendant dieth , that the Writ shall not abate , for the awarding of the said Writ is a Iudgment . And it was said by Manwood , Account . In a Writ of Account the Defendant is awarded to account ; if the Defendant account , and be found in Arrearages and dieth , the Writ shall not abate , but Iudgment shall be given that the Plaintiff shall recover , and the Executor shall be charged with the Arrearages , and yet account doth not lye against them .

CCCLIII . 19 Eliz. In the Kings Bench.

A. Did recover in Debt against B. whereupon a Fieri facias issued to the Sheriff of Devon ; and the Defendant , seeing the Writ of Execution in the Sheriffs hands , Attachment of Goods after the Money is in the Sheriffs hand , is void . said to him , that he would pay the Debt recovered at Exeter such a day to satisfie the Execution , at which day the Defendant paid the mony accordingly , and presently came an Officer of the City of Exeter , and attached the mony in the Sheriffs hand , supposing the said A. to be indebted so much to one C. in whose name he made the Attachment , Antea 29. 1 Cro. 6● and now on the behalf of the said A. a Certiorare was prayed to remove the Attachment hither ; and it was therefore holden by the whole Court , that the Attachment was void , and a Certiorare granted : And Wray said , If it can be proved by Oath , that if the Defendant did procure , or was assenting to the said Attachment , that Process of Contempt should issue against him ; and the Sheriff demanded of the Court what return he should make , because the monies were attached in his hands , and taken from him by force ; to which Wray answered , That the Sheriff ought to answer the monies to the Plaintiff , which were once in his hands by force of the Execution , and that it was his folly to suffer the mony to be taken from him by colour of the said Attachment , and if the mony was taken by force , the Sheriff had his remedy by an Action of Trespass ; for the Attachment was void , but the Sheriff at the return of the Writ ought to answer for the Mony.

CCCLIV. 19 Eliz. In the Common Pleas.

TEnant for life bargained and sold his Lands to A. and his Heirs , and afterwards levied a Fine to the Bargainee , Forfeiture . 4 Len. 124. ● Len. 60 , 65. Sur conusans de droit come ceo , &c. It was holden by the Court , that it was a forfeiture committed by the Bargainee , not by the Bargainor , who at the time of the Fine had nothing to forfeit ; and it was said by Manwood Iustice , That if Tenant for life be disseised , and takes a Fine , ut supra , of a Stranger , it is a forfeiture , and yet he in the Reversion hath but a right in Reversion ; so that if Tenant for life be disseised , and the Disseisor commits Wast , he in the Reversion shall have an Action of Wast against Tenant for life ; and if two Tenants for life be disseised by two , A. and B. and one of the Tenants for life doth release unto A. and the other Tenant for life doth re-enter , he hath the Moiety in common with the other to whom the Release was made , and he hath revested the intire Reversion in him , in whom the Reversion was before , &c.

CCCLV. 20 Eliz. In the Common Pleas. Bracebridges Case .

THe Case was , Thomas Bracebridge seised of a Manor in Fee , leased a Messuage , parcel of it to one Curtes for 21 years , and afterwards 35 H. 8. leased the same to one Moore for 26 years , to begin after the expiration of the former Lease ; and afterwards 5 E. 6. he enfeoffed Griffith and others to the use of the Feoffees themselves , and their Heirs , upon condition , That if the Feoffees did not pay to the said Thomas Bracebridge 2000 l. within 15 days after , that then immediately after the said 15 days , the Feoffees should stand seised of the said Manor to the use of the said Thomas Bracebridge , and Joyce his wife , for their lives , without impeachment of Wast , and afterwards to the use of T. B. their second Son in tail , with divers Remainders over , the Feoffees do not pay the said mony within the said 15 days , afterwards Curties attorns to the Feoffees . It was moved , if the Reversion of the Lands passed to Curties , passeth by the Feoffment of the Manor without attornment , which see Littleton 133 , 134. 2. Attornment . If by the attornment of Curties , after the 15 days the uses can rise to Bracebridge and his wife , &c. and it was said , That the Case 20 H. 6. Avowry 11 , 12. If a Manor be granted for life , the remainder over in Fee ; Tenant for life dieth , if the Tenants attorn to him in the Remainder , the same is good ; and if a Reversion be granted to two , and one of them dieth , attornment to the survivor is good ; and if a Reversion be granted to Husband and Wife in special tail , the Wife dieth afterwards without issue , Attornment to the Husband is good ; and if a Reversion be given in Frank-marriage , and afterwards the Husband and Wife are divorced , and afterwards the particular Tenant attorns to the Wife , the same is good ; and by Manwood , If a Man seised of a Manor , the demesns of which extends into two Counties , and hath issue a Son and a Daughter by one woman , and a Son by another woman , and dieth , the eldest Son enters into the Demesns in one County only , and takes the profit in one County only , and dieth without issue , the Daughter shall have and inherit the Demesns or Services whereof her Brother was seised , and the Son of the half-blood the rest : And by Manwood , the attornment of Curties , who was the first Lessee , shall bind Moore the second Lessee , for he ought to attorn , against whom lieth the Quid juris clamat : And if a Lease for years be made of a Manor , and the Reversion of it be granted to another in fee , if the Lessee for years attorneth it shall bind the Tenants of the Manor , 18 E. 2. A man seised of a Manor in the right of his Wife , leased parcel of it for years without his wife , the Reversion thereof is not parcel of the Manor ; contrary if the Lease had been made by Husband and Wife . And by Dyer , if Tenant in tail of a Manor leaseth parcel for years , and afterwards makes a Feoffment of the whole Manor , and makes Livery in the Demesns not leased , the Reversion of the Land leased doth not pass ; for by the Feoffment a wrong is done to the Lessor , which the Law shall not further enlarge than appeareth by the Deed ; contrary in case of Tenant in fee of a Manor , and that without Deed with Attornment . And it was the Case of one Kellet , 25 H. 8. Kellet was Cestuy que use before the Statute of 27 H. 8. of divers Lands by several Conveyances , the use of some being raised upon Recovery , of some upon Fine , and of some upon Feoffment , and he made a Feoffment of all these Lands by Deed , with a Letter of Attorney to make Livery ; the Attorney entred into part of the Land , and made Livery in the name of the whole , and it was agreed by all the Iustices , that the Lands passed , notwithstanding in others possession , i.e. other Feoffees : And by Dyer , If the Tenants of a Manor pay their Rents to the Disseisor , they may refuse again to pay them ; and if a Lease be made for years , the Remainder for life , if the Lessor will grant over his Reversion , the Lessee for years shall Attorn , and his attornment shall bind him in the remainder for life ; and if a Lease be made to one for years , the remainder over for life , the remainder to the Lessee for years in Fee. Now if the Lessee for years grant all his interest , &c. there needs no attornment : and if Grantee of a Rent in fee leaseth for life , and afterwards grants the Reversion to another , the Attornment of the Ter-tenant is not requisite , but only of the Grantee for life . It was also holden , Relation . That this Attornment by Curties two years after the Livery was sufficient , for it shall have relation to the Livery to make it parcel of the Manor , but not to punish the Lessee for waste done mean between the Livery and the Attornment , but betwixt the Feoffor and the Feoffee it shall pass ab initio . It was holden also , That although the uses for it limited are determined by the default of payment within the 15 days , yet the Feoffees shall take the Reversion by this Attornment to the second uses ; 2 Len. 222. and if I enfeoff one upon condition to enfeoff J.S. who refuseth , now the Feoffee shall be seised to my use ; but if the condition were to give in tail , contrary : So here is a Limitation beyond the first use , which shall not be defeated for want of Attornment to the first uses ; and here it was not the meaning of Bracebridge to have the Lands again upon breach of the condition in his former estate , but according to the second use ; and Iudgment was given in the principal case according to the resolutions of the Iudges , as aforesaid . And it was said by Harper Iustice , That if a Feoffment in Fee be made to J. S. upon condition that he shall grant to A. a Rent-charge , who refuseth it , J.S. shall be seised to his own use . Antea 199.

CCCLVI. 20 Eliz. In the Common Pleas.

THe Case was this , Lord and Tenant by service to pay every year such a quantity of Salt ; but since 10 H. 7. the Tenant hath always paid the money for Salt. The question was , If the Lord might resort to the first service , Seisin . and if the money be Seisin of the Salt. And Manwood took this difference , i.e. where the Lord takes a certain sum of money for the Salt , the same is not any Seisin , for the service is altered , as at the first , Socage Tenure was a work done by labor , i.e. Plowing ; but now it is changed into certain Rent , and the Lord cannot resort to have his Plowing ; and in Kent divers Tenants in ancient time have paid Barley for their Rent , but the same afterward was paid in a certain sum of money , so as now the Lord of Canterbury , who is Lord of such Tenements cannot now demand his Barly , &c. but if the sum which hath been used to be paid be incertain one year so much , according to the price of Salt , then such a payment of money is a sufficient Seisin of the Salt. Quod fuit concessum per Curiam .

CCCLVII . 20 Eliz. In the Common Pleas.

IN Accompt , brought by an Heir Copyholder , for the profits of his Copyhold Lands taken during his Nonage , the Defendant pleaded , That by the Custom of the said Manor , Accompt by the Heir of a Copyholder . the Lord of the Manor might assign one to take the profits of a Copyhold descended to an Infant , during his Nonage to the use of the Assignee , without rendring an accompt , and the same was holden to be a good Custom , as a Rent granted to one and his Heirs , Custom to cease during the Nonage of every Heir ; but admitting that the Custom were void , yet this Action doth not lye , for the Defendant hath not entred and taken the profits , as Prochein amy , in which Case although he was not Prochein amy , &c. he is chargeable , O●●●● Rep. 36 , ●3 , 84. as Prochein amy according to his Claim ; but here he claimeth by the Custom and Grant of the Lord , and not in the right of the Heir ; and therefore it was adjudged in this time of this Quaere , that if one entreth into Lands claiming by Devise , where in truth the Land devised is entailed , he should not be charged in accompt , &c.

CCCLVIII . 20 Eliz. In the Common Pleas.

NOte , It was holden by the whole Court , Exposition of the Statute , of 32 and 34. Of Wills. That the Statute of 32 & 34 H. 8. of Wills , did not extend to Lands in London , but that the devise of the whole is good : And if Houses in London , parcel of the possessions of Abbies came to the Crown by Dissolution , and he grants them over to hold in chief by Knights service , these Lands are devisable : But it was holden , That the said Statutes as Acts executed , extended to Lands in London , and shall be good but for two parts : And if a man hath Lands in tail , and in Fee-simple , which are of double the value of the Lands in tail , and deviseth all his Lands , all the Land in Fee-simple shall pass . Dyer , One seised of three Manors , the one in Capite in Fee , and two in Socage in tail , and deviseth all his Land in Capite , it is good against the King for all Capite Land , and he shall be tied to have the Lands in Socage , but it shall not bind the Heir : And a devise of the third part ( where all is devised ) is void as well against the Heir as against the King. And he said , That if a man be seised of twenty Acres in Socage , and ten Acres in Capite , and deviseth two parts of his Lands , it is reasonable to say , That all the Socage Lands shall pass ; but if the devise was of two parts of all his Lands , it is otherwise , for this word ( All ) implies , that the two parts shall be per my & per tout , as well Capite as Socage , i. e. It was argued by Fenner , That the Lands in London are now devisable as they were before the Statute , for if the Devisee of Lands in London be disturbed , he shall have Ex gravi Querela , otherwise it is of Lands at the Common Law ; and if an Assize of Mortdancester be brought of Lands in London , it is a good Plea to say , That the Lands are devisable : But in an Assise of Mortdancestor of Lands at the Common Law , it is not any Plea : And if a man gives Lands at the Common Law , i. e. not devisable by the Common Law , he cannot devise the Reversion , for the Statute shall not do wrong to the person , i.e. to the Donee , who there shall lose his Acquittal : But of Lands devisable by custom , it is otherwise ; And if Land in a Burrough was devisable for life by the Custom , and afterwards came the Statute of 23 H. 8. which made all Lands devisable , now that Land is devisable for life by the Custom , and the Reversion by the Statute .

CCCLIX . 20 Eliz. In the Common Pleas.

IN an Action of Wast , of Wast assigned in a Wood , Wast . the Iury viewed the Wood only without entring into it : And it was holden that the same was sufficient , for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled . Yet Meade Iustice said , That if Wast be assigned in several corners of the Wood , then the Iury is to have the view of every corner ; but contrary where Wast is assigned in the whole Wood : Vie● . And if Wast be assigned in every Room of a House , the view of the House generally is sufficient . And Dyer Iustice said , That if Wast be assigned in several places , and of some of them the Iury had not the view , of that they may find no Wast done .

CCCLX . Sir Thomas Lees Case . 20 Eliz. In the Common Pleas.

IT was holden per Curiam , That whereas Sir Thomae Lee was seised of a Manor , Election . and aliened the Manor , except one Close parcel of the said Manor called Newdick , and there were two Closes parcel of the said Manor called Newdick , the one containing nine Acres , and the other containing three Acres ; That the Alienee should not chuse which of the said Closes he would have ; but the Alienor or Feoffor should have the Election which of the said Closes should pass .

CCCLXI. 20 Eliz. In the Common Pleas.

TEnant in tail , the Remainder in tail , &c. Tenant in tail , in possession , Fines levied by Tenant in tail in Remainder . 3 Cro. 211. makes a Lease for three lives , according to the Statute of 32 H. 8. and afterwards dieth without issue , he in the Remainder before any Entry levieth a Fine , the same is good ; for by the death of Tenant in tail without issue , the Free-hold is vested in him in the Remainder in tail : And of that opinion was the whole Court.

CCCLXII . Ferrand and Ramseys Case . 20 Eliz. In the Common Pleas.

IN an Ejectione firmae brought of a House in London , the Defendant pleaded , That long time before the Lessor of the Plaintiff had any thing , &c. One Ann Ramsey was seised in Fee , and died seised , and that the same descended to William Ramsey as Son and Heir to the said Ann , who was disseised by Israel Owen , who leased to the Plaintiff , upon whom the said William Ramsey did re-enter : The Plaintiff Replicando , That the said Ann did not die seised , said , That before the Ejectment one Robert Owen was seised , and died seised , and from him descended the said House to Israel Owen as Son and Heir of the said Robert , absque hoc , that the said Israel did disseise the said Ann , upon which they were at issue , and at Nisi prius in London , it was given in Evidence of the Defendants part : That Crofton and Langhton were seised in Fee of the said Messuage , and by Deed indented conveyed it to one John Ramsey , Robert Dakins , and four others and their Heirs , upon condition that the said Feoffees , their Heirs or Assigns should pay to the said Ann and her Heirs , six pounds thirteen shillings and four pence : And also should enfeoff the said Ann , if to the same they were required by the said Ann in her life , or within four days next following such Request in Fee unto the use of the said Ann and her Heirs , cum & quando ad hoc per eandem Annam requisit . fuerint , and if the said Ann died before such Request , that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann , or such other persons which the said Ann should name , cum & quando ad hoc per eandem Annam requisit . fuerint , or within four days after such Request , the said Feoffees or their Heirs should be seised of the said House , to the use of the said Ann and her Heirs . Afterwards the seventh of April , 16 Eliz. Ann demanded of William Ramsey , Son and Heir of John Ramsey , six pounds thirteen shillings and four pence , being due to the said Ann , ut supra , the which sum the said William Ramsey did refuse to pay , by force of which , and by the Statute of 27 H. 8. the said Ann Ramsey was thereof seised , and died seised , and from her descended the said House to William Ramsey . The Plaintiff confessed the Feoffment to Crofton and Langhton , to John Ramsey and others , and shewed further , That the said Ann required the surviving Feoffees to enfeoff one Robert Owen of the said House , who three days after made the Feoffment accordingly , Robert Owen enfeoffed John Owen , who died thereof seised , and from him the said House descended to Israel Owen . Crafton died , Langhton having issue two Daughters died ; All the Feoffees but one died , Ann the time aforesaid demanded the said six pounds thirteen shillings and four pence of the said William Ramsey in another House in London , due at the Feast of St. Michael last before , who denied to pay it ; the second Daughter of Langhton entred , and thereof enfeoffed the said Israel Owen , Rents . 3 Cro. 210 , 211. who leased the same to the Plaintiff , and upon that Evidence the Defendant did demur in Law : And first it was resolved by the whole Court , That the said sum to be paid to the said Ann was not a Rent , but a sum in gross , because reserved to a stranger , &c. which see Lit. 79. Reversion . And by Munson Iustice , If the words of the reservation had been twenty Nobles Rent , yet it had been but a sum in gross , but otherwise it had been by devise . Also there is not any condition for the payment of it , but only a Limitation , for the word subsequent which limits the future use , takes away all the force of the words of the Condition , as 27 H. 8. 24. Land given in tail upon condition that the Donee and his Heirs shall carry the Standard of the Donor when he goes to battel ; and if he fail thereof , then the same to remain to a stranger , the limiting of the Remainder hath taken away the condition , and hath controlled it , and now the Condition is become a Limitation ; But where the words subsequent are against Law , as if upon failer , that then it shall be lawful for a stranger to enter , Feoffments upon condition . &c. these words because they are against Law ( for a Rent cannot be reserved to a Stranger , &c. ) do not destroy the Condition , by Mead , contrary by Munson , for the Condition is utterly gone . And by Mead , Feoffment in Fee upon condition , That if the Feoffor shall do such a thing that he shall re-enter and retain the Land to the use of a stranger , the use is void , 1 Cro 401 , 402 : and the Feoffor shall hold the Land to his own use . A Feoffment in Fee upon condition , That the Feoffee shall marry my Daughter , and if he refuse to marry her , that then he shall be seised to the use of I.S. the same is not a Condition , but a Limitation ; and in all cases afterwards of a Condition , where an Interest is limited to a stranger , there it is not a Condition , but a Limitation . And Mead said , That the said annual sum is not demandable , but the party ought to pay it at his peril , Lit. 80. But by Munson , it ought to be demanded , for so this word ( Refuse ) doth imply : Regula . And when at the Request of Ann the Feoffment is made , by Munson , Mead , and Windham , the Rent is gone ; but Dyer contrary , unless the Feoffment be made to Ann her self : And afterwards Iudgment was given for the Plaintiff , Hil. 19 Eliz. Rot. 748. There was a Case betwixt Shaw and Norton . Shaw and Nortons Case One Green devised his Lands to A. and devised also , the said A. should pay a Rent to B. and that B. might distrain for it ; and if A. fail of the payment of it , that the Heirs of the Devisor might enter , the same is a good Distress , and a good Condition . And by Munson , Demand ought to be made of the Rent , for the words are ( Refuse ) which cannot be without Demand or Request : And it was certified , That such a Clerk refused to pay his Tenths , and because it was expresly set down in the Certificate , that he was requested , &c. for that cause he was discharged . And it was also holden , That if Request be necessary , that in this case Request is to be made , That it ought to be made to the surviving Feoffee , or his heir , and not to the heirs of any of the Feoffees who are dead .

CCCLXIII . Lacyes Case . Hill. 25. Eliz. In the Kings Bench.

Indictments Co. 13. Rep. 53. LAcy was indicted of the death of a man upon Scarborough Sands , in the County of York , between the high water-mark , and the low water-mark , and the same Indictment was removed into the Kings Bench , and being arraigned upon it , he shewed , that the said Indictment was sued by vertue of a Commission which issued the first day of May , directed to the Iustices of Assize , and other Iustices of Peace in the said County , Commission repealed . to enquire of all Murders , Felonies , &c. and pleaded further , That the second day of May aforesaid , issued another Commission directed to the Lord Admiral and others upon the Statute of 28 H. 8. cap. 15. by force of which the said Lacy was indicted of the same murder , whereof he was now arraigned , and the said last Commission was , ad inquirendum , tam super altum mare , quam super littus maris , & ubicunque locorum infra jurisdictionem nostram maritimam : And that the said Indictment taken before the Admiral , was taken before this , upon which he was arraigned , and upon the whole matter prayed to be dismissed : And the opinion of all the Iustices was , that the first Commission was repealed by the second , and so the Indictment upon which he was arraigned , taken , coram non Judice , 10 E. 4. 7. If a Commission for the Peace issueth into one County and afterwards another Commission issueth to a Town within the same County and parcel of it , the first Commission is repealed , which Gawdy granted , if notice be given , &c. but Wray denied it ; but the whole Court , by this last Commission to the Lord Admiral , the first Commission , as to the Iurisdiction in locis maritimis is determined and repealed ; for these two Commissions , are in respect of two several Authorities , the first Commission meerly by the Common Law , the other by the Statute aforesaid , and thereupon the party was discharged against the Queen , as to that Indictment . Note , that in the Argument of this Case , it was said by Coke , and agreed by Wray , That if a man be struck upon the high sea , 2 Co. 93. whereof he dieth in another County afterwards . that this murder is dispunishable , notwithstanding the Statute of 2 Ed. 6.

CCCLXIV . The Queen and Braybrooks Case . Pasch. 25 Eliz. In the Kings Bench.

3 Co. 1 , 2 , &c. THe Queen brought a Writ of Error against Braybrook , The Case was this , That King Ed. 4. was seised of the Manor of Marston , and gave the same to Lionel Lord Norris , and A.M. and the Heirs of the body of the Lord , the Remainder to H. Norris in Tail , L and A. entermarry , L. suffered a common Recovery against himself only , without naming the said A. Hen. Norris is attainted of high Treason by Act of Parliament , and by the same Act all his Lands , Tenements , Hereditaments , Rights , Conditions , &c. the day of the Treason committed , or ever after , &c. Hen. Norris is executed , Lionel dieth without issue , the Queen falsified the said Recovery for one moiety by Scire facias , because Anne who was joint-tenant with Lionel was not named party to the said Recovery : and afterwards the Queen granted to the Lord Norris , Son of the said Hen. Norris , Manerium suum de Merston , & omnia jura in eodem , and now upon the said Recovery , the Queen brought a Writ of Error , and it was argued by Egerton the Queens Sollicitor , that this right to a Writ of Error is such a right as is transferred to the Queen by the Act of Parliament , for the words are , omnia jura sua quaecunque , and here is a right , although not a present right , yet a right although in futuro , so it is a right of some quality , as A. Tenant in Tail , the Remainder in Tail to B.A. makes a Feoffment in Fee , B. is attainted of high Treason , and by such Act all his Lands , &c. given to the King. A. dieth without issue , the Queen shall have a Formedon in the Remainder ; and although the Queen hath granted to the Lord Norris , Manerium suum de Merston , & omnia jura in eodem , yet by such general words , a Writ of Error doth not pass , which See 32 H. 8. Br. Patents 98. And also this Action rests in privity of record , and cannot be displaced from thence , but by Act of Parliament , see Br. Chose in Action 14. 33 H. 8. for when the King will grant a thing in Action , he ought in his Patent to recite all the circumstances of the matter , as the Right , and how it became a Right , and because the Queen here doth not make mention of this Right , as of the Entail , the Recovery , and the Attainder , for that cause the Right doth not pass . The Case betwixt Cromer and Cranmer , 8 Eliz. the Disseisee was attainted of Treason , the Queen granted to the Heir of the Disseisee all the Right which came unto her by the Attainder of his Ancestor , nothing passed , Causa qua supra : And always where the King grants any thing , which he cannot grant , but as King , that such a grant without special words , is to no purpose . Coke contrary , & he agreed the Case put by Egerton , for at the time of the Attainder , B. had a Right of Remainder ; but in our Case Hen. Norris had not any Right , but a possibility of a Right of Action , i.e. a Writ of Error ; And he said that this Writ of Error is not forfeitable ( for it is an Action which rests in privity ) no more than a condition in gross , as a Feoffment in Fee is made upon condition of the party of the Feoffor who is attainted ut supra : This word ( Right ) in the Act of Attainder shall not transfer this Condition to the Queen , and of the Act of Attainder to Hen. Norris , it is to be conceived That the makers of the Act did not intend , that by the word ( Right ) every right of any manner , or quality whatsoever should pass to carry a Condition to the Queen , and therefore we ought to conceive , that the makers of the Act did not intend to touch Rights which rested in privity : And as to the Grant of the Queen , to the Lord Norris of the Mannor of Merston , Et omnia jura sua in eodem , he conceived , that thereby the Right of the Writ of Error did pass ; for it is not like Cranmers Case , but if in the said Case , the Land it self had been set down in the Grant , it had been good enough , as that Cranmer being seised in Fee of the Manor of D. was there of disseised , and so being disseised was attainted of high Treason : now the Queen grants to his Heirs totum jus suum in his Manor of D , &c. and so in our Case , the Queen hath granted to the Lord Norris , Manerium suum de Merston & omnia jura sua in eodem , &c. at another day it was moved by Plowden , that this Right of Writ of Error was not transferred to the Queen by the Act , but such Right might be saved to a stranger , &c. the words of the Act are , omnia jura sua , and this word ( sua ) is Pronomen possessionis , by which it is to be conceived , that no Right should pass , but that which was a present Right , as a Right in possession , but this Right to a Writ of Error , was not in Hen. Norris at the time of his Attainder , but it was wholly in him against whom the erroneous Iudgment was had : and therefore if in a Praecipe quod reddat , the Tenant vouch and loseth , and Iudgment is given , and before Execution , the Tenant is attainted by Act of Parliament , by words ut supra , and afterwards he is pardoned , the Demandant sueth for Execution against the Tenant , now notwithstanding this Attainder , the Tenant may sue Execution against the Vouchee , and afterwards Wray chief Iustice openly declared in Court , the opinion of himself and all his companions Iustices , and also of all the other Iustices to be , That by this Act of Parliament , by which all Lands , Tenements , Hereditaments , and all Rights of any manner and quality whatsoever Henry Norris had , the day of his Attainder , or ever after , Lionel then being alive , and over-living the said Hen. Norris , that this Writ of Error was not transferred to the Queen : And that the said Act by the words aforesaid could not convey to the King this possibility of right , for at the time of the Attainder , the Right of the Writ of Error was in Lyonel , and Hen. during the estate tail limited to Lyonell had not to do with the Land , nor any matter concerning it : And Iudgment was given accordingly ; And it was holden , That he in the Reversion , or Remainder upon an Estate tail might have a Writ of Error by the common Law , upon a Recovery had against Tenant in tail in Reversion .

CCCLXV . Mich. 25 , & 26. Eliz. In the common Pleas.

Copy-holder . IN Trespass brought by a Copy-holder against the Lord for cutting down and carrying away his Trees , &c. It was found by special Verdict , That the place where , &c. was Customary lands of the Plaintiffs , holden of the Defendant , and that the Trees whereof , &c. were Chery Trees , de magnitudine sufficienti essendi maremium , and that the place where they growed , was neither Orchard , nor Garden : It was said by the Court , That by the Custom the Copyholder could not cut down such Trees , but the Lord might , and that the cutting down of such Trees which were not Wast , the Copy-holder might justifie without punishment : but because by the Verdict it did not appear that the Trees for which the Action was brought were Timber in facto , but only de magnitudine effendi maremium , the Plaintiff had Iudgment .

CCCLXVI . The Lord Staffords Case . Mich. 25 , & 26. Eliz. In the Common Pleas.

Extent . UPon Recovery in debt against the Lord Stafford , certain Lands of the Lord were extended by Elegit ; The Queen because the Lord Stafford was endebted unto her , by Prerogative ousted the Tenant by Elegit : Fleetwood Serjeant moved the Court in the behalf of him who recovered , and surmised to the Court that the Queen was satisfied , and therefore prayed a Re-extent ; but the Court would not grant it , because they were not certain of the matter , but advised the party to sue a Scire facia ; against the said Lord Stafford , to know and shew cause , why a Re-extent should not issue forth , the Queen being satisfied , &c.

CCCLXVII . Gibbs and Rowlies Case . Mich. 25 , & 26. Eliz. In the Kings Bench.

Tithes . SYmon Gibbs Parson of Beddington , Libelled in the Spiritual Court against Rowlie , for Tithe Milk , Rowlie upon surmise of a Prescription , de modo Decimandi , obtained a Prohibition , which was against Symon Gibbs , Rectorem Ecclesiae parochial , de Nether Beddington , and the parties were at Issue upon the Prescription , Prohibition . and it was found for Rowlie . Egerton Solicitor moved against the Prohibition , because the Libel is against Gibbs , Rectorem Ecclesiae paroch . de Beddington , and the Prohibition was , de Nether Beddington , and it was not averred that Beddington in the Libel , and Nether Beddington , is unum & idem , & non diversa ; It was said by the Court , That upon the matter there is not any Prohibition against Rectorem Ecclesiae de Beddington only , and therefore said to the Plaintiffs Counsel , let the Parson proceed in the Spiritual Court at his peril .

CCCLXVIII . Russell and Handfords Case . Mich. 25 , & 26. Eliz. In the Kings Bench.

RUssell brought an Action upon the Case against Handford , and declared , Quod cum quoddam molendinum ab entiquo fuit erectum , upon such a River , Nusance . de quo , one Thomas Russell whose Heir the Plaintiff is , was seised in his Demesn as of Fee , and dyed thereof seised , after whose death the same descended to the Plaintiff , by force of which the Plaintiff was seised in his Demesn as of Fee , and so seised , The Defendant upon the same River had levyed a new Mill , per quod cursus aquae praedict. coarctatus est , and upon Not guilty , It was found for the Plaintiff : It was moved in Arrest of Iudgment , That it is not layed in the Declaration , that his Mill had been a Mill time out of mind , &c. And then if it be not an ancient Mill time out of mind , Words of Prescription . &c. it was lawful for the Defendant to erect a new Mill ; And it was said , That these words ( ab antiquo ) are not fit or significant words to set forth a Prescription , but the words , A tempore cujus contrarii memoria hominum non existit , are the usual words for such a purpose : See the Book of Entries 10 , 11. See 11 H. 4. 200. If I have a Mill and another levies another Mill there , and the Miller hinders the Water to run to my Mill , or doth any such Nusance , Roll. 140. an Action lyeth without any Prescription , as it seems by the Book in 22 H. 6. 14. The Plaintiff declared , That he was Lord of such a Town , and that he and all his Predecessors , Priors of N. Lords of the same Town , have had , within the same Town , four Mills time out of mind , &c. And that no other person had any Mill in the said Town , but the Plaintiff and his Predecessors , the said four Mills , and that all the Tenants of the Plaintiff within the same Town , and all other Resiants there , &c. ought , and time out of mind , &c. had used to grind at the said Mills of the Plaintiff , and that the Defendant , one of the Tenants of the Plaintiff , had erected and set up a Horse Mill within the said Town , and there the Resiants grinded , &c. And it was holden , That peradventure upon such matter an Action lyeth , because the Defendant being one of the Tenants of the Plaintiff is bound by the Custom and Prescription , so as he hath offended against the privity of the Custom and Prescription . And as to the Case in question , It was the opinion of all the Iustices , Hob. 189. Ante 168. 1 Cro. 415. That if the Mill whereof the Plaintiff hath declared , be not an ancient Mill , that this Action doth not lye upon the matter , eo quod cursus aquae coarctatur : But yet at last , it was holden by the Court to be good enough , notwithstanding the Exception . Another Exception was taken to the Declaration , because that here is set forth the seisin of the Father of the Plaintiff , and the Descent to the Plaintiff , by force of which he was seised in his Demesn , &c. without shewing that after the death of the Father that he entred into the said Mill , Seisin in fact ; and in Law. &c. so as no seisin in fact is alleadged , but only a seisin in Law , and if the Plaintiff was not seised in fact , he cannot punish this personal wrong , but the Exception was disallowed , for such a seisin in Law is sufficient for the maintenance of this Action . And afterwards the Plaintiff had Iudgment to recover his Damages . See for the Action it self contained in the Declaration . 8 Eliz. Dyer 248.

CCCLXIX . Cleypools Case . Mich. 26. Eliz. In the Exchequer .

Informations , upon the Statute of 5 Eliz. of Tillage . INformation in the Exchequer against Cleypool , upon the Statute of Tillage , 5 Eliz. setting forth , That the Defendant hath converted three hundred Acres of arable Lands of Tillage , to pasture , and the same conversion hath continued from 15 Eliz. unto the two and twentieth of Eliz: The Defendant as to the Conversion pleaded Not guilty , and as to the Continuance , the general Pardon by Parliament , 23 Eliz. upon which the Attorney general did demur in Law. It was argued , That that pardon did not extend to the continuance of the said Conversion : And first the Barons were clear of opinion , That if A. be seised of Arable Lands , and converts the same to pasture , and so converted , leaseth it to B. who continues it in pasture as he found it , he shall be charged by that Statute : And it is not any good Construction , where the Exception in the pardon is , excepting the converting of any Land from Tillage to Pasture , made , done , committed , or permitted , that the Conversion excepted out of the pardon shall be intended and construed the bare Act of Conversion , but the whole offence , i. the continuance and practise of it is understood : As if by general pardon all intrusions are excepted , now by that , the instant Act of Intrusion , i. the bare Entry is not only excepted , but also the continuance of the Intrusion , and the perception of the profits : And note , The words of the Statute are ( conversion permitted ) and Conversion continued is Conversion permitted : And the said Statute doth not punish the Conversion , but also the continuance of the Conversion , for the penalty is appointed for each year in which the Conversion continues : And Egerton Solicitor put this Case , 11 H. 8. It was enacted by 3 H. 7. cap. 11. That upon Recovery in Debt , if the Defendant in delay of Execution sues a Writ of Error , and the Iudgment be affirmed , he shall pay damages , now the case was , That one in Execution brought such a Writ of Error , and the first Iudgment is affirmed , he shall pay damages , and yet here is not any delay of the Execution , for the Defendant was in Execution before , but here is an Interruption of the Execution , and the Statute did intend the Execution it self , i. the continuance in Execution , ibidem moraturus quousque : It was said on the other side , That the conversion and continuance thereof are two several things , each by it self , and so the conversion only being excepted in the pardon , the continuance thereof remains in the grace of the pardon : And it appeareth by the Statute of 2 , and 3. Ph. & Ma. That conversion , and continuance are not the same , but alia , atque diversa , and distinct things in the consideration of the Law ; for there it is enacted , That if any person shall have any Lands to be holden in Tillage according to the said Statute , but converted to Pasture by any other person , the Commissioners , &c. have authority by the said Statute to enjoyn such persons to convert such Lands to Tillage again , &c. And in all cases in the Law , there is a great difference betwixt the beginning of a wrong , and the continuance of it : As if the Father levyeth a Nusance in his own Lands to the offence of another and dyeth ; an Assize of Nusance doth not lye against the Heir for the continuance of that wrong , but a Quod permittat , See F.N.B. 124. It was adjorned .

CCCLXX . Powley and Siers Case . Mich. 26 Eliz. In the Kings Bench.

POwley brought Debt against Sier Executor of the Will of A : Debt The Defendant demanded Iudgment of the Writ , for he said , That one B. was Executor of the said A. and that the said B. did constitute the Defendant his Executor , so the Writ ought to be brought against the Defendant as Executor of the Executor , and not as immediate Executor to the said A. The Plaintiff by Reply said , That the said B. before any probate of the Will , or any Administration dyed , and so maintained his Writ . Wray Iustice was against the Writ , for although here be not any probate of the Will of A. or any other Administration , yet when B. made his Will , and the Defendant his Executor , the same is a good acceptance in Law of the Administration and Execution of the first Will , for the Defendant might have an Action of Debt due to the first Testator : Gawdy and Ayliff Iustices , The Writ is good : See Dyer , 1 Cro. 211. 212. 23 Eliz. 372. against Wray .

CCCLXXI . Pasch. 26 Eliz. In the Kings Bench.

THe Case was : A seised of certain Lands , Bargain and sale of Trees . bargained and sold by Indenture all the Trees there growing , Habendum , succidendum , & exportandum , within twenty years after the date of the said Indenture , the twenty years expire ; The Bargainee cuts down the Trees , A. brought an Action of Trespass for cutting down the Trees : And by Wray , Iustice , The meer property of the Trees vests in the Bargainee , Post . 288. and the Limitation of time which cometh after is not to any purpose but to hasten the cutting of the Trees within a certain time , within which , if the Vendee doth not cut them , he should be punished as a Trespassor as to the Land , but not as to the Trees : Gawdy contrary ; And that upon this Contract , a conditional property vests in the Vendee , which ought to be pursued according to the direction of the condition , and because the condition is broken , the property of the Trees is vested in A.

CCCLXXII . Curriton and Gadbarys Case . Pasch. 26 Eliz. In the Kings Bench.

IN in Action upon the Case , the Plaintiff declared , Leases . That the Defendant in consideration that the Plaintiff should make a lease for life to the Defendant of certain Lands , Habendum after the death of A. before the tenth of August next following , promised to pay the Plaintiff ten pounds , the first day of May next after the promise which was before the tenth of August : And the truth was , That the said ten pounds was not paid at the day , ut supra , nor the said Lease made : And now both sides being in default , the Plaintiff brought an Action ; It was said by Wray Iustice , If the Plaintiff had made the Lease according to the consideration , and in performance thereof the action would have lyen , but now his own default had barred him of the Action : But for another cause , the Declaration was holden insufficient , for here is not any Consideration , for the promise is , in consideration that the Plaintiff shall lease to the Defendant for life , Habendum after the death of A. which cannot be good by way of lease , but ought to enure by way of grant of the Reversion , so as here is no lease , therefore no consideration , and notwithstanding that if a Lease be made for life , Habendum after the death of A. the Habendum is void , and the Lease shall be in possession according to the Premises , yet the Law will not give such construction to the words of a Promise , Contract , or Assumpsit , but all the words ought to be wholly respected according to the Letter , so as because that no Lease can be made according to the words of the Consideration , no supply thereof shall be by any favorable construction : And so it was adjudged : But before the same imperfection was espied , Iudgment was entred , and therefore , the Court awarded that there should be a cesset executio , entred upon the Roll , for it is hard as it was said by Wray to drive the party to a Writ of Error in Parliament , because Parliaments are not now so frequently holden as they have used to be holden , and the Execution was staid accordingly .

CCCLXXIII . Willis and Crosbys Case . Pasch. 26 Eliz. In the Kings Bench.

Error . IN a Writ of Error , It was assigned for Error , That whereas in the first Action , the parties were at issue , and upon the Venire facias one G●●gory Tompson was returned ; But upon the Habeas Corpora , George T●●●●son was returned , and the Iury was taken , and found for the Plaintiff● and Iudgment given accordingly ; Amercement . It was argued on the part of the Plaintiff in the first Action ; that the same is a thing amendable : As 9 E. 4. 14. A Iury was impannelled by the name of I.B. and in the Habeas Corpora he was named W.B. and by such name sworn , &c. And upon Examination of the Sheriff , it was found that he was the same person who was impannelled , and it was amended and made according to the Pannel ; But the opinion of the whole Court was , That as this case is it was not amendable , and it is not like the case of 9 E. 4. For there the Examination was before the Verdict when the Sheriff was in Court , but here it is after Verdict , and the Sheriff is out of Court , and cannot be examined , and for these causes the Iudgment was reversed .

CCCLXXIV . Ognell and the Sheriffs of Londons Case . Pasch. 26. Eliz. In the Exchequer .

OGnell brought Debt upon an Escape by Bill in the Exchequer against the Sheriffs of London , Escape . 1 Cro. 164. the Case was , That one Crofts was bound to the now Plaintiff in a Recognisance , and afterwards committed for Felony to the Prison of Newgate , of which he was attainted and remained in Prison in the custody of the Sheriffs : Afterwards Ognell sued a Sc. fac . upon the said Recognisance against Crofts , the Sheriffs returned a Cepi , and the especial matter aforesaid , and after Iudgment given against Crofts for Ognell , Crofts got his pardon , and escaped : It was argued , That notwithstanding this Attainder , Crofts is subject to the Execution obtained upon the Recognizance : See the case of Escape betwixt Maunser and Annesley , 16 Eliz. in Bendloes case , 2 E. 4. 1. It is said by Watman , That a man out-lawed for Felony shall answer , but shall not be answered : See 6 E. 4. 4. One condemned in Redisseisin , was taken by a Capias pro fine , and committed to Prison , and afterwards out-lawed of Felony , the King pardons the Felony , yet he shall remain in Execution for the party , if he will ; But if the party be once in Execution for the party , and then out-lawed of Felony , it seems by 6 E. 4. Fitz. Execution , 13. that the Execution is gone . And all the Barons were clear of opinion in the principal case for the Plaintiff . And they also said , That if one who hath a Protection from the King be taken in Execution , and Escape , the Gaoler shall answer for the Escape , and that was one Hales Case . And afterwards Iudgment was given for the Plaintiff , Hales Case . and one of the causes of the Iudgment was , because that the Sheriffs had returned C●pi upon the Process .

CCCLXXV . Bishop and Redmans Case . Hill. 26 Eliz. In the Kings Bench.

BIshop , a Doctor of the Civil Law , brought an Action of Covenant against Redman Archdeacon of Canterbury , and declared upon an Indenture , by which the Defendant did constitute the Plaintiff Offici●●em suum of his Archdeaconcy for three years , and gave to him by the said Indenture , Authoritatem admittendi , & inducendi quoscunque Clericos ad quaecunque beneficia Ecclesiastica infra Archidiaconatum praedict' , and also Probate of Wills ; and further granted to him , omnem & omnim●dam Archidiaconatum Jurisdictionem suam praedict' absque impetitione , de●●egatione , rest●ictione , &c. after which Doctor Young was created Bishop of Rochester , which is in the Iurisdiction of the said Archdeaconry ; and the Defendant took upon him to enthronize the said Bishop in his said Church , and took of him for his Fee twenty Nobles , whereupon the Plaintiff brought this Action . It was moved for the Defendant , that upon the matter the Action doth lye ; for the Office of enthronizing or enstalling of a Bishop doth not pass by the said Indenture , nor is there any word in the Indenture that doth extend unto it , for the Bishop is not a Clark , and the Plaintiff by the Indenture hath not to do but with Clarks , not with Bishops ; and it appeareth by the Grant of Subsidies , by the Clergy in Parliament , that a Bishop and a Clark are distinct things . See Instrumentum hereof , Praelatus & Clericus , &c. Also the Plaintiff hath not to do with a Bishoprick , but with Benefices , and a Bishoprick is not a Benefice , but a higher thing : And further the Plaintiff hath power to admit and induct , which doth not extend to installing , or inthronization , for that belongs to a Bishop ; and the Court was clear of opinion , That by this Grant there did not pass any power to instal or inthronize Bishops ; and the general words , i.e. omnem & omnimodam jurisdictionem Archidiaconatum praedictam , Words which amount to Covenant . did not mend the matter , for the word ( Praedictam ) doth not restrain the words , Omnem , & omnimodam , &c. but admitting that ; It was moved , If upon this Indenture Covenant lieth , for there is not any express Covenant , yet the words absque impetitione , denegatione , restrictione , do amount to so much , to make the Defendant subject to his Action , if the matter in it self would have served for him , and so was the opinion of the Court.

CCCLXXVI . Lady Lodges Case . Hill. 26 Eliz. In the Kings Bench.

THe Lady Laxton of London by her Will bequeathed to Matthew Luddington , and Andrew Luddington , Prohibition . Poph. 11. Dyer 59. several Legacies in monies to be paid to them respectively at their several ages , &c. and made the Lady Lodge her Daughter her Executrix and died , Andrew died before his full age , Matthew took Letters of Administration of the goods of Andrew , and sued the Lady Lodge in the Spiritual Court for the Legacy bequeathed to Andrew ; before which Suit begins , the Lady Lodge , with Sir Thomas her Husband , gave all the goods which she had as Executor of the said Lady Laxton to Sir William Cordel Master of the Rolls , and to William Lodge Son of the said Sir Thomas and his Lady , depending which Suit the Lady Lodge died , after which sentence was given against her being dead , and now a Citation was out of the Spiritual Court against William Lodge Executor of the said Lady Lodge , to shew cause why the sentence given against the said Lady Lodge should not be put in Execution against him ; and sentence was given against the said William Lodge , who appealed to the Delegates , and there the sentence was affirmed . And now came William Lodge into the Kings Bench , and set forth the grant of the said Lady Lodge , as aforesaid , and that the same was not examinable in the Spiritual Court , and thereupon prayed a Prohibition : And Awbrey , Doctor of the Civil Law , came into Court to inform the Iustices , what their Law was in certain points touching the Case in question ; and as to the sentence given against the Lady Lodge , after her death he said , That if the Defendant died before issue joyned , which is called Litis contestationem , the Suit shall cease , but if he dieth after Litis contestationem , it is otherwise , for in such Case the Suit shall proceed ; for after Litis contestationem , the right of the Suit is so vested in the Proctor , Swinburn 212. that he is a person suable until the end of the Suit : and also he reported their Law to be , * * Bro. Devise 27. 45. Office of Exce . 347. Sh●p . Touchstone &c. 454. Plowd. 345. Orphans Legacy 281. Note , It was adjudged contrary to this , Mich. An. Dom. 1653. in the Kings Bench. in Do●mlowes Case . Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years , if such a Legatory dieth before such age , yet the Executor or Administrator of such Legator shall sue for the said Legacy presently , and shall not expect until the time , in which if the Infant had continued in life he had attained his full age . And as to the Prohibition it was argued by Egerton Solicitor General , That the Grant aforesaid is not triable in the Spiritual Court : As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin , &c. the same is not examinable in the Spiritual Court , but belongs to the temporal Conusans , and therefore he prayed a Prohibition : But on the other side it was said , That if the Prohibition be allowed , the Legatory hath no remedy ; but that was denied , for the party might sue in the Chancery . And after the Prohibition granted , the Court awarded a special Consultation , quatenus non extendat ultra manus Executoris , & quatenus non agitur de validitate facti , i. the Grant aforesaid .

CCCLXXVII . Huddy and Fishers Case . Hill. 28 Eliz. In the Kings Bench.

Debt . DEbt was brought upon a Bond , the Condition of which was for the performance of Covenants , Grants and Agreements in an Indenture : And in the Indenture it was recited , That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture , Attaint . and a Water-course by the Land demised , the Defendant leased the said Land to the Plaintiff , and the Lease was by the words Dedi & concessi . And the Plaintiff assigned the breach of the said Covenant in Law , in that the Defendant had stopped the said Water-course so made by the Plaintiff , upon which they were at Issue , and it was found for the Plaintiff , upon which the Defendant brought Attaint , and the false oath was found ; and it was moved in Arrest of Iudgment , That here is no Issue , and then by consequence no Verdict , and then no false Oath , and then no cause of Attaint ; for here the Issue is taken upon the stopping of the Water-course , which upon the shewing of the party is not any cause of Action , for in the Indenture there is not any express Covenant , Clause , or Agreement , that the Lessee should enjoy the Water-course so to be made , only there is a Covenant in Law rising upon these words Dedi & concessi , which cannot extend to a thing not in esse at the time of the making the Indenture . Coke , who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr . 77. Where it is holden , that the warranty knit to the Manor shall not extend to the Tenancy escheated : And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made . So in our case , this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made : And see 25 Ass. 2. where the Court shall reject a Verdict , or part of a Verdict , &c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment , which he did not , he shall not be helped by Attaint , but it shall be accounted his folly that he would not for his own ease , and to avoid circuity of Action shew the matter in stay of Iudgment : As 9 E. 4. 12. by Littleton : If a man be Indicted of Felony , if the Iudgment be insufficient , but he takes not advantage of it , but pleads the general Issue , and is acquitted , he shall never after have a Writ of Conspiracy , &c. And for another cause Iudgment ought not to be given in this Case , because it doth not appear that Execution hath been sued , and then here is no party grieved : And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye , for a party grieved cannot be intended without Execution sued . See 21 H. 6. 55. by Paston ; False oath , Iudgment , and Execution do entitle the party grieved to Attaint . And see the Stat. of 23 H. 8. which enacts , That the party shall be restored to as much as he hath lost therefore he ought to lose ( by Execution ) before he be a person able 〈◊〉 bring this Action : But as to that matter , see the Statute of 1 E. 3. 6. by which it is Enacted , That the Iustices shall not leave to take Attaint for the damages not paid , so as before the said Statute no Attaint lay before Execution , 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved , That for another cause the Attaint doth not lye , as it is pursued in Process upon it , for the Plaintiff hath not pursued the Statute , upon which the Attaint is grounded , for the said Statute gives special Process in this case against the Petit Iury , Grand Iury , and the party , viz. Summons , Re-summons , and Distress infinite ; but in this Case the Plaintiff hath sued otherwise , which is against the direction of the Statute . And that was taken to be a material Exception by Clench and Gawdy Iustices , for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes ; w●●ch see , by the words of the Statute , by an express Proviso : But Quaere , If it be a penal Statute , because a lesser punishment is enacted by it , than that which was before inflicted upon such offenders : And as to the matter of Execution , Quaere , If the Plaintiff be not pars gravata in hoc only , that he is subject to the said Iudgment , and so liable to Execution .

CCCLXXVIII . Penruddock and Newmans Case . Hill. 28 Eliz. In the Kings Bench.

IN an Ejectione firmae , Execution . 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley , and upon Not guilty pleaded , this special matter was found , that William Lord Mountegle , seised of the Manor of D. whereof &c. became bounden in a Statute in such a sum to A. who died , the Executors of A. sued Execution against the said Lord , i. upon the Extendi facias , a Libertate issued forth , upon which the said Manor was delivered to the said Executors , but was not returned . It was further found , That the said Executors being so possessed of the said Manor , the said Lord commanded a Court Baron to be holden there , which was holden accordingly by the sufferance of the Executors , and the said Executors were also present , at which time the Executors in the presence of the said Lord said these words , viz. We have nothing to do with this Manor . Return of the Sheriff . 4 Co. 67. And upon this Verdict two things were moved , If because the Liberate was not returned , the Execution was good : And as to that divers Books were cited , 21 H. 6. 8. 18 E. 3. 25. And it was said that there was a difference betwixt a Liberate , and a Capias ad Satisfaciendum , and a Fieri facias , for these Writs are conditional , Ita quod Habeas Corpus , &c. Ita , quod habeas denarios hic in Curia , 3 H. 7. 3. 16 H. 7. 14. But contrary in the Writ of Liberate , Habere facias seisinam , for in such Writs there is not such clause , and therefore if such Writs be not returned , the Execution done by virtue of them is good enough : And see 11 H. 4. 121. If the Sheriff by force of an Elegit delivers to the party the moiety of the Land of the Defendant , and doth not return the Writ ; if now the Plaintiff will bring an Action of Debt de Novo , the Defendant may plead in Bar the Execution aforesaid , although the Writ of Execution were not returned , and yet the Execution is not upon the Record . And see the case there put by Hankford : And it is not like to the case of Partition made by the Sheriff , the same ought to be returned , because that after the return thereof , a new and secondary Iudgment is to be given , i. Quod partitio praedicta firma & stabilis maneat in perpetuum , firma & stabilis in perpetuum teneatur , see the Book of Entries 114. And Egerton Solicitor cited a case lately adjudged betwixt the Earl of Leicester and the Widow Tanfeild , Earl of Leicester and Tanfeilds Case . That such Execution without return was good enough . Another matter was moved ; Admit , that here be a good Execution , if now the Executors being in possession of the said Manor by force of that Execution , and permitting and suffering the Conusor to hold a Court there in the Manor-house , and saying in his presence the words aforesaid , if the same doth amount to a Surrender by the Executors to the said Conusor , Surrender . or not . And Wray chief Iustice said , That here upon this matter is not any Surrender , for here the words are not addressed to the said Conusor who is capable of a Surrender , nor to any person certain : And it is not like to the case of 40 E. 3. 23 , 24. Chamberlains Assize , where Tenant for life saith to him in the Reversion , That his will is that he enter , the same is a good Surrender , for there is a person certain who can take it ; but contrary in this case , for here it is but a general speech . It was adjorned .

CCCLXXIX . Baskervile and the Bishop of Herefords Case . Pasch. 28 Eliz. In the Common Pleas.

Quare Impedit . IN a Quare Impedit by Walter Baskervile , against the Bishop of Hereford , &c. The Plaintiff counted , That Sir Nicholas Arnold was seised of the Advowson as in gross , and granted the same to the said Baskervile and others , to the use of himself for life , and afterwards to the use of Richard Arnold his Son in tail ; Proviso , That if the said Nicholas die , the said Richard being within age of twenty three years , that then the Grantees and their Heirs shall be seised to them and their Heirs until the said Richard hath accomplished the said age : Nicholas dieth , Richard being of the age of fourteen years , by force of which the Grantees were possessed of the said Advowson , and afterwards the Church became void , and so it belonged to them to present : And Exception was taken to the Count , because the Plaintiff had not averred the life of Richard , upon whose life the Interest of the Plaintiffs doth depend . Averment . And Gawdy Serjeant , likened it to the Case of the Parson which hath been adjudged , That where the Lessee of a Parson brought an Ejectione firmae , and it was found for him , and in arrest of Iudgment exception was taken to the Declaration , because that the life of the Parson was not averred , and for that cause Iudgment was stayed . Anderson chief Iustice : Vpon the dying of Sir Nicholas Rich , being but of the age of fourteen years , an absolute Interest for nine years vests determinable upon the death of Richard , or rather , they are seised in fee determinable upon the coming of Richard to the age of twenty three years . Rhodes and Windham contrary : That here is an Interest in the Grantees , determinable upon the death of Richard within the Term , for if Richard dieth without issue within the Term , the Remainder is limited over to a stranger . And as to the Exception to the Count , Dyer 304. ● . 2 Cro. 622 , 637. 10 Co. 59. it was argued by Puckering Serjeant , that the Count was good enough , ; for although the life of Richard be not expresly averred , yet such averment is strongly implied , and so supplied : For the Count is , That dictus Nicholas obiit dicto Ric. being of the age of fourteen years , & non amplius , by force of which the Plaintiff was possessed of the said Advowson , quo quidem sic possessionato existente , the Church became void , and possessed he could not be , if the said Richard had not been then alive , and the same is as strong as an Averment . See 10 E. 4. 18. In Trespass for breaking his Close , the Defendant pleads , That A. was seised , and did enfeoff him ; to which the Plaintiff said , That long time before A. had any thing , B. was seised and leased to the said A. at will , who enfeoffed the Defendant , upon which B. did re-enter , and leased to the Plaintiff at will , by force of which he was possessed until the Defendant did the Trespass , and the same was allowed to be a good Replication , without averring the life of B. who leased to the Plaintiff at will , for that is implied by the words , i. Virtute cujus ; 1 Cro. 766. the Plaintiff was possessed until the Defendant did the Trespass . And see also 10 H. 7. 12. in an Assize of Common , The Plaintiff makes title , that he was seised of a Messuage , and of a Carve of Land , to which he and all those whose estate , &c. have had Common appendant , &c. And doth not say , that he is now seised of the Messuage : But this Exception was disallowed by the Court , for seisin shall be intended to continue until the contrary be shewed . It was adjorned .

CCCLXXX . Caries Case . Pasch. 28 Eliz. In the Exchequer .

IN an Information in the Exchequer , by the Queen against Cary , Tithes . More Rep. 222. the Case was this ; A man grants situm Rectoriae cum decimis eidem pertinent . Habend . situm praedict. cum suis pertinentiis , for twenty years , the first Grantee dieth within the Term. If now because the Tithes are not expresly named in the Habendum , the Grantee shall have them for life only , was the Question . It was moved by Popham Attorney General , That the Grantee had the Tithes but for life , and to that purpose he cited a Case adjudged 6 Eliz. in the Common Pleas : A man grants black Acre and white Acre , Habendum black Acre for life , nothing of white Acre shall pass but at will ; and in the argument of that case , Anthony Browne put this case ; Queen Mary granted to Rochester such several Offices , and shewed them specially , Habendum two of them , and shewed which in certain , for forty years . It was adjudged that the two Offices which were not mentioned in the Habendum , were to Rochester but for life , and determined by his death : And so he said in this Case , The Tithes not mentioned in the Habendum shall be to the Grantee for life , and then he dying , his Executors taking the Tithes are Intrudors : But as to that , It was said by Manwood chief Baron , That the cases are not alike , for the Grants in the cases cited are several , intire , and distinct things , which do not depend the one upon the other , but are in gross by themselves . But in our Cases , The Tithes are parcel of the Rectory , and therefore for the nearness betwixt them , i. the Rectory and the Tithes , the Tithes upon the matter pass together with the site of the Rectory for the term of twenty years , and Iudgment was afterwards given accordingly .

CCCLXXXI . The Lord Darcy and Sharpes Case . Pasch. 26 Eliz. In the Common Pleas , Mich. 27 & 28 Rot. 2432.

Debt . THomas Lord Darcy , Executor of John Lord Darcy , brought Debt upon a Bond against Sharpe , who pleaded that the Condition of the Bond was , That if the said Sharpe did perform all the Covenants , &c. contained within a pair of Indentures , &c. By which Indentures the said John Lord Darcy had sold to the said Sharpe certain Trees growing , &c. And by the same Indentures Sharpe had covenanted to cut down the said Trees before the seventh of August , 1684. and shewed further , That after the sealing and delivery of the said Indenture , the said Lord Darcy now Plaintiff , Razure of Deeds 11 Co. 27. caused and procured I. S. to raze the Indenture , quod penes praedict. Querentem remanebat , and of 1684. to make it 1685. and so the said Indenture become void : And the opinion of the whole Court was clear against the Defendant , for the razure is in a place not material , and also the razure trencheth to the advantage of the Defendant himself who pleads it ; and if the Indenture had become void by the razure , the Obligation had been single and without Defeasance .

CCCLXXXII . Rollston and Chambers Case . Pasch. 28 Eliz. In the Common Pleas.

Costs where Damages are given . 2 Len. 52. ROllston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible Entry against Chambers , and upon Issue joyned it was found for the Plaintiff , and Damages assessed by the Iury , and costs of suit also , and costs also de incremento were adjudged ; And all were trebled in the Iudgment with this purclose , quae quidem damna in toto se attingunt ad , &c. and all by the name of Damages . It was objected against this Iudgment , that where damages are trebled , no costs shall be given , as in Wast , &c. But it was clearly agreed by the whole Court , That not only the costs assessed by the Iury , but also those which were adjudged de incremento should be trebled , and so were all the Presidents , as was affirmed by all the Prothonotaries , and so are many Books , 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. And Book of Entries 334. and Iudgment was given accordingly . And in this case it was agreed by all the Iustices , That the party so convicted of the force at the suit of the party should be fined , notwithstanding that he was fined before upon Indictment for the same force .

CCCLXXXIII . Jennor and Hardies Case . Hill. 29 Eliz. In the Common Pleas. Intrat . Trin. 27 Eliz. Rot. 1606.

THe Case was , Lands were devised to one Edith for life , upon condition that she should not marry ; and if she died , or married , Devises . that then the Land should remain to A. in tail , and if A. died without Issue of his body in the life of Edith , that then the Land should remain to the said Edith , to dispose thereof at her pleasure : And if the said A. did survive the said Edith , that then the Lands should be divided betwixt the Sisters of the Devisor , A. died without Issue living Edith . Shutleworth Serjeant ; Edith hath but for life ; and yet he granted , That if Lands be devised to one to dispose at his will and pleasure without more saying , That the Devisee hath a Fee-simple ; but otherwise it is when those words are qualified and restrained by special Limitation : As 15 H. 7. 12. A man deviseth , that A. Goldsb . 135. Shepherds Touch-stone 439. shall have his Lands in perpetuum during his life , he hath but an estate for life , for the words ( During his life ) do abridge the Interest given before . And 22 Eliz. one deviseth Lands to another for life , to dispose at his will and pleasure , he hath but an estate for life : And these words , ( If A. dieth without Issue in the life of Edith , That then the Lands should remain to Edith to dispose at her pleasure ) shall not be construed to give to Edith a Fee-simple , but to discharge the particular estate of the danger , penalty , and loss , which after might come by her marriage , so as now it is in her liberty . And also he said , That by the Limitation of the latter Remainder , i. That the Lands should be divided betwixt the Daughters of his Sister , the meaning of the Devisor was not , that Edith should have a Fee-simple , for the Remainder is not limited to her Heirs , &c. if A. dieth in the life of the said Edith ; for the Devisor goeth further , That if A. overlives Edith , and afterwards dieth without Issue , that the said Land should be divided , &c. Walmesley contrary : And he relyed much upon the words of the Limitation of the Remainder to Edith , Quod integra remaneat dictae Edithae , and that she might dispose thereof at her pleasure , Ante 156. for the said division is limited to be upon a Contingent , i. if A. survive Edith , but if Edith survive A. then his intent is not that the Lands should be divided , &c. but that they shall wholly remain to Edith , which was granted by the whole Court , and the Iustices did rely much upon the same reason ; and they were very clear of opinion , That by those words Edith had a Fee-simple : And Iudgment was given accordingly . Anderson conceived , That it was a Condition ; but although that it be a Condition , so as it may be doubted , if a Remainder might be limited upon a Condition , yet this devise is as good as a new devise in Reversion upon the precedent Condition , and not as a Remainder , quod Windham concessit ; but Periam was very strong of opinion , That it is a Limitation . Two Ioyntenants of a Term , A. and B. A. grants his part to B. nothing passeth by it , for ( as a Grant ) it cannot be good ; Owen 102. 1 Cro. 314. 1 Inst. 186. for as one Ioyntenant cannot enfeost his Companion , no more can he vest any thing in him by grant , for he cannot grant to him a thing which he hath before ; for Ioyntenants are seised and possessed of the whole , all which was granted per Curiam ; and Anderson said , That if Lands be granted to A. and B. and the Heirs of A. B. cannot surrender to A. for a Surrender is as it were a grant ; And as a Release it cannot enure , for a Release of a Right in Chattels cannot be without a Deed.

CCCLXXXIV . Hollingshed and Kings Case . Hill. 29 Eliz. In the Common Pleas.

Debt . HOllingshed brought Debt against King , and declared , That King was bounden to him in a Recognizance of two hundred pounds before the Mayor and Aldermen of London , in interiori Camera de Guildhall London , upon which Recognizance the said Hollingshed heretofore brought a Scire facias before the said Mayor , &c. in exteriori Camera , and there had Iudgment to recover , upon which Recovery he hath brought this Action ; and upon this Declaration the Defendant did demur in Law , because that in setting forth of the Recognizance he hath not alledged , That the Mayor of London hath Authority by Prescription or Grant to take Recognizances , and if he hath not , then is the Recognizance taken Coram non Judice , and so void : And as to the Statute of West . 2. cap. 45. It cannot be taken to extend to Recognizances taken in London , which see by the words , De his quae recordat . sunt coram Cancellario Domini Regis & ejus Justiciariis qui Recordum habent , & in Rotulis eorum Irrotulatur , &c. And also at the time of the making of that Statute , 1 Cro. 186 , 187. London had not any Sheriffs , but Bayliffs ; and the said Statute ordains , that Process shall go to Sheriffs , &c. But the whole Court was clear of a contrary opinion , for they said , We will know that those of London have a Court of Record , and every Court of Record hath an Authority incident to it to take Recognizances , for all things which concern the Iurisdiction of the said Court , and which arise by reason of matters there depending . Another matter was objected , for that the Recognizance was taken in interiori Camera , but the Court was holden in exteriori Camera , and therefore not pursuant . But as to that , it was said by the Lord Anderson , That admit that the Recognizance was not well taken , yet because that in the Scire facias upon it , the Defendant did not take advantage then thereof , he shall be bounden by his said admittance of it , as if one sue forth a Scire facias , as upon a Recognizance , whereas in truth there is not any Recognizance , and the party pleads admitting such Record , and thereupon Iudgment is given against him , it is nor void , but voidable . Fleetwood , Recorder of London , alledged many Cases , to prove that the Courts of the King are bounden to take notice , Priviledges of London . That they of London have a Court of Record , for if a Quo warranto issueth to Iustices in Eyre , it behoves not them of London to claim their Liberties , for all Courts of the King are to take notice of them . And at last , after many motions , the opinion of the Court was for the Plaintiff . And it was said by Anderson , and in manner agreed by the whole Court , That if depending this Demurrer here , the Iudgment in London upon the Scire facias be reversed , yet the Court here must proceed , and not take notice of the said Reversal .

CCCLXXXV . Bedingfeild and Bedingfeilds Case . Hill. 29 Eliz. In the Common Pleas.

Dower . DOwer was brought by Anne Bedingfeild against Thomas Bedingfeild . The Tenant out of the Chancery purchased a Writ , De circumspecte agatis , setting forth this matter , That it was found by Office in the County of Norfolk , that the Husband o● the Demandant was seised of the Manor of N. in the said County , and held the same of the Queen by Knights Service in chief , and thereof dyed seised , the Tenant being his Son and Heir of full age , by reason whereof the Queen seised as well the said Manor as other Manors , and because the Queen was to restore the Tenements , tam integre , Primer seisin . &c. as they came to her hands , it was commanded the Iudges to surcease , Domina regina inconsulta : It was resolved , per Curiam , That although the Queen be entituled to have Primer seisin of all the Lands , whereof the Husband of the Demandant dyed seised , yet this Writ did not extend unto any Manors not found in the Office , for by the Law , the Queen cannot seise more Lands than those which are contained in the Office : And therefore as to the Land not found by the Office , the Court gave day to the Tenant to plead in chief : And it was argued by Serjeant Gawdy for the Tenant , That the Demandant ought to sue in the Chancery , because that the Queen is entituled to have her Primer Seisin , and cited the case of 11 R. 2. and 11 H. 4. 193. And after many motions , It was clearly agreed by the Court , That the Tenant ought to answer over , for the Statute , De Bigamis Cap. 3. provides that in such case , The Iustices shall proceed notwithstanding such seisin of the King , and where the King grants the custody of the Tenant himself , 1 H. 7. 18 , 19. 4 H. 7. 1. A Multo fortiori against the Heir himself where he is of full age , notwithstanding the possession of the King for his Primer seisin : By the Statute of Bigamis after the Heir was of full age , the Wife could not be endowed in the Chancery : But now by the Prerogative of the King , such wives may be endowed there , Si viduae illae voluerint , and after many motions , The Court awarded , That the Tenant should plead in chief at his peril , for the Demandant might sue at the common Law if she pleased .

CCCLXXXVI . Hill. 28 Eliz. In the Common Pleas.

THe Case was , Exchange . The Husband was seised of Lands in the right of his Wif , the Husband and his Wife both joyned in exchange of the Lands with a stranger for other Lands , which exchange was executed , the Husband and the Wife seised of the Lands taken in exchange , aliened the same by Fine , It was holden by Rhodes and Windham Iustices , That the Wife after the death of her Husband might enter into her own Lands notwithstanding that Fine ; And Rhodes resembled it to the case reported by my Lord Dyer , 19 Eliz. 358. The Husband after marriage assured to his Wife a Ioynture , they both levy a Fine , 1 Inst. 36. b. Sur Conusans de droit come ceo que il ad of the gift of the Husband ; that the same is not any Bar to the Wife of her Dower , for the Election is not given to the Wife to claim her Ioynture , or her Dower , until after the Death of her Husband : And so in the principal case Iudgment was given for the Wife .

CCCLXXXVII . Le es Case . Pasch. 26. Eliz. In the Kings Bench.

NIcholas Lee by his will devised his Lands to William his second Son ; Devise . 1 Cro. 26. 3 Len. 106. And if he depart this World not having issue ; Then I will that my Sons in Law shall sell my Lands , the Devisor at the time of his devise having sir Sons in Law , dyed , William had Issue John , and dyed , John dyed without Issue , one of the Sons in Law of the Devisor dyed , the five surviving Sons in Law sold the Lands : First it was clearly resolved by the whole Court , That although the words of the Will are ( ut supra ) If William my Son depart this world not having Issue , &c. And that William had Issue who dyed without Issue ; here , although it cannot be litterally said , That William did depart this World not having issue , yet the intent of the Devisor is not to be restrained to the letter , that such construction shall be made , That whensoever William dyeth , in Law , or upon the matter without Issue , that the Land shall be subject to sale , according to the authority committed by the Devisor to his Sons in Law : And now upon the matter William is dead without Issue : As in a Formedon in Reverter or Remainder , although that the Donee in tail hath issue , yet if after the estate tail be spent , the Writ shall suppose that the Donee dyed , without Issue , a fortiori in the Case of a Will , or Devise , such construction shall be made . As to the other point , concerning the sale of the Lands , Wray asked , If the Sons in Law were named in the Will , and the Clerks answered , No : See 30 H. 8. Br. Devise , 31. and 39 Ass. 17. Executors , 117. such a sale good in case of Executors : See also 23 Eliz. Dyer , 371. and Dyer 4 , & 5. Phil. and Mary , Lands devised in tail , and if the Devisee shall dye without Issue , that then the Land shall be sold , pro optimo valore , by his Executors , una cum assensu A. if A. dyeth before sale , the power of the Executors is determined : And afterwards it was clearly resolved by the whole Court , That the sale for the manner was good , and Iudgment was given accordingly .

CCCLXXXVIII . Sir Gilbert Gerrard and Sherringtons Case . Pasch. 20 Eliz. In the Kings Bench.

SIr Gilbert Gerrard Master of the Rolls , Libelled in the Spiritual Court , against Sherrington , and A. his Servant for Tithes parcel of a Rectory , whereof the said Sir Gilbert was Fermor to the Queen ; It was moved by Egerton Solicitor General , That against the Kings Fermor a Prohibition doth not lye : But the opinion of the whole Court was , That a Prohibition doth lye , and so it hath been adjudged before . And afterwards , Exception was taken to the surmise , because the said Sir Gilbert had Libelled against the said Sherrington and his Servant severally , Owen Rep. 13. Yelv. Rep. 128. and now in the Kings Bench they both had made a joynt surmise , whereas they ought to have severed in their surmises according to the several Libels : And it was so adjudged by the Court , and therefore they were driven to make several surmises : And afterwards Exception was taken , because the said Sherrington and his Servant , had delivered their surmises and suggestions by Attorney , where they ought to be in proper person : See the Statute of 2 E. 6. cap. 13. The party shall bring and deliver to the hands of some of the Iustices of the same Court , &c. the true Copy of the Libel , &c. subscribed or marked with the hand of the Party , &c. and under the Copy shall be written the surmise or suggestion ; And although it was affirmed by the Clerks of the Court , that the common use and practice for twenty years had been , not to exhibit such surmises or suggestions by Attorney : Yet it was resolved by the whole Court , that it ought to be by Attorney .

CCCLXXXIX . Short and Shorts Case . Pasch. 26. Eliz. In the Kings Bench.

IN an Action upon the Case upon Assumpsit to pay mony to the Plaintiff upon Request : It was agreed , Request . That the Plaintiff by way of Declaration ought to alledge an actual Request , and at what place , and at what day the Request was made : And it is not sufficient to say , as in an Action of Debt , Licet saepius requisitus , &c. and so it was adjudged .

CCCXC . Pasch. 26. Eliz. In the Kings Bench.

ONe was Endicted in the County of Linc ▪ upon the Statutes of W●st . Indictment upon the Statute of news . 1. Cap. 33. and 2 R. 2. Cap. 5. of News , and the words were , That Campian was not executed for treason , but for Religion , and that he was as honest a man as Cranmer ; the Bill was endorsed , Billa vera , but whether , ista verba prolata fuerunt , malitlose , seditiose , or e contr. ignoramus : The same Indictment being removed into the Kings Bench , the party , for the causes aforesaid , was discharged .

CCCXCI . Cole and Friendships Case . Pasch. 26. Eliz. In the Kings Bench.

IN Ejectione firmae , the Case was , That Fricarroo● was seised , Leases . 4 Len. 64. and by Indenture betwixt himself of the one part , and one Friendship , his Wife and the Children betwixt them begotten at the Assignment of the Husband of the other part , leased the said Land to the said Husband his Wife and their Children , at the Assignment of the Husband , for years , they having at the time of the said Lease but one Child , ● . a Son ; Assignment . afterwards they had many Children , the wife dyed , the Husband by his will assigned his second Son born after the making of the Lease , to have the residue of the said Term , and by the opinion of the Court nothing can come to the said Son by that Lease , or by that assignment , for if the Interest doth not vest at the beginning , it shall never vest ; And afterwards is was moved , In as much as nothing could vest in any of the Children born after the Lease made , if these words ( At the Assignment of the Husband ) should be void , and then the case should be no more , but that Land is devised to the Father and Mother , and their Children : At another day , viz. Trin. 26 Eliz. the case was moved again , and as to the first Point , the Court was of opinion as before , That the Child assigned after the Lease made , should not take : And then it was moved , That because Friendship and his Wife at the time of the making of the said Lease had one Son , that he should take with his Father and Mother ; and that the words ( at the Assignment of Friendship ) should be void , is matter of surplusage , and the word Children a good name of purchase : But the whole Court was against that conceit , for these words in the case , At the Assignment of Friendship are not void , but shew what person should take , if the intent of the party should take effect , i. he who the Father by Assignment should enable , for no Child shall take but he who the Father shall assign , that is part of the contract ; and although by such Assignment no title accrues to the Child assigned , yet without Assignment no Child is capable , for by the Lease the Father hath such Liberty that he may assign what Child he will : And by Wray , If the words of the Lease had been ( at the assignment of the Father within one month ) and the Father surcease his month , Antea 275. the Interest should not vest in any of the Children : And by Ayliff Iustice , If the words of the Lease had been ( to the Husband and wife and their Son John , where his name is William ) nothing should vest : And peradventure in this case at the Bar , if the Father had assigned his Son then born , and had assigned him before or at the time of the Lease , i. the delivery of the Lease , it had been well enough : Note that this Action was brought by Cole Lessee of the Son of the Husband and Wife born at the time of the Lease made : And afterwards Wray , with the assent of all the rest of the Iustices , gave Iudgment that the Plaintiff Nihil capiat per Billam .

CCCXCII . Pasch. 26 Eliz. In the Kings Bench.

Execution where joynt , where several . NOte , It was agreed by the whole Court and affirmed by the Clerks : That if Debt be brought upon an Obligation against two upon a joynt Praecipe , and the Plaintiff hath judgment to recover , that a joynt Execution ought to be sued against them both : But if the suit were by one Original and several Praecipes , execution might be sued against any of them .

CCCXCIII . Trin. 26 Eliz. In the Kings Bench.

Replevin . IN a Replevin , The Defendant doth avow for Damage Feasant , and shewed that the Lady Jermingham was seised of such a Mannor whereof , &c. and leased the same to the Defendant for years , &c. The Plaintiff said , That long befor King H. 8. was seised of the said Manor , and that the place where is parcel of the said Manor demised and demisable by copy , &c. and the said King by his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is , by copy in fee , &c. upon which it was demurred , because by this Bar to the Avowry , the Lease set forth in the Avowry is not answered , for the Plaintiff in the Bar to the Avowry , ought to have concluded , and so was seised by the custom , until the Avowant , praetextu of the said Term for years entred : And so it was adjudged .

CCCXCIV . The Lord Dacres Case . Trin. 26. Eliz. In the Kings Bench.

Ante 227. Stewardship of a Manor : Office of Trust . Grants per Copy , Deputy Steward . IN Ejectione firmae , the case was , That the Lord Dacres was seised of the Manor of Eversham , and that I.S. held the place where of the said Manor by copy for term of his life , and the said Lord granted the Stewardship of the said Manor to the now Marquess of Winchester , who appointed one Chedle to be his Deputy to keep a court , & ad traden dum , the said Lands ( I.S. being now dead ) to one Wilkins by copy for life , afterwards , the said Chedle commanded one Hardy his Servant to keep the said court , and grant the said Land by copy , ut supra , which was done accordingly , the copy was entred , and the Lord Dacres subsigned it & confirmed it : It was further found , That Hardy had many times kept the said court both before and after , and that the custom of the Manor was , that the Steward of the said Manor for the time being , or his Deputy might take Surrenders , 1 Co. 48. 49. and grant estates by copy : And if this estate so granted by Hardy were good or not , was the question , because by the Servant of the Deputy , whereas the custom found did not extend further than the Deputy : It was argued that the estate granted , ut supra , was void , for a Deputy cannot transfer his authority over , for it is an office of trust : See 39 H. 6. 33 , 34. 14 E. 4. 1. and 6 Eliz. it was adjudged , That the Duke of Somerset had divers Stewards of his Lands , and they , in the name of the said Duke made diverse Leases of the Lands of the said Duke , rendring Rent , and the Duke , afterwards assented to the said Leases , and received the Rents reserved upon them , and yet after the death of the said Duke , the Earl of Hertford his Son and Heir avoided them : So here , the assent , and the subsignment of the copy by the Lord Dacres , doth not give any strength to the copy which was void at the beginning ; against which it was said , That to take a Surrender , and to grant an Estate by copy is not any judicial Act , but meerly an Act of service , and no matter of trust is transferred to Hardy , for trust is reposed in him who may deceive , which can't be in our Case , for here is an express commandment , which if Hardy transgress it is absolute void , for nothing is left to his discretion : And the admitting of a Copy-holder is not any judicial Act , for there need not be any of the Suitors there who are the Iudges : And such a Court may be holden out of the Precinct of the Manor , for no Pleas are holden , which was concessum per totam Curiam : And by Ayliff Iustice , If the Lord of such a Manor makes a Feoffment of a parcel of his Manor which is holden by copy for life , and afterwards the Copy-holder dyeth , although now the Lord hath not any Court , yet the Feoffee may grant over the Land by copy again . And the whole Court was clear of opinion , That the grant for the manner of it was good , especially because the Lord Dacres agreed to it ; And Iudgment was given accordingly .

CCCXCV . Burgesse and Fosters Case . Trin. 26. Eliz. In the Kings Bench.

IN Ejectione firmae , the case was , 1 Cro. 48 , 49. That the Dean and Chapter of Ely were seised of the Manor of Sutton , whereof the place where , &c. is parcel , demised and demisable by copy according to the custom , and by their Deed granted the Stewardship of the said Manor to one Adams to execute the said office , per se vel legitimum suum Deputatum eis acceptabilem : Surrenders . Afterwards Adams made a Letter of Deputation to one Mariot , ad capiendum unum sursum redditionem of one I. W. and I. his Wife , and to examine the said I. aforesaid , ea intentione , that the said I.W. and A. might take back an estate for their lives , the Remainder over to one John Buck in Fee ( Note , the Surrender ought be , de duobus Messuagiis ) Mariot took two several Surrenders from the said Husband and Wife , the Remainder over to the said John Buck in Fee , upon condition to pay a certain sum of money , &c. It was moved , That the Surrender is void , and without warrant , for the warrant was , ad capiendum unum fursum redditionem , and here are two several Surrenders , and so the warrant is not pursued , and then the Surrender is void : Another matter was because the Remainder to John Buck by the words of the Deputation was absolute and without Condition , and now in the Execution of it , it is conditional , so as this conditional estate is not warranted by the Deputation : But the whole Court was clear of a contrary opinion in both the points , and that all the proceedings were sufficient and well warranted by the Deputation : Another matter was objected , because that this Surrender and regrant is entred in the Roll of a Court , dated to be holden the second of Maij , and the Letter of Deputation bears date the third of June after : But as to that , The Court was clear of opinion , that the mis-entry of the date of the Court should not prejudice the party , for this Entry is not matter of Record , but is but an Escape , and if the parties had been at Issue , upon the time of the Surrender made , or of the Court holden , the same should not be tryed by the Rolls of the Manor , but by the Country , and the party might give in Evidence the truth of the matter , and should not be bound by the Roll , and according to this Resolution of the Court , Iudgment was given .

CCCXCVI . Mich. 26 , & 27. Eliz. In the Kings Bench.

Fines levied . THe Case was : Tenant in tail leased for sixty years , and afterwards levyed a Fine to Lee and Loveday , Sur Conusans de droit come ceo , &c. with a Render to him and his Heirs in Fee ; And upon a Scire facias against the Conusees , supposing the Lands to be ancient Demesn , the Defendants made default for which the Fine was avoided , and now the Issue in tail entred upon the Lessee for years , and he brought an Ejectione firmae , Sene facias . ● Len. 117. and it was found , That the Land was Frank Fee ; And all the question was , If by the Reversal of the Fine by Writ of Disceit , without suing forth a Scire facias against the Ter-Tenant should bind him , or should be void only against the Conusee , and not against the Lessee : Atkin. It shall not bind the Lessee for years : For a Fine may bind in part , and in part not : as bind one of the Conusees , and not the other , 7 H. 4. 111. A Fine levied of Lands , part ancient Demesn , and part at the common Law , the same was by Writ of Disceit reversed in part , as to the Land in ancient Demesn , and stood in force for the residue , 8 H. 4. 136. And there by award of the Court issued forth a Scire facias against the Ter-Tenants , and the Iustices would not adnul the Fine , without a certificate that the Land was Ancient Demesn , notwithstanding that the Defendant had acknowledged it to be so , but as to them who were parties to the Fine , the Fine is become void as to the said parties , and and he who had the Land before might enter , i. And he said it should be a great inconvenience , if no Scire facias , or other Proces should be awarded against the Ter-tenant , for he should be dispossessed and disinherited without privity , or notice of it , where upon a Scire facias he might plead matter of discharge , in Bar of the Writ of Disceit , as a Release , &c. which see Fitz. N.B. 98. And so although the Fine be reversed , yet he might retain the Land , and he resembled this case to the case of 2 H. 4. 16 , 17. In a Contra formam collationis against an Abbot , a Scire facias shall issue forth against the Feoffee , and so by the same reason here : And for the principal matter he said , That the Fine should be avoided against the parties , but not against the Lessee : Kingsmill , The Scire facias brought against the parties only is good enough , for they were parties to the Disceit , and not the Ter-tenants : It was adjorned .

CCCXCVII . Mich. 26 , & 27. Eliz. In the Kings Bench.

Error . Appearance by Attorney . Dyer 135. b. A Writ of Error was brought upon a Iudgment in a Quid juris clamat ; It was assigned for Error , that the Tenant did appear by Attorney , whereas he ought not but in person , because he is to do an Act in proper person , if it be not in case of necessity , where the Attorney may be received by the Kings Writ , or plead matter in Bar of the Attornment , as if he claim Fee , &c. or other peremptory matter , after which Plea pleaded he may make Attorney , 48 E. 3. 24. 7 H. 6. 69. 2● . E. 3. 48. 1 H. 7. 27. Another Error was , because it is not shewed in the Quid juris clamat , what estate the Tenant hath : Another matter was , If the Grantee of the estate of Tenant in tail after possibility of issue extinct shall be driven to attorn , ● Len ●● . and it was said he should not , for the priviledge doth pass with the grant : See 43 E. 3. 1. Tenant in tail after possibility of issue extinct shall not be driven to attorn , 46 E. 3. 13. 27. Ergo , neither his Grantee : Williams contrary , As to the appearance of the Tenant by Attorney , because the same is admitted by the Court , and the Plaintiff , the same is not Error , which see 1 H. 7. 27. by Brian and Conisby , 32 H. 6. 22. And he said , That the Grantee should be driven to attorn , for no other person can have the estate of the Tenant in tail after possibility of issue extinct , but the party himself , therefore not the priviledge ; and although he himself be dispunishable of Wast , yet his Grantee shall not have such priviledge . As if Tenant in Dower , or by the curtesie , grant over their estates , the Heir shall have Wast against the Grantors for Wast done by the Grantee , but if the heir granteth over his Reversion , then Wast shall be brought against the Grantees : See Fitz. N.B. 56. And it two Coparceners be , and the one taketh a Husband and dieth the Husband being Tenant by the curtesie , a Writ of Partition lyeth against him , but if he granteth over his estate , no Writ of Partition lyeth against the Grantee , 27 H. 6. Stathams Aid . If the Grantee of Tenant after possibility shall att●rn . Tenant in tail after possibility of issue extinct shall not have Aid , but his Grantee shall have Aid . Clark , The Grantee of Tenant in tail shall not be driven to attorn. If Tenant in tail grant totum statum suum , the Grantee is dispunishaple of wast ; so if his Grantee grant it over his Grantee is also dispunishable , &c. It was adjorned .

CCCXVIII . Gravenor and Masseys Case . Mich 26 , & 27. Eliz. In the Kings Bench.

GRavenor brought a Writ of Error upon a common Recovery against Massey : Error . And in the said Recovery four Husbands and their Wives were vouched , and now the Plaintiff brought this Writ of Error as heir to one of the Husbands , and Exception was taken to his Writ , because the Plaintiff doth not make himself heir to the Survivor of the four Husbands . Egerton , The Writ is good enough , for there is a difference betwixt a Covenant personal , and a Covenant real , for if two be bound to warranty , and the one dyeth , the Survivor and the heir of the other shall be vouched , and he said each of the four and their heirs are charged , and then the heir of each of them being chargeable , the heir of any of them may have a Writ of Error . And afterwards the Writ of Error was adjudged good : Ante 86. And Error was assigned because the Vouchees appeared the same day that they were vouched by Attorney , which they ought not to do by Law , but they might appear gratis the first day without Proces in their proper persons , and so at the sequatur sub suo periculo : See 13 E. 3. Attorn , 74. and 8 E. 2. ib. 101. Another Error was assigned , Because the Entry of the warrant of Attorney for one of the Vouchees is po. lo. suo , I.D. against the Tenant , where it should be against the Demandant , for presently when the Vouchee entreth into the warranty , he is Tenant in Law to the Demandant : Coke , As to the first Error , Although he cannot appear by Attorney , yet when the Court hath admitted his appearance by Attorney , the same is well enough , and is not Error : As to the other Error , I confess it to be Error , but we hope that the Court will have great consideration of this case as to that Error , for there are one hundred Recoveries erronious in this point , if it may be called an Error : And then we hope , to avoid such a general mischief , that the Court will consider and dispense with the rigor of the Law : As their Predecessors did , 39 H. 6. 30. In the Writ of Mesne : But I conceive , That the Writ of Error is not well brought , for the Voucher in the said Recovery is of four Husbands and their Wives , and when Voucher shall be intended to be in the right of their Wives , which see 20 H. 7. 1. b. 46 E. 3. 28. 29 E. 3. 49. And so by common intendment , the Voucher shall be construed in respect of the Wife ; So also the Plaintiff here ought to entitle himself to this Writ of Error as heir to the Wife : And for this cause , The Plaintiff relinquished his Writ of Error ; And afterwards he brought a new Writ , and entituled himself as heir to the wife .

CCCXCIX . The Queen , and the Dean of Christchurch Case . Mich. 26 & 27 Eliz. In the Kings Bench.

Praemunire . 3 Len. 139. THe Queens Attorney General brought and prosecuted a Praemunire for the Queen and Parret , against Doctor Matthew Dean of Christ-church in Oxford , and others , because they did procure the said Parret to be sued in the City of Oxford , before the Commissary there in an Action of Trespass , by Libel according to the Ecclesiastical Law , in which suit Parret pleaded , Son Franktenement , and so to the Iurisdiction of the Court , and yet they did proceed , and Parret was condemned and imprisoned : And after that suit depended , The Queens Attorney withdrew the suit for the Queen ; And it was moved , If notwithstanding that the party grieved might proceed : See 7 E. 4. 2. b. The King shall have Praemuire , and the party grieved his Action : See Br. Praemunire 13. And by Brook none can have Praemunire but the King : Coke , There is a President in the Book of Entries 427. In a Praemunire , the words are ( ad respondendum tam Domino Regi , quam R.F. ) and that upon the Statute of 16 R. 2. and ib. 428 , 429. Ad respondendum tam Domino Regi de contemptu , quam dict. A. B. de damnis : But it was holden by the whole Court , That if the Kings Attorney will not further prosecute , the party grieved cannot maintain this suit , for the principal matter in the Praemunire is , The conviction and the putting of the party out of the protection of the King , and the damages are but accessary , and then the principal being released , the damages are gone : And also it was holden by the Court , That the Presidents in the Book of Entries are not to be regarded , and there is not any Iudgment upon any of the pleadings there , but are good directions for pleadings , and not otherwise .

CCCC . Mich. 26 , & 27. Eliz. In the Kings Bench.

Fines levied . 1 Cro. 35. THe Case was , A. gave Lands in tail to B. upon condition . That if the Donee or any of his heirs alien , or discontinue , &c. the Land or any part of it , that then the Donor do re-enter : The Donee hath issue two Daughters and dieth : One of the two Daughters levieth a Fine , Sur Conusans de droit come ceo , Forfeiture . to her Sister : Heale Serjeant , the Donor may enter , for although the Sisters to many intents are but one Heir , yet in truth they are several Heirs , and each of them shall sue Livery , 17 E. 3. If one of the Sisters be discharged by the Lord , the Lord shall lose the Wardship of her , and yet the Heir is not discharged : And if every Sister be heir to diverse respects , then the Fine by the one Sister is a cause of Forfeiture : Harris contrary , For conditions which go in defeating of estates shall be taken shortly , Conditions . and here both the Sisters are one Heir , and therefore the discontinuance by the one , is not the Act of the other : Clench Iustice , The words are , Or any of his heirs , therefore it is a forfeiture , quod fuit concessum per totam Curiam : And Iudgment was given accordingly .

CCCCI . Mich. 26 & 27 Eliz. In the Kings Bench.

THe Case was , Assumpsit . Hutt . Rep. 34. Hob. 284. A Woman seised of a Rent-charge for life took Husband , the Rent was arrear ; the wife died , the Tenant of the Land charged , promised to pay the Rent in consideration that the Rent was behind , &c , and some were of opinion , Because that this Rent is due and payable by a Deed , that this Action of the Case upon Assumpsit will not lye , no more than if the Obligor will promise to the Obligee to pay the mony due by the Obligation , 3 Cro. 5. an Action doth not lye upon the Promise , but upon the Obligation . But it was holden by the whole Court , That the Action did well lye , for here the Husband had remedy by the Statute of 32 H. 8. And then the consideration is sufficient , and so Iudgment was given for the Plaintiff .

CCCCII. Williams and Blowers Case . Hill. 27 Eliz. In the Kings Bench.

REignold Williams and John Powell brought a Writ of Error against the Bishop of Hereford and Blower , Error . upon a Recovery had in a Writ of Disceit by the said Bishop and Blower against the said Williams and Powell , for that the said Williams had before brought a Quare Impedit against the said Blower and the Bishop , Dyer 353. b. 354. and had recovered against them by default , whereupon Williams had a Writ to the Metropolitan to admit his Clerk , and in the Writ of Disceit Iudgment was given for the Plaintiffs : For it was found , That the Summons was the Friday to appear the Tuesday after , and so an insufficient Summons , and in that Writ of Disceit the Defendants , Williams and Powell pleaded , That Blower the Incumbent was deprived of his Benefice in the Court of Audience , which sentence was affirmed upon Appeal before the Delegates ; and notwithstanding that Plea , Iudgment was given against Williams and Powell Defendants in the said Writ of Disceit : And upon that Iudgment this Writ of Error is brought . Beaumont assigned four Errors , First , 1 Cro. 65. because the Bishop and Blower joyned in the Writ of Disceit , for their Rights are several , 12 E. 4. 6. Two cannot joyn in an Action of Trespass upon a Battery done at one time to them : So if one distrain at one and the same time , the several Goods of divers persons , they according to their several properties shall have several Replevins , 12 H. 7. 7. By Wood. So if Lands be given to two , and to the Heirs of one , and they lose by default in a Praecipe brought against them , they shall have several Writs , the one Quod ei deforceat , Joynder in Action . the other a Writ of Right : 46 E. 3. 21. A Fine levied to one for life , the Remainder to two Husbands and their Wives in tail , they have Issue and die ; Tenant for life dieth , the Issues of the Husbands and Wives shall have several Scire facias's to execute the Fine by reason of their several Rights : Lands in ancient Demesn holden severally of several Lords are conveyed by Fine , the Lords cannot joyn in a Writ of Disceit , but they ought to have several Writs ; so here the Plaintiffs in this Writ of Disceit , and the Bishop claims nothing but as ordinary , and he loseth nothing in the Quare Impedit , and therefore by the Writ of Disceit he shall be restored to nothing . The second Error was , Because the Bar of the Defendants in the Writ of Disceit was good , i. the deprivation , &c. and the Court adjudged it not good , for the Clerk being deprived , he could not enjoy the Benefice , if the Iudgment in the Qu. Impedit had been reversed , Regul● . Post 330. and where a man cannot have the effect of his suit , it is in vain to bring any Action . Lessee for the life of another loseth by erronious Iudgment ; Cestuy que use dieth , his Writ of Error is gone , for if the Iudgment be reversed he cannot be restored to the Land , for the estate is determined , 31 E. 3. Incumbent 6. The King brought a Quare Impedit against the Incumbent and the Bishop , the Bishop claimed nothing but as Ordinary : The Incumbent traversed the title of the King , against which it was replyed for the King , That the Incumbent had resigned pendant the Writ , so as now he could not plead any thing against the title of the King , for he had not possession , and so could not counterplead the possession of the King. And here in our Case , by this deprivation the Incumbent is disabled to maintain this Action of Disceit , 15 Ass. 8. If the Guardian of a Chappel be impleaded in a Praecipe for the Lands of his Chappel , and pendant the Writ he resign , the Successor shall have a Writ of Error , and not he who resigns , for he is not to be restored to the Lands , having resigned his Chappel . So in our Case , A deprivation is as strong as a Resignation . The third Error , because in the Writ of Disceit , it is not set forth that Blower was Incumbent , for the Writ of Disceit ought to contain all the special matter of the Case ; as an Action upon the Case , 4 E. 3. Disceit 45. The fourth Error , That upon suggestion made after Verdict , that Blower was Incumbent , and in , of the presentment of the Lord Stafford , Deprivation . and that he was removed ; and Griffin in by the Recovery in the Quare Impedit by default , a Writ to the Bishop was awarded without any Scire facias against Griffin , for he is possessor , and so the Statute of 25 E. 3. calls him , and gives him authority to plead against the King , 6 Co. 52. and every Release or Confirmation made to him is good , 18 E. 3. Confirmation made by the King after Recovery against the Incumbent is good : And 9 H. 7. If a Recovery be had in a Contra formam collationis , the possessor shall not be ousted without a Scire facias , so in Audita Querela upon a Statute Staple , Scire facias . Scire facias shall go against the Assignee of the Conusee , 15 E. 3. Respon. 1. See also 16 E. 3. Disceit 35. 21 Ass. 13. A Fine levied of Lands in Ancient Demesn shall not be reversed without a Scire facias against the Ter-tenant . Walmesley contrary , The case at the Bar differs from the case put of the other side , for they are cases put upon original Writs , but our case is upon a judicial Writ , and here nothing is demanded , but the Defendant is only to answer to the disceit and falshood . And in this Case the Issue is contained in the Writ which is not in any original Writ , and the Iudges shall examine the issue without any plea or appearance of the Tenant , and here the Defendant is not to plead any thing to excuse himself of the wrong : And here the Iudgment is not to recover any thing in demand , but only to restore the party to his former estate and possession , and if he hath nothing , he shall be restored to nothing ; And he put many cases where persons who have several Rights may joyn in one Action , as a Recovery in an Assize against several Tenants , they may joyn in one Writ of Error , 18 Ass. Recovery in Assize against Disseisor and Tenant , they shall both joyn in Error , why not also in Disceit ? 19 E. 3. Recovery against two Coparceners , the Survivor and the heir of the other shall joyn in Error . As to the second Error , Williams and the Sheriff ought not to joyn in the Plea , and also the Plea it self is not good , for the Writ of Disceit is , That Williams answer to the Disceit , and the Sheriff shall certifie the proceedings , and therefore he shall not plead : and also the Plea it self is not good , for although the interest of the Incumbent be determined in the Church , yet his Action is not gone ; as if in a Praecipe quod reddat , the Tenant alieneth pendant the Writ , and afterwards the Demandant recovereth , yet the Tenant although his Interest be gone by the Feoffment , yet he shall have a Writ of Error , and so here ; and as to the Scire facias , there needs none here against the new Incumbent , for he comes in pendant the Writ , and that appears by the Record ; but if it had been in before the Writ brought , then a Scire facias would lye . See 9 H. 6. It was adjorned .

CCCCIII . Flemmings Case . Mich. 26 & 27 Eliz. In the Kings Bench.

FLemming was Indicted upon the Statute of 1 Eliz. because he had given the Sacrament of Baptism in other form than is prescribed in the said Statute , and in the Book of Common Prayer , Indictment upon the Statute of 1 Eliz. and the said Indictment was before the Iustices of Assize . Wray and Anderson , Of such offence done before , and now he is Indicted again ; for which it was awarded , that he suffer Imprisonment for a year ; and shall be adjudged ipso facto , deprived of all his Spiritual promotions : And upon the Indictment Flemming brought a Writ of Error , and assigned Error , because in the second Indictment no mention is made of the first Indictment , in which case the second Indictment doth not warrant such a Iudgment . Wray Iustice , If the first Indictment be before us , then is a second Iudgment well given ; contrary , if it be before other Iustices . Clench , The second Indictment ought to recite the first conviction ; and if one be Indicted for a Rogue in the second degree , the first conviction ought to be contained in such Indictment ; in an Indictment the day and time are not material as to true recovering in facto : And it might be , that this last Indictment was for the first offence for any thing appeareth . Coke , who argued to the same intent , compared it to the Case of 2 R. 2. 9. and 22 E. 4. 12. 12 H. 7. 25. Indictment certified to be taken coram A.B. Justiciariis Domini Regis ad pacem , &c. without saying , necnon ad diversas felonias , &c. is void , and if a man hath been once convicted , he shall not have his Clergy if it appeareth upon Record before the same Iustices , that he had his Clergy before .

CCCCIV . The Mayor of Lynns Case . Hill. 27 Eliz. In the Kings Bench.

THe Mayor of Lynn was Indicted , Indictments . for that he had received twenty four shillings of one A. for giving of Iudgment in an Action of Debt , depending before him against one B. and he was indicted thereof as of Extortion , In contemptum dictae Dominae Reginae , & contra formam Statuti . Coke , The Indictment is insufficient , for there is not any Statute to punish any Iudge for such a matter : For the Statute of West . 1. Cap. 26. is made against Sheriffs , Cap. 27. Clerks of Iustices , Cap. 30. The Marshal and his Servants , Statute 23 H. 6. against Sheriffs , 3 Inst. 145. and other Statutes against Ordinaries : But no Action lies against a Iudge , for that which a Iudge receives is Bribery and not Extortion , Et satis poenae est , judici quod Deum habeat ultorem , and therefore he said the party indicted ought to be discharged . Gawdy Iustice , If in the Indictment there be words of Extortion or Bribery , although such an offence in a Iudge be not materially Extortion , if these words , contra pacem , &c. had been in the Indictment , it had been good , quod Clench concessit : And afterwards the party was discharged .

CCCCV. Crisp and Goldings Case . Mich. 28 & 29 Eliz. In the Kings Bench.

Assumpsit . 1 Cro. 50. 2 Len. 71. IN an Action upon the Case by Crisp against Golding , the Case was , That a Feme sole was Tenant for life , and made a Lease to the Plaintiff for five years , to begin after the death of Tenant for life , and afterwards the 18. of October made another Lease to the same Plaintiff for 21 years , to begin at Michaelmass next before ; and declaring upon all the said matter , he said , Virtute cujus dimissionis , i. e. the later Lease , the Plaintiff entred and was possessed Crast . Fest. S. Mich. which was before the Lease made ; and further declared , that in consideration that the Plaintiff had assigned to the Defendant these two Leases , the Defendant promised , &c. and upon non Assumpsit it was found for the Plaintiff , and damages taxed 600 l. Coke argued for the Plaintiff against the Solicitor General , who had taken divers exceptions to the Declaration , i. Where two or many considerations are put in the Declaration , although that some be void , yet if one be good the Action well lieth , and damages shall be taxed accordingly ; and here the consideration that the Plaintiff should assign totum statum , titulum , & interesse suum quod habet in terra praedict' . 2. Exception , that the Lease in possession was made after Michaelmass , i. 18 October , and the Declaration is , Virtute cujus dimissionis , the Defendant entred Crastino Mich. and then he was a disseisor , and could not assign his interest and right , which was suspended in the tortious disseisin , and so it appeared to the Iudges ; and he said there was not here any disseisin , although that the Lessee had entred before that the Lease was made ; for there was an agreement and communication before of such purposed and intended Lease , although it was not as yet effected , and if there were any assent or agreement that the Lessee should enter , it cannot be any disseisin , and here it appeareth that the Lease had his commencement before the making of the Lease , and before the entry : But put case it be a disseisin , yet he assigned all the Interest quod ipse tunc habuit , according to the words of the consideration , and he delivered both the Indentures of the said Demises , and quacunque via data , be the assignment good or void it is not material as to the Action , for the consideration is good enough . Egerton Solicitor contrary . In every Action upon the Case , upon Assumpsit , there ought to be a Consideration , promise , and breach of promise , and here in our Case the Consideration is the assignment of a Lease , which is to begin after the death of the Lessor , who was but Tenant for life , which is meerly void , and that appeareth upon the Record ; and as to the second part of the Consideration , and the assignment of the second Lease , it appeareth , that the Plaintiff at the time had but a Right ; for by his untimely entry before the making of the Lease , he was not to be said Lessee , but was a wrong-doer , &c. in 19 Eliz. in the Kings Bench this difference was taken by the Iustices there , and delivered openly by the Lord Chief Iustice , i. When in an Action upon the Case , upon Assumpsit , two Considerations or more are laid in the Declaration , but they are not collateral , but pursuant , as A. is indebted to B. in 100 l. and A. promiseth to B. that in consideration that he oweth him 100 l. and in consideration that B. shall give to A. 2 s. that he will pay to him the said 100 l. at such a day , if B. bring an Action upon the Case upon this Assumpsit , and declares upon these two promises , although the consideration of the 2 s. be not performed , yet the Action doth well lye : But if they be collateral considerations , which are not pursuant , as if I in consideration that you are of my Counsel , and shall ride with me to York , promise to give to you 20 l. in this case all the considerations ought to be proved , otherwise the Action cannot be maintained : So in our case , the considerations are collateral , and therefore they ought to be proved ; and afterwards Iudgment was given for the Plaintiff .

CCCCVI . Fooly and Prestons Case . Hill. 28 and 29 Eliz. In the Common Pleas.

IN an Action upon the Case the Plaintiff declared , 1 Cro. 200. 2 Len. 105. That whereas John Gibbon was bound unto the Plaintiff in quodam scripto obligatorio , sigillo suo sigillat . and coram , &c. recognito in forma Statuti Stapul . The Defendant in consideration that the Plaintiff would deliver to him the said Writing to read over , promised to deliver the same again to the Plaintiff within six days after , or to pay to him 1000 l. in lieu thereof , upon which promise the Plaintiff did deliver to the Defendant the said Writing ; but the Defendant had not , nor would not deliver it back to the Plaintiff , to the great delay of the Execution thereof , and the Defendant did demur in Law upon the Declaration . It was objected , that here is no sufficient consideration appearing in the Declaration upon which a promise might be grounded ; but it was the opinion of the whole Court , that the consideration set forth in the Declaration was good and sufficient ; and by Anderson , it is usual and frequent in the King Bench : If I deliver to you an Obligation to rebail unto me , I shall have an Action upon the Case without an express Assumpsit ; and afterwards Iudgment was given for the Plaintiff .

CCCCVII . Wallpool and Kings Case . Hill. 28 and 29 Eliz. In the Common Pleas.

WIlliam Wallpool was bound to King by Recognizance in the sum of 400 l. and King also was bound to Wallpool in a Bond of 100 l. Wallpool according to the Custom of London , Attachment in London . affirmed a Plaint of Debt in the Gulldhall London against the said King , upon the said Bond of 100 l. and attached the debt due by himself to Wallpool in his own hands , and now King sued Execution against the said Wallpool upon the said Recognizance , and Wallpool upon the matter of Attachment brought an Audita querela , and prayed allowance of it ; and by Gawdy Serjeant , such a Writ was allowed in such case , 26 Eliz. Anderson at the first doubted of it ; but at last the Court received the said Writ de bene esse , and granted a Supersedeas in stay of the Execution , and a Scire facias against King ; but ea lege , that Wallpool should find good and sufficient Sureties , that he would sue with effect , and if the matter be found against him , that he pay the Execution .

CCCCVIII . Hill. 28 and 29 Eliz. In the Common Pleas.

A Copy-holder with license of the Lord leased for years , Copyholder . Surrender . Hob. 177. 1 Roll. 294 3 Len. 197. and afterwards surrendred the Reversion with the Rent , to the use of a stranger , who is admitted accordingly . It was moved , if here need any Attornment , either to settle the Reversion , or to create a Privity ; and Rhodes and Windham Iustices were of opinion , that the surrender and admittance are in the nature of an Inrolment , and so amount to an Attornment , or at least do supply the want of it .

CCCCIX. Ruddall and Millers Case . Mich. 28 Eliz. In the Common Pleas.

Devise . IN Trespass , the Case was this , William Ruddall Serjeant at Law , 18 H. 8. made a Feoffment in Fee to divers persons to the use of himself and his Heirs , and 21 H. 8. declared his Will , by which he devised his Lands to Charles his younger Son , and to the Heirs Males of his body , the Remainder to John his eldest Son in Fee , upon condition , That if Charles or any of his issue should discontinue or alien , but only for to make a Ioynture for their wives for the term of their lives , that then , &c. and died ; The Statute of 27 H. 8. came , Charles made a Lease to the Defendants for their lives , according to the Statute of 33 H. 8. And levied a Fine with Proclamation , Sur Conusans de droit come ceo , &c. to the use of himself and his wife , and the heirs Males of their two bodies begotten , the Remainder to himself and the heirs Males of his body , the Remainder to the right heirs of the Devisor . John the eldest Son entred for the Condition broken upon the Defendants , who re-entred , upon which Re-entry the Action was brought . Gawdy , Fleetwood , and Shuttleworth Serjeants for the Plaintiffs : This Condition to restrain unlawful discontinuance is good , Conditions . as a Condition to restrain Wast , or Felony . See 10 H. 7. 11. 13 H. 7. 23. And before the Statute of Quia Emptores terratum : If A. had enfeoffed B. upon Condition , That B. nor his heirs should alien , the same was a good Condition by Fleetwood ( which was granted per Curiam . ) And this Condition was annexed to good purpose , or the Serjeant well knew , that Cestuy que use might have levied a Fine , or suffered a Recovery by the Statutes of 1 R. 3. 4 H. 7. And this Condition annexed or tied to the use by the Will is now knit to the possession , which is transferred to the use by the said Statute : Although it may be objected , that the Condition was annexed to the use , and now the use is extinct in the possession , and by consequence the Condition annexed unto it , as where a Seignory is granted upon Condition , and afterwards the Tenancy escheats , now the Seignory is extinct , and so the Condition annexed to it : But as to that it may be answered , That our Case cannot be resembled to the Cases at Common Law , but rests upon the Statute of 27 H. 8. scil. Cestuy que use shall stand and be seised , deemed and adjudged in lawful seisin , estate and possession of and in such Lands to all intents , constructions and purposes in Law , of an in such like estates as he had in the use , and that the estate , right , title , and possession that was in the Feoffee shall be clearly deemed and adjudged to be in Cestuy que use , after such quality , manner , form and condition as he had in the use : And therefore in the common assurance by bargain and sale by Deed enrolled , if such assurance be made upon Condition : As in case of Mortgage , the possession is not raised by the Bargainee ; but by the Bargain an use is raised to the Bargainee , and the possession executed to it by the Statute , and the Condition which was annexed to the use only is now conjoyned to the possession , and so it hath been adjudged . So if the Feoffees to use before the Statute had made a Lease for life , the Lessee commits Wast , the Statute comes , now Cestuy que use which was , shall have an Action to Wast , as it was ajudged in Iustice Southcotes case : Southcotes case . So a Title of Cessavit in the Feoffees shall be executed by the Statute . So if the King grants to the Feoffees in use , a Fair , Market , or Warren , these things shall be executed by the Statute , Clerentius case . as it was holden in the Case of Clarentius . As to the Condition , they conceived , That it is broken ; for where the Devisor had allowed to the Devisee to discontinue for life , to make a Ioynture to his Wife , now he hath exceeded his allowance , for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life , &c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise , and hath created a new entail , and the former tail was barred by the Fine against the intent of the Devisor : Also by this Fine he hath created a new Remainder , so as his Issue inheritable to his new entail might alien and be unpunished , which was against the meaning of the Devisor : And as to the Lease for lives to the Defendants , the same is not any breach of the Condition , for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease , so as it cannot be said Discontinuance , which Anderson and Periam granted : But the Fine levied after is a breach of the Condition , and then the Re-entry upon the Lessees , who have their estates under the Condition is lawful : As where the wife of the Feoffee upon Condition is endowed , and afterwards the Condition is broken , now by the Re-entry of the Feoffor the Dower is defeated . And Shutleworth put this case , A Feoffment is made upon Condition , that the Feoffee shall lease the Lands to A. for life , and afterwards grant the Reversion to B. in Fee , the Feoffor may re-enter , for by this Conveyance he in the Reversion is immediate Tenant to the Lord , where , by the intended assurance , the particular Tenant ought to be . Puckering , Fenner , and Walmesley contrary : And by Walmesley , By this devise the use only passeth , and not the Land it self , for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use , and not to devises which are not executed till after the death of the Devisor , which see 4 Ma. Dyer 143. Trivilians case . See also 6 E. 6. Dyer 74. The Lord Bourchiers case ; but 10 H. 7. Cestuy que use deviseth , That his Executors shall sell the Land , now by the sale of the Land in possession , for the same is in a manner an Act in his life , for the Vendee is in by Cestuy que use , and here is a Condition , and not a Limitation , for the nature of a Condition is to draw back the estate to the Feoffor , Donor , or Lessor ; but a Limitation carrieth the estate further . And he conceived , That the Condition is not broken by this Act , for the intent of the Devisor is pursued , for his meaning was , That the wife should have a Ioynture indefeisable against the issue in tail , and that the inheritance should be preserved ; that both should be observed : And he said , that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance , but yet shall bar the estate Tail. And the Iustices were clear of opinion , that the Condition is broken , and also that the intent of the Condition is broken ; for it might be that Charles had issue by a former wife , which by this Fine should be disinherited , and a new Entail set on foot against the meaning of the Devisor , &c. and afterwards Iudgment was given for the Plaintiff .

CCCCX . Simmes and Wescots Case . Hill. 31 Eliz. Rot. 355. In the Kings Bench.

IN an Action upon the Case , the Plaintiff declared , 1 Cro. 147. That in consideration , that he would marry the Defendants Daughter , the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands , and to provide necessaries for the wedding dinner ; the Defendant did confess the communication betwixt them , and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc . that he promised modo & forma : The Iury found the promise of the 20 l. but not any other thing ; it was moved in arrest of Iudgment , that the Assumpsit whereof the Plaintiff hath declared , although it consist of divers things , yet it is entire , and if the whole is not found nothing is found ; and the Case of 21 E. 4. 22. was cited touching variance of Contract , as where an Action of Debt is brought upon a Contract of a Horse , and the Iury found a Contract for two Horses , the Plaintiff shall never have Iudgment ; On the other side it was said , That the Plaintiff shall recouer damages for the whole that is found , i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case , the Plaintiff declared , that the Defendant did promise to deliver four Woollen-cloaths ; the Defendant pleaded , That he did promise to deliver four Linnen-cloaths , absque hoc , that he promised , &c. the Iury found , That the Defendant did promise to deliver two Woollen-cloaths , and the Plaintiff did recover damages for the two . So in Wast , the Wast is assigned in succidendo 20 Oaks , upon which they are at Issue , the Iury find but ten Oaks , the Plaintiff shall have Iudgment for so much , and shall be amerced for the residue . Gawdy Iustice , Here are several Assumpstis in Law , as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years , two years incur , the party brings an Action upon the Case for the arrearages of the two years . Wray , In an Action upon the Case , the Plaintiff ought not to vary from his Case , as if a promise be grounded upon two considerations , Ragula . and in an action upon it , the Plaintiff declares upon one only , he shall never have Iudgment , and here the Iury have not found the same promise . Clench , If promise be made to deliver a Horse and a Cow , and the Horse is delivered , but not the Cow ; the party shall have an Action for the Cow , but he shall declare upon the whole matter and afterwards Iudgment was given , quod querens nihil capiat per billam .

CCCCXI . Stile and Millers Case . Trin. 31 Eliz. In the Kings Bench.

Tithes . 1 Cro. 161 , 578. 11 Co 13. A Parson Leased all his Glebe Lands for years , with all the profits and commodities , rendring 13 s. 4 d. pro omnibus exaction ibus & demandis , and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof , the Lessee obtained a Prohibition . See 32 H. 8. Br. Dis. 17. 8 E. 2. Avowry 212. Wray , Tithes are not things issuing out of Lands , nor any secular duty , but spiritual ; and if the Parson doth release to his Parishioner all demands in his Lands , his Tithes thereby are not extinct , and afterwards a Consultation was granted .

CCCCXII . Lee and Curetons Case . Trin. 31 Eliz. Rot. 902. In the Kings Bench.

Debt . 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum , and it was found for the Plaintiff , and Iudgment given , and afterwards the Defendant brought Error , and assigned for Error , that the Declaration was per scriptum suum obligat . Error . without saying , hic in Guria prolat . to which it was answered by Coke , that the same was but matter of form , for which a Iudgment ought not to be reversed , for that the Clark ought to put in without instruction of the party , and so it was holden in a case betwixt Barras and King , 1 Cro. 768. 778. 3 Cro. 22. M. 29 & 30 Eliz. Another Error was assigned , because the Iudgment is entred de fine nihil quia perdonat . where it should be quod capiatur , although the Plea were pleaded after the General pardon , and for that cause the Iudgment was reversed , for if the pardon be not specially pleaded , the Court cannot take notice of it , as it was holden in Serjeant Harris Case .

CCCCXIII . Lacy and Fishers Case . Trin. 31 Eliz. In the Kings Bench.

IN a Replevin , the taking is supposed in S. which Land is holden of the Manor of Esthall ; the Defendant made Conusans , as Bailiff of the Lord of the Manor aforesaid , and issue was taken upon the Tenure , Trial. and it was tryed by a Iury , out of the Visne of Esthall only . Tanfield , The trial is good , for the issue ought not to have been tried by both Visnes , S. and Esthall , for two things are in issue . If it be holden , or not . 2. If it be holden of the Manor of Esthall , for which cause the Visne ought to be from both places ; and the opinion of the Court was , That for the manner of it , it was not good , as if an issue be joyned upon common for cause of vicinage , it shall be tried by both Towns , See 39 H. 6. 31. by Littleton and Danby , and the case in 21 E. 3. 12. was cited in a per quae servitia , the Mannor was in one county , and the Lands holden in another county , the Tenant pleaded , that he did not hold of the Conusor , and that he was tried by a Iury of the County where the Land was , See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law , and the reason wherefore the Visne shall come from both places , is because it is most likely , that both the Visnes may better know the truth of the matter , than the one only . Another Exception was taken , Exposition of Stat. 21. H. 8. cap. 19. because the Conusans ( as it seems ) is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans : for by the Statute in Avowry or Conusans , the party needs not to name any person certain to be Tenant to the Land , &c. nor to make Avowty or Conusans upon any person certain ; and now in this Conusans he hath not made Conusance upon any person certain , but yet he hath named a person certain to be Tenant , &c. and in as much as this Conusans is not made , either according to the Common-Law , or according to the Statute , it cannot be good . But that Exception was dissallowed by the Court , for if the Statute remedieth two things , it remedieth one , and the Conusance made in form as above , was well enough by the opinion of the whole Court.

CCCCXIV . Diersly and Nevels Case . Trin. 31 Eliz. In the Kings Bench.

IN an Action of Trespass , the Defendant pleaded Not-guilty , 2 Roll. 682. and if he might give in evidence , That at the time of the Trespass , the Freehold was to such an one , and he as his servant , and by his Commandment entred was the question ; and it was said by Coke , That the same might so be well enough , and so it was adjudged in Trivilians Case ; for if he by whose commandment he entreth hath Right , at the same instant that the Defendant entreth the Right is in the other , by reason whereof he is not guilty , as to the Defendant , and Iudgment was given accordingly .

CCCCXV. Savage and Knights Case . Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench.

Error . Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty . 91. Yelv. 164. Sty . 115. A Writ of Error was brought upon a Iudgment given in Leicester , in Debt . Tanfield assigned for Error , because in that suit there was not any Plaint , for in all inferior Courts , the Plaint is as the Original at the Common Law , and without that no Process can issue , and here upon this Record nothing is entred , but only that the Defendant summonitus fuit , &c. and the first Entrie ought to be , A. B. queritur versus C , &c. Clench Iustice , a Plaint ought to be entred before Process issueth forth , and this Summons which is entred here , is not any Plaint , and for that Cause the Iudgment was reversed .

CCCCXVI . Rawlins Case . Trin. 31. Eliz. In the Kings Bench.

IN Trespass for breaking his Close by Rawlins , with a continuando , It was moved by Coke , that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry , scil. for the mean profits , and that appears by common experience at this day . Gawdy Iustice , whatsoever the experience be , I well know that our books are contrary , and that without an Entry he shall not have damages for the continuance , if not in case where the Term or estate of the Plaintiff in the Land be determined , and to such opinion of Gawdy , the whole Court did incline , but they did not resolve the point , because a Regress was proved , See 20 H. 6. 15. 38 H. 6. 27.

CCCCXVII . Harris and Bakers Case . Trin. 31. Eliz. In the Kings Bench.

Accompt . Damages . 3 Len. 192. Collet and Andrews Case . 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury , and it was moved that damages ought not to have been given by way of damages , but the damages of the Plaintiff shall be considered by way of Arrearages , but see the Case , H. 29 Eliz. in the Common Pleas , betwixt Collet and Andrews , and see 10 H. 6 , 18. In Accompt the Plaintiff shall count to his damage , but shall not recover damages , vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly , but the Court shall ad● quoddam incromentum to the Arrearages . Coke , It hath been adjudged , that the Plaintiff shall recover damages ratione implicationis , non Retentionis .

CCCCXVIII . Mich. 26. Eliz. In the Kings Bench.

THe words of the Statute 32 H. 8. cap. 37. of Rents are , that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator , so long as the Land charged doth continue in the Seisin or possession of the Tenant in Demesn , who ought immediately to have paid the said Rent so behind to the Testator in his life , or in the Seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant , by Purchase , Gift , or Discent , in like manner as the Testator might or ought to have done in his life time . And now it was moved to the Court. If A. grant a Rent-charge to B. the Rent is behind , B. dyeth A. infeoffeth C. of the Lands in Fee , who diverse years after infeoffeth D. who divers years after infeoffeth E. It was holden by Walmesey , Periam , and Windham Iustice , against Anderson Lord chief Iustice , that E. should be chargeable with the said arrearages to the Executors of A. But they all agreed , That the Lord by Escheat , Tenant in Dower , or by the curtesie , should not be charged , for they do not claim in by the party only , but also by the Law.

CCCCXIX . Wigot and Clarks Case . Hill. 32 Eliz. In the Common Pleas.

IN a Writ of Right by Wigot against Clark for the Mannor of D. in the County of Glocester , the four Knights gladiis cincti did appear , Writ of Right . and took their corporal Oath , that they would choose 12 , &c. ad faciendum magnam Assisam , and by direction of the court they withdrew themselves into the Exchequer chamber , and there did return in Parchment the names of the Recognitors , and also their own names , and at the day of the return of the Pannel by them made , the 4 Knights and 12 others were sworn to try the issue , and it was ordered by the Court , That both the parties , scil. the Demandant and the Tenant , or their Attornies , attend the said 4 Knights in the Exchequer chamber , and to be present at the making of the Pannel , so as each of them might have their challenges , for after the return of the Pannel , no challenge lieth , and thereupon the said 4 Knights went from the Bar , and within a short time after , sitting the Court , they returned the Pannel written in Parchment , in this form , Nomina Recognitorum , &c. inter A. petentem , & B. tenentem , and so set down their names , six other Knights , ten Esquires , and four Gentlemen , and the Iustices did commend them for their good and sufficient Pannel , and thereupon a Venire facias was awarded against the said parties .

CCCCXX . Pory and Allens Case . Trin. 30 Eliz. Rot. 611. In the Common Pleas.

THe case was , That Lessee for 30 years , leased for 19 years , 1 Cro. 173. Owen 97. Post . 322 , 323. Surrender . 1 Cro. 302. and then the first Lessee , and one B. by Articles in writing made betwixt them , did conclude and agree , That the Lessee for 19 years should have a Lease for three years in the said Lands and others , and that the same should not be any surrender of his first Term , to which Articles the said Lessee for 19 years did after agree and assent unto , and it was the opinion of all the Iustices of the Court , that the same was not any surrender , and they also were of opinion , That one Termor could not surrender to another Termor .

CCCCXXI . Glanvil ane Mallarys Case . Trin. 31 Eliz. Rot. 321. In the Common Pleas.

GLanvil was Plaintiff in Audita Querela , Audita Quer●la . 1 Cro. 2●8 , against Mallary upon a Statute Staple , for that the conusor was within age at the time of the acknowledging of it , it was moved for the Defendant , that the Court ought not to hold Plea of this matter , because there was no Record of the Statute remaining here , and therefore by Law he was not compellable to answer it , &c. and a President was disallowed 5 H. 8. where such a pleading was allowed , and judgment given , that the Defendant eat sine die , Loves Case . Dudley and Skinners Case . vide 16 Eliz. Dier 332. But on the other side divers presidents were shewed , that divers such Writs had been shewed in the Common Pleas , as 30 Eliz. Loves case , and the Lord Dudley and Skinners case , and thereupon it was adjudged that the Action did well lye in this Court.

CCCCXXII . Pet and Callys Case . Mich. 32 Eliz. In the Common Pleas.

Debt . IN Debt upon a Bond for performance of covenants , the case was , I. S. by Indenture covenanted with I.D. that such a woman , viz. R.S. at all times at the request and charges of I.D. should make , execute , and suffer such reasonable assurances of such Lands to the said I.D. or his heirs as the said I. D. or his heirs should reasonably devise or require . I.D. devised a Fine to be levied by the said Woman , and required her to come before the Iustices of Assise to acknowledge it , and the woman came before the said Iustices to that intent , and because the said woman at that time was not compos mentis the said Iustices did refuse to take the Conusans of the said Fine , and this was averred in the pleading in an Action brought upon the said Bond for performance of Covenants , where the breach was assigned in not acknowledging of the said Fine , and upon the special matter the party did demur in Law , and the opinion of the whole Court was , that the condition was not broken , for the words are general to make such reasonable assurances which , &c. but if the words had been special to acknowledge a Fine , there if the Iustice doth refuse to take such acknowledgment , the Bond is forfeited , for the party hath taken upon him that it should be done .

Wangford and Sextons Case . Mich. 22 Eliz. In the Common Pleas.

1 Cro. 174. Kel . 87. a. THe Plaintiff had recovered against the Defendant in an Action of Debt and had execution : The Defendant after the day of the Teste of the Fierifacias , and before the Sheriff had medled with the execution of the Writ , bona fide for money sold certain goods and chattels , and delivered them to the buyers ; it was holden by the Court , that notwithstanding the said Sale , that the Sheriff might do execution of those goods in the hands of the buyers ; Executions ▪ for that they are liable to the execution , and execution once granted or made shall have relation to the Test . of the Writ .

CCCCXXIV . Wilmer and Oldfields Case . Trin. 29 Eliz. Rot. 2715. In the Common Pleas.

Award . IN Debt upon a Bond , the Condition was to perform the Award of I. S , Antea 140. &c. the Arbitrators make Award , That the Defendant before such a day shall pay to the Plaintiff 1000 l. or otherwise procure one A. being a stranger to the Bond to be bound to the Obligee for the payment of 12 l. per annum to the Plaintiff for his life , the Defendant pleaded the performance of the Award generally , the Plaintiff assigned the breach of the Award in this , That the said A. had not paid the said 100 l. without speaking of the cause of the award of the 12 l. per annum , upon which the Defendant did demur in Law ; it was holden by the whole Court , that the Replication was good , for the Award , as to the second point was meerly void , as if no such Award at all had been , because A. was a stranger to the Award and the submission ; 1 Cro. 4. but as to the point of the 100 l. the same is good , and shall bind the parties , and the Plaintiff had Iudgment to recover , vide 21 E. 475. 18 E. 4. 22 , 23.

CCCCXXV . Fabian and Windsors Case . Mich. 31 , and 32. Eliz. Rot. 814. In the Common Pleas.

IN Trespass for entring into his house or Inn at Uxbridge , Leases . 1 Cro. 209. it was found by special verdict , That the Plaintiff leased to the Defendant the said house for seven years , rendring Rent at the Feasts of the Annunciation of our Lady and Saint Michael , &c. with condition , that if the said Rent shall be behind by the space of ten days , &c. that it shall be lawful to the Lessor to re-enter : And afterward at the Feast of the Annunciation , 31 Eliz. the Rent was behind , and the tenth day after the Lessor came to the said House a quarter of an hour before the sun setting and demanded the rent in these words , I demand three pound ten shillings for a half years rent of this House now due , and there continued till the Sun was set , but no Rent was paid : But note , that the Issue was , If he came to the House half an hour before Sun set , and there continued demanding the half years Rent of the Premises due at the Feast of the Annunciation of our Lady then last past . It was moved by Fenner , That upon this Verdict the Issue is not found for the Plaintiff , i. the Issue was upon the half hour , and the quarter part of the hour was found , 2. the Issue was , If the demand were of the Rent due at the Feast of the Annunciation passed , and the Verdict is for Rent due at the time of the demand , &c. And it was the opinion of Anderson , Periam , and Walmesley , Demand of Rent . That as to the first point the Verdict was good enough for the Plaintiff : Windham contrary . But it was agreed by them all , That if in demand of Rent ( ut supra ) the Lessor , or any on his part doth demand one penny more or less than is due , or in his demand doth not shew the certainty of the Rent , and the day of payment of it , and when it was due , the demand is not good , Conditions taken strictly . for a condition which goes in defeazance of an estate is odious in Law , and no re-entry in such Case shall be given , unless the demand be precisely and strictly followed .

CCCCXXV . Elmes and Meldcalfes Case . Mich. 32. Eliz. In the Common Pleas.

IT was holden for Law by the whole Court , 1 Cro. 189. That if one of the witnesses after the Iury are departed from the Bar , doth repeat unto the Iury the same Evidence which he gave before and no more , That that doth make the Verdict to be void .

CCCCXXVII . Carter and Claycoles Case . Mich. 32 & 33 Eliz. In the Common Pleas.

Leases More 593. 4 Co 76. IN Ejectione firmae by Carter against Claycole , the Plaintiff declared upon a Lease made by the Wardens and Fellows of All-souls Colledge , 1. July , 10 Eliz. And it was found by special Verdict , That Overden Warden of the said Colledge , and the Fellows , &c. leased unto the Plaintiff , To have and to hold from the Feast of the Annunciation next following , to the end of twenty years , and made a letter of Attorney to one to enter into the said Manor , and to seal and deliver the Deed of the said Lease in their names to the Plaintiff , who by force thereof entred into part of the demised Premises , and there did seal and deliver the same , &c. But it was not found that any rent was reserved thereupon ; And if this Lease were goo● , Then the Iury found for the Plaintiff ; but if not , then for the Defendant : Cooper Serjeant , It hath been objected , That this Lease being but for twenty years , is not warranted by the Statute of 13 Eliz. Cap. 10. For the words of the Statute are , Other than for the term of 21 years ; 5 Cr. 6. as to that , It was not the intent of the Statute , but only to abridge the great and long Leases heretofore made by Colledges , and to limit such Leases to a certain measure of time , ut supra , for twenty one years or three lives , & non ultra , but on this side as much as they would , which was granted by the whole Court : Another matter was because it is not found , That the due rent was reserved upon the said Lease ( accustomed yearly rent or more ) and yet the same is good enough , 1 Cro. 707. 708. Post . 333. for if the other party will take advantage of such defect he ought to shew the same , otherwise it shall be intended , because it is found that such Lease was made , that it was made according to the Statute : For if a man is to make title to himself by a conditional Lease , he is not to plead the condition , but only the Lease ; and if the other party will defeat the Lease by the Condition , he shall shew the same . And in this Case , The Defendant also ought to have shewed the Statute : by which such defective Leases are made void : Also it hath been objected , That by the Statute of 18 Eliz. the third part of the Rent ought to be reserved in Corn , and here is not found any Corn ; as to that , It is to be considered , that the said Statute is not a general Law , Special Statutes ought to be pleaded . whereof the Iudges are bounden to take notice , but it ought to be pleaded , for it extends but to four places , viz. Cambridge Oxford , Winchester , and Eaton , and therefore such a Statute ought to be pleaded , or given in Evidence , and found by Verdict : As where a man pleads a general pardon , in which divers persons are excepted , he ought to plead it specially , and shew , that he is not any of the persons excepted , 8 E. 4. 7. 28 H. 7. So special customs ought to be pleaded , Gavelkind , Borough-English , 21 E. 4. 55. 36. The King grants to the Citizens of Norwich , &c. And afterwards by Act of Parliament , all their Liberties , &c. are confirmed by a general confirmation to all Cities and Boroughs , this is a special Act , and ought to be pleaded ; by Brian , 59 , 13 E. 4. 8. The Lord Saies case , an Act of Parliament , That all Corporations made by the King H. 6. shall be void , is a special Act , and ought to be pleaded : And see 28 H. 8. 27. & 28. Dyer . If the Statute of 21 H. 8. cap. 13. Of Lands taken to Form by Ecclesiastical persons be a special Law : Yelverton contrary ; The Statute of 13 Eliz. is a special Law and ought to be pleaded , but the Statute of 13 Eliz. is now a general Law , which see Hollands case , 39 Eliz. and Damports case , 45 Eliz. And this Act of 13 Eliz. is general in respect of time , for it extendeth to all time after ( from henceforth ) and to all persons to whom such Leases shall be made , the words the Statute are , scil. To any person or persons , in respect of persons who shall lease , all spiritual persons : General in respect of the end , which is the maintenance of learning , which extends to the common profit , &c. Drew Serjeant , That this act of 13 Eliz. is general in respect of restraint only , and extends only to spiritual persons , and therefore ought to be pleaded , for otherwise the Court shall not take notice of it ; As the Statute of 23 H. 6. of Sheriffs ought to be pleaded , which see in the Case of Dive and Manningham , Plowden , 64 , 65. Co. 1 Inst. 45. And although the Statute ought to be pleaded , Yet this Lease is not void against the Warden who made it , but against his Successor , although no rent be reserved upon it , notwithstanding that the perclose of the Statute be ( utterly void and of none effect , to all intents , constructions , and purposes ) So upon the Statute of 1 Eliz. concerning Leases made by Bishops , the Law had been so taken in the case of the Bishop of Coventry and Lichfeild upon a Grant of the next Avoidance , That although it doth not bind the Successors , yet it shall bind the Grantor himself . So here this Lease being made by the present Warden and Fellows of the Colledge aforesaid , although it be not sufficient to bind the Successor , yet it shall bind the Warden who made the Lease . Puckering contrary ; And as to the case of 13 E. 4. 8. the reason there is , because there is an Exception in the said Statute of divers Grants made by King H. 6. and therefore the said Act ought to be specially pleaded : And see 34 H. 6. 34. by Prisoit : But in this Act of 13 Eliz. there is not any Exception , and although it be a general Act with a Restraint , yet such an Act ought not to be pleaded , and therefore 27 H. 8. 23. in an Action upon the Statute of 21 H. 8. for taking of Lands to Ferm by spiritual persons , he need not make mention of the Statute : And afterwards , the Iustices did advise upon this point , whether the Lease be so void , that it be void against a stranger : So as the Defendant who doth not claim under the Colledge , and who hath no title to the Land may avoid it . And Periam Iustice denied the Case put by Puckering : A. morgages Lands to B. upon a usurious contract for one hundred pounds , and before the day of payment B. is ousted by C. against whom B. brings an Action , C. cannot plead the Statute of Vsury , for he hath no title : For the estate is void against the Mortgagor . Another Exception was taken to the Declaration , because the Plaintiff had declared , upon a Lease by the Warden and Fellows , without naming any name of the Warden , 13 E. 4. 8. 18 E. 4. 8. In Trespass the Defendant doth justifie , because that the Free-hold was in the Dean and Chapter , and he as Servant , and by their commandment entred ; And Exception was taken to that Plea , because he hath not shewed the name of the Dean , scil. the proper name : So if a Lease be made by Dean and Chapter in these words , Nos Decan . & Capituli , the same Lease is void , which was granted by the Court : and 12 H. 4251. A Provost granted an Annuity by the name of Provost of such a Colledge , without any name of Baptism , and afterwards the Grantee brought a Writ of Annuity against the Successor of the said Provost ; and by Hull , The Writ is well enough , but the Christian name ought to be set down in the Writ : So here , because that the name of Baptism of the Warden is not in the Declaration , the same is not good : But the opinion of the whole Court was , That the Declaration is good enough , and they did rely especially upon the Book of 21 E 4. 15 , 16. Where Debt is brought by the Dean and Chapter without any Christian name , and the Writ holden good : Anderson : It stands with reason , That for as much as the Colledge was incorporated by the name of Warden and Fellows , and not by any Christian name that they may purchase and lease by such name without any Christian name , and may be impleaded , and implead others by such name , and as the Fellows in such case need not to be named by their Christian names , no more ought the Warden : But of a Parson , Vicar , Chauntry Priest , it is otherwise , for in such case the name of Baptism ought to be added : It was also objected , That because the Letter of Attorney was to enter in the Manor , and all the Lands and Tenements of the Colledge in such a Town , and to seal the Indenture of Lease in the name of the Lessors , and to deliver it to the Plaintiff as their Deed ; now the Attorney in executing of this Warrant hath not pursued it , for he hath only entred into the Lands , but it is not found that he entred into the Manor , and so the Lease is void . And it was said by Puckering , That if I lease two Acres in two several Counties , rendring for the one Acre 10 s. and for the other Acre 10 s. and make a Letter of Attorney to make Livery in both ; if the Attorney entreth into one Acre and makes Livery , the same is void , for the Attorney hath not pursued his authority , for peradventure I would not have leased the Acre whereof Livery is made for such rent of 10 s. being perhaps of greater value , but with the other Acre which was of lesser value , and so the mis-executing of my warrant shall prejudice me . Windham , Perhaps if one entire Rent had been reserved out of both Acres , it may be that by the Livery in one Acre all is void : But by Puckering , one entire Rent cannot be reserved upon such a Lease of two Acres in several Counties . Walmesley denied the Case put by Puckering , for the authority is executed well enough , for it doth not appear upon the Verdict , but that the Colledge was in possession at the time of the Lease made , and then there needed not any such Entry , but the bare sealing and delivery of the Attorney is good enough . And also it doth not appear by Verdict , That the Colledge hath any Manor , and therefore it shall be so intended ; and then the Case is no other but that , A man leaseth a Manor , and certain Lands in D. and makes a Letter of Attorney to make Livery of them , where he hath nothing in the Manor , and the Attorney makes Livery of the Land without medling with the Manor , the same is a good Livery , and the authority duly executed : But if it had been expresly found , that the Colledge had such a Manor there , then the Entry in the Land only , without medling with the Manor , and the Livery made accordingly , should not be good : But yet afterwards he seemed to be of other opinion . And as to that which hath been objected , That the Lease is void to all intents and purposes , according to the words of the Statute ( for by some it cannot be resembled to the case cited before , of the Bishop of Coventry and Lichfeild , that such a Grant should bind him and not his Successors ; ) for if this Grant in our Case shall not be void presently , it shall never be void ; for the Colledge never dieth no more than Dean and Chapter , Mayor and Commonalty . To that it was answered by Drew , That although there be some difference betwixt such Corporations , and that the words of the Statute are general ( void to all intents , constructions , and purposes , ) yet they shall construed according to the meaning of the makers of the Act , whose scope was to provide for the Successors , and not for the present Incumbent , and to the utter impoverishing of all Successors , without any respect to the party himself , as it appeareth by the preamble of the said Statute ; where it is observed , That by long and unreasonable Leases , the decay of Spiritual Livings is procured ; for the remedying and preventing of which long Leases this Act was made , and that the Successors should not be bound thereby . And these Leases are not void , simpliciter sed secundum quid , i. e. as to the Successors : As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women , &c. shall be void and of none effect ; yet such a Discontinuance made is good against the Woman her self : So upon the Statute of 1 Eliz. concerning Bishops . See now Coke , Lincoln Colledge Case , 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute , shall not be void untill after the death of the Dean , who was party to the Lease . So upon the Statute of 13 Eliz. of fraudulent Conveyances , such fraudulent Conveyance is not void against the Grantor , but against those who are provided for by the said Statute , and that the Lease in the principal case is not void , but voidable , all the Iustices agreed to be avoided by the Colledge , or any other who claim by it ; and by Anderson , If such a Lease should be void , then great mischief would fall to the Colledge , for whose benefit this Statute was made , for if such Lease be made rendring a small Rent , then if before the defect be found or espied the Rent was arrear , the Colledge could not have remedy for the said Rent . Also by Periam , Such a Lessee might have an Action of Trespass against a stranger , who entreth upon the Land , which proves that the Lease is not void , but voidable ; and afterwards notwithstanding all the Objections , Iudgment was given for the Plaintiff , and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case , cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants , and thereupon an Action was brought , and the Plaintiff therein had Iudgment and recovered , which could not have been if the Lease were utterly void against the Lessor and Lessee , as the very words of the Statute are , and although it is not alledged in the Book , that that was any cause of the Iudgment , yet in his opinion it was the greatest cause of the Iudgment in that case .

CCCCXXVIII . Bighton and Sawles Case . Pasch. 35 Eliz. In the Common Pleas.

IN an Action upon the case , it was agreed by the whole Court , 1 Cro. 235. That where Iudgment is given , that the Plaintiff shall recover , and because it is not known what damages , therefore a Writ issueth to enquire of the damages , That the same is not a perfect Iudgment before the damages returned and adjudged , and therefore they also agreed , that after such award , and before the damages adjudged , that any matter might be shewed in Court in arrest of the Iudgment ; and by Periam Iustice , the difference is , where damages are the principal thing to be recovered , and where not ; for if damages be the principal , then the full Iudgment is not given until they be returned ; but in Debt where a certain sum is demanded it is otherwise .

CCCCXXIX . Maidwell and Andrews Case . Pasch. 33 Eliz. In the Common Pleas.

MAidwell brought an Action of Covenant against Andrews , Covenant . and the Case was this , That R. was seised of Lands , and leased the same for life , rendring Rent ; and afterwards devised the Reversion to his wife for life , and died . Andrews the Defendant took to wife the wife of the Devisor , the Devisee of the Reversion ; afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life , and afterwards granted the Rent to the Plaintiff , and covenanted that the Plaintiff should enjoy the said Rent during his Term , absque aliquo legitimo impedimento of the said Andrews , his Heirs or Assigns , or any other person , claiming from the said Marland . Marland died seised , and the same descended to B. his heir , and the breach of the Covenant was assigned , in this , i. in the heir of Marland , who hath the Rent by reason of the Grant of the Reversion to Marland , ut supra , the Defendant pleaded the Grant of the Reversion to Marland , per scriptum ( without saying , Sigillo suo sigillat . & hic in Curia prolat . ) absque hoc , that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law , and the causes of the Demurrer was assigned by Yelverton Serjeant . 1. The Grant of the Reversion is pleaded per sciptum , and he doth not say ( sigillat . ) for a Reversion cannot pass without Deed , although it be granted but for years ; and a bare writing is not a Deed without sealing of it , and therefore the pleading ought to be per scriptum suum sigillat . or per factum suum ; for factum suum implies the ensealing and delivery . 2. It ought to be pleaded hic in Cur. prolat . for the Court is to see such Deed , to the end they may know if it be a lawful Deed , Traverse . 1 Cro. 278. without razure , interlining , or other defects . 3. The Defendant hath traversed the descent , where he ought to have traversed the dying seised ; for of every thing descendable the dying seised is the substance , and the descent is but the effect : And although the Grant of the Reversion was but for the life of the Grantor , yet the estate granted is descendable , as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs , the Grantor dieth , his Heir entreth , and a good Bar against him in the Reversion ; and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life , the Grantor dieth , living Cestuy que vie , the Heir of the Grantor brings a writ of Annuity , and it was holden maintainable ; and he said , that were the dying seised is confessed and avoided by the other side , there the Descent is traversable , and not the dying seised , and that was the Case betwixt Vernon and Gray . Vernon and Grays Case . In an Avowry Vernon conveyed the Lands from the Lord Powes to him , as next Heir to him , because the Lord Powes died seised in his Demesn as of Fee without issue , and the Plaintiff conveyed from the said Lord Powes by Devise , and traversed the Descent to the Avowant , for the dying seised was confessed and avoided by the Devise , 22 Eliz. Dyer 366. See 21 H. 7. 31. In Trespass the Defendant saith , That T. was seised , and died seised , and that the Lands descended to him as Son and Heir , and that he entred ; the Plaintiff said , That T. was seised , and took to wife K. and they had issue the Plaintiff , and died seised , and the Land descended to him , and teaversed the descent to the Defendant ; and see Sir William Merings Case , 14 H. 8. 22 , 23. But if the parties do not claim by one and the same person , or the dying seised be not confessed and avoided , there the dying seised shall be traversed , and not the descent . Glanvil Serjeant , Be the Bar insufficient or not , if the Declaration be not sufficient , the Plaintiff shall not have Iudgment , and here is not any breach of Covenant , viz. that the Plaintiff shall enjoy it without any lawful impediment of the Defendant , his Heirs or Assigns , or any claiming by Marland , and then if the Heir of Marland cannot make any lawful claim , then there is not any breach of Covenant assigned ; and he said , because it is not shewed that the Land is not holden in Socage , the Devise is not good , for it may be that the Land is holden in Capite : but admit the Devise good , that when Andrews bargains and sells unto Marland , and the Tenant never attorns , then nothing passeth , and then the Heir of Marland cannot make any lawful claim or lawful impediment . Periam Iustice , Here Marland was assignee of Andrews , and if he or his heirs make claim , although that the assignment be not sufficient in Law , yet because he hath colour by this assignment his claim is lawful , and so there is a breach of the Covenant ; and although it is not alledged , that the Land devised is holden in Socage , yet the Devise is good for two parts of the Land . Anderson Iustice , If it be good but for two parts , then is the Reversion apportioned , and the Rent destroyed , and so Marland hath not any Rent by his purchase of the Reversion , and so he can't lawfully disturb the Plaintiff . The Law doth create his apportionment , which grows by the Devise , and therefore the Rent shall not be destroyed ; but if it had been done by the Act of the party , it had been otherwise ; and I would willingly hear , if the Heir of Marland be assignee of Andrews , for otherwise he is not within the words of the Covenant , for Marland hath an estate to him and his heirs for the life of another : Now after the death of Marland , his heir is a special occupant , and vide H. 26 Eliz. Rot. 560. in the Common Pleas , such an Heir shall not have his age .

CCCCXXX . Oglethorpe and Hides Case . Pasch. 33 liz . In the Common Pleas.

IN Debt upon a Bond for the performance of Covenants , Debt . it was holden by the whole Court , That if the Defendant pleaded generally the performance of the Covenants , and the Plaintiff doth demur generally upon it without shewing cause of Demurrer : Iudgment shall be given according to the truth of the cause , for that default in pleading is but matter of form , and is aided by the Statute of 27 Eliz. But if any of the Covenants be in the disjunctive , so as it is in the Election of the Covenantor to do the one or the other , then it ought to be specially pleaded , and the performance of it , for otherwise the Court cannot know what part hath been performed .

CCCCXXXI . Tracy and Ivies Case . Mich. 32 Eliz. In the Common Pleas.

IN Dower by Margaret Tracy against Ivie , the Case was , Dower . That John Finch was seised , and enfeoffed Shipton and others of two parts of the Lands to the use of himself and the Defendant his then wife , and their heirs for ever , with Condition , That if his said wife did survive him , Co. 4. Vernons Case . she should pay such sums of mony not exceeding two hundred pounds , to such persons which the Feoffor by his last Will should appoint ; and afterwards he declared his Will , and thereby appointed certain sums of mony to be paid to divers persons , amounting in the whole to the sum of one hundred and fifty one pounds , and by his said Will devised the residue of his Lands to divers of his Kindred , having no issue , and died ; The wife married Tracy , and they brought Dower against the Devisees , who pleaded the Feoffment aforesaid , and averred the same was made for the Ioynture of the Demandant . And because that no other matter or circumstance was proved to verifie the Averment , the Court incited the Iury to find for the Demandant , which they did accordingly .

CCCCXXXII . Bond and Richardsons Case . Mich. 32 Eliz. In the Common Pleas.

IN Debt upon a Bond , Debt . 1 Cro. 142. the Condition was to pay a lesser sum such a day , and at such a place the Defendant pleaded payment according to the Condition , upon which they were at issue . And it was found by Verdict , That the lesser sum was paid such a day before the day contained in the Condition of the Bond , and then received ; and upon this Verdict Iudgment was given for the Plaintiff , for the day is not material , nor the place , but the payment is the substance .

CCCCXXXIII . Marshes Case . Trin. 32 Eliz. In the Common Pleas.

Trover had Conversion . GOods came to a Feme covert by Trover , and she and her Husband did convert them to their own use . It was holden per Curiam , That the Action upon the Case shall be brought against the Husband and Wife , and not against the Husband only , for the Action doth sound in Trespass , and it is not like unto Detinue ; for upon a Detainer by the Wife , the Action lieth against the Husband only .

CCCCXXXIV . Corbets Case . Trin. 32 Eliz. In the Common Pleas.

Debt . 2 Len. 60. AN Action of Debt was brought by Original Writ against an Administrator in another County than where the Administrator was commorant , and before notice of the Suit he paid divers Debts of the Intestate due by specialty , and so he had not Assets to pay the Debt in demand , having Assets at the day of the Teste of the Original . And now , Plainment Administred . 1 Cro. 793. the Defendant appearing , pleaded this special matter , and concluded , so he had nothing remaining in his hands . And it was holden per Curiam , to be a good Plea. See 2 H. 4. 21 , 22.

CCCCXXXV . Gillam and Lovelaces Case . Mich. 32 Eliz. In the Common Pleas.

Administration . KAtharine Gillam , Administratrix of John Gillam , brought Ejectione firmae against Leonard Lovelace , and upon not guilty pleaded , it was found for the Plaintiff . It was moved for the Defendant in arrest of Iudgment , That the Declaration was not good , because the granting of Letters of Administration is set forth in this manner , viz. Administratio commissa fuit Querenti per Willielmum Lewen Vicarium generalem in spiritualibus Epi. Roff. without averring , that at the time of the granting of the Letters of Administration , the Bishop was in remotis agendis , for a Bishop present in England cannot have Vicarium : But as to that , it was said by the whole Court , That the Vicar general in Spiritualibus , amounts to a Chancellor , for in truth the Chancellor is Vicar general to the Bishop . Another Exception was , because the Declaration is not Epi. Roff. loci illius Ordinarii ; but that was not allowed , for all the presidents and course of the Court is , That by way of Declaration such allegation needs not , but by way of Bar it is necessary . Another Exception was taken , because the Plaintiff hath declared of an Ejectment , and also quod bona & catalla ibidem invent . cepit , &c. And here , in the Verdict the damages , as well for the Ejectment as for the Goods and Chattels , are entirely taxed . It was adjorned .

CCCCXXXVI . Greeves Case . Mich. 32 Eliz. In the Common Pleas.

IN a Replevin , Replevin . the Defendant made Conusans as Bayliff to one Greeves and Rockwood , &c. and said , That A. was seised of the Lands , and 6 Eliz. enfeoffed certain persons in fee to the use of his last Will , by which he willed , that his Feoffees should stand seised of the said Lands , Devises . Poph. 188. until the said Greeves had levied of the profits of the said Lands the sum of one hundred pounds . It was objected against this Conusans , that here is no devise , for A. at the time of the devise had not any Feoffees ; but the Exception was disallowed by the Court : And they cited the case of 15 Eliz. Dyer 323. Lingens case , A. made a Feoffment in fee to his use , and afterwards devised that his Feoffees should be seised to the use of his Daughter , that the same was a good devise of the Land . See 29 H. 8. Br. Devises 48.

CCCCXXXVII . Kempton and Coopers Case . Mich. 31 & 32 Eliz. In the Common Pleas.

IN Trespass for breaking of his Close , the Defendant pleaded , Bar. 3 Len. 194. that before this he had brought an Ejectione firmae against the now Plaintiff and recovered , and had Execution , &c. Iudgment , if Action , &c. And by Periam , Windham and Anderson Iustices , the same is a good Bar , and the conclusion of the Plea is also good . Iudgment , if Action , without relying upon the Estoppel .

CCCCXXXVIII . Leigh and Okeley and Christmass Case . Mich. 32 Eliz. In the Kings Bench.

OLiphe Leigh Fermor of the Queen of a Wood called Meerherst Wood in Warplesden in the County of Surrey , brought an Action of Trespass against Henry Okeley and Robert Christmass for breaking of the said Wood , and therein entring and cutting down of two hundred loads of Wood , and carrying away the same , &c. The Defendants pleaded , That before the time in which the Trespass was supposed , &c. That King H. 8. was seised of the Manor of Warplesden , Custom . whereof the said Wood was parcel , of which Manor a Close called Withybod containing eleven Acres , eidem bosco adjacent . was parcel , and that the said Wood is , and time out of mind , &c. was closed and separated with Hedges and Ditches from the said eleven Acres , which said Hedges and Ditches , per totum tempus praedict. fuerunt & adhuc sunt praedict. bosco spectant . & pertinent . And that the said eleven Acres are , and time out of mind we●● customary Lands , parcel of the Manor aforesaid , and demised and demisable in Fee-simple : And that the said King H. 8. at a Court holden 38 H. 8. by his Steward demised the said eleven Acres by copy , to John Goring and his Heirs , and that within the said Manor there is this Custom , That every Copyholder , Tenant of the said eleven Acres , &c. hath used and accustomed , per se vel servientes suos per eorum praecept . succidere , capere , & asportare subboscum in praedict. bosco in quo , &c. pro reparatione praedictarum sepium & defensionum inter praedict. boscum in quo , &c. and the said eleven Acres , &c. quandocunque eaedem sepes & defensiones in decasu extiterint ; and shewed further , That at the time of the Trespass , &c. the said Hedges and Fences were in decay , and so justified : Vpon which the Plaintiff did demur in Law. It was argued by Godfrey , That the Prescription is not good ; for it appeareth , that this customary Land is contigue adjacens to the said Wood , i. where the Trespass was done : And of common Right , the making of the Hedge doth appertain to the Owner of the Wood : And the Prescription is no more , but to take Wood in the Lands of another adjoyning to my Land , to make the Hedges of the same Land in which the Wood groweth , which cannot be a good Prescription , for it sounds in charge , and not to the profit of him who Prescribes : Which see 22 E. 3. Prescription 40. Trespass against an Abbot , because where the Plaintiff was Farmor of the King of his Hundred of D. and by reason thereof he might make Attachment , and distrain for the Debts of the King within the said Hundred , and where for a certain debt of the King he distrained the Beasts of one A. and the Abbot made Rescous ; to which the Abbot said , That he was Lord of the Manor of D. within which Manor there was this custom , &c. That if any Distress be taken within the said Manor , that the same should be put into the Pound of the said Abbot of the same Manor , and not driven out of the Manor , and there ought the Distress to remain three days , so that if the party would agree within the three days , that then he should have his Beasts ; and he said , That the Plaintiff would have driven the said Beasts out of the said Manor , and that he would not suffer him , upon which there was a demurrer , because it is not any profit to the Abbot , but a charge to keep the Beasts of another . Also he said , That the King shall not be bound by such a custom as another person shall , whereupon Iudgment was given for the Plaintiff : So here in the principal case , There shall be no damage to the Defendant if the Wood be not fenced ; for if his Cattel escape into the Wood he may justifie it , because it is in default of the Plaintiffs inclosure : And if the Beasts of the Plaintiff escape into the Lands of the Defendant , he may take them Damage Feasant for the cause aforesaid , 21 H. 7. 20. A Custom is pleaded , That if any Tenants of the Manor shall take the Cattel of any one Damage Feasant , and shall therefore distrain them , that then the Tenant so distraining them ought to bring them to the Lords Pound , which if he shall not do , at the next Court he shall be amerced in a certain sum to the Lord of a Manor to be paid , and that was holden no good custom , because it is against common Right , and the common Law ; for by the common Law and common Reason , every one finding Cattel in his own Land Damage Feasant may impound them in his own Land , and the Lord is not damnified thereby : So it is of a By-law , That every one who holdeth so many Acres of Lands in such a Town , shall yearly pay a certain sum of mony to the Church of the same Town , and shall forfeit for every default of payment thereof twenty pounds , such By-law , although it hath continued time out of mind , yet it is not of any validity , because for not payment of the said sum to the Church , the Lord of the Manor is not damnified , and therefore he shall not have any gain ; contrary if the penalty had been limited to the Church-wardens , because they are bound to repair the Church . Another Exception was taken to the form of the Prescription ( Quandocunque eaedem sepes & defensiones in decasu extiterint ) and that is too general , for so they might be in decay by his own default , as if he himself wrongfully pull up the Hedges , in which case there is no reason but that he should repair them at his own costs and charges , and therefore he ought to have pleaded cum in de casu extiterint in the default of the Tenant of the Wood. Another Exception was taken , because that here this custom is pleaded particularly , and appropriated to the eleven Acres only , and is not extended to the whole Manor ; and to that purpose the case of 40 E. 3. 27. was cited , where a custom is applied to one part of a Town , as to say that such a House within such a Town is of the nature of Gavelkind , and the rest of the Town is guildable . See 21 Eliz. Dyer 363. It was adjorned , &c.

CCCCXXXIX . Hare and Okelies Case . Hill. 20 Eliz. In the Common Pleas.

MIchael Hare , and others , Trespass . brought an Action of Trespass against Okelie for breaking of their close , and carrying away their corn ; And upon Not guilty , it was found by special Verdict , That the said Michael Hare was sole seised of the said Close , where , &c. and so seised , exposuit ad culturam , Anglice , did put forth to Tillage the said Land to the other Plaintiffs in form following , viz. That the said Michael should find one half of the Corn sowed , and the other Plaintiffs the other half , and that the said Land should be ploughed and tilled , and the Corn thereof coming should be reaped and cut at the charges of the other Plaintiffs , and so cut should be divided by the Shock , and the said Michael to have the one half , and the other Plaintiffs the other half , &c. And it was the opinion of the whole Court , That notwithstanding these words ( exposuit ad culturam ) that no estate in the soil passed to the other Plaintiffs , Exposition of words . but the said Michael did remain sole seised as before ; but by Anderson , upon the severance of the Corn , peradventure a property in the said Corn might be in all the Plaintiffs : But because it appeareth , that Michael was sole seised , and the other Plaintiffs had not any thing in the Land : Therefore it was adjudged , that they could not joyn in the Action of Trespass for breaking of the Close ; and therefore it was awarded by the Court , that the Plaintiffs nihil Cap. per breve .

CCCCXL. Beares Case . Trin. 30 Eliz. In the Common Pleas.

IN a Formedon by Beare , Formedon . the Defendant pleaded in Bar a warranty with Assets : And upon the Issue nothing by descent , it was found , That the Ancestor of the Defendant whose warranty was pleaded in Bar , was seised of Land in the nature of Gavelkind , Bar. and by his Will devised the same to his two Sons ( whereof the Defendant was the Eldest ) and their heirs equally between them to be divided ; and it was adjudged no Assets , wherefore the Defendant had Iudgment to have seisin of the Land .

CCCCXLI . Austin and Smiths Case . Pasch. 30 Eliz. In the Kings Bench.

THe Case was , Copyholder of Grants . That Austin being a Copyholder by License of the Lord leased his Copyhold to Smith for years , rendring rent , and afterwards by Deed granted the rent to another , to have during the Term , &c. to which Grant the Lessee did attorn , Rents . 1 Cro. 637. 651. 895. 1 Roll. 598. 1 Inst. 317. a. Litt. 151. b. 152. a. and paid the Rent to the Grantee : It was holden by Gawdy Iustice , That the Grant was good , but now it is but a Rent-seck : And it was said by some , That the Lessor cannot surrender such a Rent , unless he surrender the Reversion also . Quaere , if the Grantee may have an Action of Debt for it . It was conceived he could not , for he is not party nor privy to the Contract , nor hath the Reversion .

CCCCXLII . Underhill and Savages Case . Pasch. 31 Eliz. In the Kings Bench.

SAvage was presented to a Benefice , and afterwards was presented to another , Pluralities . and then purchased a Dispensation ( which was too late ) and then was qualified , and afterwards accepted the Archdeaconry of Gloucester : And Underhill who had the Archdeaconry libelled in the Spiritual Court against the said Savage , where it is holden that all Ecclesiastical Promotions in such cases are void , and now Savage sued a Prohibition . Prohibition . It was argued by Atkinson , That the Prohibition did lye , for the Patron hath his remedy by our Law , by a Writ of Right of Advowson . See 29 E. 3. 44. If Avoidance be by Cession or Deprivation , and the next Presentment come in question , it shall be determined by the Kings Court ; and here when he accepteth of another Benefice , it is cession by the Common Law , but there ought to be a Sentence ; but now there needs not any Sentence , for by the Statute of 21 H. 8. Archdeaconry . 13. the Church is ipso facto void . But it was objected , An Archdeaconry is not within the Statute , for it is not any Cure with Souls : also an Archdeaconry is a late Promotion , and therefore it cannot be void by the Statute . Lewknor contra . The Patronage here doth not come in debate ; but if the Defendant in the Spiritual Court will plead , That the Plaintiff is not Patron , but such an one , then a Prohibition lieth : withal the Iustices granted , and it was said by Wray , That a Doctor of the civil Law had been with him , and affirmed to him that their Law is , That if one having a Benefice with cure of Souls accepts an Archdeaconry , the Archdeaconry is void ; but he said , That he conceived that upon the Statute of 21 H. 8. the Law is qualified by reason of a Proviso there , scil. Provided that no Deanry , Archdeaconry , &c. be taken or comprehended under the name of a Benefice , having Cure of Souls , in any Article above specified .

CCCCXLIII . Pasch. 30 Eliz. In the Kings Bench.

A●i●d ONe was bounden to stand to the award of two Arbitrators , who award that the party shall pay unto a stranger or his assigns 200 l. before such a day , the stranger before the day dieth , and B. takes Letters of Administration ; and if the Obligor shall pay the mony to the Administrator , or that the Obligor should be discharged was the Question ; and it was the opinion of the whole Court , that the mony should be paid to the Administrator , for he is Assignee : and by Gawdy Iustice , If the word Assignee had been left out , yet the payment ought to be made to the Administrator , quod Coke affirmavit .

CCCCXLIV . Pasch. 30 Eliz. In the Kings Bench.

ONe sued in the Kings Bench for Costs given upon a Suit depending in the Hundred Court , and the sum of the Costs was under 40 s. and the Plaintiff declared , Steward . That at the Court holden before the Steward , secundum consuetudinem Manerii praedict . It was objected , that the Steward is not Iudge in such Court , but the Suitors ; to which it was answered by the Iustices , That by a Custom in a Hundred Court a Steward may be Iudge , and so it hath been holden ; and here the Plaintiff hath declared upon the Custom , for the Declaration is secund. consuetudinem Manerii , also the Subject may sue here in the Kings Bench for a lesser sum than 40 s. as if 10 s. Costs be given in any Suit here , Suit to such costs lieth here in this Court.

CCCCXLV . Pigot and Harringtons Case . Mich. 30 & 31. Eliz. In the Kings Bench.

PIgot brought a Writ of Error upon a Fine levied by him within age , Error . 1 Cro. 11. the Case was , That the Husband and Wife were Tenants for life , the Remainder to the Infant in Fee , and they three levied a Fine , and the Infant only brought the Writ of Error . It was objected by Tanfield , that they all three ought to joyn in this Writ , and the Husband and Wife ought to be summoned and severed . Atkinson contrary , for here the Husband and Wife have not any cause of action , but the Infant only is grieved by the Fine , 35 H. 6. 19 , 20 , 21 , &c. In conspiracy against many , it was found for the Plaintiff , and one of the Defendants brought Attaint , and assigned the false oath in omnibus quae dixerunt , but afterwards abridged the assignment of the false oath , as to the damages , and so the attaint well lies . Two women are Ioynt-tenants , they take Husbands , the Husbands and their Wives make a Feoffment in Fee , Attaint . the Husbands dye , the Wives shall have several Cui in vita's , for the coverture of the one was not the coverture of the other , 7 H. 4. 112. In Appeal against four , they were outlawed , and two of them brought Error upon it , and good , 29 E. 3. 14. In Assize against three Coparceners , they plead by Bailiff , nul tenent de Franktenement , &c. and found that two of them were disseisors and Tenants , and that the third had nothing , and afterwards the three Coparceners brought attaint , and after appearance , the third Sister , who was acquit , was nonsuit , and afterwards by Award the Writ did abate . Tanfield , Although that the cause be several , yet the erronious act was joynt , and the receiving of the Fine , and that Record being entire , ought to be pursued accordingly , and then the Husband and Wife shall be summoned and severed , and it is not like to the case of 29 E. 3. cited before , for there the third coparcener had not any cause of attaint , for no verdict passed against her . Wray , As the Error is here assigned , the Writ is well brought , for the Error is not assigned in the Record , but without it in the person of the Infant , Fine upon an Infant reversed . and that is the cause of the Action by him and for no other . Two Infants levy a Fine , although they joyn in Error , yet they ought to assign Errors severally , and they may sue several Writs of Error ; and afterwards it was holden by the Court that the Writ was good , and the Fine reversed as to the Infant only .

CCCCXLVI . Scovell and Cavels Case . Mich. 30 & 31. Eliz. In the Kings Bench.

IN Ejectione firmae by Scovell against Cavel , Leases . 1 Cro. 89 the Declaration was general upon a Lease made by William Pain , and it was found by special verdict , That William Leversedge was seised of the Lands , &c. and leased the same to Stephen Cavel , John Cavel , and William Pain , habend . to them for their lives and for the life of the survivor of them , Provided always , and it was covenanted , granted and agreed betwixt the parties , that the said John Cavel , and William Pain , should not take any benefit , profit or commodity of the Land , during the life of Stephen Cavel , and further that the said William Pain should not take any benefit , &c. during the life of John Cavel , &c. Stephen Cavel died , John Cavel entred , and afterwards William Pain entred , and made the Lease to the Plaintiff , upon whom the Defendant entred ; and if the Entry of William Pain were lawful was the Question . Gawdy Serjant , his Entry is not lawful . It will be agreed , That if a man lease to three for their lives , they are Ioynt-tenants , but if by the habendum the estate be limited to them by way of Remainder , the joynt estate in the Premises is gone , and the Land demised shall go in Remainder ; and I agree that in deeds Poll , the words shall be taken strong against the grantor , contrary in the Case of Indentures , the words there shall be taken according to the intent of the parties , for there the words are the words of both : See Browning and Beestons Case 2. and 3. Ma. Plowd. 132. where by Indenture the Lessee covenanted to render and pay for the Land Leased such a Rent , the same is a good reservation , although it be not by apt words , and here in our Case , this Proviso and Covenant , Grant and Agreement doth amount to such a limitation by way of Remainder , especially when such a clause followeth immediately after the Habendum . Coke contrary : The Office of the Habendum is to limit and explain the estate contained in the premises , and here the Habendum hath done its Office , and made it a joynt estate , and therefore the Clause afterward comes too late , and in truth is repugnant and utterly void , as to such purpose ; but perhaps an action of Covenant lies upon it . Wray , It hath been by me adjudged , if a Lease be made to three Habendum successive , the same is a void word , and the Lessees are joynt-tenants ; contrary of Copyhold by reason of Custom ; and here the proviso and the clause following , is contrary to the Habendum , and repugnant , and so void , as to the dividing of the estate by way of Remainder , which Gawdy Iustice granted . Heale Serjeant , this case hath been adjudged , 16 Eliz. A Lease to three Habendum to the use of the first for life , and after to the use of the second for life , and after to the use of the third for life , the same is good . Clench Iustice , this proviso follows the Habendum , and is a sentence to explain the sentence . Wray , & Shute , it is another sentence , although it immediately follows the Habendum . Clench , if the words had been provided , that although it be limited , ( ut supra ) in the Habendum , scil . the first named shall have the Lands to himself for life , &c. it had been good by way of Remainder . Wray , Our case at Bar , is not that any person shall take the Remainder , but that any of them shall not take the profits during the life of the other . Tanfield took exception to the verdict , because the life of Pain is not found in the verdict . Coke , this is a verdict and no pleading , and the opinion of the Court was , that the verdict was good , notwithstanding the said Exception , and afterwards Iudgment was given for the Plaintiff .

CCCCXLVII . Hudson and Leighs Case . Mich. 30 & 31. Eliz. In the Kings Bench.

Appeal of Maheim . 4 Co. 43. RObert Hudson brought an appeal of Mayhem against Robert Leigh for maiming his right hand , and for cutting of his veins and sinews , which by that means are become dry , so as thereby he hath lost the use of his fingers . To which the Defendant pleaded , that heretofore the Plaintiff had brought against him an Action of Assault and Battery , and wounding , and therein had Iudgment to recover , and Execution was sued forth by Scire facias , and satisfaction acknowledged upon Record , Damages . of 200 Marks assisted by the Iury for the damages , and 11 l. 10 s. de incremento by the Court , with averment of all identities . Cooper Serjeant , the same is a good Bar , and although that an Appeal , and an Action of Trespass are diverse Actions in nature , and in many circumstances , yet as to the recovery of Damages , the one shall bind the other , See 38 E. 3. 17. a good case . In Trespass for breaking of his Close and Battery , the Defendant pleaded , that before that the Plaintiff by Bill in the Marshalsey hath recovered his Damages for the same Trespass , &c. and vouched the Record , and the Record was sent , the which was varying from the Record pleaded ; for the Record vouched , was only of Battery without any thing of breaking of the Close : and also the Battery is taxed at another day , &c. and with averment ; yet as to the Battery it was holden good enough with averment , and as to the breaking of the Close the Plaintiff had Iudgment , See 41 E. 3. brev. 548. 12 R. 2. Coronae 110. and the Case betwixt Rider Plaintiff and Cobham Defendant , Pasch. 19 Eliz. Rot. 74. it was clearly holden and adjudged , that after a Recovery in Trespass an Appeal of Maheim doth not lie ; and the Book which deceives the Plaintiff is 22 E. 3. 82. where it is said by Thorp , That notwithstanding Recovery in Appeal of Maheim , yet he may after recover in Trespass , but Non dicite contra . Popham contrary , the Plea in Bar is not good , for the Averment is , that the stroke and the wounding supposed in the Writ of Trespass , and in his Appeal of Maheim are all one , but it is not averred that any damages were given for the Maheim , or that the Maheim was given in Evidence ; for it might be , that there was not any Maheim when the Trespass was brought , but that after by the drying of the wound it became a Maheim , and then the Action did rise ; as if a man upon a Contract promiseth to pay me 10 l. at Michaelmas , and other 10 l. at Christmas , if he doth not pay the 10 l. at Michaelmas , I may have an Action upon the promise for the not payment of that 10 l. and afterwards I may have another Action and recover damages for the not payment of the 10 l. at Christmas , but if I do not begin any Action before Christmas , I cannot recover damages but once , for the whole promise , and damages shall be given in Evidence ; and if I be disseised , I may recover damages for the first Entry , and notwithstanding that I shall have an Assise , and if I do reenter , I shall have Trespass and recover damages for the mean profits , Ante 302. and the damages recovered for the first Entry shall be recouped ; and the Book cited before Fitz. Coronae 110 , doth not make for the Defendant , but rather for the Plaintiff , for there it is averred , that the Maheim was given in Evidence , in the Action of Trespass , which it is not in our Case . Egerton Solicitor , we have shewed , That succisio venarum , in this appeal specified is eadem succisio & vulneratio mentioned in the Trespass . Coke , Although the identity of the wounding and cutting of the veins are averred , yet it is not averred , that the damages recovered in the Trespass were given for this Maheim . Wray chief Iustice , The Iurors are to take consideration of the wound in an action of Trespass , and to give damages according to the hurt , and we ought to think that they have done accordingly , and if they have not so done , the party may pray that the Court by inspection would adjudge upon it , and so increase the damages : But now when the Iury hath given great damages , scil. 200 Marks , with which the party hath been contented , it should be hard to give the Plaintiff another Action , and if there be any such special matter , that it was not become a Maheim at the time of the Action of Trespass brought , but it is become a Maheim of later time by drying , the Plaintiff ought to have shewed the same to the Court , and so have helped himself , for otherwise it shall not be so intended , but that the averment made by the Defendant , is good enough to oust the Plaintiff of this Action ; and the Iudgment cited 19 Eliz. before , was given by me , after I was constituted chief Iustice , and this Bar as I conceive was drawn out of the pleading in 19 Eliz. and afterwards Iudgment was given against the Plaintiff .

CCCCXLVIII . Crosman and Reads Case . Mich. 30 & 31 Eliz. In the Kings Bench.

Intermarriage 1 Cro. 114. THe Case was , that I.S. made his wife his Excutrix and dyed , I. D. being then endebted to the Testator in sixty pounds upon a simple Contract , the Wife Executrix took to Husband the said I.D. I.D. made his Executor and dyed , a Creditor of I.S. brought an Action of Debt against the Wife Executrix of I.S. and upon the pleading , the matter in question was , Debt by Executors . If by the entermarriage of the wife with the Debtor of the Testator , the same was a Devastavit or not : And if the said Debt of sixty pounds due by I.D. should be Assets in her hands : And per Curiam , It is no Devastavit , nor Assets , as is supposed : For the woman may have an Action against the Executor of I.D. And it was agreed by the Court , that if a man makes his Debtor and a stranger his Executors , and the Debtor dieth , the surviving Executor may have an Action of debt against the Executor of the Debtor ; and so it was adjudged in the principal case .

CCCCXLIX . Wollman and Fies Case . Mich. 31 & 32 Eliz. In the Kings Bench.

Assumpsit . 1 Cro. 179. IN an Action upon the Case upon Assumpsit that the Plaintiff should enjoy such Lands for so many years : The Defendant pleaded the Statute of 13 & 14 Eliz. because the Land is the Glebe Land of such a Parsonage , and in truth the Defendant did mis-recite the Statute : For the Statute is , No Lease after the fifteenth day of May : And ( the pleading is hereafter to be made ) Secondly , the Statute is of any Benefice with cure ( the pleading is of any Benefice : ) Thirdly , The Statute is , without absence above eighty , and the pleading is ( without absence by the space of eighty ) days : And for these Causes the Plaintiff had Iudgment .

CCCCL . Frond and Batts Case . Trin. 31 Eliz. In the Kings Bench.

Debt . Payment to the wife not good . IN debt upon a Bond upon condition to stand to the Award of I.S. The Defendant pleaded , That the said I.S. had Arbitrated , that the Defendant should pay to the Plaintiff ten pounds , and he said he had paid it to the Plaintiffs wife who received it , upon which the Plaintiff did demur : And Iudgment was given for the Plaintiff .

CCCCLI . Trin. 31 Eliz. In the Kings Bench.

Grants of the King of the Office of Marshal of the Kings Bench. THe Queen granted to George Earl of Shrewsbury , An. 15. of her reign , the Office of Earl Marshal of England , and now came the said Earl and prayed , that I. S. one of his Servants , to whom he had granted the Office of Marshal of the Kings Bench might be to it , because the same is an Office incident to his Office , and in his power to grant , and that Knowles , to whom the Queen had granted the said Office of Marshal of the Kings Bench by the Attainder of North. be removed : And a President was shewed 14 & 15 Eliz. Betwixt Gawdy and Verney , where it was agreed , That the said office was a several office from the said great office , and not incident to it ; And as to the Case of 39 H. 6. 33 , 34. the truth is , the said office of Marshal of the Kings Bench was granted expresly by the Duke by express words , and so he had it not as incident to his office of Marshal of England : On the other side , there were three Presidents shewed , first in the time of E. 2. That the office of the Marshal of the Kings Bench was appendant to the said office of Marshal of England : Secondly , 8 R. 2. When the said great office was in the King , he granted the said office of Marshal of the Kings Bench : But 20 R. 2. both offices were rejoyned as they were before in ancient time , and there were also shewed Latters Patents of 4 E. 4. and 19 H. 8. by which it appeared , That the said inferiour office had time out of mind been part of the great office ; And it was moved , That when the said great office is in the Kings hands , and the King grants the said under office , if now this office be not severed from the great office for ever . Wray , It is no severance , for the chief office is an office of Dignity , which may remain in the King , but this under office is an office of necessity , and the King himself cannot execute it , by which of necessity he ought to grant it . Another matter was moved , If the Grant of the King unto the Earl of Shrewsbury were good , because in it the Grant to Verney of the said under office , is not recited according to the Statute of 6 H. 8. 9. As 26 E. 3. 60. The King seised of the Honor of Pickring , to which a Forrest was appendant , the Bayliwick of which Forrest he granted in fee rendring rent , and afterwards he granted the Honor with Appurtenances , and afterwards the Bailiff committed a Forfeiture , and that was found in Eyre , the Grantee of the Honor shall seise it , yet the King shall have the Rent : And here the Earl of Shrewsbury shall have this office in his power to grant ; And so much the rather because it was granted but for life .

CCCCLII . Michill and Hores Case . Trin. 31 Eliz. In the Kings Bench.

MIchil did affirm a Plaint in the Court of the City of Exeter against Hore for twenty pounds , and upon Nihil returned , Attachment of goods by custom of Exeter . it was surmised ; That Trosse had certain monies in his hands due to Hore , and according to the custom of Exeter the said monies were attached in the hands of Trosse , who appeared upon the Attachment , and pleaded , That he owed nothing to Hore , upon which there was a Demurrer , Error . and Iudgment given against Trosse because that Trosse ought to have pleaded , not only that he owed him nothing , but further that he had not any goods of Hores in his hands : And thereupon Trosse brought a Writ of Error , and assigned the Error in the principal matter , upon which it was demurred , and Iudgment given against the Plaintiff , because that the Plea of Trosse ( that he owed him nothing ) is good enough , for if there be not a Debt , it is not attachable upon such Attachment : And it is a good Plea to a common intent , and altogether in use in London , were such custom is : Another Error was assingned , for that Michill had recovered Costs against Trosse , where it ought not to be : And also Iudgment is not given , that Trosse should be discharged against Hore ; And afterwards the Iudgment given in Exeter was reversed .

CCCCLIII . Dennis and Saint Johns Case . Mich. 30 & 31 Eliz. In the Common Pleas.

Debt . 1 Cro. 494. IN Debt upon an Obligation , against Oliver Saint John , and Alice his wife , as heir of her Father : The Defendants pleaded , Non est factum of the Father : And it was found by special Verdict , That the Obligation was made by the Father of the Wife to the Plaintiff and another , whereas in truth , The Plaintiff hath declared upon an Obligation made to himself only without speaking of any other joynt Obligee , Non est factum . and that the Plaintiff as Survivor hath brought the Action , and if upon the matter it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared , the Iury refer unto the Court : And the case , 14 E. 4. 1. b. If three enfeoff me , and I plead , That two did enfeoff me and the same be traversed , it shall be found against me , for the Feoffment is a joynt act by them all : But if a man enfeoffeth me and two others , and they dye , so as I have all by Survivor , in pleading I may shew the Feoffment was made to me alone : So 46 E. 3. 17. a. Three Joynt-tenants in Fee make a Lease for life , and afterwards two of the Ioynt-tenants release to the third , who brings an Action of Wast against the Lessee , and the Writ was , That he held of his Lease only , and the Writ was awarded good . Walmesley , This Plea , Non est factum , upon this matter is no good Plea , for he hath not pleaded it Respective as to the Obligation , but generally , Non est factum suum , which refers to the Obligor only , and the Issue is not whether he made the Deed to the Plaintiff or not , but generally whether he made it at all : For there is a difference , Nihil debet , for that refers to te Plaintiff , and where he pleads Non est factum : Which that refers to the Plaintiff , and where he pleads Non est factum : Which Shutteleworth granted : See 1 Eliz. Dyer , 167. Tawes Case , this Plea Non est factum , hath not any respect to the Obligee be a Monk , and there is another who bears the name of the Obligee , yet in those Cases , the Obligor cannot safely plead Non est factum ; but where one is sued who bears the name of the Obligor , there Non est factum is a good Plea : And see 10 Eliy . Dyer , 279. W.S. was bound in an Obligation to one H. by the name of I.S. and upon that Obligation an Action was brought against him by the name of W.S. and he pleaded Non est factum , and the special matter was found , and it was ruled , that upon that Verdict the Plaintiff should not recover , but the best way for the Plaintiff was , to sue the Defendant by the name by which he is bound , and then if he appear and plead ( ut supra ) he shall be concluded by the Obligation : And the Court was clear of opinion , That the Plaintiff ought to have declared upon the special matter .

CCCCLIV . Willis and Whitewoods Case . Hill. 31. Eliz. Rot. 1428 In the Common Pleas.

Leases . Ow. ●5 . 56. Hutt. 105. Ant. 158. Surrenders . THe case was , That A. was seised of certain Lands holden in Socage , and leased the same to I.S. for many years , and dyed , his heir within the age of fourteen years , the wife of A. being Guardian in Socage leased the same Land by Indenture to the same I.S. for years , if the first Lease was surrendred , or determined was the Question : Anderson , Surrendred it cannot be , for the Guardian hath not any Reversion capable of a Surrender , but only an Authority given to her by the Law to take the profits to the use of the Heir : But yet perhaps it is determined by consequence and operation of Law : As if A. lease to B. for one hundred years , and afterwards granteth the Reversion to C. for two years , who leaseth to B. for two years , who accepts the Lease , the same is not any Surrender , Ante. 303. for a term of one hundred years cannot be drowned in a Reversion for two years , yet the first Lease is determined , which Periam granted : And by Windham , If a Lease be made to begin at Michaelmas , and before that time , the Lessor makes a new Lease to the same Lessee to begin presently , the same is not any Surrender , and yet thereby the first Lease is determined , and so in the principal case , which Anderson granted , but Periam doubted of it ; and he said , Guardian in Socage hath such an estate in the Reversion that he may enter for a condition broken : Anderson , The same is not in respect of any estate that he hath , but in the name and right of the heir , and not by reason of any Reversion .

CCCCLV . Norwood and Dennis Case . Trin. 31 Eliz. In the common Pleas.

IN a Quare Impedit by Norwood against Dennis , the Issue was , Quare Impedit . If the Advowson was appendant to the Manor of D. or in gross , and the Iury ●●und that it was appendant , and further found , that the Queen had right , and title to present , for she had presented at the two last Avoidances . Anderson and Periam Iustices , If it appeareth unto the Court upon the pleading , that the King hath title to present . The Court shall award a Writ to the Bishop for the King , but here appeareth no title for the the Queen upon the pleading , but only upon the Verdict , so as the one part or the other may answer to it : And because the Iury have found for the Plaintiff , the title found for the Queen shall not be respected , but as a meer Nugation and Surplusage , for the same was out of their Issue , and their Charge , and it is no more then if one comes into the Court , and informs us of any title for the Queen , there the Court ought not to regard it .

CCCCLVI . Green and the Hundred of Buccle-churches Case . Trin. 31 Eliz. In the Common Pleas.

IN an Action upon the Statute of Huy and Cry , the Case was , Action upon the Statute of Huy and Cry. 1 Cro. 14. That Green did deliver a certain sum of money to a Carryer , who put the ●ame ( amongst other things ) in his Cart , and sent a boy of the age of twelve years with the Cart before , and he himself stayed a short time in the Inn , and afterwards went his way , and before he could get to the Cart , the Cart was robbed and the money carryed away . The boy made Huy and Cry , and came unto a Iustice of Peace , and prayed he would examine him , but he would not , but the Carryer himself would not go to be examined , wherefore Green himself wen to a Iustice of Peace to be examined , and so was , and afterwards brought this Action : And it was holden by the Court ; that here the Plaintiff had failed of his Action for want of sufficient examination , for the Servant who was robbed ought to be examined , and the examination of the Master or Owner of the goods who was not present at the Robbery is not at any purpose to enable the Plaintiff to this Action , for the party robbed ought to be examined : And it was said by some , That where an Action doth not lye upon the new Statute of 27 Eliz. the party may have an Action upon the old Statute , but others were against it , for the Statute of 27 Eliz. is in the Negative , so as if the Action doth not lye upon it , no Action lyeth at all : And it was moved by Periam and Anderson , That the Plaintiff might have an Action upon his Case framed upon the said . Statute of 27 Eliz. against the Iustice of Peace who refused to examine the boy : But Windham doubted of it , because the Iustice of Peace is a Iudge of Record , and for such thing as he doth as Iudge , no Action lieth : To which it was answered by Periam and Anderson , That the Examination in such case is not made by him as Iudge or Iustice of Peace , but as a Minister appointed for the examination by the Statute , &c.

CCCCLVII . Stevinson Case . Trin. 31 Eliz. In the Common Pleas.

Debt . IN Debt upon a Bond , the Condition was , That whereas the Plaintiff had covenanted with the Defendant , that it should be lawful for the Defendant to cut down good for Fire-boot and Hedge-boot without making any wast , or cutting more than necessary : And the Plaintiff assigned the breach in that Covenant ( which is in truth the Covenant of the Plaintiff ) that the Defendant had committed wast in felling wood , &c. And the Condition was to perform all Covenants and Agreements : And Exception was taken because that the Condition ought to extend but unto Covenants to be performed on the part of the Lessee ; but the Exception was not allowed , for it is the Agreement of the Lessee , although it be the Covenant of the Lessor , the Plaintiff .

CCCCLVIII . Foster and Wilson against Mapes . Trin. 31 Eliz. In the Kings Bench.

Covenant . Ow. 100. 1 Cro. 212. FOster and Wilson brought an action of Covenant against Mapes , and declared , That by certain Indentures of Articles , it was agreed betwixt the Plaintiffs and the Defendant , whereof one part was sealed with the seal of the Defendant , and the other with the seals of the Plaintiffs , that whereas the Defendant had leased to the Plaintiffs the Parsonage of B , he covenanted , That he would keep the Plaintiffs harmless concerning the same against one N. B : And declared further , That the said N.B. had entred upon them ; And that at the time of the making of the Indentures , he was Parson of B. The Defendant had pleaded Non est factum , and it was found by special Verdict , That the Defendant sealed one part of the Indentures , and that one of the Plaintiffs only sealed the other part : Exception was taken to the Declaration because there is not set forth in it any sufficient breach , for when the Defendant Covenants to save the Plaintiffs harmless against B. the same is to be intended of a lawful Eviction : As in Puttenhams Case , 13 Eliz. Dyer , 306. But if the Covenant had been , That the Lessee should peaceably enjoy the Term , sine ejectione & interruptione alicujus personae , upon an unlawful entry of a wrong doer , an action lieth : See 16 Eliz. Dyer , 328. And here the finding of N.B. to be Parson at the time is to no purpose : And there is not layed any express title in N.B. but only by implication , for it might be that the Parson had leased to the Defendant rendring Rent with clause of re-entry , and the Parson had entred for the Condition broken , and the Plaintiffs ought to have shewed , and not generally , that he had entred , and that he was Parson : Also it is layed , That N. B. was Parson at the time of the Entry , but it is not shewed , what Entry , which may be taken , that he was Parson at the time the Plaintiffs entred by virtue of their Lease , and not when the said N. B. entred upon the Plaintiffs : Also the Plaintiffs have not declared , That they had entred by force of the Lease aforesaid , and if not , then they cannot be ejected , &c. and then no breach of Covenant . Pudsey contrary , We have declared , that the Parsonage was demised to us , and that N. B. being Parson hath entred ; and the Record was read . i. That where the Defendant had demised to the Plaintiffs the Parsonage of B. It was agreed , That the Defendant always should keep harmless the Plaintiffs and the Premisses against N.B. for and concerning omnibus pertinentiis , &c. Tanfield , The breach is well laid , and the words of the Covenants amount to as much , as if he had said , that he would keep them from all interruption ; and the difference is , when the Covenant is general , i. keep harmless , &c. the same doth not extend but to a lawful interruption ; but when it is special against such as one , there is extends to any interruption whatsoever . Gawdy Iustice conceived , That the breach of Covenant is well laid , i. that N. B. hath entred upon them , and removed them , 1 Inst. 384. and be it by wrong or by right , the same is a breach , for he hath not kept harmless the Plaintiffs for the premisses and profits of them , against N.B. 2. E. 4. 15. A Bond was endorsed upon condition , That the Obligor should defend to the Obligee for such a time , such Land whereof he had before enfeoffed him ; It was holden , That if a stranger ousteth the Obligee , without any Title , the Bond is forfeited by reason of the word ( Defend , ) And although the Plaintiffs have not laid in their Declaration , that they have entred , the same is not material ; for it is not the point of the Action . Fenner Iustice conceived , That the difference put at the Bar betwixt general Covenant and special , is good Law , and that in case of such a special Covenant interruption without Title gives an Action : but he conceived , that because it is not alledged that the Plaintiffs had entred , that there was no breach of Covenant . See 9 Eliz. Dyer 257. Wray , The words of the Covenant do amount to peaceable enjoying during the Term , and so to an interruption without Title . Fenner , 18 E. 4. 27. A. is bound to B. to save B. harmless from an Obligation made by the Plaintiff to one R. if R. affirm a plaint of Debt against the said Plaintiff upon the said Bond , the Bond of A. is forfeit ; but here the Plaintiffs cannot be harmed , for they have not entred . Gawdy , The conclusion of the Declaration is , That N.B. entred upon the profits and removed them , so as they could not take the profits thereof ; so it is implied , that the Plaintiffs had entred , and afterwards Iudgment was given for the Plaintiff .

CCCLIX . Marshes Case . Trin. 31 Eliz. In the Kings Bench.

MArsh , Executor of one Nicholson , Error by Executors to reverse an Attainder of the Testator . Owen Rep. 147. 1 Cro. 22. brought a Writ of Error to reverse an Outlawry in Felony had against his Testator ; the Error assigned was plain ; but it was moved , that this Writ of Error would not lye . Gawdy , The Action will well lye , for by this Suit the Plaintiff intends to reverse , and so undo the Outlawry , for which cause this matter ought not to be objected against him , for the Executor may have this Action as well as the Heir . Fenner Iustice , Where the principal reverseth the Attainder , the same shall extend to the Accessory . In Assise against Tenant and disseisor , each of them may have a Writ of Error , and the reversal by the one shall make void the Record as to both , and he needs not any Garnishment , for by intendment the King is to have all his goods , and the King is always presumed present in this Court , quod tota Curia concessit ; and therefore there needs not any Garnishment by Scire facias ; but Wray said , we use in such cases to call the Attorney General of the King to know if he can say any thing wherefore the Outlawry should not be reversed . The Error assigned was , That the Exigent issued forth into London and the Sheriff returned , that he had proclaimed the party de Com. in Com. quousque , &c. where he ought say , de Hustingo in Hustingum , and that was holden by the Court clearly to be Error ; and afterwards at another day it was moved by Coke , That a man attainted of Felony could not make Executors , for he is dead in Law , and as Bracton saith , solus Deus facit Haeredes & homo nominat Executores , and therefore the Heir only shall have a Writ of Error : also an Executor cannot have a Writ of Error , but only upon a Iudgment given in a personal Action ; but this Attainder is a thing of a higher nature : as where a Woman poysoneth her Husband , the Heir shall not have an Appeal , for Murder is changed into Treason , and that offence is a thing of a higher nature ; so this Attainder is of a higher nature than in the personalty . Also it may be mischievous to the Heir , for the Executor may forthwith bring and pursue his Writ of Error , by which the Iudgment shall be affirmed , and so the right of the Heir shall be bound ; also when Error is brought to reverse an Outlawry of Felony , a Scire facias ought to be sued against the Lords mediate and immediate , which cannot be here at the Suit of the Executors : also it was found by Enquest of the Coroner , that the Testator fugam fecit , so that thereby if he had been acquitted , he shall lose his goods , and then the Executors have not any reason to bring this Writ of Error ; but see 11 H. 4. Error 51. That Executors shall have a Writ of Error of an Outlawry pronounced against their Testator , and if it be reversed they shall have restitution of the goods of the Testator ; but it doth not appear there that it was upon an Indictment of Felony . Altham , As well the Executor as the Heir is a person able for to sue a Writ of Error in such case , as 13 E. 4. where a false oath is given against one in Assise and dieth , the Heir shall have an Attaint for the Land , and the Executor in respect of the damages . Popham Attorney General , This Outlawry is a real Iudgment , therefore the Executor cannot have Error upon it . Wray , It is good that this case be considered , for it may be mischievous , for thereby the Executor shall avoid the Attainder against the King and the Lords . Fenner , That cannot be without a Scire facias . Gawdy , The Executors shall have this Action ; and as to that which hath been objected , that the party attainted cannot make Executors , the same is no reason , for the Executors do pretend that their Testator was not lawfully outlawed , and so by this Suit they do endeavour to take away that disability , and therefore it ought not to be objected against the Executor ; and if the Case here be , That the Testator had not lands , but only goods , there is no reason but that the Executors should have a Writ of Error , otherwise the goods of the Testator should be lost ; and it was clearly holden by Wray chief Iustice , That the Executor might have and pursue this Writ of Error , the Outlawry of the Testator notwithstanding ; and afterwards the Outlawry was reversed accordingly .

CCCCLX . Trussels Case . Trin. 31 Eliz. In the Kings Bench.

Habeas corpus . Owen Rep. 69. ● Cro. 213 , 516. Co. 3 Inst. 213 , 215. TRussel was removed out of the Counter of London by Habeas corpus into the Kings Bench. Egerton , The Queens Solicitor moved the Court , that Trussel was a person attainted of Felony , and so had not any lands or goods to satisfie , &c. and also his life was not his own ; and upon the Return of the Habeas corpus it appeared , that Trussel was detained in Prison for an Execution , and for divers Actions ; and it was the opinion of the Court , Executions . Post 329 , 330. that as to the Execution he ought not to be discharged , for then the party should lose his debt for ever ; but as to the other actions , it was the opinion of all the Iustices , that Trussel ought to be discharged of them ; for a man so attainted ought not to be put to answer , nor taken in Execution , and so are all our Books ; And they said that they had conferred with the Iustices of the Common Pleas , and with the Barons of the Exchequer ; which were of a contrary opinion in this case upon the very matter , and not upon the manner of the pleading ; but yet we will discharge our Consciences as we have done , for there is not any Book against us , Egerton stetit super semitas antiquas , and at last it was awarded , That Trussel should be discharged of all Actions brought against him .

CCCCLXI . Sovers Case . Trin. 31 Eliz. In the Kings Bench.

SOver and others were Indicted upon the Statute of 8 H. 6. Indictments upon the Statute of 8 H. 6. of forcible Entry , because they had expulsed one A. out of his Land , and disseised the Mayor and Commonalty of London , who were in Reversion , and the same being removed hither , Restitution was prayed thereupon , and White for the City , who was in Reversion ; and the Lessor prayed that no Restitution might be , for they had let the House to another , Restitution . Yelv. 81. Dy. 141 , 142. and that he who had procured this Indictment claimed in by a Custom of London , That the Executor of the last Termor should not be put out , if he shall give as much for it as any other will , whereas in truth there is not any such Custom , and for that cause the Restitution was stayed ; and it was said by the Court , that Restitution shall be always made to him in the Reversion , and not to the Lessee for years , for he who is disseised shall be restored , and then the Lessee may re-enter .

CCCCLXII . Beal and Carters Case . Trin. 31 Eliz. In the Kings Bench.

IN an Action of false Imprisonment , False Imprisonment . Owen Rep. 98 , 287. the Defendant justified because the Plaintiff brought a Child of the age of six years , and not above , into the Parish Church of W. & eundem ibidem relinquere voluisset , & intendisset , without keeping or nourishment , to the danger and destruction of the Child , & contra pacem , for which the Defendant being Constable of the said Parish arrested the Plaintiff , and put him in prison until he did agree and promise to carry the Child from whence it came , upon which the Plaintiff did demur in Law. It was moved , that the Iustification was good , for every Subject might do it , à fortiori a Constable ; and if in this case the Child , being so exposed , should be famished for want of nourishment it had been murder , as it was holden at Winchester before the Lord chief Baron , 20 Eliz. Another Exception was taken to the Plea , because he saith ( quendam infantem ) without naming him , and he ought to say Quendam infantem ignotum ; Antea 56. but that Exception was not allowed . Another Exception ( ibidem relinquere intendisset ) but he doth not say , that he did depart from it , and then his meaning is not traversable , or issuable , or to be tried by Iurors . See 22 E. 4. 45. Gawdy Iustice , It was a great offence in the Plaintiff , but the same ought to be punished according to Law ; but the Constable cannot imprison a Subject at his pleasure , but according to Law , i. to stay him and bring him before a Iustice of the Peace to be there examined . Wray , If the Defendant had pleaded , that he stayed the Plaintiff upon that matter , to have brought him before a Iustice of Peace , it had been a good Plea. Fennor , The justification had been good , if the Defendant had pleaded , that the Plaintiff refused to carry away the Child , so all the Iustices were of opinion against the Plea ; but they would not give Iudgment by reason of the ill Example , but they left the parties to compound the matter .

CCCCLXIII . Cole and Walles Case . Pasch. 33 Eliz. In the Kings Bench.

Ejectione Custodiae lieth not upon a Copy-hold Estate . 1 Cro. 224. IN an Ejectione Custodiae the Plaintiff declared , that A. was seised of the Manor of D. within which Manor are diverse Copyholds of Inheritance ; and that the Custom of the Manor is , that if any Copy-holder of Inheritance of the said Manor dieth , his heir within the age of 14 years , that then the Lord of the Manor might grant the custody of his Body and Lands to whom he pleased ; and shewed , that one Clevertie a Copyholder of Inheritance of the said Manor died , his son and heir within the age of 14 years , Hob. 215. Dyer 302 , 303. upon which the Lord of the Manor committed the custody of his Body and Lands to the Plaintiff , and the Defendant did eject him , and upon Not guilty it was found for the Plaintiff . It was moved in arrest of Iudgment , That this Action would not lye upon a Copyhold estate , Quod tota Curia concessit ; and yet it was said , that an Ejectione firmae lieth upon a demise of Copy-hold Land , by Lease of a Copyholder himself , but not upon a demise by the Lord of the Copyhold , Quod fuit concessum ; and afterwards the Case was moved on the Plaintiffs side , and it was said , That this was but an Action upon the Case , in the nature of an Ejectione firmae , and this interest is not granted by Copy , but entred only into the Court Roll : so it is not an interest by Copy , but by the Common Law , for the words are , Quod Dominus commisit custodiam , &c. and doth not say in Curia ; and afterwards Iudgment was given for the Plaintiff .

CCCCLXIV . Bond and Bailes Case . Trin. 33 Eliz. In the Kings Bench.

Judgment upon a Bond where satisfied before a Statute . ● Len. 37● . Roll. 926. BOnd brought a Scire facias against Bailes , Administrator of one T. B. upon a Recovery had against the Intestate in Action of Debt . The Defendant pleaded , That before the said Iudgment given , the Testator did acknowledge a Statute Staple to one C. and that the Son was not paid in the life of the Testator nor after , and that they have not in their hands any goods of the Intestate beyond what will satisfie the said Statute ; upon which there was a demurrer in Law. And Coke argued , That the Bar is not good , for here is not pleaded any Execution upon the Statute , and then the Iudgment , the Statute being of things of as high nature ; that of which Execution is sued shall be first served ; and if this Action had been brought upon a Bond the Plea had not been good : for although that Brian saith , 21 E. 4. That Recognizances shall be paid by Executors before Bonds , yet that it is to be intended when a Scire facias is to be sued upon it , otherwise not : And 4 H. 6. 8. in a Scire facias upon a Iudgment fully administred at the day of the Writ brought is a good Plea ; by which it appeareth , That if the Executors had paid the Debt upon the Obligation before the Writ brought , it had been good . See 12 E. 3. Executors 73. in a Scire facias upon a Iudgment in Debt given against the Testator , Enquiry shall be what goods the Executors had the day of the Scire facias : and he said , it was moved by Anderson , 20 Eliz. in this Court. In Debt upon a Bond against Executors ; the Defendant pleaded , that the Testator was indebted by Iudgment to A. and that they had not more than to satisfie the same , and it was holden no plea , if not that he pleaded further , that a Scire facias was sued upon it . Wray said , The same is not Law , and there is a difference when the Iudgment is given against the Testator himself , and where against the Executors ; for where Iudgments are given against Executors , the Iudgment which was given before shall be first executed ; but if two Iudgments be given against the Testator , he who first sues Execution against the Executors shall be first satisfied , because they are things of equal nature , and before Suit it is in the election of the Executor which of them he will pay . See 9 E. 4. 12. As if two men have Tallies out of the Exchequer , he which first offers his Tally to the Officer shall be first paid ; but before that , it is in the choice of the Officer which of them shall be first satisfied ; and therefore 19 H. 6. If the Lease enrolled be lost , the Enrolment is not of any effect , and Pasch. 20 Eliz. our very case was moved in the Common Pleas , in a Scire facias upon a Iudgment given against the Testator ; the Executor pleaded , That the Testator had acknowledged a Statute before not satisfied , Ultra quae , &c. and it was holden no Plea , for a Statute is but a private and pocket Record , as they called it ; and 32 Eliz. betwixt Conny and Barham the same Plea was pleaded , and holden no Plea. Also if this Plea should be allowed , Conny and Barhams Case . great mischiefs would follow : for then no Debts should be satisfied by the Executors , for it might be that the Statute was made for performance of Covenants , which Covenants perhaps shall never be broken : and afterwards Iudgment was given for the Plaintiff .

CCCCLXV . Crew and Bails Case . Trin. 32 Eliz. In the Kings Bench.

A Writ of Error was brought upon a Iudgment given in the Common Pleas , Error . 1 Cro. 216. in a Bill of priviledge brought by an Attorney of the said Court upon an Obligation ; and upon the said Iudgment issued forth process of Execution , upon which the Defendant was Outlawed ; and the Error was assigned in this , That upon that Iudgment process of Outlawry doth not lie , for Capias is not in the original Action ; Priviledge . and so was the opinion of the whole Court , being upon a Bill of priviledge , and the Outlawry was reversed , and the Error was assigned in the first Iudgment , because there were not fifteen days betwixt the Teste of the Venire facias and the return of it ; but that was not allowed , for it is helped by the Statute of 18 Eliz. cap. 14.

CCCCLXVI . Wade and Presthalls Case . Trin. 30 Eliz. In the Kings Bench.

WIlliam Wade brought an Action of Debt against Presthall ; the Defendant pleaded , That he was attainted of Treason , Debt . Ante 326. not restored , nor pardoned , and demanded Iudgment if he should be put to answer , upon which the Plaintiff did demur . It was argued for the Plaintiff , that the Plea is not good , for the Defendant shall not take benefit of his own wrong : A person attainted gives his goods , Plea in disability of himself not a●lo●ed . he shall not avoid it ; A Woman takes a Husband , thereby she hath abated her own Writ . It is true , That a person attainted is a dead man , it is so as to himself , but not as to others , 33 H. 6. a person attainted is murdered , his Wife shall have an Appeal , so as to all respects he is not dead , and although as yet the Plaintiff cannot have any Execution against the Defendant , yet here is a possibility to have Execution , if the Defendant get his pardon : As a man shall have Warrantia Chartae although he be not impleaded , and yet cannot have Execution , but there is a possibility to have Execution , 22 E. 3. 19. A Rent granted to one in Fee upon condition , that if the Grantee die , his heir within age , that the Rent shall cease during the nonage , the Grantee dieth , his heir within age , his Wife brought Dower presently and recovered , and yet she cannot have Execution , but yet there is a possibility to have Execution , viz. upon the full age of the heir . Coke contr . By his Attainder he hath lost his Goods , Lands , Life , Degree , for he is now become Terrae filius , and he cannot draw blood from his Father , nor afford blood to his Son or his posterity , so as he hath neither Ancestor nor Heir ; and as to the possibility the same is very remote , for the Law doth not intend that he shall be pardoned ; and see 6 H. 4 64. A man committed a Felony , and afterwards committed another Felony , and after is attainted of one of them , he shall not be put to answer to the other ; but if he obtain his Charter of pardon , he shall answer to the other . See also 10 H. 4. 227. tit . Coronae . Popham Attorney General ; The Defendant ought to answer , for none shall have advantage of his own wrong : The Plaintiff is made a Knight pendant the Writ , it shall abate because his own Act ; but here Treasons are so heinous , that none shall have ease , benefit , or discharge thereby : And if the Defendant shall not be put to answer until he hath his pardon , then the Action is now suspended , and an Action personal once suspended is gone for ever ; and he cited 29 E. 3. 61. in the Book of Assizes , where it is said by Sharp , Execution upon a Statute may be sued against a man attainted ; and he said , Execution against a person Attainted . That if the Enemy of the King comes into England , and becomes bounden to a Subject in twenty pounds he shall be put to answer , notwithstanding that interest that the King hath in him . Harris Serjeant to the same intent , he conceived by 33 H. 6. 1. That Traitors are to answer ; for if Traitors break the Goal , the Goaler shall answer for their escape , for the Goaler hath remedy against them , contrary of the Kings Enemies ; Burchets Case . and he cited the case of one Burchet , who being attainted of Treason struck another in the Tower , for which notwithstanding his Attainder he was put to answer . Egerton Solicitor General : And he said , That the Action is not suspended ; but in as much as every Action is used to recover a thing detained , or to satisfie a wrong , if it can appear that the party cannot be satisfied according to his case he shall not proceed : And in this case the Plaintiff , if he should obtain Iudgment could not have Execution by the Common Law , Ante 213. for he hath no Goods , nor by the Statute of Westm. 2. by Elegit , for he hath no Lands , nor by the Statute of 25 E. 3. by his body , for it is at the Kings pleasure , and then to what purpose shall the Plaintiff sue ; and it is a general Rule , Regula . That in all Actions where the thing demanded cannot be had , or the person against whom the thing is demanded cannot yield the thing , that the Writ shall abate : As in a Writ of Annuity by Grantee of an Annuity for years the term expireth , the Writ shall abate ; Abatement of Writ . Tenant in special tail brings Wast , and pendant the Writ his issue dieth , the Writ shall abate , &c. 2 E. 4. 1. A man Outlawed of Felony pleaded in dis-affirmance of the Outlawry , and yet he was not put to answer until he had his pardon , and then he shall answer : And as to the Case of 33 H. 6. 1. It doth not appear that the Traitors were attainted , and then there is good remedy enough : And Burchets Case cannot be resembled to our Case , for although that by the Attainder the body of the party might be at the Kings pleasure , yet his body may be punished for another offence , for the example of others . And as to Tressels Case , who in such case was put to answer , I grant it , for he concluded Iudgment if Action , and so admitted him a person able to answer , and then it could not be a good plea in Bar. And in Ognels Case , the Retorn of the Sheriff shall bind them , for upon Process against a person attainted they returned Cepi , where they ought to have returned the special matter without a Cepi ; but now this general Return shall bind them , and by that he shall be concluded to say , that the party was not in Execution : And this Plea is not any disabling of the Defendant ; but he informs the Iudges , that he is not a person able to answer to the Plaintiff . As in a Praecipe quod reddat the party pleads Non-tenure , the same is no disabling of his person , but a shewing to the Court that he cannot yield to the party his demand : A man shall not take advantage of his own wrong , i. in the same thing in which the wrong is supposed , or against him against whom the wrong is supposed to be done ; but in other Cases he shall take advantage of his own wrong , as Littleton , If a Lease for life be made , the Remainder over in Fee , and he in the Remainder entreth upon Tenant for life , and disseiseth him , the same is a good Seisin , Cases where a man shall take advantage of his own wrong . Marbery and Worrals Case . upon which he may have a Writ of Right , Littleton 112. 35 E. 3. Droit 30. And yet this Seisin was by wrong . And there was a Case betwixt Marbery and Worral in the Exchequer , The Lessor entred upon his Lessee for life , made a Feoffment in Fee with clause of Re-entry , the Lessee re-entred , the Lessor at the day came upon the Land and demanded the Rent which was not paid ; it was holden the same is a good demand of the Rent , and yet he is a Trespassor to the Lessee . And in another Case , A man shall take advantage of his own wrong , Fitz. N.B. 35. N. An Infant hath an Advowson by descent , the Church becomes void , he who hath Right paramount usurps , and presents to the Church , and the 6 months pass ; now by this tortious usurpation he is remitted , and the Infant out of possession , and without remedy : And he cited the Case 16 H. 7. 10. A Scire facias out of a Fine was brought against an Abbot , by which Fine the Predecessor of the Abbot granted to find a Priest to sing Mass in such a Chappel , &c. and the Abbot pleaded , That the said Chappel was become ruinous and decayed , so as no Priest could sing Mass there ; and it was prayed on the part of the Plaintiff , that forasmuch as the Covenant is confessed , that Iudgment be given , but that Execution should cease until the Chappel be rebuilt ; but it was not allowed , for this is a good Bar for the time , and no Iudgment shall be given , for it shall be in vain , for it cannot be executed because there is no Chappel , and it may be the Chappel shall never be built again : And so in the principal Case , &c. It was adjorned .

CCCCLXVII . Knightley and Spencers Case . Trin. 33 Eliz. In the Kings Bench.

IN a Prohibition betwixt Knightley and Spencer , The Case was , Prohibition . More Rep. 528. 2 Co. 47 , 48. 2 Cro. 452. That Ph. Abbot of Evesham , and all his Predecessors time out of mind , &c. were seised as well of the Rectory impropriate of B. in the County of N. and also of the Manor of B. in the same Parish , &c. until the dissolution of his House ; and that by reason thereof the said Abbot and all the Predecessors had holden the said Manor discharged of payment of Tithes until the dissolution , &c. and shewed the branch of the Statute of 31 H. 8. And that the said Abbot did surrender the Possessions of the said House to the King , and that the King held the same discharged of the payment of Tithes ; and that afterwards the King granted unto the Ancestor of Knightley the said Manor , and to the Ancestor of Spencer the said Rectory , and although the Plaintiff ought de jure to hold the said Manor discharged of Tithes , yet the Defendant sued him in the Spiritual Court , &c. To which the Defendant confessing the Impropriation , pleaded , That the said Abbot was seised , ut supra ; but that before the making of the said Statute of 31 H. 8. the said Abbot demised Decimas Rectoriae praedict . to one Spencer for 70 years , who made the Defendant his Executor , and died , and that at the time of the said Demise , and dissolution of the said Abby , one Goodman and others were possessed of the said Manor until the year 1585. which was the year before the Suit began in the Spiritual Court , and that at the time of the dissolution he paid Tithes for it , and now the Plaintiff refuseth to pay , &c. absque hoc , That the Abbot and his Predecessors held the said Manor quit of the payment of Tithes time out of mind , &c. upon which the Plaintiff did demur in Law. Coke , for the Plaintiff , That this Vnity of possession is a discharge within the Statute of 31 H 8. the words of which are , Unity of possession a discharge of Tithes . That the King and his assigns shall have and enjoy the Lands discharged and acquitted of Tithes , as freely as the said Abbot held the same at the day of the dissolution : And see before , whereas divers Abbots were acquitted and discharged of , and for the payment of Tithes ; for the Statute doth not intend a real discharge , as by composition or such manner , which is not here , but only a suspension , which is not any discharge in Law ; and yet in speaking of discharge ordinarily , an actual discharge is understood , As if I be bound by Obligation to discharge one of such a Bond , it is not enough to pay the mony , but I ought to procure an actual Discharge where it is put generally , but where it is put secundum quid , as it is here referred to the Dissolution , a suspension is a Discharge intended in the said Statute ; but where the Statute is indefinite there an actual Discharge is understood , but restrained to a time a suspension sufficeth , and truly it is a discharge within the intent of the Statute ; for if the Statute shall be intended of an absolute discharge , and a Discharge in Law only , the Statute had been superfluous , for the Law said so much before ; for without such provision the King and his Assigns held discharged from payment of Tithes . But the makers of the Statute knew well enough , that the Abbot might have such discharge by divers means , and it should be infinite for the party interessed to enquire of them all ; and therefore they did enact briefly , That if at the time of the dissolution they were in any manner freed of payment of Tithes the same should be sufficient , and so here is not any wrong unto any , for the Parson had all as he had before , and the same is like to the case betwixt Wharton and Morley , 7 Eliz. in the Exchequer , the Report of which Mr. Plowden communicated unto me , and it was upon the Statute of 1 E. 6. cap. 14. of Monasteries , That all Grants made to the King by any Provost , Wharton and Marleys Case . Governour , &c. of any Manor , &c. shall be good , &c. and the Case was , That a Prebend of the Church of York surrendred to the King , but the Surrender was never enrolled , and yet adjudged good upon the Statute ; for if it was a lawful Surrender the same had been good of it self , without any aid of the Statute , which was made to supply insufficient assurances , and so in our Case for the cause aforesaid , and it should be injurious to drive the Iury to enquire of the manner of the Discharge , if it were by composition upon the foundation , or by dispensation of the Pope , as Cistere . Templarii : And here the Plaintiff hath declared of an Impropriation before time of memory ; and so before the Council of Lateran , which was within those 400 years ; and 25 Eliz. there was a Sussex Case , where the Plaintiff declared as here , but they would not proceed ; and see Dyer 10 Eliz. 277 , 278. The Prior of St. John hath priviledge from Rome , that he shall not pay Tithes for any Land quas propriis manibus aut sumptibu● excolant , but their Farmers have paid Tithes ; and it was holden , that in the hands of the Farmers Tithes should be paid , but after the Term ended the Patentee should hold discharged , so as the Statute hath a favourable construction upon this point . Now it is 〈◊〉 if the Lease of the Rectory by which the Defendants claim be good or not , and then admitting that Tithes are due in this Case , yet if his Lease be void he shall not have a Consultation , especially if it appeareth upon his own shewing , as it was holden in a Hampshire Case betwixt Sutton and Dowze , Sutton and Dowzes Case . 2 Len. 55. 3 Len. 155 , 164. which see Mich. 25 & 26 Eliz. and in that case the Lease is void , for it was made within a year after the Statute of 31 H. 8. the January before , and the Statute in April after , for he hath not averred , that the usual Rent is reserved , nor that the Land was usually let to farm , for which Leases otherwise made within the year are absolutely void by the said Statute : But it will be objected , Ante 306. 1 Cro. 707 , 708. Heydons Case . That this matter shall come in of our part , and it is sufficient for them to plead the Case ; but it is not so , as it was lately agreed in Heydons Case in the Exchequer , where the Case was , That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years , and he in pleading of his Lease did not shew that the ancient Rent was reserved , and therefore naught ; and so was the opinion of the Iustices of the Common Pleas , Lord Cromwel and All-Souls Case . in the Case betwixt the Lord Cromwel and All-Souls Colledge , upon the Statute of 18 Eliz. cap. 6. upon a branch of it , by which it was provided , that the third part of the Rent reserved upon any Lease should be paid in Corn , &c. and the Leases made to the contrary should be void ; and in an Ejectione firmae brought upon such Lease , because it was not shewed in the Declaration , that the Corn was reserved according to the Statute , Iudgment was arrested , and we need not to plead the Statute ; for although the Statute be particular , yet because the King hath interest in it , it shall be holden in Law a general Act , and the Iudges shall take notice of it , although it be not alledged by the party , as it was ruled in the Lord Barcklays Case , 4 Eliz. Plow. 231. but if such Rent was reserved , yet the Lease cannot be good , for the King cannot have his Rent , because it is not incident to the Reversion , nor passeth by the Grant of the Reversion ; for it is not a Rent , but rather a sum due by reason of contract , which see 30 Ass. 6. A man leaseth a Hundred , rendring Rent , or grants a Rent out of a Hundred , the same is not a good Rent , but meerly void ; for a Hundred is not Manorable , nor can be put in view , nor any Assize lieth of such Rent . See 9 Ass. 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer , 7 Co. 5. Corbet and Cleers Case . the Dean and Chapter of Norwich leased a Parsonage and common of Pasture , rendring Rent , 1 E. 6. they surrendred their possessions to the King , and afterwards the King granted the Parsonage without speaking of the common of Pasture . It was holden , that the Patentee of the Parsonage should have all the Rent , and no apportionment should be in respect of the Common ; for all the Rent issueth out of the Parsonage , and nothing out of the Common : So here , 2 Co. 48. for Tithes are not an Hereditament , which cannot support a Rent within this Statute , for which cause the Lease is void : Also he said , that the traverse of the Defendant was not well taken , for the Plaintiff hath said , That time out of mind , &c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid , simul & semel , and ratione inde , was discharged , &c. at the time of the dissolution ; the Defendant traverseth absque hoc , that the Abbot and his Predecessors held discharged of Tithes time out of mind , &c. which is not good , for he hath traversed our conclusion ; for our plea is an argument , wheresoever is unity time out of mind , &c. there is a discharge of Tithes , but in the Abbot was such an Vnity , ergo he held discharged of Tithes , as 21 E. 3. 22. In a Praecipe quod reddat , the Tenant saith , that the Land in demand is parcel of the Manor of D. which is ancient Demesn , and , &c. to which the Plaintiff saith . That it is Frank-fee , and the same was not good , for he denies the conclusion ; but he ought to plead to the nature of the Manor , that it is not ancient Demesn , or that the Land in demand is not parcel of it . Another matter was , because it is pleaded fuit in tenura & occupatione of Goodman and others ; but he did not shew by what Title , Disseisin or Lease , or other Title , &c. Buckley contrary , And he said , This unity of possession is not any discharge of Tithes by the said Statute ; and as to the Case cited before , of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land , now is the Rent suspended , and then after when he makes a Feoffment in fee , by that Feoffment the Rent is extinguished , which was but suspended at the time of the Feoffment ; and therefore some have holden , that if after such Entry he makes a Lease for life of the Land , that his Rent or Seigniory is utterly gone in perpetuum , for by the Livery all passeth out of him , which he said cannot be Law ; and so it seemed to Gawdy Iustice , Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally , but as of Land discharged at the time of the Feoffment , which proves that the suspension is not a discharge , for it was suspended before the Feoffment , and discharged by the Feoffment , and so suspension is not a discharge , à fortiori in the Case of Tithes , for in the case of Common , and Rent , although they are suspended so as they cannot be actually taken , yet they are to some intent in esse : As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative , and during such seisin of the King the Lord gets seisin , the same is a good seisin notwithstanding that it was suspended so as he could not distrain : And also in Assize of Land , damages as to the Rent out of the Land shall be recouped , therefore the rent in some sort is in esse , and à multo fortiori , this Tithe ( which is a thing of common Right ) shall be in esse , but goes with the Land , A Rent in esse to some purposes , and suspended to other . and therefore by unity of possession shall not be suspended , 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land , the Warren is not suspended , nor by Feoffment of the Land is extinct ; and in this Case upon the matter , during the unity of possession the Tithes were paid , although not in specie : Also the Abbot had the Tithes as Parson of B. and the Land as Abbot , and therefore no suspension , for the Tithes were always in esse , although not taken in the manner , as Tithes commonly are , but by way of Retainer , 22 E. 4. 44. A Writ of Annuity is brought against a Prior , and it appeared , That the Prior and his Successors have used to pay the Annuity as Parson of D. and not as Priors , which Parsonage was appointed to the said Priory time out of mind , and in the Writ the Defendant was named Prior only , and not Parson , and therefore the Writ was abated . See 14 E. 4. 4. 10 H. 7. 5. In an Action of Wast : So Bracebridges Case , 14 Eliz. Plowd. 420. The Case put by Catiline , If the Parson , Patron and Ordinary make a Lease for years , and afterwards the Lessee becomes there Incumbent , the Term is not extinct , for he hath the Term in his own Right , and the inheritance in the Right of his Church , which see 30 H. 8. Dyer 43. A Parson purchaseth , and after leaseth his Parsonage , he himself shall pay Tithes notwithstanding this Vnity ; and as to the reason of the other side , That if such discharge of Tithes be not intended by the Statute , but only a Discharge in Law , the Statute should be in vain , the same is not so ; for if the Abbot had been discharged by way of Release of Composition , for the Monastery being dissolved the Appropriation had been good , if it had not been supported by the Statute , and then the Release and Composition of no force , and the King should not take advantage of it but by this Statute ; and as to Whartons Case before cited , the same cannot be Law , for it hath been holden upon the Statute of 18 Eliz. of Confirmations , That if an Infant maketh a Lease to the King , the same is not made good by the Statute , for the said Statute extends to imperfections in circumstances , and not in substance . And although the Lease be not good , yet because the matter of the surmise is naught , although our Bar be naught , a Consultation ought to be granted , also our Lease is well pleaded , and if such defect be in it , as hath been objected , the same ought to come in by Plea on the other side ; and it is not like Heydons Case , for there it was found by special Verdict , not to Cromwells Case , where such defect was in the Declaration , and so no ground of Action ; as to the Traverse it is good enough , as if special Bastardy be pleaded against one born before the marriage , and so Bastard , the other party shall traverse generally the Bastardy , and not the special matter , but for the principal matter , i. this unity of possession , divers rules have been . 5 Eliz. in the Common Pleas , the Case was , An Abbot had a Manor within the Parish of D. and a Composition was made betwixt the Parson of D. and the said Abbot , that the Parson should have yearly certain Loads of Wood , out of thirty Acres of the said Manor , for , and in recompence of all the Tithes of Wood there , afterwards the Parsonage was appropriated to the said Abbot , and afterwards the house was dissolved , and the Manor granted to one , and the Rectory to another , and it was holden , That the portion of the Tithes was removed , for he had them , scil. The Manor and the Tithes in several Rights . And Manwood Chief Baron , and Periam Iustice , to whom a Case depending in the Chancery was referred concerning the discharge of Tithes by unity of possession , delivered their opinions , That such an Vnity is not any discharge within the said Statute . It was adjorned .

CCCCLXVIII . Hoskins and Stupers Case . Mich. 32 Eliz. In the Kings Bench.

IN an Action upon the Case , the Plaintiff declared , Assumpsit . That whereas the Plaintiff had sold to the Defendant 1000 couple of Newland Fishes to the use of the Defendant , and in consideration that he should ship , and should bring and carry the adventure of them from Bristol , in portum of Saint Lucar and should carry back again the value of the said Fish to London or Bristoll secundum usum Mercatorum , The Defendant did promise , that upon the arrival of the said Fish , in portum of St. Lucar , he would give to the Plaintiff 112 l. and said , that he arrived with the said Fish , ad portum of St. Lucar , and that afterwards he arrived with goods of the value of the said Fish , ad portum of London , secundum usum Mercatorum . It was holden by all the Iudges , that in portum , and ad portum is all one , Exposition of words . as the Statute of Wast is , Quod vicecomes accedat ad locum vastatum , yet he ought to enter into the Land : So the Writ of accedas ad Curiam , & in plena Curia recordari facias , &c. Another Exception was , because he declared , That he returned with goods to the value , and doth not say , whose goods they were ; but the Exception was not allowed , for these words secundum usum mercatorum imply that they were the goods of the Defendant , Quod fuit concessum per Curiam , and afterwards Iudgment was given for the Plaintiff .

CCCCLXIX . Walgrave and Agurs Case . Trin. 32 Eliz. In the Kings Bench.

SIr William Walgrave brought an Action upon the Case against Agur upon these words spoken by the Defendant to a servant of the Plaintiff , Action for scandalous words . 1 Cro. 191. It is well known , that I am a true subject , but thou ( innuendo the said servant ) servest no true subject , and thine own conscience may accuse thee thereof . It was moved in arrest of Iudgment , That these words are not actionable , for no slander comes to the Plaintiff thereby , for perhaps the Party served no man , but the Queen , and if the words may receive such sense , S●vage and Cooks Case . which is no pregnant proof of infamy , they are not actionable , as in the Case betwixt Savage and Cook , These words ; Thou art not the Queens friend , are not actionable , for it might be they were spoken in respect of some ordinary misdemeanours , as in not payment of Subsidies , or the like : Also it is not averred , that the party to whom the words were spoken , was the Plaintiffs servant . Coke , Where a man is touched in the duty of his Office , or in the course of life , an Action lieth , although that otherwise the words are not actionable , and here is set forth in the Declaration , That the Plaintiff at the time of the speaking of the said words , was a Iustice of Peace , and Sheriff of Suffolk , and Captain of a Troop of 120 Horse to attend the Preservation of the Queens person : So in respect of place and dignity in the Commonwealth , as 2 H. 8. The Bishop of Winchester brought an action upon the Statute of Scandal . Magnatum , upon these words , My Lord of Winchester sent for me , and imprisoned me , until I made a Release to J. S. and in respect of his Place and Dignity the words were holden actionable : and 9 Eliz. Dyer , In an action upon the Case by the Lord Aburgaveney against Wheeler , My Lord of Aburgaveney sent for us , and put some of us into the Coal-house , and some into the Stocks , and me into a place in his house called Little Ease , and the words were holden actionable : Kinseys Case . So in our Case , Lewes said , It was the Case of one Kinsey ; one said to a Bailiff of a Franchise , Thou didst execute false Warrants , without saying , they were falsified by him , adjudged an Action did not lie . Wray Chief Iustice , These words in themselves are not actionable , for the Plaintiff might be untrue in small things , which gave no discredit , but the quality of the person of whom they were spoken , may add weight to them , as to call one Bankrupt generally , no action lieth upon it , but to call a Merchant so is actionable . So to call o●e Papist , no action lieth for it ; But if one call the Archbishop of Canterbury so , an action will lie , for he is Governour of the Church . Thou art an untrue man to the Queen , gives not an action to an ordinary Subject , but such words spoken of one of the Privy Council , are actionable . Corrupt man , in themselves are not actionable , but being spoken of a Iudge , an action lieth . It was Birchleys Case , an Attorney of this Court , Thou art a corrupt man , and dealest corruptly , and it was adjudged per Curiam , that the words were actionable , for that refers to his calling . Gawdy was of opinion , that the words were actionable of themselves , without respect had to the Quality of the person of whom they were spoken , for the words are particular enough ; and to touch him in the duty of a Subject , which is to be faithful to his natural Prince , is a great Reproach and Slander . Fenner conceived , that the words were not actionable . Wray , as before , Of themselves they are not actionable , for they are in general , for if he be indicted of Trespass , he is not a good Subject .

THE TABLE OF THE MATTERS IN THIS BOOK . A. ABatement of Writ , 56 , 57 , 138 , 157 , 210 , 216 , 352 , 445 , 466 Action , 216 Of Assault and Battery , 63 De bonis Testatoris , 277 Action upon the Case , 199 , 234 , 249 , 263 , 321 For taking Toll , 315 For stopping a Way , 319 A Water-course , 334 Action upon the Case for Words , 111 , 131 , 173 , 179 , 263 , 469 Against a Justice of Peace , for not examining , 456 Action upon Statutes , Of 27 Eliz. of Huy and Cry , 456 Of Winchester , of Huy and Cry , 72 Of 5 Eliz. cap. 9. 166 Of 5 Ed. 6. for Striking , 337 Of 8 H. 6. 382 Acceptance , 176 Of Rent , 348 Account , 17 , 109 , 301 By the Heir of a Copyholder , 357 Adjornment , 184 Advantage of his own wrong , 466 Admiralty , 144 Administration , 435 Advowson , 84 , 272 , 283 , 289 Alienation , 6 , 50 Alien , 61 Amercements , 145 , 299 , 327 Amendment , 102 , 30 Annuity . 292 Appropriations , 49 , 316 Appeal , 67 , 447 Of Mayhem , doth not lye after a Re-Recovery in Trespass , 447 Apportionment , 33 , 429 Appearance , 114 By Attorney , 397 Arbitrament , 37 , 95 , 97 , 137 Archdeaconry , 442 Not a Cure of Souls , ib. Assize , 30 , 69 , 343 Assets , 107 , 153 , 154 , 215 , 448 , 306 , 363 , 440 Assignments , 391 Assault and Battery , 63 , 64 , 143 , 169 , 191 Attachment upon Prohibition , 151 Attachment upon the Custom of London , 35 , 67 , 268 , 278 Of Goods , 278 , 353 , 452 Attainder , 27 , 221 , 279 , 466 Where it shall lose Dower , & è contr . 7 What forfeited by it , 27 Attaint , 377 , 445 Attornment , 11 , 75 , 316 , 355 , 397 , 408 Attorney , 427 Ought to pursue his Authority , 427 Assumpsit , 23 , 55 , 121 , 156 , 80 , 159 , 167 , 168 , 180 , 214 , 217 , 222 , 238 , 240 , 241 , 261 , 303 , 317 , 323 , 340 , 401 , 405 , 410 Consideration in it , where good , where not , 23 , 55 , 80 , 121 , 134 , 156 , 241 , 253 , 261 , 340 Upon Mutuatus , 214 Averment , 18 , 21 , 23 , 85 , 102 , 167 , 285 , 334 , 338 , 379 , 447 Not traversable , 18 Superfluous , 21 Not against a Fine or Record , 102 157 Not against Certificate of the Bishop , 285 Of a Feoffment not proved shall not avoid Dower , 431 Avowry , 16 , 18 , 56 , 103 , 277 Auditor , 301 Audita Querela , 98 , 195 , 196 , 310 313 , 421 Award , 95 , 47 , 137 , 194 , 238 , 424 443 Ancient demesn , 315 B. BAil , 74 Bailment of Goods to a Carrier , 278 Bargain and Sale , 34 , 79 , 120 , 223 , 237 Not so strong as a Livery , 10 Where void , & e contra , 17 To the Queen , 40 Of Trees . 321 Bar , 24 , 30 , 92 , 161 , 170 , 240 , 277 , 429 , 437 , 440 Where good in Assize , & e contra , 30 Recovery pleaded where no Bar , 70 Ought to be traversed , confessed and avoided , 102 Where a Fine is no Bar , 297 Baron & Feme , 386 Bill , 32 C. CHarge , 11 , 418 Covenant , 21 , 82 , 120 , 158 , 160 , 170 , 186 , 188 , 211 , 252 , 290 , 339 , 429 , 446 , 458 Shall not bind Executors , 3 Not supply the defects of words in a Grant. 4 Quod non maritaret , 67 To stand seised to uses , 279 Conspiracy , 146 , 269 Confirmation , 61 , 316 Certiorare and certificate , 12 , 28 , 69 114 , 285 Collation gains not the Patronage from the King , 307 Challenge , 9 , 68 , 112 Commission repealed , 363 Common , 56 , 100 Claim , 429 Conditions , 47 , 97 , 233 , 242 , 311 , 331 , 400 , 409 Where not bind an Administrator , 6 Not to alien , not bind Administrator , 6 , 409 Where to the Land , & e contra , 6 Shall not avoid an Interest vested , 11 Void , because against Law , 99 Annexed to an use executed to the possession , 409 Request amounts to a Condition , 306 Not to discontinue , 409 Taken strictly , 425 Consultation , 13 , 27 , 29 , 123 , 127 , 177 , 255 , 411 Conusans , 33 , 64 , 294 Conspiracy , 269 Construction of Deeds , 101 Commissioners of Bankrupts , 35 Churchwardens , 248 Copiholds and Copiholders , 1 , 19 , 46 , 70 , 124 , 126 , 128 , 133 , 139 , 237 , 243 , 244 , 365 , 408 Admittance , 244 , 408 Of an Enfant , 128 Forfeited for Felony , 1 Seised for breaking the Lords Decree , 2 Is an estate , 8 , 128 Shall maintain Ejectione firmae , 8 Dower of it , & e contra , 19 Grantable by the Lord , 70 Within what Statutes , 126 Forfeiture of them , 128 Surrenders of them , 226 , 250 , 273 , 408 , 409 In extremis , 128 , 133 , 243 By one in Prison , 45 Out of Court , 309 Corporations , 36 , 228 Costs . 142 , 177 , 444 Where Damages are given , 382 Covin , 253 Counts , 53 , 146 , 212 , 240 , 241 , 453 Writ general , count special , 307 314 , 329 Courts Baron , and Leet , 33 , 299 Cui in vita , 210 Customs , 143 , 178 , 277 , 315 , 438 Taken strictly , 3 Of granting Copy-holds , 70 To take Recognizances , 178 To make By-Laws , 270 Of London , 357 , 358 To make Reparations , 438 Applied to part of a Town , 438 Ad pasturandum , non ad colendum , 19 D. DAmages , 41 , 71 , 190 , 197 , 207 , 238 , 247 Damages , not given in an account , 412 No damages for the continuance of a Trespass without an Entry , 416 Debt 20 , 21 , 34 , 37 , 41 , 59 , 73 , 88 , 92 , 95 , 114 , 153 , 186 , 206 , 215 , 229 , 262 , 281 , 306 , 274 , 282 , 290 , 259 , 381 , 384 , 422 , 432 , 434 , 448 , 453 Upon Recognizance , 67 , 178 Upon Arbitrament , 97 For Nomine poenae , 149 Upon an Escape , 5 Deeds , 164 , 171 , 211 , 237 , 453 Construed according to the meaning of the parties , 10 , 101 Of Dedi and Concessi , 75 Enrolled , avoided by Averment , 257 Demurrer , 190 Upon Evidences , 286 Demand of Rent , 425 Departure , 39 , 120 Deprivation , 402 Devastavit , 448 Devises , 16 , 42 , 73 , 120 , 154 , 155 , 176 , 187 , 205 , 219 , 230 , 242 , 266 , 293 , 306 , 362 , 383 , 387 , 409 , 436 Construction of them , 16 , 42 To Executors to sell , 38 , 42 , 78 , 254 To an use , 342 Diminution , 28 Distress , 16 , 64 , 78 , 315 , 338 Discontinuance of suit , 142 Discontinuance of Lands and Estate , 150 , 157 , 172 Distent , 154 , 163 Where it takes away Entry , 293 Disseisin , 163 Dower , 48 , 71 , 118 , 119 , 187 , 233 , 383 Of Gavelkind , 83 , 182 , 431 Dutchy Lands , 307 The Kings prerogative in them , 15 E. EJectione firmae , 331 Not of a Tenement , 265 Ejectione Custodiae lieth not of a Copihold estate . 463 Elegit . 65 , 247 Election , 36 , 52 , 67 , 92 , 289 , 342 , 360 Enrolment , 10 Endowment , 13 Enfant , 156 , 297 Entry , 46 , 66 , 79 , 163 , 165 , 427 , 446 For forfeiture , 345 Enquiry of damages , 197 , 278 Escape , 165 , 145 , 203 , 321 , 274 Estates , 150 , 219 , 221 , 297 , 288 , 311 Vested , shall not be divested , 345 Essoin , 184 Estoppell , 122 , 220 , 224 , 286 , 437 Error , 12 , 28 , 52 , 71 , 137 , 207 , 228 , 238 , 245 , 246 , 260 , 452 By Executors to reverse an Attainder of their Testator , 452 , 278 , 317 , 327 , 328 , 343 , 346 , 363 , 397 , 402 , 412 , 415 , 445 , 365 By Journeys accounts , 28 Upon Outlawry , 37 Upon Recovery in Assize , 69 In assessing damages , 71 For want of Averment , 121 Upon a common Recovery , 181 To reverse a Fine by an Enfant , 445 Evidence , 70 , 192 , 215 , 414 Exchange , 386 Executors , 78 , 311 , 459 Where they shall have Error or other Actions , 459 Where charged of their own goods 87 , 121 , 153 Renunciation of them , 185 Have action , de bonis testatoris , 278 Execution , 65 , 202 , 247 , 460 , 200 , 313 , 378 Where joynt , where several , 392 Against a person attainted , where not , 466 Exception , 158 , 160 , 79 Extortion , 114 , 327 Extent , 366 Extinguishment , 15 , 135 , 250 , 56 Exposition of words and sentences , 240 , 326 , 439 , 468 Of the word ( De ) and vocat : 22● Of the word ( Term ) 306 Of the word ( Uterque ) 326 Of the Statute of 32 and 33 H. 8. 358 Of the Statute of 21 H. cap. 19. 413 Examination , who is to be examined upon the Statute of 27 Eliz. of Huy and Cry , 456 F. FAlse imprisonment , 462 Feoffments and faits , 31 , 171 , 172 , 204 , 256 , 288 Per nomen , 343 Upon condition , 361 Feme covert , 166 Fine upon Jurors , 181 For Alienation without License , 11 50 , 113 Not paid by Non compos mentis , 11 Not payable upon settlement by Parliament , 113 Post Fines , 338 Fines levied , 51 , 66 , 81 , 85 , 102 , 187 , 188 , 297 , 330 Where shall not bind a Feme covert , 386 Reversed 157 , 445 Where shall be a breach of Condition , 409 Levied by Prescription , 265 By Tenant in tail in Remainder , 361 Formedon , 105 , 154 Forgery of false Deeds , 192 Forfeiture , 51 , 66 , 84 , 139 , 171 , 297 , 254 , 400 Founder and Foundation , 49 Fresh Suits , 72 Fugitives , 12 G. GUardian in socage , 454 Gavelkind , 154 , 450 Grants , 205 , 433 , 380 Of Executors of omnia bona sua , 351 Grants of the King , 12 , 33 , 36 , 49 , 162 , 179 , 237 , 280 , 334 , 338 , 451 , 467 Grants insufficient in point of Limitation , shall not be supplied with subsequent words , 14 H. HAbendum , 13 , 73 , 446 Habeas Corpus , 93 , 94 , 460 I. INtrusion , 12 , 46 , 49 , 223 Indictments , 9 , 146 , 337 , 363 , 404 Upon the Statute of 8 H. 6. 461 Upon the Statute of 23. of Recusancy , 321 , 326 , 322 Upon the Statute of News , 390 Informations , 162 Upon Statute 1 Eliz. 405 Upon Statute of 23 Eliz. cap. 6. 60 Upon the Statute of Usury , 125 , 161 Upon the Statute of Maintenance , 231 291 Upon the Statute of 5 Eliz. for Tillage , 319 Joynture , 44 , 205 Joynder in Action , 402 , 439 , 445 Issue , 89 , 169 , 192 , 241 Judgment , 89 , 428 In the Kings Court not defeated by particular customs . 35 Where satisfied before a Statute , 464 Jurors receiving mony , doth not make the Verdict void , 21 Fined for eating , 181 Justification , 462 K. KIng not bound to demand Rent , 16 L. LEases , 44 , 46 , 165 , 198 , 205 , 239 , 274 , 286 , 308 , 316 , 320 , 332 , 391 , 425 , 446 , 454 By Bishops , 77 By Guardian of a Colledge , 183 Within the Statute of 13 Eliz. 427 Leet , 33 Letter of Attorney , 427 Livery of Seisin , 10 , 48 , 276 , 287 , 349 , 427 Doth prevent Enrolment , 10 Libel in spiritual Court , 13 , 127 , 151 , 174 , 175 M. MArriage , 67 , 235 In right , and possession , 67 Mannor , 33 , 289 Misnosmer , 25 , 49 , 183 , 204 , 298 In Indictments , 337 Where material , where not , 228 Mittimus , 200 Monstrans de droit , 279 Monstrans de faits , 427 N. NOn-residency , 129 Non-suit , 142 Notice , 39 , 139 , 141 Nusance , 234 , 318 O. OBligation , 129 , 132 , 164 , 192 , 214 , 281 Office of Marshal of the King , 451 Of Herald , 337 Of Marshal of the Kings Bench , 451 Office Trove , 27 , 50 , 85 , 223 Outlawry , 84 , 280 , 108 , 148 , 190 Lies not upon a Judgment upon a Bill of Priviledge , 465 P. PArtition , 33 , 68 , 136 , 283 Payment , where not good to the Wife , 450 Post Fines , 338 Plaint , 415 Plenarty , no Plea against the King , 307 Pleadings , 21 , 84 , 102 , 167 , 169 , 176 , 186 , 211 , 274 , 339 , 407 , 430 , 449 Non cepit , where good , 47 Nul tiel Record , 85 , 114 Where Recovery is no Bar , 90 Wherein Pleading must make a Title , 58 Non damnificatus , 95 General and particular , ib. Good to common intent , 102 Of a Fine , ib. Amounts to the general Issue , 251 Of Nonest factum , 257 , 453 Out of his Fee , 294 Fully administred , 434 In disability , where not allowed , 466 Property , 54 Primer seisin , 85 , 341 Protection , 93 , 258 Priviledge , 365 Of Exceptions from Juries , 287 Of London , 384 Plurality , 442 Prerogative , 11 , 15 Prescription , 14 , 100 , 102 , 143 , 147 , 199 , 249 , 299 , 315 , 336 Words of it , 318 In a Stranger , not Tenant , 14 To erect Herdels , 14 , 147 Where it shall not bind the King , 438 For Common , 100 To be a Justice of Peace , 143 To levy a Fine not good , 265 To distrain for Amerciaments , 327 To Repair , 438 by taking Wood in the Lands of another Man , ib. Presentation , 50 , 58 , 84 , 207 Repealed by the King , 218 Passeth not by a Grant of Bona & Catalla , 28 By the Bishop who Collates , shall not put the King out of possession , 307 Praemunire , 399 Proof , 349 Process , 65 Prohibition , 123 , 127 , 174 , 175 , 176 , 177 , 208 , 255 , 325 , 336 , 376 , 367 , 318 , 325 , 388 , 411 , 442 , 467 Q. QUare Impedit , 39 , 50 , 58 , 84 , 85 , 190 , 277 , 213 , 232 , 278 , 280 , 284 , 307 , 312 , 284 , 289 , 455 Causes of Refusal , when good , &c. contr. 39 , 312 R. RAzure of Deeds , 381 Ravishment of Ward , 152 Refusal of the Bishop , 312 Remitter , 40 , 48 , 85 , 118 , 172 Remainder , 134 , 256 , 266 , 336 Upon a Contingent , 330 Remitter 48 Redisseisin , 90 Receipt , 105 Retainer , 153 , 320 Return of the Sheriff , 65 , 200 , 201 , 202 , 312 , 459 Relation , 11 , 355 Of matter of Record , 257 Of a Judgment , 264 Of an Execution , 423 Rents , 187 , 198 , 209 , 280 , 362 , 441 Reserved upon a Lease of Dutchy Lands , 15 To be paid without demand , ib. Charge , parcel of a Manor , 18 Cannot issue out of a Right , 205 Charge , out of Copyholds , 8 Suspended by Entry , 110 , 240 How to be demanded , and when severally , 271 , 425 In esse to some purposes , and suspended to others , 467 Reputation , 18 , 33 , 49 Replication , 56 , 102 , 194 Reversion , 362 Cannot pass without Deed , 429 Reservation , 25 , 446 Restitution , 461 Request , 167 , 303 , 389 Repleader , 102 , 114 Replevin , 33 , 54 , 56 , 64 , 294 Revocation , 113 Recovery , 30 In Assise , where a Bar , 30 Vouchee must appear in person , 101 Common Recovery by an Infant , 296 S. SAles , 225 Seals , 12 , 310 Seisin , 271 , 356 In Fact , and in Law , 318 Seisure , 12 , 84 , 119 Scire facias , 58 , 84 , 187 , 402 Where for the King , & è contr . 84 Against Executors , 84 Upon Audita Querela , 195 Summons and Severance , 445 Stewards of Manors and Courts , 309 , 294 , 444 Statutes , Construction of them , 44 Where they ought to be pleaded , where not , 427 Supersedeas , 189 Sur cui in vita , 210 Surrenders , 378 , 385 , 420 , 226 , 454 By the Steward out of Court , 309 Vide Copyholds . Amounts to an Attornment , 408 Of one Termor to another , not good , 420 By Attorney , not good , 45 T. TAil , 297 Tenant by the Curtesie , 233 Tender , 88 , 95 Upon a Mortgage , 43 Upon an Award , 55 Where it is no Revocation of uses , 113 Toll , 315 Traverse , 12 , 49 , 53 , 56 , 58 , 64 , 68 , 102 , 207 , 213 , 277 , 304 , 331 , 340 , 429 , 467 Where the descent , where the dying seised , 429 Trespass Vi & armis , 110 Trover and Conversion , 304 , 305 , 335 Not against a Feme Covert , 433 Tithes , 13 , 25 , 122 , 174 , 175 , 177 , 208 , 325 , 336 , 367 , 380 , 411 , 467 In London , 25 Become Lay Chattels , 29 Jurisdiction of them , 76 Claimed by Prescription , ib. Discharged by Unity , 467 Trial , 67 , 116 , 148 , 203 , 206 , 255 , 285 , 310 , 413 V. VAriance , 175 , 228 , 33●● Verdict , 86 , 118 , 181 , 426 View , 30 , 106 , 59 Usurpation , 58 , 84 , 307 Uses , 188 , 288 , 330 What it is , 279 And Declaration of them , ib. Not rise out of an Use , 10 Not out of a Possibility , 279 Contingent raised , 31 Void for want of Consideration , 279 Limitation of them , ib. Raised by Covenant and by Feoffment do differ , ib. Suspended , yet the Land devised , 345 Contingent shall bind the Execution of an Estate in possession , 345 Executed to the Possession , 409 W. WAger of Law , 119 , 229 , 282 Wardship , 347 Warning , 82 Wills , 155 , 311 Wither●●m , 302 Warrant of Attorney , 246 Warranty , 252 Wa st , 62 , 79 , 86 , 220 , 282 , 359 By Cestuy que use , 409 Writ , To the Bishop , 84 , 85 , 278 , 289 Of right 212 , 236 , the manner of proceeding in it , 419 Of Enquiry of damages , 278 FINIS .