THE
SECOND
PART
OF
Reports
and
Cases
OF
LAW
,
Argued
and
Adjudged
in
the
time
of
Queen
ELIZABETH
,
from
the
Eighteenth
to
the
Three
and
thirtieth
Year
of
her
Reign
.
I.
Kirkman
and
Reignold
's
Case
.
Mich.
30
Eliz.
In
the
Common
Pleas.
Rot.
30.
THE
Case
was
,
That
a
Lease
was
made
unto
two
,
II.
Thatcher
and
Damport
's
Case
.
Mich.
32
and
33
Eliz.
In
the
King's
Bench.
Rot.
19.
THatcher
recovered
against
Damport
as
Administrator
of
one
Zouch
,
tiel
queb
.
and
Thatcher
proceeded
upon
it
,
and
had
a
Scire
facias
against
the
Bail
,
and
Iudgment
thereupon
given
against
the
Bail
:
Also
the
Record
was
removed
by
Writ
of
Error
,
and
this
second
Iudgment
is
merely
erronious
,
for
then
there
should
be
two
Iudgments
;
and
they
should
give
Iudgment
upon
a
Record
,
which
was
not
before
them
.
Gawdy
Iustice
,
The
Writ
of
Error
is
to
remove
the
Record
,
Si
Judicium
inde
redditum
sit
,
by
which
if
Iudgment
be
not
given
,
the
Record
doth
remain
unremoved
,
and
then
they
may
well
enough
give
Iudgment
;
For
the
former
pretended
Iudgment
was
no
Iudgment
at
all
,
and
the
Record
is
not
removed
,
As
4
Eliz.
Dyer
206.
a
Certiorari
to
remove
a
Record
,
capt.
in
Curia
nostra
,
whereas
it
was
in
Curia
of
the
predecessor
,
the
Record
is
not
removed
.
The
former
Writ
of
Error
was
to
remove
the
Record
of
the
Scire
facias
against
the
Bail
which
might
be
removed
,
although
the
other
Record
did
remain
,
for
they
are
two
distinct
Iudgments
.
And
such
was
the
opinion
of
the
other
Iustices
;
And
afterwards
upon
advice
of
the
whole
Court
,
the
Iudgment
against
the
Defendant
himself
was
affirmed
,
but
that
which
was
given
against
the
Bail
was
reversed
,
because
given
before
Iudgment
given
against
the
Defendant
himself
.
III.
Werdman
and
Yate
's
Case
.
Trinit.
32
Eliz.
In
the
King
's
Bench.
Eliz.
Rot.
43.
and
they
assigned
Errors
,
and
the
opinion
of
the
Court
was
against
them
,
and
they
seeing
it
,
did
discontinue
their
Writ
of
Error
,
and
now
they
sued
a
new
Writ
of
Error
out
of
the
Chancery
,
1.
That
the
Plea
was
discontinued
for
Pone
was
awarded
against
three
of
the
Defendants
,
and
idem
dies
not
given
to
the
other
two
,
nor
any
thing
spoken
of
them
.
2.
Because
there
were
not
fifteen
days
betwixt
the
date
of
the
Pone
,
and
the
Retorn
of
it
,
(
scil.
)
the
first
day
of
the
Retorn
,
i.
the
first
day
of
Essoins
,
as
ought
to
be
by
Law.
3.
Iudgment
was
given
that
the
Defendants
should
be
amerced
,
where
they
appear
upon
the
first
Proces
,
and
thereupon
the
Plaintiff
sued
a
new
Writ
of
Diminution
,
one
to
the
Lord
Anderson
,
and
the
other
to
the
Custos
Brevium
,
And
now
came
and
pleaded
all
the
matter
aforesaid
,
viz.
the
former
Writ
of
Error
,
the
proceeding
in
it
,
and
the
discontinuance
of
it
,
and
demanded
Iudgment
if
the
Plaintiff
should
have
a
new
Writ
of
Diminution
,
upon
which
the
Plaintiff
did
demurr
:
Coke
,
this
second
Writ
of
Error
is
not
maintainable
:
For
the
first
Writ
sent
to
the
Lord
Anderson
,
could
not
be
sued
out
of
the
Chancery
,
for
it
is
not
a
Writ
of
Error
,
but
a
Writ
of
Diminution
:
For
in
the
Register
there
are
but
two
Writs
of
Error
,
the
first
to
remove
Record
,
the
second
Quod
coram
vobis
residet
,
2
H.
7.
19.
and
in
the
Writ
there
is
not
any
mention
of
Error
,
and
therefore
it
cannot
be
a
Writ
of
Error
,
and
if
there
be
not
any
such
Writ
in
the
Register
,
then
it
is
a
good
argument
to
say
there
is
no
Writ
at
all
,
as
the
Lord
Dyer
argued
in
the
Lady
Hale's
Case
,
5
Eliz.
262.
in
Plowden
in
the
Case
of
the
Writ
of
Escheat
:
Also
it
is
against
all
the
precedents
,
that
a
Writ
of
Error
,
Quod
coram
vobis
residet
,
should
be
otherwise
entred
than
upon
the
first
Record
,
and
not
upon
a
new
Record
,
and
the
Writ
of
Diminution
is
not
an
Original
Writ
,
and
ought
always
issue
out
of
the
Court
where
the
Writ
of
Error
is
depending
:
And
also
the
party
cannot
now
alledge
Diminution
,
i.
after
a
Scire
facias
ad
audiendum
Errores
,
which
see
22
E.
4.
Scire
facias
ad
audiendum
Errores
,
he
affirms
the
Record
to
be
full
:
So
7
E.
4.
25.
After
the
Defendant
in
the
Writ
of
Error
hath
pleaded
in
nullo
est
erratum
he
shall
not
alledge
Diminution
,
for
the
parties
are
agreed
upon
the
Record
,
28
H.
6.
10.
after
a
Scire
facias
,
the
Plaintiff
shall
never
assign
Errors
in
fact
,
&c.
Tanfield
contrary
,
he
agreed
,
that
a
Writ
of
Diminution
cannot
be
sued
out
of
the
Chancery
,
but
that
will
not
hurt
us
,
for
it
is
idle
and
utterly
void
:
And
when
the
Record
is
removed
,
it
is
not
material
how
it
comes
in
,
so
as
it
be
here
,
for
they
are
both
the
King's
Court
,
as
it
is
in
the
common
Case
of
Indictments
:
and
then
the
Writ
of
Error
is
to
examine
the
Record
,
Quod
coram
vobis
residet
,
And
although
the
same
be
in
divers
Rolls
,
the
same
is
no
matter
of
Exception
;
Errors
,
Trin.
20.
H.
7.
Rot.
84.
betwixt
Edge-Court
and
London
,
a
Writ
of
Error
was
brought
against
two
,
and
after
Errors
assigned
,
one
of
the
Defendants
died
,
before
a
new
Writ
of
Error
could
be
assigned
:
But
here
the
first
Record
is
discontinued
and
determined
,
for
which
there
is
not
now
any
Record
which
may
be
objected
against
us
,
nor
any
thing
in
it
:
as
20
H.
7.
A
man
avows
for
a
Rent
due
at
such
a
day
,
and
is
nonsuit
;
Now
he
may
avow
for
the
same
Rent
,
and
suppose
the
same
to
be
due
at
another
day
,
IV.
Savacres
Case
.
Rot.
7.
Mich.
31
and
32
Eliz.
In
the
King's-Bench
.
Error
.
A
Writ
of
Error
was
brought
by
Savacre
and
the
Bishop
of
Glocester
upon
a
Iudgment
given
in
a
Quare
Impedit
for
the
Queen
,
and
Errors
assigned
.
1.
Attachment
was
awarded
against
the
Defendants
in
the
Quare
Impedit
,
retornable
Quind
.
Pasc
.
at
which
day
Savacre
appeared
,
and
cast
an
Essoyn
;
and
notwithstanding
that
,
a
Distress
was
awarded
against
them
both
,
retornable
Crastin
.
Trinit
.
and
this
awarding
of
the
Distress
was
erroneous
,
for
the
Essoyn
was
,
as
appeareth
,
to
save
,
&c.
and
therefore
against
him
no
Distress
ought
to
have
been
awarded
:
And
upon
alledging
of
Diminution
the
Record
of
the
Essoyn
was
certified
,
but
the
same
doth
not
appear
upon
the
Plea
Roll.
2.
This
Record
is
,
ideo
ipsi
in
misericordia
,
and
so
both
the
Defendants
are
amerced
for
their
default
of
appearance
15
Pasch.
whereas
Savacre
was
then
Essoyned
,
and
so
no
cause
to
amerce
him
.
Coke
,
The
Original
Writ
was
sued
Mich.
26
Eliz.
retorned
15
Hillarii
,
and
then
both
the
Defendants
made
default
,
for
which
an
Attachment
was
awarded
,
retornable
15
Pasc
.
and
then
Savacre
appeared
,
and
Iudgment
given
,
quod
ipsi
sint
in
misericordia
,
in
which
point
the
Error
is
apparent
:
but
I
conceive
that
it
is
not
Error
,
for
upon
the
Attachment
the
parties
ought
to
put
in
Sureties
for
their
appearance
;
and
the
said
Sureties
took
upon
them
,
that
the
Defendants
and
each
of
them
should
appear
;
and
if
they
or
any
of
them
make
default
,
they
shall
be
amerced
:
And
so
here
,
this
Iudgment
,
ideo
ipsi
in
misericodia
,
doth
refer
to
the
Sureties
,
not
to
the
parties
,
for
the
Defendants
shall
not
be
amerced
until
the
end
of
the
Suit
,
and
but
once
onely
in
an
Action
:
which
see
Book
of
Entries
464
where
there
was
but
one
Defendant
:
and
therefore
if
the
amercements
shall
be
referred
to
the
Defendant
,
then
it
shall
be
ideo
ipse
,
not
ipsi
,
&c.
And
that
is
the
Reason
wherefore
the
Queen
,
nor
an
Infant
,
shall
not
find
Pledges
,
for
no
amercement
shall
be
upon
their
default
,
therefore
it
were
in
vain
for
them
to
find
Pledges
,
&c.
If
the
Sureties
be
amerced
where
they
ought
not
to
be
amerced
by
the
Law
,
yet
the
Defendant
shall
not
have
a
Writ
of
Error
thereupon
,
for
he
is
not
the
party
grieved
by
the
amercement
:
and
upon
that
Reason
it
is
,
if
in
a
Scire
facias
against
the
Bail
erroneous
Iudgment
be
given
,
the
Defendant
in
the
Action
shall
not
have
a
Writ
of
Error
.
The
awarding
of
the
Distress
upon
the
Roll
against
both
,
where
one
of
them
only
made
default
,
is
not
Error
,
especially
as
this
case
is
:
for
although
one
of
them
was
essoyned
until
the
day
aforesaid
,
yet
at
that
day
they
make
default
,
and
so
the
Distress
well
awarded
against
them
:
and
although
the
Writ
was
not
well
awarded
,
yet
when
they
appear
Crastin
.
Trinit
.
at
the
day
of
the
Retorn
of
the
Distress
,
all
mesn
defaults
in
the
Process
are
saved
,
and
so
the
misawarding
of
the
Distress
by
appearance
after
is
supplyed
:
as
39
E.
3.
7.
The
Law
requires
,
that
in
an
Action
founded
upon
the
Statute
of
Praemunire
,
&c.
27
E.
3.
the
Defendant
gave
Garnishment
by
two
Months
,
yet
if
the
Defendant
,
not
having
warning
appear
,
now
the
Process
is
good
enough
:
So
9
E.
4.
18.
where
upon
any
Process
the
Defendant
doth
appear
,
although
the
day
of
appearance
be
not
lawful
,
yet
he
shall
be
put
to
answer
,
and
see
many
Cases
there
to
that
purpose
.
And
so
was
the
Opinion
of
the
Court
in
the
principal
Case
.
As
to
the
second
Error
,
That
this
Iudgment
,
ideo
ipsi
in
misericordia
,
shall
be
reserved
to
the
Sureties
onely
,
and
not
to
the
party
,
and
that
the
Defendant
shall
be
but
once
amerced
in
one
Action
;
True
it
is
,
he
shall
be
amerced
but
once
for
one
default
;
but
if
there
be
many
defaults
,
the
Defendant
shall
be
amerced
severally
for
the
several
defaults
for
every
offence
;
and
it
should
be
unreasonable
that
the
Sureties
should
be
amerced
,
and
that
the
Defendant
,
who
is
the
principal
,
should
be
freed
:
which
see
in
the
book
of
Entries
193.
ipsique
&
plegii
sui
in
misericordia
,
&c.
V.
Nevil
and
Cook
's
Case
.
Trinit.
32
Eliz.
Rot.
76.
In
the
King's-Bench
.
IN
an
Action
of
Covenant
the
Plaintiff
declared
,
VI.
Elizabeth
Dormer
's
Case
.
Trinit.
32
Eliz.
In
the
King's-Bench
.
ELizabeth
Dormer
was
indicted
upon
the
Statute
of
23
Eliz.
of
Recusancy
;
and
Exception
was
taken
to
the
Indictment
,
Eliz.
Fenner
was
of
Opinion
,
that
the
last
Contra
formam
Statuti
should
be
referred
to
the
Statute
of
23
Eliz.
Wray
contrary
,
and
that
it
should
be
referred
to
the
Statute
of
1
Eliz.
It
was
adjourned
.
VII
.
Cranmer
's
Case
.
16
Eliz.
In
the
Common-Pleas
.
THE
Case
was
,
That
Thomas
Cranmer
,
Thomas
Cranmer
was
attainted
of
Treason
,
and
dyed
,
so
as
he
could
not
make
Executors
,
but
dyed
intestate
without
any
assignment
.
Ejectione
firmae
.
Manwood
.
All
the
doubt
of
this
case
is
,
If
the
said
term
was
in
Tho.
Cranmer
so
as
he
might
forfeit
it
?
And
he
conceived
,
that
the
said
term
was
in
Tho.
Cranmer
,
and
that
he
had
not
power
onely
to
dispose
of
it
,
but
also
had
possession
of
it
:
11
H.
4.
186.
Scire
facias
67.
And
Br.
Annuity
17.
Such
a
Grant
is
good
and
effectual
,
and
if
he
do
not
grant
it
his
Executors
shall
have
it
,
and
yet
the
term
was
not
limited
to
him
,
but
he
shall
have
it
by
implication
of
Law.
39
E.
3.
A
Lease
was
made
to
one
,
his
Heirs
and
Assigns
during
his
life
,
and
one
year
after
,
the
Executors
shall
have
the
said
term
after
the
death
of
the
Lessee
,
yet
the
said
term
was
not
limited
to
him
:
7
E.
3.
A
Lease
made
for
term
of
live
and
a
year
after
,
in
that
case
the
term
is
conjoyned
unto
the
Estate
for
life
by
the
act
of
the
Grantor
himself
;
and
there
is
a
difference
when
the
Remainder
is
joyned
to
the
particular
Estate
by
the
act
of
the
Grantor
,
and
by
any
Purchase
,
Grant
,
or
any
act
after
:
for
in
the
first
case
the
Remainder
shall
be
executed
,
but
in
the
latter
not
.
A
Lease
for
life
,
the
Remainder
in
tail
,
the
Remainder
to
the
right
Heirs
of
Tenant
for
life
;
he
in
the
Remainder
in
tail
dyeth
without
issue
in
the
life
of
Tenant
for
life
,
now
the
Fee
is
executed
to
the
Freehold
,
&c.
and
the
Heir
shall
not
have
a
Scire
facias
where
such
conveyance
is
made
by
Fine
.
See
17
E.
3.
29.
In
a
Cui
in
vita
,
A.
Executor
of
B.
came
and
said
,
that
the
Land
in
demand
was
Leased
to
the
said
B.
for
the
term
of
his
life
,
the
Remainder
for
the
term
of
eight
years
to
his
Executors
,
and
prayed
to
be
received
,
and
they
were
received
.
See
19
E.
3.
A
Lease
was
made
for
life
to
A.
the
Remainder
to
his
Executors
for
twelve
years
:
the
Lesse
for
life
died
,
the
Executors
died
,
there
it
is
agreed
,
that
the
Executors
of
the
Executors
should
have
an
Action
of
Covenant
,
if
they
be
ousted
.
And
see
20
E.
3.
Quid
juris
clamat
31.
A
Lease
is
made
to
A.
for
life
,
and
if
A.
dieth
within
twenty
years
,
that
his
Executors
shall
have
the
term
until
the
end
of
such
term
:
and
in
a
Quid
juris
clamat
against
A.
he
saved
his
term
by
protestation
,
which
proves
,
that
the
term
was
quodam
modo
in
him
.
49
E.
3.
A
Lease
for
life
unto
A.
the
Remainder
to
his
Heirs
and
Executors
for
twelve
years
,
and
afterwards
the
Lessor
confirms
the
Estate
of
the
Lessee
for
life
,
to
have
and
to
hold
the
Land
to
him
for
life
,
and
thirteen
years
over
to
his
Executors
;
the
Lessee
deviseth
the
term
,
and
the
Devise
holden
good
,
which
proves
,
that
the
term
was
in
him
.
Harper
,
Iustice
,
contrary
:
Many
cases
put
before
may
be
answered
;
for
in
the
said
case
the
term
is
limited
to
begin
immediately
,
and
not
by
way
of
Remainder
,
or
after
the
death
of
the
Lessee
,
and
then
the
Executors
in
the
life
of
the
Testator
are
not
known
,
nor
able
to
seek
any
thing
by
the
name
of
Executors
,
and
therefore
that
term
shall
take
its
beginning
in
the
life
of
the
Testator
:
But
in
the
Case
at
Bar
the
term
is
limited
to
the
Executors
after
the
death
of
the
Testator
,
Dyer
,
chief
Iustice
,
to
the
same
intent
:
The
Feoffor
,
i.
Thomas
Cranmer
,
limits
all
the
uses
,
and
therefore
he
shall
not
have
that
which
he
hath
limited
;
and
it
is
in
the
nature
of
a
Reservation
,
which
shall
be
taken
strictly
and
very
strong
against
him
who
made
the
Reservation
:
and
he
relied
much
upon
the
last
Reason
urged
by
Harper
upon
the
Statute
of
27
H.
8.
that
this
was
limited
to
the
Executors
,
B.
B.
purchaseth
the
Estate
of
A.
the
Estate
in
Remainder
is
not
executed
,
for
it
is
not
conveyed
by
the
Grant
of
the
first
Grantor
,
but
by
the
Act
of
another
person
after
the
Grant.
A
Lease
for
life
to
A.
the
Remainder
to
a
Feme
sole
for
years
,
they
entermarry
,
Waste
is
committed
,
the
Lessor
brings
an
Action
of
Waste
,
he
shall
recover
as
well
the
Estate
for
years
as
for
life
.
A.
Leaseth
unto
B.
for
life
,
the
Remainder
unto
the
Executors
of
A.
for
years
,
the
Remainder
over
in
Fee
to
a
stranger
,
the
Remainder
for
years
is
good
,
for
the
Lessor
cannot
limit
such
an
Estate
to
himself
,
and
the
Executors
shall
take
the
Estate
as
Purchasors
,
and
the
term
shall
be
in
abeyance
untill
the
death
of
A.
There
was
a
case
before
the
Lord
Brook
in
the
time
of
Queen
Mary
,
viz.
A
Lease
was
made
for
life
,
Proviso
,
that
if
the
Lessee
dieth
within
the
term
of
sixty
years
,
that
the
Executors
shall
have
the
Lands
,
as
in
the
Right
and
Title
of
the
Lessee
,
pro
termino
totidem
annorum
,
which
do
amount
to
the
number
of
sixty
years
,
to
be
accounted
from
the
said
Indenture
.
The
Opinion
of
the
Iustices
of
the
Common
Pleas
upon
the
Case
was
,
That
the
term
was
not
in
the
Lessee
for
life
.
So
this
future
term
in
the
principal
Case
was
not
in
Tho.
Cranmer
.
But
see
that
Case
cited
by
Dyer
,
reported
by
himself
4
Ma.
150.
and
there
the
opinion
of
the
Court
was
,
That
the
same
was
not
a
Lease
,
but
a
Covenant
.
And
afterwards
in
the
principal
Case
Iudgment
was
given
for
the
Plaintiff
,
That
the
future
term
was
not
forfeited
by
the
Attainder
of
Cranmer
.
VIII
.
7
Eliz.
In
the
Common
Pleas.
THE
Case
was
,
J.
S.
is
seised
of
a
Close
adjoyning
to
the
Close
of
J.
D.
and
J.
S.
ought
to
enclose
against
J.
D.
J.
S.
leaseth
his
Close
to
another
for
years
,
rendring
Rent
,
J.
D.
puts
in
his
cattle
into
his
own
Close
,
who
for
want
of
enclosure
escape
into
the
Close
of
J.
S.
and
before
that
they
be
levant
and
couchant
,
J.
S.
distrains
them
for
his
Rent
:
It
was
said
by
Manwood
,
Iustice
,
that
the
distress
was
not
well
taken
;
Quod
Harper
&
Mounson
concesserunt
,
and
Iudgment
was
given
accordingly
.
IX
.
17
Eliz.
In
the
Common
Pleas.
B.
A.
pleaded
several
tenancy
:
It
was
holden
by
Dyer
,
chief
Iustice
,
that
it
is
not
any
plea.
Harper
Iustice
:
In
Assise
it
is
no
plea
;
for
here
the
Land
is
not
in
demand
:
Writ
;
Manwood
,
In
no
action
founded
upon
disseisin
is
this
good
:
For
although
the
Demandant
by
policy
will
bring
his
Writ
against
the
Tenant
of
the
Land
,
and
another
who
he
will
name
in
the
Writ
,
upon
trust
and
confidence
,
and
that
he
will
not
agree
with
the
Tenant
of
the
Lord
in
Dilatories
,
for
the
Tenant
of
the
Lands
shall
not
be
received
to
plead
Dilatories
;
Yet
in
that
case
several
Tenancy
is
no
plea
for
the
Tenant
,
but
in
a
Formedon
,
or
other
such
like
action
,
which
is
not
grounded
upon
disseisin
,
if
the
Writ
be
brought
in
such
manner
as
above
,
the
Tenant
by
policy
,
that
he
may
have
the
view
,
and
other
reasonable
delay
,
may
plead
several
Tenancy
,
and
so
enforce
the
Demandant
to
maintain
his
Writ
,
but
contrary
in
the
Case
at
Bar
,
and
so
it
was
adjudged
per
Curiam
.
X.
Creswell
and
Cokes
Case
.
19
Eliz.
In
the
Common
Pleas.
l.
&c.
for
the
person
of
the
Debtor
is
chargeable
,
and
peradventure
,
goods
of
the
value
of
2000
l.
may
be
put
in
execution
for
100
l.
but
here
the
person
is
not
charged
for
the
Heriot
.
Barham
Serjeant
,
the
fraud
goes
to
the
whole
(
scil.
)
to
all
the
Horses
:
for
although
the
Plaintiff
is
to
have
but
one
Horse
,
yet
he
is
to
have
the
choice
of
all
the
Horses
,
which
of
them
he
will
have
for
the
best
Beast
,
and
because
the
choice
goes
to
all
the
thirty
Horses
;
and
by
this
fraudulent
Gift
,
he
is
defrauded
of
his
election
,
which
of
the
Horses
he
would
have
,
therefore
he
shall
have
the
value
of
the
whole
thirty
Horses
.
But
Dyer
and
Mounson
said
to
the
Serjeant
,
set
a
price
upon
any
of
the
thirty
Horses
,
as
the
best
Horse
in
your
election
,
and
demand
the
value
of
that
Horse
as
forfeit
by
the
Statute
,
and
then
your
election
is
saved
to
you
.
XI
.
Gregory
's
Case
.
19
Eliz.
In
the
common
Pleas.
IN
the
Assise
against
Arthur
Gregory
and
his
wife
at
Warwick
,
XII
.
19
Eliz.
In
the
Common
Ples
.
IN
an
Action
upon
Escape
,
the
Plaintiff
is
nonsuit
:
It
was
holden
,
i.
(
Upon
any
Action
upon
the
Statute
)
for
any
offence
or
personal
wrong
,
supposed
to
be
done
immediately
to
the
Plaintiff
,
notwithstanding
this
Action
,
is
Quodam
modo
,
an
Action
upon
the
Statute
,
i.
by
the
equity
of
the
Statute
of
West
.
2.
which
gives
expresly
against
the
Warden
of
the
Fleet
;
yet
properly
it
is
not
an
Action
upon
the
Statute
:
for
in
the
Declaration
in
such
actions
,
no
mention
is
made
of
the
Statute
,
which
see
in
the
Book
of
Entries
,
169
,
171.
And
here
is
not
supposed
any
immediate
personal
wrong
or
offence
to
the
Plaintiff
:
And
an
Action
upon
the
Case
it
is
not
:
for
then
the
Writ
ought
to
make
mention
of
the
Escape
,
and
that
it
doth
not
here
;
and
yet
at
the
Common
Law
,
before
the
Statute
of
West
.
2.
An
Action
upon
the
Case
did
lie
for
an
Escape
:
and
so
Dyer
,
Manwood
,
and
Mounson
,
costs
are
not
given
in
this
Case
.
And
by
Manwood
,
upon
the
Nonsuit
,
in
an
Action
upon
the
Statute
of
8
H.
6.
the
Defendant
shall
not
have
costs
,
for
that
is
not
a
personal
wrong
,
for
the
Writ
is
dissesivit
,
which
is
a
real
wrong
.
Mich.
19
and
20
Eliz.
In
the
King's-Bench
.
Usque
ad
Rectoriam
de
D.
from
such
a
place
:
And
it
was
holden
by
Wray
,
and
the
whole
Court
,
that
the
plea
was
not
good
;
for
in
pleading
such
a
way
,
there
ought
to
be
set
forth
,
terminus
a
quo
,
&
terminus
ad
quem
,
And
this
word
Rectory
,
which
ought
to
be
terminus
ad
quem
,
is
incertain
;
for
a
Rectory
is
a
thing
which
consists
of
divers
things
,
as
Glebe
,
Tithes
,
&c.
But
he
ought
to
have
said
,
the
Parsonage
House
,
or
other
place
certain
:
And
afterwards
it
was
shewed
to
the
Court
,
that
the
said
Rectory
did
consist
onely
of
Tithes
,
and
so
there
is
not
any
place
certain
,
as
Parsonage
House
,
Barn
,
&c.
to
which
the
Tithes
have
used
to
be
carried
,
for
the
Tithes
have
used
to
be
let
to
farm
to
divers
persons
,
who
have
carried
such
Tithes
to
their
own
houses
,
and
the
Defendant
is
one
of
the
Farmers
of
the
Tithes
.
Wray
,
If
your
case
be
such
,
you
are
to
plead
in
this
manner
;
That
J.
S.
is
seised
in
Fee
of
the
Rectory
of
D.
and
that
time
out
of
mind
,
he
,
and
all
those
,
&c.
have
used
for
them
and
theirs
formerly
to
have
a
way
to
carry
their
Tithes
from
such
a
place
over
the
Land
where
,
&c.
unto
such
a
high
way
,
and
name
a
way
,
which
is
the
next
to
the
place
where
the
trespass
was
done
;
the
which
cause
the
Defendant
pleaded
so
according
to
the
direction
of
the
Court.
XIV
.
Wingfield
and
Seckford
's
Case
.
Hillar.
20
Eliz.
In
the
Common
Pleas.
Dyer
,
Manwood
,
and
Mounson
,
rein
luy
doit
,
and
the
Court
advised
the
Defendant
to
plead
accordingly
.
XV.
Beamont
and
Dean
's
Case
.
Hillar.
20
Eliz.
In
the
Common-Pleas
.
l.
per
ann
.
to
the
Demandant
,
in
recompence
of
her
Dower
,
upon
which
the
Demandant
did
demur
in
Law
;
and
the
cause
was
,
because
the
Tenant
had
not
shewed
what
Estate
he
had
in
the
Lands
at
the
time
of
the
granting
of
the
Rent
,
as
to
say
,
that
he
was
seised
in
Fee
,
and
granted
the
said
Rent
;
so
as
it
might
appear
to
the
Court
upon
the
plea
,
that
the
Tenant
had
a
lawfull
power
to
grant
such
a
Rent
,
which
was
granted
by
the
whole
Court
,
and
the
demur
holden
good
.
XVI
.
Hinde
and
Sir
John
Lyon
's
Case
.
Hill.
20
Eliz.
In
the
Common-Pleas
.
IN
Debt
by
the
Plaintiff
against
the
Defendant
as
Heir
,
J.
S.
the
Remainder
over
to
another
:
The
Devisor
died
,
the
Son
came
to
the
age
of
24
years
;
and
the
Question
was
,
If
the
Son
hath
an
Estate-tayl
,
for
then
for
two
parts
he
is
not
in
by
Descent
?
And
by
Dyer
and
Manwood
,
Iustices
,
here
is
not
any
Estate
tayl
,
for
no
tayl
was
to
rise
before
his
said
age
,
and
therefore
the
tayl
shall
never
take
effect
;
and
the
Fee-simple
doth
descend
,
and
remain
in
the
Son
,
unless
he
dieth
within
the
age
of
24
years
,
and
then
the
Entail
vests
with
the
Remainders
over
.
But
now
having
attained
his
said
age
,
he
hath
a
Fee-simple
,
and
that
by
Descent
of
the
whole
Manor
,
and
a
general
Iudgment
shall
be
given
against
him
,
as
of
his
own
Debt
:
And
an
Elegit
shall
issue
forth
of
the
moyety
of
all
his
Lands
,
as
well
those
which
he
hath
by
descent
from
the
same
Ancestor
,
as
any
else
;
and
a
Capias
lieth
against
him
.
But
Manwood
conceived
,
That
if
general
Iudgment
be
given
against
the
Heir
by
default
,
in
such
a
case
a
Capias
doth
not
lie
,
although
in
case
of
false
Plea
it
lieth
.
Dyer
contrary
;
and
the
Writ
against
the
Heir
is
in
the
Debet
&
Detinet
,
which
proves
,
that
in
Law
it
is
his
own
Debt
:
and
he
said
,
that
he
could
shew
a
precedent
where
such
an
Action
was
maintainable
against
the
Executors
of
the
Heir
.
XVII
.
Hil.
20
Eliz.
In
the
Common-Pleas
.
A
Man
made
a
Lease
of
Lands
by
Indenture
,
Duffam
in
rerum
natura
,
at
the
time
of
the
supposed
Lease
made
to
Duffam
:
it
was
argued
,
Duffam
,
&c.
And
also
if
no
such
person
was
,
then
the
first
Lease
was
void
,
and
then
the
second
Lease
shall
begin
presently
,
which
Manwood
and
Mounson
granted
,
and
by
Manwood
,
the
Defendant
shall
be
estopped
by
the
Recital
of
the
first
Lease
,
to
say
,
That
there
was
no
such
Duffam
:
And
although
the
common
Ground
is
,
That
a
Recital
is
not
an
Estoppel
,
yet
where
the
Recital
is
material
,
as
it
is
here
,
it
is
otherwise
,
for
here
the
second
Lease
is
to
begin
upon
the
expiration
of
the
recited
Lease
;
and
therefore
in
this
case
it
shall
be
an
Estoppel
.
XVIII
.
Mich.
20
Eliz.
In
the
King's-Bench
.
XIX
.
19
Eliz.
In
the
Common-Pleas
.
A.
Barham
,
Serjeant
,
took
Exception
to
the
Declaration
,
because
it
appeareth
upon
it
,
that
the
half
year
after
the
Robbery
is
not
yet
come
;
for
by
the
said
Statute
it
is
ordained
,
that
the
Countrey
have
no
longer
time
than
half
a
year
after
the
Robbery
done
,
within
which
time
facent-gree
of
the
Robbery
,
or
respondent
the
body
of
the
Misfeasors
.
And
here
the
Action
is
brought
within
the
half
year
:
And
for
this
cause
the
Declaration
was
holden
to
be
insufficient
by
the
whole
Court.
And
the
Lord
Dyer
spake
much
in
commendation
of
that
Statute
being
made
for
the
publick
benefit
of
the
whole
Commonwealth
:
for
the
Law
intends
when
a
Robbery
is
done
,
That
if
the
Countrey
will
not
pursue
the
Malefactors
,
that
some
of
them
are
Receivers
or
Abettors
of
the
Felons
.
Manwood
,
Iustice
,
said
,
When
I
was
a
Servant
to
Sir
James
Hales
,
one
of
the
Iustices
of
the
Common-Pleas
,
one
of
his
Servants
was
robbed
at
Gadds
Hill
,
within
the
Hundred
of
Gravesend
in
Kent
,
and
he
sued
the
men
of
the
Hundred
upon
this
Statute
;
and
it
seemed
hard
to
the
Inhabitants
there
,
that
they
should
answer
for
the
Robberies
done
at
Gadds
Hill
,
because
Robberies
are
there
so
frequent
,
that
if
they
should
answer
for
all
of
them
,
that
they
should
be
utterly
undone
.
And
Harris
,
Serjeant
,
was
of
Councill
with
the
Inhabitants
of
Gravesend
,
and
pleaded
for
them
,
that
time
out
of
mind
,
&c.
Felons
had
used
to
rob
at
Gadds
Hill
,
and
so
prescribed
,
and
afterwards
by
award
they
were
charged
:
And
note
,
That
the
Case
was
,
that
three
men
were
robbed
,
and
they
three
joined
in
the
Action
against
the
Inhabitants
.
XX.
Colshil
and
Hasting
's
Case
.
20
Eliz.
In
the
Common-Pleas
.
AN
Extent
was
sued
forth
upon
a
Statute-Merchant
by
Colshil
against
Hastings
,
for
Lands
in
his
possession
in
the
County
of
Southampton
:
The
Sheriff
put
the
Plaintiff
the
Conusee
in
possession
of
parcel
of
a
House
and
of
Lands
,
and
suffered
Hastings
to
continue
in
the
rest
of
the
House
,
Alias
Breve
might
be
well
awarded
.
And
afterwards
,
this
second
Writ
of
Extent
was
not
filed
by
order
of
the
Court
:
And
note
,
that
the
new
Sheriff
was
examined
upon
his
Oath
by
the
Court
of
the
Action
,
and
he
said
,
that
he
made
the
retorn
by
the
advice
of
Master
Plowden
,
who
told
him
,
that
he
might
safely
retorn
,
that
the
Land
was
formerly
extended
,
and
although
that
the
said
Extent
was
not
retorned
;
yet
it
is
an
Execution
for
the
Party
.
Manwood
,
Certainly
this
is
an
insufficient
retorn
:
But
,
perhaps
Master
Plowden
did
not
know
of
this
entry
in
the
Roll
,
as
aforesaid
,
for
now
it
appeareth
upon
Record
,
that
no
Execution
was
done
.
If
this
entry
had
not
been
,
I
should
well
agree
with
Master
Plowden
,
that
the
same
is
an
Execution
for
the
party
,
although
it
be
not
retorned
.
XXI
.
Steward
's
Case
.
19
Eliz.
In
the
Common-Pleas
.
THE
Case
was
,
A.
seised
of
certain
Lands
in
Fee
,
granted
a
Rent-charge
out
of
the
same
to
another
,
and
afterwards
aliened
the
Lands
to
a
stranger
.
The
Grantee
in
a
Replevin
did
avow
for
the
Rent
,
and
the
other
party
pleaded
,
that
nothing
passed
by
the
Deed
:
It
was
holden
by
the
whole
Court
to
be
no
plea
,
nor
can
any
issue
be
joined
upon
it
,
but
the
Plaintiff
ought
to
have
said
,
That
he
did
not
grant
by
the
Deed
:
For
the
same
is
a
Rent
newly
created
,
and
which
had
not
his
essence
before
the
grant
,
and
it
cannot
properly
be
said
,
That
nothing
passed
by
the
Deed
,
but
not
of
a
thing
that
is
in
esse
,
but
of
things
not
in
esse
,
That
he
did
not
grant
,
is
the
most
natural
issue
,
for
a
thing
not
in
esse
,
non
potest
transire
.
XXII
.
19
Eliz.
In
the
King's-Bench
.
IN
an
Action
upon
the
Case
upon
a
Trover
and
Conversion
to
his
own
use
per
venditionem
quibusdam
hominibus
ignotis
,
J.
S.
to
whom
he
had
delivered
them
,
absque
hoc
,
that
he
did
convert
them
to
his
own
use
,
per
venditionem
hominibus
ignotis
.
It
was
moved
by
Egerton
,
that
that
matter
is
not
traversable
,
quod
Wray
concessit
,
for
the
conversion
to
his
own
use
,
is
the
cause
and
ground
of
the
Action
,
and
not
the
selling
of
the
goods
,
&c.
XXIII
.
Mich.
19
and
20
Eliz.
In
the
Common-Pleas
.
A
Man
was
outlawed
in
the
Court
of
Hustings
of
London
;
and
the
Hustings
in
which
the
Iudgment
of
Outlawry
was
given
,
XXIV
.
Lovelesse
's
Case
.
19
Eliz.
In
the
Common-Pleas
.
XXV
.
Eliz.
In
the
Common-Pleas
.
Brent
's
Case
.
Robert
Brent
,
the
Husband
,
levyed
a
Fine
to
the
same
uses
,
and
took
a
second
Wife
,
and
died
:
The
second
Wife
,
by
the
assent
and
commandment
of
the
first
Feoffees
,
after
the
five
years
past
after
the
Fine
,
entered
to
raise
the
uses
mentioned
in
the
first
Feoffment
limited
to
the
second
Wife
.
This
Case
was
argued
by
all
the
Iustices
of
the
Court
of
Common-Pleas
:
and
Mounson
,
Iustice
,
conceived
that
the
Entry
of
the
Wife
was
lawfull
,
and
that
without
the
assent
or
commandment
of
the
Feoffees
.
An
use
may
be
limited
to
one
who
is
in
esse
,
or
in
posse
;
and
the
second
Wife
here
was
in
esse
when
the
use
was
limited
,
and
she
was
also
in
posse
;
for
by
possibility
the
first
Wife
might
die
,
and
also
by
possibility
the
Feoffor
might
take
to
Wife
this
Woman
.
A
Gift
to
one
who
is
not
in
esse
or
in
posse
,
is
void
.
A
Gift
to
J.
S.
&
primogenito
filio
suo
,
if
he
have
a
Son
alive
at
the
time
of
the
Gift
,
he
shall
take
jointly
with
his
Father
;
but
if
not
,
tr
.
Mortmain
39.
There
is
a
glance
at
uses
44
E.
3.
25.
b.
the
words
are
,
En
foy
demist
,
&c.
and
the
Feoffees
sued
Livery
.
And
the
first
mention
of
Vses
in
our
Books
is
30
H.
6.
Br.
Title
to
Uses
49.
and
the
same
case
Devise
Fitz.
22.
In
the
time
of
E.
4.
Vses
were
more
frequent
;
for
5
E.
4.
8.
divers
cases
concerning
Vses
are
there
put
,
&c.
and
afterwards
1
R.
3.
a
new
Statute
was
made
for
the
benefit
of
Cestuy
que
use
:
and
afterwards
the
Statute
of
4
H.
7.
for
the
Wardship
of
Cestuy
que
use
:
and
afterwards
the
Statute
of
27
H.
8.
which
made
an
end
of
Vses
.
These
Vses
at
the
first
were
of
no
value
,
but
afterwards
by
continuance
Communis
error
fecit
jus
,
so
as
they
were
taken
and
esteemed
as
Inheritances
:
And
they
cannot
be
more
fitly
resembled
to
any
thing
,
as
to
Copyholds
,
which
at
beginning
were
but
Tenures
at
will
,
and
were
not
known
at
the
Common
Law
,
but
now
they
are
in
the
same
reputation
in
Law
as
Inheritances
:
and
they
are
not
guided
by
the
Rules
of
the
Common
Law
,
but
by
the
intent
of
the
parties
:
which
appeareth
in
this
Case
at
Bar
to
be
,
That
she
who
should
be
the
second
Wife
of
Robert
Brent
,
the
Feoffor
,
should
have
the
Lands
ut
supra
:
and
therefore
this
Vse
shall
rise
,
and
the
Statute
of
27
H.
8.
shall
draw
the
possession
after
it
.
Manwood
,
Iustice
;
As
to
the
commencement
of
Vse
,
it
hath
been
as
long
as
mankind
hath
been
guided
by
Reason
:
and
although
no
mention
is
made
of
Vses
in
our
ancient
Books
,
yet
that
is
no
argument
that
Vses
have
been
but
of
late
times
.
Vses
were
not
common
,
therefore
were
not
at
all
,
is
a
Non
sequitur
.
As
long
as
Wills
have
been
,
Trust
and
Confidence
hath
been
;
and
also
as
long
as
Marriage
hath
been
.
See
the
Writ
of
Causa
Matrimonii
prolocuti
:
and
see
the
Statute
of
Marlbridg
,
cap.
6.
there
is
mention
of
falsa
Feoffamenta
:
And
note
,
by
other
words
of
the
said
Statute
there
was
a
Trust
,
but
it
was
a
false
trust
to
deceive
another
;
and
therefore
such
a
mis-shapen
Trust
is
not
called
a
Trust
by
the
said
Statute
,
but
a
Collusion
.
And
Mr.
Littleton
saith
,
That
Cestuy
que
use
shall
be
sworn
upon
Enquests
,
which
was
not
enacted
by
any
Statute
,
but
practised
and
put
in
ure
by
reason
of
Common
Law.
And
I
have
seen
divers
ancient
Deeds
of
Vses
:
and
in
ancient
time
,
you
shall
not
find
that
any
would
purchase
Lands
to
himself
alone
,
but
had
two
or
three
joint
Feoffees
with
him
;
and
he
who
was
first
named
in
the
Charter
of
Feoffment
,
was
Cestuy
que
use
,
although
that
no
Vse
was
declared
unto
him
upon
the
Livery
,
and
so
it
was
known
by
the
occupation
of
the
Lands
.
And
the
reason
why
no
mention
is
made
in
our
ancient
Books
of
Vses
,
is
,
because
men
were
then
of
better
Consciences
than
now
they
are
,
so
as
the
Feoffees
did
not
give
occasion
to
their
Feoffors
to
bring
Subpoena's
to
compell
them
to
perform
the
Trusts
reposed
in
them
.
As
to
that
which
hath
been
said
,
That
Vses
have
taken
their
beginning
after
the
Statute
of
West
.
3.
For
before
the
said
Statute
,
if
a
man
had
made
a
Feoffment
in
Fee
without
declaring
any
use
,
it
should
be
to
the
use
of
the
Feoffee
,
because
there
is
a
sufficient
consideration
betwixt
the
Feoffor
and
Feoffee
to
raise
the
use
,
i.
the
Seignory
created
by
the
Law
betwixt
them
:
but
now
by
the
said
Statute
such
consideration
is
taken
away
;
and
then
upon
such
Feoffment
,
without
consideration
or
declaration
of
use
,
it
is
to
the
use
of
the
Feoffor
himself
;
the
same
is
no
reason
against
them
:
for
although
that
an
Vse
implied
was
not
before
the
said
Statute
of
West
.
3.
yet
a
Vse
expressed
was
;
and
if
before
the
said
Statute
the
Feoffor
had
declared
an
Vse
;
the
same
had
been
good
:
as
at
this
day
,
a
Gift
in
tail
,
or
a
Lease
for
life
,
is
made
to
another
use
,
yet
notwithstanding
that
the
Law
doth
create
a
Tenure
upon
the
Lease
or
Gift
,
yet
the
use
expressed
shall
be
good
.
And
although
Vses
are
of
such
Antiquity
,
yet
they
are
not
directed
by
the
Rules
of
the
common
Law
,
but
by
the
Will
of
the
Owner
of
the
Lands
:
For
the
Vse
is
in
his
hands
as
clay
is
in
the
hands
of
the
Potter
which
he
in
whose
hands
it
is
may
put
into
what
form
he
pleaseth
:
And
notwithstanding
that
now
the
possession
be
executed
to
the
Vse
,
yet
the
property
and
quality
,
as
abstracted
from
the
possession
,
shall
not
be
drowned
in
the
possession
:
and
so
for
as
much
as
Vses
were
by
permission
of
Law
guided
at
the
wills
of
the
parties
,
so
also
shall
be
the
possessions
:
And
so
because
,
That
an
use
,
as
abstracted
from
the
possession
,
might
have
been
well
limited
to
the
Wife
which
should
be
,
notwithstanding
that
at
the
time
of
such
limitation
such
a
one
was
not
in
esse
,
in
the
same
manner
it
shall
be
now
,
when
the
possession
is
presently
executed
to
the
use
:
and
so
in
this
case
,
the
second
Wife
shall
be
capable
of
this
use
,
according
to
the
will
and
direction
of
the
Owner
.
If
a
Feoffment
in
Fee
be
made
to
the
use
of
B.
for
life
,
and
if
A.
before
such
a
day
shall
pay
10
l.
to
the
Feoffor
,
then
to
the
use
of
the
said
A.
for
life
,
the
same
is
a
good
use
to
begin
upon
the
said
condition
;
and
yet
if
it
had
been
limited
in
possession
,
it
had
been
otherwise
:
and
that
an
Vse
may
begin
upon
a
contingency
,
see
the
case
27
H.
8.
5.
A
Covenant
is
made
by
Indenture
betwixt
A.
and
B.
that
the
Son
of
A.
shall
marry
the
Daughter
of
B.
upon
which
B.
pays
100
l.
to
A.
and
the
said
A.
doth
covenant
,
that
if
the
said
marriage
doth
not
take
effect
,
that
then
the
Feoffees
of
the
said
A.
shall
suffer
the
said
B.
his
Executors
and
Assigns
,
to
have
the
issues
and
profits
of
certain
Lands
,
until
B.
his
Executors
and
Assigns
,
shall
be
contented
and
satisfied
of
the
sum
aforesaid
by
the
said
A.
his
Executors
or
Assigns
,
there
,
if
the
marriage
doth
not
take
effect
,
upon
such
contingent
,
the
use
shall
rise
to
B.
And
see
30
H.
8.
Br.
Feoffs
to
Uses
50.
A.
covenants
with
B.
that
then
B
shall
enfeoff
A.
of
the
Manor
of
D.
then
B.
and
his
Heirs
shall
be
seised
of
the
Manor
of
D.
to
the
use
of
the
said
A.
and
his
Heirs
:
Now
if
A.
enfeoffeth
B.
ut
supra
,
then
,
&c.
vide
librum
.
And
here
in
our
case
,
the
second
Wife
doth
not
hold
joyntly
with
her
Husband
,
for
their
Estates
do
not
begin
together
,
for
the
Husband
is
in
of
his
ancient
Estate
which
he
had
during
the
first
marriage
,
notwithstanding
the
words
of
limitation
to
the
said
Husband
and
his
second
Wife
,
but
she
shall
take
by
way
of
Remainder
.
Harper
,
Iustice
,
Vses
began
about
18
E.
2.
after
which
time
there
was
such
a
general
liking
of
them
,
that
they
were
anew
used
,
but
they
did
not
come
into
common
practice
before
the
time
of
King
Henry
the
sixth
,
when
the
great
contention
fell
out
betwixt
the
two
great
Houses
of
York
and
Lancaster
,
at
which
time
Vses
were
in
great
estimation
for
the
safety
of
Inheritances
.
Afterwards
,
Vses
by
practices
became
mischievous
,
and
prejudicial
to
the
publick
Iustice
of
the
Realm
,
and
to
many
particular
persons
;
for
some
timentes
implacitari
,
conveyed
their
Lands
secretly
to
uses
,
so
as
he
who
had
right
knew
not
against
whom
to
bring
his
action
:
and
for
that
,
divers
Statutes
have
been
made
to
enable
the
Subject
to
implead
the
pernor
of
the
profits
,
4
H.
4.
7.
11
H.
6.
4.
1
H.
7.
And
as
to
the
making
of
the
Statute
of
27
H.
8.
the
truth
is
,
that
the
King
was
displeased
for
the
loss
of
Wardships
,
and
other
injuries
done
to
him
;
for
which
cause
he
complained
to
the
Iudges
of
the
defect
of
the
Law
in
that
case
who
therefore
shewed
unto
the
King
the
causes
of
those
injuries
and
losses
to
the
King
;
and
farther
shewed
to
the
King
,
That
if
the
possession
might
be
joyned
to
the
use
,
all
would
go
well
,
and
all
the
injuries
,
wrong
,
and
loss
,
which
came
to
the
King
by
reason
of
such
Vses
,
Wills
,
and
secret
Feoffments
,
would
be
avoided
:
For
which
the
King
commanded
his
Council
to
frame
a
Bill
to
that
purpose
,
and
present
it
to
the
House
of
Commons
in
the
24
year
of
his
Reign
,
but
it
was
then
rejected
;
and
the
King
at
that
time
would
have
been
contented
,
that
the
fourth
part
of
the
Land
onely
should
descend
:
and
from
that
time
the
King
stayed
farther
proceedings
in
the
said
cause
until
27
H.
8.
at
which
time
it
took
effect
:
And
their
cure
was
to
pen
the
Statute
so
precisely
,
that
nothing
should
be
left
in
the
Feoffees
,
but
that
the
whole
Estate
should
be
executed
by
the
Statute
,
so
as
the
said
Statute
did
utterly
take
out
all
from
the
Feoffees
.
Whereas
it
hath
been
said
,
That
a
Vse
hath
been
as
long
as
any
Marriage
hath
been
,
and
so
conceived
upon
the
Writ
Causa
Matrimonii
prolocuti
,
the
same
is
not
any
reason
;
for
in
that
Case
there
is
not
any
Confidence
or
Trust
:
for
if
the
marriage
doth
not
take
effect
,
the
woman
shall
have
her
Writ
de
Causa
Matrimonii
prolocuti
.
In
Conveyances
we
are
to
respect
two
things
,
the
form
,
and
the
effect
of
it
;
and
in
all
cases
where
the
form
and
the
effect
cannot
stand
together
,
the
form
shall
be
rejected
,
and
the
effect
shall
stand
.
A
Lease
for
life
is
made
to
a
Feme
sole
,
she
takes
Husband
,
the
Lessor
confirms
to
both
of
them
;
the
Husband
cannot
take
any
Estate
presently
according
to
the
words
of
the
Confirmation
;
but
because
the
Will
of
the
Lessor
is
,
that
an
estate
shall
accrue
to
the
Husband
,
he
shall
have
it
as
the
Law
will
,
by
way
of
Remainder
.
So
Lands
are
given
to
an
Abbat
and
a
secular
man
,
the
form
of
the
words
purport
a
joynt
Estate
,
but
that
by
Law
cannot
be
;
and
therefore
they
shall
take
as
the
Law
will
,
rather
than
not
at
all
.
In
our
case
here
,
The
limitation
of
the
Vse
cannot
be
pursued
precisely
according
to
the
words
,
which
are
,
viz.
If
the
Husband
over-live
his
said
first
Wife
,
then
to
the
use
of
the
said
Husband
and
his
Wife
which
shall
be
;
which
in
words
is
a
joynt
Estate
:
and
therefore
the
words
shall
be
construed
,
After
the
death
of
the
first
Wife
,
unto
the
use
of
the
Husband
until
he
marrieth
,
and
afterwards
to
the
use
of
him
and
his
second
Wife
,
in
which
case
they
shall
take
joyntly
.
Dyer
,
chief
Iustice
,
As
to
the
beginning
of
Vses
,
Stat.
de
Religiosis
:
for
which
cause
they
were
after
driven
to
find
out
other
shifts
not
provided
for
by
the
Statute
,
which
were
espyed
by
the
making
of
the
Statute
of
15
R.
2.
cap.
5.
and
in
that
Statute
these
words
,
Behoof
and
Use
are
used
;
which
is
the
first
place
those
words
have
been
used
in
our
Law
,
and
yet
long
time
before
that
Statute
Uses
had
been
in
practice
,
as
appeareth
in
the
Exchequer
,
34
E.
3.
the
which
in
the
time
of
Queen
Mary
,
when
the
said
Record
was
shewed
in
the
Exchequer
to
the
Iustices
,
the
effect
of
which
Record
was
,
That
Walter
de
Chirton
,
who
was
Customer
of
the
King
,
became
indebted
to
the
King
in
the
sum
of
18000
l.
and
with
that
the
King's
money
had
purchased
in
the
name
of
his
friends
,
to
defraud
the
King
,
many
Lands
,
and
took
the
profits
of
them
;
those
Lands
so
purchased
were
extended
to
the
use
,
and
for
the
King
,
in
payment
of
his
Debt
,
as
well
as
if
Walter
de
Chirton
himself
had
been
seised
of
them
,
and
that
by
the
advice
of
the
Chancellor
and
the
chief
Iustices
.
Now
Vses
by
tract
of
time
have
grown
in
credit
,
so
as
Cestuy
que
use
have
been
sworn
in
Inquests
,
and
by
the
Law
they
might
justifie
the
maintaining
of
their
Feoffees
when
they
had
been
impleaded
,
which
they
could
not
have
done
if
they
had
not
more
interest
in
the
Lands
than
strangers
:
and
they
(
Uses
)
have
been
in
such
reckoning
and
account
since
,
that
an
Vse
hath
obtained
the
name
of
an
Inheritance
,
and
is
now
reputed
amongst
the
Estates
of
Lands
in
our
Law
;
and
therefore
we
say
in
Speeches
,
and
in
penning
of
Statutes
,
Estates
in
possession
,
and
Estates
in
use
:
and
a
Vse
cannot
be
limited
to
Parishioners
,
no
more
than
the
Land
it self
;
so
as
there
is
a
great
affinity
betwixt
the
words
,
Lands
and
Use
.
It
is
to
be
granted
,
That
the
Statute
of
27
H.
8.
doth
devest
all
out
of
the
Feoffees
,
yet
it
doth
not
devest
it
before
that
the
use
be
vested
in
Cestuy
que
use
;
for
the
words
of
the
Statute
are
,
That
the
possession
shall
be
executed
in
such
manner
,
quality
,
and
degree
,
as
was
the
Vse
;
therefore
the
vesting
of
the
Vse
ought
to
precede
the
execution
of
the
possession
to
it
.
And
he
was
of
opinion
,
That
this
future
Vse
in
the
principal
Case
limited
to
the
second
Wife
did
remain
in
the
Feoffees
at
the
first
,
but
that
they
had
destroyed
it
by
their
Feoffment
;
for
the
second
Wife
at
the
time
of
the
Feoffment
was
not
known
,
and
therefore
it
shall
now
accrue
:
and
he
was
also
of
opinion
,
That
this
limitation
to
the
second
Wife
was
void
at
the
beginning
;
for
the
second
Wife
was
not
a
person
able
to
take
,
when
the
Estate
and
Vse
limited
to
the
first
Wife
was
determined
,
and
therefore
she
shall
not
take
at
all
:
and
if
such
an
Estate
had
been
limited
in
possession
,
it
should
not
have
vested
,
no
more
than
now
.
Mounson
,
Iustice
;
When
the
Feoffor
and
the
Feoffees
joyn
in
a
Fine
of
that
Land
,
within
which
the
use
in
future
is
wrapped
,
he
conceived
,
That
the
Vse
being
in
abeyance
and
consideration
of
the
Law
,
could
not
be
touched
by
the
Fine
.
It
is
to
be
confessed
,
That
an
Vse
may
be
discontinued
:
See
4.
H.
7.
18.
A
Feoffment
made
to
the
use
of
A.
for
life
,
and
after
to
the
use
of
B.
in
tail
,
&c.
A.
makes
a
Feoffment
in
Fee
,
and
dieth
,
the
same
is
a
discontinuance
of
the
other
Vses
:
and
see
27
H.
8.
29.
And
in
our
Case
,
the
Vse
might
arise
without
any
Entry
of
the
Feoffees
;
for
the
Vse
is
not
discontinued
,
but
the
Feoffees
are
barred
by
the
Fine
:
And
he
was
also
of
opinion
,
That
this
Vse
might
take
effect
without
any
Entry
,
and
take
effect
according
to
the
limitation
.
Manwood
,
This
Estate
which
is
limited
in
use
to
the
second
Wife
,
because
it
cannot
vest
in
her
because
not
known
,
the
Feoffees
are
yet
content
with
it
,
and
this
Vse
is
to
grow
out
of
their
Estates
at
the
seasonable
time
:
Then
when
they
joyn
in
a
Feoffment
,
their
Estate
which
was
the
root
of
the
Conveyance
,
and
the
Vses
which
are
the
branches
,
spring
not
till
she
dieth
;
and
therefore
if
the
Estate
of
the
Feoffees
,
which
is
the
root
of
the
Vses
,
be
destroyed
by
alienation
of
the
Land
before
the
Vses
have
their
being
,
as
in
our
Case
it
is
,
because
that
then
the
second
was
not
known
,
no
use
can
afterwards
rise
,
for
by
the
Feoffment
they
are
destroyed
,
and
also
every
possibility
of
them
.
But
if
the
Vses
had
been
in
esse
,
so
as
the
persons
to
whom
they
are
limited
are
known
,
then
the
Statute
shall
execute
the
possession
to
such
uses
.
And
as
to
that
which
hath
been
objected
by
my
Brother
Mounson
,
That
the
Law
shall
keep
and
preserve
the
Vse
,
and
that
notwithstanding
any
thing
done
by
the
Feoffees
at
its
due
time
it
shall
rise
:
That
cannot
be
;
for
the
Statute
of
27
H.
8.
doth
not
speak
of
such
Vses
as
this
in
our
Case
,
but
of
such
Vses
onely
,
of
which
one
may
say
,
such
a
use
is
limited
to
such
a
person
and
such
to
such
a
person
,
&c.
and
such
Vses
are
onely
executed
by
the
Statute
.
It
may
be
demanded
,
What
Estate
the
Feoffees
have
in
the
Lands
until
such
uses
be
executed
?
It
may
be
answered
,
A
Fee
simple
determinable
,
as
the
Lord
hath
when
he
entereth
upon
his
Villein
Donee
in
tail
:
And
I
conceive
,
That
this
use
was
not
in
Custodia
Legis
,
quia
de
minimis
non
curat
Lex
:
and
the
use
was
such
a
thing
of
which
the
Law
took
no
knowledge
;
and
in
case
of
an
Estate
in
possession
,
such
an
use
in
abeyance
should
be
bound
:
As
a
Lease
for
life
unto
A.
the
Remainder
to
the
right
Heirs
of
B.
A.
suffers
a
common
Recovery
in
the
life
of
B.
who
afterwards
dieth
,
and
afterwards
A.
dyeth
,
the
Heir
of
B.
is
bound
,
for
he
had
not
right
at
the
time
of
the
Recovery
.
This
Fine
levied
by
the
manner
shall
not
destroy
the
uses
limited
to
the
second
Wife
;
for
as
to
the
Feoffees
,
they
have
nothing
to
doe
with
the
Lands
to
transfer
any
Estate
against
the
former
limitation
;
for
the
Statute
leaves
nothing
in
the
Feoffees
,
but
vests
all
in
Cesty
que
use
,
and
that
which
cannot
vest
in
him
to
whom
it
is
limited
,
shall
return
to
the
Feoffor
:
As
if
I
make
a
Feoffment
in
Fee
to
the
use
of
my self
for
life
,
and
after
to
the
use
of
my
second
Wife
,
all
the
Fee
is
now
in
me
,
and
when
I
take
a
second
Wife
,
then
the
Feoffees
shall
be
seised
to
the
use
of
such
Wife
in
Remainder
for
her
life
:
but
in
the
Case
at
Bar
,
the
Feoffees
at
the
time
when
this
second
Wife
was
in
esse
,
had
not
any
thing
in
the
Lands
,
for
they
had
departed
with
all
their
Interest
before
by
their
Feoffment
and
Fine
.
Note
,
That
by
the
first
Feoffment
the
use
was
limited
to
D.
the
first
Wife
of
the
Feoffor
,
for
term
of
her
life
,
the
Remainder
in
tail
to
A.
Brent
,
the
Remainder
in
Fee
to
one
Broughton
,
and
all
these
uses
were
executed
by
the
Statute
;
but
these
persons
were
not
parties
to
the
Livery
,
but
onely
the
Feoffees
,
which
had
not
any
thing
:
Then
when
they
make
their
Letter
of
Attorney
to
make
Livery
of
seisin
(
not
being
seised
of
the
Land
)
the
Attorney
onely
is
a
Disseisor
,
and
so
nothing
passed
from
the
Feoffees
,
if
any
right
had
been
in
them
:
and
for
another
reason
nothing
passed
by
this
last
Conveyance
out
of
the
Feoffees
,
for
the
parties
to
the
latter
Conveyance
had
notice
of
the
use
,
and
so
it
appeareth
by
the
second
Indenture
,
the
which
makes
mention
of
the
first
uses
,
&c.
Dyer
,
Here
in
our
Case
,
the
Founders
of
these
uses
,
i.
the
Feoffor
and
the
Feoffees
,
have
an
intent
to
overthrow
these
uses
,
for
at
the
Common
Law
the
Feoffees
might
doe
it
of
themselves
;
As
if
the
Feoffees
had
made
a
Feoffment
in
fee
in
consideration
of
Money
to
others
who
had
not
notice
of
the
uses
,
now
the
uses
are
gone
,
and
the
second
Feoffees
in
such
Cases
were
seised
to
their
own
uses
.
I
well
know
,
That
by
this
Feoffment
all
is
devested
out
of
the
Feoffees
,
which
might
vest
in
the
person
to
whom
the
use
is
limited
;
but
here
this
use
which
was
limited
to
the
second
Wife
,
could
not
upon
the
limitation
of
it
vest
in
any
person
;
and
therefore
it
shall
remain
in
the
Feoffees
who
are
put
in
Trust
with
it
,
and
therefore
have
interest
in
the
Lands
until
all
the
Trusts
be
performed
:
and
therefore
the
second
Wife
was
advised
by
her
Council
to
make
her
Entry
in
name
of
the
surviving
Feoffee
,
and
the
interest
which
the
Feoffees
have
in
the
interim
,
untill
the
execution
of
all
the
uses
,
is
a
Fee-simple
determinable
;
for
the
whole
interest
is
not
devested
or
driven
out
of
the
Feoffees
untill
the
whole
Trust
be
accomplished
,
i.
untill
all
the
uses
limited
upon
the
Feoffment
are
executed
,
and
have
their
full
perfection
.
And
whereas
it
hath
been
alledged
on
the
other
side
,
That
upon
the
second
Feoffment
nothing
passed
out
of
the
Feoffees
,
for
which
it
shall
not
be
said
in
Law
their
Livery
,
but
that
the
Attorney
shall
be
said
the
sole
Disseisor
;
As
to
that
I
conceive
,
That
whatsoever
was
lost
in
the
Feoffees
passed
by
that
Livery
.
If
he
in
Reversion
upon
an
Estate
for
life
makes
a
Charter
of
a
Feoffment
,
and
a
Letter
of
Attorney
to
make
Livery
of
seisin
without
words
ad
expellendas
omnes
,
&c.
if
Livery
be
made
by
force
thereof
,
the
Fee-simple
shall
pass
:
And
he
cited
a
Case
which
was
argued
before
all
the
Iustices
of
England
,
reported
by
himself
2
and
3
Ma.
131.
Divers
Leases
for
years
were
made
of
the
Demeans
of
an
Abby
,
after
which
the
Reversion
was
granted
to
the
Countess
of
Richmond
for
life
,
after
which
King
Edw.
6.
granted
the
Reversion
in
Fee
to
the
Earl
of
Warwick
,
who
made
a
Feoffment
of
all
to
certain
persons
,
to
the
use
of
his
eldest
Son
and
his
Wife
for
her
Iointure
,
with
a
Letter
of
Attorney
to
make
Livery
and
seisin
;
the
Attorney
made
Livery
accordingly
,
and
by
that
Feoffment
and
Livery
,
it
was
adjudged
,
that
the
Fee-simple
did
pass
:
So
in
our
Case
,
upon
this
second
Feoffment
,
a
Disseisin
is
done
to
D.
the
first
Wife
,
and
yet
the
right
of
the
Feoffees
doth
pass
thereby
;
and
although
it
shall
not
be
taken
in
Law
their
Livery
,
yet
it
shall
be
adjudged
their
confirmation
,
because
they
have
joined
in
the
Deed
,
and
that
shall
bind
their
right
to
establish
the
same
in
the
new
Feoffees
,
as
if
the
Disseisee
join
in
a
Feoffee
by
Deed
with
the
heir
of
the
Disseisor
:
And
as
to
that
which
hath
been
objected
,
that
because
at
the
time
of
the
Feoffment
,
the
Feoffees
had
not
any
thing
,
&c.
and
therefore
nothing
shall
pass
:
and
they
have
likened
to
the
Case
,
where
the
Father
is
disseised
,
and
the
Son
and
heir
doth
release
to
the
Disseisor
,
the
same
shall
not
bind
the
heir
after
the
death
of
his
Father
:
The
same
is
not
like
our
Case
;
for
there
is
a
great
difference
betwixt
a
Release
and
a
Feoffment
;
for
if
the
Son
disseise
the
Father
,
and
maketh
a
Feoffment
in
Fee
in
the
life
of
his
Father
,
notwithstanding
that
he
had
not
any
right
at
the
time
of
the
Feoffment
,
yet
he
is
bound
.
XXVI
.
Thurkettell
and
Tey
's
Case
.
Trin.
29
Eliz.
In
the
King's-Bench
.
Rot.
342.
John
Thurkettell
against
Edw.
Tey
,
and
Mary
his
Wife
,
Executrix
of
Robert
Thurkettell
,
the
Case
was
,
That
Agnes
Thurkettell
,
Mother
of
Robert
,
the
Testator
,
devised
certain
Lands
to
Robert
,
and
afterwards
devised
40
l.
to
the
Plaintiff
,
John
,
upon
condition
,
that
the
said
John
,
Cum
requisitus
esset
acquietaret
,
&
retaxaret
praedict.
Roberto
omnes
actiones
reales
&
personales
,
querelas
,
&c.
praedict.
40
l.
per
dict.
voluntat
.
legatis
tantummodo
exceptis
;
Agnes
died
,
Robert
made
two
Bonds
to
John
,
The
first
was
endorsed
to
pay
20
l.
parcell
of
the
said
Legacy
,
within
a
year
after
the
death
of
the
said
Agnes
,
so
as
the
Plaintiff
release
according
to
the
will
of
the
said
Agnes
.
The
second
Obligation
was
with
the
same
condition
,
to
pay
20
l.
residue
of
the
said
Legacy
,
within
two
years
after
the
death
of
the
said
Agnes
,
upon
condition
to
release
,
ut
supra
,
and
all
this
matter
was
pleaded
in
barr
;
And
farther
,
That
Robert
required
the
said
John
to
make
the
Release
,
&c.
which
he
refused
,
and
they
were
at
issue
upon
the
request
,
and
it
was
found
for
the
Plaintiff
;
i.
Quod
dict.
Robert.
non
requisivit
,
&c.
upon
which
Verdict
Iudgment
was
given
for
the
Plaintiff
;
upon
which
the
Defendants
brought
Error
,
because
it
appeareth
upon
the
Record
here
,
quod
Billa
praedict.
prosecuta
fuit
infra
duos
annos
post
mortem
dict.
Agnet
.
&
sic
ante
diem
solutionis
:
For
the
second
Bond
,
see
46
E.
3.
28.
by
Finchden
and
Persay
,
and
see
there
,
by
Persay
,
That
if
my
Writ
be
brought
before
the
day
of
payment
,
and
doth
depend
in
suit
till
after
the
day
of
payment
,
that
my
Writ
is
made
good
;
for
at
all
times
the
Defendant
was
my
Debtor
.
And
afterwards
in
the
principal
Case
the
Iudgment
was
affirmed
in
the
Exchequer-Chamber
:
and
note
,
that
the
day
of
payment
did
incurr
,
pendent
the
Writ
.
XXVII
.
Lightfoot
and
Butler
's
Case
.
29
Eliz.
In
the
Exchequer
.
IT
was
said
in
this
Case
by
the
Solicitor
General
,
That
if
one
holdeth
of
the
Queen
,
as
of
her
Manor
,
he
shall
not
have
the
privilege
of
the
Exchequer
for
that
cause
;
But
if
the
King
grants
Tithes
,
and
thereupon
reserveth
a
Rent
,
nomine
decimae
,
and
a
Tenure
of
him
,
there
he
shall
have
the
privilege
:
The
principal
Case
was
,
In
cujus
rei
testimonium
,
tam
the
Priest
,
quam
the
Mayor
and
Commonalty
have
put
their
common
seal
,
and
it
was
moved
that
there
was
not
any
seal
for
the
Priest
,
for
he
could
not
have
a
common
seal
with
the
Mayor
and
Commonalty
.
Clark
,
Twenty
men
may
seal
with
one
seal
,
and
they
may
also
seal
with
one
seal
upon
one
piece
of
Wax
onely
,
and
that
shall
serve
for
them
all
,
if
they
all
lay
their
hands
upon
the
seal
together
.
Manwood
,
They
may
all
seal
with
one
seal
,
but
upon
several
pieces
of
Wax
.
Gent
,
when
many
are
parties
to
a
Deed
,
the
words
are
Sigilla
omnia
;
which
cannot
be
aptly
said
in
this
Case
,
where
all
seal
upon
one
piece
of
Wax
.
XXVIII
.
Barns
and
Smith
's
Case
.
29
Eliz.
In
the
Exchequer
.
EManuel
Barns
,
Executor
of
Barns
,
late
Bishop
of
London
,
Smith
,
i.
Mines
called
Argil
,
and
Mines
called
Greenbourn
;
and
it
was
against
the
Executors
of
Smith
.
The
Defendant
pleaded
,
as
to
parcel
non
detinet
,
and
as
to
the
other
parcel
of
the
arrerages
,
That
in
the
Indenture
of
Lease
,
there
is
a
Covenant
,
That
if
it
shall
happen
that
the
said
Lessee
be
hindred
,
Quo
minus
Mineriis
,
praed.
gaudere
possit
;
That
then
so
much
Rent
should
be
deducted
anno
,
to
the
value
of
the
Mine
,
that
he
could
not
enjoy
,
&c.
And
he
said
,
that
he
was
hindred
,
Quo
minus
gaudere
potuit
Mineriis
praed.
&c.
and
issue
was
joined
,
that
the
Lessee
could
not
enjoy
,
&c.
and
it
was
found
for
the
Plaintiff
.
It
was
moved
by
Coke
,
in
arrest
of
Iudgment
,
That
here
is
not
any
place
shewed
where
these
Mines
were
,
so
as
it
doth
not
appear
from
what
place
the
Visne
should
come
;
as
if
in
an
Action
(
as
here
)
the
Plaintiff
declares
of
a
Lease
made
of
Lands
,
called
R.
in
such
a
County
,
the
same
is
not
good
.
The
issue
here
is
,
Non
potuit
fodere
in
praed.
Minera
de
Greenbourn
,
for
the
space
of
seven
years
and
an
half
,
from
whence
shall
the
Visne
come
for
trial
of
it
?
Not
from
Durham
where
the
Lease
was
made
;
for
no
affinity
or
nearness
is
betwixt
the
place
where
the
Lease
was
made
and
this
issue
.
But
if
the
issue
had
been
,
That
the
Lessor
had
not
any
thing
in
the
Mines
at
the
time
of
the
Lease
,
that
might
be
tried
where
the
Lease
was
made
:
Another
exception
was
,
because
that
the
plea
is
;
Quod
non
potuit
fodere
,
in
3
,
4
,
5
,
6
,
7
,
8.
dimidio
,
10
,
&
11.
and
that
appears
to
be
seven
years
and
a
half
,
and
the
Iury
find
that
he
could
not
digg
,
per
spatium
septem
annorum
tantum
,
without
speaking
of
the
half
year
,
and
so
they
have
not
given
a
full
Verdict
:
And
as
to
the
first
Exception
,
it
was
said
,
If
a
thing
be
alledged
in
pleading
which
is
issuable
,
and
there
is
not
laid
down
any
place
of
it
,
although
that
no
issue
be
joined
upon
it
,
yet
because
he
hath
prevented
the
other
of
his
plea
to
it
,
Iudgment
given
in
such
case
shall
be
reversed
:
and
so
it
was
rated
,
betwixt
Matthew
and
Stansham
:
So
upon
the
Statute
of
Vsury
,
the
Informer
charged
the
Defendant
,
that
by
way
of
corrupt
bargain
he
hath
received
so
much
,
and
doth
not
shew
the
place
,
although
no
issue
was
joined
upon
it
,
but
they
were
at
issue
upon
another
point
,
yet
if
Iudgment
in
such
case
be
given
,
it
shall
be
reversed
.
And
in
all
Actions
upon
the
Case
,
where
Request
is
necessary
,
and
the
Plaintiff
ought
to
alledge
it
;
the
place
of
the
Request
must
be
shewed
:
and
he
said
,
That
such
issue
was
to
be
tried
where
the
Mines
leased
are
;
and
here
no
place
is
alledged
,
where
the
Mines
are
,
but
onely
in
the
County
of
Durham
;
and
yet
a
Visne
of
the
City
of
Durham
hath
tried
the
issue
,
which
ought
not
to
have
been
,
but
the
Visne
ought
to
have
come
,
De
Corpore
Comitatus
.
Clark
,
Baron
,
If
the
issue
be
joined
upon
taking
of
the
profits
,
it
shall
be
tried
where
the
Land
is
,
but
Non
debet
or
detinet
,
where
the
Lease
is
made
.
Coke
,
The
issue
is
,
Non
potuit
fodere
,
and
that
is
local
;
therefore
it
shall
be
tried
where
the
Mines
are
.
Manwood
,
Non
potuit
fodere
,
Non
potuit
gaudere
,
are
not
local
;
but
Non
fodit
,
Non
gavisus
fuit
,
is
local
,
and
shall
be
tried
where
the
Mines
are
:
and
here
it
is
not
shewed
how
he
was
hindred
to
dig
,
&c.
and
the
issue
is
to
be
de
postatia
,
non
de
actu
.
Tanfield
,
as
to
that
which
Coke
hath
said
,
That
the
Visne
in
this
Case
shall
come
,
de
corpore
Comitatus
,
the
same
is
not
so
,
for
such
a
Visne
shall
never
be
,
but
where
the
issue
is
upon
Nul
tiel
vill
hamlet
,
or
place
known
:
In
another
Case
the
trial
shall
be
,
de
corpore
Comitatus
,
as
in
a
false
imprisonment
the
Defendant
justifies
,
that
the
common
voice
and
fame
was
,
that
the
Plaintiff
committed
such
a
Felony
,
&c.
The
Plaintiff
traverseth
the
common
voice
and
fame
,
there
the
Visne
shall
be
,
de
corpore
Comitatus
,
11
E.
4.
4
,
and
5.
and
see
also
25
Eliz.
the
Case
of
Gynne
and
Constantine
reported
now
in
Coke
,
6.
part
Dowdale's
Case
,
48.
As
to
the
defect
in
the
verdict
for
the
half
year
,
the
Record
is
not
so
;
for
the
Record
is
,
dimidio
anni
decimi
,
&
undecimi
,
and
so
two
half
years
make
a
whole
year
,
and
so
there
is
but
seven
years
in
which
the
disturbance
is
supposed
to
be
done
.
See
as
to
the
Visne
,
de
corpore
Comitatus
,
22
E.
4.
4
Visne
27.
Another
Exception
was
taken
,
because
that
the
Declaration
is
,
That
the
Lease
was
made
at
Durham
,
in
Comitatu
Dunelm
.
and
doth
not
say
also
in
Selberg
,
for
such
is
the
name
of
the
County
Palatine
;
but
to
that
it
was
said
,
That
every
Writ
of
Execution
which
goes
into
the
County
Palatine
,
is
directed
Episcopo
Dunelmensi
,
&
Cancellario
suo
,
quod
det
in
mandatis
Vice-com
.
suo
,
&c.
And
Durham
was
called
Selberg
in
ancient
times
,
and
the
name
of
the
County
Palatine
there
,
is
commonly
Dunelm
.
&
Selberg
.
and
their
pleas
there
entred
;
Placita
coram
Justiciariis
de
Dunelm
.
&
Selberg
.
but
the
same
is
amongst
themselves
onely
,
and
all
directions
from
hence
to
them
are
Episcop.
Dunelm
.
without
mention
of
Selberg
,
and
a
Precedent
was
shewed
to
the
Court
to
that
purpose
and
intent
.
Manwood
,
Levied
by
distress
,
and
issint
rein
arere
shall
be
tried
where
the
Lease
was
made
:
Clark
,
That
is
true
,
for
by
the
(
Issint
)
the
plea
before
is
waved
:
And
see
8
H.
5.
10.
Where
an
issue
is
to
be
tried
in
Lincoln
,
or
such
a
Town
,
which
is
a
Franchise
,
the
Ven.
fac
.
shall
be
of
Lincoln
,
&c.
and
not
de
vicineto
de
Lincoln
;
for
then
the
Iury
shall
be
as
well
of
the
County
adjacent
,
as
of
Lincoln
it self
,
which
the
Sheriff
of
Lincoln
cannot
doe
:
but
a
Venire
facias
de
suburbiis
of
Bristow
was
awarded
good
:
And
if
in
the
case
at
Bar
,
the
defendant
had
pleaded
,
that
the
Defendant
had
entred
into
part
of
the
Mines
,
and
so
suspended
his
Rent
,
upon
which
they
are
at
issue
;
that
,
by
Manwood
,
shall
be
tried
by
a
Iury
,
de
corpore
Comitatus
.
The
issue
here
is
,
If
the
Defendant
might
enjoy
those
Mines
,
Secundum
veram
intentionem
dimissionis
praedict
.
and
that
is
referred
to
the
Devise
which
was
made
at
Durham
,
and
there
it
is
well
triable
.
And
afterwards
,
at
another
day
it
was
holden
,
That
all
the
issues
are
Jeofailes
;
but
as
to
the
want
of
place
,
the
same
was
holden
to
be
a
material
Exception
.
See
the
Case
of
Mynes
,
Plowd.
337.
Exception
was
taken
to
the
Information
,
because
it
is
not
laid
down
there
is
what
Town
or
Hamlet
Newlands
lay
;
and
it
was
holden
,
the
same
had
been
a
material
Exception
,
if
the
Defendant
had
demurred
upon
the
Information
,
in
which
case
there
is
no
trial
by
Iury
,
&c.
and
he
said
,
Misnosmer
shall
be
tried
where
the
Writ
is
brought
,
&c.
So
Ne
unque
administer
as
Executor
,
&c.
Manwood
,
Here
the
Lease
is
said
to
be
made
at
Durham
,
in
a
place
certain
;
if
now
there
be
not
any
other
local
thing
said
which
might
draw
the
trial
elsewhere
,
it
shall
be
tried
at
Durham
where
the
Lease
is
made
:
An
Infant
makes
a
lease
for
years
,
rendring
Rent
,
and
afterwards
re-enters
,
and
avoids
his
Lease
by
reason
of
his
nonage
,
and
Title
is
made
against
him
by
the
Lease
,
upon
which
he
pretended
nonage
,
it
shall
be
tried
where
the
Lease
was
made
,
and
afterwards
Iudgment
was
given
for
the
Plaintiff
.
XXIX
.
Ross
and
Morrice
's
Case
.
Pasch.
30
Eliz.
In
the
King's-Bench
.
EDward
Ross
was
Plaintiff
in
a
Replevin
against
Edward
Morrice
,
George
Manly
Defendants
,
who
made
Conusance
,
as
Bailiffs
to
Jerom
Weston
.
The
Plaintiff
declares
,
of
the
taking
of
two
Geldings
,
20
Decemb.
29
Eliz.
at
Nayland
,
in
the
County
of
Suffolk
,
in
a
certain
place
called
Nayland-Court-Meadow
.
And
the
Conusance
is
that
the
place
where
was
a
Freehold
of
the
said
Jer.
Weston
,
&c.
The
Plaintiff
in
bar
of
the
Conusance
shewed
,
That
long
time
before
,
Sir
Christopher
Danby
was
seised
of
30
acres
of
Meadow
in
Nayland
,
whereof
the
place
where
,
&c.
and
Leased
the
same
by
Indenture
to
Thomas
Calton
,
19
Maii
,
31
H.
8.
Habendum
from
the
Feast
of
the
Annunciation
,
1553.
for
the
term
of
45
years
;
Who
,
1
E.
6.
assigned
his
Interest
to
Edw.
Ross
,
the
Plaintiff's
Father
,
who
,
1
Maii
,
the
said
1553.
entred
,
and
11
Eliz.
granted
his
Interest
to
Bamford
and
Mascal
,
who
entred
and
were
possessed
.
Sir
Christopher
Danby
died
seised
of
the
Reversion
,
13
Eliz.
and
the
same
descended
to
Thomas
Danby
his
son
and
heir
:
14
Eliz.
Mascal
died
,
Bamford
,
15
Eliz.
granted
to
the
Plaintiff
,
Habendum
from
the
17
of
March
1583.
for
three
years
,
which
expired
26
Eliz.
Bamford
entred
,
and
afterwards
Thomas
Danby
granted
the
Reversion
to
Edw.
Rockwood
in
Fee
,
to
which
the
said
Bamford
Attorned
;
and
the
Plaintiff
by
force
of
the
said
Lease
,
,
put
in
his
Cattel
,
&c.
The
Plaintiff
Replicando
said
;
That
long
time
before
that
Danby
had
any
thing
,
Jeofry
,
Lord
Scroop
,
had
issue
of
his
body
,
Henry
,
Lord
Scroop
,
and
died
;
And
that
one
John
Guntwarby
was
seised
of
the
said
Manor
of
Nayland
,
whereof
,
&c.
in
Fee
,
by
his
Charter
,
25
E.
3.
gave
to
the
said
Henry
,
Lord
Scroop
,
the
same
,
Et
haeredibus
corpore
suo
exeuntibus
,
who
had
issue
Stephen
,
who
entred
,
and
died
seised
,
having
issue
John
,
who
entred
,
and
died
seised
,
having
issue
Thomas
,
who
entred
,
and
3
H.
7.
suffered
a
Common
Recovery
to
the
use
of
himself
and
his
heirs
,
The
Recoverers
enfeoffed
,
Thomas
seised
also
of
many
other
Lands
,
and
had
issue
,
Ralph
,
Jeofry
,
Alice
,
Elizabeth
and
Margery
,
and
afterwards
died
seised
.
Ralph
Lord
Scroop
entred
,
and
thereof
did
enfeoff
divers
persons
unto
the
use
of
himself
,
and
Eleanor
his
wife
,
for
their
lives
,
and
the
heirs
males
of
the
said
Ralph
;
and
afterwards
,
the
said
Ralph
being
possessed
of
the
said
Charter
of
entail
made
,
ut
supra
,
by
Guntwardy
,
7
H.
8.
Devised
that
the
Feoffees
should
be
seised
of
the
said
Manor
of
Nayland
to
the
use
of
himself
,
and
Eleanor
his
wife
,
for
their
lives
;
and
if
they
died
without
issue
of
the
body
of
the
said
Ralph
,
the
said
Jeofry
then
living
,
that
then
the
Feoffees
should
be
seised
to
the
use
of
the
said
Jeofry
,
(
being
his
Vncle
)
for
his
life
,
and
after
his
decease
,
ad
usum
Rectorum
haeredum
in
perpetuum
secundum
antiquam
Evidentiam
inde
ante
factam
;
with
an
averment
,
that
the
said
Ralph
,
at
the
time
of
the
said
Devise
,
and
of
his
death
,
was
possessed
of
the
Charter
of
Entail
made
by
the
said
Guntwardy
:
and
that
the
said
Charter
was
the
most
ancient
Evidence
of
the
said
,
concerning
the
said
Manor
.
Ralph
died
without
issue
possessed
of
the
said
Charter
by
which
the
Feoffees
were
seised
of
the
said
Manor
of
Nayland
to
his
use
for
life
,
and
after
to
the
use
of
the
said
Jeofry
for
life
,
and
after
his
decease
,
of
the
right
heirs
of
the
body
of
Henry
,
Lord
Scroop
,
lawfully
begotten
,
by
reason
of
the
said
Devise
,
and
the
said
Charter
,
and
of
the
residue
of
the
Manors
,
to
the
use
of
the
said
Jeofry
and
his
heirs
;
Eleanor
died
,
after
whose
decease
,
the
Feoffees
were
seised
of
the
said
Manor
of
Nayland
,
to
the
use
of
the
said
Jeofry
,
right
heir
of
the
said
Henry
,
Lord
Scroop
,
of
his
body
begotten
,
and
of
the
other
lands
to
the
use
of
the
said
Jeofry
in
Fee
:
Jeofry
died
without
issue
,
by
which
the
Feoffees
were
seised
to
the
use
of
the
said
,
Alice
,
Elizabeth
and
Margery
,
Cosins
and
heirs
of
the
body
of
the
said
Henry
Scroop
,
&c.
And
of
the
heirs
of
the
bodies
of
the
said
Alice
,
Elizabeth
and
Margery
,
lawfully
begotten
,
by
reason
of
the
said
Devise
and
Charter
,
as
to
the
said
Manor
of
Nayland
,
and
of
the
other
Manors
to
their
use
in
Fee
:
And
afterwards
the
said
Alice
took
to
husband
,
James
Strangways
,
who
had
issue
,
Thomas
:
Elizabeth
took
to
husband
,
Fitz
Randolph
,
who
had
issue
Elizabeth
,
Dorothy
,
Agnes
,
Alice
:
Margery
took
to
husband
,
Danby
,
who
had
issue
,
Sir
Christopher
Danby
,
named
in
the
Bar
,
and
afterwards
all
the
said
husbands
and
their
wives
died
,
by
force
of
which
the
said
Feoffees
were
seised
of
one
part
of
the
said
Manor
of
Nayland
in
three
parts
to
be
divided
,
to
the
use
of
the
said
Thomas
Strangways
;
and
of
another
part
,
to
the
use
of
the
four
daughters
of
the
said
Elizabeth
,
and
her
husband
Fitz
Randolph
,
and
of
another
such
part
to
the
use
of
the
said
Christopher
Danby
,
and
of
their
heirs
in
Tail
;
and
of
the
other
lands
to
the
use
of
them
in
Fee
,
in
degree
of
Coparcinary
;
Elizabeth
,
the
eldest
daughter
of
Fitz
Randolph
,
took
to
husband
Shirley
;
Dorothy
her
sister
took
to
husband
,
Eshe
:
Agnes
took
to
husband
,
Maynel
,
and
Alice
took
to
husband
Dranfield
.
Thomas
Strangways
had
issue
,
James
,
and
died
.
And
afterwards
partition
was
made
,
by
which
,
to
James
Strangways
were
allotted
lands
in
Kent
,
and
agreed
that
the
Feoffees
should
be
seised
of
the
said
lands
to
the
use
of
the
said
James
and
his
heirs
,
and
to
no
other
use
.
To
Sherley
,
and
Elizabeth
his
wife
,
lands
in
Essex
were
allotted
and
agreed
upon
the
partition
,
that
the
Feoffees
should
be
seised
to
the
use
of
them
,
&c.
in
Fee
,
&c.
And
to
Danby
the
said
Manor
of
Nayland
,
in
tail
,
by
reason
of
the
Devise
and
Charter
,
aforesaid
,
as
to
the
said
Manor
of
Nayland
,
and
of
other
lands
in
Fee.
And
afterwards
,
23
E.
8.
notice
was
given
to
the
Feoffees
of
the
said
partition
,
and
averred
that
the
partition
was
equal
,
&c.
and
that
the
Feoffees
were
seised
to
the
use
of
the
said
partition
,
untill
27
H.
8.
and
confessed
the
Lease
made
by
Danby
to
Calton
,
and
all
the
assignments
set
forth
in
the
Bar
to
the
Avowry
,
and
farther
shewed
,
That
Thomas
Danby
entred
upon
Ross
the
Plaintiff
,
and
enfeoffed
Rockwood
,
who
enfeoffed
Weston
.
Coke
,
for
the
Plaintiff
,
The
Case
is
no
more
;
but
where
a
man
hath
issue
,
a
son
and
a
daughter
by
several
women
,
and
Deviseth
his
Lands
to
his
son
,
and
the
heirs
of
the
body
of
the
Father
lawfully
begotten
,
in
which
case
,
if
the
Son
dieth
without
issue
,
the
Tail
is
extinct
,
and
the
Daughter
shall
never
have
the
Land
,
for
she
doth
not
take
by
way
of
Reversion
or
Remainder
,
and
she
doth
not
take
in
possession
,
because
the
possession
was
in
Jeofry
who
was
the
Heir
of
Henry
,
&c.
And
these
Cases
were
vouched
;
1
Roberge's
Case
,
2
E.
3.
1.
to
Tail
:
John
Mandevile
took
to
Wife
Roberge
,
and
Mandevile
gave
land
to
Roberge
,
&
haeredibus
ipsius
Johannis
quos
ipse
de
corpore
praedict.
Robergiae
procreaverit
;
there
the
Book
is
,
That
the
Formedon
was
,
Quae
M.
dedit
Robergiae
&
haeredibus
dict.
Johannis
quos
ipsae
de
corpore
dictae
Robergiae
procreaverit
;
Et
quae
post
mortem
praefat.
Robergiae
,
&
R.
filii
&
haeredis
dict.
Johannis
Mandevile
,
&
haeredis
ipsius
Johannis
de
corpore
dicto
Robergiae
per
dict.
Johannem
procreat
.
&c.
and
the
same
Writ
awarded
good
,
which
Coke
denyed
to
be
Law.
And
he
cited
the
Case
of
Dyer
,
4
and
5
P.
and
Ma.
156.
A.
gives
Lands
to
one
for
life
,
the
Remainder
thereof
rectis
haeredibus
masculis
de
corpore
dict.
A.
legitime
procreat
.
remanere
inde
rectis
haeredibus
dict.
A.
who
hath
issue
two
Sons
,
and
dieth
;
A.
dieth
,
the
eldest
Son
hath
issue
a
Daughter
,
and
dieth
without
issue
male
:
And
he
conceived
first
,
That
in
this
case
the
limitation
of
the
Remainder
in
Tail
to
the
right
Heirs
of
the
body
of
the
Donor
is
void
,
for
the
Donor
cannot
make
his
own
right
Heir
a
Purchasor
,
without
departing
with
the
Fee-simple
of
his
person
:
But
admitting
the
limitation
is
good
,
he
said
we
are
to
consider
,
If
this
entail
to
the
Son
,
once
vested
and
commenced
in
the
possession
of
the
Son
,
when
he
dieth
without
issue
male
,
The
Estate
be
spent
,
or
that
the
same
shall
go
to
the
younger
Son
?
And
he
said
,
that
it
was
the
opinion
of
Dyer
in
that
case
,
That
the
younger
Son
was
inheritable
to
the
said
Estate-tail
:
as
in
the
Case
of
Littleton
82.
where
the
condition
is
,
That
the
Feoffee
shall
give
the
Lands
to
the
Son
and
Heir
of
the
Husband
and
Wife
,
and
to
the
Heirs
of
the
body
of
the
Father
and
Mother
lawfully
begotten
:
and
the
Husband
and
Wife
before
any
such
Gift
die
,
having
issue
,
and
afterwards
the
Feoffee
gives
the
Land
to
the
Son
and
Heir
of
the
Husband
and
Wife
,
and
to
the
Heirs
of
the
body
of
the
Father
and
Mother
begotten
,
the
condition
is
well
performed
:
and
if
the
eldest
Son
,
to
whom
the
Gift
is
made
,
dieth
without
issue
,
the
youngest
Son
shall
inherit
:
And
in
a
Formedon
in
the
Reverter
,
upon
such
a
Gift
the
Writ
shall
be
,
Et
quae
post
mortem
of
the
eldest
Son
,
ad
ipsum
reverti
debet
;
because
the
Husband
and
Wife
obierunt
sine
haerede
de
corpor
.
suis
inter
eos
exeunt
.
And
such
was
also
the
Opinion
of
Saunders
.
But
Brook
,
Brown
and
Catlin
were
clear
contrary
;
And
he
said
,
that
Bendloes
Serjeant
,
who
reporteth
that
Case
,
doth
affirm
,
That
Iudgment
was
given
in
that
case
,
That
the
Estate-tail
was
spent
,
and
that
the
Daughter
should
have
the
Lands
,
and
not
the
second
Son
:
and
so
he
said
,
That
in
the
Case
at
the
Bar
,
the
Estate-tail
was
spent
:
But
he
said
,
That
he
conceived
that
in
the
principal
case
at
Bar
there
is
not
any
Estate-tail
at
all
,
because
the
words
(
upon
which
the
Estate-tail
is
conceived
)
are
incertain
and
too
general
,
viz.
[
secundum
antiquam
Evidentiam
,
]
for
there
might
be
many
ancient
Evidences
,
for
the
words
may
extend
to
Evidences
which
cut
off
the
Estate
tail
,
as
well
as
to
the
Entail
of
Guntwardy
.
He
also
argued
,
That
the
Partition
was
void
;
and
then
the
Lessee
had
a
good
interest
for
certain
parts
of
the
Lands
,
for
Partition
cannot
be
made
of
an
Vse
:
and
he
said
,
that
he
agreed
,
That
Partition
betwixt
Husband
and
Wives
of
Lands
,
if
it
be
equal
,
should
bind
the
makers
,
because
they
are
compellable
to
make
Partition
of
them
;
but
contrary
of
an
Vse
,
for
that
they
are
not
compellable
to
do
:
Also
,
in
the
principal
Case
,
the
Land
entailed
is
allotted
to
one
of
the
Coparcenors
,
which
is
not
good
but
during
the
Coverture
,
and
afterwards
void
;
and
then
the
Lease
is
void
but
in
part
,
and
so
the
Conusance
is
not
good
.
Atkinson
contrary
;
and
he
said
,
I
conceive
,
that
by
words
of
Relation
a
Fee
may
pass
without
the
word
Heirs
.
See
39
Ass.
12.
The
Father
seised
of
Lands
in
fee
,
doth
enfeoff
his
younger
Son
in
fee
,
and
the
Father
continues
the
possession
of
the
Lands
,
claiming
to
hold
them
at
the
will
of
the
Son
;
and
the
Son
coming
into
the
Town
where
the
Lands
do
lie
,
in
the
hearing
of
his
Neighbours
saith
to
his
Father
,
You
have
given
to
me
these
Lands
,
naming
them
;
As
fully
as
you
have
given
them
to
me
,
I
give
them
back
to
you
again
:
and
the
same
was
holden
to
be
a
good
Gift
to
the
Father
:
43
E.
3.
22.
The
King
seised
of
a
Manor
,
to
which
an
advowson
is
appendant
by
Escheat
or
Conveyance
,
gives
the
said
Manor
as
entirely
as
such
a
one
held
the
said
Manor
before
the
Escheat
or
Conveyance
,
the
Advowson
shall
pass
without
special
mentioning
of
it
:
And
so
here
in
our
Case
at
Bar
;
This
Will
hath
reference
to
the
ancient
Evidence
,
and
it
shall
be
as
strong
as
if
he
had
set
down
the
special
words
of
Entail
;
and
to
ancient
Evidence
before
the
Entail
it
cannot
extend
,
for
then
a
fee
should
pass
,
and
then
the
Devise
should
be
void
,
because
to
his
Heir
;
and
the
word
Antiqua
Evidentia
shall
have
reference
to
the
Charter
which
was
made
by
Guntwardy
,
for
that
was
an
ancient
Evidence
made
two
hundred
years
past
:
and
he
cited
the
Case
of
40
E.
3.
8.
the
Provost
of
Beverley's
Case
,
and
conceived
that
the
Estate
was
not
spent
,
for
that
the
Estate-tail
was
in
Jeofry
,
as
the
fee
was
in
him
.
Lands
are
given
to
the
Father
for
life
,
the
Remainder
to
the
Son
in
Tail
,
the
Remainder
to
the
right
Heirs
of
the
Father
;
the
Father
dieth
,
the
Tail
and
the
fee
are
in
the
Son
;
but
yet
after
the
death
of
the
Son
without
issue
,
the
Lands
shall
be
in
the
Brother's
Son
by
descent
,
and
not
as
Purchasor
.
And
in
our
Case
,
Jeofry
was
in
in
the
Tail
,
as
right
Heir
of
Henry
;
and
if
Jeofry
dieth
without
issue
,
his
Brother
of
the
half
bloud
shall
have
the
Lands
,
as
in
the
Case
before
cited
of
40
E.
3.
but
that
shall
be
in
Tail
by
force
of
the
Devise
.
And
he
said
,
That
in
this
case
here
,
the
Partition
was
made
good
enough
,
although
it
were
of
Lands
in
use
,
for
a
man
might
contract
for
an
Vse
without
Deed
:
11
H.
4.
Partition
156.
Partition
of
an
Advowson
without
Deed
:
and
that
is
by
reason
of
the
privity
betwixt
them
,
and
because
they
are
compellable
to
make
Partition
:
and
in
our
Case
they
are
compellable
by
Subpoena
in
Chancery
to
make
Partition
;
and
notwithstanding
that
the
Lands
entailed
be
allotted
to
one
Coparcenor
onely
,
and
the
fee
to
the
other
three
,
yet
thereby
the
Partition
is
not
void
,
but
voidable
:
As
an
Exchange
by
Tenant
in
tail
is
not
void
,
but
if
the
Issue
in
tail
accept
of
it
,
it
shall
bind
him
during
his
life
:
So
here
;
and
also
by
the
death
of
the
Husbands
the
Partition
is
not
void
,
but
voidable
onely
.
Clench
,
Iustice
;
How
shall
the
Heir
be
said
seised
of
the
Lands
entailed
,
which
was
allotted
to
his
Father
and
Mother
after
acceptance
and
agreement
?
Atkinson
,
Of
certain
part
as
Issue
in
tail
,
and
of
other
parts
by
force
of
the
Partition
and
acceptance
,
Quaere
of
that
:
for
if
it
be
not
of
the
whole
as
Issue
in
tail
,
then
the
Lease
is
not
void
,
but
for
so
much
whereof
he
was
seised
in
tail
,
and
then
the
Lessee
is
Tenant
in
common
with
Weston
,
and
then
the
Conusance
is
not
good
.
Cooper
,
Serjeant
elect
;
Here
wants
certainty
,
for
the
words
of
reference
are
too
general
,
and
therefore
void
,
ad
usum
rectorum
haeredum
,
without
shewing
of
the
Donor
or
of
the
Donee
;
and
they
are
not
helped
by
the
subsequent
words
,
secundum
antiquam
Evidentiam
ante
hac
factam
,
for
that
also
is
incertain
;
for
it
appeareth
upon
the
Record
,
That
there
are
divers
Evidences
of
the
said
Lands
,
as
the
Charter
of
Gift
,
the
Recovery
,
and
the
Conveyances
made
4
H.
7.
and
which
of
them
is
intended
by
the
Devise
,
non
constat
:
and
the
said
defect
is
not
helped
by
any
of
the
Averments
;
i.
That
the
Devisor
was
possessed
of
the
said
Charter
of
Entail
at
the
time
of
his
death
;
and
it
is
also
not
to
the
purpose
,
for
it
may
also
be
,
that
he
was
possessed
of
other
Evidences
as
ancient
as
the
said
Charter
of
Entail
:
It
is
said
,
that
there
is
no
other
ancient
Evidence
of
the
Lord
Scroop
,
but
it
is
not
averred
That
there
was
not
other
ancient
Evidences
of
the
said
Lands
.
But
admit
that
the
limitation
be
good
by
that
reference
,
yet
there
was
not
any
Estate-tail
,
for
every
Estate-tail
ought
to
be
limited
in
certainty
,
which
see
in
the
Statute
of
West
.
2.
secundum
formam
in
Charta
Doni
manifesto
expressam
,
&c.
and
here
it
doth
not
appear
upon
the
words
of
the
Charter
,
if
the
Estate-tail
be
limited
to
the
Heirs
of
the
Donor
,
or
unto
the
Heirs
of
the
Donee
?
and
he
said
,
Admit
that
the
same
is
an
Estate-tail
,
then
the
Question
is
,
If
Jeofry
be
a
Purchasor
?
and
if
he
be
,
then
by
his
death
without
issue
the
Estate-tail
is
spent
:
And
he
said
that
the
Estate
for
life
in
Jeofry
is
drowned
by
the
Estate-tail
limited
to
him
,
for
they
are
united
together
.
Egerton
,
Solicitor-General
;
Reasonable
and
favourable
construction
ought
to
be
made
of
this
Devise
according
to
the
intent
of
the
Devisor
:
As
35
Ass.
14.
Lands
are
given
to
B.
and
his
Heirs
,
if
he
hath
issue
of
his
body
;
and
if
he
die
without
issue
of
his
body
,
that
the
Lands
shall
revert
to
the
Donor
and
his
Heirs
,
the
same
is
a
good
Entail
;
and
upon
the
death
of
the
Donee
without
issue
,
the
Donor
shall
re-enter
:
And
so
here
,
although
that
[
rectorum
haeredum
]
be
incertain
words
,
yet
the
same
is
supplied
by
the
subsequent
words
,
viz.
secundum
antiquam
evidentiam
.
As
,
where
the
King
grants
to
a
Mayor
and
Commonalty
such
Liberties
as
London
hath
,
the
same
is
a
good
Grant
:
2
H.
7.
13.
in
facto
should
be
in
by
purchase
,
and
so
the
Estate-tail
spent
by
his
death
without
issue
:
and
also
he
vouched
the
Case
of
one
Shelley
,
That
although
the
Heir
took
that
which
was
not
ever
in
his
Ancestors
,
yet
he
did
not
take
it
as
a
Purchasor
,
but
as
in
course
of
a
descent
;
and
he
also
cited
Robridge's
Case
.
And
afterwards
,
the
same
Term
,
by
award
of
the
Court
,
Iudgment
was
entred
for
the
Plaintiff
,
for
the
incertainty
of
these
words
[
secundum
antiquam
Evidentiam
]
to
what
Evidence
it
should
refer
;
and
also
[
rectorum
haeredum
]
without
shewing
whose
Heirs
,
i.
of
the
Donor
,
or
of
the
Donee
.
And
Wray
,
chief
Iustice
,
said
,
It
shall
be
intended
upon
this
Will
,
That
the
meaning
of
the
Testator
was
,
That
the
Lands
should
go
unto
his
Heirs
according
to
the
Law
,
according
to
all
his
Evidences
which
he
had
of
his
Lands
,
and
that
is
a
Fee
simple
;
and
it
shall
not
be
intended
,
That
the
Testator
had
such
a
special
remembrance
of
one
Deed
made
two
hundred
years
before
,
viz.
25
E.
3.
XXX
.
Perry
and
Some
's
Case
.
Mich.
30
Eliz.
In
the
King's-Bench
.
Rot.
482.
SOme
,
Parson
of
the
Church
of
Sherring
in
Essex
,
XXXI
.
The
Queen
and
Partridge
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
J.
D.
from
J.
S.
8
E.
4.
7.
vide
26
H.
8.
7.
If
a
man
commits
Felony
,
and
also
Treason
,
and
afterwards
comes
a
general
pardon
for
Felony
,
but
Treason
is
excepted
,
and
the
party
is
arraigned
for
Felony
:
By
Coke
he
shall
have
the
benefit
of
the
pardon
;
Popham
,
contrary
,
For
he
is
disabled
by
the
Treason
:
See
Coke's
Case
,
13
Eliz.
Plowd.
401.
he
pleaded
to
the
Felony
,
the
general
pardon
by
Act
of
Parliament
,
and
added
,
that
neither
himself
,
nor
the
said
offence
was
excepted
:
And
it
was
agreed
by
the
whole
Court
,
That
in
a
Quo
Warranto
,
it
is
not
sufficient
for
the
Defendant
to
say
,
That
such
a
Subject
hath
lawfull
interest
to
hold
Leets
without
making
title
to
himself
;
for
the
Writ
is
,
Quo
Warranto
he
claims
them
.
And
afterwards
Iudgment
was
given
for
the
Queen
.
XXXII
.
Woodward
and
Bugg
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
WOodward
libelled
in
the
Spiritual
Court
against
Bugg
and
Nelson
for
Tithes
of
certain
Lands
,
called
Christian-Hill
;
per
ann
.
the
Parishioner
should
be
discharged
of
Tithes
for
twenty
years
,
if
he
lived
so
long
;
and
it
was
holden
that
no
Prohibition
did
lie
thereupon
,
a
Fortiori
where
the
Estate
is
for
life
:
Gawdy
,
In
a
Case
of
grant
of
Tithes
for
life
,
a
Deed
is
requisite
,
but
here
it
is
but
a
Covenant
for
money
:
See
21
H.
6.
43.
Wray
,
If
it
had
been
for
years
,
it
had
been
good
,
but
here
it
is
not
any
Contract
,
but
onely
a
discharge
for
life
,
which
cannot
be
during
his
life
,
without
Deed
;
And
afterwards
the
Record
was
read
,
which
was
Concordatum
&
agreatum
fuit
between
the
two
parties
,
pro
omnibus
decimis
,
during
the
time
that
one
should
be
Parson
,
and
the
other
occupier
of
the
said
Lands
,
that
in
consideration
of
5
l.
the
said
Prettiman
and
his
assigns
,
should
hold
the
said
Lands
discharged
of
Tithes
;
Wray
,
The
same
is
not
a
Contract
,
but
Promise
;
for
he
doth
not
grant
any
Tithes
,
&c.
XXXIII
.
Devered
and
Ratcliff
's
Case
.
Pasch.
32
Eliz.
In
the
King's-Bench
.
IN
Debt
,
the
Plaintiff
declared
,
XXXIV
.
Clark
and
Green
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
AN
Action
upon
the
Case
was
brought
for
these
words
:
He
liveth
by
Charming
,
Sorcery
and
Witchcraft
;
It
was
moved
,
that
the
words
were
not
actionable
;
for
the
words
might
be
construed
,
as
if
the
life
of
the
party
were
preserved
by
that
means
.
And
it
was
holden
,
30
Eliz.
in
the
Case
betwixt
Smith
and
Morrice
,
that
the
word
Witch
is
not
actionable
;
And
therefore
,
if
a
man
be
sued
in
the
Spiritual
Court
for
defamation
,
for
calling
one
Witch
,
a
Prohibition
doth
not
lie
.
It
hath
been
holden
,
that
upon
these
words
,
He
went
to
destroy
a
child
in
a
woman's
belly
,
were
actionable
,
and
yet
it
is
not
Felony
,
but
a
great
discredit
;
and
these
words
,
Thou
usest
Witchcraft
,
are
not
actionable
.
And
afterwards
,
in
the
principal
Case
,
Iudgment
was
given
,
Quod
nihil
capiat
per
Billam
.
And
by
Gawdy
,
It
might
be
that
the
Plaintiff
had
the
forfeiture
of
those
who
are
convicted
of
offences
,
and
so
liveth
thereby
.
XXXV
.
Harford
and
Gardiner
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
IN
an
Action
upon
the
Case
,
The
Plaintiff
declared
,
that
the
Defendant
in
consideration
that
the
Father
of
the
Plaintiff
had
imployed
his
service
about
the
business
of
the
Testator
of
the
Defendant
,
to
the
great
profit
of
the
Testator
;
and
in
consideration
of
love
and
affection
that
the
Testator
bore
to
the
Plaintiff
,
promised
to
give
unto
him
100
l.
Curia
,
Love
is
not
a
consideration
,
upon
which
an
Action
can
be
grounded
;
XXXVI
.
Clark
's
Case
.
Mich.
31
Eliz.
In
the
Exchequer
.
BRidget
Clark
was
indebted
to
Archdell
by
Obligation
,
and
afterwards
she
delivered
to
one
Andrews
certain
Hogsheads
of
Wine
to
satisfie
the
said
Archdell
de
debito
praedicto
:
afterwards
the
Obligation
of
Clark
was
assigned
to
the
Queen
for
the
Debt
of
Archdel
:
and
if
the
property
of
the
said
Hogsheads
of
Wine
were
altered
by
the
delivery
of
them
to
Andrews
before
the
assignment
?
was
the
question
.
Egerton
,
Solicitor
General
;
The
property
is
not
altred
;
for
the
Bailor
might
have
an
Action
of
Account
against
Andrews
before
he
hath
delivered
them
over
according
to
the
Bailment
;
but
if
he
hath
delivered
them
over
,
the
same
is
a
good
bar
in
Account
:
But
if
one
be
accountable
to
me
upon
a
Bailment
,
and
afterwards
I
require
him
to
bail
the
goods
over
to
A.
the
same
is
not
in
bar
of
the
Account
,
but
is
a
good
Plea
in
discharge
of
Account
before
Auditors
,
for
that
is
matter
after
the
Bailment
,
not
upon
the
Bailment
.
If
Goods
be
bailed
to
bail
over
upon
a
consideration
precedent
on
the
part
of
him
to
whom
they
ought
to
be
bailed
,
the
Bailor
cannot
countermand
it
,
otherwise
it
is
where
it
is
voluntary
and
without
consideration
,
but
where
it
is
in
consideration
of
a
Debt
not
countermandable
;
contrary
,
if
to
satisfie
the
Debt
of
another
.
Manwood
,
chief
Baron
:
Where
the
Debtor
of
the
King
is
sufficient
,
there
a
Debt
due
to
him
ought
not
to
be
assigned
to
the
King
,
but
onely
where
the
Debt
is
doubtfull
,
and
that
was
the
ancient
course
:
but
now
at
this
day
many
seem
and
are
accounted
to
be
rich
who
are
not
,
and
therefore
omnis
ratio
tentanda
est
to
recover
the
Debts
of
the
King.
But
as
to
the
Case
before
us
,
Briget
is
Executrix
to
her
Husband
,
who
was
indebted
to
Archdel
,
and
she
delivered
the
Goods
to
Andrews
to
satisfie
Archdel
,
and
all
that
before
the
Assignment
.
And
I
conceive
that
the
property
of
the
said
Goods
is
altered
;
for
,
as
the
case
is
here
,
Andrews
was
Surety
for
Clark
,
and
had
a
Counter-Bond
of
Clark
to
save
him
harmless
.
If
I
borrow
Money
,
and
deliver
Plate
for
the
security
of
it
,
the
general
property
is
in
me
,
yet
the
Bailee
hath
a
special
interest
in
it
,
till
the
Money
is
paid
.
If
Goods
be
delivered
to
A.
to
pay
to
B.
A.
may
sell
them
.
An
Executor
hath
Goods
of
the
Testator
,
and
he
with
his
own
Monies
pays
the
Debts
of
the
Testator
,
he
shall
retain
the
Goods
,
and
the
property
is
altered
.
And
here
in
our
Case
,
Andrews
might
by
virtue
of
the
Bailment
sell
the
Goods
,
and
with
the
Money
pay
the
said
Archdel
.
And
afterwards
Iudgment
was
given
,
That
the
property
of
the
Goods
was
altered
.
XXXVII
.
Norris
Case
.
31
Eliz.
In
the
Exchequer
.
IN
an
Information
upon
Intrusion
against
Norris
and
others
concerning
Folly
John
Park
,
the
Defendants
pleaded
in
Bar
a
descent
:
It
was
holden
clearly
by
the
Court
,
That
against
the
Queen
a
Descent
is
no
Plea
,
nor
any
Title
against
the
Queen
,
because
nullum
tempus
occurrit
Regi
:
neither
shall
Lachess
be
imputed
to
her
:
for
the
possessions
of
the
Queen
are
large
,
and
it
is
not
reason
that
she
should
be
bound
or
tyed
to
look
to
her
affairs
concerning
her
possessions
,
or
to
incur
any
damage
in
default
thereof
;
for
she
is
to
intend
and
manage
the
publick
affairs
of
the
Kingdom
and
State.
It
was
also
held
by
the
Court
,
That
in
pleading
of
a
Lease
for
life
,
or
Feoffment
,
the
party
needs
not
to
shew
the
place
where
the
Lease
or
Feoffment
was
made
.
Popham
,
the
Queens
Attorny
,
took
Exception
to
the
Bar
to
the
Information
,
That
whereas
in
the
Information
Title
is
made
to
the
Queen
,
and
concludes
,
prout
patet
per
plurima
Recorda
&
memoranda
Scaccarii
;
the
Defendants
have
not
Traversed
it
by
saying
,
Absque
hoc
quod
habetur
aliquod
tale
Recordum
,
To
which
it
was
said
by
Harris
and
Savil
,
Serjeants
,
That
if
a
special
Record
had
been
alledged
in
certainty
,
then
we
ought
to
have
taken
such
Traverse
;
but
here
it
being
in
the
generalty
,
we
ought
not
to
traverse
at
all
.
Manwood
,
Because
the
Information
is
general
,
i.
ut
patet
per
plurima
Recorda
,
so
the
Traverse
ought
to
be
also
.
Another
Exception
was
taken
to
the
Bar
,
because
in
the
Information
the
Title
of
the
Queen
is
set
forth
:
and
the
Defendants
plead
,
That
long
before
the
Intrusion
A.
was
seised
in
Fee
,
and
enfeoffed
B.
who
died
seised
,
&c.
where
it
might
be
that
the
Title
of
A.
was
mean
betwixt
the
Title
of
the
Queen
and
the
Intrusion
:
whereas
by
Manwood
and
Popham
they
ought
to
have
said
,
Diu
antequam
the
Queen
was
seised
,
A.
was
seised
,
&c.
Savil
and
Harris
,
If
which
should
so
plead
,
we
should
confess
that
the
Queen
once
had
a
Title
,
and
that
is
not
true
,
which
Manwood
denied
,
for
by
such
Plea
nothing
is
confessed
.
And
it
was
said
by
some
,
That
where
in
the
Bar
the
Title
of
the
Queen
is
confessed
and
avoided
,
there
the
Defendant
shall
say
,
Diu
antequam
the
Queen
had
any
thing
,
&c.
otherwise
not
.
And
it
was
holden
by
all
,
That
in
such
case
,
a
Feoffment
might
be
an
induction
unto
a
Traverse
,
but
not
a
Descent
.
And
by
Manwood
,
it
is
a
general
Rule
,
as
well
in
the
case
of
a
Subject
,
as
in
the
case
of
the
Queen
,
That
nothing
can
be
an
Inducement
to
a
Traverse
,
but
such
a
thing
as
is
Traversable
;
and
here
the
Descent
induceth
the
Traverse
,
being
not
Traversable
in
this
case
.
Also
it
was
holden
,
That
the
place
where
the
party
dieth
seised
needs
not
to
be
shewed
in
pleading
a
Descent
.
And
afterwards
Manwood
at
another
day
,
mutata
opinione
,
conceived
,
That
as
to
plurima
Recorda
,
there
needed
no
Traverse
,
although
there
were
many
presidents
to
the
contrary
:
Diu
ante
transgressionem
fieri
sup
.
is
a
good
Plea
in
Trespass
in
Case
of
a
common
person
,
not
in
the
King's
Case
,
diu
ante
Intrusionem
,
&c.
XXXVIII
.
Robinson
and
Robinson
's
Case
.
31
Eliz.
In
the
Exchequer
Chamber
.
IN
the
Case
betwixt
Robinson
and
Robinson
in
the
Exchequer-Chamber
by
English
Bill
concerning
the
Manor
of
Draiton
Basset
;
The
Defendant
pleaded
in
Bar
a
special
Plea
,
to
which
the
Plaintiff
replyed
;
and
afterwards
the
Defendant
,
when
he
should
have
Rejoyned
,
would
have
relinquished
his
special
Plea
,
and
pleaded
the
general
Issue
.
Manwood
,
In
the
Common
Pleas
,
and
King's
Bench
,
and
in
the
Court
of
Common
Pleas
in
the
Exchequer
,
before
the
Issue
joyned
,
the
Defendant
might
relinquish
his
special
Plea
,
and
plead
the
general
Issue
,
for
the
Pleadings
there
are
in
paper
until
Issue
be
joyned
,
and
therefore
at
any
time
before
Issue
joyned
,
the
Plea
might
be
withdrawn
:
But
in
the
Chancery
,
Court
of
Requests
,
and
here
,
all
Pleas
put
in
are
in
Parchment
,
and
filed
;
and
therefore
it
cannot
be
so
done
:
and
therefore
here
,
if
the
Plea
be
once
ingrossed
into
Parchment
and
filed
,
the
Defendant
cannot
relinquish
his
Plea
,
and
plead
the
general
Issue
;
contrary
,
where
the
Plea
is
yet
in
Paper
.
Gent
,
Baron
,
That
if
upon
the
Plea
in
Paper
an
Issue
be
offered
with
an
Absque
hoc
,
&c.
the
other
party
cannot
relinquish
it
,
although
it
be
but
in
Paper
.
But
afterwards
the
Barons
asked
the
Clarks
,
what
was
their
course
in
such
cases
?
who
answered
,
That
if
the
Plea
be
in
Parchment
,
and
upon
the
File
,
it
shall
never
afterwards
be
taken
from
off
the
File
,
but
with
the
consent
of
the
parties
,
and
Order
of
the
Court.
And
afterwards
Manwood
,
with
the
assent
of
the
rest
of
the
Barons
,
gave
a
Rule
,
That
the
Defendant
should
rejoyn
to
the
Replication
,
or
otherwise
a
Nihil
dicit
to
be
entred
.
XXXIX
.
The
Lord
Cromwel
's
Case
.
31
Eliz.
In
the
Exchequer
.
IN
the
Case
of
the
Lord
Cromwel
upon
the
Statute
of
33
H.
8.
for
levying
of
the
King's
Debts
:
A
Debt
came
to
the
Queen
by
Attainder
of
the
Creditor
,
upon
which
an
Extent
issued
against
one
of
the
Ter-tenants
liable
to
the
Debt
,
and
not
against
all
:
It
was
moved
,
That
upon
a
branch
of
the
said
Statute
,
all
the
Ter-tenants
ought
to
be
charged
:
But
it
was
the
Opinion
of
divers
,
that
such
a
Debt
which
cometh
to
the
King
by
Attainder
,
is
not
within
the
said
Statute
;
for
although
the
Attainder
is
by
a
Iudgment
,
yet
Debt
by
Iudgment
it
cannot
properly
be
said
,
but
where
a
Debt
is
recovered
by
Iudgment
.
And
that
was
the
Case
of
the
Lord
Norris
,
for
a
Debt
due
to
Heron
by
the
Lord
Williams
,
which
Heron
was
attainted
.
XL.
Machel
and
Dunton
's
Case
.
Hill.
29
Eliz.
Rot.
631.
in
the
Common
Pleas.
IN
Ejectione
Firmae
the
Case
was
,
That
one
Machel
,
XLI
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
Postea
210.
A
Justicies
issued
forth
to
the
Sheriff
of
H.
for
the
Debt
of
40
l.
and
the
same
Plea
was
held
and
determined
before
the
Vnder-Sheriff
in
the
absence
of
the
Sheriff
:
It
was
moved
by
Puckering
,
Serjeant
,
If
a
Writ
of
Error
or
a
false
Iudgment
lieth
in
this
Case
?
And
it
was
resolved
by
the
Iustices
,
That
the
Sheriff
himself
in
his
person
ought
to
hold
Plea
of
a
Justicies
;
and
if
he
make
a
Precept
or
Deputation
to
another
,
it
is
meerly
void
:
34
H.
6.
48.
See
the
Case
there
abridged
,
Fitz.
Bar.
161.
And
a
Justicies
is
not
an
Original
Writ
,
but
a
Commission
to
the
Sheriff
to
hold
Plea
above
40
s.
And
upon
a
Iudgment
given
upon
a
Justicies
,
a
Writ
of
false
Iudgment
lieth
,
and
not
a
Writ
of
Error
.
See
7
E.
4.
23.
And
it
was
the
Opinion
of
the
Lord
Anderson
,
That
the
Iudgment
given
in
the
principal
Case
was
utterly
void
,
&
coram
non
Judice
.
XLII
.
The
Queen
and
Jordan
's
Case
.
Trin.
29
Eliz.
In
the
Exchequer
.
William
Jordan
,
Surveyor
of
the
Ordinance
,
&c.
and
the
Executors
of
John
Bowland
,
Deputy
of
Ambrose
Earl
of
Warwick
,
Master
of
the
Ordinance
,
&c.
In
which
was
set
forth
for
the
Queen
,
That
certain
Powder
,
Pellets
,
and
other
furniture
of
War
,
came
unto
the
hands
of
the
said
Jordan
and
Bowland
,
in
respect
of
their
said
Offices
,
to
the
value
of
400000
l.
and
shewed
how
much
came
to
each
of
them
,
and
the
special
charge
incertain
,
per
quod
onerabiles
&
computabiles
Dominae
Reginae
devenerunt
,
nec
tamen
computum
unquam
inde
reddiderunt
,
nec
reddere
voluerant
,
sed
bona
&
catalla
praedicta
ad
usus
suos
proprios
converterunt
,
in
deceptionem
dictae
Dominae
Reginae
,
&c.
The
Defendants
pleaded
Not
guilty
,
upon
which
the
Queen's
Attorny
did
demur
in
Law
,
because
the
Defendants
have
answered
onely
to
the
Conversion
:
in
which
case
although
they
have
not
converted
,
yet
if
the
said
Goods
have
come
to
the
hands
of
their
Testator
,
it
is
sufficient
for
the
Queen
,
and
the
Defendants
are
chargeable
to
the
Queen
for
the
same
:
And
the
Opinion
of
all
the
Barons
was
clear
,
that
the
Defendants
ought
to
answer
to
the
Charge
,
&c.
XLIII
.
Collet
and
the
Bailiffs
of
Shrewsbury
's
Case
.
Pasc.
29
Eliz.
In
the
Common
Pleas.
IN
a
false
Imprisonment
,
the
Defendants
justified
by
Prescription
,
scil.
that
they
have
used
,
if
any
person
within
their
Town
contemptuose
se
gesserit
against
the
Bailiffs
of
the
said
Town
,
or
any
Warden
of
any
Trade
there
,
to
commit
such
a
person
to
Prison
for
the
space
of
a
day
or
more
at
the
least
,
at
their
discretions
:
And
shewed
farther
.
That
the
Plaintiff
did
mis-behave
himself
,
tam
factis
quam
verbis
,
against
the
Wardens
of
such
a
Mystery
in
the
said
Town
,
&c.
And
when
the
Bailiffs
,
super
Querimoniam
eis
inde
factam
,
sent
for
the
Plaintiff
,
he
would
not
come
to
them
,
but
mis-behaved
himself
against
them
,
tam
dictis
quam
factis
;
for
which
they
did
commit
him
to
Prison
,
&c.
upon
which
there
was
a
Demurrer
.
And
afterwards
Iudgment
was
given
for
the
Plaintiff
,
because
their
Prescription
is
not
good
;
for
it
is
too
large
to
imprison
Subjects
at
their
discretion
:
Also
they
have
set
forth
the
offence
of
the
Plaintiff
generally
;
i.
Misbehaviour
,
tam
factis
quam
dictis
,
without
alledging
any
special
Misdemeanor
in
certain
.
XLIV
.
Pasch.
29
Eliz.
In
the
Common-Pleas
.
3
Leu.
79.
IT
was
holden
by
the
whole
Court
,
That
where
a
man
makes
his
Will
in
this
manner
,
I
will
and
bequeath
my
Land
to
A.
and
the
name
of
the
Devisor
is
not
in
the
whole
Will
,
yet
the
Devise
is
good
,
by
averment
of
the
name
of
the
Devisor
,
in
extremis
,
having
an
intent
to
devise
his
Land
,
by
word
makes
such
a
Devise
,
but
doth
not
command
the
same
to
be
put
in
writing
,
but
another
without
his
knowledge
or
command
puts
the
same
in
writing
in
the
life
of
the
Devisor
,
it
is
a
good
Devise
,
for
it
is
sufficient
if
the
Devise
be
reduced
in
writing
during
the
life
of
the
Devisor
.
XLV
.
Leonard
Lovelace
's
Case
.
Trin.
27
Eliz.
In
the
Common-Pleas
.
IN
Waste
,
the
Case
was
,
de
corpore
suo
exeunti
:
And
upon
Demurrer
it
was
adjudged
,
That
by
this
Devise
no
Estate
passed
but
an
Estate
for
life
unto
the
Father
of
the
Defendant
,
the
Remainder
to
his
eldest
Son
for
life
,
so
as
no
Estate
of
Inheritance
passed
thereby
;
and
therefore
punishable
for
Waste
.
XLVI
.
Cobb
and
Prior
's
Case
.
Postea
48.
Hill.
33
Eliz.
In
the
Common-Pleas
.
THE
Case
was
,
A
man
deviseth
his
Lands
to
his
Wife
during
the
minority
of
his
Son
,
upon
condition
,
That
she
shall
not
doe
Waste
during
the
min●●●●y
of
her
said
Son
,
and
dieth
:
The
Wife
takes
a
Husband
,
a●●
dieth
;
the
Husband
commits
Waste
:
It
was
holden
by
the
whole
Court
,
That
the
same
is
not
any
breach
of
the
Condition
.
XLV
.
Salway
and
Luson
's
Case
.
Mich.
30
and
31
Eliz.
In
the
Common-Pleas
.
MAtthew
Salway
brought
a
Writ
of
Right
against
Luson
,
and
the
Writ
was
,
Messuagium
,
&
200
acr
.
jampnor
.
&
bruerae
,
and
exception
was
taken
to
the
Writ
,
because
that
jampnor
.
&
bruerae
,
were
coupled
together
where
they
ought
to
be
distinctly
severed
;
and
so
many
acr
.
jampnor
.
and
so
many
acr
.
bruerae
:
although
it
was
objected
on
the
part
of
the
Demandant
in
maintenance
of
the
Writ
,
That
in
the
Register
,
fol.
2.
the
Writ
of
Right
is
,
Redditu
unius
librae
Mac.
&
Obed.
i.
Mace
and
Cloves
together
without
distinction
or
severance
.
And
it
was
said
in
a
Writ
of
Right
,
we
ought
to
follow
the
Register
,
and
therefore
a
Writ
of
Right
was
abated
,
because
the
word
Pomarium
was
put
in
the
Writ
,
for
in
the
Register
,
there
is
no
such
Writ
,
and
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
Entry
,
Sur
Disseisin
mille
acr
.
jampnor
.
&
bruerae
.
But
the
exception
was
not
allowed
,
for
it
may
be
,
that
jampnorum
&
bruerae
lie
so
promiscuously
,
that
they
cannot
be
divided
:
And
see
16
H.
7.
8.
and
9.
The
respect
which
the
Iustices
there
had
to
the
Register
,
so
as
they
changed
their
opinions
,
conformable
to
the
Register
:
Another
exception
was
taken
to
the
Writ
,
because
the
Demandant
demands
duas
partes
custodiae
,
de
Hay
in
the
Forest
of
C.
and
the
opinion
of
the
whole
Court
was
,
that
the
Writ
ought
to
be
Officium
custodiae
duarum
partium
de
Hay
,
and
not
duas
partes
custodiae
,
As
Advocatio
duarum
partium
Ecclesiae
,
not
duas
partes
advocationis
:
another
exception
was
,
because
the
Writ
was
,
duas
partes
,
&c.
in
three
to
be
divided
,
whereas
it
should
be
divisus
,
&
non
dividend
.
for
dividendum
is
not
in
any
Writ
but
a
Writ
of
Partition
.
And
by
Windham
,
the
parts
of
this
Office
are
divided
in
right
,
Quod
Curia
Concessit
,
another
exception
was
taken
,
because
in
the
Writ
,
it
is
not
set
down
in
what
Town
the
Forest
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
&
Manerii
;
and
that
was
holden
to
be
a
material
exception
:
Another
exception
was
taken
,
because
a
Writ
of
Right
doth
not
lie
of
an
Office
;
for
at
the
Common
Law
,
an
Office
did
not
lie
of
it
,
but
now
it
doth
by
the
Statute
of
West
.
2.
For
it
was
not
liberum
tenementum
,
but
the
party
grieved
was
put
to
his
Quod
permittat
.
And
of
this
opinion
was
the
whole
Court.
XLVIII
.
Johnson
and
Bellamy
's
Case
.
Hillar.
31
Eliz.
In
the
Common-Pleas
.
IN
Ejectione
firmae
,
It
was
found
by
special
Verdict
,
That
Mr.
Graunt
was
seised
of
the
Lands
,
&c.
and
by
his
Will
devised
the
same
to
Joan
his
Wife
,
for
life
;
and
farther
he
willed
,
That
when
Richard
his
brother
shall
come
to
the
age
of
25
years
,
he
should
have
the
Lands
to
him
and
the
heirs
of
his
body
lawfully
begotten
.
Mr.
Graunt
died
,
having
issue
of
his
body
,
who
is
his
heir
,
Richard
,
before
he
had
attained
the
age
of
25
years
,
levied
a
Fine
of
the
said
Lands
,
with
Proclamations
in
the
life
,
and
during
the
seisin
of
Joan
,
to
A.
Sic
ut
partes
ad
finem
nihil
habuerunt
:
and
if
this
Fine
should
bind
the
Estate-tail
was
the
Question
;
And
the
Iustices
cited
the
case
of
the
Lord
Zouch
,
which
was
adjudged
,
M.
29
and
30
Eliz.
Tenant
in
tail
discontinues
to
E.
and
afterwards
levieth
a
Fine
to
B.
although
the
partes
ad
finem
nihil
habuerunt
,
yet
the
Fine
shall
bind
the
entail
:
But
the
Serjeants
at
Bar
argued
,
That
there
is
a
great
difference
betwixt
the
Case
cited
,
and
the
Case
at
Bar
;
for
in
that
Case
,
the
said
Fine
was
pleaded
in
Bar
,
but
here
the
Fine
is
not
pleaded
,
but
found
by
special
Verdict
;
To
which
it
was
said
by
the
Court
,
that
the
same
was
not
any
difference
;
For
the
Fine
by
the
Statute
is
not
any
matter
of
Estoppel
,
or
conclusion
;
but
by
the
Statute
doth
bind
and
extinguish
the
Estate-tail
,
and
the
right
of
it
;
and
Fines
are
as
effectual
to
bind
the
right
of
the
entail
when
they
are
found
by
especial
Verdict
,
as
when
they
are
pleaded
in
Bar
:
And
by
Periam
,
Collateral
Warranty
found
by
Verdict
,
is
of
as
great
force
,
as
if
it
were
pleaded
in
Bar
,
And
afterwards
Iudgment
was
given
,
That
the
Estate-tail
by
the
Fine
,
was
utterly
destroyed
and
extinct
.
XLIX
.
Jay
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
JAY
brought
an
Action
of
Debt
before
the
Mayor
of
Shrewsbury
,
&c.
and
declared
upon
an
Obligation
which
was
upon
condition
to
pay
money
at
London
,
and
issue
was
there
joined
upon
the
payment
.
And
it
was
moved
how
this
issue
should
be
tried
,
viz.
de
remover
Plea
41.
Where
he
saith
,
That
a
Foreign
Plea
pleaded
in
London
in
Debt
,
goes
to
the
jurisdiction
;
but
upon
a
Foreign
Voucher
in
a
Plea
real
,
the
Plea
shall
be
removed
in
Bank
by
the
Statute
to
try
the
Warranty
,
and
afterward
shall
be
remanded
.
L.
Sands
and
Scagnard
's
Case
.
Trin.
29
Eliz.
In
the
Common
Pleas.
IN
an
Action
upon
the
Case
,
The
Plaintiff
declared
,
that
he
was
possessed
of
certain
Chattels
which
came
to
the
Defendant
by
Trover
.
The
Defendant
pleaded
,
That
heretofore
the
Plaintiff
brought
Debt
against
the
now
Defendant
,
and
demanded
certain
moneys
,
and
declared
,
that
the
Defendant
bought
of
him
the
same
goods
,
(
whereof
the
Action
is
now
brought
)
for
the
summ
then
in
demand
,
to
which
the
then
Defendant
waged
his
Law
and
had
his
Law
;
by
which
Nihil
Capiat
per
breve
,
&c.
was
entred
.
And
demanded
Iudgment
,
if
,
&c.
And
by
Windham
and
Rodes
,
Iustices
,
The
same
is
no
bar
in
this
Action
,
for
the
waging
of
the
Law
,
and
the
doing
of
it
,
utterly
disproves
the
Contract
supposed
by
the
Declaration
in
the
said
Action
of
Debt
,
and
then
the
Plaintiff
is
not
bound
by
the
supposal
of
it
,
but
is
at
large
to
bring
this
Action
;
and
so
Iudgment
was
given
for
the
Plaintiff
.
LI.
Spittle
and
Davie
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
LII
.
Martin
Van
Henbeck
's
Case
.
Trin.
30
Eliz.
In
the
Exchequer
.
AN
Information
was
exhibited
in
the
Exchequer
,
against
Martin
Van
Henbeck
,
Merchant-stranger
,
upon
the
Statute
of
18
H.
6.
Cap.
17.
concerning
the
gaging
of
vessels
of
Wine
,
and
shewed
,
That
the
Defendant
had
sold
to
such
a
one
,
so
many
pipes
of
Wine
,
and
that
none
of
them
did
contain
as
they
ought
,
126.
gallons
;
and
although
they
were
so
defective
,
yet
the
Defendant
had
not
defalked
the
price
,
&c.
according
to
the
want
of
measure
,
for
which
he
had
forfeited
to
the
Queen
,
all
the
value
of
all
the
Wine
so
defective
.
Exception
was
taken
to
the
Information
,
because
there
is
not
set
down
how
much
in
every
pipe
was
wanting
,
as
one
or
two
gallons
,
&c.
To
as
a
ratable
defalcation
might
be
made
according
to
the
proportion
of
the
want
of
measure
;
But
if
the
Informer
had
set
forth
in
his
Information
,
that
no
defalcation
was
at
all
,
such
general
allegation
of
want
of
measure
,
without
other
certainty
,
had
been
good
.
And
the
Case
was
cited
,
32
E.
4.
40.
Lysle's
Case
,
Where
the
plea
wants
certainty
;
or
where
he
pleads
that
he
was
ready
to
shew
to
the
Council
of
the
Plaintiff
his
discharge
of
an
Annuity
,
&c.
and
doth
not
shew
what
manner
of
discharge
,
as
release
,
&c.
So
2
H.
7.
6.
in
Dower
,
against
the
heir
,
who
pleads
in
Bar
,
Detainment
of
Charters
,
without
shewing
what
Charters
in
certain
:
also
there
is
time
enough
of
defalcation
,
when
the
time
of
payment
comes
,
and
not
upon
the
Contract
;
and
it
is
not
shewed
,
that
the
Vendee
had
paid
for
the
Wine
.
Egerton
,
Solicitor
,
contrary
,
When
the
thing
demanded
is
to
be
recorded
,
there
it
ought
to
be
certainly
shewed
,
but
contrary
,
where
it
goeth
onely
to
the
point
of
Conveyance
of
the
Office
;
and
here
,
the
thing
to
be
abated
is
not
in
question
;
for
be
it
more
or
less
,
the
Defendant
is
to
lose
the
value
of
all
the
Wine
,
and
that
which
is
to
be
defalked
,
is
but
an
Induction
,
or
Conveyance
tending
to
the
payment
of
the
forfeiture
:
As
in
Partridge's
Case
,
7
E.
6.
Plow
.
85.
Whereupon
the
Statute
of
32
H.
8.
Maintenance
,
The
Plaintiff
charges
the
Defendant
with
a
Lease
for
years
,
made
to
a
stranger
,
without
shewing
for
what
term
certain
,
and
yet
it
was
there
holden
well
enough
,
notwithstanding
that
the
Lease
was
not
to
be
forfeited
,
but
was
a
Conveyance
to
the
point
of
forfeiture
;
i.
the
value
of
the
Lands
38
Ass.
12.
A
Steward
of
a
Leet
was
presented
,
for
that
he
had
suffered
many
Brewers
and
Bakers
to
ba●●
and
brew
,
contrary
to
the
Assise
,
pro
redemptione
inde
capiend
.
without
shewing
in
certain
,
what
Bakers
,
or
of
whom
he
had
taken
redemption
;
but
notwithstanding
that
,
the
Defendant
took
issue
upon
the
matter
,
&c.
And
it
is
impossible
for
the
Informer
,
to
know
the
quantity
of
the
full
measure
of
every
pipe
of
Wine
,
which
doth
not
belong
to
him
,
but
to
another
,
and
if
the
Law
should
compel
him
to
this
impossibility
,
the
Statute
should
be
of
none
effect
.
3.
E.
3.
363.
In
Nusance
for
drowning
of
his
Lands
,
exception
was
taken
,
because
it
was
not
set
forth
what
quantity
of
land
,
but
it
was
not
allowed
;
for
it
is
impossible
to
know
,
to
what
depth
the
land
was
drowned
,
and
how
much
of
the
land
was
drowned
:
So
here
the
Informer
cannot
know
every
spoonfull
,
&c.
And
he
said
,
that
the
defalcation
ought
to
be
at
the
time
of
the
Contract
,
or
within
convenient
time
after
.
Coke
,
contrary
,
Here
is
a
great
incertainty
,
which
is
not
tolerable
in
an
Information
,
for
the
quantity
of
the
want
is
uncertain
,
and
so
likewise
the
quantity
of
the
defalcation
,
for
the
want
must
be
fourty
,
twenty
,
ten
,
five
,
or
one
gallon
,
pottle
,
quart
,
or
pint
,
and
in
such
Information
upon
penal
Laws
,
the
matter
of
it
ought
to
be
certainly
shewed
.
Oportet
ut
res
certa
deducatur
in
judicium
,
so
as
the
Court
may
judge
thereof
:
as
where
an
Information
is
exhibited
upon
the
Statute
of
Vsury
,
That
Statute
is
,
that
if
any
take
above
10
l.
for
the
loan
of
100
l.
for
one
year
,
he
shall
forfeit
the
whole
value
of
the
principal
,
here
there
ought
to
be
an
usurious
Contract
for
above
10
l.
in
the
hundred
;
and
also
there
ought
to
be
a
taking
;
and
it
is
impossible
to
discover
the
subtilty
of
an
Vsurer
:
But
if
Information
be
exhibited
,
here
against
an
Vsurer
,
and
chargeth
that
he
took
more
then
10
l.
in
the
hundred
,
without
shewing
how
much
,
such
Information
is
utterly
insufficient
;
for
the
Informer
ought
to
set
forth
the
quantity
of
the
interest
received
,
and
yet
the
same
is
not
to
be
recovered
:
Also
if
the
Informer
setteth
for
an
usurious
Contract
,
Cum
quodam
homine
ignoto
,
it
is
insufficient
,
5
H.
7.
17
,
18.
If
an
Information
be
exhibited
upon
the
Statute
of
Liveries
,
as
well
the
giver
as
the
taker
,
ought
to
be
certainly
shewed
,
&c.
Another
exception
was
taken
,
because
the
words
of
the
Information
are
,
Quae
quidem
dolia
,
vel
eorum
aliquod
,
&c.
did
lack
,
&c.
But
by
Manwood
,
the
same
is
well
enough
,
Wherefore
Coke
did
not
speak
to
it
;
And
he
said
,
that
the
time
of
the
defalcation
of
the
price
is
upon
the
payment
,
and
not
before
.
If
J.
S.
lend
to
one
100
l.
for
a
year
,
and
upon
the
loan
,
contract
with
me
,
to
give
me
20
l.
for
the
loan
of
the
same
for
one
year
,
If
now
when
I
pay
him
he
taketh
but
10
l.
he
shall
not
be
punished
for
the
Contract
,
but
perhaps
the
Bond
shall
be
void
.
And
upon
the
Statute
of
5
E.
6.
of
Ingressors
,
If
the
Information
be
,
that
the
Defendant
hath
bought
Corn
,
&c.
it
is
not
sufficient
;
for
the
words
of
the
Statute
are
,
Get
into
his
hands
,
&c.
Owen
Serjeant
to
the
same
purpose
:
He
hath
not
alledged
,
Quantum
,
vel
in
quanto
defecit
,
If
there
had
been
but
a
Pint
,
it
had
been
sufficient
;
The
Information
goes
farther
,
Non
defalcavit
tantum
de
pretio
,
quantum
defecit
,
and
so
tantum
,
&
quantum
,
is
incertainly
laid
;
22
H.
6.
If
A.
be
bound
to
B.
to
make
him
a
sufficient
Estate
in
such
Lands
,
in
an
Action
brought
upon
such
an
Obligation
,
it
is
no
plea
to
say
,
That
he
hath
made
unto
him
a
sufficient
Estate
,
&c.
but
he
ought
to
shew
what
Estate
,
So
7
E.
4.
If
one
be
bound
to
repair
such
a
house
,
It
is
not
sufficient
to
say
,
that
he
hath
repaired
it
,
but
he
ought
to
shew
,
in
hoc
,
vel
in
illo
:
Egerton
,
The
abatement
shall
be
upon
the
Contract
.
And
afterwards
Iudgment
was
given
against
the
Informer
,
because
it
is
not
shewed
in
the
Information
in
how
many
Vessels
there
was
want
;
but
if
he
had
alledged
but
the
want
of
one
Pint
,
it
had
been
good
for
the
value
of
all
the
Wine
:
And
by
Manwood
that
might
have
been
well
enough
known
by
the
Gauging
how
much
every
Vessel
wanted
.
LIII
.
Green
and
Everard
's
Case
.
Mich.
30
Eliz.
In
the
Exchequer
.
IN
Ejectione
Firmae
against
Everard
by
Green
,
the
parties
were
at
issue
,
and
the
said
Green
challenged
one
of
the
Iurors
,
and
assigned
for
cause
,
because
the
said
Iuror
held
Land
under
the
same
Title
as
the
Defendant
did
:
To
prove
which
one
Lancelot
Chandler
was
produced
as
a
Witness
for
the
said
Green
,
who
deposed
upon
the
said
Challenge
the
same
,
for
which
the
Iuror
challenged
was
drawn
,
and
so
there
was
no
Inquest
:
and
so
the
Plaintiff
was
delayed
of
his
Trial
:
whereupon
he
sued
the
said
Lancelot
,
tam
pro
Domina
Regina
quam
pro
seipso
:
and
it
was
found
for
the
Plaintiff
.
And
now
Exception
in
Arrest
of
Iudgment
was
put
into
the
Court
engrossed
in
Parchment
;
viz.
Ad
Judicium
pro
Domina
Regina
,
&
praefat.
Querente
,
Curia
procedere
non
debet
,
quia
manifeste
apparet
,
per
informat
.
dict.
Querent
.
quod
ipse
non
fuit
pars
gravata
,
quod
per
calumniam
in
dicta
informatione
specificat
.
ac
per
jurament
.
dict.
Lancelot
super
inde
fact
.
dictus
Querens
,
non
fuit
damnificat
.
sed
in
calumnia
praedict.
&
jurament
.
praedict.
super
inde
factum
tendebat
in
commodum
ipsius
Everardi
,
propter
quod
ipse
idem
Everardus
tempore
calumniae
praedict.
existens
tenens
Tenementorum
praedictor
.
per
dict.
declarat
.
specificator
.
eadem
Tenementa
ratione
calumniae
praedict.
ac
praedict.
jurament
.
tenebat
&
proficua
inde
provenientia
diutius
quam
aliter
si
praesens
Triatio
habita
fuisset
sine
aliqua
calumnia
tenere
potuisset
.
See
the
Statute
of
5
Eliz.
against
Perjury
,
the
words
are
,
grieved
,
letted
,
or
molested
,
&c.
LIV.
George
ap
Rice
's
Case
.
Mich.
30
Eliz.
In
the
King's-Bench
.
George
ap
Rice
,
Tenant
in
Tail
after
possibility
of
Issue
extinct
,
assigned
his
Estate
to
one
A.
against
whom
he
in
the
Reversion
brought
a
Quid
juris
clamat
,
and
it
was
adjudged
that
he
should
Attorn
;
for
although
Tenant
in
Tail
after
possibility
of
Issue
extinct
,
himself
is
not
compellable
to
attorn
,
yet
his
Assignee
shall
attorn
;
for
the
privilege
is
knit
to
the
person
who
is
in
truth
Tenant
in
Tail
after
possibility
of
Issue
,
which
cannot
be
the
Assignee
,
for
by
the
Assignment
the
privity
and
the
privilege
are
destroyed
.
Writ
of
Error
brought
upon
it
in
the
King
's
Bench.
LV.
Lucas
and
Picrost
's
Case
.
30
Eliz.
In
the
Common
Pleas.
THE
Case
was
,
Novel
disseisin
was
brought
in
the
County
of
Northumberland
of
two
Acres
of
Land
;
and
as
to
one
Acre
,
the
Defendant
pleaded
a
Plea
tryable
in
a
Foreign
County
,
upon
which
the
Issue
was
adjourned
into
the
Common
Pleas
,
and
from
thence
into
the
Foreign
County
,
where
by
Nisi
prius
it
was
found
for
the
Plaintiff
:
And
now
Snag
,
Serjeant
,
prayed
Iudgment
for
the
Plaintiff
,
and
cited
the
Book
of
16
H.
7.
12.
where
Assise
is
adjourned
in
Bank
for
difficulty
of
the
Verdict
,
they
there
may
give
Iudgment
But
the
whole
Court
is
of
contrary
Opinion
;
for
here
is
another
Acre
,
the
Title
of
which
is
to
be
tryed
before
the
Iustices
of
the
Assise
,
before
the
Tryal
of
which
no
Iudgment
shall
be
given
for
the
Acre
for
which
the
Title
is
found
:
And
the
Assise
is
properly
depending
before
the
Iustices
of
the
Assise
,
before
whom
the
Plaintiff
may
discontinue
his
Assise
:
And
it
is
not
like
unto
the
Case
of
6
Ass.
4.
8
Ass.
15.
where
in
an
Assise
,
a
Release
dated
in
a
Foreign
County
is
pleaded
,
which
was
denyed
,
for
which
cause
the
Assise
was
adjourned
in
Bank
,
and
there
found
by
Inquest
not
the
Deed
of
the
Plaintiff
:
now
the
Plaintiff
,
if
he
will
release
his
damages
,
shall
have
Iudgment
of
the
Freehold
presently
:
But
in
our
Case
,
LVI
.
Povye
's
Case
.
Mich.
30
Eliz.
In
communi
Banco
.
POvy
,
an
Attorny
of
the
King's
Bench
,
brought
an
Action
of
Trespass
there
against
the
Warden
of
the
Fleet
,
who
came
into
the
Common
Pleas
and
demanded
the
Advice
of
the
Court
,
because
he
is
an
Officer
of
this
Court
,
and
therefore
ought
not
to
be
impleaded
elsewhere
:
But
it
was
said
by
the
Court
,
King's
Bench
,
as
well
as
the
Defendant
hath
here
,
this
equality
of
Privilege
shall
render
the
parties
at
liberty
;
and
he
shall
have
the
benefit
of
the
Privilege
who
first
begins
Suit
:
and
so
the
Warden
of
the
Fleet
was
advised
to
answer
.
LVII
.
Inchley
and
Robinson
's
Case
.
Hill.
29
Eliz.
In
the
Common
Pleas.
IN
an
Ejectione
Firmae
,
it
was
found
by
special
Verdict
,
Camfield
,
&c.
and
also
bequeathed
divers
sums
of
money
to
be
levied
of
the
premisses
:
and
they
farther
found
,
That
the
said
Rent
of
230
l.
was
the
full
third
part
of
the
yearly
value
of
all
the
Lands
and
Tenements
of
the
Devisor
.
The
Question
was
,
If
by
those
words
of
the
Devise
,
Of
the
Manor
of
Fremmington
,
the
Rent
and
Services
of
the
Manor
did
pass
?
i.
the
Rent
and
the
Homage
and
the
Fealty
reserved
,
the
Grant
of
King
E.
6.
of
the
Manor
and
Hundred
of
Fremmington
?
and
if
the
said
Rent
and
Services
are
issuing
out
of
the
Manor
?
for
if
the
Rent
doth
not
pass
,
then
the
same
is
descended
to
the
Heir
of
the
Marchioness
;
and
then
being
found
the
full
and
third
part
of
the
value
,
the
King
and
the
Heir
is
fully
answered
and
satisfied
,
and
then
the
Inheritance
of
the
residue
discharged
,
and
settled
in
the
Devisee
:
And
if
the
Rent
doth
not
pass
,
then
is
the
Heir
of
the
Marchioness
entitled
by
the
Statute
to
a
third
part
of
the
whole
.
Shuttleworth
,
Serjeant
,
If
the
Marquess
had
devised
by
express
words
the
said
Rent
and
Services
,
they
could
not
have
passed
:
for
as
to
the
Services
,
they
are
entire
things
,
as
Homage
and
Fealty
,
and
they
cannot
pass
by
Devise
in
case
where
Partition
is
to
follow
,
for
such
things
cannot
receive
any
Partition
or
Division
,
therefore
they
are
not
divisible
;
for
the
Statute
doth
enable
the
Proprietor
or
Owner
to
devise
two
parts
of
his
Inheritances
,
in
three
parts
to
be
divided
;
i.
as
Catalla
Felonum
cannot
be
devised
for
the
reason
aforesaid
;
which
was
granted
by
the
whole
Court.
And
as
to
the
Devise
,
he
argued
much
upon
the
grounds
of
Devises
,
and
put
a
ground
put
by
Fineax
,
15
H.
7.
12.
where
every
Will
ought
to
be
construed
and
taken
according
as
the
words
do
import
,
or
as
it
may
be
intended
or
implyed
by
the
words
,
what
the
meaning
of
the
Testator
was
out
of
the
words
of
the
Will
.
See
thereof
a
good
Case
19
H.
8.
8.
and
9.
and
he
relied
much
upon
the
Case
of
Bret
and
Rigden
,
Plow.
342.
So
he
said
in
this
case
,
because
the
intent
of
the
Devisor
doth
not
appear
upon
the
words
of
the
Will
,
that
this
Rent
should
pass
;
it
shall
not
pass
,
for
there
is
not
any
mention
made
of
any
Rent
in
all
the
Will
.
Fenner
contrary
,
and
he
argued
much
upon
the
favorable
construction
which
the
Law
gives
to
Wills
,
14
H.
3.
Reversion
for
Remainder
,
&
è
contr.
17
E.
3.
8.
A
man
may
make
a
Feoffment
of
a
Manor
by
the
name
of
a
Knights
Fee
,
à
fortiori
in
case
of
the
Devise
:
and
in
our
case
the
Marquiss
conceived
,
That
the
Rent
and
Services
reserved
out
of
the
Manor
of
Fremmington
was
the
Manor
of
Fremmington
;
and
the
Law
shall
give
strength
to
that
intention
.
Walmsly
conceived
,
That
the
Rent
did
not
pass
by
the
name
of
Manor
,
&c.
for
this
Rent
,
nec
in
rei
veritate
,
nor
in
reputation
,
was
ever
taken
for
a
Manor
:
Also
the
words
,
Of
the
Manor
and
Hundred
of
Fremmington
,
are
put
amongst
others
which
are
Manors
in
truth
;
by
which
it
seemeth
,
That
the
Devisor
did
not
intend
to
pass
but
one
Manor
,
and
no
other
Hereditaments
,
by
that
Manor
of
Fremmington
.
It
is
a
Rule
in
Law
,
That
in
the
construction
of
a
Will
a
thing
implyed
shall
not
controul
a
thing
expressed
:
But
here
,
if
by
implication
the
Rent
shall
pass
,
then
the
Manor
of
Camfield
shall
not
pass
,
which
it
was
the
intent
of
the
Devisor
to
pass
,
and
that
by
express
words
,
See
16
Elizab.
Dyer
330.
Clatche's
Case
:
and
see
16
Eliz.
Dyer
333.
Chapman's
Case
.
But
in
our
Case
here
,
there
are
not
any
sufficient
words
to
warrant
any
implication
;
for
neither
in
truth
nor
in
reputation
was
it
taken
to
be
a
Manor
:
22
H.
6.
2.
Green
Acre
might
pass
by
the
name
of
a
Manor
,
although
it
were
but
one
Acre
of
Land
,
because
known
by
the
name
of
a
Manor
.
See
accordingly
22
H.
6.
39.
And
see
,
where
,
before
the
Statute
of
Vses
,
a
man
had
Recoverors
to
his
use
,
and
he
wills
by
his
Will
,
That
his
Trustees
should
sell
his
Lands
,
they
may
sell
.
And
he
said
,
That
if
a
man
seised
of
a
Manor
parcell
in
Demesne
,
and
parcell
in
service
,
and
he
grants
the
Demesnes
to
one
and
his
Heirs
,
and
afterwards
deviseth
his
Manor
,
peradventure
the
services
shall
pass
;
but
this
Rent
hath
no
resemblance
to
a
Manor
.
Gawdy
,
This
Rent
shall
pass
by
the
name
aforesaid
.
Favourable
construction
is
to
be
always
given
to
Wills
,
according
to
the
intent
of
the
Devisor
,
and
no
part
of
a
Will
shall
be
holden
void
,
if
by
any
means
it
may
take
effect
;
then
here
it
appeareth
,
that
his
meaning
was
,
that
upon
these
words
every
thing
should
pass
to
the
Devisee
concerning
the
said
Manor
of
Fremmington
;
for
otherwise
,
the
words
of
the
Manor
of
Fremmington
should
be
void
and
frivolous
,
which
shall
not
be
in
a
Will
,
if
any
reasonable
construction
can
be
;
for
it
is
found
expresly
by
the
Iury
,
That
neither
at
the
time
of
the
Will
made
,
nor
at
the
time
of
the
death
of
the
Devisor
,
the
said
Devisor
had
any
thing
in
the
said
Manor
of
Fremmington
,
but
onely
the
said
Rent
of
one
hundred
and
thirty
pounds
.
And
it
may
well
be
taken
that
the
Devisor
being
ignorant
what
thing
a
Manor
is
,
though
that
the
Rent
was
a
Manor
,
because
that
he
had
Rents
and
services
out
of
the
Manor
.
For
in
construction
of
Wills
,
the
words
shall
serve
the
intent
of
the
party
;
and
therefore
if
a
man
deviseth
,
That
his
Lands
shall
be
sold
for
the
payment
of
his
debts
,
his
Executors
shall
sell
them
,
for
the
intent
of
the
Testator
naming
the
Vendors
,
is
sufficient
:
And
see
Plowden
,
20
Eliz.
5.
24.
L.
after
the
Statute
of
27
H.
8.
deviseth
that
his
Executors
shall
be
seised
to
the
use
of
A.
and
his
Heirs
in
Fee
,
whereas
then
there
was
no
Feoffees
to
his
use
;
the
same
was
holden
a
good
Devise
of
the
Lands
of
A.
and
the
Iudges
conceived
,
that
the
Devisor
was
ignorant
of
the
operation
of
the
Statute
in
such
case
,
and
therefore
his
ignorance
was
supplied
:
See
Br.
Devises
,
44.
29
H.
8.
A.
had
Feoffees
to
his
use
,
and
afterwards
,
after
the
Statute
of
27
H.
8.
willed
that
his
Feoffees
should
make
an
Estate
to
B.
and
his
Heirs
,
it
was
holden
by
Baldwin
,
Shelley
and
Mountague
,
Iustices
,
that
it
was
a
good
Devise
:
See
26
H.
6.
Feoff
.
12.
A
Carve
of
Lands
may
pass
by
the
name
of
a
Manor
,
Ergo
,
à
multo
fortiori
,
Rent
,
for
Rents
and
Services
have
more
nearness
,
and
do
more
resemble
a
Manor
than
a
Carve
of
Lands
;
and
it
cannot
be
intended
,
that
the
meaning
of
the
Testator
was
to
grant
the
Manor
it self
,
in
which
she
had
nothing
,
especially
by
her
Will
;
for
covin
,
collusion
,
or
indirect
dealing
,
shall
not
be
presumed
in
a
Will
:
Also
the
Marchioness
,
for
four
years
together
before
her
death
,
had
the
Rent
and
Services
of
the
said
Manor
,
and
she
well
knew
,
that
she
had
not
any
other
thing
in
the
said
Manor
,
but
the
said
Rent
and
Services
;
and
therefore
it
shall
be
intended
,
that
that
was
her
Manor
of
Fremmington
,
A.
seised
of
a
Capital
Messuage
,
and
great
Demesnes
lying
to
it
,
leaseth
the
same
for
years
,
rendring
Rent
,
and
afterward
deviseth
to
another
all
his
Farm
,
lying
in
such
a
place
,
It
was
rated
in
that
case
,
that
by
that
Devise
,
the
Rent
and
the
Reversion
should
pass
:
See
the
Case
betwixt
Worselie
and
Adams
,
Plowd.
1
Eliz.
195.
by
Anthony
Brown
and
Dyer
.
Periam
,
Iustice
,
was
of
opinion
,
that
this
Rent
might
be
divided
well
enough
;
But
by
Anderson
,
It
is
but
Rent-seck
;
but
Periam
said
,
it
was
a
Rent
distrainable
of
common
Right
,
but
all
of
them
agreed
,
that
the
Rent
might
be
divided
,
but
there
should
not
be
two
Tenures
.
And
the
Lord
Montjoy
being
advised
that
this
Rent
did
not
pass
by
the
Grant
,
but
descended
to
the
Heir
,
being
the
full
part
of
the
whole
,
entred
into
all
the
residue
of
the
Lands
,
and
made
a
Lease
of
the
Manor
of
Camfield
unto
the
Plaintiff
,
upon
which
entry
,
the
Ejectione
firmae
was
brought
,
and
afterwards
the
Plaintiff
seeing
the
opinion
of
the
Court
to
be
against
him
,
and
for
the
Devisee
of
the
Rent
by
the
name
aforesaid
,
did
afterward
discontinue
his
suit
,
&c.
LVIII
.
Costard
and
Wingfield
's
Case
.
Trin.
30
Eliz.
Intrat
.
T.
28
Eliz.
Rot.
507.
In
the
Common-Pleas
.
Antiqua
Villa
,
but
he
doth
not
say
,
that
it
hath
been
so
time
out
of
mind
,
&c.
and
so
it
ought
to
be
said
,
as
the
Book
is
in
15
E.
4.
29.
a.
And
then
,
if
it
be
not
an
ancient
Town
time
out
of
mind
,
the
parties
cannot
prescribe
as
Inhabitants
of
the
said
Town
,
to
have
common
time
out
of
mind
,
&c.
And
he
said
,
That
if
such
a
prescription
as
is
said
in
this
Case
be
good
in
Law
,
viz.
That
every
one
who
erected
a
new
house
within
the
said
Town
,
should
have
common
to
his
said
new
house
,
the
same
should
be
prejudicial
to
the
ancient
Town
,
and
to
the
utter
overthrow
and
manifest
impairing
of
the
common
there
;
and
it
might
so
happen
,
that
one
who
had
but
little
Lands
in
the
said
Town
,
might
erect
twenty
new
houses
there
,
and
so
an
infinite
number
of
houses
might
be
newly
erected
there
;
and
there
should
be
common
allowed
to
every
Inhabitant
within
the
said
new
erected
houses
,
which
should
be
inconvenient
and
unreasonable
.
Anderson
,
chief
Iustice
,
He
who
erects
a
new
house
,
cannot
prescribe
in
the
common
,
for
then
a
prescription
might
begin
at
this
day
,
which
cannot
be
;
and
he
insisted
much
upon
the
general
loss
which
should
happen
to
the
ancient
Tenants
,
if
such
a
prescription
for
new
erections
should
be
good
.
Periam
,
If
it
should
be
Law
,
That
he
should
have
common
in
this
Case
,
That
all
the
benefit
which
the
Statute
gives
to
the
Lord
for
improvement
,
should
be
taken
away
by
such
new
edifications
and
erection
of
new
houses
,
which
were
not
reasonable
;
And
such
was
the
opinion
of
the
other
Iustices
,
and
therefore
they
all
agreed
,
that
in
the
principal
Case
,
the
Plaintiff
should
not
have
common
to
this
new
erected
house
;
but
the
entry
of
the
Iudgment
was
respited
untill
the
Court
had
seen
the
Record
,
and
after
they
had
seen
and
considered
upon
the
Record
,
Anderson
and
Periam
were
of
opinion
as
before
:
But
Windham
did
not
encline
to
the
contrary
;
but
they
all
agreed
,
That
he
who
set
up
again
a
new
Chimney
where
an
old
one
was
before
,
should
have
Estovers
to
the
said
new
Chimney
:
and
so
if
he
build
a
new
house
upon
the
foundation
of
an
old
house
,
That
he
should
have
common
to
his
said
house
new
erected
:
So
if
a
house
falleth
down
,
and
the
Tenant
or
Inhabitant
sets
up
a
new
house
in
the
same
place
:
Also
if
a
man
hath
a
Mill
,
and
a
Water-course
to
it
time
out
of
mind
,
which
he
hath
used
time
out
of
mind
to
cleanse
,
if
the
Mill
falleth
,
and
he
erecteth
a
new
Mill
there
,
he
shall
have
the
Watercourse
,
and
liberty
to
cleanse
it
,
as
it
had
before
,
and
afterwards
the
same
Term
,
Iudgment
was
given
for
the
Defendant
,
to
which
Windham
,
Iustice
,
agreed
.
LIX
.
Rous
and
Artois
Case
.
Hill.
29
Eliz.
In
the
King's-Bench
.
THE
Case
was
large
,
but
the
points
in
this
Case
were
but
two
:
per
auter
vye
,
after
the
death
of
Cestuy
que
vye
holdeth
over
.
If
he
be
a
Disseisor
or
not
:
The
second
point
was
,
If
Tenant
at
will
,
or
at
sufferance
,
be
such
a
Tenant
of
the
Manor
as
he
may
grant
Copyhold
Estates
to
Copyholders
:
For
the
first
point
;
It
was
agreed
by
Godfrey
,
and
he
held
,
that
the
principal
Case
was
,
That
if
Tenant
pur
auter
vye
holdeth
over
the
life
of
Cestuy
que
vye
,
that
he
thereby
gaineth
the
Fee
;
But
he
granted
the
Cases
,
That
where
a
man
holdeth
at
the
will
of
another
,
that
after
the
Estate
determined
,
if
he
holdeth
over
,
he
hath
not
thereby
gained
fee
,
for
he
is
Tenant
at
sufferance
;
and
as
Littleton
saith
in
his
Chapter
of
Releases
,
108.
Tenant
at
sufferance
,
is
where
a
man
of
his
own
head
occupieth
the
Lands
and
Tenements
at
the
will
of
him
who
hath
the
Freehold
;
and
such
an
occupier
claims
nothing
but
at
will
;
But
he
said
,
That
in
the
principal
Case
,
he
otherwise
claimed
than
at
the
will
of
the
Lessor
;
for
that
it
appeareth
,
that
he
hath
granted
Copy
:
and
he
said
,
that
this
difference
doth
give
answer
to
the
Case
which
is
,
t.
H.
8.
br.
t.
per
Copy
18.
where
it
is
said
for
Law
,
That
none
is
Tenant
at
sufferance
,
but
he
who
first
enters
by
authority
of
Law
:
As
if
a
man
makes
a
Lease
for
years
,
or
for
the
life
of
another
,
and
he
holdeth
the
Lands
after
his
term
expired
,
or
after
the
death
of
Cestuy
que
vye
;
If
he
claim
nothing
but
at
the
will
of
him
who
hath
the
Freehold
;
he
is
a
Tenant
at
sufferance
.
But
if
he
holdeth
in
the
Lands
against
the
will
of
his
Lessor
,
then
he
is
a
Disseisor
;
and
so
if
he
do
act
after
such
continuance
of
possession
,
contrary
to
the
will
of
his
Lessor
,
he
is
a
Disseisor
,
10
E.
4.
If
an
Infant
maketh
a
Lease
at
will
,
and
the
Lessor
dieth
,
and
the
Lessee
continueth
in
possession
,
and
claims
Fee
,
the
Heir
shall
have
Mortdancester
,
18
E.
4.
If
Cestuy
que
vye
dieth
,
and
the
Tenant
hold
in
,
and
was
impleaded
,
The
Lessor
shall
not
be
received
,
and
he
conceived
the
reason
of
the
Case
to
be
,
because
that
the
reversion
was
not
in
him
;
but
that
the
Fee
was
gained
and
rested
in
the
other
,
22
E.
4.
39.
g.
by
Hussey
.
If
a
Termor
holdeth
over
his
term
,
there
an
Estate
in
Fee
is
confessed
to
be
in
him
,
because
he
holdeth
the
possession
of
the
Lands
by
wrong
;
but
there
is
a
Quaere
made
of
it
,
if
he
be
a
Disseisor
or
not
,
but
I
conceive
that
he
is
,
for
Trespass
doth
not
lie
against
him
,
before
the
Lessor
hath
made
his
entry
;
and
therefore
,
if
the
Lessee
doth
continue
in
the
possession
of
the
Lands
by
reason
of
the
first
entry
;
that
is
the
reason
,
as
I
conceive
,
that
the
Writ
of
Entre
ad
terminum
qui
praeteriit
,
lieth
against
such
a
Termor
,
who
holds
so
over
his
Term
;
and
that
Writ
is
a
Praecipe
quod
reddat
,
which
doth
not
lie
but
against
a
Tenant
of
the
Freehold
.
And
such
is
the
opinion
of
Tilney
,
7
H.
4.
43.
That
if
the
Guardian
holds
in
the
Lands
at
the
full
age
of
the
Heir
;
or
if
the
Tenant
for
years
after
the
term
expired
,
holdeth
over
the
Lands
,
their
Estates
shall
be
adjudged
a
Fee.
And
in
our
Case
here
,
he
doth
not
claim
to
hold
in
at
the
will
of
the
Lessor
;
for
he
hath
done
an
act
contrary
to
the
will
of
the
Lessor
;
For
he
being
Lord
of
the
Manor
,
in
manner
as
aforesaid
,
Mariae
Br.
Tenant
by
Copy
,
27.
That
the
Lessee
of
a
Manor
,
in
which
there
are
Copyholds
,
after
the
death
of
the
Copyholder
,
may
admit
the
Heir
of
the
Copyholder
to
the
Land
;
and
so
he
may
doe
,
who
hath
but
an
Estate
in
the
Manor
durante
bene
placito
:
and
yet
it
seems
by
the
Book
,
that
such
a
Tenant
of
the
Manor
,
cannot
reserve
and
lessen
Rent
,
but
he
ought
to
reserve
the
ancient
Rent
,
or
more
.
Coke
contrary
;
And
first
he
said
,
that
he
who
holdeth
over
the
life
of
the
Cestuy
que
use
,
doth
not
gain
any
Fee
where
he
comes
in
first
by
right
,
for
that
he
is
but
Tenant
at
sufferance
,
35
H.
8.
Dyer
57.
in
the
Case
of
the
Lord
Zouch
,
Cestuy
que
use
for
life
,
the
remainder
over
in
tail
makes
Lease
for
life
of
the
Lessee
,
he
dieth
,
the
Lessee
continueth
his
Estate
,
and
the
opinion
of
the
Iustices
of
the
Common-Pleas
,
and
of
others
was
,
that
he
is
but
a
Tenant
at
sufferance
,
for
the
Lease
was
not
any
discontinuance
of
the
Remainder
,
because
he
had
authority
by
the
Statute
of
Rich.
3.
to
make
a
Lease
,
and
that
is
intended
of
such
Estate
which
he
might
lawfully
doe
;
and
this
is
our
Case
,
and
so
it
is
adjudged
already
.
As
to
the
second
point
,
I
grant
,
that
Tenant
for
years
,
or
at
will
,
or
at
sufferance
is
Dominus
pro
tempore
,
but
there
is
a
difference
as
unto
granting
of
Copies
by
them
:
For
it
was
adjudged
25
Eliz.
that
they
might
grant
Copies
which
are
to
be
granted
upon
surrenders
,
made
by
Copyholders
:
As
if
a
Copyholder
doth
surrender
to
the
use
of
another
,
they
may
accept
of
such
a
surrender
,
and
grant
the
Lands
by
Copy
to
him
to
whose
use
the
surrender
is
made
;
But
if
a
Copyholder
dieth
,
they
cannot
grant
voluntary
Copies
de
novo
.
And
he
said
that
Popham
,
who
argued
the
said
Case
in
25
Eliz.
That
this
difference
was
agreed
,
and
so
adjudged
in
one
Sleer's
Case
.
And
so
17
El.
in
the
Case
of
one
Stowley
,
where
the
Case
was
,
That
a
Manor
was
devised
to
one
,
and
the
Devisee
entred
and
granted
Copies
,
and
afterwards
it
was
found
that
the
Devise
was
void
,
and
it
was
there
holden
that
Copies
made
by
such
Devisee
upon
surrenders
,
were
good
,
and
were
not
to
be
avoided
;
but
contrary
of
Copies
made
after
the
death
of
Tenants
upon
voluntary
grants
.
I
grant
,
that
when
Cestuy
que
use
dieth
,
the
Estate
for
life
is
utterly
void
and
gone
;
and
therefore
he
is
in
by
wrong
,
but
he
cannot
thereby
gain
so
great
an
Estate
as
a
Disseisor
,
because
he
came
in
at
the
first
by
right
.
Atkinson
put
a
difference
betwixt
Tenant
at
will
,
and
Tenant
at
sufferance
;
for
Tenant
at
will
shall
have
aid
,
but
contrary
,
of
Tenant
at
sufferance
,
as
the
Book
is
,
11
H.
4.
a
Release
to
Tenant
at
will
is
good
,
contrary
to
Tenant
at
sufferance
;
when
after
the
death
of
Cestuy
que
use
he
holdeth
over
,
he
hath
some
interest
,
scil.
to
this
purpose
,
that
he
shall
not
be
a
wrong
doer
,
for
he
is
neither
Abator
nor
Desseisor
,
therefore
not
a
wrong
doer
,
and
then
if
he
be
in
by
a
right
,
or
rightfully
,
he
is
then
Dominus
pro
tempore
,
and
then
the
grants
made
by
him
by
Copy
are
good
.
7
H.
7.
3.
Tenant
at
sufferance
,
was
to
justifie
the
distraining
the
cattel
of
another
damage
feasant
.
Coke
,
True
,
it
is
,
the
beasts
of
a
stranger
,
but
not
of
the
Tenant
of
the
freehold
:
Gawdy
Iustice
,
The
Lessor
cannot
have
Trespass
against
him
before
entry
;
not
because
he
is
not
a
wrong
doer
,
but
because
it
is
his
folly
that
he
doth
not
enter
:
All
the
Iustices
did
hold
with
the
Plaintiff
against
the
Copy
granted
:
and
that
he
which
granted
it
was
but
Tenant
at
sufferance
,
and
not
a
Desseisor
,
nor
had
gained
the
Fee
,
because
he
came
in
first
by
right
:
And
therefore
they
awarded
,
that
if
the
Defendant
did
not
shew
better
cause
,
that
Iudgment
should
be
entred
for
the
Plaintiff
.
LX.
Trin.
29
Eliz.
In
the
Exchequer
.
IN
the
Exchequer
Chamber
,
there
was
this
Case
:
An
Indenture
Tripartite
,
was
betwixt
three
,
A.
was
one
of
them
,
and
he
covenanted
with
them
,
Et
quolibet
eorum
.
And
the
Covenant
was
,
that
the
Land
which
he
had
aliened
to
one
of
them
,
was
discharged
of
all
incumbrances
;
and
he
to
whom
the
limitation
of
the
Lands
was
,
but
a
Writ
of
Covenant
sole
.
Buckley
argued
,
that
it
was
well
brought
,
and
cited
the
Case
of
6
E.
2.
Br.
Covenant
49.
where
one
covenanted
with
twenty
,
to
repair
the
Sea-banks
,
and
he
did
not
repair
against
two
of
them
,
and
they
two
brought
a
Writ
of
Covenant
solement
,
and
the
Writ
holden
maintainable
,
because
they
onely
were
damnified
,
and
so
he
said
in
this
Case
:
But
notwithstanding
this
,
it
was
afterwards
,
viz.
M.
30
Eliz.
adjudged
by
the
whole
Court
,
that
the
Covenant
did
not
lie
by
one
of
them
onely
,
but
ought
to
be
brought
by
them
both
.
LXI
.
Carter
's
Case
.
Mich.
33
Eliz.
In
the
Common
Pleas.
A
Being
seised
of
the
Manor
of
Staple
in
Odiham
,
LXII
.
Cobb
and
Prior
's
Case
.
Mich.
33
Eliz.
In
the
Common
Pleas.
THE
Case
betwixt
Cobb
and
Prior
was
this
;
A
man
seised
of
Lands
in
Fee
,
devised
the
same
to
his
Wife
during
the
minority
of
his
Son
,
upon
condition
,
that
she
should
not
do
Waste
during
the
minority
of
the
said
Son
,
and
died
;
The
Wife
married
a
Husband
,
and
died
;
the
Husband
committed
Waste
:
It
was
holden
by
all
the
Iustices
,
That
the
same
was
not
any
breach
of
the
Condition
;
and
Iudgment
was
entred
accordingly
.
LXIII
.
Taylor
and
Brounsal
's
Case
.
Trin.
33
Eliz.
in
the
Common
Pleas.
IN
an
Information
upon
the
Statute
of
32
H.
8.
by
Taylor
against
Brounsal
,
the
Case
was
,
That
John
Brounsal
was
seised
,
and
gave
the
Lands
to
T.
B.
and
the
Heirs
of
his
body
,
&c.
the
Remainder
to
R.
B.
and
the
Heirs
male
of
his
body
,
the
Remainder
to
the
right
Heirs
of
J.
B.
T.
B.
died
,
having
issue
a
Daughter
;
and
R.
B.
made
a
Lease
for
years
of
the
Lands
:
And
it
was
holden
by
the
Court
to
be
no
maintenance
within
the
said
Statute
,
for
he
in
the
Remainder
might
make
a
Lease
for
years
:
Then
it
was
given
in
Evidence
,
That
a
common
Recovery
was
had
against
the
Husband
and
Wife
with
a
single
Voucher
,
and
so
.
the
Remainder
limited
to
R.
B.
destroyed
,
and
that
after
that
Recovery
R.
B.
made
the
Lease
:
To
which
it
was
said
by
the
other
side
,
That
the
said
Recovery
was
never
executed
,
and
no
discontinuance
of
the
Remainder
,
and
then
the
Lease
made
by
R.
B.
was
good
:
and
the
truth
of
the
Case
was
That
such
a
Recovery
was
had
,
and
an
Habere
facias
seisinam
awarded
and
retorned
,
but
no
Execution
was
in
truth
had
upon
it
,
nor
the
Recoveror
never
entred
:
And
if
R.
B.
who
is
a
stranger
to
the
said
Recovery
shall
be
admitted
against
the
Recovery
to
say
,
That
no
Execution
was
thereof
,
was
the
Question
?
and
therefore
all
the
matter
was
found
by
special
Verdict
.
It
was
also
given
in
Evidence
,
That
the
Land
was
given
to
T.
B.
and
the
Heirs
males
of
his
body
;
and
then
when
the
Daughter
,
which
is
not
in
truth
inheritable
,
entereth
,
if
that
Entry
,
she
being
privy
in
bloud
to
R.
hee
Vncle
,
shall
be
a
Disseisin
,
or
Abatement
,
&c.
as
in
the
Case
of
Littleton
,
where
the
youngest
Brother
entreth
after
the
death
of
the
Father
;
for
in
such
case
,
the
youngest
Son
doth
not
get
any
Freehold
,
but
is
but
a
Tenant
at
sufferance
.
Anderson
,
When
the
Daughter
enters
,
and
takes
a
Husband
,
who
leaseth
for
years
,
and
the
Lessee
entreth
,
the
same
is
a
Disseisin
.
Periam
doubted
it
,
for
he
said
,
When
the
younger
Son
entred
,
the
Freehold
was
in
him
,
which
Anderson
doubted
.
LXIV
.
Maunsel
and
Vernon
's
Case
.
Trin.
33
Eliz.
In
the
Common
Pleas.
IQ
Debt
by
Maunsel
against
Hen.
Vernon
Esquire
,
who
came
in
by
Capias
,
i.
compulsary
Process
,
and
pleaded
,
That
he
was
Hen.
Vernon
Lord
Powis
,
and
so
a
Baron
of
the
Parliament
,
and
demanded
Iudgment
of
the
Writ
.
(
Note
,
some
said
,
That
if
the
Defendant
had
come
in
by
Issue
joyned
,
or
gratis
,
and
not
by
compulsary
Process
,
he
could
not
have
pleaded
this
Plea
,
or
any
other
Misnosmer
.
)
The
Plaintiff
replyed
,
That
the
Defendant
is
an
Esquire
,
absque
hoc
,
that
he
is
Lord
Powis
,
and
a
Baron
of
the
Parliament
;
and
as
the
Iury
was
ready
at
the
Bar
to
try
this
Issue
,
this
matter
was
objected
.
And
Anderson
conceived
,
That
this
Plea
to
the
Writ
was
not
good
,
for
the
name
of
Lord
is
not
any
degree
,
as
Knight
,
Duke
,
Earl
;
nor
is
it
parcel
of
the
name
,
nor
parcel
of
addition
;
and
therefore
it
is
no
Plea
in
abatement
of
a
Writ
:
and
all
the
Writs
of
Parliament
directed
to
Barons
to
summon
them
to
Parliament
,
shall
have
their
Names
,
Sirnames
,
and
Additions
:
as
if
they
be
Knights
,
Knights
,
and
if
Esquires
,
they
shall
be
named
Esquires
;
and
if
a
Bond
be
made
by
J.S.
Lord
R.
the
Writ
shall
not
be
so
,
for
the
King
by
his
Writ
doth
not
name
any
one
Lord
;
but
otherwise
it
is
of
Duke
,
Earl
,
&c.
for
these
are
Offices
of
Dignity
,
and
parcel
of
their
Names
,
and
not
onely
Additions
.
Windham
and
Periam
contrary
;
and
they
conceived
that
there
was
no
difference
in
this
point
betwixt
a
Lord
and
an
Earl
;
for
which
cause
the
Court
being
in
doubt
,
although
that
the
Exception
was
entered
of
Record
,
would
have
saved
the
same
to
the
party
,
and
taken
the
Iury
de
bene
esse
:
but
afterwards
,
because
it
appeared
it
was
joyned
in
the
prejudice
of
Sir
Edward
Herbert
,
who
was
a
stranger
thereunto
,
and
whose
Title
was
concerned
therein
,
and
there
was
none
on
his
part
to
inform
the
Iury
;
the
Iury
was
at
last
dismissed
by
the
Court.
LXV
.
Penruddock
and
Newman
's
Case
.
Trin.
28
Eliz.
In
the
King's-Bench
.
IN
an
Ejectione
Firmae
by
Penruddock
against
Newman
,
(
scil.
)
That
W.
Lord
Mounteagle
seised
of
the
manner
of
D.
whereof
,
&c.
became
bound
in
a
Statute
in
such
a
sum
of
Money
to
A.
who
died
;
the
Executors
of
A.
sued
Execution
against
the
said
Lord
,
(
scil.
)
Extendi
facias
,
a
Liberate
issued
,
upon
which
the
said
Manor
was
delivered
to
the
Executors
,
but
the
said
Liberate
was
not
retorned
:
and
it
was
farther
found
,
That
the
Executors
being
so
possessed
of
the
Manor
,
the
Lord
commanded
a
Court
Baron
to
be
holden
there
,
which
was
done
by
sufferance
and
permission
of
the
Executors
,
and
in
their
presence
:
at
which
time
the
Executors
said
to
the
Lord
the
Conusor
.
We
have
nothing
to
do
with
this
Manor
.
And
upon
this
Verdict
several
matters
were
moved
.
1.
If
the
Execution
were
well
done
,
because
the
Writ
of
Liberate
was
not
retorned
?
and
as
to
that
,
divers
Books
were
cited
,
21
H.
6.
8.
18
E.
3.
25.
And
there
is
a
difference
betwixt
a
Liberate
,
and
a
Capias
ad
satisfaciend
.
and
Fieri
facias
,
these
Writs
are
Conditional
,
Ita
quod
habeas
corpus
,
&c.
Ita
quod
habeas
denarios
hic
in
Curia
,
32
H.
8.
ca.
28.
16
H.
7.
14.
but
contrary
in
a
Writ
of
Habere
facias
seisinam
,
or
in
a
Liberate
,
for
in
these
Writs
there
are
not
such
words
;
and
therefore
although
they
be
not
retorned
,
Execution
done
by
virtue
of
them
is
good
enough
:
See
11
H.
4.
212.
If
the
Sheriff
by
force
of
an
Elegit
doth
deliver
the
moyety
of
the
Land
,
and
doth
not
retorn
the
Writ
;
if
the
Plaintiff
will
plead
a
new
Action
of
Debt
,
the
Defendant
may
plead
in
Bar
the
Execution
aforesaid
,
although
the
Writ
be
not
retorned
,
nor
doth
remain
upon
Record
:
and
it
is
not
like
unto
the
Case
of
Partition
made
by
the
Sheriff
,
for
that
must
be
retorned
,
because
that
after
the
Retorn
of
it
,
a
secondary
Iudgment
is
to
be
given
,
(
scil.
)
Quod
Partitio
praedict.
firma
&
stabilis
remaneat
in
perpetuum
,
firma
&
stabilis
in
perpetuum
tenetur
,
says
the
Book
of
Entries
114.
And
Egerton
,
the
Solicitor-General
,
cited
a
Case
to
be
lately
adjudged
betwixt
the
Earl
of
Leicester
and
the
Lady
Tanfield
,
The
second
point
was
,
Admitting
that
it
be
a
good
Execution
,
If
the
Executors
being
in
possession
of
the
Manor
,
and
suffering
the
Conusor
to
hold
a
Court
there
,
and
saying
the
words
aforesaid
in
the
presence
of
the
Lord
who
is
Conusor
;
if
the
same
do
amount
unto
a
Surrender
,
or
not
?
And
it
was
the
Opinion
of
Wray
chief
Iustice
;
That
it
was
not
a
Surrender
,
for
that
here
the
words
are
not
addressed
to
the
Conusor
,
who
was
capable
of
a
Surrender
,
but
to
other
persons
:
And
it
is
not
like
unto
the
Case
of
40
E.
3.
23
,
24.
Chamberlains
Assise
,
where
Tenant
for
life
saith
to
him
in
the
Reversion
,
That
his
Will
is
,
that
he
enter
upon
the
Land
;
the
same
is
a
good
Surrender
,
because
here
is
a
person
certain
who
may
take
the
Land
:
But
in
our
case
,
it
is
but
a
general
speech
,
and
therefore
it
shall
not
be
a
Surrender
.
LXVI
.
Baskervile
and
Bishop
of
Hereford
's
Case
.
Mich.
29
Eliz.
In
the
Common
Pleas.
IN
a
Quare
Impedit
brought
by
Walter
Baskervile
against
the
Bishop
of
Hereford
,
and
others
;
the
Plaintiff
counted
,
That
Sir
Nicholas
Arnold
Knight
,
was
seised
of
the
Advowson
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
died
,
his
Heir
being
within
the
age
of
twenty
three
years
,
that
then
the
Grantees
and
their
Heirs
should
be
seised
to
themselves
and
their
Heirs
,
until
the
said
Richard
had
accomplished
the
said
age
.
Sir
Nicholas
died
,
Richard
being
but
of
the
age
of
fourteen
years
;
by
force
whereof
the
Grantees
were
possessed
of
the
said
Advowson
,
&c.
and
afterwards
the
Church
became
void
,
and
so
it
appertained
to
them
to
present
.
Exception
was
taken
to
the
Count
by
Serjeant
Gawdy
,
because
the
Plaintiff
had
not
averred
the
life
of
Richard
,
upon
whose
life
the
interest
of
the
Plaintiff
did
depend
:
and
he
compared
the
same
to
the
Case
of
the
Parson
,
which
had
been
adjudged
,
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
the
life
of
the
Parson
was
not
averred
;
and
for
that
cause
the
Iudgment
was
stayed
.
Anderson
,
Vpon
the
dying
of
Sir
Nicholas
,
Richard
being
but
of
the
age
of
fourteen
years
,
an
absolute
Interest
for
nine
years
vested
in
the
Grantees
,
not
determinable
upon
the
death
of
Richard
;
or
rather
,
they
are
seised
of
a
Fee
determinable
upon
the
coming
of
Richard
to
the
age
of
23
years
.
Rhodes
and
Windham
Iustices
,
contrary
;
and
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
,
it
was
argued
by
Puckering
Serjeant
,
That
the
Count
was
good
enough
;
for
although
the
life
of
Richard
be
not
expresly
added
,
yet
such
an
averment
is
strongly
implied
,
and
so
supplyed
:
For
the
Count
is
Quod
dictus
Nich.
obiit
,
dicto
Richardo
being
of
the
age
of
fourteen
years
,
&
non
amplius
,
by
force
of
which
the
Plaintiff
was
possessed
of
the
said
Advowson
,
quo
quidem
Nich.
sic
possessionato
existente
,
the
Church
voided
:
and
possessed
he
could
not
be
,
if
not
that
the
said
Richard
had
then
been
alive
;
and
that
is
as
strong
as
an
Averment
:
See
10
E.
4.
18.
In
Trespass
for
breaking
of
his
Close
,
the
Defendant
pleaded
,
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
whom
B.
re-entred
,
and
leased
to
the
Plaintiff
at
will
,
by
force
whereof
he
was
possessed
untill
the
Defendant
did
the
Trespass
;
and
that
was
allowed
to
be
a
good
Replication
without
averring
the
life
of
B.
who
leased
to
the
Plaintiff
at
will
,
for
that
is
supplied
by
the
words
,
scil.
virtute
cujus
,
the
Plaintiff
was
possessed
untill
the
Defendant
did
the
Trespass
:
See
also
,
10
H.
7.
12.
In
an
Assise
of
Common
,
The
Defendant
made
Title
,
that
he
was
seised
of
a
House
and
a
Carve
of
Land
,
to
which
,
he
and
all
those
whose
Estate
he
hath
,
&c.
had
common
appendant
,
and
doth
not
say
,
That
he
is
now
seised
of
the
House
;
but
the
exception
was
disallowed
;
for
seisin
shall
be
intended
to
continue
untill
the
contrary
be
shewed
.
LXVII
.
Morgan
and
Chandler
's
Case
.
Trin.
29
Eliz.
In
the
King's-Bench
.
IN
Debt
for
Arrerages
of
Rent
,
by
Morgan
against
Chandler
,
It
was
found
by
special
Verdict
,
That
the
Land
out
of
which
,
&c.
was
assured
by
an
Act
of
Parliament
to
the
Marchioness
of
Northampton
for
the
term
of
her
life
,
the
remainder
to
the
Lady
Bourcher
,
her
daughter
,
and
the
heirs
males
of
her
body
,
the
remainder
to
King
H.
8.
in
Fee
;
And
it
was
ordained
by
the
same
Act
,
Quod
omnes
concessiones
&
dimissiones
,
Anglice
,
Grants
and
Leases
,
factae
vel
in
posterum
fiendae
,
by
the
said
Marchioness
,
of
the
Lands
aforesaid
,
per
script
.
Indentat
.
dict.
Marchio
.
bonae
&
validae
,
in
Lege
erunt
,
durante
termino
,
&c.
The
Marchioness
made
a
Lease
for
21
years
to
Kenelm
Throgmorton
rendring
10
l.
Rent
,
who
assigned
the
same
to
the
Defendant
.
The
Lady
Bourcher
died
without
Issue
,
the
Marchioness
died
;
and
if
the
Lease
should
now
bind
the
Queen
,
was
the
Question
:
And
it
was
moved
by
Clark
of
Lincoln's-Inn
,
That
it
should
,
for
the
King
was
party
to
the
Act
of
Parliament
;
and
those
Estates
for
life
in
Tail
,
and
in
Fee
,
are
all
as
one
Estate
,
and
derived
out
of
one
Estate
,
and
the
Estate
of
the
King
is
bound
with
the
Lease
;
and
it
was
moved
by
Broughton
,
That
the
Lease
should
not
bind
the
Queen
,
and
so
by
consequence
not
her
Patentee
;
and
he
cited
a
Case
,
adjudged
upon
a
like
Act
,
scil.
the
Statute
of
35
H.
8.
by
which
it
was
enacted
,
That
the
Lady
Katharine
,
Wife
of
the
said
King
,
should
be
as
a
Feme
sole
,
and
that
she
might
make
Leases
,
&c.
In
that
case
,
the
Leases
should
not
bind
the
King
or
his
successours
;
for
the
said
Act
did
not
extend
to
make
the
Leases
good
,
but
onely
against
Coverture
.
And
it
was
observed
by
Clench
,
Iustice
,
that
in
the
Act
of
Parliament
now
in
question
,
It
is
expresly
provided
,
that
the
Rent
reserved
by
the
Marchioness
,
should
go
to
the
lady
Bourcher
,
but
no
provision
made
,
that
it
should
go
to
the
King
,
and
therefore
it
is
not
reason
that
the
King
should
be
bounden
:
But
another
matter
arising
upon
the
pleading
,
the
point
did
not
fall
in
judgment
.
LXVIII
.
Backhouse
and
Spencer
's
Case
.
Trin.
29
Eliz.
In
the
King's-Bench
.
SAmuel
Backhouse
brought
a
Writ
of
Annuity
against
Alderman
Spencer
of
London
,
Quod
querens
recuperet
annuitatem
praedictam
,
and
now
there
is
not
any
Annuity
in
being
,
See
34
H.
6.
20.
LXIX
.
Mich.
29
Eliz.
In
the
Common-Pleas
.
IN
a
Writ
of
Partitione
facienda
,
The
Defendant
prayeth
Aid
;
and
the
Plaintiff
counterpleads
the
Aid
,
upon
which
counterplea
,
they
are
at
issue
,
and
it
is
found
for
the
Plaintiff
:
It
was
adjudged
,
that
same
is
peremptory
to
the
Defendant
;
and
the
Iudgment
shall
be
,
Non
quod
respondeat
,
sed
quod
Partitio
fiat
,
&c.
LXX
.
Rolston
and
Chamber
's
Case
.
1
Leon.
pa.
282.
Mich.
29
Eliz.
In
the
Common-Pleas
.
ROlston
brought
an
Action
of
Trespass
upon
the
Statute
of
8
H.
6.
of
forcible
entry
,
against
Chambers
,
and
upon
issue
joined
,
it
was
found
for
the
Plaintiff
,
and
damages
assessed
by
the
Iury
,
and
costs
of
suit
also
,
and
costs
also
de
incremento
adjudged
,
and
all
were
trebled
in
the
Iudgment
,
with
this
perclose
Quae
quidem
damna
in
toto
se
attingunt
ad
,
&c.
and
all
by
the
name
of
damages
;
and
it
was
objected
against
this
Iudgment
,
That
where
damages
are
trebled
,
no
costs
shall
be
given
,
as
in
Wast
,
&c.
But
afterwards
it
was
clearly
agreed
,
that
not
onely
the
costs
assessed
by
the
Iury
,
but
that
which
was
also
de
incremento
adjudged
,
should
be
trebled
,
and
so
were
all
the
Presidents
,
as
it
was
affirmed
by
all
the
Prothonotaries
;
and
so
are
many
Books
,
scil.
19
H.
6.
32.
14
H.
6.
13.
22
H.
6.
57.
12
E.
4.
1.
Book
of
Entries
,
334.
and
Iudgment
was
given
accordingly
:
It
was
also
agreed
,
that
the
party
so
convicted
of
the
force
at
the
suit
of
the
party
should
be
fined
,
notwithstanding
that
he
was
fined
before
upon
an
Indictment
for
the
same
.
LXXI
.
Wren
and
Bulman
's
Case
.
Mich.
29
Eliz.
In
the
Common-Pleas
.
Phil.
&
Ma.
for
unlawfull
impounding
of
Distresses
against
Bulman
,
and
was
Nonsuit
,
and
it
was
moved
by
Shuttleworth
,
Serjeant
,
If
the
Defendant
should
have
costs
upon
the
Statute
of
23
H.
8.
and
it
was
adjudged
,
that
he
should
not
;
and
that
appears
clearly
by
the
words
of
the
Statute
,
&c.
For
this
Action
is
not
conceived
upon
any
such
matter
which
is
comprised
within
the
Statute
:
And
also
the
Statute
upon
which
this
Action
is
conceived
,
was
made
after
the
said
Statute
of
23
H.
8.
which
gives
costs
,
and
therefore
the
Statute
of
23
H.
8.
and
the
remedy
thereof
cannot
extend
to
any
Action
given
by
1
and
2
Phil.
&
Ma.
And
so
Rhodes
,
Iustice
,
said
it
was
adjudged
8
Elizabeth
.
LXXII
.
Mery
and
Lewes
's
Case
.
Mich.
29
Eliz.
In
the
Common-Pleas
.
MEry
brought
an
Action
upon
the
Case
against
W.
Lewes
,
David
Lewes
,
late
Master
of
St.
Katharine
,
juxta
London
,
and
declared
,
That
the
said
David
in
consideration
,
that
Quaedam
pars
domus
fratrum
&
sororum
Sanctae
Katharin
.
fuit
vitiosa
&
in
decasu
,
The
said
Mery
ad
requisitionem
dicti
Davidis
repararet
eandem
,
assumed
to
pay
to
the
said
Mery
all
such
moneys
that
the
said
Mery
expenderet
in
such
reparations
;
And
farther
declared
,
That
eandem
partem
Domus
praedict.
reparavit
,
&c.
and
upon
Non
assumpsit
,
it
was
found
for
the
Plaintiff
;
In
arrest
of
Iudgment
it
was
objected
,
That
the
count
was
too
general
,
Quaedam
pars
domus
:
For
the
Plaintiff
ought
to
have
shewed
specially
,
what
part
of
the
house
in
certain
,
as
Hall
,
Chamber
,
or
other
Rooms
,
but
the
same
was
not
allowed
:
Another
objection
was
,
because
it
is
set
forth
in
the
consideration
,
that
the
Plaintiff
,
Ad
requisitionem
dict.
Davidis
repararet
;
and
the
Plaintiff
declared
,
Quod
reparavit
,
generally
,
without
saying
,
ad
requisitionem
dict.
Davidis
reparavit
,
and
that
is
not
the
reparation
intended
in
the
Declaration
,
scil.
Reparatio
ad
requisitionem
,
but
a
reparation
of
his
own
head
,
and
at
his
pleasure
,
and
for
that
Case
judgment
was
reversed
.
LXXIII
.
Brasier
's
Case
.
Mich.
29
Eliz.
In
the
Common-Pleas
.
NOTE
,
It
was
agreed
in
the
Case
by
all
the
Iustices
,
and
by
the
Prothonotaries
,
That
if
the
Disseisor
levy
a
Fine
,
and
the
Disseisee
in
the
preservation
of
his
right
against
the
said
Fine
,
enter
his
claim
in
the
Record
of
the
Foot
of
the
Fine
,
that
the
same
is
not
any
such
claim
as
shall
avoid
the
Statute
of
4
H.
7.
See
for
this
Case
of
the
Lord
Zouch
,
in
Plowden's
Commentaries
.
LXXIV
.
Ralph
Morris
's
Case
.
Trin.
29
Eliz.
In
the
King's-Bench
.
RAlph
Morris
and
his
Wife
,
libelled
in
the
Spiritual
Court
,
for
that
the
Defendant
called
the
Wife
of
one
of
the
Plaintiffs
,
Veneficam
,
Sortilegam
,
&
Incantatricem
Daemoniorum
;
and
now
came
the
Defendant
into
this
Court
,
and
surmised
,
that
the
matter
of
the
Libell
is
determinable
by
the
Common
Law
,
and
thereupon
prayed
a
Prohibition
,
and
it
was
holden
by
the
Court
,
That
although
the
offence
of
Witchery
be
in
some
cases
triable
by
Law
,
yet
the
same
doth
not
take
away
the
jurisdiction
of
the
Spiritual
Court
;
and
therefore
,
to
call
one
a
Witch
,
generally
an
Action
will
not
lie
at
Law
,
as
it
hath
been
adjudged
;
But
to
say
,
that
he
hath
bewitched
such
a
one
,
an
Action
will
lie
at
Law.
Wray
,
Such
Witchcraft
as
is
made
Felony
by
any
Statute
,
is
not
punishable
in
the
Ecclesiastical
Court
,
but
in
case
of
slander
of
such
Witchcraft
,
upon
such
slanderous
words
of
Witchcraft
which
is
not
Felony
,
the
Ecclesiastical
Court
shall
punish
the
same
,
and
afterwards
in
the
principal
Case
,
a
Consultation
was
awarded
.
LXXV
.
Bardens
and
Withington
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
A.
Is
bound
in
a
Statute
to
B.
and
sows
the
Land
.
B.
extends
the
Lands
,
which
are
delivered
unto
him
in
execution
;
it
was
adjudged
in
this
Case
,
that
the
Conusee
should
have
the
Corn
sowed
;
The
same
Law
in
case
of
a
Recognizance
.
LXXVI
.
Smalman
and
Lane
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
THE
Case
was
,
a
Capias
upon
an
original
Process
,
was
delivered
to
the
new
Sheriff
of
Warwick
against
Lane
,
at
the
suit
of
Smalman
.
And
the
Sheriff
informed
the
Court
,
that
before
that
the
Process
was
directed
to
him
,
That
the
said
Lane
was
taken
in
Execution
by
the
old
Sheriff
,
upon
a
judgment
given
against
him
in
the
King's-Bench
;
and
that
the
said
old
Sheriff
had
imprisoned
the
said
Lane
,
by
force
of
the
Execution
in
his
own
house
,
and
there
he
remained
,
and
prayed
the
advice
of
the
Court
,
what
retorn
he
should
make
upon
that
matter
,
because
the
said
Lane
was
never
in
his
possession
;
for
all
the
other
prisoners
which
were
in
the
Gaol
,
and
in
the
ordinary
Prisons
,
were
delivered
to
him
,
and
the
old
Sheriff
would
not
bring
Lane
to
the
place
where
the
other
Prisoners
were
delivered
.
And
it
was
the
opinion
of
all
the
Iustices
,
That
by
the
Law
,
the
old
Sheriff
ought
to
deliver
the
body
of
him
who
is
in
his
custody
by
view
,
to
the
new
Sheriff
;
and
such
Prisoners
ought
to
be
brought
unto
him
to
view
,
and
from
that
time
,
the
Law
shall
adjudge
such
Prisoners
to
be
in
the
possession
of
the
new
Sheriff
,
and
not
before
;
for
he
is
not
bound
to
go
to
them
,
not
being
in
the
ordinary
Prison
of
the
County
.
Anderson
,
The
new
Sheriff
may
retorn
,
That
the
said
Lane
is
in
Execution
in
custodia
sua
,
and
so
charge
himself
;
For
although
the
Office
of
the
old
Sheriff
be
determined
,
yet
it
is
not
an
escape
,
so
long
as
the
party
be
in
custodia
and
not
at
large
.
Periam
contrary
,
It
is
an
escape
in
the
old
Sheriff
as
soon
as
his
authority
is
determined
,
the
Prisoner
not
delivered
:
See
now
C.
3.
part
71.
Wesby's
Case
.
LXXVII
.
Megot
and
Broughton
and
Davie
's
Case
.
Mich.
29
Eliz.
In
the
King's-Bench
.
LXXVIII
.
Farrington
and
Fleetwood
's
Case
.
Trin.
29
Eliz.
In
the
Exchequer
.
THE
Case
upon
the
Statute
of
31
H.
8.
of
Monasteries
,
was
this
,
A.
&c.
29
H.
8.
made
a
Lease
of
certain
Lands
for
three
lives
,
to
begin
after
the
death
of
one
F.
if
they
so
long
live
:
and
afterwards
,
30
H.
8
,
within
a
year
before
the
dissolution
,
they
make
another
Lease
to
Fleetwood
:
If
the
first
Lease
in
the
life
of
the
said
F.
be
such
an
Estate
and
Interest
,
as
by
virtue
of
the
said
Statute
shall
make
the
second
Lease
void
?
was
the
Question
;
for
it
was
not
in
esse
,
but
a
future
Interest
.
Manwood
,
All
the
reason
that
hath
been
made
for
the
second
Lease
,
is
,
because
the
first
Lease
is
but
a
possibility
;
for
F.
by
possibility
may
survive
all
the
said
three
,
and
so
it
shall
never
take
effect
:
But
notwithstanding
,
be
it
a
possibility
or
otherwise
,
it
is
such
a
thing
which
may
be
granted
or
forfeited
,
and
that
during
the
life
of
F.
And
note
the
words
of
the
Statute
;
If
any
Abbat
,
&c.
within
one
year
next
before
the
first
day
of
this
present
Parliament
,
hath
made
,
or
hereafter
shall
make
,
any
Lease
or
Grant
for
years
,
life
or
lives
,
of
any
Manors
,
&c.
whereof
and
in
which
any
Estate
or
Interest
for
life
or
years
,
at
the
time
of
the
making
of
any
such
Lease
or
Grant
,
then
had
his
being
or
continuance
,
and
hereafter
shall
have
his
being
or
continuance
,
and
then
was
not
determined
,
&c.
shall
be
void
,
&c.
And
here
is
an
Interest
,
and
that
not
determined
at
the
time
of
the
making
of
the
Lease
to
Fleetwood
.
And
of
such
Opinion
were
all
the
Barons
,
and
divers
other
Iustices
;
and
therefore
a
Decree
was
made
against
the
Lease
,
&c.
LXXIX
.
Beaumont
's
Case
.
Trin.
29
Eliz.
In
the
Exchequer
.
NOte
,
it
was
holden
by
all
the
Barons
in
the
Exchequer
,
LXXX
.
Goddard
's
Case
.
Trin.
29
Eliz.
In
the
Exchequer
.
IT
was
moved
in
the
Case
of
Goddard
concerning
the
Manor
of
Staple
in
Hampshire
,
in
Capite
be
disseised
,
and
the
Disseisor
aliens
the
Lands
,
and
afterwards
the
Disseisee
doth
re-enter
?
Manwood
said
,
That
the
Land
shall
not
be
charged
with
a
Fine
for
alienation
without
licence
,
because
the
Title
of
the
Alienee
grew
under
the
wrong
of
the
Disseisor
;
but
the
person
of
the
Disseisor
shall
be
charged
with
such
Fine
.
Tenant
of
the
King
in
Capite
makes
a
Lease
for
life
,
the
Lessee
for
life
makes
a
Feoffment
in
Fee
without
licence
,
the
Lessor
re-entreth
,
neither
his
person
nor
the
Land
shall
be
charged
:
But
if
my
Feoffee
upon
Condition
maketh
a
Feoffment
without
license
,
and
I
re-enter
for
the
Condition
broken
,
now
my
Land
shall
be
charged
with
the
Fine
upon
Alienation
,
for
the
Feoffee
was
in
by
me
by
good
and
lawfull
Title
,
because
he
had
power
to
make
a
Feoffment
over
,
although
subject
to
the
Condition
.
So
if
Tenant
in
tail
,
or
the
Husband
seised
in
the
Right
of
his
Wife
,
make
a
Feoffment
in
Fee
,
and
afterwards
the
Land
is
recontinued
,
the
Fine
accruing
for
Alienation
without
licence
shall
bind
the
Land
:
And
if
Tenant
for
life
loseth
issues
,
and
dieth
,
the
Lands
shall
be
charged
with
the
same
.
LXXXI
.
The
Lord
of
Northampton
and
Lord
St.
John
's
Case
.
Trin.
29
Eliz.
In
the
Exchequer
.
St.
John's
,
who
within
his
Manor
had
also
bona
&
catalla
felonum
&
fugitivorum
;
and
at
the
payment
the
Lord
St.
John
claimed
the
money
:
But
all
the
Barons
of
the
Exchequer
were
clear
of
Opinion
,
That
the
Lord
St.
John
could
not
have
the
money
,
for
the
place
of
payment
nihil
operatur
,
but
the
Obligation
is
the
substance
which
came
to
the
Lord
of
Northampton
within
the
Isle
of
Ely.
Popham
,
the
Queens
Attorny
,
claimed
the
money
for
the
Queen
,
for
the
Lord
of
Northampton
cannot
have
it
;
for
by
the
general
words
of
bona
&
catalla
felonum
things
in
Action
do
not
pass
,
but
by
express
words
they
well
pass
,
otherwise
not
:
And
therefore
day
was
given
to
the
Lord
of
Northampton
to
shew
his
Letters
Patents
.
LXXXII
.
Ards
and
Smith
's
Case
.
Mich.
30
Eliz.
Rot.
2737.
In
the
Common
Pleas.
EDward
Ards
brought
a
Replevin
against
Smith
and
Reading
;
the
Defendants
made
Conusance
as
Bailiffs
to
Robert
Chamberlain
,
and
shewed
,
That
one
A.
was
seised
of
the
Manor
of
Keney
in
Fee
,
whereof
the
place
where
is
parcel
,
and
so
seised
,
gave
the
said
Manor
to
Richard
Chamberlain
and
Sibil
Fowler
,
and
to
the
Heirs
males
of
the
said
Richard
:
Richard
and
Sibil
intermarry
,
and
have
issue
Edward
;
Richard
dieth
,
Sibil
dyeth
,
Edward
hath
issue
Leonard
,
and
dieth
;
Leonard
hath
issue
Francis
,
and
dieth
;
Francis
hath
issue
Robert
,
in
whose
Right
the
Conusance
is
made
,
and
dieth
;
Robert
entreth
:
The
Plaintiff
in
bar
of
the
Conusance
sheweth
,
That
one
B.
was
thereof
seised
,
and
thereof
enfeoffed
one
Cottesford
,
then
Master
of
Lincoln
College
,
and
the
Fellows
thereof
:
after
which
the
said
Leonard
,
Son
and
Heir
male
of
the
said
Edward
,
25
H.
8.
did
release
to
the
said
Master
and
Fellows
with
warranty
,
the
said
Robert
,
in
whose
Right
the
said
Conusance
is
made
,
being
Heir
male
of
the
said
Robert
,
and
demanded
Iudgment
,
if
against
that
warranty
,
&c.
The
Defendants
confess
the
Gift
before
to
the
said
Richard
and
Sibil
,
and
that
they
had
issue
the
said
Edward
;
but
farther
shewed
,
That
after
the
death
of
the
said
Richard
,
Sibil
,
and
Edward
her
Son
leased
the
said
Manor
for
years
to
one
Mascal
,
who
entred
,
and
was
possessed
:
Edward
suffered
a
common
Recovery
unto
the
use
of
the
Recoverors
,
who
entred
and
ousted
the
Lessee
,
and
enfeoffed
the
said
B.
who
enfeoffed
the
said
Master
and
Fellows
;
the
Lessee
re-entred
,
Sibil
died
,
Leonard
,
Son
and
Heir
apparent
of
Edward
,
released
to
the
said
Master
and
Fellows
with
warranty
;
Edward
died
,
Leonard
died
,
and
thereupon
a
Demurrer
was
by
the
parties
:
and
the
matter
was
,
If
this
Recovery
being
suffered
by
him
in
the
Remainder
in
tail
upon
an
Estate
for
life
,
the
Recoverors
entring
upon
the
Lessee
for
years
of
the
Lessee
for
life
,
and
putting
him
out
,
and
afterwards
the
Lessee
for
years
re-entring
:
If
now
any
Estate
did
remain
in
the
College
,
after
the
Re-entry
,
which
might
work
a
Release
?
Snag
,
Serjeant
,
,
argued
,
That
a
sufficient
Estate
did
remain
in
the
College
,
upon
which
a
Release
might
enure
;
i.e.
an
Estate
to
begin
after
the
death
of
Sibil
,
and
the
expiration
of
the
term
for
years
:
and
although
rei
veritate
,
Edward
was
not
Tenant
of
the
Freehold
at
the
time
of
the
Recovery
,
yet
such
an
exception
doth
not
lie
for
the
Issue
;
and
to
that
purpose
he
cited
the
Opinion
of
Fairfax
,
12
E.
4.
14.
Shuttleworth
,
Serjeant
,
contrary
;
This
Recovery
works
nothing
but
by
way
of
Estoppel
and
Conclusion
,
and
therefore
the
issue
in
tail
may
well
disclose
the
matter
,
and
avoid
such
Recovery
:
and
the
better
Opinion
in
the
Case
cited
before
,
12
E.
4.
is
,
That
such
a
Recovery
against
such
a
person
is
utterly
void
,
which
see
there
by
●ittleton
,
Choke
and
Brian
.
14
E.
4.
2.
and
also
28
Ass.
17.
and
Dyer
8
Eliz.
252
,
253.
Land
conveyed
to
the
Husband
for
life
,
the
Remainder
to
the
Wife
in
tail
,
the
Remainder
to
the
Right
Heirs
of
the
Husband
and
Wife
;
The
Husband
and
Wife
suffer
a
common
Recovery
,
the
Husband
hath
issue
and
dieth
,
and
afterwards
the
Wife
dieth
,
the
issue
shall
avoid
the
Lease
and
Recovery
.
See
also
the
Case
betwixt
Hare
and
Snow
,
Plow.
20
Eliz.
514.
where
a
common
Recovery
was
had
against
Tenant
in
tail
,
and
his
Wife
,
whereas
in
truth
the
Wife
had
nothing
in
the
Land
whereof
the
Recovery
was
suffered
:
It
was
holden
,
that
the
issue
in
tail
,
or
any
other
person
,
might
shew
the
truth
of
the
matter
;
for
he
shall
not
be
bound
by
any
Estoppel
which
his
Father
hath
admitted
,
by
joyning
in
Voucher
with
his
Wife
,
for
he
is
not
subject
to
the
Estoppel
;
and
therefore
it
was
holden
,
That
if
the
Wife
in
such
case
might
sue
Execution
to
have
in
value
,
yet
the
Son
in
tail
might
oust
him
of
it
.
So
8
H.
4.
122.
a
Praecipe
is
brought
against
Tenant
in
tail
,
who
prays
in
aid
of
a
stranger
as
Tenant
for
life
,
who
enters
into
the
aid
,
and
bars
the
Demandant
,
and
afterwards
the
Tenant
in
tail
dieth
;
his
issue
is
at
large
to
claim
the
Estate-tail
,
although
the
mouth
of
his
Father
was
estopped
as
to
it
.
So
Tenant
in
tail
brought
a
Quod
ei
deforceat
,
and
counted
upon
an
especial
tail
,
whereas
in
truth
it
was
a
general
tail
,
and
recovereth
,
and
dieth
;
the
said
Recovery
shall
not
conclude
the
issue
.
See
33
H.
6.
18.
And
in
our
Case
,
when
the
Recoverors
enter
by
force
of
the
recovery
,
the
same
is
a
wrong
to
the
Lessee
for
years
,
and
also
to
the
Tenant
for
life
;
for
the
one
is
ejected
,
and
the
other
disseised
;
and
therefore
the
Re-entry
of
the
Lessee
doth
defeat
all
the
Estate
which
was
in
the
College
under
that
Recovery
:
and
here
the
Entry
of
the
Lessee
for
years
shall
avoid
all
the
Estate
which
was
conveyed
to
the
College
by
the
Recoverors
.
See
44
E.
3.
30
,
31.
Bassingborn's
Assise
:
Land
is
given
to
A
for
life
,
the
Remainder
to
B.
for
life
,
the
Remainder
to
C.
in
Fee
:
A.
aliens
in
Fee
,
the
Ancestors
collateral
of
him
who
hath
the
Fee
doth
release
to
the
Alienee
with
warranty
;
B.
enters
,
here
the
whole
warranty
is
lost
,
and
all
the
first
Estate
is
recontinued
:
So
in
our
Case
,
by
this
Entry
of
the
Lessee
,
the
whole
Estate
of
the
College
under
the
Recovery
is
defeated
,
so
as
nothing
remains
in
the
College
,
upon
which
the
Release
can
enure
,
and
then
there
is
no
warranty
in
the
Case
:
And
as
the
Case
is
here
,
Edward
,
who
suffered
the
Recovery
,
dieth
before
the
descent
of
the
warranty
by
the
death
of
Leonard
,
by
whom
the
Release
with
warranty
was
made
;
by
the
death
of
which
Edward
the
Interest
which
the
College
had
in
the
said
Manor
by
the
said
Recovery
,
and
the
Estoppel
of
it
,
was
determined
and
utterly
gone
,
and
then
the
warranty
descending
afterwards
cannot
attach
upon
the
possession
which
was
at
the
time
of
the
warranty
made
,
which
was
by
the
conclusion
,
which
by
the
death
of
Edward
is
determined
and
removed
by
an
Eign
Title
,
i.
the
Entail
.
As
if
Tenant
in
tail
doth
discontinue
,
the
Discontinue
is
disseised
,
Tenant
in
tail
releaseth
with
warranty
to
the
Disseisor
,
the
Disseisee
entereth
in
the
life
of
Tenant
in
tail
,
who
afterwards
dieth
;
the
warranty
works
nothing
for
the
cause
aforesaid
.
And
also
he
put
this
Case
,
Tenant
in
tail
of
Land
grants
a
Rent-charge
in
Fee
,
and
an
Ancestor
collateral
releaseth
to
the
Grantee
with
warranty
,
and
dieth
,
the
Tenant
in
tail
dieth
,
now
the
issue
is
bound
:
but
if
Tenant
in
tail
dieth
before
him
who
maketh
the
Release
,
now
the
Rent
is
determined
by
the
death
of
Tenant
in
tail
,
and
then
the
warranty
cannot
attach
upon
it
.
At
another
day
the
Case
was
moved
,
and
conceived
in
these
words
,
(
scil.
)
Tenant
for
life
,
the
Remainder
in
tail
,
Tenant
for
life
leaseth
for
years
,
a
Recovery
is
had
against
him
in
the
Remainder
in
tail
,
living
Tenant
for
life
,
the
Recoverors
enter
,
and
oust
the
Lessee
for
years
,
the
Son
and
Heir
of
him
in
the
Remainder
in
tail
releaseth
with
warranty
to
him
to
whom
the
Recoverors
have
assured
the
Lands
,
the
Lessee
enters
,
he
against
whom
the
Recovery
was
had
dieth
,
the
Releasor
dieth
,
&c.
It
was
holden
,
that
the
Entry
of
the
Lessee
,
before
that
the
warranty
had
attached
upon
the
possession
which
passed
,
had
avoided
the
warranty
.
And
the
Lord
Anderson
conceived
,
That
the
Recovery
should
not
prejudice
the
issue
in
tail
,
but
that
the
issue
shall
Fauxifie
the
same
:
And
if
Tenant
in
tail
be
disseised
,
and
so
disseised
suffereth
a
common
Recovery
,
his
issue
shall
not
be
barred
,
quod
fuit
concessum
per
omnes
:
And
afterwards
another
matter
was
moved
,
(
scil.
)
That
the
Release
is
pleaded
to
be
made
to
Lincoln
College
by
the
name
of
Custodi
sociis
&
Scholaribus
Lincolniensis
Collegii
in
Oxonia
,
where
the
true
name
of
the
College
,
as
is
confessed
by
the
Record
in
the
Plea
pleaded
,
is
,
Custos
sive
Rector
,
Socii
&
Scholares
Lincolniensis
Collegii
in
Oxonia
,
&c.
It
was
adjourned
.
See
this
Case
reported
,
(
3
part
,
Lincoln
College
Case
.
)
LXXXIII
.
Hall
and
the
Bishop
of
Bath
's
Case
.
Mich.
32
Eliz.
In
the
Common
Pleas.
HAll
brought
a
Quare
Impedit
against
the
Bishop
of
Bath
,
and
others
:
The
Incumbent
pleaded
,
Quod
ipse
nihil
habet
,
nec
habere
clamat
,
&c.
nisi
de
praesentatione
Georgii
Sidenham
militis
,
not
named
in
the
Writ
,
and
demanded
Iudgment
of
the
Writ
,
upon
which
the
Plaintiff
did
demur
in
Law
:
And
it
was
argued
by
Drew
,
Serjeant
for
the
Plaintiff
,
That
the
Writ
was
well
brought
without
naming
the
Patron
:
for
if
a
Quare
Impedit
be
brought
against
the
Patron
and
Incumbent
,
and
the
Patron
dieth
,
LXXXIV
.
Hughe
's
Case
.
Mich.
32
Eliz.
In
the
Common-Pleas
.
IN
a
Formedon
,
the
Writ
was
,
That
A.
Dedit
Aliciae
filiae
suae
,
and
to
J.S.
and
to
the
Heirs
of
their
two
bodies
begotten
,
and
it
was
shewed
in
abatement
of
the
Writ
,
That
the
name
of
the
Wife
is
put
before
the
name
of
the
Husband
,
To
which
it
was
said
by
the
Court
,
that
if
such
a
Writ
be
brought
against
the
Husband
and
Wife
,
and
the
name
of
the
Wife
be
put
before
the
name
of
the
Husband
,
the
Writ
shall
abate
;
and
if
in
the
Case
at
Bar
it
had
appeared
,
That
the
Donees
at
the
time
of
the
Gift
,
were
Husband
and
Wife
,
upon
such
a
matter
disclosed
the
Writ
should
abate
;
but
that
doth
not
appear
plainly
to
the
Court.
LXXXV
.
Mich.
32
Eliz.
In
the
Common-Pleas
.
NOTE
,
It
was
holden
by
the
Court
,
LXXXVI
.
Mich.
32
Eliz.
In
the
Exchequer-Chamber
.
NOTE
,
In
the
Exchequer-Chamber
,
before
the
Lord
Chancellour
,
The
two
chief
Iustices
,
and
the
chief
Baron
;
a
Writ
of
Error
was
cast
upon
a
Iudgment
given
in
the
Court
of
Exchequer
;
and
it
was
agreed
,
Quod
propter
absentiam
Dom.
Thesaurarii
Angliae
,
They
ought
not
,
nor
could
receive
the
said
Writ
;
and
the
Statute
of
31
Eliz.
doth
not
help
the
matter
,
for
that
extends
but
to
discontinuances
,
which
before
the
Statute
many
times
hapned
for
the
not
coming
of
the
Chancellour
or
Treasurer
,
and
not
to
give
Conusance
in
a
Writ
of
Error
in
the
absence
of
the
Treasurer
,
&c.
LXXXVII
.
Lacy
and
Fisher
's
Case
.
Mich.
32
Eliz.
In
the
Common-Pleas
.
IN
a
Replevin
by
Lacy
against
Fisher
,
The
Defendant
pleaded
,
that
the
place
where
,
&c.
is
called
Spicold
,
and
holden
of
the
Manor
of
Easthall
by
certain
Rent
,
and
made
Conusance
as
Bailiff
of
the
Lord
of
the
said
Manor
;
and
issue
being
joined
hereupon
,
It
was
tried
by
the
Iury
of
the
Visne
of
Spicold
,
and
it
was
moved
in
arrest
of
Iudgment
,
that
the
issue
was
mis-tried
;
For
the
Visne
ought
to
have
been
of
Spicold
and
Easthall
also
:
Richmond
.
M.
31
Eliz.
in
the
same
Court.
LXXXVIII
.
Corbet
's
Case
.
Mich.
32
Eliz.
In
the
Common-Pleas
.
THE
Case
was
,
That
an
Action
of
Debt
was
brought
by
original
Writ
against
an
Administrator
in
another
County
than
where
the
Administrator
was
dwelling
,
and
before
notice
of
that
suit
,
he
paid
divers
other
debts
of
the
Intestate
,
due
by
specialties
;
so
as
he
had
not
Assets
to
pay
the
debt
in
demand
,
having
Assets
,
at
the
day
of
the
Teste
of
the
original
,
and
now
the
Defendant
appearing
,
pleads
the
same
special
matter
,
and
concluded
,
And
so
nothing
remained
in
his
hands
.
And
it
was
holden
per
Curiam
to
be
a
good
Plea
:
See
2
H.
4.
21
,
22.
LXXXIX
.
Sir
William
Pelham
's
Case
.
Pasch.
31
Eliz.
In
the
Exchequer
.
William
Pelham
in
Fee
,
who
afterwards
suffered
a
common
Recovery
thereof
,
in
which
A.
is
vouched
;
and
so
a
common
Recovery
is
had
and
executed
,
and
all
this
was
before
the
Statute
of
14
Eliz.
And
if
the
said
Recovery
should
bind
B.
who
was
in
the
remainder
in
tail
;
or
if
it
be
a
forfeiture
,
was
the
Question
.
Altham
of
Gray's-Inn
argued
,
that
here
is
a
forfeiture
:
First
,
it
is
to
see
,
if
a
common
Recovery
suffered
by
Tenant
for
life
(
who
is
also
Bargainor
in
this
case
)
be
a
forfeiture
or
not
by
the
Common
Law
,
if
no
Execution
be
sued
upon
the
same
Recovery
.
Secondly
,
If
the
Recovery
be
executed
,
if
he
in
the
Remainder
may
enter
for
the
forfeiture
.
When
Tenant
for
life
bargaineth
and
selleth
the
Messuage
,
vide
Br.
Tit.
Forfeit
87.
24
H.
8.
Tenant
for
life
is
impleaded
and
prayes
in
aid
of
a
stranger
,
he
in
the
reversion
may
enter
,
but
if
he
doth
not
enter
untill
the
other
hath
recovered
,
then
he
cannot
enter
,
but
he
is
put
to
his
Writ
of
Entry
,
Ad
terminum
qui
praeteriit
,
vel
de
ingress
.
ad
com
.
Legem
,
and
therein
shall
falsifie
the
Recovery
.
And
there
by
Brook
,
Voucher
of
a
stranger
is
not
a
cause
of
forfeiture
;
for
he
doth
not
disaffirm
the
Reversion
to
be
in
the
Lessor
.
And
he
vouched
,
24
E.
3.
68.
where
Tenant
for
life
pleaded
in
the
Right
without
aid
prayer
;
and
so
he
argued
,
That
before
execution
,
he
in
the
Remainder
might
enter
,
but
after
execution
,
he
is
put
to
his
Action
;
but
in
our
Case
,
although
Execution
be
sued
,
yet
he
in
the
Remainder
may
enter
,
for
it
is
found
by
verdict
,
That
at
the
time
of
the
Recovery
he
was
within
age
,
and
then
no
Laches
of
entry
shall
be
imputed
unto
him
,
and
then
he
shall
not
be
driven
to
his
Action
:
As
if
Tenant
by
the
Curtesie
maketh
a
Feoffment
with
Warranty
,
and
dieth
,
and
the
same
descendeth
to
his
Heir
within
age
,
yet
he
shall
enter
,
although
that
he
had
not
avoided
the
Warranty
in
the
life
of
his
Ancestor
;
And
he
also
conceived
that
the
Statute
of
32
H.
8.
cap.
31.
did
extend
to
this
Case
:
For
Sir
William
Pelham
,
the
Bargainee
,
was
but
Tenant
for
life
,
and
although
that
he
be
but
Tenant
for
the
life
of
another
,
yet
he
is
Tenant
for
life
as
fully
as
if
he
were
Tenant
for
his
own
life
:
The
words
of
the
Statute
are
,
or
otherwise
for
the
term
of
life
or
lives
quo
ad
nom
.
As
upon
the
Statute
of
20
E.
1.
which
gives
receit
,
i.
de
defensione
juris
;
the
words
are
,
Cum
quis
aliquod
Breve
Dom.
Regis
impetret
versus
tenentem
per
Legem
Angliae
,
vel
feodum
talliatum
,
vel
sub
nomine
Dotis
,
vel
alio
modo
ad
terminum
vitae
,
&c.
Also
,
although
that
he
who
entreth
at
the
time
of
the
recovery
was
not
next
in
the
Remainder
to
the
particular
Estate
,
yet
he
is
within
the
Statute
of
32
H.
8.
for
he
was
in
the
Remainder
at
the
time
of
the
Recovery
,
and
at
the
time
of
the
entry
,
he
in
the
immediate
Remainder
was
dead
,
and
then
he
next
in
Remainder
:
See
15
E.
4.
9.
by
Littleton
,
If
I
grant
my
services
to
one
for
life
,
and
he
in
a
Praecipe
brought
against
him
,
plead
in
the
Right
;
or
granteth
unto
another
the
said
services
in
Fee
,
the
same
is
not
any
forfeiture
,
because
it
is
not
any
discontinuance
.
It
will
be
objected
,
That
the
words
of
the
Statute
of
32
H.
8.
are
,
That
such
Recoveries
shall
be
utterly
void
;
and
if
so
,
then
he
in
the
Reversion
cannot
be
damnified
,
and
then
no
cause
of
forfeiture
;
To
that
it
was
easily
to
be
answered
,
That
where
Tenant
for
life
doth
any
thing
which
sounds
to
the
disinheriting
of
him
in
the
Reversion
by
matter
of
Record
,
although
it
doth
not
devest
or
otherwise
prejudice
the
Inheritance
,
yet
it
is
a
forfeiture
.
Coke
contrary
;
Here
in
our
Case
there
is
not
any
Covin
:
Sir
William
Pelham
,
the
Bargainee
,
he
was
deceived
by
the
Bargainor
,
for
he
did
not
know
but
that
the
Bargainor
was
seised
in
tail
at
the
time
of
the
Bargain
,
and
it
was
lawfull
for
him
to
doe
other
act
in
the
farther
assurance
of
his
bargain
;
and
it
was
also
lawfull
for
him
to
vouch
his
Bargainor
;
and
although
the
Bargainor
vouched
a
stranger
,
yet
it
is
not
a
forfeiture
,
39
E.
3.
16.
Aid
prayer
of
a
stranger
is
a
forfeiture
,
and
the
reason
thereof
is
,
because
he
acknowledgeth
the
Reversion
to
be
in
a
stranger
,
and
that
is
the
cause
of
the
forfeiture
.
See
Book
of
Entries
254.
Where
upon
aid
prayer
,
the
party
to
have
aid
sheweth
special
matter
;
but
in
our
Case
,
Sir
William
Pelham
hath
vouched
his
Bargainor
,
and
that
not
without
cause
,
for
he
hath
a
Warranty
from
him
;
and
the
Demandant
could
not
counterplead
it
,
for
he
had
seisin
,
by
force
whereof
he
might
make
a
Feoffment
:
As
unto
the
Case
of
14
E.
3.
Tit.
Receit
135.
Lesse
for
life
in
a
Praecipe
against
him
without
aid
prayer
pleaded
to
the
Enquest
at
the
first
day
,
in
that
case
it
is
said
,
that
he
in
the
Reversion
may
enter
.
It
is
true
,
that
he
may
enter
in
the
Receit
,
but
not
into
the
Land
for
forfeiture
,
for
then
Fitz.
would
have
abridged
the
Case
in
title
of
Entry
Congeable
,
and
not
in
the
Title
of
Receit
:
and
the
Book
of
5
E.
3.
is
good
Law
,
for
there
the
Tenant
doth
confess
the
Reversion
to
be
in
another
;
but
in
our
Case
the
Tenant
voucheth
,
which
is
a
lawfull
act
done
,
and
according
to
the
Covenants
of
his
purchase
:
And
although
the
Recovery
be
by
agreement
,
yet
it
is
not
therefore
a
forfeiture
;
for
if
the
Tenant
for
life
voucheth
truly
,
it
is
no
forfeiture
.
Before
the
Statute
of
West
.
2.
cap.
3.
which
gave
Receit
to
the
Wife
,
and
to
those
in
the
Reversion
where
the
particular
Tenant
is
impleaded
,
and
maketh
default
,
vel
reddere
noluerit
,
there
was
no
remedy
in
such
cases
,
but
by
Writ
of
Right
,
but
no
entry
,
and
that
was
for
the
reason
of
the
credit
which
the
Law
gave
to
Recoveries
,
for
if
they
might
enter
;
wherefore
is
Receit
given
?
but
that
was
in
two
cases
onely
:
But
afterwards
,
because
it
was
found
,
that
many
particular
Tenants
being
impleaded
would
plead
faintly
,
the
Statute
of
13
R.
2.
gave
receit
in
such
cases
.
And
upon
what
reasons
were
these
Acts
and
Statutes
made
,
if
in
such
cases
the
entry
was
congeable
?
But
after
these
two
Statutes
,
another
practice
was
devised
,
for
such
particular
Tenants
would
suffer
Recoveries
secretly
,
in
such
sort
,
that
those
in
the
Reversion
could
not
have
notice
thereof
,
so
as
they
could
not
before
Iudgement
pray
to
be
received
,
to
remedy
which
mischief
,
the
Statute
of
32
H.
8.
was
made
,
by
which
all
Recoveries
had
against
Tenant
by
the
Curtesie
,
or
otherwise
for
life
or
lives
,
by
agreement
of
the
parties
of
any
Lands
whereof
such
particular
Tenant
is
seised
shall
be
void
,
as
Tenant
by
the
Curtesie
,
&c.
should
be
void
against
him
in
the
Reversion
;
and
yet
there
was
an
evasion
to
creep
out
of
that
Statute
;
for
such
particular
Tenants
,
would
make
a
Feoffment
with
Warranty
,
and
then
the
Feoffee
should
be
impleaded
in
a
Writ
of
Entry
,
and
he
vouch
the
Tenant
for
life
,
who
would
aver
,
and
such
Recovery
was
holden
to
be
out
of
the
Statute
of
32
H.
8.
For
the
Recovery
was
not
against
such
particular
Tenants
,
&c.
For
the
remedy
of
which
mischief
,
the
Statute
of
14
Eliz.
was
made
,
by
which
it
is
provided
,
That
such
Recoveries
had
where
such
particular
Tenants
are
vouched
shall
be
void
,
if
such
Recovery
be
by
Covin
betwixt
them
:
And
he
conceived
,
That
the
forfeiture
is
not
in
respect
of
the
Recovery
it self
,
but
of
the
Plea
pleaded
by
the
Tenant
:
And
here
in
our
Case
,
there
is
not
any
Covin
found
,
or
that
Sir
William
Pelham
knew
that
he
was
but
Tenant
for
life
;
but
it
is
found
,
that
this
Recovery
was
with
their
assent
,
and
that
was
lawfull
as
the
case
is
;
for
they
might
agree
to
have
such
a
Recovery
for
farther
assurance
:
and
so
Sir
William
Pelham
hath
not
vouched
any
but
his
Bargainor
,
and
that
according
to
their
Covenants
;
and
this
Bargainor
was
not
a
bare
Tenant
for
life
,
but
he
had
also
a
Remainder
in
tail
,
although
not
immediately
depending
upon
the
Estate
for
life
,
which
he
had
cut
off
;
there
it
was
not
meerly
a
feigned
Recovery
:
See
5
E.
4.
2.
and
24
H.
8.
br.
Forfeit
.
87.
where
Tenant
for
life
being
impleaded
in
a
Praecipe
,
voucheth
a
stranger
,
the
same
is
no
Forfeiture
,
for
the
same
doth
not
disaffirm
the
Reversion
:
but
contrary
of
Aid
prayer
,
for
a
stranger
may
release
with
warranty
to
Tenant
for
life
,
upon
which
he
may
vouch
:
And
he
reported
in
his
Argument
,
That
Bromley
,
Chancellor
of
England
,
sent
him
to
both
the
chief
Iustices
,
to
know
their
Opinions
upon
this
point
;
and
they
were
of
Opinion
,
That
the
Voucher
of
a
stranger
was
not
any
Forfeiture
,
and
also
that
after
the
Recovery
was
executed
,
he
in
the
Remainder
could
not
enter
;
but
they
conceided
,
that
the
Right
of
him
in
the
Remainder
was
not
bound
:
And
he
said
,
That
after
the
Recovery
was
executed
,
that
he
in
the
remainder
could
not
enter
:
See
24
H.
8.
Br.
Forfeit
87.
For
if
Entry
in
such
Cases
should
be
lawfull
,
infinite
Suits
would
follow
thereupon
,
which
would
be
much
to
the
Discredit
of
common
Recoveries
,
which
are
now
the
Common
Assurances
of
the
Land
.
As
to
the
objection
of
the
Enfancy
,
the
same
will
not
help
the
matter
.
Br.
Sav.
Default
50.
6
H.
8.
A
Recovery
had
against
an
Infant
,
in
which
he
voucheth
and
loseth
,
is
not
erroneous
;
contrary
of
a
Recovery
upon
a
default
:
And
if
an
Infant
,
Tenant
in
tail
,
suffer
a
common
Recovery
,
the
same
is
a
discontinuance
,
for
in
such
Recoveries
Infancy
is
not
respected
:
And
in
a
Scire
facias
upon
a
Iudgment
had
against
the
Father
,
the
Heir
shall
not
have
his
age
:
And
he
cited
a
case
out
of
Bendloe's
Reports
,
5
Eliz.
Tenant
for
life
,
the
Remainder
over
to
a
stranger
in
Fee
,
Tenant
for
life
is
disseised
by
Covin
;
in
a
Praecipe
quod
reddat
against
the
Disseisor
,
he
voucheth
the
Tenant
for
life
,
who
enters
into
warranty
generally
,
and
voucheth
over
the
common
Vouchee
:
It
was
adjudged
,
That
the
Recovery
was
out
of
the
Statute
of
32
H.
8.
for
the
Recovery
was
not
had
against
the
particular
Tenant
,
for
he
was
but
Tenant
in
Law
,
because
Vouchee
;
and
also
that
the
Recovery
was
a
good
bar
to
him
in
the
remainder
,
notwithstanding
that
he
was
within
age
at
the
time
of
the
Recovery
.
And
afterwards
at
another
day
the
Case
was
argued
by
the
Barons
;
and
Clark
Baron
conceived
,
That
the
Entry
of
him
in
the
remainder
was
congeable
:
It
hath
been
said
,
That
Sir
William
Pelham
did
not
know
that
the
Bargainor
had
an
Estate
but
for
his
life
,
or
that
any
other
person
had
any
remainder
therein
;
the
same
is
not
to
any
purpose
to
excuse
him
:
for
42
E.
3.
Every
Purchasor
ought
at
his
own
peril
take
notice
of
the
Estates
and
charges
which
are
upon
the
Lands
of
which
he
is
Purchasor
;
and
the
Law
presumes
that
none
will
purchase
Lands
without
advice
of
Councel
,
and
without
knowing
the
Titles
to
the
Lands
.
And
although
divers
Statutes
have
been
made
to
provide
against
the
practices
of
particular
Tenants
,
yet
it
is
no
argument
,
that
no
other
remedy
was
before
.
And
by
Littleton
,
If
Tenant
for
life
joyneth
the
Mise
upon
the
mere
right
,
it
is
a
forfeiture
.
And
he
held
strongly
,
That
the
Iudgment
did
not
take
away
the
Entry
,
cause
of
forfeiture
being
given
before
the
Iudgment
:
See
5
Ass.
3.
and
22
Ass.
31.
to
that
purpose
:
For
where
Tenant
for
life
is
impleaded
,
he
ought
to
attend
upon
him
in
the
reversion
,
and
to
expect
instructions
from
him
in
defence
of
his
Title
,
&c.
And
therefore
if
he
maketh
default
,
or
confesseth
Action
,
the
same
is
a
forfeiture
:
And
as
to
the
supposed
recompence
,
the
same
shall
not
help
this
Case
,
for
this
is
a
common
recovery
,
and
nothing
else
but
an
Assurance
:
And
Recoverors
they
are
but
Assignees
,
and
they
shall
take
advantage
of
Conditions
by
32
H.
8.
and
a
Recoveror
shall
be
seised
to
the
use
of
him
who
suffereth
the
Recovery
,
if
no
other
use
be
expressed
.
And
he
also
held
,
That
when
Tenant
for
life
bargains
,
and
sells
his
Lands
by
Deed
enrolled
,
although
no
Fee
passeth
,
yet
it
is
a
forfeiture
,
and
that
by
reason
of
the
Enrolment
,
which
is
matter
of
Record
.
And
he
said
that
if
an
Infant
,
Tenant
for
life
,
be
disseised
,
and
the
Disseisor
dieth
,
and
afterwards
the
Infant
dieth
,
that
he
in
the
Remainder
might
enter
.
Gent
,
Baron
,
argued
to
the
same
intent
;
and
he
said
,
That
if
Tenant
for
life
suffereth
a
Recovery
,
the
same
is
not
simply
a
forfeiture
,
for
he
may
have
a
warranty
upon
a
Release
or
Confirmation
made
to
him
.
Attornment
doth
not
give
a
Right
,
but
is
onely
a
Consent
,
yet
if
he
who
hath
not
any
thing
in
the
Reversion
will
levy
a
Fine
thereof
unto
another
,
and
afterwards
the
Conusee
brings
a
Quod
juris
clamat
against
the
Tenant
of
the
Land
,
and
he
attorn
,
it
is
a
Forfeiture
.
Manwood
,
Baron
,
to
the
same
intent
;
this
is
a
new
Case
,
and
I
have
not
seen
nor
read
the
Case
in
any
Book
,
nor
seen
any
presidents
;
and
it
is
a
great
case
,
and
a
general
case
,
and
worthy
to
be
argued
:
And
I
conceive
clearly
,
That
here
is
a
direct
and
express
forfeiture
:
the
Dignity
of
Iudgments
in
reputation
of
Law
hath
been
urged
,
which
ought
to
stand
in
force
until
they
be
reversed
by
Error
or
Attaint
:
And
also
Littleton
481.
hath
been
urged
,
where
upon
the
Statute
of
West
.
3.
he
saith
,
That
before
the
Statute
aforesaid
,
if
a
Lease
had
been
made
to
one
for
life
,
the
remainder
to
a
stranger
,
and
afterwards
a
stranger
by
faint
Action
hath
recovered
against
Tenant
for
life
by
default
,
and
afterwards
the
Tenant
for
life
died
,
he
in
the
Remainder
had
not
any
remedy
:
But
there
Littleton
doth
not
report
the
same
as
his
own
Opinion
,
but
as
an
Opinion
conceived
by
a
Reader
upon
the
said
Statute
;
and
in
truth
it
is
but
a
meer
conceit
.
And
as
to
the
main
point
,
he
took
this
difference
;
Such
Recoveries
in
which
the
title
of
the
Demandant
stands
indifferent
to
the
Court
,
and
non
constat
,
if
it
be
good
,
or
not
being
suffered
by
Tenant
for
life
by
default
or
confession
,
without
aid-prayer
of
him
in
the
Reversion
,
do
not
make
any
forfeiture
,
although
that
the
Tenant
for
life
hath
not
dealt
with
him
in
the
Reversion
,
not
having
prayed
in
aid
of
him
:
And
in
such
case
,
if
a
Lease
be
made
for
life
,
the
Remainder
over
in
Fee
,
upon
such
Recovery
he
in
the
remainder
shall
have
a
Formedon
in
the
remainder
,
or
a
Writ
of
Right
,
and
shall
not
put
out
him
who
recovered
,
without
any
Action
,
and
that
by
the
common
Law.
Then
came
the
Statute
of
West
.
2.
c.
3.
which
gave
unto
the
Wife
a
Gui
in
vita
,
upon
a
Recovery
had
against
the
Husband
by
default
,
where
before
she
had
not
any
remedy
,
but
onely
Writ
of
Right
:
and
notwithstanding
,
si
ulterius
quaeratur
,
si
necesse
habet
ostendere
jus
suum
,
secundum
formam
brevis
quod
prius
impetraverat
:
And
if
his
Right
be
not
better
than
the
right
of
him
in
the
Reversion
,
he
shall
lose
it
,
notwithstanding
the
Iudgment
given
before
for
him
:
and
that
Statute
gave
Receipt
,
or
Writ
of
Entry
,
ad
terminum
qui
praeteriit
;
and
that
Statute
is
to
be
intended
of
such
Recoveries
where
a
good
Title
or
indifferent
is
,
so
as
non
Constat
Curiae
,
if
it
be
good
,
or
not
?
After
that
Tenant
for
life
was
driven
unto
a
new
shift
,
and
would
not
make
default
,
or
lose
for
not
pleading
,
but
he
would
plead
,
but
that
faintly
;
for
the
remedy
of
which
mischief
,
the
Statute
of
13
R.
2.
which
gave
Receipt
in
such
case
;
the
particular
Tenant
being
restrained
by
this
Statute
,
he
jugled
yet
,
and
practised
to
suffer
a
Recovery
secretly
,
without
notice
of
him
in
the
Reversion
:
for
the
remedying
of
which
mischief
,
the
Statute
of
32
H.
8.
was
made
,
and
that
makes
such
Recovery
had
against
such
a
particular
Tenant
void
against
him
the
Reversion
.
It
hath
been
objected
,
That
the
said
Statute
of
32
H.
8.
did
not
give
any
forfeiture
in
this
case
,
but
makes
the
Recovery
void
;
and
therefore
he
in
the
Reversion
ought
to
stay
until
after
the
death
of
the
particular
Tenant
:
To
that
I
shall
speak
after
.
But
here
our
case
is
of
a
common
Recovery
,
and
it
doth
appear
to
the
Court
,
that
the
Demandant
hath
not
right
,
for
the
Tenant
might
have
barred
him
:
Also
this
Recovery
is
not
to
the
use
of
the
Recoveror
,
but
to
the
use
of
him
who
was
Tenant
in
it
;
and
in
truth
it
is
nothing
else
but
an
assurance
:
and
in
these
feigned
Recoveries
the
Recoveror
comes
in
under
the
Title
of
the
Tenant
to
it
,
and
not
paramount
,
as
in
case
of
a
Recovery
upon
a
good
Title
.
A
Lease
for
years
made
by
him
who
after
suffers
a
Recovery
is
good
,
and
shall
not
be
defeated
by
the
Recovery
;
otherwise
it
is
where
the
Recovery
is
upon
a
good
Title
.
See
Statute
of
Glocest
.
cap.
11.
where
upon
default
of
the
Tenant
,
Receipt
is
given
for
Lessee
for
years
;
yet
if
the
Tenant
vouch
,
upon
default
of
the
Vouchee
the
Lessee
for
years
shall
be
received
:
and
now
Receipt
of
Lessee
for
years
is
out
of
the
Book
,
for
by
the
Statute
of
21
H.
8.
cap.
15.
he
may
falsifie
the
Recovery
:
but
no
Receipt
lieth
in
the
case
of
a
common
Recovery
,
for
that
he
who
recovers
cannot
put
out
the
Termor
.
As
to
that
which
my
Brother
Clark
hath
said
,
That
the
bargain
and
sale
in
this
case
is
not
any
forfeiture
,
but
when
the
bargain
and
sale
is
enrolled
,
then
it
is
a
forfeiture
;
I
am
not
of
such
Opinion
:
for
although
that
the
Enrolment
be
of
Record
,
yet
the
Deed
is
not
of
Record
;
for
against
a
Deed
enrolled
,
a
man
may
plead
Infancy
,
although
none
can
plead
Non
est
factum
.
Also
he
held
,
That
although
by
the
bargain
and
sale
,
and
the
Enrolment
of
it
,
the
Bargainee
had
not
a
fee
,
for
by
such
act
the
Reversion
is
not
removed
;
yet
by
the
Recovery
,
and
the
Execution
of
it
,
the
Bargainee
hath
gained
a
fee
out
of
the
Lessor
,
for
the
Recovery
is
to
the
use
of
the
Bargainee
,
against
whom
it
was
had
.
It
hath
been
objected
,
that
here
is
onely
a
Voucher
,
which
paradventure
was
lawfull
in
this
case
,
by
reason
of
a
warranty
paramount
,
or
of
a
Release
or
Confirmation
with
warranty
:
and
two
Cases
have
been
vouched
to
that
purpose
,
viz.
5
E.
4.
2.
Tenant
for
life
being
impleaded
in
a
Praecipe
,
voucheth
a
stranger
,
the
Demandant
counterpleads
the
Voucher
,
which
is
found
for
him
,
he
in
the
Reversion
hath
no
remedy
but
a
Writ
of
Right
;
so
if
the
Vouchee
had
entred
into
the
warranty
,
and
lost
,
&c.
As
to
that
book
,
we
ought
not
to
conceive
,
That
every
Case
reported
in
our
books
is
Law
;
but
let
us
observe
,
of
what
authority
that
case
is
;
truly
it
is
the
conceit
of
the
Reporter
himself
,
for
he
puts
the
Case
,
and
resolves
the
case
,
but
no
Iudge
or
Serjeant
is
named
in
the
case
,
&c.
The
other
case
is
5
E.
4.
2.
b.
Note
by
Heydon
clearly
,
If
my
Tenant
for
life
voucheth
a
stranger
,
who
entreth
into
the
warranty
generally
,
and
doth
not
know
how
to
bar
the
Demandant
,
the
Tenant
shall
recover
in
value
,
and
the
Reversion
of
that
which
he
hath
in
value
shall
be
in
me
in
lieu
of
my
former
Reversion
;
as
a
Release
to
the
Tenant
for
term
of
life
shall
enure
to
him
in
the
Reversion
:
But
that
is
but
the
Opinion
of
one
Serjeant
,
&c.
But
I
answer
to
these
books
,
If
the
demandant
in
such
recovery
hath
a
good
Title
,
so
as
the
Tenant
or
the
Vouchee
,
as
Heydon
saith
,
do
not
know
how
to
bar
the
Demandant
,
there
such
Voucher
of
a
stranger
is
no
forfeiture
,
nor
such
Recovery
suffered
upon
it
,
for
against
his
Will
,
volens
nolens
,
he
suffered
it
:
but
if
the
Tenant
hath
good
matter
to
bar
the
Demandant
,
and
no
good
cause
of
Voucher
,
nor
any
warranty
,
as
the
matter
is
in
the
case
of
a
common
Recovery
,
there
the
Voucher
of
a
stranger
,
or
suffering
of
a
Recovery
,
is
a
forfeiture
of
his
Estate
.
And
here
in
our
case
if
the
Demandant
hath
not
any
Title
,
the
Tenant
or
Vouchee
hath
not
any
warranty
;
but
the
Tenant
might
have
barred
the
Demandant
if
he
would
:
And
he
said
,
That
the
Voucher
onely
doth
not
make
the
forfeiture
,
but
rather
the
recovery
;
for
when
Iudgment
is
given
,
and
Execution
is
had
,
then
the
Fee
is
plucked
out
of
the
Reversioner
:
vide
6
R.
2.
If
Tenant
for
life
claimeth
a
Fee
,
the
same
is
a
forfeiture
:
but
here
Sir
William
Pelham
hath
done
more
,
for
he
hath
gained
Fee
by
the
Iudgment
,
therefore
à
fortiori
it
shall
be
a
forfeiture
.
But
let
us
see
a
little
what
meddlings
or
attempts
by
the
particular
Tenants
are
causes
of
forfeiture
,
and
what
not
:
5
Assis
.
3.
A.
brought
a
Writ
of
Entry
against
Tenant
for
life
by
Collusion
to
oust
B.
of
his
Reversion
,
supposing
that
the
Tenant
for
life
held
of
his
Lease
;
the
Tenant
confessed
the
Action
,
upon
which
Iudgment
is
given
;
B.
enters
,
and
his
Entry
adjudged
lawfull
,
for
this
Recovery
is
adjudged
in
Law
but
an
alienation
to
the
disinheritance
of
him
in
the
Reversion
:
and
there
it
appeareth
,
that
such
Recovery
by
Covin
is
but
an
alienation
,
and
without
any
strength
of
a
Recovery
.
And
he
cited
many
other
cases
cited
before
by
Altham
:
14
E.
3.
Recept
135.
where
Tenant
for
life
pleads
in
chief
,
and
prays
in
aid
of
a
stranger
,
where
he
might
bar
the
Demandant
,
and
would
not
,
the
same
is
a
forfeiture
:
Also
2
E.
3.
2.
and
27
E.
3.
where
Tenant
for
life
,
in
a
Quid
juris
clamat
,
attorned
to
the
Conusee
upon
a
Fine
levyed
by
him
that
had
not
any
thing
in
the
Land
,
the
same
was
a
forfeiture
;
and
yet
the
Attornment
doth
not
devest
the
Reversion
out
of
the
Lessor
:
50
E.
3.
7.
and
8.
Land
was
given
by
Fine
in
tail
,
the
Remainder
over
to
a
stranger
in
fee
,
the
Donee
took
a
Wife
and
died
without
issue
,
the
Wife
accepted
Dower
assigned
by
a
stranger
,
he
in
the
remainder
brought
a
Scire
facias
against
the
Wife
;
she
is
Tenant
in
Dower
of
the
assignment
of
a
stranger
,
and
pleads
to
the
Title
;
the
Demandant
recovereth
,
she
hath
lost
her
Dower
,
for
she
hath
not
pleaded
as
she
ought
,
being
a
particular
Tenant
,
&c.
H.
4.
Tenant
for
life
loseth
his
Land
in
a
Recovery
against
him
against
his
Will
,
and
thereupon
brings
Quod
ei
deforceat
,
and
declares
upon
an
Estate-tail
,
and
recovers
,
the
same
is
a
forfeiture
,
because
he
hath
challenged
a
higher
Estate
than
he
had
.
5
H.
5.
Tenant
for
life
joyns
the
Mise
upon
the
meer
right
:
2
H.
6.
Lessee
for
years
being
ousted
,
brings
an
Assise
,
and
recovers
:
1
H.
7.
Accepts
a
Fine
of
a
stranger
upon
condition
come
ceo
,
&c.
all
these
are
forfeitures
.
In
the
principal
Case
here
,
the
Tenant
who
suffers
his
Recovery
doth
not
plead
at
all
to
defend
the
Right
:
but
whereas
he
might
have
barred
the
Demandant
,
he
giveth
strength
to
his
pretended
Title
,
and
makes
it
a
perfect
Title
;
and
by
suffering
this
Recovery
and
Iudgment
to
pass
upon
it
,
he
hath
taken
the
Reversion
out
of
the
Lessor
to
whom
he
owed
Fealty
,
and
therefore
he
shall
forfeit
his
Estate
.
And
without
any
doubt
it
is
apparent
to
the
Court
,
that
the
Demandant
in
this
Recovery
hath
not
any
Title
,
but
the
Recoverors
in
such
cases
are
but
as
Assignees
or
Purchasors
,
which
appears
by
the
Statute
of
7
H.
8.
ca.
2.
which
gives
Distress
and
Avowry
to
Recoverors
,
&c.
As
to
the
inventing
of
Recoveries
,
it
was
a
necessary
device
,
for
it
was
to
take
away
Estate-tails
,
which
were
the
causes
of
great
mischiefs
and
inconveniencies
in
this
Realm
:
and
there
was
great
reason
for
it
;
for
Tenant
in
tail
might
by
the
common
Law
alien
his
Lands
post
prolem
suscitatam
,
and
now
he
hath
an
Inheritance
,
and
may
do
Waste
,
But
he
was
so
restrained
by
the
Statute
of
West
.
2.
that
all
the
Realm
,
and
the
Subjects
in
it
,
were
inveigled
thereby
;
Ioyntures
of
Wives
,
Leases
of
Fermors
,
Mortgages
to
Creditors
,
Statutes
,
and
other
Assurances
,
were
defeated
by
the
deaths
of
Tenants
in
tail
,
which
was
both
against
the
common
Law
,
and
also
against
all
Conscience
.
These
matters
coming
to
the
knowledge
of
the
Iustices
,
and
the
mischiefs
thereupon
following
being
very
frequent
,
and
it
appearing
that
the
Tenant
in
tail
was
a
dangerous
fellow
,
and
that
there
was
no
safe
dealing
with
him
,
they
took
consideration
of
them
:
and
considering
also
with
themselves
,
That
Lineal
Warranty
and
Assets
,
and
Collateral
Warranty
without
Assets
,
did
bar
the
Entail
,
upon
this
consideration
they
grounded
the
practice
and
usage
of
common
Recoveries
.
So
as
by
that
means
Tenant
in
tail
,
hath
Potestatem
alienandi
,
as
he
hath
at
the
Common
Law
;
and
by
this
means
,
right
was
done
to
the
Common
Law
because
its
authority
was
restored
;
and
thereby
injury
was
done
to
no
man
:
But
as
for
Tenant
for
life
,
he
never
had
Potestatem
alienandi
.
And
as
to
that
which
hath
been
said
,
That
the
recovery
shall
stand
in
force
untill
after
the
death
of
Tenant
for
life
;
and
in
our
Case
here
,
Tenant
in
tail
is
alive
;
Truly
,
if
the
Law
should
be
such
,
great
mischiefs
would
follow
:
For
then
great
Iointresses
,
the
Widows
of
great
persons
,
having
assurances
to
them
of
great
and
stately
Houses
,
and
of
Lands
furnished
with
Timber
,
of
great
yearly
value
,
might
suffer
such
Recoveries
;
and
so
having
plucked
the
Fee
out
of
the
Heirs
,
might
commit
waste
,
and
the
same
should
be
dispunishable
,
which
would
be
an
intolerable
mischief
;
and
so
he
concluded
,
that
the
suffering
of
a
Recovery
was
a
forfeiture
,
and
Iudgment
,
Trin.
21
Eliz.
was
given
,
and
entred
accordingly
.
XC
.
Noon
's
Case
.
Trin.
31
Eliz.
In
the
Exchequer
.
DEBT
was
brought
in
London
,
against
one
as
Executor
,
and
upon
fully
administred
pleaded
,
it
was
found
for
the
Plaintiff
,
who
assigned
the
same
to
the
Queen
,
whereupon
a
Scire
facias
issued
out
of
the
Exchequer
against
the
Defendant
,
into
the
County
of
Dorset
,
The
Serhiff
retorned
Nulla
bona
,
&c.
which
Scire
facias
was
upon
a
Constat
of
goods
in
another
County
;
It
was
agreed
by
all
the
Barons
,
that
the
Debt
was
well
assigned
to
the
Queen
:
And
also
that
the
Scire
facias
might
issue
forth
of
another
Court
,
than
where
the
Record
of
the
Iudgment
remained
;
and
that
upon
a
Constat
of
goods
,
in
another
County
than
where
the
Writ
is
brought
,
or
where
the
party
is
dwelling
,
he
may
well
have
a
Scire
facias
in
another
County
.
But
the
Retorn
was
challenged
,
because
contrary
to
the
verdict
:
As
in
a
Replevin
,
No
such
beast
,
is
not
a
good
Retorn
,
but
Averia
elongata
;
or
Nullus
venit
ex
parte
querentis
ad
monstrand
.
averia
:
And
here
the
Sheriff
might
have
retorned
,
Devastavit
,
which
well
stands
with
the
Verdict
,
5
H.
7.
27.
But
as
to
that
,
it
was
said
by
the
Barons
,
That
it
is
true
,
that
the
Sheriff
of
the
County
where
the
Writ
was
brought
,
is
concluded
by
the
Verdict
,
to
make
any
retorn
contrary
to
it
;
but
the
Sheriff
of
another
County
shall
not
so
be
;
but
the
Sheriff
of
the
County
where
the
Writ
is
brought
ought
to
retorn
Devastavit
,
&c.
and
thereupon
the
Plaintiff
shall
have
Process
into
another
County
;
But
the
Question
farther
was
:
If
a
Scire
facias
upon
Testatum
shall
issue
into
another
County
,
before
that
the
Sheriff
of
the
County
where
the
Writ
is
brought
,
had
retorned
a
Devastavit
?
for
some
conceived
,
That
a
Devastavit
where
the
Writ
was
brought
,
ought
first
to
be
retorned
,
and
then
upon
a
Testatum
,
Process
should
issue
forth
into
any
County
within
England
;
But
others
were
of
opinion
,
That
without
a
Devastavit
retorned
upon
a
Testatum
,
Process
might
be
sued
forth
immediately
into
any
other
County
.
Williams
said
,
If
I
recover
goods
by
Action
brought
in
Midd.
I
may
upon
a
Testatum
,
have
a
Capias
into
any
foreign
County
.
XCI
.
Western
and
Weild
's
Case
.
Trin.
31
Eliz.
In
the
Exchequer
.
IN
a
Writ
of
Accompt
brought
in
London
,
the
Defendant
pleaded
,
Never
his
Receiver
,
&c.
which
was
found
for
the
Plaintiff
,
and
Iudgement
given
,
that
the
Defendant
should
accompt
;
Afterwards
the
Defendant
brought
his
Writ
of
Privilege
;
and
if
the
same
should
be
allowed
after
Iudgment
?
was
the
Question
:
Coke
,
It
shall
be
allowed
,
for
the
Defendant
hath
not
surceased
his
time
.
This
Iudgement
to
accompt
is
not
properly
a
Iudgment
,
for
no
Writ
of
Error
lieth
upon
it
before
the
accompt
be
ended
:
Manwood
,
Regularly
,
after
Iudgment
,
no
privilege
shall
be
allowed
,
but
that
is
to
be
intended
of
a
Iudgment
ended
;
but
here
,
notwithstanding
this
Iudgment
,
the
Action
is
depending
,
and
therefore
he
conceived
that
the
privilege
should
be
allowed
in
this
case
.
It
was
objected
,
That
then
the
Plaintiff
should
be
at
great
mischief
,
for
he
should
lose
the
advantage
of
his
Trial
;
for
he
must
begin
again
,
and
plead
again
,
and
have
a
new
Trial.
Clark
,
the
Plaintiff
shall
have
benefit
of
his
former
Trial
by
way
of
Evidence
.
XCII
.
Brian
and
Cawsen
's
Case
.
Trin.
27
Eliz.
In
the
Common-Pleas
.
Rot.
1353.
William
Gardiner
was
seised
in
Fee
,
according
to
the
custome
of
the
Manor
of
C.
of
certain
Lands
,
and
surrendred
them
to
the
use
of
his
last
Will
;
by
which
he
devised
them
in
this
manner
;
i.
I
bequeath
to
John
Th.
my
House
and
Land
in
M.
called
Larks
and
Sone
:
To
Steph.
Th.
my
House
and
Land
,
called
Stokes
and
Newmans
,
and
to
Roger
Th.
my
House
and
Lands
,
called
Lakins
and
Brox.
Moreover
,
If
the
said
John
,
Stephen
or
Roger
,
live
till
they
be
of
lawfull
age
,
and
have
issue
of
their
bodies
,
lawfully
begotten
,
then
I
give
the
said
Lands
and
Houses
to
them
and
their
Heirs
in
manner
aforesaid
,
to
give
and
sell
at
their
pleasure
;
but
if
it
fortune
one
of
them
to
die
without
issue
of
his
body
,
lawfully
begotten
,
Then
I
will
that
the
other
brothers
,
or
brother
,
have
all
the
said
Houses
and
Lands
in
manner
aforesaid
:
and
if
it
fortune
the
three
to
die
without
issue
,
in
like
manner
,
Then
I
will
,
that
all
the
said
Houses
and
Lands
be
sold
by
my
Executor
,
or
his
Assigns
,
and
the
money
to
be
given
to
the
poor
:
The
Devisor
dieth
;
John
,
Stephen
and
Roger
are
admitted
according
to
the
intent
of
the
Will
,
Roger
dieth
within
age
,
without
issue
,
John
and
Stephen
are
admitted
to
his
part
,
John
comes
of
full
age
,
and
hath
issue
,
J.
and
surrenders
all
his
part
of
the
whole
,
and
his
Estate
therein
,
,
to
the
use
of
Stephen
and
his
heirs
,
who
is
admitted
accordingly
;
Stephen
comes
of
full
age
,
John
the
father
dieth
,
Stephen
dieth
without
issue
,
John
the
son
,
as
cosin
and
heir
of
Stephen
is
admitted
,
according
to
the
Will
,
and
afterwards
dieth
without
issue
,
The
Wives
of
the
Plaintiffs
are
heirs
to
him
,
and
are
admitted
to
the
said
Lands
,
called
Larks
and
Sone
,
and
to
the
moyety
of
the
Lands
,
called
Lakins
and
Brox
,
parcell
of
Lands
where
,
&c.
by
force
whereof
they
enter
into
all
the
Lands
where
the
Trespass
is
done
,
and
it
was
found
,
That
A.
sole
Executor
,
died
intestate
,
and
that
Cawsen
the
Defendant
is
cosin
and
heir
of
the
Devisor
,
and
that
he
as
heir
,
entred
,
and
did
the
Trespass
.
First
,
it
was
agreed
by
all
,
That
by
the
first
words
of
the
Will
,
the
three
Devisees
had
but
for
their
lives
.
But
Fenner
and
Walmesley
,
who
argued
for
the
Plaintiffs
conceived
,
that
by
force
of
the
latter
words
(
scil.
)
If
the
said
John
,
Stephen
and
Roger
,
live
till
they
be
of
lawfull
age
,
and
have
issue
of
their
body
,
lawfully
begotten
,
Then
I
give
the
said
Lands
and
Houses
to
them
and
their
heirs
,
in
manner
aforesaid
,
&c.
that
they
have
Fee
;
and
the
words
(
in
manner
aforesaid
)
are
to
be
referred
,
not
to
the
Estate
which
was
given
by
the
first
words
,
which
was
but
for
life
,
but
to
make
them
to
hold
in
severalty
,
as
the
first
Devise
would
,
and
not
jointly
,
as
the
words
of
the
second
Devise
do
purport
:
And
Fenner
said
,
It
had
been
resolved
by
good
opinion
,
That
where
a
Fine
was
levied
to
the
use
of
the
Conusee
and
his
Wife
,
and
of
the
heirs
of
the
body
of
the
Conusor
,
with
divers
Remainders
over
,
Proviso
,
That
it
should
be
lawfull
to
the
survivor
of
them
,
to
make
Leases
of
the
said
Lands
in
such
manner
as
Tenant
in
tail
might
make
by
the
Statute
of
32
H.
8.
Although
those
Lands
were
never
devised
before
the
Fine
,
yet
the
Wife
survivor
,
might
demise
them
by
force
of
the
Proviso
,
notwithstanding
the
words
in
manner
,
&c.
So
if
Lands
be
given
to
A.
for
life
,
upon
condition
,
the
remainder
to
B.
in
manner
aforesaid
;
these
words
,
in
manner
aforesaid
,
shall
refer
unto
the
Estate
for
life
limited
to
A.
and
not
to
the
Condition
,
nor
to
any
other
collateral
matter
.
The
words
,
If
they
live
untill
they
be
of
full
age
,
and
have
issue
,
are
words
of
Condition
,
and
shall
not
be
construed
to
such
purpose
,
to
give
to
them
by
implication
an
Estate
tail
;
for
the
words
subsequent
are
,
That
they
shall
have
to
them
and
their
heirs
,
to
give
and
sell
at
their
pleasures
,
by
which
it
appeareth
,
that
his
intent
was
not
to
make
an
Estate
tail
;
for
Tenant
in
tail
cannot
alien
or
dispose
of
his
Estate
,
&c.
And
as
to
the
latter
words
,
And
if
it
fortune
they
three
to
die
without
issue
,
&c.
these
words
cannot
make
an
Estate
tail
,
and
the
express
limitation
of
Fee
in
the
former
part
of
the
Will
,
shall
not
be
controlled
by
implication
,
out
of
the
subsequent
words
:
As
if
Lessee
for
fourty
years
deviseth
his
term
to
his
Wife
for
twenty
years
,
and
if
she
die
,
the
remainder
of
the
term
to
another
,
although
she
survive
the
twenty
years
,
she
shall
not
hold
over
.
And
here
,
the
second
sale
appointed
to
be
made
by
the
Executor
,
shall
not
take
away
the
power
of
the
first
sale
allowed
unto
the
Devisees
after
issue
.
Snagg
and
Shuttleworth
,
Serjeants
,
to
the
contrary
:
And
they
said
,
that
the
Defendant
hath
right
to
two
parts
,
for
no
Inheritance
vesteth
in
the
Devisees
until
full
age
and
issue
;
and
because
two
of
the
Devisees
died
without
issue
,
they
never
had
an
Inheritance
in
their
two
parts
,
and
so
those
two
parts
do
descend
to
the
Defendant
,
as
heir
to
the
Devisor
,
no
sale
being
made
by
the
Executor
;
These
words
,
If
John
,
Stephen
and
Roger
,
are
to
be
taken
Distributive
,
viz.
If
John
live
,
&c.
are
to
be
taken
Distributive
(
scil.
)
If
John
live
untill
,
&c.
he
shall
have
Inheritance
in
his
part
,
Et
sic
de
reliquis
:
As
if
I
have
right
unto
Lands
which
A.
B.
and
C.
hold
in
common
,
and
I
by
Deed
release
unto
them
all
,
the
same
shall
inure
to
them
severally
,
19
H.
6.
And
here
,
these
latter
words
,
If
they
three
die
without
issue
,
it
seems
to
be
but
an
Estate
tail
:
See
to
that
purpose
,
35
Ass.
14.
37
Ass.
15.
For
a
man
cannot
declare
his
intent
at
once
,
but
in
several
parts
;
all
which
make
but
one
Inheritance
,
and
so
it
is
said
by
Persay
,
37
Ass.
15.
we
ought
to
adjudge
upon
all
the
Deed
,
and
not
upon
parcell
.
And
see
Clatche's
Case
,
16
Eliz.
Dyer
330
,
331.
And
it
was
said
,
That
if
I
give
Lands
to
one
and
his
heirs
,
as
long
as
J.
S.
hath
heirs
of
his
body
,
the
same
is
a
Fee-simple
determinable
,
and
not
an
Estate
tail
,
Quaere
of
that
.
Then
here
the
Fee-simple
is
determined
by
the
death
of
the
Devisees
without
issue
,
and
therefore
the
Lands
shall
revert
to
the
heir
of
the
Devisor
,
especially
there
being
no
person
in
rerum
natura
,
who
may
sell
,
for
the
Executor
before
any
sale
by
him
made
,
died
intestate
;
and
if
he
had
made
Executors
,
yet
the
Executor
of
the
Executor
could
not
sell
,
which
see
,
19
H.
8.
9
,
10.
And
afterwards
,
the
Iustices
resolved
,
That
no
Estate
tail
is
created
by
the
Will
,
but
that
the
Fee-simple
is
settled
in
them
when
they
came
to
their
lawfull
age
,
and
have
issue
;
so
as
the
residue
of
the
Devise
is
void
:
And
Iudgment
was
given
for
the
Plaintiffs
.
XCIII
.
Hil.
29
Eliz.
in
the
Common
Pleas.
THE
Case
was
this
,
(
viz.
)
By
the
Civil
Law
the
Parson
ought
to
have
his
Tythe
by
the
tenth
Ridg:
And
in
a
great
Field
there
was
Corn
upon
the
Arable
Land
,
XCIV
.
29
Eliz.
Challoner
and
Bowyer
's
Case
.
IN
Assise
of
Novel
Disseisin
by
Challoner
against
Bowyer
,
it
was
given
in
Evidence
at
the
Assise
,
That
William
Bowyer
was
seised
,
and
having
issue
two
Sons
,
and
two
Daughters
,
devised
his
Lands
to
his
younger
Son
in
tail
,
and
for
want
of
such
issue
,
to
the
Heirs
of
the
body
of
his
eldest
Son
;
and
if
he
die
without
issue
,
that
then
the
Land
shall
remain
to
his
two
Daughters
in
Fee
:
William
Bowyer
dieth
,
the
younger
Son
dieth
without
issue
,
living
the
eldest
Son
,
having
issue
him
who
is
Tenant
in
the
Assise
:
It
was
moved
,
That
notwithstanding
that
by
way
of
Grant
,
the
Son
,
living
his
Father
,
cannot
take
as
heir
,
i.
by
limitation
,
as
Heir
to
his
Father
,
because
that
none
can
be
said
or
held
Heir
to
his
Father
as
long
as
the
Father
be
alive
;
yet
by
way
of
Devise
the
Law
shall
favour
the
intention
of
the
party
,
and
the
intent
of
the
Devisor
shall
prevail
.
But
all
the
Court
was
strongly
against
it
,
and
held
,
that
as
well
in
Case
of
Devise
,
as
of
Grant
,
all
is
one
.
Whereupon
the
Tenant
produced
Witnesses
,
who
affirmed
upon
their
Oaths
,
That
the
Devisor
declared
his
meaning
concerning
the
said
Will
,
That
as
long
as
his
eldest
Son
had
issue
of
his
body
,
that
the
Daughters
should
not
have
the
Land
:
but
the
Court
utterly
rejected
the
matter
;
and
Iudgment
was
given
for
the
Plaintiff
.
XCV
.
the
Countess
of
Linnox
Case
.
29
Eliz.
In
the
Exchequer
.
IN
this
Case
it
was
said
by
Manwood
chief
Baron
,
That
whereas
the
Cistercians
,
&c.
had
a
Privilege
,
that
they
should
not
pay
Tithes
for
their
Lands
,
quas
propriis
manibus
excolant
,
but
their
Fermors
should
pay
Tithes
:
and
now
by
the
Statute
of
31
H.
8.
they
are
dissolved
,
That
the
Queen
and
her
Fermors
should
be
discharged
of
such
Tithes
as
the
spiritual
persons
were
:
for
the
Queen
cannot
excolere
;
ergo
,
her
Fermors
shall
be
discharged
:
and
so
long
as
the
Queen
hath
the
Freehold
,
her
Fermors
shall
have
such
Privilege
,
although
she
Leaseth
for
years
,
or
at
Will
:
But
if
the
Queen
granteth
over
the
Reversion
,
then
the
Fermors
shall
pay
Tithes
.
XCVI
.
Golding
's
Case
.
Mich.
29
Eliz.
In
the
King's-Bench
.
IN
an
Action
upon
the
Case
against
Gloding
,
the
Case
was
;
Virtute
cujus
quidem
dimissionis
:
and
the
Lessee
entred
Crast
.
Sanct.
Mich.
which
was
before
the
making
of
the
Lease
:
And
upon
the
Grant
of
these
two
Leases
,
the
consideration
of
Assumpsit
was
grounded
in
an
Action
of
the
Case
thereupon
,
and
six
hundred
pounds
damages
given
:
And
now
this
was
moved
in
Arrest
of
Iudgment
.
Coke
for
the
Plaintiff
;
Where
two
Considerations
are
laid
down
in
the
Declaration
,
although
that
the
one
be
void
,
yet
if
the
other
be
sufficient
,
the
Action
upon
the
Assumpsit
lieth
,
and
damages
shall
be
taken
accordingly
.
And
the
Grant
upon
the
Assumpsit
was
,
That
both
the
Leases
should
be
assigned
to
the
Defendant
;
and
the
Plaintiff
hath
declared
accordingly
,
although
that
one
of
the
Leases
be
void
:
And
the
Agreement
was
,
That
the
Plaintiff
should
assign
totum
statum
,
titulum
,
&
interesse
suum
quae
habet
in
,
&c.
It
appears
here
in
the
Pleading
,
That
the
Lease
was
made
the
eighteenth
of
October
,
and
the
Lessee
did
enter
,
and
was
thereof
possessed
,
Crast
.
Mich.
which
was
before
,
and
so
the
Lessee
then
entering
was
a
Disseisor
,
But
by
Coke
,
the
same
is
not
a
Disseisin
,
although
that
the
Lessee
entreth
before
the
Lease
made
;
for
there
was
a
communication
of
a
Lease
,
although
the
Lease
was
not
made
before
the
eighteenth
of
October
;
and
peradventure
it
was
by
assent
of
the
Lessor
,
in
which
case
it
cannot
be
a
Disseisin
:
but
be
it
a
Disseisin
,
yet
in
as
much
as
he
hath
assigned
all
his
interest
,
quod
ipse
tunc
habuit
,
the
Consideration
is
answered
;
and
he
hath
also
delivered
both
the
Indentures
of
Demise
,
and
hath
granted
all
that
which
he
might
grant
;
be
such
Grant
void
or
good
,
it
is
good
Consideration
enough
as
to
us
.
Egerton
,
Solicitor
,
contrary
;
In
every
Action
upon
the
Case
upon
a
Promise
,
there
are
three
things
considerable
,
Consideration
,
Promise
and
Breach
of
Promise
;
As
to
the
Consideration
in
our
Case
,
the
Grant
of
the
Lease
,
which
is
to
begin
after
the
death
of
the
Lessor
,
is
merely
void
.
And
as
to
the
second
Consideration
,
it
appeareth
,
That
the
Lessor
at
the
time
of
the
making
of
the
Lease
had
but
a
Right
,
for
he
was
disseised
;
for
he
who
was
afterwards
the
Lessee
entred
before
he
had
any
Lease
made
unto
him
;
and
so
here
is
not
any
consideration
to
ground
the
Assumpsit
upon
:
But
admit
that
there
be
a
consideration
,
yet
the
Action
doth
not
lie
:
For
19
Eliz.
a
difference
was
taken
by
the
Iustices
,
(
scil.
)
When
in
the
Declaration
in
an
Action
upon
the
Case
,
two
or
more
considerations
are
laid
,
and
are
not
collateral
,
but
pursuant
:
As
if
I
owe
you
an
hundred
pounds
,
and
I
say
,
That
in
consideration
that
I
owe
you
100
l.
and
in
consideration
that
you
shall
give
me
10
l.
I
promise
to
pay
unto
you
the
said
hundred
pounds
which
I
owe
you
:
If
you
bring
an
Action
upon
the
Case
against
me
for
the
hundred
pounds
,
and
lay
in
your
Declaration
both
considerations
,
although
you
do
not
pay
me
the
ten
pounds
,
yet
the
Action
lieth
:
But
where
the
considerations
are
not
pursuant
,
but
meerly
collateral
,
and
do
not
depend
the
one
upon
the
other
,
As
in
consideration
that
you
are
of
my
Councel
,
and
you
shall
ride
with
me
to
York
,
I
promise
to
give
to
you
an
hundred
pounds
;
there
both
considerations
ought
to
be
performed
,
or
otherwise
the
Action
doth
not
lie
:
and
so
here
in
the
principal
Case
;
the
considerations
being
collateral
,
they
both
ought
to
be
performed
.
Afterwards
,
upon
consideration
had
of
the
Case
by
the
Court
,
Iudgment
was
given
for
the
Plaintiff
:
and
it
was
said
by
Coke
,
That
there
was
not
any
Disseisin
in
the
Case
,
but
he
who
entred
was
Tenant
at
sufferance
,
by
reason
of
the
precedent
communication
.
XCVII
.
Curtise
and
Cottel
's
Case
.
Trin.
28
Eliz.
In
the
King's-Bench
.
THE
Case
was
this
,
That
one
Bonham
was
seised
of
a
Manor
,
within
which
there
were
divers
Customary
Lands
demisable
by
Copy
for
three
lives
:
The
Lord
of
the
Manor
did
demise
some
of
those
Lands
to
three
Sisters
,
Habendum
to
them
for
their
lives
successive
,
for
the
Fine
of
100
l.
by
them
paid
;
and
they
being
seised
accordingly
,
the
eldest
Sister
,
who
was
Tenant
in
possession
,
took
to
Husband
one
Chapman
;
after
which
the
said
Lord
by
Indenture
leased
the
same
Land
to
the
eldest
Sister
,
the
Remainder
to
the
Husband
,
the
Remainder
to
the
second
Sister
,
and
no
Agreement
was
made
thereunto
by
the
second
Sister
by
Deed
,
before
or
after
the
making
of
the
Indenture
;
but
four
days
after
the
Lease
made
she
agreed
to
it
in
the
Country
,
and
then
took
to
Husband
Curtise
,
and
they
entred
,
claiming
the
said
Land
,
upon
which
Entry
the
Action
was
brought
:
The
point
was
,
That
when
the
Lease
by
Indenture
was
made
to
the
eldest
Sister
,
at
which
time
no
agreement
was
made
by
the
second
Sister
who
was
in
Remainder
;
yet
when
after
she
agreed
,
If
by
that
Agreement
her
Right
to
the
Copihold
were
extinct
,
or
not
?
so
as
the
interest
of
the
eldest
Sister
being
gone
by
the
acceptance
of
the
Estate
by
the
Indenture
,
the
second
Sister
might
come
and
claim
her
customary
interest
,
as
it
were
paramount
the
interest
of
the
eldest
Sister
,
which
she
claimed
by
the
Indenture
.
Glanvil
,
The
customary
interest
of
the
eldest
Sister
is
extinct
upon
this
matter
,
by
reason
of
her
agreement
to
it
afterwards
.
Where
an
Estate
is
given
to
one
by
a
lawfull
act
,
it
shall
be
adjudged
in
the
party
before
agreement
,
until
it
be
disagreed
unto
;
and
if
the
party
do
once
agree
,
he
cannot
afterwards
disagree
unto
it
.
If
an
Estate
be
lawfully
made
to
a
Copyholder
but
for
years
,
his
whole
interest
in
the
Copyhold
is
determined
:
and
that
a
Freehold
cannot
be
waived
in
pais
,
but
onely
by
matter
of
Record
:
See
13
R.
2.
Joynt-tenants
13.
A
Charter
of
Feoffment
was
made
to
four
,
and
Seisin
was
delivered
to
three
of
them
in
the
name
of
them
all
;
and
afterwards
the
fourth
Feoffee
came
and
saw
the
Deed
,
and
said
,
That
she
would
not
have
any
thing
in
the
Lands
,
but
altogether
disagree
unto
it
;
and
it
was
,
that
that
disagreement
by
word
in
pais
did
not
devest
the
Freehold
out
of
her
:
But
when
the
party
doth
disagree
in
a
Court
of
Record
,
there
the
Freehold
is
out
of
the
party
ab
initio
;
and
if
he
once
agree
,
he
shall
not
disagree
afterwards
.
See
Littl.
Sect.
648.
Tenant
in
tail
enfeoffeth
his
Son
and
Heir
apparent
,
and
another
,
and
Livery
and
Seisin
is
made
to
the
other
,
according
to
the
Charter
of
Feoffment
,
in
the
name
of
the
Son
also
,
the
Son
not
knowing
of
it
,
nor
disagreeing
to
the
Feoffment
;
the
other
Feoffee
dieth
,
the
Son
neither
occupies
the
Lands
nor
takes
the
profits
of
them
during
the
life
of
his
Father
;
the
Father
dieth
,
the
same
is
a
Remitter
to
the
Son
,
because
the
Freehold
is
cast
upon
him
,
and
there
is
no
default
in
him
,
and
therefore
he
is
remitted
:
But
upon
an
illegal
act
is
otherwise
;
for
if
A.
disseise
B.
to
the
use
of
C.
in
such
case
nothing
is
in
C.
before
an
express
Agreement
,
for
the
Disseisin
was
an
unlawfull
act
.
And
in
this
Case
at
Bar
,
it
doth
not
appear
that
the
eldest
Sister
is
dead
,
and
therefore
the
Right
of
the
second
Sister
cannot
now
come
in
question
.
Shute
,
Iustice
,
If
the
second
Sister
,
at
the
time
of
the
making
of
the
said
Indenture
,
had
agreed
unto
it
,
then
it
had
been
a
full
extiguishment
,
but
by
an
agreement
afterwards
it
is
not
good
.
Gawdy
,
Iustice
,
The
remainder
is
in
consideration
of
the
Law
;
and
the
Estate
of
the
first
Sister
is
not
so
determined
,
that
any
can
take
advantage
of
it
;
for
the
Lord
,
against
this
Lease
by
Deed
indented
,
cannot
enter
,
or
claim
any
thing
:
and
the
second
Sister
,
although
she
hath
not
agreed
,
yet
she
cannot
enter
during
the
life
of
her
elder
Sister
,
for
her
Remainder
takes
effect
in
possession
after
the
death
of
her
said
Sister
.
But
if
any
should
take
advantage
of
it
,
it
should
be
the
Lord
,
if
his
Deed
indented
did
not
stand
against
him
.
And
afterwards
Iudgment
was
given
against
the
younger
Sister
.
Clench
,
Iustice
,
was
of
another
Opinion
,
viz.
That
the
Entry
of
the
younger
Sister
,
notwithstanding
that
her
elder
Sister
was
alive
,
was
lawfull
:
Quaere
of
that
.
XCVIII
.
Wellock
's
Case
.
Trin.
28
Eliz.
In
the
King's-Bench
.
A
Parson
,
in
consideration
of
twelve
pence
,
granted
to
one
of
his
Parishioners
,
That
he
should
hold
his
Lands
discharged
of
Tithes
:
It
was
holden
by
the
whole
Court
,
That
the
same
was
no
good
Discharge
,
being
without
Deed
,
as
a
Lease
of
his
Tithes
.
But
it
was
holden
,
If
the
Parson
afterward
sueth
the
Parishioner
for
Tithes
against
the
same
Grant
and
Promise
,
the
Parishioner
may
have
an
Action
upon
the
Case
against
the
Parson
upon
his
Promise
,
although
he
cannot
plead
the
Grant
as
a
Lease
.
XCVIII
.
Lawson
and
Hare
's
Case
.
Trin.
28
Eliz.
In
the
Common
Pleas.
A
Replevin
by
Lawson
against
Hare
,
who
avowed
for
a
Leet
Fee
;
and
shewed
how
that
he
,
and
all
those
whose
Estate
he
hath
in
the
Hundred
of
C.
have
used
to
hold
a
Leet
,
once
every
year
;
and
that
at
each
time
,
when
such
Leet
hath
been
holden
,
the
Inhabitants
within
the
said
Leet
have
used
to
pay
to
the
Lord
of
the
Leet
16
d.
for
a
Leet
Fee
;
and
that
the
Lords
of
the
said
Leet
have
used
to
distrain
for
the
same
:
and
shewed
farther
,
that
5
Julii
26
Eliz.
he
held
there
a
Leet
,
&c.
The
Plaintiff
replied
,
Absque
hoc
,
that
they
had
used
to
distrain
;
and
issue
being
joyned
,
it
was
found
for
the
Defendant
.
It
was
moved
in
Arrest
of
Iudgment
,
because
,
that
the
Defendant
had
entitled
himself
to
a
Leet
,
by
an
Estate
in
the
Hundred
,
and
did
not
shew
a
Deed
of
it
,
which
was
said
,
he
ought
to
have
done
;
as
is
11
H.
4.
48.
And
of
such
opinion
was
Anderson
and
Windham
,
Iustices
.
Periam
and
Rhodes
Iustices
,
contrary
,
as
this
case
is
,
and
that
the
Avowant
need
not
shew
a
Deed
,
But
if
the
hundred
it self
had
been
in
question
,
then
a
Deed
ought
to
have
been
shewed
;
But
here
the
Avowant
entitles
himself
to
one
thing
,
(
scil.
)
a
Leet
,
and
a
Leet
Fee
,
by
reason
of
the
Hundred
,
and
it
is
sufficient
for
him
to
say
,
That
he
is
seised
of
the
Hundred
,
&c.
although
it
be
by
disseisin
:
for
if
he
hath
possession
of
the
Hundred
,
be
it
jure
,
vel
injuria
,
he
shall
have
also
all
things
incident
thereunto
,
for
the
possession
of
the
Hundred
draws
to
him
the
Leet
,
and
the
Leet
,
the
Leet
Fee.
But
admit
in
this
case
a
Deed
ought
to
be
shewed
,
Eliz.
cap
14.
and
such
defects
are
thereby
helped
.
And
by
Anderson
,
although
that
the
Avowant
be
Quasi
an
actor
,
yet
in
Rei
veritate
,
he
is
Defendant
:
For
although
that
he
is
to
have
retorn
of
the
Cattel
,
if
it
be
found
for
him
,
yet
he
who
fueth
the
Replevin
is
the
Plaintiff
,
and
if
the
Defendant
will
justifie
the
distress
,
and
not
avow
,
he
is
meerly
Defendant
,
and
not
a
Plaintiff
,
or
Actor
,
no
more
than
in
a
Pra●cipe
quod
reddat
,
The
Tenant
voucheth
and
recovereth
in
value
,
he
cannot
be
said
Plaintiff
,
or
Defendant
,
and
the
Avowant
cannot
be
Nonsuit
,
as
the
Plaintiff
.
But
Windham
and
Periam
were
of
a
contrary
opinion
;
For
Avowry
is
in
lieu
of
a
Declaration
,
and
the
Plea
of
the
Plaintiff
to
the
Avowry
,
is
not
called
a
Replication
,
but
a
bar
to
the
Avowry
.
But
admit
the
Avowry
be
within
the
Statute
,
then
if
the
Statute
of
Jeofailes
there
extend
to
help
it
?
And
Anderson
conceived
that
it
did
:
But
the
Plaintiff
might
have
demurred
upon
the
Avowry
for
the
not
shewing
the
Deed
,
and
Iudgment
should
have
been
given
for
him
;
but
when
he
hath
traversed
,
and
the
issue
found
against
him
,
now
it
shall
be
intended
,
that
Avowant
hath
a
Deed
,
although
he
hath
not
shewed
the
same
.
Another
Exception
was
taken
,
because
it
is
said
in
the
Avowry
,
That
the
said
Leet
was
holden
,
5
Julii
,
and
then
it
was
void
:
For
the
Statute
of
Magna
Charta
,
cap.
35
requires
,
that
Leets
be
holden
within
one
Month
after
Michaelmas
and
Easter
;
But
that
Exception
was
not
allowed
:
For
by
Anderson
,
Windham
and
Rhodes
,
by
force
of
the
Prescription
,
The
Lord
might
hold
his
Leet
what
day
he
pleased
,
and
that
his
Liberty
is
not
restrained
by
the
Statute
;
and
such
is
the
common
experience
:
for
the
same
Statute
provides
for
it
,
(
scil.
)
Quod
quilibet
habeat
libertates
suas
quas
habuit
,
&
habere
consuevit
tempore
Regis
H.
avi
nostri
,
vel
quas
postea
perquisiret
:
And
by
Rhodes
,
the
said
Statute
doth
not
extend
but
to
the
Sheriffs
Towns
,
and
not
to
other
Leets
,
which
see
Br.
Leets
,
23.
upon
the
Case
of
8
H.
7.
1.
which
was
affirmed
by
him
to
be
good
Law
;
Contrary
by
Periam
,
but
he
granted
,
that
if
a
Leet
hath
used
to
be
holden
at
one
day
certain
,
other
than
that
which
is
limited
by
the
said
Statute
,
the
same
may
so
continue
,
notwithstanding
the
Statute
,
for
such
Liberty
is
saved
by
the
Statute
.
And
by
Anderson
and
Rhodes
;
If
the
King
grant
to
one
a
Leet
to
hold
Semel
quolibet
anno
,
and
doth
not
say
,
Ad
libitum
of
the
Grantee
,
yet
the
Grant
is
good
,
and
the
Grantee
may
hold
it
at
what
day
he
will
.
C.
Goore
and
others
against
Dawbeny
.
13
Eliz.
In
the
Exchequer-Chamber
,
Error
.
A
Writ
of
Error
was
brought
in
the
Exchequer-Chamber
by
Goore
and
Goore
,
Swinnerton
and
Tedcastel
,
against
Dawbeny
,
of
a
Iudgement
given
against
them
in
the
Court
of
Exchequer
,
in
an
Action
upon
the
Case
,
in
the
nature
of
a
Conspiracy
brought
by
Dawbeny
,
&c.
who
declared
,
That
Goore
and
Goore
,
were
joint
Merchants
of
a
stock
of
many
wares
,
in
moyeties
transported
in
Barbary
,
and
Swinnerton
and
Tedcastel
were
their
Factors
,
and
Dawbeny
and
the
Goores
were
also
joint
Merchants
intire
of
Merchandizes
transported
,
&c.
And
the
said
Swinnerton
and
Tedcastel
were
their
Factors
therein
;
and
that
was
to
merchandize
for
two
years
;
and
shewed
farther
,
That
the
said
Plaintiffs
did
conspire
against
the
said
Dawbeny
(
See
the
Declaration
in
the
Number
Roll
,
for
I
could
not
take
it
in
brief
.
)
Coke
of
Councill
with
the
Plaintiff
assigned
the
Errors
;
because
Dawbeny
in
his
Declaration
hath
declared
,
that
they
were
joint
Merchants
(
scil.
)
the
now
Plaintiffs
,
and
have
conspired
against
him
,
and
hath
not
shewed
the
place
where
they
were
joint
Merchants
,
or
where
they
were
made
joint
Merchants
,
and
that
is
issuable
,
although
it
be
not
the
principal
thing
in
the
Declaration
;
for
that
is
the
fraud
:
As
where
Debt
is
brought
for
Rent
reserved
upon
a
Lease
for
years
the
principal
matter
is
the
Debt
,
and
the
principal
Issue
is
Nihil
debet
;
Yet
the
Demise
is
issuable
,
and
Non
dimisit
is
a
good
Plea
:
And
here
the
Defendant
by
the
Plea
of
Not
guilty
,
hath
not
lost
the
advantage
of
Exception
aforesaid
.
And
he
cited
a
great
Case
lately
adjudged
betwixt
Stansam
and
Matthew
,
in
an
Action
upon
the
Case
,
conceived
upon
the
Trover
of
a
Bond
and
the
Conversion
of
it
to
his
use
;
The
Defendant
pleaded
,
Not
guilty
,
and
it
was
found
against
him
;
And
because
in
the
Declaration
there
was
not
any
place
of
the
Conversion
,
Iudgment
was
stayed
.
Here
in
the
Declaration
are
two
things
,
First
,
the
Conspiracy
,
Secondly
,
the
execution
of
it
,
,
for
the
one
without
the
other
will
not
maintain
the
Action
,
but
here
the
Conspiracy
is
not
pursued
,
nor
executed
according
to
that
which
is
laid
to
be
conspired
.
The
Conspiracy
is
laid
,
That
the
Factor
upon
his
account
demanded
4000
l.
of
Barbary
money
,
per
nomen
bona
&
denariorum
summas
,
and
the
Execution
is
laid
,
That
he
demanded
in
allowance
of
wares
delivered
to
Isaac
Abess
:
And
he
took
a
general
rule
,
That
a
Commander
shall
never
be
charged
,
but
where
his
Commandment
is
strictly
and
precisely
pursued
.
Barbary
money
is
included
in
this
word
Bona
,
for
it
is
not
current
in
England
:
See
as
to
the
pursuing
of
the
Commandment
;
Sanders
and
Archer's
Case
,
Plow.
18
Eliz.
437.
And
in
our
Case
,
he
not
onely
puts
the
thing
,
but
also
the
person
,
for
the
Conspiracy
is
that
he
demanded
allowance
for
goods
delivered
to
Isaac
,
and
his
four
sons
,
for
Isaac
.
In
the
one
Case
it
is
pretended
,
That
Isaac
and
four
sons
are
Debtors
;
and
in
the
other
Case
Isaac
onely
:
Also
here
Dawbeny
hath
allowed
and
accepted
the
accompt
of
the
Factors
,
against
which
he
cannot
have
this
Action
;
for
it
is
ignorantia
crassa
,
idque
facti
,
quae
non
excusat
:
Also
upon
such
incertain
demand
as
is
laid
in
the
Declaration
,
Dawbeny
was
not
holden
to
make
allowance
:
i.
for
so
much
wares
upon
a
certain
bargain
made
with
Isaac
;
and
that
was
not
a
lawfull
demand
,
and
upon
such
uncertain
demand
,
he
was
not
bound
to
make
allowance
;
Et
hoc
modo
est
ignorantia
juris
quae
non
excusat
omnino
.
Also
here
Swinnerton
onely
accompts
and
demands
allowances
,
and
Swinnerton
onely
was
not
Factor
,
but
also
Tedcastel
,
and
therefore
Dawbeny
was
not
bounden
to
allow
that
accompt
to
Swinnerton
,
no
more
than
to
a
mere
stranger
:
And
also
Dawbeny
alone
was
not
to
make
allowance
,
for
the
two
Factors
were
accomptable
to
him
,
and
to
Goores
also
.
And
so
allowance
by
one
of
them
to
whom
they
are
accomptable
,
is
not
good
.
One
Executor
(
where
the
power
is
committed
to
two
)
sells
the
Land
,
the
sale
is
void
,
and
two
joint
Attorneys
,
&c.
one
onely
can
doe
nothing
:
And
here
in
this
Declaration
,
it
is
many
times
alledged
,
that
they
were
conjunctim
Mercatores
,
conjunctim
Factores
;
But
I
confess
,
that
one
joint
Factor
,
with
the
express
consent
of
his
companion
,
may
accompt
alone
;
and
so
of
the
other
,
one
may
by
express
consent
take
an
Accompt
onely
.
One
Factor
is
no
Factor
where
there
are
many
joint
Factors
;
and
in
our
Case
,
the
two
Goores
and
Dawbeny
saw
the
accompt
,
but
Dawbeny
onely
allowed
of
it
,
and
that
is
not
good
:
As
if
two
Arbitrators
are
,
and
one
onely
makes
the
award
,
although
both
hear
the
matter
.
14
E.
3.
Fitz.
Acc.
72.
That
the
one
Accomptant
cannot
accompt
without
his
companion
;
but
there
Parn
saith
,
That
it
had
been
adjudged
,
6
E.
3.
that
the
one
might
accompt
without
the
other
:
See
41
E.
3.
3.
&
9.
Tamworth's
Case
.
Tanfield
contrary
:
As
to
the
first
Error
,
it
is
but
conveyance
and
matter
of
inducement
to
the
fraud
and
conspiracy
,
which
is
the
principal
point
of
the
Action
;
and
therefore
needeth
not
to
be
so
precisely
alledged
:
and
also
by
the
general
issue
,
they
have
passed
the
advantage
of
it
,
and
all
the
special
matter
of
the
Count
is
contained
in
the
general
issue
;
for
not
guilty
,
goes
to
all
,
and
includes
the
whole
.
Also
upon
the
matter
,
the
Iury
hath
found
that
they
were
joint
Merchants
;
and
although
they
were
joint
Factors
,
and
the
one
onely
hath
accompted
,
yet
the
same
accompt
is
good
enough
,
for
it
was
made
with
the
consent
of
the
other
,
as
appeareth
by
the
Declaration
.
Conspiraverunt
,
&
agreaverunt
,
that
Swinnerton
in
his
accompt
,
peteret
allowance
,
&c.
so
there
was
consent
to
take
the
accompt
,
&c.
and
6
E.
3.
it
is
adjudged
ut
supra
.
And
that
the
one
joint
Factor
may
accompt
without
his
companion
,
is
the
Law
of
Merchants
;
for
Factors
are
oftentimes
dispersed
,
so
as
they
cannot
be
both
present
at
their
accompts
,
and
so
it
hath
been
heretofore
allowed
in
the
King's-Bench
:
And
as
to
that
that
Dawbeny
onely
hath
given
allowance
to
this
accompt
,
the
same
is
good
enough
:
If
I
promise
to
two
to
doe
any
act
,
the
one
of
them
may
discharge
me
from
it
,
and
that
by
word
,
for
it
is
but
a
personal
thing
:
Two
joint-tenants
of
a
Manor
grant
the
Stewardship
thereof
to
one
,
and
20
l.
per
ann
.
for
the
exercise
of
it
;
if
the
one
discharge
him
,
it
is
a
good
discharge
as
to
the
service
,
but
yet
he
shall
have
his
Fee
:
If
the
Lord
of
the
Manor
grant
the
Stewardship
thereof
to
another
,
taking
10
l.
per
ann
.
of
the
issues
and
profits
of
his
Court
there
for
his
Fee
:
and
afterwards
the
Lord
dischargeth
the
Steward
,
the
same
is
void
;
for
it
is
a
disadvantage
to
the
Steward
,
for
he
cannot
have
his
Fee
,
if
no
Courts
be
holden
;
but
if
the
Fee
be
limited
to
issue
out
of
Lands
,
there
such
discharge
is
good
;
for
there
the
Steward
shall
have
his
Fee
although
that
no
Courts
be
holden
there
,
See
18
E.
4.
8.
to
that
purpose
.
Egerton
,
Solicitor
,
to
the
contrary
;
although
(
as
hath
been
objected
)
the
matter
of
joint
Merchant
be
but
matter
of
inducement
,
it
is
notwithstanding
material
,
and
without
it
the
Action
will
not
lie
:
In
Debt
,
upon
Arbitrament
,
The
Plaintiff
in
his
Declaration
,
ought
to
shew
the
submission
;
and
although
the
Defendant
pleadeth
,
Nihil
debet
,
yet
if
the
place
of
the
submission
be
not
shewed
in
the
Declaration
,
all
is
naught
;
for
although
that
it
be
but
inducement
,
yet
it
is
a
material
inducement
;
for
if
no
submision
,
no
award
,
and
if
no
award
,
no
Debt
,
and
then
no
cause
of
Action
.
The
Case
of
14
E.
3.
cited
before
,
there
the
Accomptants
by
their
Deed
,
or
jointly
,
or
severally
accomptable
at
the
pleasure
of
him
to
whom
,
&c.
Also
,
because
it
is
set
forth
in
the
Declaration
,
that
they
were
joint
Merchants
of
wares
,
adventured
into
Barbary
,
for
the
space
of
two
years
;
the
Factor
in
praying
of
allowance
,
ought
to
shew
what
wares
were
adventured
into
Barbary
within
the
said
two
years
.
Conspiracy
is
a
thing
odious
,
and
ought
to
be
directly
proved
;
and
it
is
not
reason
,
that
that
which
he
himself
hath
once
allowed
,
he
himself
shall
after
defeat
it
,
as
here
he
attempts
.
And
he
relied
much
upon
the
variance
between
the
Conspiracy
and
the
execution
of
it
moved
before
by
Coke
,
where
by
the
Conspiracy
,
Isaac
is
made
the
Debtor
,
with
his
four
sons
;
and
in
the
Execution
,
Isaac
is
made
the
onely
Debtor
,
and
to
that
point
,
he
vouched
the
Case
,
3
&
4
Ph.
&
Ma.
betwixt
Brown
and
Nevil
,
That
an
award
was
to
be
performed
,
(
scil.
)
an
award
made
between
Joh.
Brown
,
for
,
and
in
the
behalf
of
John
Moore
on
the
one
part
,
and
R.
Nevil
on
the
other
part
;
and
did
not
shew
that
Moore
made
the
submission
,
and
for
that
cause
it
was
holden
naught
:
For
Moore
was
a
principal
person
in
the
award
,
and
Brown
but
a
servant
,
&c.
So
in
our
Case
for
Isaac
.
Popham
,
Attorney
General
,
in
an
Action
upon
the
Case
,
The
Plaintiff
declares
,
Quod
cum
the
Defendant
was
indebted
to
the
Plaintiff
in
20
l.
he
promised
to
pay
to
the
Plaintiff
20
l.
Here
it
needs
not
,
that
the
Plaintiff
shew
in
his
Declaration
,
the
place
or
time
in
which
the
Defendant
became
his
debtor
,
for
the
promise
is
the
principal
matter
,
and
the
other
matter
is
but
inducement
:
So
if
A.
in
consideration
that
I
at
his
request
have
married
his
daughter
,
promised
to
pay
to
me
100
l.
In
an
Action
upon
the
Case
brought
by
me
upon
this
promise
,
it
is
not
necessary
that
I
shew
the
place
where
I
married
his
daughter
.
In
all
personal
things
,
where
two
are
chargeable
to
two
,
the
one
may
satisfie
it
,
and
one
may
accept
of
satisfaction
,
and
bind
his
companion
,
and
yet
the
one
cannot
have
an
Action
without
his
companion
,
nor
both
onely
against
one
,
18
E.
4.
3.
Two
joint
tenants
of
a
Manor
have
one
Bailiff
of
it
,
the
one
of
them
assigns
Auditors
to
the
Bailiff
,
who
accompts
,
and
is
found
in
arrearages
,
the
same
is
a
good
accompt
,
and
it
is
holden
there
,
that
both
,
&c.
may
have
Debt
upon
the
arrearages
of
the
accompt
taken
by
the
manner
.
And
if
one
may
assign
Auditors
,
he
may
also
take
accompt
,
and
discharge
the
accomptant
against
his
companion
.
And
he
conceived
,
That
this
allowance
of
the
accompt
by
Dawbeny
,
did
not
exclude
him
of
his
Actions
,
but
rather
gave
him
cause
of
Action
,
Nam
Laesus
non
esset
,
nisi
credidisset
;
and
the
Bailiff
of
my
Husbandry
,
who
bargains
and
sells
for
me
,
if
upon
his
accompt
to
me
,
he
alledgeth
and
surmiseth
,
that
he
hath
sold
my
Cattel
to
one
who
is
decayed
,
and
upon
that
surmise
I
allow
his
accompt
;
afterwards
,
Re
comperta
,
I
shall
have
an
Action
of
Deceit
:
And
in
this
very
Case
at
the
Bar
,
it
was
holden
in
the
King's-Bench
,
That
Dawbeny
,
notwithstanding
his
allowance
of
this
false
accompt
,
should
have
his
Action
,
&c.
Note
that
afterwards
,
viz.
Trin.
32
Eliz.
The
Iudgment
given
for
Dawbeny
was
reversed
.
CI.
Sir
William
Waller
's
Case
.
Trin.
31
Eliz.
In
the
Exchequer
.
IN
this
Case
it
was
moved
by
Winter
,
Manwood
,
I
grant
,
that
if
one
hath
sued
forth
a
Writ
of
Execution
,
and
that
be
continued
by
Vicecomes
non
misit
breve
,
for
two
or
three
years
,
yet
the
Plaintiff
may
proceed
thereupon
,
and
shall
not
be
put
to
a
Scire
facias
:
but
if
such
Writ
be
sued
forth
,
and
not
continued
,
but
discontinued
by
a
year
and
a
day
,
he
shall
be
put
to
a
Scire
facias
,
for
it
is
negligence
of
the
Plaintiff
of
not
continuing
of
it
,
which
within
the
year
and
day
he
might
without
Order
of
the
Court
,
but
after
the
year
not
by
any
Order
of
the
Court
,
&c.
CII
.
Griffin
's
Case
.
Trin.
31
Eliz.
In
the
Exchequer
.
IT
was
holden
in
this
Case
,
That
if
Lessee
for
years
of
a
Messuage
grants
totum
Messuagium
suum
,
the
Grantee
hath
but
at
Will
;
but
if
he
grant
all
his
Interest
and
Estate
in
such
a
Messuage
,
then
the
whole
Lease
passeth
:
and
so
it
was
said
to
have
been
lately
adjugded
in
the
Case
of
one
Winnibank
in
the
King's-Bench
.
CIII
.
Seckford
and
Wolverston
's
Case
.
Psach
.
26
Eliz.
In
the
King's-Bench
.
THE
Plaintiff
being
Bailiff
of
the
Liberty
of
Esheld
,
in
the
County
of
Suffolk
,
the
Sheriff
of
the
said
County
directed
a
Warrant
unto
him
to
arrest
the
Defendant
upon
a
Latitat
retornable
in
the
King's-Bench
;
by
force
of
which
the
Defendant
being
arrested
,
became
bound
in
the
Obligation
upon
which
the
Action
is
brought
;
the
Condition
of
which
is
,
That
if
the
Defendant
personally
appear
in
the
King's
Bench
at
Westminster
,
and
there
to
answer
,
&c.
It
was
moved
,
that
the
Obligation
was
void
by
the
Statute
of
23
H.
6.
For
the
form
which
the
said
Statute
prescribes
for
Obligations
to
be
taken
by
the
Sheriff
,
is
according
to
these
words
,
Appear
at
the
day
contained
in
the
Bill
,
Writ
or
Warrant
,
and
in
such
place
,
&c.
and
that
all
Bonds
taken
in
other
form
shall
be
void
.
As
to
the
words
of
surplusage
[
personally
]
the
Iustices
were
of
opinion
,
that
the
Obligation
was
well
enough
,
notwithstanding
that
because
,
as
the
Case
is
,
the
appearance
of
the
Defendant
ought
to
be
in
person
upon
a
Latitat
,
for
the
Defendant
is
supposed
to
be
in
Custodia
Mariscal
.
And
so
it
hath
been
adjudged
in
the
Common-Pleas
,
where
the
appearance
of
the
party
arrested
is
de
jure
personal
,
&c.
contrary
where
personal
appearance
is
not
requisite
.
As
to
the
other
matter
[
and
there
to
answer
]
Wray
put
a
difference
,
where
the
words
are
[
there
to
answer
]
that
the
Bond
is
well
enough
,
for
it
is
no
more
in
effect
,
but
that
he
shall
appear
eo
animo
ut
respondeat
.
But
if
the
words
had
been
[
Appear
and
Answer
]
the
same
is
a
void
Condition
,
for
it
may
be
that
the
Plaintiff
will
never
declare
against
him
:
But
Gawdy
and
Ayliff
,
Iustices
,
were
of
a
contrary
opinion
,
and
that
the
Bond
was
void
by
reason
of
the
words
aforesaid
:
but
the
Court
would
not
give
Iudgment
against
the
Plaintiff
,
but
ex
gratia
Curiae
suffered
the
Plaintiff
to
discontinue
his
Action
.
CIV
.
Partridg
and
Pool
's
Case
.
Pasc.
26
Eliz.
In
the
King's-Bench
.
IN
an
Action
of
Trespass
by
Partridg
against
Pool
,
de
aliqua
transgressione
in
Com.
Ebor.
upon
which
issued
a
Venire
facias
into
Yorkshire
,
and
as
the
book
is
,
the
Traverse
to
the
County
was
taken
with
great
deliberation
,
&c.
prout
,
&c.
See
also
22
E.
4.
39.
And
the
Traverse
de
jure
ought
to
be
allowed
,
for
the
Iury
of
Midd.
are
not
bounden
to
find
the
Assault
in
the
County
of
Glocester
:
See
2
Ma.
Br.
Jurors
50.
In
Actions
upon
transitory
matters
,
although
they
be
laid
in
Foreign
Counties
,
yet
the
Iurors
,
if
they
will
,
may
give
their
Verdict
,
but
they
are
not
bounden
to
it
.
Egerton
,
Solicitor
,
contrary
;
And
he
put
a
difference
,
where
the
justification
is
local
,
and
where
transitory
:
As
in
false
Imprisonment
the
Defendant
justifies
,
as
Sheriff
,
the
taking
of
the
Plaintiff
by
virtue
of
a
Capias
directed
to
him
at
D.
within
the
County
of
G.
where
the
Plaintiff
declares
of
an
Imprisonment
in
another
County
,
there
the
Traverse
of
the
County
is
good
;
for
the
Defendant
could
not
take
the
Plaintiff
by
force
of
the
said
Process
in
any
other
County
,
than
where
he
himself
is
Sheriff
,
and
so
the
justification
is
local
:
11
H.
4.
157.
But
in
our
case
the
matter
of
the
justification
is
merely
transitory
.
And
at
last
,
after
many
motions
,
it
was
adjudged
,
That
in
the
principal
Case
the
County
was
not
Traversable
;
and
so
Iudgment
was
given
for
the
Plaintiff
;
Gawdy
,
Iustice
,
being
of
a
contrary
Opinion
:
but
by
Wray
clearly
,
The
Iurors
are
bounden
,
upon
pain
of
Attaint
,
to
take
notice
of
such
a
transitory
thing
done
in
another
County
:
which
see
2
Ma.
Br.
Attaint
134.
9
H.
6.63
.
CV
.
Daw
's
and
Mollins
's
Case
.
Pasc.
26
Eliz.
In
the
King
's
Bench.
IN
an
Attachment
upon
a
Prohibition
by
Daws
against
Mollins
,
for
that
the
Defendant
traxit
Querent
.
in
Curiam
Christian
.
for
Tithes
of
great
Trees
,
sub
nomine
sylvae
ceduae
:
The
Defendant
pleaded
,
that
the
Loppings
for
the
Tithes
of
which
he
sued
,
were
the
Loppings
of
Trees
,
called
Asp
,
Beech
and
Oak
,
de
stipitibus
prius
succisis
crescentes
:
and
also
for
Hornbeams
,
Maples
,
Hazels
,
&c.
The
Plaintiff
,
as
to
the
Asp
,
Oak
,
and
Beech
,
did
demur
in
Law
;
and
as
to
the
residue
,
he
pleaded
,
that
with
part
he
mended
the
Hedges
,
and
the
rest
being
de
minimo
valore
,
were
bound
up
with
the
boughs
of
the
Oak
,
&c.
into
Faggots
;
upon
which
the
Defendant
did
demur
in
Law.
It
was
argued
by
Egerton
,
Solicitor
,
on
the
part
of
the
Plaintiff
;
and
he
held
,
That
a
Wood
of
common
Right
ought
not
to
pay
Tithes
,
not
because
the
soil
in
which
it
groweth
yields
other
Tithes
of
the
Herbage
,
but
because
non
renovantur
in
annum
;
and
therefore
at
this
day
no
Consultation
shall
be
granted
for
Quarry
,
Stone
,
and
Coals
:
But
after
came
the
Statute
of
Sarum
,
(
vide
F.
N.
B.
51.
h.
)
by
which
it
was
agreed
,
coram
Concilio
Regis
in
Parliamento
apud
Sarum
,
Quod
Consultationes
fieri
debeant
de
sylva
cedua
,
eo
non
obstante
quod
non
renovantur
per
annum
:
and
see
to
that
purpose
the
Register
49.
Et
ulterius
,
super
hoc
facta
fuit
quaedam
Consultatio
pro
Abbate
de
Notley
de
sylva
cedua
:
which
Statute
was
afterwards
expounded
by
the
Statute
of
45
E.
3.
cap.
3.
not
to
extend
to
great
Wood
of
the
growth
viginti
annorum
,
vel
amplius
,
but
onely
to
such
Wood
which
is
called
Sylva
Cedua
.
And
at
last
,
after
many
motions
,
it
was
ruled
,
That
because
the
Defendant
had
not
shewed
,
that
the
Trees
,
(
scil.
)
Oak
,
Ash
,
and
Beech
,
were
not
before
cut
within
twenty
years
before
the
last
succision
,
of
which
the
Tithes
are
now
demanded
,
Tithes
shall
not
thereof
now
be
paid
.
And
as
to
the
other
point
,
That
the
Hornbeams
,
Sallows
,
&c.
did
grow
sparsim
amongst
the
Oaks
,
and
the
Owner
felled
the
whole
Wood
,
and
caused
them
to
be
promiscuously
cut
into
Faggots
,
and
bound
up
in
Faggots
together
,
and
the
most
part
of
every
Faggot
was
Oak
,
and
the
residue
was
of
little
value
,
so
as
the
severance
of
the
Sallows
,
&c.
from
the
Oak
,
&c.
would
not
quit
the
charge
;
in
such
case
Tithe
shall
not
be
paid
:
but
of
the
other
part
,
If
the
most
part
of
the
Wood
be
Sallows
,
&c.
and
here
and
there
sparsim
groweth
an
Oak
,
&c.
and
the
Owner
cuts
down
all
the
Wood
,
and
makes
Faggots
as
before
,
Tithes
in
such
case
shall
be
paid
of
them
.
CVI.
The
Queen
and
Lord
Lumley
's
Case
.
Trin.
26
Eliz.
In
the
Exchequer
.
in
esse
,
and
so
by
consequence
cannot
be
granted
:
And
it
is
not
within
the
Statute
of
4
and
5
Ph.
and
Ma.
of
Confirmation
of
Grants
of
the
King
;
for
the
said
Statute
doth
onely
help
misrecital
,
misnaming
,
mistaking
,
&c.
but
here
there
is
no
such
thing
in
rerum
natura
,
as
the
Patentee
pretendeth
to
be
passed
by
the
Patent
:
and
if
it
were
in
the
case
of
a
Subject
,
nothing
would
pass
;
CVII
.
Herring
and
Badlock
's
Case
.
Trin.
26
Eliz.
In
the
King
's
Bench.
A
Replevin
was
brought
by
Herring
against
Badlock
,
who
avowed
for
damage-feasant
,
and
shewed
,
That
the
Lady
Jerningham
was
seised
of
such
a
Manor
,
whereof
the
place
where
,
&c.
and
Leased
the
same
to
the
Defendant
for
years
,
&c.
The
Plaintiff
said
,
That
long
time
before
King
Henry
the
eighth
was
seised
of
the
said
Manor
,
and
that
the
place
where
,
&c.
is
parcel
of
the
said
Manor
demised
and
demiseable
by
Copy
,
&c.
And
that
the
said
King
,
by
such
a
one
his
Steward
,
demised
and
granted
the
said
parcel
unto
the
Ancestor
of
the
Plaintiff
,
whose
Heir
he
is
,
by
Copy
in
Fee
,
&c.
and
upon
that
there
was
a
Demurrer
,
because
that
by
that
bar
to
the
Avowry
the
Lease
set
forth
in
the
Avowry
is
not
answered
,
for
the
Plaintiff
in
the
bar
unto
the
Avowry
ought
to
have
concluded
;
And
so
was
he
seised
by
the
Custome
,
until
the
Avowant
praetextu
of
the
said
term
for
years
entred
:
And
so
it
was
adjudged
.
CVIII
.
Moor
and
Sir
John
Savage
's
Case
.
Trin.
28
Eliz.
In
the
King
's
Bench.
IN
an
Action
upon
the
Case
by
Moor
against
Sir
John
Savage
and
his
Wife
,
for
that
the
said
Lady
had
reported
,
That
Moor
was
a
lying
Knave
,
and
a
perjured
Knave
;
The
Defendant
justified
,
That
where
an
Estate
for
life
absolute
was
devised
to
the
said
Lady
by
her
former
Husband
,
the
Plaintiff
had
deposed
,
that
the
said
Land
was
devised
to
the
said
Lady
,
if
she
kept
her self
sole
:
(
scil.
)
the
justification
is
matter
of
fact
,
and
part
is
matter
of
Record
,
there
,
Of
his
own
wrong
,
&c.
is
no
good
Plea
,
but
there
ought
to
be
a
special
Traverse
,
absque
hoc
,
that
he
so
deposed
,
or
absque
hoc
,
that
the
Devise
was
absolute
:
And
this
Plea
here
,
Of
his
own
wrong
,
&c.
goes
to
matters
in
fact
onely
,
and
such
which
lie
in
the
notice
of
the
Iury
:
See
5
H.
7.
6.
Although
that
divers
matters
are
alledged
in
the
bar
,
yet
this
Plea
,
Of
his
own
wrong
without
such
cause
,
&c.
extends
to
all
,
where
no
matter
of
Record
is
alledged
in
the
Plea
:
As
in
false
Imprisonment
,
a
Capias
is
directed
to
the
Sheriff
,
being
Defendant
,
to
arrest
the
Plaintiff
,
in
such
case
such
general
Plea
is
not
good
;
but
there
he
may
plead
Nul
tiel
Record
:
See
also
13
H.
7.
3.
21
H.
6.
5.
And
here
a
principal
matter
in
the
justification
is
matter
of
Record
,
and
therefore
such
a
Plea
here
is
not
good
.
Altham
contrary
,
If
the
principal
matter
in
such
justification
be
matter
of
Record
,
then
such
a
Plea
is
not
sufficient
;
but
if
the
matter
of
Record
be
but
inducement
,
then
the
Plea
is
good
enough
:
And
he
vouched
45
E.
3.
7.
In
Trespass
the
Defendant
saith
,
That
he
is
Forester
of
the
said
Forest
of
B.
and
at
a
Swanmoot
it
was
presented
by
the
Foresters
,
Verderors
,
Regardors
,
and
Agistors
,
That
the
Plaintiff
had
taken
Deer
in
the
said
Forest
,
upon
which
the
Defendant
came
to
the
Plaintiff
,
and
prayed
him
to
find
Pledges
to
answer
before
Iustices
in
Eyre
,
&c.
and
he
refused
so
to
do
,
for
which
cause
he
kept
the
Plaintiff
until
he
made
agreement
,
and
demanded
Iudgment
,
if
any
wrong
,
&c.
and
the
Plaintiff
replicando
said
,
Of
his
own
wrong
,
&c.
and
the
issue
was
accepted
of
by
the
Court
;
yet
he
said
the
Presentment
in
the
Swanmoot
was
not
matter
of
Record
,
but
onely
inducement
,
and
the
Request
to
find
Sureties
,
which
he
would
not
,
for
which
cause
he
took
and
imprisoned
him
,
the
same
was
the
principal
matter
,
and
but
matter
in
fact
;
and
therefore
he
said
,
that
the
Plea
was
good
;
and
he
said
that
in
this
case
the
Oath
is
not
on
Record
.
And
Coke
said
,
That
in
the
Cases
put
by
Altham
,
Of
his
own
wrong
without
such
cause
,
is
a
good
Plea
,
with
an
absque
hoc
unto
the
matter
of
Record
:
See
the
Book
of
Entries
320.
see
30
H.
8.
Action
upon
the
Case
104.
without
that
,
that
he
swore
modo
&
forma
:
It
was
adjourned
.
CIX
.
Firrell
and
the
hundred
of
B
's
Case
.
Trin.
28
Eliz.
In
the
Common
Pleas.
IN
an
Action
upon
the
Statute
of
Hue
and
Cry
by
Firrell
against
the
Hundred
of
B.
The
Defendants
pleaded
,
Not
guilty
,
and
in
Evidence
,
the
Plaintiff
,
to
prove
that
he
was
robbed
,
as
he
had
declared
,
offered
to
the
Iury
his
oath
,
in
making
good
his
Declaration
,
which
Anderson
and
Periam
Iustices
,
utterly
refused
.
But
Windham
affirmed
,
That
such
an
oath
had
been
accepted
in
the
Case
of
one
Harrinton
,
where
the
Plaintiff
could
not
have
other
Evidence
to
prove
his
Cause
,
in
respect
of
secrecy
;
For
those
who
have
occasion
to
travel
about
their
business
,
will
not
acquaint
others
what
money
,
or
other
things
they
have
with
them
in
their
journies
:
And
we
see
,
that
in
some
causes
,
the
Law
doth
admit
the
oath
of
the
party
in
his
own
cause
;
as
in
Debt
,
the
Defendant
shall
wage
his
Law
:
Periam
,
That
's
an
ancient
Law
,
but
we
will
not
make
new
Presidents
,
for
if
such
oath
be
accepted
in
this
Case
,
by
the
same
reason
in
all
cases
where
is
secrecy
,
and
no
external
proof
,
upon
which
would
follow
great
inconveniencies
:
and
although
such
an
Oath
hath
been
before
accepted
of
,
and
allowed
here
,
yet
the
same
doth
not
move
us
;
and
we
see
no
reason
to
multiply
such
Presidents
.
The
Declaration
is
,
that
the
Plaintiff
was
robbed
of
10
l.
de
denariis
ipsius
querentis
;
and
upon
the
Evidence
it
appeareth
,
That
the
Plaintiff
was
the
Receiver
of
the
Lady
Rich
,
and
had
received
the
said
money
for
the
use
of
the
said
Lady
,
and
exception
was
taken
to
it
by
Shuttleworth
,
but
it
was
not
allowed
;
for
the
Plaintiff
is
accomptable
to
the
Lady
Rich
the
said
money
.
And
it
was
agreed
,
that
if
he
who
was
robbed
,
after
he
hath
made
Hue
and
Cry
,
doth
not
farther
follow
the
thieves
,
yet
his
Action
doth
remain
.
CX
.
Large
's
Case
.
Mich.
29
Eliz.
In
the
King's-Bench
.
&c.
Bois
,
A.
and
J.
are
joynt-tenants
of
the
Remainder
,
and
he
said
,
That
the
opinion
of
Audley
,
Lord
Chancellor
of
England
,
is
not
Law
,
(
scil.
)
where
a
man
deviseth
Lands
to
two
,
and
to
their
heirs
,
they
are
not
joynt-tenants
,
as
to
the
survivor
,
but
if
one
of
them
dieth
,
the
survivor
shall
not
have
the
whole
,
but
the
heir
of
his
that
dieth
shall
have
the
moyety
:
See
30
H.
8.
Br.
Devise
29.
And
he
said
,
That
this
Lease
,
although
it
be
for
so
many
years
;
is
not
a
sale
intended
within
the
Will
,
and
so
is
not
a
Ioynture
.
46
E.
3.
One
was
bounden
,
that
he
should
not
alien
certain
Lands
,
and
the
Obligor
did
thereof
enfeoff
his
son
and
heir
apparent
,
the
same
was
held
,
to
be
no
alienation
within
the
Condition
of
the
Obligation
:
Of
the
other
side
it
was
argued
,
The
remainder
doth
not
vest
presently
;
for
it
is
incertain
,
if
it
shall
vest
at
all
;
for
if
William
dieth
before
he
cometh
to
the
age
of
22
years
,
it
was
conceived
by
him
,
that
the
Remainder
shall
never
vest
,
for
the
words
of
the
Will
are
,
Then
the
Lands
shall
remain
,
&c.
34
E.
3.
Formedon
36.
Land
is
devised
to
A.
for
life
,
and
if
he
be
disturbed
by
the
heir
of
the
Devisor
,
that
then
the
Land
shall
remain
to
D.
Here
D.
hath
not
any
remainder
,
before
that
A.
be
disturbed
;
It
was
farther
argued
,
that
here
is
a
good
Condition
,
and
that
the
Devisee
is
not
utterly
restrained
from
sale
,
but
onely
untill
a
certain
time
,
(
scil.
)
to
the
age
of
William
of
22
years
.
And
it
was
said
,
that
this
Lease
is
a
Covenous
Lease
,
being
made
for
240
years
,
without
any
Rent
reserved
:
As
such
a
Lease
made
for
100
years
,
or
200
years
,
is
Mortmain
,
as
well
as
if
it
had
been
an
express
Feoffment
,
or
Alienation
.
But
it
was
said
by
some
,
Mortmain
,
Vide
Stat.
7
E.
1.
Colore
termini
emere
,
vel
vendere
.
And
in
the
principal
Case
,
if
the
Devisee
had
entred
into
a
Statute
to
the
value
of
the
Land
leased
,
by
the
intent
of
the
Will
,
the
same
had
been
a
sale
;
and
such
was
the
opinion
of
the
whole
Court
:
and
by
the
Court
,
the
word
in
perpetuum
,
shall
not
be
referred
to
the
words
precedent
,
but
unto
the
words
following
;
(
scil.
)
in
perpetuum
perdat
the
Lands
.
And
if
a
custome
be
in
the
case
that
the
Infant
of
the
age
of
15
years
may
sell
his
Lands
;
if
he
make
a
Lease
,
the
same
is
not
warranted
by
the
custome
:
And
afterwards
it
was
adjudged
by
the
whole
Court
,
that
the
Lease
made
as
before
,
was
a
sale
within
the
intent
of
the
Will
of
the
Devisor
.
CXI
.
Brooke
's
Case
.
Hill.
29
Eliz.
In
the
King's-Bench
.
APpeal
of
Burglary
was
brought
against
Brooke
,
who
was
found
guilty
;
and
before
Iudgment
given
,
the
Plaintiff
died
,
And
now
Egerton
moved
that
Iudgment
should
be
given
for
the
Queen
upon
that
verdict
,
or
at
least
that
the
Declaration
in
the
Appeal
should
be
in
lieu
of
an
Indictment
,
and
that
the
Appealee
be
thereupon
arraigned
and
put
to
answer
the
same
.
For
if
the
Appellant
had
been
Nonsuit
,
or
released
,
the
Defendant
should
be
arraigned
at
the
suit
of
the
Queen
.
Coke
,
God
hath
now
by
the
death
of
the
party
,
delivered
the
Defendant
:
and
it
is
not
like
,
where
the
Plaintiff
releaseth
,
for
there
it
is
the
default
of
the
Act
of
the
party
,
but
here
it
is
the
Act
of
God
;
and
he
held
it
for
a
rule
,
That
where
auterfoits
acquit
is
a
good
Plea
,
there
also
auterfoits
convict
shall
be
a
good
Plea
:
And
it
was
holden
in
Sir
Tho.
Holcroft's
Case
,
auterfoits
acquit
,
and
that
they
said
was
the
surest
way
.
CXII
.
Ognel
and
Paston
's
Case
.
29
Eliz.
In
the
Exchequer
..
CLement
Paston
was
Defendant
in
an
Action
of
Debt
brought
against
him
by
George
Ognel
,
upon
an
Escape
,
and
the
Case
was
this
:
Francis
Woodhouse
was
bound
in
a
Recognizance
to
the
said
Ognel
;
Whereupon
Ognel
sued
forth
a
Scire
facias
,
and
upon
two
Nihils
retorned
,
had
Iudgment
,
and
upon
that
a
Levari
facias
,
and
then
a
Capias
ad
satisfaciendum
,
upon
which
Paston
the
Defendant
,
a
Sheriff
of
Norfolk
,
to
whom
the
Capias
was
directed
,
took
the
party
,
and
afterwards
suffered
him
to
escape
.
The
Defendant
pleaded
,
That
before
the
said
Capias
,
the
said
Francis
Woodhouse
was
committed
to
him
,
and
in
his
ward
continued
for
Felony
;
and
after
the
Capias
,
was
endicted
thereof
,
and
arraigned
,
and
found
guilty
,
after
which
he
escaped
;
And
all
this
was
found
by
special
verdict
:
First
it
was
argued
,
if
upon
a
Recognizance
acknowledged
in
the
Chancery
an
Action
lieth
;
and
it
was
said
by
Bois
,
That
it
doth
not
lie
in
the
mouth
of
the
Sheriff
to
say
,
that
this
Capias
doth
not
lie
in
the
Case
:
As
if
a
Iustice
of
Peace
maketh
a
Warrant
to
a
Constable
,
which
Warrant
is
not
good
in
Law
,
yet
the
Constable
is
not
to
examine
that
,
or
to
dispute
the
validity
of
it
,
5
H.
7.
And
a
Capias
hath
lain
in
such
case
,
and
so
it
hath
been
the
course
for
the
space
of
200
years
:
and
he
said
,
That
although
Francis
Woodhouse
was
convict
of
Felony
,
yet
the
same
is
not
any
discharge
of
the
execution
,
as
35
H.
6.
8.
although
the
husband
be
attainted
of
Felony
,
yet
he
is
not
so
dead
in
Law
,
but
if
the
King
pardon
him
afterwards
,
he
shall
be
restored
,
and
his
wife
shall
have
Dower
;
and
if
he
be
killed
,
his
wife
shall
have
an
Appeal
:
12
H.
4.
My
Villain
is
attainted
,
the
same
is
no
discharge
of
his
villainage
as
to
me
;
But
if
the
King
pardon
him
after
,
he
shall
be
my
Villain
,
6
E.
4.
4.
One
is
in
Execution
pro
fine
Regis
,
and
afterwards
is
outlawed
for
Felony
,
and
hath
his
Charter
of
pardon
for
the
Felony
yet
he
remains
in
Execution
for
the
interest
of
the
party
,
for
there
the
Execution
is
not
extinct
,
but
onely
suspended
.
Godfrey
contrary
,
Capias
doth
not
lie
upon
a
Recognizance
;
but
if
Debt
be
brought
upon
a
Recognizance
,
and
the
Plaintiff
recovereth
,
then
a
Capias
lieth
;
which
see
14
Eliz.
Dyer
306.
Puttenham's
Case
.
2
H.
4.
6.
In
Dower
the
Demandant
recovereth
her
Dower
,
and
damages
,
and
prayeth
a
Capias
ad
satisfaciendum
for
the
damages
,
but
she
could
not
have
it
;
for
no
Capias
lieth
upon
the
original
;
and
to
the
same
purpose
,
see
8
R.
2.
Fitz.
Execution
,
164.
15
H.
7.
15.
Capias
pro
fine
lieth
for
the
King
,
where
no
Capias
lieth
in
the
Original
;
but
no
Capias
ad
satisfaciendum
for
the
party
;
no
Capias
in
Debt
before
the
Statute
of
25
E.
3.
and
see
the
Stat.
of
West
.
2.
cap.
18.
cum
debitum
fuerit
recognit
.
si
in
electione
sequent
.
execut
.
habere
per
Fiere
facias
,
or
Elegit
,
therefore
no
other
manner
of
Execution
;
for
the
Statute
hath
provided
ut
supra
.
And
he
said
,
That
debt
doth
not
lie
upon
a
Statute
Merchant
,
or
Staple
:
See
15
H.
7.
16.
Another
reason
why
a
Capias
doth
not
lie
in
such
case
,
is
upon
the
words
of
the
Recognizance
,
Et
nisi
fecerit
,
tunc
concedit
,
quod
summa
praedict.
levetur
de
bonis
&
catallis
,
terris
&
tenementis
;
Ergo
,
not
of
the
body
.
And
when
Woodhouse
was
convict
of
Felony
,
the
Queen
had
an
interest
in
his
body
,
and
upon
the
pardon
,
the
Execution
which
was
suspended
during
the
conviction
,
is
now
received
:
And
he
confessed
the
case
of
Villainage
;
that
during
the
attainder
,
the
Lord
cannot
meddle
with
the
Villain
in
the
presence
of
the
King
,
See
27
Ass.
49.
and
see
2
H.
4.
65.
A.
was
condemned
to
B.
in
certain
damages
upon
an
Action
of
Trespass
brought
by
B.
against
A.
and
A.
was
committed
to
Newgate
,
in
Execution
upon
a
Capias
ad
satisfaciend
.
and
afterwards
was
arraigned
of
Felony
,
and
thereof
attainted
,
and
committed
to
the
Ordinary
,
as
Clark
,
Attaint
.
And
the
Iustices
commanded
the
Ordinary
,
That
after
that
the
prisoner
had
made
his
purgation
,
that
he
should
not
let
him
go
at
large
,
but
should
conduct
him
to
the
prison
of
Newgate
again
:
And
there
is
a
Quaere
made
by
the
Reporter
,
If
after
purgation
the
Ordinary
might
suffer
him
to
escape
;
and
if
he
at
whose
suit
he
was
condemned
in
Trespass
shall
have
debt
against
the
Ordinary
for
such
escape
.
At
another
day
the
matter
was
argued
by
Coke
for
the
Plaintiff
,
at
the
Common
Law
,
No
Land
was
subject
to
Execution
,
i.
no
Lands
of
the
Debtor
himself
;
but
yet
the
Lands
of
the
Debtor
being
descended
to
his
heir
,
should
be
chargeable
to
the
Obligee
of
the
Debtor
,
in
which
he
and
his
heirs
were
bound
,
and
that
seemed
to
be
very
strange
;
and
he
conceived
,
That
in
that
point
,
custome
and
usage
had
encroached
upon
the
Common
Law
:
The
Statute
of
West
.
2.
c.
13.
gave
Elegit
of
the
moyety
of
the
Lands
;
but
yet
there
was
no
Capias
in
Debt
before
,
25
E.
3.
cap.
17.
before
which
Statute
,
it
was
a
general
Rule
,
That
no
Capias
lay
at
the
Common
Law
,
but
where
the
King
was
to
have
a
Fine
,
See
35
H.
6.6
.
At
the
Common
Law
Capias
did
not
lie
but
where
the
Action
is
vi
&
armis
,
or
that
the
King
is
to
have
a
Fine
;
For
there
was
Outlawry
at
the
Common
Law
in
such
case
.
It
will
be
objected
,
That
the
Statute
of
25
E.
3.
which
gave
Capias
in
Debt
,
doth
not
extend
to
a
Scire
facias
upon
Recovery
;
That
such
Process
shall
be
made
in
a
Writ
of
Debt
,
as
is
used
in
a
Writ
of
Accompt
;
and
here
is
no
Writ
of
Debt
,
but
a
Scire
facias
onely
:
If
my
Debtor
upon
an
Obligation
cometh
without
a
Writ
,
and
confesseth
the
Debt
,
I
shall
have
a
Capias
against
him
,
and
yet
the
same
is
not
in
a
Writ
of
Debt
:
Ergo
,
so
in
case
of
Recognizance
.
Where
a
Statute
speaks
precisely
of
a
Writ
Original
;
yet
oftentimes
by
Equity
it
shall
extend
to
a
Scire
facias
,
and
other
judicial
Process
:
As
upon
the
Statute
of
25
E.
3.
cap.
7.
which
enables
the
Incumbent
to
plead
in
a
Quare
Impedit
.
It
shall
extend
to
a
Scire
facias
upon
a
Recovery
in
a
Quare
Impedit
,
46
E.
3.
13.
And
in
our
case
a
Capias
doth
not
lie
by
the
Letter
,
yet
it
lieth
by
Equity
.
And
he
said
,
That
Statute
which
helps
the
Subjects
to
get
their
debts
and
rights
,
are
to
be
,
and
have
been
taken
beneficially
and
liberally
expounded
,
in
advantage
of
the
Creditors
.
And
see
48
E.
3.
14.
Where
a
Scire
facias
is
sued
upon
a
Recognizance
,
a
Capias
doth
not
lie
,
but
there
it
is
holden
,
that
in
a
Scire
facias
,
upon
a
Recovery
in
debt
,
a
Capias
lieth
.
And
as
to
this
Capias
,
the
Sheriff
is
but
the
minister
to
the
Court
,
and
he
is
not
to
controll
the
Court
,
but
to
accept
of
the
same
,
as
the
same
is
directed
to
him
.
It
is
a
common
learning
in
our
Law
,
That
although
the
Court
doth
proceed
inverso
ordine
,
yet
it
shall
not
be
utterly
void
,
36
H.
6.
34.
Iudgment
given
at
the
Common
Law
of
Lands
within
the
five
Ports
;
for
the
five
Ports
in
times
past
,
were
parcel
of
the
Crown
:
But
of
Lands
in
Wales
it
was
otherwise
before
the
Statute
of
27
H.
8.
by
which
Wales
is
united
to
the
Crown
.
And
although
that
the
Capias
erronice
Emanavit
,
the
same
is
but
erroneous
,
and
so
voidable
,
and
not
void
,
for
Error
may
be
as
well
assigned
in
the
Executione
judicii
,
as
in
redditione
judicii
,
16
H.
7.
6.
Outlawry
without
an
Original
Writ
,
is
not
void
,
but
voidable
,
2
R.
2.
and
the
reason
thereof
is
given
,
11
H.
7.
in
Collins's
Case
,
but
they
are
Iudges
of
the
cause
,
although
that
their
proceedings
be
not
according
to
Law.
But
the
Sheriff
,
or
any
other
stranger
,
shall
not
take
advantage
thereof
,
See
8
E.
4.
21
E.
4.
and
he
cited
to
this
purpose
,
13
E.
3.
Barre
253.
The
Iailor
shall
not
take
advantage
of
undue
proceedings
of
the
Auditors
against
an
Accomptant
;
and
he
insisted
much
upon
the
Vsage
and
Precedents
,
and
customs
of
Courts
which
are
Laws
in
such
cases
.
And
although
that
by
strict
and
precise
rule
of
Law
,
a
Capias
doth
not
lie
naturally
nor
properly
upon
a
Recognizance
,
where
the
suit
begins
by
Scire
facias
,
yet
because
the
usual
practice
,
and
common
experience
hath
allowed
of
it
,
and
admitted
thereof
from
time
to
time
:
It
is
safer
to
suffer
a
mischief
to
one
,
than
an
inconvenience
to
many
.
And
although
the
Proverb
,
Exempla
illustrant
,
non
docent
aut
probant
,
may
hold
place
in
some
arts
and
Sciences
,
yet
in
our
Law
,
Examples
are
good
arguments
,
11
E.
4.
3.
In
the
King's
Bench
,
a
man
in
custodia
Marischalli
,
shall
be
put
to
answer
a
Bill
,
but
in
the
Common-Bench
,
a
man
who
is
in
the
custody
of
the
Guardian
of
the
Fleet
,
shall
not
be
put
to
answer
to
a
Bill
,
and
that
is
by
reason
of
the
several
usages
and
customs
in
the
said
several
Courts
;
so
as
custome
and
usage
makes
a
Law
in
such
case
.
39
H.
6.
30.
in
a
Writ
of
Mesne
,
The
Iudges
were
clear
of
opinion
,
That
the
Plaintiff
ought
not
onely
to
shew
the
Tenure
betwixt
him
and
the
Tenant
Peravail
,
but
also
betwixt
the
Mesne
and
the
Lord
Paramount
;
yet
when
they
had
conferred
with
the
Prothonotaries
,
and
saw
the
Precedents
of
former
times
in
such
cases
,
They
would
not
change
the
former
courses
,
notwithstanding
that
their
opinions
were
to
the
contrary
:
So
2
H.
7.
8.
The
Venire
facias
is
,
12
liberos
&
legales
homines
,
and
the
Sheriff
retorned
24
,
and
holden
good
,
by
reason
of
the
usual
course
of
the
Court
in
such
cases
;
and
yet
in
our
Law
,
the
number
of
persons
is
not
material
,
which
see
in
the
Earl
of
Leicester's
Case
,
15
H.
8.
but
custome
dispenseth
with
the
same
.
Atkinson
argued
the
contrary
;
At
the
Common
Law
for
Execution
in
Debt
within
the
year
,
a
Levari
facias
,
and
a
Fieri
facias
lay
;
after
the
year
the
party
was
put
to
a
new
Original
;
and
there
was
no
Capias
at
the
Common
Law
,
but
in
cases
of
contempt
,
force
,
or
other
notable
misdemeanour
,
untill
the
Statute
of
25
E.
3.
cap.
17.
which
gave
it
in
Debt
,
Detinue
,
&c.
And
the
Statute
of
West
.
2.
cap.
18.
gave
Fieri
Facias
and
Elegit
,
but
no
Capias
was
given
upon
a
Recognizance
by
any
Statute
,
and
he
relied
much
upon
the
Book
of
48
E.
3.
before
cited
,
the
rule
of
which
Book
is
,
That
in
a
Scire
facias
upon
an
Original
in
which
a
Capias
lieth
,
the
Scire
facias
shall
follow
the
nature
of
the
Original
upon
which
it
is
founded
:
but
where
a
Capias
ad
respondendum
doth
not
lie
,
there
not
a
Capias
ad
satisfaciendum
,
34
H.
6.
451.
In
Debt
against
Executors
,
they
appear
and
plead
fully
administred
,
and
it
is
found
against
them
,
and
Iudgment
is
given
for
the
Plaintiff
,
who
after
the
year
sueth
a
Scire
facias
against
the
Executors
,
and
Execution
awarded
by
default
,
and
thereupon
a
Capias
and
Exigent
:
And
that
matter
being
shewed
to
the
Court
,
a
Supersedeas
was
granted
,
because
the
Capias
improvide
&
erronice
emanavit
:
for
no
Capias
lieth
against
Executors
where
they
plead
,
&c.
although
it
be
found
against
them
,
Ergo
,
neither
a
Scire
facias
grounded
thereupon
.
And
although
the
Stat.
of
25
E.
3.
gives
a
Capias
in
Debt
,
yet
if
Debt
be
recovered
in
a
Justicies
,
a
Capias
doth
not
lie
by
the
Equity
of
the
said
Statute
:
and
he
relied
very
strongly
upon
Puttenham's
Case
,
13
Eliz.
cited
before
.
And
as
to
that
which
hath
been
said
,
That
notwithstanding
,
that
the
Capias
was
against
the
Law
,
and
so
his
imprisonment
by
colour
thereof
wrongfully
,
yet
,
de
facto
,
he
was
in
Prison
,
and
the
Sheriff
hath
taken
him
,
and
he
shall
excuse
himself
in
a
false
imprisonment
brought
;
yet
I
say
,
That
this
erroneous
Process
appearing
to
you
,
you
will
not
again
err
,
by
allowing
these
erroneous
proceedings
,
but
rather
reform
them
:
For
the
Sheriff
himself
,
who
is
a
stranger
to
the
Record
,
cannot
have
Error
to
reverse
these
proceedings
,
and
so
without
remedy
,
unless
the
Court
doth
relieve
him
therein
.
And
he
said
farther
,
That
this
Capias
,
Posito
quod
legitime
emanavit
,
cannot
fasten
or
work
upon
Francis
Woodhouse
,
being
imprisoned
,
and
convict
of
Felony
;
for
being
imprisoned
,
and
restrained
of
his
liberty
,
how
can
he
(
his
restraint
continuing
)
be
de
novo
restrained
before
that
he
be
enlarged
and
restored
to
his
liverty
?
Nam
omnis
privatio
praesupponit
habitum
;
and
Ergo
,
imprisonment
,
liberty
precedent
.
And
so
he
concluded
,
That
Francis
Woodhouse
,
Neque
de
facto
,
nor
de
jure
,
was
in
prison
:
and
that
no
Capias
lieth
in
the
Case
,
especially
after
the
year
,
as
here
it
was
,
and
the
party
being
convict
and
in
prison
,
cannot
be
taken
,
&c.
Manwood
,
If
within
the
year
a
Levari
facias
,
or
a
Fieri
facias
be
sued
forth
and
be
retorned
,
not
served
,
or
that
Vicecomes
non
misit
Breve
,
and
so
the
year
passeth
in
the
default
of
the
Sheriff
;
yet
the
Plaintiff
shall
not
be
put
to
a
Scire
facias
.
At
another
day
it
was
argued
by
Tanfield
for
the
Defendant
,
That
upon
this
Scire
facias
no
Capias
lieth
,
and
then
no
lawfull
Execution
,
and
then
no
escape
.
Where
there
is
no
Capias
in
the
Original
,
there
is
no
Capias
in
the
Execution
,
but
here
in
our
Case
,
there
is
not
any
Original
,
because
it
is
a
Scire
facias
upon
a
Recovery
,
Ergo
,
no
Capias
can
be
where
there
is
not
any
Original
.
As
to
that
which
hath
been
said
,
That
the
ancient
Presidents
and
course
in
Cancel
.
is
against
us
;
be
it
so
;
yet
the
course
in
the
King's
Bench
and
Common
Pleas
is
with
us
,
That
a
Capias
doth
not
lie
in
such
case
of
Scire
facias
.
And
the
Chancery
as
to
the
Common
Law
ought
not
to
vary
from
these
Courts
,
for
one
and
the
same
Common
Law
ought
to
be
in
all
the
said
Courts
,
of
things
of
the
Common
Law
,
and
the
Presidents
alledged
of
the
other
side
are
silent
,
and
sleeping
proceedings
and
presidents
,
Slips
of
Clarks
,
which
were
never
drawn
into
question
;
the
ancientest
of
which
was
hatcht
but
in
the
later
part
of
the
Reign
of
King
H.
8.
And
if
the
Common
Law
doth
not
warrant
such
Executions
,
Truly
the
presidents
cannot
make
such
imprisonments
lawfull
without
Act
of
Parliament
.
It
hath
been
said
,
that
Executions
ought
to
be
favoured
,
that
is
true
,
but
also
Liberty
,
to
which
the
Law
hath
special
respect
:
See
the
Statute
of
Magna
Charta
,
Nullus
liber
homo
capiatur
,
vel
imprisonetur
,
nisi
per
legale
judicium
parium
suorum
,
vel
per
legem
terrae
;
and
this
is
not
Lex
terrae
,
but
usage
onely
:
and
Malus
usus
est
abolendus
,
26
Eliz.
Error
was
brought
upon
a
Iudgment
given
in
Curia
de
Woodstock
,
which
is
a
Court
of
Record
,
and
Error
assigned
,
for
that
they
had
awarded
Execution
secundum
consuetudinem
Villae
,
against
one
who
had
bailed
the
Defendant
without
a
Scire
facias
first
sued
forth
against
him
,
i.
the
bailee
,
and
it
was
adjudged
Error
,
and
the
custome
could
not
maintain
it
,
for
the
Bailee
might
have
a
release
or
other
matter
of
discharge
to
plead
:
And
he
cited
the
Case
of
13
and
14
Eliz.
Dyer
306.
That
upon
a
Scire
facias
out
of
a
Recognizance
in
Chancery
,
Iudgment
was
given
for
the
Plaintiff
,
and
the
Warden
of
the
Fleet
was
commanded
to
detain
the
Conusor
in
his
custody
,
in
Execution
for
the
Plaintiff
,
and
afterwards
the
Conusor
escaped
,
the
Plaintiff
not
satisfied
,
And
it
was
holden
no
escape
,
for
his
body
was
not
liable
;
in
case
of
a
Recognizance
,
to
the
Execution
:
and
see
also
the
book
of
Entries
,
500
there
is
a
Rule
put
,
If
the
Recognizee
will
have
execution
within
the
year
,
he
may
have
a
Fieri
facias
,
or
Elegit
,
but
not
a
Capias
ad
satisfaciendum
.
And
he
conceived
;
that
this
Process
is
not
onely
erroneous
;
but
also
utterly
void
:
As
a
Capias
in
a
Formedon
,
Chr.
Wray
and
Williel
.
Periam
,
without
saying
,
Et
eorum
alteri
;
so
as
it
was
joynt
,
and
not
several
,
and
Wray
at
the
time
of
the
trial
,
was
as
the
Parliament
at
London
,
and
so
the
cause
was
tried
before
Periam
onely
,
and
therefore
coram
non
Judice
.
At
another
day
,
The
Case
was
argued
by
the
Barons
of
the
Exchequer
.
And
Clark
Baron
,
conceived
that
the
Plaintiff
ought
to
recover
,
and
he
said
,
That
upon
the
escape
,
the
Common
Law
gave
an
Action
upon
the
Case
against
the
Sheriff
;
and
the
reason
why
the
Sheriff
shall
be
charged
,
is
,
that
one
cannot
be
in
Execution
but
once
;
and
then
if
the
Sheriff
should
not
be
charged
,
the
party
Plaintiff
should
by
negligence
of
the
Sheriff
lose
his
Suit
,
and
also
his
Debt
:
And
admit
that
a
Capias
doth
not
lie
in
the
Case
,
yet
the
Execution
by
force
thereof
is
not
void
,
but
voidable
onely
;
and
Error
may
be
assigned
as
well
in
the
Execution
,
as
in
the
Iudgment
;
which
see
17
Ass.
24.
where
the
Recognizor
in
a
Statute
Merchant
aliened
the
Land
,
and
afterwards
the
Conusee
sued
forth
Execution
,
so
as
the
Land
was
extended
,
supposing
the
payment
,
i.
Solvend.
14
E.
3.
whereas
in
truth
it
was
16
E.
3.
and
the
Feoffee
brought
a
Writ
of
Error
thereupon
,
and
it
was
allowed
;
but
the
Sheriff
shall
not
take
advantage
of
the
same
:
And
truly
the
common
course
is
,
That
a
Capias
lieth
upon
a
Recognizance
:
and
7
H.
4.
101.
upon
a
Recognizance
acknowledged
for
the
Peace
,
a
Capias
lieth
for
the
King
:
and
a
Recognizance
is
but
an
Obligation
of
Record
;
and
wherefore
should
not
a
Capias
lie
thereupon
,
as
well
as
upon
an
Action
brought
upon
an
Obligation
?
The
Statute
of
West
.
2.
cap.
45.
Si
recens
sit
Cognitio
statim
habeat
Querens
Breve
de
Executione
illius
Recognitionis
:
and
the
Statute
doth
not
speak
in
certain
what
manner
of
Writ
,
or
what
manner
of
Execution
,
therefore
we
ought
to
resort
to
the
Common
Law
for
it
,
as
that
is
a
Capias
.
Gent
,
Baron
argued
and
agreed
in
every
point
with
Baron
Clark.
Manwood
,
chief
Baron
,
argued
,
That
the
Plaintiff
should
recover
;
and
he
put
the
Case
of
Recognizance
:
The
Plaintiff
sueth
two
Scire
facias's
,
upon
which
two
Nichel's
are
retorned
;
and
afterwards
a
Levari
facias
,
and
upon
that
also
Nihil
is
retorned
,
and
then
issueth
a
Capias
ad
satisfaciendum
for
to
take
the
said
Francis
Woodhouse
,
who
then
was
in
Prison
for
Felony
,
upon
which
Capias
the
Sheriff
did
arrest
him
,
and
he
being
afterwards
convicted
of
Felony
,
escaped
;
upon
this
matter
Debt
is
brought
against
the
Sheriff
.
A
Recognizance
taken
in
the
Chancery
is
a
thing
upon
Record
in
a
Court
of
Record
,
an
Obligation
of
Record
,
and
a
Debt
upon
Record
.
It
hath
been
objected
,
where
no
Capias
lieth
in
the
Process
upon
the
Original
,
there
no
Capias
lieth
upon
the
Execution
:
but
it
is
good
to
examine
the
Reason
thereof
;
for
Lex
plus
laudatur
quando
ratione
probatur
:
The
Capias
upon
a
Recognizance
is
not
by
25
E.
3.
but
by
the
common
Law
:
for
here
is
a
Debt
upon
Record
,
wherefore
shall
not
this
body
be
subject
to
it
,
as
well
as
in
the
case
of
a
Debt
upon
a
bare
Obligation
?
I
do
admit
the
Rule
,
That
where
there
is
no
Capias
ad
respondendum
,
there
is
no
Capias
ad
satisfaciendum
,
but
that
ought
to
be
intended
in
cases
where
there
is
an
Original
,
and
Mesn
Process
before
Iudgment
;
but
here
is
no
Original
,
nor
Mesn
Process
before
Iudgment
,
ergo
,
our
Case
is
not
within
the
same
Rule
:
But
I
will
put
a
good
Rule
;
It
is
Debt
upon
Record
,
ergo
a
Capias
lieth
:
In
the
King's
Bench
,
If
the
Defendant
comes
in
by
Latitat
,
if
the
cause
whereof
the
Action
is
brought
be
of
importance
,
he
is
to
put
in
special
Bail
;
and
those
who
bail
him
shall
be
bounden
in
a
Recognizance
,
&c.
The
Defendant
is
condemned
in
the
Action
:
Now
if
the
Defendant
cannot
be
found
,
so
as
Execution
may
be
sued
forth
against
him
,
then
a
Scire
facias
shall
issue
forth
against
the
Sureties
which
bailed
him
,
and
upon
that
a
Capias
,
and
that
is
very
frequent
therein
use
:
So
also
is
the
course
of
the
Court
of
Common
Pleas
;
ergo
it
shall
be
so
in
the
Chancery
in
case
of
a
Recognizance
.
If
one
be
taken
in
Execution
upon
a
Statute
Staple
,
and
sueth
an
Audita
Querela
upon
a
Release
,
or
other
matter
,
and
be
bound
with
Sureties
in
the
double
value
,
&c.
to
the
King
,
and
to
the
party
:
If
he
be
condemned
in
the
Audita
Querela
,
&c.
and
cannot
be
found
,
a
Scire
facias
shall
issue
forth
against
the
Sureties
,
and
thereupon
a
Capias
.
And
this
question
,
If
the
Capias
in
this
case
lieth
,
or
not
?
is
to
be
decided
either
by
Audita
Querela
in
the
Chancery
,
or
by
Error
in
the
King's
Bench
:
for
the
said
Courts
have
authority
to
affirm
the
proceedings
,
or
to
disaffirm
them
.
And
here
the
Question
was
,
If
Woodhouse
were
imprisoned
or
no
?
and
not
,
if
the
Capias
erronice
emanavit
or
not
?
And
he
took
a
difference
where
Process
is
awarded
out
of
a
Court
which
hath
not
authority
of
the
Principal
cause
;
there
it
is
coram
non
judice
,
and
the
Process
is
void
;
and
if
the
Sheriff
taketh
the
party
by
force
of
such
Process
,
it
is
meerly
void
,
and
he
a
Trespassor
;
but
contrary
if
the
Court
hath
authority
of
the
principal
cause
,
there
if
the
Process
be
misconceived
,
it
is
onely
erroneous
.
Common
Pleas
;
and
there
an
unskilfull
Clark
makes
a
Capias
upon
it
,
the
same
is
coram
non-judice
,
and
not
all
together
void
:
But
if
in
a
Writ
of
Entry
,
in
the
nature
of
an
Assise
,
the
Demandant
hath
Iudgment
to
recover
Debt
and
Damages
,
and
thereupon
issueth
a
Capias
,
the
same
is
not
void
,
for
it
is
but
a
misawarding
of
the
Process
,
&
provide
emanavit
.
If
out
of
the
Common
Pleas
immediately
a
Writ
issueth
to
the
Sheriff
of
Chester
,
which
is
a
County
Palatine
,
where
the
King
's
Writ
doth
not
run
,
the
same
is
void
,
and
false
imprisonment
lieth
upon
such
a
taking
.
A
Formedon
brought
in
the
King's
Bench
,
and
upon
that
a
Capias
,
is
void
,
&
coram
non
judice
;
and
the
Sheriff
is
bound
to
take
notice
of
the
Law
in
such
cases
,
that
those
of
the
King's
Bench
have
not
authority
to
hold
plea
in
real
Actions
.
As
to
that
,
That
Woodhouse
was
convict
of
Felony
,
the
same
shall
not
avoid
the
Execution
;
but
I
grant
,
that
the
King
shall
be
satisfied
before
the
subject
,
&c.
And
he
relied
much
upon
the
said
Case
cited
before
,
13
E.
3.
Bar.
253.
as
to
the
matter
of
the
Capias
:
19
H.
9.
In
Escape
the
Defendant
pleaded
a
Release
of
him
who
recovered
to
the
Prisoner
being
in
Execution
,
and
it
was
holden
no
Plea.
And
in
the
principal
Case
Iudgment
was
given
for
the
Plaintiff
.
CXIII
.
Bridget
Clark
's
Case
.
Antea
30
,
31.
Mich.
29
Eliz.
In
the
Exchequer
.
THE
Case
was
,
Clark
was
indebted
to
Archdel
by
Obligation
,
and
afterwards
delivered
to
Andrews
certain
Hogsheads
of
Wine
to
satisfie
the
said
Archdel
the
said
Debt
:
and
afterwards
the
Obligation
of
Clark
is
assigned
to
the
Queen
for
the
Debt
of
Archdel
:
And
if
the
property
of
the
said
Hogsheads
of
Wine
were
altered
by
the
delivery
of
them
to
Andrews
before
the
Assignment
?
was
the
Question
.
Egerton
,
Solicitor
,
The
property
is
not
altered
,
for
the
Bailor
might
have
an
Action
of
Account
against
Andrews
before
that
he
hath
delivered
the
same
over
according
to
the
Bailment
:
but
if
he
hath
delivered
them
over
,
the
same
is
a
good
bar
in
an
Account
:
But
if
one
be
accountable
to
me
upon
a
Bailment
,
and
afterwards
I
do
require
him
to
deliver
the
Goods
over
to
A.
the
same
is
not
in
bar
of
Account
,
but
is
good
in
discharge
of
account
before
Auditors
;
for
the
same
is
matter
after
the
Bailment
,
not
upon
the
Bailment
.
If
Goods
be
bailed
to
bail
over
upon
a
consideration
precedent
of
his
part
to
whom
they
ought
to
be
bailed
,
the
Bailor
cannot
countermand
it
;
otherwise
it
is
,
where
it
is
voluntary
and
without
consideration
;
but
where
it
is
in
consideration
of
a
Debt
not
countermandable
,
contrary
,
if
it
be
to
satisfie
the
Debt
of
another
.
Manwood
,
Where
the
Debtor
of
the
King
is
sufficient
there
a
Debt
due
to
him
ought
not
to
be
assigned
to
the
King
,
but
onely
where
the
Debt
of
the
King
is
doubtfull
,
and
that
was
the
ancient
course
;
but
now
at
this
day
multi
videntur
&
habentur
divites
,
qui
tamen
non
sunt
;
and
therefore
omnis
Ratio
tentanda
est
,
for
the
Recovery
of
the
King's
Debts
.
But
as
to
the
Case
before
us
;
The
Wife
is
Executrix
to
her
Husband
,
who
was
indebted
to
Archdel
,
and
she
delivers
the
Goods
to
Andrews
to
satisfie
Archdel
,
and
all
that
is
before
the
Assignment
:
And
I
am
of
Opinion
,
That
the
property
of
the
said
Goods
is
altered
;
for
,
as
the
case
is
,
Andrews
was
Surety
for
Clark
,
and
hath
a
Counter-Bond
of
Clark
to
save
him
harmless
:
If
I
borrow
100
l.
and
deliver
unto
the
Lender
Plate
for
the
security
of
it
,
the
property
general
of
it
is
in
me
,
yet
the
Bailee
hath
a
special
interest
in
it
,
untill
he
be
paid
.
If
Goods
be
delivered
to
A.
to
pay
unto
B.
A.
may
sell
them
.
An
Executor
hath
Goods
of
the
Testators
,
and
he
with
his
own
Monies
payeth
the
Debts
of
the
Testator
,
he
shall
retain
the
Goods
,
and
the
property
is
altered
.
And
here
in
our
case
,
Andrews
may
by
virtue
of
this
Bailment
sell
the
Goods
,
and
with
the
Monies
arising
thereof
pay
the
said
Archdel
.
And
afterwards
Iudgment
was
given
accordingly
,
that
the
property
of
the
Goods
by
the
delivery
over
by
Andrews
was
altered
.
CXIV
.
Foskew
's
Case
.
Mich.
29
Eliz.
In
the
Exchequer
.
FRancis
Foskew
,
seised
of
the
Manor
of
Foskew
in
his
Demesn
as
of
fee
in
consideration
of
a
Marriage
to
be
had
with
Francis
his
Son
with
M.
Daughter
of
Sir
Edw.
Huddleston
,
9
Feb.
25.
Feb.
covenanted
to
levy
a
Fine
of
the
Manor
aforesaid
;
and
that
the
said
Fine
should
be
to
the
use
of
himself
and
his
Wife
for
their
lives
,
and
after
their
deaths
to
the
use
of
the
said
Erancis
their
Son
,
and
M.
and
the
Heirs
of
their
bodies
begotten
,
with
remainders
over
:
The
Fine
was
levied
accordingly
:
afterwards
,
19
Octob.
27
Eliz.
Francis
the
Father
acknowledged
a
Recognizance
to
the
Queen
,
and
died
,
his
Wife
died
;
and
now
this
Manor
is
extended
for
the
Debt
to
the
Queen
by
force
of
the
Statute
of
33
H.
8.
And
now
Coke
came
into
Court
,
and
prayed
that
the
said
Manor
might
be
discharged
of
the
Debt
to
the
Queen
,
because
it
is
not
chargeable
by
the
said
Statute
;
the
words
of
whicih
Statute
are
,
All
Manors
,
Lands
,
Tenements
,
&c.
which
hereafter
shall
descend
,
remain
,
or
revert
in
Fee-simple
,
tail
general
or
special
,
by
,
from
,
or
after
the
death
of
any
his
or
their
Ancestor
or
Ancestors
as
Heir
,
or
by
Gift
of
his
Ancestor
whose
Heir
he
is
;
which
said
Ancestor
or
Ancestors
was
,
is
,
or
shall
be
indebted
to
the
King
,
or
any
other
person
or
persons
to
his
use
,
by
Judgment
,
Recognizance
,
Obligation
,
&c.
In
every
such
case
,
the
said
Manors
,
&c.
shall
be
charged
,
&c.
This
Statute
was
made
for
the
benefit
of
the
King
in
two
points
:
1.
To
make
Lands
entailed
liable
to
the
King
against
the
issue
tail
for
the
Kings
Debts
in
the
cases
aforesaid
,
where
they
were
not
liable
.
2.
To
make
Bonds
taken
by
the
Officers
of
the
King
to
the
use
of
the
King
,
as
also
of
Statutes
.
We
cannot
deny
but
that
we
have
Lands
of
the
Conusor
,
and
of
the
Gift
of
the
Conusor
our
Ancestor
,
whose
Heir
we
are
,
who
was
indebted
to
the
Queen
,
and
yet
we
are
not
within
this
Statute
:
Was
or
shall
be
indebted
,
shall
not
be
intended
after
the
Gift
made
;
for
if
he
first
convey
his
Land
,
and
afterwards
becomes
indebted
,
the
same
is
not
within
the
Statute
:
and
where
a
mischief
is
to
be
remedied
by
a
Statute
,
the
remedy
in
exposition
of
the
Statute
is
to
be
applied
according
as
the
mischief
doth
require
:
[
Shall
be
]
is
to
be
intended
of
future
Debts
after
the
Statute
:
and
in
our
case
,
the
Father
was
not
Receivor
,
or
other
Officer
to
the
Queen
:
And
if
this
Statute
should
be
so
construed
,
the
Father
might
take
10000
l.
for
the
Marriage
of
his
son
,
and
assurance
of
Lands
unto
him
;
and
then
if
he
will
acknowledge
a
Debt
to
the
Queen
,
he
should
defeat
the
whole
,
which
should
be
a
very
great
mischief
:
The
words
are
,
[
By
Gift
after
the
Debt
acknowledged
to
the
Queen
.
]
And
he
cited
the
Case
,
19
Eliz.
Plow.
191.
betwixt
Ludford
and
Gretton
,
upon
the
Statute
of
18
H.
6.
the
words
of
which
are
,
[
That
whatsoever
Warrant
hereafter
to
the
Chancellor
of
England
addressed
,
the
day
of
the
delivery
of
the
same
it
be
entred
of
Record
in
the
Chancery
;
and
that
the
Chancellour
make
Letters
Patents
upon
the
same
Warrants
,
bearing
date
the
day
of
the
said
delivery
in
the
Chancery
,
and
not
before
:
and
all
Letters
Patents
made
to
the
contrary
shall
be
void
.
]
And
the
Case
was
,
That
a
Warrant
was
directed
to
the
Chancellour
,
for
the
making
of
Letters
Patents
,
and
delivered
to
him
before
the
making
of
them
,
but
the
day
of
the
delivery
was
not
entred
of
Record
,
&c.
And
it
was
holden
,
that
notwithstanding
that
,
the
Letters
Patents
were
good
;
for
the
mischief
at
the
Common
Law
intended
to
be
reformed
by
that
Act
,
was
not
the
post-dating
of
the
Letters
Patents
,
but
the
ante-dating
,
and
therefore
that
ought
to
be
principally
taken
into
consideration
:
which
mischief
being
understood
,
the
words
of
the
said
Statute
are
to
be
applied
to
it
;
ipsae
etenim
Leges
cupiunt
,
ut
jure
regantur
;
i.
with
an
Equity
according
to
the
Mischief
,
and
not
always
according
to
the
precise
words
:
and
in
that
case
it
is
sufficient
if
the
Letters
Patents
bear
date
after
,
and
not
before
the
delivery
of
the
Warrant
,
and
that
was
the
matter
intended
to
be
reformed
.
Also
,
as
our
Case
here
is
,
we
are
not
within
this
Statute
;
for
the
words
are
,
Of
the
Gift
of
his
Ancestour
,
but
here
the
Son
hath
not
the
Lands
of
the
Gift
of
his
Ancestour
,
but
rather
by
the
Statute
of
Vses
,
and
so
he
is
in
the
Post
and
not
in
the
Per
,
by
his
Ancestour
;
for
here
the
Fine
was
levied
to
divers
persons
unto
the
Vses
aforesaid
:
and
here
the
Gift
was
not
a
mere
gratuity
to
his
Son
,
but
in
consideration
that
he
should
marry
the
Daughter
of
Sir
Edw.
Huddleston
;
and
also
the
Father
was
the
King's
Debtor
after
the
Gift
,
and
not
before
.
Popham
,
Attorney-General
,
to
the
contrary
:
The
letter
of
the
Statute
is
with
us
,
for
he
comes
in
of
the
Gift
of
his
Ancestour
,
who
was
indebted
to
the
Queen
:
and
although
that
the
Gift
was
by
way
of
use
,
yet
the
precedents
in
the
Common-Pleas
and
other
Courts
are
,
That
he
may
declare
,
of
the
Feoffment
of
such
a
one
,
although
it
was
by
way
of
use
:
and
he
said
,
If
A.
be
bound
to
enfeoff
B.
of
such
Lands
,
if
he
maketh
a
Feoffment
to
the
use
of
B.
and
his
Heirs
,
he
hath
well
enough
performed
the
Condition
:
and
if
the
Case
should
not
be
within
the
Statute
,
then
should
that
branch
of
the
Statute
be
idle
,
and
to
no
purpose
:
For
if
the
Ancestour
be
seised
,
and
becometh
indebted
to
the
Queen
,
and
after
makes
a
conveyance
ut
supra
,
the
same
is
provided
for
by
the
first
branch
of
the
Statute
:
For
the
Land
is
liable
to
the
Recognizance
or
Obligation
made
to
the
King
,
and
that
they
shall
be
as
effectual
as
a
Statute
Staple
;
and
reason
requires
,
that
the
son
,
who
comes
in
by
mere
gratuity
of
his
Ancestour
,
should
be
charged
:
And
it
was
a
common
practice
before
the
making
of
that
Statute
,
That
the
King's
Officers
would
convey
their
Lands
to
their
children
,
and
then
become
the
King's
Debtors
;
for
the
remedy
of
which
mischief
the
Statute
was
made
,
and
the
Statute
of
27
Eliz.
doth
not
respect
the
Heir
,
because
he
is
Heir
,
but
as
a
purchasor
onely
,
and
that
upon
good
consideration
:
Coke
,
If
any
fraud
can
be
found
in
our
Case
,
then
without
doubt
we
should
be
within
the
Statute
,
but
being
upon
good
consideration
,
it
is
out
of
the
Statute
;
nor
was
there
any
purpose
in
the
father
when
he
made
the
said
Conveyance
,
to
become
the
King's
Debtor
,
or
Officer
to
him
,
for
if
there
were
,
then
he
is
within
the
Statute
,
also
the
Gift
had
been
a
mere
gratuity
,
&c.
And
afterwards
,
at
another
day
,
the
Case
was
moved
by
Coke
,
and
he
said
,
That
here
is
not
any
Gift
,
because
it
was
in
consideration
of
Marriage
,
and
then
no
gift
,
for
it
is
an
old
Proverb
,
What
is
freer
than
gift
?
Egerton
,
The
father
giveth
to
his
son
and
heir
,
the
same
is
within
the
Statute
,
and
yet
here
is
consideration
,
(
scil.
)
of
blood
;
Coke
contrary
,
Where
the
father
giveth
to
his
younger
son
,
or
to
his
daughter
,
which
is
not
his
heir
;
and
of
that
opinion
was
Manwood
,
chief
Baron
:
And
afterwards
,
(
as
Coke
reported
)
the
son
and
his
Lands
were
discharged
.
CXV
.
Amner
and
Luddington
's
Case
.
Mich.
26
Eliz.
In
the
King's-Bench
.
Error
.
Luddington
,
Mich.
25
and
26
Eliz.
Rot.
495.
The
Case
was
,
That
one
Weldon
was
seised
,
and
leased
unto
Pierpoint
for
ninety
nine
years
,
who
devised
the
same
by
his
Will
in
this
manner
;
I
bequeath
to
my
Wife
the
Lease
of
my
House
during
her
life
,
and
after
her
death
I
will
that
it
go
amongst
my
Children
unpreferred
.
Pierpoint
died
,
his
Wife
entred
,
and
was
possessed
virtute
legationis
praedict
.
and
took
Husband
one
Fulshurst
,
against
whom
one
Beswick
recovered
in
an
Action
of
Debt
140
l.
upon
which
Recovery
issued
forth
a
Fieri
facias
,
and
upon
that
a
Venditioni
Exponas
,
upon
which
the
Sheriff
sold
the
said
term
so
devised
to
one
Reynolds
:
Fulshurst
died
,
his
Executor
brought
Error
to
reverse
the
Iudgment
given
against
the
Testator
at
the
Suit
of
Beswick
;
the
Wife
did
re-enter
,
and
sold
the
Land
,
and
died
.
Alice
,
an
unpreferred
Daughter
of
Pierpoint
,
did
enter
,
and
upon
that
matter
found
by
special
Verdict
in
the
Common-Pleas
,
the
entry
of
Alice
was
adjudged
lawfull
:
upon
which
Iudgment
Error
was
brought
in
the
King's-Bench
.
And
it
was
argued
upon
the
words
of
the
Devise
,
because
here
the
House
is
not
devised
,
but
the
Lease
it self
,
(
scil.
)
all
his
interest
in
the
thing
devised
:
And
it
is
not
like
unto
the
Case
betwixt
Welchden
and
Elkington
,
20
Eliz.
Plow.
519.
where
the
Case
was
,
That
Davis
being
Lessee
for
years
,
devised
that
his
Wife
should
have
and
occupy
the
Land
demised
for
so
many
years
as
she
should
live
;
nor
unto
the
Case
of
Paramour
and
Yardley
,
21
Eliz.
Plow.
539.
for
there
the
Lesse
devised
,
That
his
Wife
shall
have
the
occupation
and
profits
of
the
Lands
untill
the
full
age
of
his
Son
:
For
in
these
two
Cases
the
Land
it self
is
quodam
modo
devised
,
but
in
our
Case
all
the
Estate
is
devised
,
i.
the
Lease
it self
.
And
also
in
those
two
Cases
a
certain
person
is
assigned
and
named
in
the
Will
,
who
should
take
the
residue
of
the
term
which
should
be
expired
after
the
death
of
the
Wife
:
But
in
the
Case
at
Bar
,
there
is
not
any
person
certain
appointed
,
&c.
but
the
Devise
,
as
to
that
,
is
conceived
in
general
words
,
to
Children
unpreferred
;
therefore
neither
any
possibility
,
nor
Remainder
in
any
person
certain
,
therefore
all
the
term
is
wholly
in
the
Wife
,
and
then
she
might
well
dispose
the
whole
.
But
all
the
Court
was
to
the
Contrary
,
and
that
in
this
case
the
possibility
should
rise
well
enough
to
the
death
of
the
Wife
,
to
that
Daughter
unpreferred
.
Another
matter
was
moved
,
If
the
said
term
,
being
sold
in
the
possession
of
the
Wife
of
the
Devisor
by
force
of
the
Execution
aforesaid
;
If
now
,
the
judgment
being
reversed
,
the
sale
of
the
term
be
also
avoided
?
for
now
the
party
is
to
be
restored
to
all
that
which
he
had
lost
.
And
it
was
argued
by
Coke
,
That
notwithstanding
the
reversal
of
the
Iudgment
,
the
sale
did
stand
good
;
for
the
Iudgment
for
the
Plaintiff
in
a
Writ
of
Error
is
,
That
he
shall
be
restored
to
all
that
which
he
hath
lost
Ratione
judicii
praedict
.
and
the
Iudgment
was
,
That
the
Plaintiff
should
recover
140
l.
and
therefore
by
the
Iudgment
in
the
Writ
of
Error
he
shall
be
restored
to
so
much
,
but
the
mean
act
,
(
scil.
)
the
sale
of
the
Lease
,
shall
stand
,
and
shall
not
be
defeated
or
avoided
.
As
7
H.
6.
42.
A
Statute
Staple
is
bailed
in
Ouster
le
main
,
the
Conusee
brings
Detinue
against
the
Bailee
,
and
hath
Iudgment
,
and
recovers
the
Statute
,
and
upon
that
hath
Execution
:
The
Baylee
brings
a
Writ
of
Error
,
and
reverseth
the
Iudgment
given
in
the
Detinue
,
yet
the
Execution
shall
stand
,
and
Audita
Querela
doth
not
lie
for
the
Conusor
:
And
see
13
E.
3.
t.
Bar.
253.
Accountant
found
in
Arrearages
,
committed
to
the
next
Gaol
,
escapes
,
and
reverseth
the
Iudgment
given
against
him
in
accompt
,
by
an
Ex
parte
talis
,
yet
the
Action
upon
the
escape
lieth
;
and
the
Court
,
as
to
that
point
,
all
agreed
;
but
that
point
did
not
fall
in
Iudgment
;
for
by
the
sale
nothing
shall
pass
,
but
the
interest
in
praesenti
,
which
was
in
the
Wife
of
the
Devisor
;
but
the
possibility
to
the
children
unpreferred
,
was
not
touched
thereby
;
And
afterwards
the
Iudgment
was
affirmed
.
CXVI
.
Edwards
and
Halinder
's
Case
.
Mich.
36
Eliz.
In
the
Exchequer
.
RIce
Edwards
brought
an
Action
upon
the
Case
against
Halinder
,
F.
N.
B.
184.
So
if
by
his
building
he
stops
my
light
,
as
it
was
lately
adjudged
in
the
King's-Bench
,
in
the
Case
betwixt
Bland
and
Mosely
:
See
6
E.
4.
7.
&
8.
Damages
recovered
for
a
wrong
done
against
the
will
of
the
party
:
and
see
other
Cases
upon
this
Learning
,
13
H.
4.
t.
Action
upon
the
Case
48.
The
Plaintiff
had
sold
certain
trusses
of
Hay
to
the
Defendant
,
within
such
a
Meadow
,
to
be
carried
away
from
the
said
Meadow
within
a
certain
time
;
but
the
Defendant
let
the
Hay
lie
there
without
carrying
the
same
away
,
so
it
putrified
the
Meadow
,
by
reason
whereof
the
Plaintiff
lost
the
profit
of
his
Meadow
for
a
great
time
;
and
thereupon
brought
an
Action
of
the
Case
against
the
Defendant
,
and
the
Action
was
adjudged
maintainable
:
See
22
E.
4.
8.
where
the
owners
of
the
Plough
in
turning
of
the
Plough
,
according
to
the
custome
in
the
common
fields
upon
the
Land
of
another
;
one
of
the
Plough
Cattel
,
against
the
will
of
the
driver
,
takes
a
mouthfull
of
Grass
,
the
same
is
justifiable
,
but
if
the
driver
of
the
Cattel
suffereth
the
same
to
continue
,
an
Action
will
lie
against
him
:
So
22
E.
4.
49.
Where
I
am
bound
to
enclose
my
Land
against
another
,
and
in
default
of
enclosure
,
the
Cattel
of
the
other
escaped
into
my
Land
and
Close
,
I
shall
not
punish
him
;
but
if
he
after
notice
,
doth
suffer
them
to
continue
there
,
he
shall
be
punished
,
although
it
be
through
my
default
:
Also
it
is
alledged
in
our
Declaration
,
That
the
Defendant
intending
to
hurt
and
spoil
the
Plaintiff's
Wines
,
did
lay
such
a
weight
,
&c.
And
the
Defendant
answers
thereunto
.
That
the
floor
fell
in
default
of
repairing
of
the
walls
of
the
Cellar
,
or
for
the
ruinousness
of
them
,
where
he
ought
to
have
pleaded
farther
,
Absque
hoc
,
that
the
Shop
was
surcharged
with
the
intent
to
hurt
the
Plaintiff's
Wines
;
In
an
Action
upon
the
Case
,
upon
a
Trover
,
The
Defendant
pleads
,
that
the
goods
whereof
,
&c.
were
pawned
unto
him
for
the
security
of
certain
money
not
yet
paid
,
The
same
is
no
plea
without
saying
farther
,
Absque
hoc
,
that
he
did
convert
,
&c.
See
43
E.
3.
33.
In
an
Action
brought
against
a
Smith
,
for
his
negligence
in
curing
of
a
Horse
which
he
took
upon
him
to
cure
;
the
Defendant
was
driven
to
traverse
,
Absque
hoc
,
that
the
Horse
perished
in
default
of
his
care
:
Dalton
contrary
,
Where
in
doing
of
a
lawfull
Act
,
by
a
mishap
a
damage
cometh
to
another
,
against
the
will
of
the
doer
,
no
punishment
shall
follow
:
See
the
Case
cited
by
the
other
side
in
6
E
4.
7.
&
8.
If
he
might
have
done
more
than
he
had
done
to
have
prevented
the
mischief
,
he
should
be
punished
;
but
if
he
could
not
have
done
more
than
he
hath
done
,
or
otherwise
than
he
hath
done
to
prevent
it
,
he
is
dispunishable
,
and
he
may
,
Uti
jure
suo
,
although
it
be
to
the
prejudice
of
another
:
See
12
H.
8.
2.
&
3.
Harcourt's
Case
;
If
I
cannot
otherwise
let
the
water
out
of
my
Land
,
I
may
justifie
the
letting
of
it
in
your
Land
which
is
adjoining
,
although
that
your
Land
be
drowned
thereby
:
Sometimes
ignorance
of
the
party
shall
excuse
the
offence
:
As
if
my
Dog
worry
your
Sheep
,
if
I
do
not
know
of
such
ill
quality
in
him
,
I
shall
not
be
punished
for
the
same
.
And
it
doth
not
appear
that
the
Defendant
had
notice
of
the
ruinousness
of
the
walls
,
although
now
it
appeareth
that
they
were
ruinous
,
and
for
that
cause
the
floorfell
;
for
the
Defendant
said
,
That
the
walls
were
ruinous
,
in
occultis
&
absconditis
partibus
ipsorum
;
And
here
needs
not
any
Traverse
:
For
it
is
confessed
,
That
the
floor
of
the
Shop
was
surcharged
,
but
the
same
is
avoided
and
excused
,
because
that
the
walls
were
ruinous
,
in
occultis
&
absconditis
ipsorum
partibus
;
And
forasmuch
as
our
Landlord
(
who
is
also
the
Landlord
of
the
Plaintiff
,
)
hath
let
to
us
the
Shop
,
to
lay
there
the
weight
of
30
Tun
,
therefore
the
Defendant
hath
good
right
,
as
to
such
weight
against
the
Lessor
of
the
Plaintiff
,
and
all
others
,
claiming
under
him
.
And
here
the
Plaintiff
hath
declared
of
a
Lease
from
week
to
week
,
Quamdiu
ambabus
partibus
placuerit
,
and
hath
not
averred
the
continuance
of
his
Lease
,
&c.
Godfrey
,
A
Lease
is
made
from
year
to
year
,
ut
supra
,
&c.
The
Lessor
brings
Debt
for
the
second
year
,
he
need
not
to
aver
the
continuance
of
the
Lease
;
for
when
the
second
year
doth
begin
,
the
Lessor
cannot
put
him
out
that
year
;
But
we
,
upon
the
matter
,
have
averred
the
continuance
,
for
we
have
said
,
Et
sic
possessionatus
existens
,
&c.
Manwood
,
The
Declaration
is
,
That
the
Defendant
,
Nequitur
&
malitiose
intendens
,
&c.
tantum
ponderis
,
was
laid
upon
the
floor
,
Ita
quod
vi
ponderis
dirupta
fuit
contabulatio
:
And
the
Plea
of
the
Defendant
is
,
Quod
muri
in
partibus
occultis
&
absconditis
ruinosi
fuerunt
,
&c.
&
ideo
corruerunt
.
So
as
the
Plaintiff
speaks
of
the
floor
,
and
the
Defendant
of
the
walls
,
and
so
the
Defendant
doth
not
answer
the
Plaintiff
;
for
the
Shopman
ought
not
to
go
into
the
Cellar
,
nor
the
Cellar-man
into
the
walls
.
But
Dalton
said
,
That
the
Plea
was
,
Quod
diruptio
&
fractio
contabulationis
fuit
ex
eo
quod
muri
ruinosi
fuerunt
in
partibus
occultis
&
absconditis
.
At
another
day
,
it
was
argued
by
Flemming
for
the
Plaintiff
,
A
voluntary
and
unlawfull
act
is
laid
to
the
charge
of
the
Defendant
,
who
pleads
special
matter
to
excuse
himself
,
but
doth
not
answer
the
point
of
the
Action
,
but
onely
that
the
fall
was
sudden
,
Et
quia
muri
fuerunt
ruinosi
in
partibus
occultis
,
&c.
whereas
we
have
declared
,
that
the
weight
was
the
cause
thereof
:
3
H.
6.
Double
Plea
31.
In
an
Action
upon
the
Case
,
for
negligent
keeping
of
fire
,
the
house
of
the
Plaintiff
was
burnt
,
he
ought
to
take
a
Traverse
,
without
that
,
that
it
was
burnt
by
the
ill
keeping
of
the
fire
of
the
Defendant
;
and
he
needs
not
to
aver
the
continuance
of
the
Tenancy
at
will
:
38
H.
6.
27.
A
Lessee
for
life
assigns
his
Estate
to
B.
who
Leases
at
will
to
C.
B.
is
disseised
by
D.
and
C.
ousted
,
C.
re-enters
,
and
brings
Trespass
,
he
must
aver
the
Life
of
A.
but
not
of
B.
nor
the
continuance
of
the
will
.
Atkinson
contrary
;
I
conceive
there
needs
no
Traverse
,
for
the
matter
of
the
Declaration
is
expresly
confessed
,
and
avoided
,
5
H.
7.
12
,
13.
where
one
makes
Title
to
common
,
or
Rent
by
prescription
,
if
the
other
pleaded
unity
of
possession
,
he
needs
not
traverse
;
so
where
he
claims
B.
for
his
Villain
,
&c.
B.
saith
,
that
he
is
a
Bastard
,
there
needs
no
Traverse
.
We
have
confessed
in
pleading
,
Quod
gravitate
ponderis
,
the
floor
fell
down
;
but
we
say
farther
,
that
the
cause
was
,
because
the
walls
were
ruinous
,
&c.
and
here
is
matter
in
Law
;
Who
ought
to
repair
them
:
The
Lease
was
made
unto
the
Defendant
,
29
Julii
,
and
the
floor
fell
30
Julii
,
the
day
following
:
and
if
by
Law
the
Defendant
ought
to
repair
them
,
it
was
impossible
for
him
to
do
it
,
and
that
shall
excuse
him
:
If
one
hath
a
Shop
,
and
another
a
Cellar
under
it
,
and
the
Shop
minatur
rainam
,
there
is
a
Writ
in
the
Register
,
De
reparatione
facienda
.
153
,
&c.
And
it
lieth
against
him
who
ought
to
repair
by
prescription
,
or
by
the
Law.
And
we
who
are
the
Lessee
,
are
not
bound
to
repair
;
for
if
the
ground
Timber
be
in
decay
,
and
so
the
house
ruinous
at
the
time
of
the
Lease
,
it
is
a
good
Plea
in
an
Action
of
Waste
,
if
the
house
fell
in
such
defect
;
for
the
Lessee
is
not
bound
to
such
reparation
,
(
scil.
)
for
great
timber
,
which
was
rotten
at
the
time
of
the
Lease
.
But
if
after
the
Lease
it
becomes
rotten
for
want
of
covering
,
it
is
otherwise
,
See
12
H.
8.
1.
And
here
the
Plaintiff
hath
remedy
against
his
Lessor
,
for
he
is
bound
to
the
reparations
by
the
Law
,
and
not
the
Lessee
;
And
as
he
may
have
the
said
Writ
,
De
reparatione
facienda
,
before
the
mischief
,
so
he
may
now
have
after
the
mischief
:
and
therefore
no
Law
binds
the
Defendant
to
repair
;
Nor
is
there
any
custome
pleaded
to
that
purpose
:
and
also
for
as
much
as
the
occasion
of
the
Cause
of
action
was
the
ruinousness
of
the
walls
,
the
Defendant
shall
not
be
charged
with
the
same
:
And
also
he
shall
not
be
charged
with
a
thing
he
could
not
prevent
.
Manwood
,
The
Defendant
hath
pleaded
,
that
the
fall
of
the
floor
was
,
eo
quod
,
the
walls
were
ruinous
in
partibus
occultis
,
which
was
a
secret
thing
,
and
unknown
unto
the
Defendant
,
upon
which
the
Plaintiff
hath
demurred
,
and
so
confessed
the
plea
of
the
Defendant
to
be
true
;
and
that
he
was
ignorant
of
the
feebleness
of
the
walls
,
and
therefore
he
needs
not
any
Traverse
.
And
here
the
Defendant
hath
pleaded
,
That
the
Shop
was
demised
to
him
for
greater
carriage
.
Gent
,
Baron
,
was
of
opinion
,
That
the
Defendant
had
not
fully
answered
to
the
Declaration
;
for
he
is
charged
with
the
laying
of
so
much
weight
upon
the
floor
there
,
so
as
,
vi
ponderis
,
it
fell
down
;
To
which
the
Defendant
hath
said
,
That
the
walls
were
ruinous
,
in
occultis
partibus
;
and
doth
not
answer
to
the
surcharging
,
(
scil.
)
Absque
hoc
,
that
he
did
surcharge
it
:
Clark
,
Baron
,
It
is
a
general
Rule
,
That
every
material
thing
alledged
in
the
pleading
,
ought
to
be
traversed
,
confessed
and
avoided
,
which
the
Defendant
hath
not
done
here
but
he
would
excuse
himself
through
the
default
of
another
,
and
answer
nothing
to
that
with
which
he
himself
is
charged
;
And
afterwards
Iudgment
was
given
in
the
Court
of
Exchequer
for
the
Plaintiff
.
Whereupon
,
afterwards
,
the
Defendant
brought
a
Writ
of
Error
in
the
Exchequer
Chamber
,
where
the
Case
was
argued
again
;
But
there
the
Iudgment
given
in
the
Court
of
Exchequer
was
affirmed
.
See
this
Case
reported
short
,
in
Popham's
Reports
lately
published
.
CXVII
.
Linacre
and
Rhode
's
Case
.
Trin.
31
Eliz.
In
the
Common
Pleas.
CXVIII
.
Webbe
and
Mainard
's
Case
.
Trin.
32
Eliz.
In
the
Common
Pleas.
IN
Ejectione
firmae
,
The
Case
was
,
Walter
Goldsmith
,
seised
of
certain
lands
,
made
a
Feoffment
to
the
use
of
himself
for
life
,
and
after
to
the
use
of
John
his
eldest
son
in
Fee
;
Proviso
,
That
after
his
death
,
his
said
son
shall
pay
unto
his
younger
son
,
William
,
30
l.
by
3
l.
per
ann
.
at
the
Feast
of
St.
Michael
untill
the
entire
sum
be
paid
,
and
if
he
fail
of
payment
,
then
to
the
use
of
the
said
William
and
his
heirs
;
Will
.
Goldsmith
the
Feoffor
dieth
,
the
money
is
not
paid
,
but
afterwards
the
said
younger
son
makes
an
Acquittance
,
and
thereby
acknowledgeth
the
Receipt
of
the
said
money
,
according
to
the
Proviso
,
John
dieth
;
Now
,
if
the
younger
son
may
enter
?
And
first
,
if
the
younger
son
be
concluded
by
that
Acquittance
,
to
say
that
the
30
l.
was
not
paid
?
And
if
he
be
not
concluded
,
Then
if
because
that
the
words
are
but
words
of
limitation
,
the
younger
brother
hath
Title
of
Entry
.
and
then
,
if
this
Entry
be
bound
by
the
descent
from
John
to
his
Heir
?
or
if
John
by
continuance
of
the
possession
,
after
the
breach
of
the
Proviso
,
be
a
Dissesor
,
or
not
?
were
Questions
propounded
to
the
Court
,
which
the
Court
took
time
to
consider
of
,
yet
it
was
then
said
,
That
the
use
was
settled
in
William
,
and
the
possession
executed
unto
it
,
but
not
such
a
possession
upon
which
an
Assise
or
Trespass
lieth
.
CXIX
.
Willis
and
Jermine
's
Case
.
Hill.
31
Eliz.
In
the
King's
Bench.
Rot.
647.
IN
Ejectione
firmae
,
It
was
found
by
special
Verdict
,
i.
of
Exeter
,
for
in
Exeter
;
but
the
Court
disallowed
that
Exception
;
for
there
is
not
any
material
variance
,
and
so
it
was
said
,
it
hath
been
ruled
.
And
he
said
,
that
for
another
cause
the
Lease
is
not
good
;
for
when
the
Dean
and
Chapter
in
their
Chapter-house
make
this
Indenture
of
Lease
,
Harris
The
Attorney
hath
not
pursued
his
Authority
,
for
his
Warrant
is
to
enter
into
the
Land
in
the
name
of
the
Corporation
,
and
claim
it
to
their
use
,
and
then
to
deliver
the
Lease
made
upon
the
land
;
but
the
Iury
have
not
found
such
matter
,
but
have
found
onely
that
he
came
by
virtue
of
the
said
Letter
of
Attorney
,
and
delivered
the
same
upon
the
land
,
but
do
not
find
that
he
entred
,
and
claimed
the
same
to
the
use
of
the
said
Dean
and
Chapter
,
But
the
Court
held
the
same
good
enough
;
for
in
a
special
Verdict
,
every
particular
circumstance
need
not
to
be
found
,
and
in
pleading
it
ought
to
be
;
and
because
it
is
found
,
That
the
Attorney
,
by
virtue
of
the
said
Warrant
of
Attorney
,
hath
delivered
the
Deed
upon
the
Land
,
he
hath
pursued
his
Warrant
in
all
.
Gawdy
,
Delivery
of
the
Deed
is
as
necessary
in
case
of
a
Corporation
;
as
it
is
in
the
case
of
other
persons
.
CXX
.
Rymersly
and
Cooper
's
Case
.
Trin.
31
Eliz.
Rot.
768.
In
the
King
's
Bench.
in
quadam
causa
ibid.
ex
parte
Edw.
Stapleton
,
before
whom
he
deposed
,
&c.
The
Defendant
spake
these
words
in
scandal
of
the
Plaintiff
,
Rymersly
was
forsworn
in
the
said
oath
before
,
&c.
The
Defendant
pleaded
,
That
the
Plaintiff
made
not
any
such
oath
,
and
upon
that
the
Plaintiff
did
demur
in
Law.
George
Crook
prayed
Iudgment
for
the
Plaintiff
,
for
the
same
is
no
plea
;
for
the
oath
is
but
an
Inducement
,
and
therefore
not
traversable
;
for
the
ground
of
the
Action
is
the
speaking
of
the
words
;
and
admit
there
were
not
any
such
Oath
taken
by
the
Plaintiff
,
the
offence
of
the
Defendant
was
the
greater
,
Nam
peccavit
in
utroque
,
tam
in
juramento
,
quod
nullum
omnino
fuit
,
quam
in
perjurio
,
quod
sine
juramento
esse
non
potuit
;
for
if
one
saith
,
A.
Murdravit
J.
S.
whereas
there
never
was
any
such
J.
S.
yet
the
Action
lieth
for
the
scandalous
words
:
Also
this
Plea
doth
amount
but
to
the
general
issue
,
See
4
E.
6.
Action
,
Sur
le
Case
113.
34
H.
6.
28.
And
as
to
the
words
,
they
are
Actionable
;
for
(
forsworn
)
amounts
to
purjured
,
being
spoken
upon
on
oath
taken
in
a
Court
of
Record
,
and
so
was
it
lately
holden
in
the
Case
betwixt
Brook
and
Doughty
:
Antiqua
Civitas
,
as
he
ought
.
See
the
Case
of
the
Prior
of
Lantony
,
12
E.
4.
8.
and
22
H.
6.
Prescription
,
47.
If
a
man
alledgeth
a
custome
within
a
Town
,
he
ought
first
prescribe
,
That
the
said
Town
is
an
ancient
Town
.
Also
it
is
not
set
forth
in
the
Declaration
:
That
Bond
,
at
the
time
of
the
Deposition
taken
,
was
a
Iustice
of
Peace
in
London
,
and
then
the
custome
is
not
well
persued
.
But
afterwards
,
the
Record
was
looked
upon
,
and
allowed
to
be
good
by
the
Court
,
and
the
Court
conceived
,
that
the
Plea
of
the
Defendant
was
good
enough
,
as
13
E.
4.
8.
In
Debt
against
an
Abbat
,
the
Plaintiff
counted
upon
a
borrowing
by
the
predecessor
,
&c.
the
Defendant
pleaded
,
That
he
did
not
borrow
,
and
it
was
holden
a
good
Plea
,
and
yet
the
Plaintiff
in
such
Case
might
plead
the
general
issue
,
See
26
H.
8.
and
34
H.
6.
Br.
Action
Sur
le
Case
,
103.
3.
Ma.
Dyer
.
121.
The
Lord
Mounteagle's
Case
,
34
H.
6.
43.
by
Moile
.
In
Trespass
,
Quare
servientem
suum
verberavit
,
&c.
It
is
a
good
Plea
,
to
say
,
That
he
was
not
the
servant
of
the
Plaintiff
;
and
if
in
the
principal
,
the
Defendant
plead
,
Not
guilty
,
he
should
thereby
confess
,
that
the
Plaintiff
was
sworn
.
Wray
,
chief
Iustice
,
The
Plea
of
the
Defendant
is
good
:
And
it
was
moved
by
Egerton
,
Solicitor
general
,
That
the
custome
to
take
Oath
,
as
is
alledged
,
is
not
allowable
,
because
it
is
not
a
reasonable
custome
,
that
such
Depositions
should
be
taken
,
in
perpetuam
rei
memoriam
,
If
there
be
not
a
suit
depending
in
the
Cause
;
and
because
that
such
custome
not
alledgable
,
it
is
not
reasonable
,
and
then
the
Plaintiff
ought
not
to
have
Iudgment
;
and
such
also
was
the
opinion
of
Wray
and
Gawdy
,
Iustices
,
But
for
the
default
in
the
Declaration
,
That
it
is
not
alledged
,
That
London
is
antiqua
Civitas
,
Iudgment
was
given
against
the
Plaintiff
.
CXXI
.
Alexander
and
Dyer
's
Case
.
Trin.
31
Eliz.
Rot.
901.
In
the
King's-Bench
.
IN
Debt
for
Rent
reserved
upon
a
Lease
for
years
,
CXXII
.
Monings
and
Worley
's
Case
.
Hill.
32
Eliz.
In
the
King's-Bench
.
Rot.
561.
Error
.
IN
Debt
upon
an
Obligation
brought
by
Mary
Worley
,
against
Monings
in
the
Common-Pleas
.
The
Condition
was
,
That
if
Mary
Worley
the
Plaintiff
in
the
said
Action
doth
not
depart
out
of
the
service
of
the
Defendant
without
license
of
the
Defendant
Monings
;
nor
marry
her self
,
but
with
his
consent
,
Then
if
the
Defendant
shall
pay
to
the
said
Mary
within
twenty
eight
days
after
demand
by
her
made
(
of
Monings
)
at
his
house
at
Waldersey
,
100
l.
That
then
,
&c.
And
the
Defendant
in
the
said
Action
pleaded
,
That
the
said
Mary
the
Plaintiff
,
in
the
said
Action
,
4
Maii
,
30
Eliz.
departed
out
of
his
service
without
licence
,
The
Plaintiff
Mary
,
by
Replication
said
,
That
6
Septemb.
the
same
year
she
departed
out
of
his
service
with
licence
,
and
that
4
Octob.
after
,
she
demanded
the
said
100
l.
at
Waldersey
aforesaid
,
and
he
refused
to
pay
it
,
Absque
hoc
,
that
she
departed
out
of
his
service
4
Maii
,
30
Eliz.
without
licence
,
and
the
Writ
bare
date
,
18.
of
October
,
next
after
the
demand
;
And
it
was
found
for
the
Plaintiff
,
and
Iudgment
given
for
her
in
the
Common-Pleas
;
and
now
a
Writ
of
Error
is
brought
by
Monings
.
Tanfield
,
The
Iudgment
ought
to
be
reversed
;
for
always
the
Replication
in
such
cases
,
ought
to
contain
sufficient
Cause
of
Action
,
and
sufficient
breach
of
the
Condition
,
or
otherwise
the
Plaintiff
shall
not
have
Iudgment
,
although
that
the
Issue
be
found
for
him
:
as
7
E.
4.
31.
In
trespass
for
taking
of
goods
,
of
A.
and
B.
A.
pleads
Not
guilty
,
B.
justifies
,
the
Plaintiff
makes
Title
to
the
goods
by
a
gift
,
B.
traverseth
the
gift
,
and
it
is
found
for
him
against
the
Plaintiff
,
A.
is
found
guilty
:
Now
,
although
A.
be
found
guilty
,
yet
the
Plaintiff
shall
not
have
judgment
against
him
;
for
it
is
found
,
that
he
hath
not
any
Title
to
the
goods
.
As
in
Debt
upon
a
Bond
against
A.
and
B.
A.
pleads
Non
est
factum
;
B.
pleads
the
release
of
the
Plaintiff
,
and
it
is
found
the
Deed
of
A.
and
that
the
Plaintiff
hath
released
to
B.
the
Plaintiff
shall
never
have
Iudgment
;
for
upon
the
Verdict
,
it
appears
,
that
he
hath
not
cause
of
Action
:
And
here
in
the
Replication
,
there
is
not
a
sufficient
breach
shewed
of
the
Condition
;
for
although
that
Mary
hath
not
departed
from
the
service
of
the
said
Defendant
,
yet
the
same
is
not
material
;
but
the
Defendant
had
twenty
eight
days
after
the
demand
,
to
pay
the
100
l.
but
the
same
is
not
so
here
,
for
the
Plaintiff
hath
prevented
the
Defendant
;
for
the
demand
is
alledged
to
be
4.
Oct.
and
the
Writ
bears
date
18.
Octob.
the
same
year
,
and
so
the
Defendant
had
not
his
time
allowed
him
.
Gawdy
,
The
issue
is
taken
upon
the
departure
out
of
his
service
,
so
as
the
demand
is
not
now
material
,
and
therefore
the
alledging
of
the
same
is
surplusage
,
and
shall
not
hurt
:
And
the
Defendant
hath
pleaded
in
Bar
,
the
departure
of
the
Plaintiff
out
of
his
service
,
upon
which
he
relieth
,
and
the
demand
set
forth
in
the
Replication
,
is
not
to
be
regarded
,
as
to
prejudice
the
Plaintiff
:
As
3
Ma.
Dyer
115.
Lessee
for
years
covenants
that
he
will
not
cut
any
Trees
,
The
Lessor
assigns
the
breach
of
the
Covenant
in
succidendo
twenty
Oaks
,
The
Lessee
pleads
,
that
he
did
not
cut
the
twenty
Trees
,
nor
any
of
them
;
The
Iury
found
,
that
the
Defendant
had
cut
down
ten
Trees
,
The
Plaintiff
upon
that
Verdict
shall
have
Iudgment
,
for
the
rest
is
but
surplusage
;
and
more
put
in
issue
than
there
needs
to
be
.
Fenner
,
It
is
not
any
full
Plea
to
say
,
That
the
Plaintiff
did
not
depart
out
of
the
service
of
the
Defendant
4
Maii
,
for
if
she
departeth
at
any
other
time
,
she
shall
not
recover
,
for
which
cause
she
ought
to
have
pleaded
,
That
she
continued
in
his
service
untill
such
a
day
,
and
then
she
departed
with
his
licence
,
and
the
inducement
to
the
traverse
ought
to
be
sufficient
matter
,
otherwise
it
is
not
a
full
Plea
,
nor
the
Traverse
is
not
good
.
And
if
it
be
surplusage
,
yet
if
it
be
not
matter
against
her self
,
it
makes
the
Plea
naught
,
which
see
1
H.
7.
29.
6
H.
7.
16.
Gawdy
conceived
,
that
the
Iudgment
was
well
given
,
for
the
Defendant
was
at
his
liberty
to
plead
the
departure
of
the
Plaintiff
without
his
licence
,
or
to
stand
upon
the
demand
.
And
now
,
although
he
pleads
the
departure
,
yet
the
demand
is
not
confessed
.
And
afterwards
the
Iudgment
given
in
the
Court
of
Common-Pleas
was
affirmed
.
CXXIII
.
Bashpool
's
Case
.
27
Eliz.
In
the
King's-Bench
.
THE
Case
was
this
,
The
Father
seised
of
Lands
,
CXXIV
.
Bennet
and
Shortwright
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
THE
Case
was
,
transit
decima
in
Catalla
:
But
it
was
said
by
the
Court
,
That
if
the
Parishioner
doth
set
forth
his
Tythes
,
and
takes
them
again
,
he
may
be
sued
for
Tythes
in
the
Spiritual
Court
,
and
the
setting
forth
shall
not
excuse
him
.
CXXV
.
Walter
against
Pery
and
Springe
.
Mich.
32
Eliz.
In
the
King's-Bench
.
WAlter
brought
a
Scire
facias
against
Pery
and
Springe
,
Sureties
for
one
Brook
upon
Bail
in
an
Action
of
Debt
:
The
Defendants
pleaded
the
death
of
Brook
before
Iudgment
given
against
him
:
And
all
the
Iustices
(
except
Wray
)
held
,
that
the
Plea
was
not
good
,
for
it
is
a
surmise
against
the
Iudgment
;
for
Iudgment
cannot
be
given
against
a
dead
man
.
Wray
,
The
same
is
Error
in
fact
,
and
of
such
Error
the
party
may
have
advantage
in
this
Court.
Gawdy
,
The
Surety
cannot
take
advantage
of
Error
,
nor
plead
it
,
for
he
is
a
stranger
to
the
Record
.
Wray
,
He
may
plead
,
that
the
Defendant
is
dead
after
the
Iudgment
,
quod
fuit
concessum
:
but
it
was
ruled
,
That
the
Defendants
should
be
sworn
that
their
Plea
was
true
.
CXXVI
.
Aldersley
and
Duparrie
's
Case
.
Mich.
32
Eliz.
In
the
King's-Bench
.
IN
Debt
upon
an
Obligation
bearing
date
4.
Julii
,
30
Eliz.
The
Defendant
pleaded
,
that
it
was
endorsed
with
condition
to
pay
50
li.
before
15
Octob.
31
Eliz.
and
pleaded
,
that
he
had
paid
it
before
the
15.
of
Octob.
aforesaid
,
scil.
the
ninth
of
June
,
30.
Eliz.
which
is
three
Weeks
before
the
date
of
the
Obligation
,
upon
which
the
Action
is
brought
:
And
they
were
at
Issue
,
That
the
Defendant
Non
solvit
before
15
Octob
.
&c.
And
the
Iury
have
found
,
That
the
Defendant
had
not
paid
it
before
15
Octob.
and
that
matter
was
assigned
for
Error
;
for
that
Plea
is
contrary
and
repugnant
in
it self
,
to
alledg
the
payment
before
the
date
of
the
Obligation
:
But
it
was
moved
,
That
here
the
day
of
payment
is
not
material
,
and
but
matter
of
surplusage
;
for
the
Issue
is
,
Whether
the
Defendant
paid
the
money
before
the
15.
day
of
October
?
and
the
Iury
have
found
the
negative
,
so
as
the
day
in
the
Scilicet
is
not
material
,
and
the
alledging
of
that
is
matter
of
surplusage
:
As
20
H.
6.
15.
Trespass
Quare
clausum
fregit
,
&
herbam
consumpsit
,
continuand
.
transgress
.
from
such
a
day
usque
ad
diem
impetrationis
brevis
praedict.
Scilicet
,
14
F.
17
H.
6.
whereas
the
date
of
the
Writ
fuit
12.
Octob.
17
H.
6.
scil.
the
October
before
February
:
But
it
was
not
allowed
;
for
the
day
of
the
Writ
brought
is
certain
enough
,
and
the
mistaking
in
the
Scilicet
is
not
to
any
purpose
.
Wray
,
Payment
before
the
day
is
not
a
good
Plea
,
if
he
doth
not
shew
the
day
and
place
.
It
was
adjourned
.
CXXVII
.
Parker
and
Burton
's
Case
.
Trin.
31
Eliz.
In
the
King's-Bench
.
IN
an
Action
upon
the
Case
for
slanderous
words
,
(
scil.
)
That
the
Plaintiff
was
perjured
:
The
Defendant
doth
justifie
,
That
whereas
a
suit
was
prosecuted
in
the
Exchequer-Chamber
at
Westminster
betwixt
the
Defendant
and
another
,
and
from
thence
a
Commission
was
awarded
out
of
the
said
Court
to
divers
persons
,
to
examine
certain
Witnesses
at
B.
in
Berk.
and
there
,
by
virtue
of
the
said
Commission
,
the
Plaintiff
was
deposed
,
&
false
deposuit
,
praetextu
cujus
,
he
spake
the
said
words
.
De
son
tort
demesne
sans
tiel
Cause
:
the
same
shall
be
tryed
by
both
Counties
:
See
2
H.
7.
3.
Also
it
was
moved
,
that
here
it
is
not
shewed
in
what
County
the
Exchequer
Chamber
is
:
Admit
that
it
be
in
Berks
,
yet
it
ought
to
be
tryed
by
both
Counties
,
and
that
was
Chelderlie's
Case
:
And
although
it
be
not
shewed
in
what
County
the
Exchequer
Chamber
is
,
the
Plaintiff
had
Iudgment
to
recover
,
and
the
Tryal
was
held
good
enough
.
CXXVIII
.
Sir
Tho.
Bacon
's
Case
.
Hill.
31
Eliz.
In
the
King
's
Bench.
A
Writ
was
awarded
out
of
the
Court
of
Admiralty
against
Sir
Thomas
Bacon
and
Sir
Thomas
Heyden
,
to
shew
cause
,
(
whereas
the
Earl
of
Lincoln
,
late
High
Admiral
of
England
,
had
granted
to
them
by
Letters
Patents
,
to
be
Vice-Admirals
in
the
Counties
of
Norfolk
and
Suffolk
,
)
why
the
said
Letters
Patents
ought
not
to
be
repealed
and
adnulled
?
and
so
the
said
Writ
was
in
the
nature
of
a
Scire
facias
.
And
now
it
was
made
by
Coke
,
Common
Pleas
,
although
they
have
their
places
but
for
life
,
yet
they
may
grant
Offices
which
shall
be
in
force
after
their
deaths
,
&c.
And
because
this
matter
is
determinable
at
the
common
Law
,
he
prayed
a
Prohibition
;
for
in
the
Admiral
Court
they
will
judge
according
to
the
Civil
Law
:
and
the
Court
gave
day
unto
the
other
side
,
to
shew
cause
unto
the
contrary
,
or
otherwise
a
Prohibition
should
be
awarded
.
CXXIX
.
Weshbourn
and
Mordant
's
Case
.
Mich.
31
Eliz.
In
the
King
's
Bench.
IN
an
Action
upon
the
Case
,
the
Plaintiff
declared
,
May
,
(
scil.
)
after
the
stopping
:
And
the
words
of
the
Writ
here
are
satisfied
and
true
:
And
afterwards
Iudgment
was
given
for
the
Plaintiff
.
CXXX
.
Trusto
and
Ewer
's
Case
.
Pasc.
31
Eliz.
In
the
King's-Bench
.
CXXXI
.
Andrew
's
Case
.
Pasc.
32
Eliz.
In
the
King
's
Bench.
demisi
&
ad
firmam
tradidi
;
That
upon
that
Writ
of
Covenant
lieth
against
the
Lessor
,
if
he
himself
entreth
upon
the
Lessee
;
but
contrary
if
a
stranger
enter
,
if
it
hath
not
clause
of
Warranty
:
For
by
Fenner
,
when
Covenant
is
brought
upon
that
word
Demisi
,
the
Plaintiff
shall
recover
the
term
it self
,
but
not
damages
,
and
that
cannot
the
Plaintiff
do
when
a
stranger
entreth
;
and
that
was
holden
for
clear
Law
:
See
9
Eliz.
Dyer
257.
A
covenant
against
the
Heir
in
such
case
.
CXXXII
.
Bigg
and
Clark
's
Case
.
Hill.
32
Eliz.
Rot.
549.
In
the
King
's
Bench.
IN
an
Action
upon
the
Case
in
the
Court
of
Hertford
,
the
Plaintiff
declared
,
How
that
the
Defendant
hired
a
Horse
of
the
Plaintiff
to
carry
three
Bushels
of
Coals
from
Ware
to
his
House
in
Hertford
,
and
that
the
Defendant
in
consideration
thereof
did
promise
the
Plaintiff
,
quod
ipse
in
via
praedicta
nollet
onerare
the
said
Horse
aliter
,
than
with
the
said
three
Bushels
of
Coals
:
And
the
Plaintiff
said
,
That
the
Defendant
had
loaded
the
said
Plaintiff's
Horse
with
a
greater
weight
than
with
the
said
Coals
,
and
so
had
hurt
his
Horse
,
upon
which
the
Plaintiff
recovered
:
And
Error
was
brought
,
and
the
Error
assigned
was
this
,
That
it
is
not
specially
shewed
,
how
the
Defendant
aliter
loaded
the
said
Horse
,
with
what
thing
:
As
19
H.
6.
In
Debt
against
Executors
,
they
plead
,
That
they
have
onely
expended
such
a
sum
of
the
Goods
of
the
Testator
in
Funeral
expences
,
absque
hoc
,
that
they
have
administred
aliter
,
vel
alio
modo
;
the
Plaintiff
cannot
Reply
and
say
,
that
they
have
administred
aliter
,
vel
alio
modo
,
without
shewing
how
.
Another
Error
was
assigned
,
because
it
is
not
certainly
shewed
,
how
the
Horse
was
hurt
;
but
that
Exception
was
not
allowed
,
for
it
is
not
the
point
of
the
Action
:
but
for
the
first
matter
,
the
Iudgment
was
reversed
,
CXXXIII
.
Toley
and
Windham
's
Case
.
Trin.
32
Eliz.
In
the
King
's
Bench.
IN
an
Action
upon
the
Case
,
the
Plaintiff
declared
,
(
scil.
)
the
Plaintiff
himself
,
for
the
profits
of
certain
Lands
,
which
the
Father
of
the
Defendant
had
taken
in
the
time
of
the
Father
of
the
Plaintiff
,
&c.
and
he
doth
not
shew
,
that
he
himself
is
Heir
or
Executor
of
his
Father
,
and
therefore
the
Chancery
cannot
give
him
any
remedy
:
And
on
the
other
side
,
if
the
Plaintiff
had
any
remedy
,
the
same
ought
to
be
against
the
Executors
of
the
Father
of
the
Defendant
;
and
the
Plaintiff
hath
not
allowed
,
that
the
Defendant
is
Executor
to
his
Father
,
and
therefore
he
hath
not
any
colour
of
Suit
against
him
,
nor
therefore
is
there
any
consideration
.
Fenner
,
The
Defendant
by
the
Law
is
not
chargeable
,
nor
in
conscience
,
upon
this
matter
he
shall
be
charged
;
for
by
the
same
reason
he
should
be
charged
for
the
simple
Contract
of
his
Father
,
and
a
promise
to
pay
it
will
not
bind
him
:
And
afterwards
Iudgment
was
given
against
the
Plaintiff
.
CXXXIV
.
Veal
and
Robert
's
Case
.
Trin.
32
Eliz.
In
the
King
's
Bench.
IN
an
Ejectione
Firmae
,
the
Plaintiff
declared
,
John
Veal
leased
to
him
,
30
Eliz
for
twenty
one
years
ten
Acres
of
Land
called
M.
The
Defendant
pleaded
,
That
before
the
Demise
and
Ejectment
,
one
John
Roberts
was
seised
of
the
said
ten
Acres
called
M.
in
Fee
,
and
14
Eliz.
demised
the
same
to
one
John
Cox
for
life
,
and
afterwards
25
Elizab.
John
Roberts
dyed
,
and
the
Reversion
descended
to
the
now
Defendant
;
Cox
demised
the
Land
to
John
Veal
for
thirty
years
,
who
leased
unto
the
Plaintiff
,
as
in
the
Declaration
,
of
which
he
was
possessed
quousque
,
&c.
Cox
dyed
30
Eliz.
after
whose
death
the
Defendant
entred
and
ejected
prout
was
lawfull
for
him
to
do
,
&c.
The
Defendant
by
replication
saith
,
That
before
John
Roberts
had
any
thing
,
one
Wall
of
P.
of
Glocester
was
seised
of
the
said
ten
Acres
inter
alia
,
and
29
H.
8.
demised
to
John
Veal
,
Father
of
the
Lessor
of
the
Plaintiff
,
the
said
Land
inter
alia
,
by
the
name
of
two
Messuages
and
two
Yard
Lands
in
the
County
of
Glocester
,
nuper
in
tenura
J.
S.
and
of
two
other
Houses
in
a
Yard
Land
tunc
in
tenura
E.
H.
nec
non
de
ten
acres
vocat
.
M.
lying
inter
C.
&
I.
tunc
in
occupatione
E.
W.
for
term
of
years
yet
during
,
Habendum
dict
.
four
Messuages
and
three
Yard
Lands
,
in
tenura
I.S.
&
E.H.
nec
non
the
said
ten
acres
to
the
said
John
Veal
,
à
tempore
mortis
sursum
redditionis
forisfactur
.
vel
determinationis
status
vel
terminor
.
praedict.
I.H.
&
W.
in
eisdem
,
for
sixty
years
;
by
force
of
which
he
was
possessed
of
the
interest
of
the
term
aforesaid
:
and
afterwards
14
Eliz.
the
Estate
of
the
said
E.
W.
in
the
said
ten
acres
ended
,
for
which
the
said
John
Veal
entred
,
and
25
Eliz.
dyed
intestate
;
and
Administration
was
committed
to
J.
S.
Lessor
of
the
Plaintiff
,
by
force
of
which
he
entred
,
and
Leased
to
the
Plaintiff
,
and
so
he
was
possessed
untill
ejected
:
The
Defendant
did
rejoyn
,
and
said
,
That
long
before
John
Roberts
had
any
thing
,
William
Roberts
was
seised
in
Fee
,
and
enfeoffed
the
said
John
Roberts
before
the
Ejectment
supposed
,
who
demised
unto
John
Cox
,
and
so
as
in
the
Bar
,
absque
hoc
,
That
the
said
Abbat
demised
to
the
said
John
Veal
,
modo
&
forma
prout
the
Plaintiff
replicando
allegavit
,
the
which
matter
he
is
ready
to
aver
,
&
petit
Judicium
:
The
Plaintiff
said
,
That
the
Abbat
demisit
ut
supra
,
&
hoc
petit
quod
inquiratur
per
patriam
:
and
it
was
found
for
the
Plaintiff
.
And
it
was
objected
by
Snag
,
That
this
issue
was
not
well
taken
,
for
the
Estate
of
John
Veal
was
not
to
begin
before
all
the
Estates
,
being
in
esse
at
the
time
of
the
making
of
the
Lease
by
the
Abbat
of
Glocester
,
are
expired
.
Coventry
contrary
;
and
that
the
Estates
do
begin
severally
,
and
singulatim
,
as
the
Estates
precedent
shall
end
,
and
shall
not
expect
untill
the
other
Estates
be
determined
;
which
see
Iustice
Needham's
Case
,
now
reported
by
Coke
,
5
part.
37
Eliz.
and
see
Pollard's
Case
there
cited
.
At
another
day
it
was
objected
by
Snag
,
That
the
new
Estate
could
not
begin
in
any
part
untill
all
the
former
Estates
be
determined
;
for
if
this
new
Lease
be
made
,
reserving
Rent
;
and
one
part
thereof
is
now
come
in
possession
,
then
he
should
pay
for
that
part
all
the
Rent
:
But
the
Court
was
clear
of
Opinion
,
That
the
Lease
in
the
ten
Acres
did
begin
presently
,
without
having
regard
to
the
other
Estates
in
demand
for
the
intent
of
the
Lessor
was
,
That
no
mean
time
should
be
betwixt
the
expiration
of
the
Lease
for
ten
years
,
and
the
beginning
of
the
new
:
As
in
the
Case
betwixt
Wrotesley
and
Adams
,
1
Eliz.
Plo.
Com.
198.
A
Lease
is
made
to
begin
after
the
expiration
of
a
former
Lease
for
years
;
the
first
Lessee
takes
a
new
Lease
of
the
Lessor
,
which
was
a
Surrender
of
the
former
Lease
;
If
the
Lease
,
(
scil.
)
the
second
Lease
,
shall
now
begin
?
was
the
question
:
or
should
expect
untill
the
first
Lease
shall
end
by
expiration
,
for
the
former
Lease
is
ended
,
but
not
expired
,
i.
by
effluction
of
time
:
And
it
was
holden
,
that
the
said
second
Lease
should
begin
presently
;
for
the
intent
of
the
Lessor
was
,
that
no
mean
time
should
be
betwixt
the
end
and
beginning
of
the
said
Estates
.
And
afterwards
Iudgment
was
given
for
the
Plaintiff
.
CXXXV
.
Pasch.
32
Eliz.
In
the
King's-Bench
.
NOTE
,
If
a
Record
be
removed
out
of
the
Common-Pleas
into
the
King's-Bench
by
Writ
of
Error
,
and
the
Plaintiff
shall
not
assign
his
Errors
,
then
a
Scire
facias
shall
issue
forth
,
quare
executionem
habere
non
debet
:
and
upon
summons
,
or
two
Nichels
retorned
,
the
Plaintiff
shall
have
Execution
,
yet
the
Plaintiff
may
assign
his
Errors
.
And
to
such
a
Scire
facias
Exception
was
taken
,
because
the
Writ
was
coram
nobis
apud
Westm
.
where
it
should
be
,
ubicunque
fuerimus
in
Anglia
:
and
for
that
cause
a
Supersedeas
was
granted
.
It
was
also
holden
,
That
although
a
Writ
of
Error
doth
not
lie
here
,
upon
a
Iudgment
given
in
London
;
yet
upon
a
Iudgment
given
at
Newgate
,
which
is
upon
Commission
in
their
Sessions
,
Error
lieth
here
.
CXXXVI
.
Bows
and
Vernon
's
Case
.
Pasch.
32
Eliz.
In
the
King's-Bench
.
DEBT
upon
an
Obligation
was
brought
by
Bows
against
Vernon
and
Hennington
,
who
pleaded
the
Statute
of
23
H.
6.
and
shewed
,
that
Vernon
was
in
Execution
,
and
that
the
Bond
was
made
for
his
deliverance
against
the
Statute
:
The
Plaintiff
replied
,
and
said
,
That
at
the
time
of
the
making
of
the
said
Bond
,
the
said
Vernon
fuit
sui
juris
,
and
at
large
,
absque
hoc
,
that
he
was
in
Prison
tempore
confectionis
scripti
praedict.
modo
&
forma
,
&c.
Egerton
,
Solicitor
,
moved
,
that
the
Traverse
was
not
good
;
for
if
a
man
be
in
Prison
in
Execution
,
and
makes
a
promise
to
make
a
Bond
,
for
which
he
is
inlarged
,
and
within
an
hour
after
he
makes
the
Bond
,
the
same
is
within
the
Statute
:
and
therefore
this
issue
is
not
well
joined
,
but
it
ought
to
be
absque
hoc
,
that
it
was
pro
deliberatione
,
&c.
and
of
such
opinion
was
Fenner
and
Gawdy
,
Iustices
:
See
Dive
and
Manningham's
Case
,
4
E.
6.
Plo.
Com.
68
,
69.
acc
.
CXXXVII
.
Hunt
and
Sone
's
Case
.
Hill.
29
Eliz.
In
the
Common-Pleas
.
IN
an
Action
upon
the
Case
,
the
Plaintiff
declared
,
l.
&
5
s.
at
festa
Annunciationis
beatae
Mariae
,
ac
omnium
Sanctor
.
per
aequales
portiones
solvend
.
eidem
Hunt
(
the
Plaintiff
)
bene
&
fideliter
contentare
vellet
:
Ac
licet
praedict.
W.
Hunt
permisit
praefat
.
Sone
occupare
terras
praedict.
à
dict.
20
die
Julii
,
27
Eliz.
usque
ad
secundum
diem
Novemb.
28
Eliz.
Licetque
post
dictum
20
diem
Julii
,
27
Eliz.
&
ante
praedict.
diem
2
Novemb.
Anno
20
Eliz.
dictum
festum
omnium
Sanctor
Anno
27
Eliz.
supradict.
ac
festum
Annunciationis
beatae
Mariae
Virginis
,
ac
festum
omnium
Sanctor
.
28
Eliz.
praeterierunt
,
praed.
tamen
W.
Sone
dict.
10
l.
2
s.
6
d.
ad
praed.
festum
omnium
Sanctor
.
proxime
sequent
.
post
permissionem
&
assumptionem
praed.
ac
aliud
10
l.
2
s.
6
d.
ad
festum
Annunciationis
28
Eliz.
ac
alia
10
l.
2
s.
6
d.
ad
fest.
omnium
Sanct.
Anno
28
Eliz.
supradict.
nondum
solvit
,
&c.
The
Defendant
pleaded
,
That
the
Plaintiff
entred
into
parcel
of
the
premisses
ultimo
Octob.
28
Eliz.
&
eadem
occupare
eidem
W.
Sone
non
permisit
:
upon
which
they
were
at
issue
,
and
it
was
found
for
the
Plaintiff
:
And
now
it
was
moved
in
Arrest
of
Iudgment
,
That
the
Plaintiff
had
not
cause
of
Action
before
the
whole
Term
be
expired
,
for
it
is
an
intire
Assumpsit
,
and
cannot
be
by
Action
severed
;
and
therefore
it
was
said
,
That
if
I
promise
to
pay
you
20
l.
viz.
at
such
a
Feast
5
l.
and
at
such
a
Feast
other
5
l.
&c.
there
before
the
last
day
of
payment
no
Action
lieth
,
for
the
sum
of
20
l.
is
one
and
entire
:
but
if
I
promise
to
another
at
Easter
next
10
l.
and
at
Midsummer
as
much
,
&c.
here
are
several
Assumpsits
;
and
upon
default
of
payment
of
the
first
sum
Actio
oritur
,
without
respecting
the
last
payment
:
But
at
the
last
the
Court
was
agreed
,
That
Iudgment
,
notwithstanding
the
said
Exception
,
should
be
given
for
the
Plaintiff
:
and
said
,
That
the
Declaration
was
well
enough
,
as
well
in
respect
of
the
Exception
aforesaid
,
as
also
that
this
word
[
licet
]
is
effectual
enough
for
the
setting
down
the
permission
.
CXXXVIII
.
Roper
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
CXXXIX
.
Piggot
and
Russel
's
Case
.
Trin.
30
Eliz.
In
the
Common-Pleas
.
CXL
.
Sir
John
Savage
's
Case
.
Trin.
29
Eliz.
In
the
King's-Bench
.
IN
Trespass
,
the
Defendant
justified
,
because
Sir
John
Savage
was
seised
of
the
Manor
of
D.
within
which
Manor
the
custome
is
,
That
if
any
man
taketh
to
Wife
,
any
customary
Tenant
of
the
said
Manor
,
and
hath
issue
,
and
shall
overlive
his
Wife
,
he
shall
be
Tenant
by
the
Curtesie
;
and
pleaded
farther
,
That
he
took
to
Wife
one
Ann
,
to
whom
,
during
the
said
coverture
,
CXLI
.
Stainsby
and
Hales
's
Case
.
Trin.
29
Eliz.
In
the
King's-Bench
.
IN
a
second
Deliverance
by
Stainsby
against
Hales
,
Challenge
was
taken
for
the
Hundred
,
and
it
was
shewed
and
confessed
,
That
the
Hundred
of
Feversham
in
Kent
,
was
and
is
within
the
Lathe
of
Seray
,
and
that
there
is
not
,
nor
ever
had
been
any
Court
holden
in
the
said
Hundred
of
Feversham
,
but
that
all
the
Inhabitants
within
the
said
Hundred
have
used
to
go
to
the
Court
of
the
Lathe
of
Seray
:
and
it
was
holden
by
all
the
Iustices
,
that
in
this
Case
Challenge
ought
to
be
taken
for
the
Lathe
,
and
not
for
the
Hundred
,
for
no
Court
had
been
holden
in
the
Hundred
;
See
2
H.
4.
6.
11
H.
4.
2.
A
Iuror
was
challenged
for
the
Hundred
,
and
the
Triors
said
,
That
the
party
challenged
was
not
of
the
said
Hundred
,
where
,
&c.
but
they
farther
said
,
that
there
were
six
Hundreds
,
all
which
came
to
one
Court
;
and
the
same
was
holden
a
good
answer
to
the
challenge
,
and
the
party
challenged
was
sworn
.
CXLII
.
Sands
and
Hempston
's
Case
.
Trin.
27
Eliz.
Rot.
1201.
In
the
King's-Bench
.
IN
a
Replevin
,
The
Case
was
,
That
Henry
,
Earl
of
Westmerland
,
William
Cordel
,
afterwards
Master
of
the
Rolls
,
for
life
,
and
afterwards
made
a
Feoffment
thereof
to
Sir
John
Clifton
,
who
granted
a
Copihold
to
Sands
for
life
,
according
to
the
custome
of
the
said
Manor
,
the
same
being
an
ancient
Copihold
;
Sir
John
died
seised
,
the
Rent
is
behind
,
Sir
William
Cordel
died
,
Hempston
as
Bailiff
of
Cary
,
Executor
of
Sir
William
Cordel
,
distrained
for
the
arreages
upon
the
possession
of
Sands
,
and
it
was
clearly
holden
by
the
whole
Court
,
That
the
possession
of
the
said
Copiholder
was
not
chargeable
to
distress
upon
this
matter
,
for
the
Copiholder
is
not
in
by
him
who
ought
immediately
to
pay
the
Rent
,
but
is
also
in
by
the
custome
:
Note
by
some
,
That
the
possession
of
a
Copiholder
is
not
liable
to
the
Executor
,
by
the
Statute
of
If
it
be
so
,
that
the
Lord
of
the
Manor
be
within
the
degree
limited
by
the
said
Statute
.
CXLIII
.
Hooper
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
HOoper
of
Salisbury
was
brought
to
the
Bar
,
to
wage
his
Law
in
an
Action
of
Debt
,
and
upon
examination
,
the
matter
appeared
to
be
,
That
the
Defendant
was
indebted
to
the
Plaintiff
upon
a
simple
Contract
,
and
upon
communication
betwixt
them
,
it
was
agreed
,
that
one
J.
S.
should
become
bounden
to
the
Plaintiff
in
an
Obligation
for
the
said
debt
,
to
be
paid
at
a
day
certain
,
which
J.
S.
became
bound
accordingly
,
and
the
Defendant
was
also
bound
to
the
said
J.
S.
in
a
counter-bond
for
to
save
him
harmless
against
the
Plaintiff
.
And
the
Court
was
clear
of
opinion
,
that
upon
this
matter
,
the
Defendant
could
not
safely
wage
his
Law
;
for
by
this
Obligation
,
made
by
a
stranger
to
the
Contract
,
the
Contract
upon
which
the
Action
is
brought
is
not
determined
:
And
also
here
the
Obligation
was
made
after
the
Contract
;
But
if
J.
S.
had
been
bound
,
Ut
supra
,
upon
the
Contract
,
it
had
been
otherwise
;
and
upon
that
reason
,
the
Case
of
one
Pudsey
was
adjudged
.
CXLIV
.
Knevit
and
Taylor
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
KNevit
enformed
against
Taylor
in
the
Common-Pleas
,
upon
the
Statute
of
Usury
,
and
the
parties
were
at
issue
;
and
the
matter
depended
four
Terms
untried
after
issue
was
joined
;
and
now
the
Defendant
prayed
,
for
his
own
expedition
,
that
he
might
have
Nisi
Prius
with
Proviso
,
as
the
course
is
in
the
Exchequer
in
such
case
,
to
send
Commissions
into
the
Countrey
where
the
Information
is
laid
for
the
trial
of
the
issue
joined
in
the
said
Court
,
and
that
at
the
suit
of
the
Defendant
.
And
it
was
much
doubted
,
if
the
Court
might
grant
such
Nisi
Prius
,
because
the
Queen
is
Quodammodo
a
party
to
the
suit
.
And
by
Fleetwood
,
Serjeant
,
The
common
course
is
so
;
But
where
the
Queen
her self
is
merely
party
,
no
such
Nisi
Prius
shall
be
granted
:
and
he
said
,
That
the
Informer
might
be
Nonsuit
,
although
that
the
Queen
be
in
such
manner
party
.
Nelson
,
Prothonotary
,
said
,
That
he
never
saw
such
a
Precedent
,
F.
N.
B.
241.
CXLV
.
Alford
and
Lea
's
Case
.
Trin.
29
Eliz.
In
the
King's-Bench
.
Eliz.
Dyer
167.
A.
enseals
,
Quoddam
scriptum
Obligat
.
and
delivers
the
same
to
one
C.
for
to
deliver
it
to
the
Obligee
,
who
delivered
it
accordingly
,
as
the
Deed
of
A.
who
refuseth
to
receive
it
;
and
after
gets
the
Obligation
,
and
recovers
upon
it
.
CXLVI
.
Marsh
and
Rainsford
's
Case
.
Trin.
30
Eliz.
In
the
King
's
Bench.
IN
an
Action
upon
the
Case
;
the
Case
was
,
That
a
communication
was
had
betwixt
the
parties
,
That
the
Plaintiff
should
marry
the
daughter
of
the
Defendant
,
in
consideration
of
which
,
the
Defendant
promised
the
Plaintiff
to
give
him
200
l.
but
they
could
not
agree
upon
the
days
of
payment
of
it
,
after
which
they
stole
away
the
Defendant's
daughter
,
and
secretly
married
her
,
without
the
Defendant's
knowledge
;
yet
afterwards
the
Defendant
gave
his
consent
to
it
,
l.
Egelton
,
Solicitor
General
for
the
Defendant
,
That
the
Action
upon
this
matter
will
not
lie
;
for
here
the
consideration
is
precedent
to
the
promise
,
whereas
the
consideration
in
such
cases
,
ought
to
be
future
and
subsequent
;
and
as
the
Case
is
here
,
the
Plaintiff
is
out
of
the
course
of
consideration
of
marriage
;
for
he
hath
stolen
away
and
married
his
wife
,
without
the
knowledge
or
consent
of
her
father
:
See
such
Case
,
10
Eliz.
Dyer
272.
The
servant
of
one
A.
is
arrested
in
London
,
and
two
friends
of
his
Master
bail
him
,
and
afterwards
A.
promiseth
to
them
,
for
their
friendship
,
to
save
them
harmless
from
damages
and
costs
,
&c.
It
was
holden
that
the
Action
doth
not
lie
,
for
here
is
not
any
consideration
,
for
the
bailment
was
of
their
own
heads
,
and
it
is
executed
before
the
promise
;
But
if
the
Master
before
the
enlargement
of
his
servant
had
requested
the
Plaintiff
for
to
bail
his
servant
,
and
he
had
so
done
,
the
Action
would
have
lien
.
Wrey
,
Iustice
,
Although
the
consideration
be
precedent
,
yet
if
it
were
made
at
the
instance
of
the
other
party
,
the
Action
would
have
lien
.
But
here
the
natural
affection
of
the
father
to
his
daughter
,
is
sufficient
matter
of
consideration
.
If
one
cometh
to
a
Serjeant
at
Law
to
have
his
counsel
,
and
the
Serjeant
doth
advise
him
,
and
afterwards
the
Client
in
consideration
of
such
counsel
,
promiseth
to
pay
him
20
l.
an
Action
lieth
for
it
.
And
so
Popham
said
,
it
had
been
adjudged
in
the
Exchequer
:
And
it
is
the
common
Practice
in
this
Court
,
in
consideration
Quod
querens
deliberasset
to
the
Defendant
,
&c.
He
promiseth
to
pay
him
so
much
;
and
as
it
was
late
adjudged
betwixt
Style
and
Smith
:
If
a
Physician
,
who
is
my
friend
,
hearing
that
my
son
is
sick
,
goeth
to
him
in
my
absence
,
and
helps
and
recovers
him
,
and
I
being
informed
thereof
,
promise
him
in
consideration
,
&c.
ut
supra
,
to
give
him
20
l.
an
Action
will
lie
forthe
money
;
and
afterwards
in
the
principal
Case
Iudgment
was
given
for
the
Plaintiff
.
CXLVII
.
Williams
and
Linford
's
Case
.
Trin.
30
Eliz.
In
the
King
's
Bench.
WIlliam's
brought
an
Action
upon
the
Case
against
Linford
,
viz.
Williams
is
worth
nothing
,
and
do
you
think
that
the
Manor
of
D.
is
his
?
It
is
but
a
compact
between
his
brother
Thomas
and
him
;
And
farther
declared
,
That
at
the
time
of
speaking
of
the
words
,
he
was
in
speech
with
one
J.
S.
to
give
to
the
said
J.
S.
the
said
Manor
of
D.
for
his
Manor
of
K.
and
that
by
reason
of
the
said
slanderous
words
,
J.
S.
durst
not
proceed
in
the
said
intended
exchange
.
It
was
objected
,
That
upon
this
matter
,
an
Action
upon
the
Case
doth
not
lie
;
For
the
scandalous
words
were
not
spoken
to
him
who
was
to
be
the
Purchasor
of
the
said
Manor
,
Johnson
,
Johnson
was
in
speech
with
another
to
sell
his
lands
to
him
;
and
Smith
said
to
him
who
was
to
purchase
them
,
Will
you
buy
Johnson's
land
?
Why
,
it
is
troubled
with
more
charges
and
incumbrances
than
it
is
worth
.
Wray
,
Iustice
,
There
is
no
difference
,
whether
words
be
spoken
to
the
party
,
or
unto
a
stranger
,
for
in
both
cases
the
Title
of
the
Plaintiff
is
slandered
,
so
as
he
cannot
make
sale
of
his
lands
:
Iudgment
was
given
for
the
Plaintiff
.
CXLVIII
.
Barefoot
and
Luter
's
Case
.
Trin.
30
Eliz.
In
the
King
's
Bench.
THE
Case
was
,
A.
B.
and
C.
Ioynt-tenants
in
Fee
,
C.
granted
his
part
unto
D.
and
afterwards
A.
B.
and
D.
Leased
for
years
,
rendring
Rent
,
and
afterwards
A.
died
,
and
they
brought
an
Action
of
Debt
for
the
Rent
reserved
,
and
declared
generally
,
and
upon
the
Evidence
,
the
special
matter
appeared
,
that
two
parts
of
the
Rent
did
belong
to
B.
and
but
the
third
part
to
D.
And
the
opinion
of
the
Court
was
;
That
the
Declaration
ought
to
have
been
special
upon
the
whole
matter
;
For
Prima
facie
,
it
was
conceived
that
each
of
the
Plaintiffs
ought
to
have
had
the
moiety
of
the
Rent
,
and
that
is
a
supposal
of
the
Declaration
:
But
now
upon
the
Evidence
,
it
appeareth
to
the
contrary
:
So
as
the
Defendant
nil
debet
,
in
that
form
;
Another
matter
was
,
The
Plaintiff
declared
of
Rent
of
a
whole
year
,
ended
at
the
Feast
of
St.
Michael
last
past
,
whereas
the
Rent
was
not
due
at
Michaelmas
,
as
the
Plaintiff
had
declared
,
but
the
thirtieth
day
after
.
CXLIX
.
Brown
and
Ordinacre
's
Case
.
Trin.
32
Eliz.
In
the
King
's
Bench.
HEnry
Brown
,
and
Joice
his
wife
,
Executors
of
Thomas
Brown
,
brought
an
Action
upon
the
Case
against
Van
Ordinacre
,
Alien
,
and
declared
,
That
where
A.
and
B.
were
indebted
to
the
Testator
,
The
Defendant
,
in
consideration
that
the
Testator
respectuaret
the
said
A.
and
B.
pro
solutione
debiti
praedict.
per
spacium
unius
septimanae
tunc
proxime
sequen
.
to
pay
the
Debt
to
the
said
Plaintiffs
,
modo
sequent
.
viz.
one
moyety
within
one
week
after
,
and
the
other
moiety
at
the
end
of
the
said
week
;
and
farther
declared
,
That
the
Testator
did
forbear
by
the
space
of
a
week
;
and
after
Imparlance
,
Joice
was
summoned
,
and
severed
.
The
Defendant
pleaded
,
That
he
did
not
promise
,
modo
&
forma
prout
pra●dict
.
Brown
allegavit
,
and
that
it
was
alledged
by
both
Executors
.
And
by
a
Iury
,
De
medietate
Linguae
,
it
was
found
for
the
Plaintiff
.
It
was
objected
by
Coke
,
That
here
is
not
any
issue
,
prout
Brown
querens
allegavit
,
where
in
truth
,
it
was
alledged
by
both
the
Executors
,
before
severance
,
and
not
by
Brown
onely
.
Also
here
is
not
any
sufficient
consideration
alledged
;
for
the
Plaintiff
hath
declared
,
That
he
hath
forborn
by
a
week
,
without
saying
,
next
following
,
as
the
consideration
is
laid
in
the
Declaration
;
But
that
was
not
allowed
,
for
so
it
shall
be
intended
.
It
was
also
objected
,
That
the
Declaration
is
contrary
to
it self
;
for
it
shewed
,
That
in
consideration
that
the
Testator
should
forbear
for
a
week
,
he
promised
to
pay
him
within
a
week
;
but
that
exception
was
not
allowed
:
For
the
week
,
in
the
Assumpsit
,
shall
be
construed
,
the
week
after
the
week
in
the
consideration
.
Another
exception
was
against
the
trial
;
for
the
Defendant
being
an
Alien
,
The
Venire
facias
was
to
summon
twelve
persons
,
Quorum
quilibet
eorum
habeat
4.
l.
in
lands
of
annual
Rent
,
and
that
cannot
be
;
for
Aliens
cannot
have
lands
,
not
being
made
Denizens
:
By
the
Common
Law
before
the
Statute
of
27
E.
3.
An
alien
by
the
Grant
of
the
King
,
might
have
an
Action
depending
betwixt
him
and
a
Denizen
,
per
medietatem
Linguae
,
which
see
22
E.
3.
14.
and
afterwards
to
make
the
same
a
general
Law
,
the
Statute
of
27
E.
3.
was
made
;
but
the
same
doth
not
extend
to
cases
where
the
King
was
party
,
which
defect
was
supplyed
by
the
Statute
of
28
E.
3.
cap.
13.
Afterward
came
the
Stat.
of
2
H.
5.
by
which
it
is
enacted
,
That
where
the
debt
or
damages
amount
to
10
marks
every
Iuror
retorned
for
the
trial
,
should
be
able
to
expend
lands
of
the
value
of
40
s.
which
was
mischievous
as
to
aliens
;
and
for
the
remedy
of
that
,
The
Statute
of
8
H.
6.
cap.
ult
.
was
made
,
which
took
away
the
effect
thereof
,
as
unto
aliens
;
Then
came
the
Statute
of
27
Eliz.
which
enacted
,
That
every
Iuror
,
&c.
should
expend
4
l.
lands
,
but
that
is
where
40
s.
was
required
onely
,
and
doth
not
extend
to
our
Case
;
and
therefore
the
Venire
facias
in
our
Case
,
was
not
well
awarded
,
To
which
it
was
said
by
the
Clarks
,
That
after
the
Stat.
of
27
Eliz.
It
had
always
so
been
,
to
make
the
Venire
facias
generally
according
to
the
Statute
;
but
that
is
not
a
thing
material
,
and
the
Sheriff
needs
not
regard
that
:
Wherefore
it
was
holden
;
That
the
Venire
facias
in
the
principal
Case
was
well
awarded
.
CL.
Mingey
and
Earl
's
Case
.
Pasc.
32
Eliz.
In
the
King
's
Bench.
IN
Debt
upon
an
Obligation
,
The
Defendant
pleaded
,
Eliz.
cap.
4.
And
the
Statute
doth
not
respect
the
way
of
carriage
,
but
that
altogether
,
and
to
all
intents
,
it
be
the
distance
of
four
miles
betwixt
the
place
where
,
&c.
and
the
said
Town
of
Rye
;
and
here
it
is
not
material
which
is
the
common
and
usual
way
to
Rye
for
carriages
;
but
the
nearness
of
the
place
where
,
&c.
Quomodocunque
,
is
the
matter
;
and
therefore
the
Defendant
ought
to
have
pleaded
,
That
the
place
where
,
&c.
is
every
way
distant
four
miles
from
Rye
;
and
as
to
that
,
that
he
hath
answered
four
miles
,
with
4000
paces
,
the
same
is
well
enough
;
for
although
he
doth
not
answer
the
direct
the
words
;
yet
if
he
doth
answer
in
effect
,
it
is
well
enough
;
for
1000
paces
,
and
a
mile
,
are
all
one
in
substance
:
Wray
,
The
distance
shall
be
accounted
the
nearest
way
,
not
as
a
Bird
may
fly
.
CLII.
Wellock
and
Hammon
's
Case
.
Trin.
31
Eliz.
In
the
King's-Bench
.
Edw.
Coke
,
in
his
3
Reports
:
See
the
principal
case
there
.
Here
is
a
Limitation
,
and
not
a
Condition
;
for
if
it
should
be
a
Condition
,
it
should
descend
to
the
Heir
at
the
Common
Law
,
which
is
the
Devisee
,
and
so
shall
be
extinct
in
his
person
,
and
then
the
restraint
is
of
no
effect
,
for
there
shall
be
then
no
means
to
compell
the
Heir
who
hath
the
Land
,
to
pay
the
Legacies
,
nor
have
the
Legatories
any
remedy
to
compell
the
son
to
pay
the
Legacies
,
which
shall
not
have
effect
,
if
it
be
not
taken
by
way
of
Limitation
:
and
to
that
intent
,
Scholasticas
Case
was
cited
,
15
Eliz.
Dyer
,
317.
And
this
word
,
paying
,
in
a
Devise
,
shall
never
be
construed
to
be
a
Condition
.
And
it
was
holden
by
the
Iustices
,
That
where
a
man
deviseth
lands
to
his
younger
son
,
paying
such
a
sum
unto
such
,
the
Devisee
hath
a
Fee-simple
;
and
if
he
do
not
pay
the
monies
accordingly
,
his
Estate
shall
determine
,
by
the
same
Limitation
,
and
shall
go
to
the
heir
without
any
other
limitation
,
and
the
quantity
of
the
monies
,
be
it
great
or
small
,
is
not
material
:
And
they
were
of
opinion
also
,
that
here
the
monies
were
not
payable
,
but
upon
request
:
Coke
,
Chapter
,
&c.
shall
have
,
&c.
such
conditions
void
.
And
that
upon
one
Fee-simple
,
another
Fee-simple
cannot
be
limited
;
For
by
Coke
,
Common
experience
is
otherwise
,
That
upon
a
Fee-simple
determinable
,
another
Fee-simple
may
be
limited
;
which
Gawdy
,
Iustice
granted
:
And
as
to
the
principal
Case
,
Iudgment
was
given
,
with
the
limitation
.
CLIII
.
Parker
and
Harrold
's
Case
.
Pasc.
28
Eliz.
Rot.
485.
In
the
King
's
Bench.
That
the
custome
of
the
Realm
of
England
is
,
and
that
cannot
be
good
,
for
it
cannot
be
tried
;
for
a
Visne
cannot
be
from
the
Realm
of
England
:
Also
if
it
lie
through
all
the
Realm
,
then
the
same
is
Common
Law
,
and
not
custome
,
which
see
,
Br.
Custome
59.
and
see
4
&
5
Ph.
&
Ma.
152
,
153.
an
express
Case
of
the
same
Office
,
and
there
he
prescribed
,
Per
consuetudinem
in
Curia
,
&c.
and
also
that
such
grant
is
good
but
during
the
life
of
the
Admiral
who
granteth
it
:
Also
he
doth
not
answer
to
any
time
after
the
grant
of
the
Admiral
Howard
;
for
if
we
were
lawfully
put
out
by
Wade
,
yet
the
Defendant
against
his
Bond
,
shall
not
put
us
out
,
or
interrupt
us
:
As
5
E.
4.
115.
In
a
Quare
Impedit
against
an
Abbat
,
and
the
Incumbent
,
who
make
default
upon
the
distress
,
upon
which
a
Writ
was
awarded
to
the
Bishop
for
the
Plaintiff
,
upon
which
the
Bishop
retorned
,
That
the
Incumbent
had
resigned
,
of
which
he
hath
given
notice
to
the
Prior
,
and
lapse
incurred
;
and
the
Bishop
collates
the
former
Incumbent
,
and
then
this
Writ
came
to
him
;
Now
,
although
the
Incumbent
be
in
by
Title
,
yet
he
is
bound
by
the
Iudgment
:
So
here
,
although
the
Defendant
hath
another
Title
,
and
the
former
Title
of
the
Plaintiff
be
determined
,
yet
against
his
own
Bond
and
Deed
,
he
shall
not
put
out
the
Plaintiff
,
&c.
And
the
Court
was
clear
of
opinion
,
That
Iudgment
should
be
given
for
the
Plaintiff
;
but
afterwards
the
Cause
was
compounded
by
order
of
the
Lord
Chancellour
.
CLIII
.
Bedel's
Case
.
Trin.
32
Eliz.
In
the
King's-Bench
.
THE
Case
was
,
l.
per
ann
.
and
a
stranger
covenanted
with
A.
that
B.
should
pay
unto
him
the
40
l.
for
the
Farm
and
occupation
of
the
said
Lands
.
A.
brought
an
Action
of
Covenant
;
the
Defendant
pleaded
,
That
before
the
day
of
payment
the
Plaintiff
ousted
B.
of
his
Farm
:
It
was
moved
by
Godfrey
,
that
it
was
no
Plea
,
because
this
is
a
collateral
sum
,
and
not
for
Rent
issuing
out
of
Land
:
Also
the
Defendant
is
a
stranger
to
the
Contract
for
the
Farm
:
But
the
opinion
of
the
Court
was
to
the
contrary
;
for
the
Defendant
hath
covenanted
,
that
the
Lessee
shall
pay
for
the
said
Farm
and
occupation
40
l.
so
it
is
as
a
conditional
Covenant
,
and
here
is
Quid
pro
Quo
;
and
here
the
consideration
upon
which
the
Covenant
is
conceived
,
(
scil.
)
the
Farm
,
and
the
occupation
of
it
,
is
taken
away
by
the
act
of
the
Plaintiff
himself
.
CLIV.
Heal
's
Case
.
Pasch.
30
Eliz.
In
the
King's-Bench
.
HEal
,
a
Bencher
of
the
Inner
Temple
,
being
at
the
Bar
;
Wiat
,
another
Apprentice
at
Law
,
informed
the
Court
against
the
said
Heal
,
and
shewed
,
That
where
his
Client
had
obtained
a
Iudgment
in
the
King's-Bench
:
The
said
Heal
,
being
of
Council
with
the
other
part
,
did
advise
his
Client
to
bring
the
party
,
who
had
obtained
the
Iudgment
,
into
the
Chancery
,
and
he
procured
an
Order
against
him
,
CLV
.
Gray
and
Constable
's
Case
.
Pasch.
30
Eliz.
In
the
King's-Bench
.
SIR
Thomas
Gray
covenanted
with
the
Lady
Constable
,
That
where
he
is
possessed
of
a
Lease
for
twenty
one
years
of
certain
Lands
,
That
he
will
assure
,
convey
and
assign
the
said
Lease
to
one
Nevil
,
excepting
the
two
last
years
of
the
said
twenty
one
years
:
and
he
said
Sir
Tho.
Gray
was
bound
in
a
Bond
to
perform
the
Covenants
of
the
said
Indenture
;
upon
which
Indenture
the
Lady
brought
Debt
against
the
said
Sir
Tho.
Gray
,
who
pleaded
the
Conditions
,
and
the
performance
of
them
:
The
Plaintiff
replicando
said
,
That
the
Defendant
non
assuravit
,
conveiavit
,
&
transposuit
,
Anglice
,
set
over
,
the
said
Lease
;
upon
which
they
were
at
issue
:
And
at
the
day
of
the
Nisi
Prius
,
it
was
moved
by
Cooper
and
Beaumont
,
That
the
Issue
was
misjoined
;
for
the
Defendant
pleads
(
as
the
Covenant
it self
is
)
That
he
had
assured
,
conveyed
,
and
assigned
the
Lease
,
and
so
pleaded
the
performance
of
other
Covenants
,
&c.
The
Plaintiff
assigned
the
breach
in
this
,
Quod
non
assuravit
,
conveiavit
,
&
transposuit
,
Anglice
,
set
over
;
which
word
[
transposuit
]
is
not
in
the
Covenant
,
nor
in
the
pleading
of
the
performance
thereof
:
and
the
English
word
[
set
over
]
although
it
sounds
the
same
with
assigning
,
doth
not
help
the
matter
;
and
if
the
Latin
word
doth
not
agree
with
the
matter
,
non
refert
of
the
English
word
,
although
in
the
Plea
there
be
this
word
Anglice
[
set
over
.
]
Note
,
the
Covenant
was
(
ut
supra
)
The
Plaintiff
assigned
the
breach
,
Quod
non
assuravit
,
conveiavit
,
&
transposuit
,
Anglice
[
set
over
,
]
&c.
And
the
Defendant
pleaded
,
Quod
assuravit
,
conveiavit
,
&
transposuit
,
Anglice
,
set
over
,
&c.
And
the
Court
was
clear
of
opinion
,
That
the
Issue
for
that
cause
was
not
well
joined
:
And
afterwards
,
by
the
assent
of
the
parties
it
was
amended
.
CLVI
.
Doghead
's
Case
.
Pasch.
30
Eliz.
In
the
King's-Bench
.
Eliz.
cap.
4.
by
the
party
grieved
;
which
Statute
gives
unto
the
King
one
moyety
of
the
value
,
and
the
other
moyety
to
the
party
grieved
:
The
Plaintiff
was
nonsuit
;
It
was
holden
by
the
Court
,
that
he
shall
not
pay
costs
and
damages
by
the
Statute
of
18
Eliz.
for
the
Statute
(
as
the
Title
of
the
same
doth
imply
)
is
to
redress
Disorders
in
common
Informers
;
and
so
is
the
Preamble
:
and
the
words
also
of
the
clause
of
costs
and
damages
are
[
Every
such
Informer
]
and
so
by
Ive
,
Secondary
of
the
Crown-Office
,
An
Action
given
to
the
party
grieved
is
not
a
popular
Action
;
and
the
Statute
of
18
Eliz.
extends
onely
to
popular
Actions
.
CLVII
.
Cony
and
Chomley
's
Case
.
Pasch.
30
Eliz.
In
the
King's-Bench
.
IN
an
Ejectione
Firmae
,
after
Verdict
in
Arrest
of
Iudgment
,
it
was
moved
,
That
the
Plaintiff
had
declared
in
Ejectione
Firmae
,
Quod
cum
Robertus
Diggon
per
Indenturam
suam
gerent
.
dat.
20
Maii
,
dimisit
,
&c.
where
he
ought
to
have
said
,
iisdem
die
&
anno
:
For
although
the
Indenture
bear
date
(
ut
supra
)
yet
it
may
be
that
it
was
delivered
at
another
day
,
and
then
it
doth
begin
to
be
a
Demise
.
And
if
in
an
Action
upon
the
Case
upon
Assumpsit
to
pay
money
upon
request
,
although
it
be
found
for
the
Plaintiff
,
yet
if
no
day
be
put
in
the
Declaration
when
the
request
was
made
,
but
onely
[
licet
saepius
requisitus
]
in
case
where
a
request
ought
to
be
made
,
there
the
Plaintiff
shall
not
have
Iudgment
;
as
it
hath
been
oftentimes
adjudged
,
Quod
omnes
Justiciarii
concesserunt
:
But
yet
afterwards
,
notwithstanding
the
Objection
aforesaid
,
Iudgment
was
given
for
the
Plaintiff
.
CLVIII
.
Marsh
and
Jones
's
Case
.
Mich.
29
and
30
Eliz.
In
the
Common-Pleas
.
IN
a
Replevin
,
the
Case
upon
the
Evidence
was
,
CLIX.
Willoughby
's
Case
.
Mich.
29
and
30
Eliz.
In
the
King's-Bench
.
WIlliam
Willoughby
and
two
other
were
indicted
,
Willoughby
,
&c.
vi
&
armis
,
&c.
had
inclosed
it
,
and
the
Inclosure
was
upon
their
own
Lands
:
It
was
moved
,
That
upon
this
matter
they
ought
not
to
be
indicted
,
but
the
party
grieved
is
put
to
his
Action
;
as
where
a
Presentment
is
made
of
a
Disseisin
:
See
27
Ass.
20.
And
it
was
the
Case
of
one
Morden
,
vi
&
armis
.
Also
it
was
said
,
That
the
Indictment
is
recorded
and
certified
,
as
found
before
the
Iustices
of
Assise
and
Gaol-delivery
,
and
they
cannot
take
such
Presentments
:
And
although
the
said
Iustices
of
Assise
and
Gaol-delivery
were
in
rei
veritate
also
Iustices
of
the
Peace
,
yet
the
Indictment
being
recorded
,
and
certified
to
be
taken
before
them
,
in
quality
of
Iustices
of
the
Peace
,
will
not
help
it
:
for
the
Court
shall
not
respect
any
other
authority
,
but
that
which
appeareth
upon
Record
;
and
therefore
for
the
causes
aforesaid
they
were
discharged
by
the
Court.
CLX
.
Collet
and
Robston
's
Case
.
Error
.
Hill.
30
Eliz.
In
the
King's-Bench
.
Robston
:
Hil.
29
Eliz.
Rot.
1.
and
now
Robston
brought
a
Writ
of
Error
,
and
assigned
for
Error
,
That
whereas
the
said
Writ
of
Account
was
brought
against
the
said
Defendant
as
Receiver
of
Monies
,
for
to
render
Account
,
quando
ad
hoc
requisitus
fuerit
,
the
said
Writ
ought
to
have
been
more
special
:
But
the
opinion
of
the
Court
was
,
That
the
Writ
in
his
generalty
was
holden
good
:
And
so
it
was
adjudged
in
the
Case
of
one
Gomersal
,
(
scil.
)
quod
reddat
ei
rationabilem
computum
suum
de
tempore
,
quo
fuit
Receptor
Denariorum
ipsius
A.
Another
Error
was
assigned
,
That
the
Iury
had
assessed
damages
which
ought
not
to
be
given
in
an
Action
upon
Account
:
which
see
2
R.
2.
Acco
.
45.
and
2
H.
7.
13.
But
see
the
Book
of
Entries
,
fo
.
22.
In
a
Writ
of
Account
against
one
,
as
Receivor
to
Account
render
,
damages
were
given
:
For
if
my
Bailiff
,
CLXI
.
Yates
's
Case
.
Hill.
30
Eliz.
In
the
King's-Bench
.
A
Writ
of
Error
was
brought
by
Yates
and
others
upon
a
Iudgment
given
in
a
Writ
of
Partition
;
and
it
was
assigned
for
Error
,
that
the
Writ
of
Partition
was
not
sufficient
;
for
it
is
there
set
forth
,
That
the
Plaintiffs
insimul
&
pro
indiviso
tenent
cum
defendente
,
&c.
and
do
not
shew
,
of
what
Estate
,
or
whose
inheritance
:
See
F.
N.
B.
61.
5.
and
62.
a.
insimul
&
pro
indiviso
tenent
de
haereditate
quae
fuit
A.
matris
of
the
Plaintiff
and
the
Defendant
.
F.
N.
B.
62.
A.
A
Writ
of
Partition
betwixt
strange
persons
,
without
naming
haereditate
in
the
Writ
:
And
see
also
that
a
Partition
of
Lands
in
London
,
without
shewing
of
what
Estate
:
a
Partition
by
Courtney
against
Polewheel
,
no
Estate
shewed
in
the
Writ
:
so
betwixt
Finch
and
Firrel
,
and
betwixt
Fry
and
Drake
,
14
Eliz.
Devon.
26
Eliz.
betwixt
the
Lord
Cheney
and
Bell
:
and
Mich.
4
and
5
Ph.
and
Ma.
Rot.
208.
It
was
holden
,
That
it
is
not
necessary
in
such
a
Writ
to
shew
the
Estate
:
and
such
also
was
the
opinion
of
the
Court
in
the
principal
Case
:
but
Tenants
in
common
ought
to
shew
it
in
the
Count
:
And
the
Iudgment
given
was
affirmed
.
CLXII
.
Phillips
and
Stone
's
Case
.
Mich.
29
and
30
Eliz.
In
the
King's-Bench
.
IN
Debt
upon
an
Obligation
,
the
Defendant
pleaded
the
Statute
of
32
H.
6.
upon
which
this
special
matter
was
found
,
That
one
J.
S.
had
heretofore
recovered
against
him
100
l.
in
an
Action
of
Debt
,
and
upon
the
Capias
ad
satisfaciend
.
he
was
taken
and
committed
to
the
Plaintiff
,
who
was
Gaoler
,
&c.
to
the
Sheriff
,
and
so
being
in
Execution
he
escaped
and
afterwards
he
was
re-taken
by
the
Plaintiff
,
and
kept
in
prison
;
and
so
being
in
prison
,
made
the
Bond
upon
which
the
Action
is
brought
:
It
was
said
by
the
Court
,
That
if
a
Prisoner
being
in
Execution
,
escapes
with
the
permission
of
the
Gaoler
,
the
Execution
is
utterly
gone
and
extinguished
,
and
the
Plaintiff
,
at
whose
Suit
he
was
taken
in
Execution
,
shall
never
resort
to
him
who
escapes
,
but
shall
hold
himself
to
the
Goaler
for
his
remedy
:
but
if
such
a
Prisoner
escapeth
of
his
own
wrong
without
the
privity
or
consent
of
the
Gaoler
,
the
Gaoler
may
well
take
him
again
for
his
indemnity
,
untill
the
Plaintiff
hath
determined
his
Election
,
whether
he
will
have
his
remedy
against
the
Gaoler
,
or
that
he
will
maintain
his
Execution
:
13
H.
7.
1
,
and
2.
But
as
unto
the
Statute
of
23
H.
6.
the
Court
was
of
Opinion
,
That
posito
that
the
party
who
escapes
cannot
be
taken
again
;
yet
being
taken
,
the
Bond
which
is
taken
colore
Officii
,
is
within
the
said
Statute
,
because
the
party
was
retaken
colore
Executionis
,
and
so
the
Bond
was
void
.
CLXIII
.
Gering
's
Case
.
Mich.
29
&
30
Eliz.
In
the
King
's
Bench.
IN
Debt
upon
an
Obligation
,
against
one
as
Executor
;
CLXIV
.
Davies
and
Percie
's
Case
.
Mich.
29
&
30
Eliz.
In
the
Common
Pleas.
BEtween
Margaret
Davies
and
one
Perce
,
the
Case
was
,
Anth.
Perce
,
upon
speech
of
a
marriage
to
be
had
betwixt
the
said
Anthony
,
and
the
mother
of
Margaret
,
covenanted
by
Indenture
with
certain
friends
of
the
mother
,
to
pay
to
all
the
daughters
of
the
mother
20
l.
a
piece
at
their
several
ages
of
four
and
twenty
years
,
and
to
perform
the
Covenant
,
was
bound
to
the
said
friends
in
an
Obligation
.
Anthony
Perce
made
his
Will
,
and
willed
,
that
his
Executors
should
pay
to
each
of
the
daughters
20
l.
at
their
several
ages
of
four
and
twenty
years
,
in
discharge
of
the
said
Covenant
,
and
died
;
Now
the
said
Margaret
sued
the
Executors
in
the
Spiritual
Court
for
the
20
l.
bequeathed
to
her
,
and
upon
this
matter
,
the
Executors
prayed
a
Prohibition
:
And
by
the
Lord
Anderson
,
a
Prohibition
will
lie
;
for
here
is
no
Legacy
,
but
the
Will
refers
to
the
Covenant
,
and
is
in
discharge
of
the
Covenant
:
As
if
A.
be
indebted
to
B.
in
20
l.
And
if
A.
by
his
Will
willeth
that
his
Executors
shall
pay
to
the
said
B.
20
l.
in
discharge
of
the
said
debt
,
the
same
is
not
any
Legacy
,
but
a
Declaration
that
the
intent
of
A.
is
,
that
the
debt
shall
be
paid
.
Periam
,
Iustice
,
was
of
the
same
opinion
as
the
Lord
Anderson
;
and
Anderson
said
,
If
a
Legacy
be
bequeathed
to
me
,
and
the
Executor
covenants
to
pay
me
the
said
Legacy
,
and
afterwards
J.
sueth
the
Executor
in
the
Spiritual
Court
,
he
shall
have
a
Prohibition
;
Quod
caeteri
Justiciarii
negaverunt
,
See
F.
N.
B.
44
Br.
If
the
Testator
by
his
Will
charge
his
Executors
to
pay
his
debts
and
his
creditors
,
they
do
not
pay
them
,
and
the
creditors
sue
them
in
the
Spiritual
Court
,
they
shall
not
have
a
Prohibition
,
CLXV
.
Thorp
and
Tomson
's
Case
.
Hill.
30
Eliz.
In
the
Common
Pleas.
Rot.
336.
IN
Ejectione
firmae
,
It
was
found
by
special
Verdict
,
That
one
Thimblethorp
was
seised
of
the
lands
where
,
&c.
and
by
Contract
,
sold
the
same
to
Thorp
,
but
no
assurance
was
yet
made
;
and
afterwards
,
Thorp
before
any
assurance
made
,
sold
likewise
the
said
lands
to
Tomson
,
and
afterwards
,
Thimblethorp
made
assurance
thereof
to
Tomson
,
and
afterwards
Tomson
being
seised
,
devised
the
Lands
to
his
younger
son
,
I
bequeath
to
R.
my
son
,
all
the
lands
which
I
purchased
of
Thorp
,
whereas
,
in
speaking
the
truth
according
to
Law
,
he
purchased
them
by
immediate
assurance
of
Thimblethorp
,
although
he
did
contract
with
Thorp
for
the
same
;
And
the
opinion
of
the
whole
Court
was
without
argument
either
at
Bar
,
or
at
the
Bench
;
That
the
Devise
was
good
;
for
in
the
repute
of
the
people
,
they
preseised
of
Thorp
,
for
Tomson
paid
the
monies
for
the
same
to
Thorp
,
and
the
Court
commanded
Iudgment
to
be
entred
accordingly
:
And
afterwards
Exception
was
taken
to
the
Verdict
,
because
it
is
not
found
by
what
service
the
land
devised
was
holden
,
Socage
,
or
Knight-service
;
nor
that
the
Devisor
is
dead
;
and
these
were
holden
to
be
material
Exceptions
,
and
for
that
cause
,
the
Iudgment
was
stayed
,
and
afterwards
the
Verdict
was
rejected
,
and
a
Venire
facias
de
novo
awarded
.
CLXVI
.
Grove
and
Sparre
's
Case
.
Hill.
30
Eliz.
In
the
Common
Pleas.
AN
Action
of
Trespass
was
brought
by
Grove
against
Sparre
,
Process
continued
untill
Sparre
was
outlawed
;
and
now
it
was
moved
unto
the
Court
,
to
avoid
the
Outlawry
,
That
the
original
Writ
,
and
all
the
Iudicial
Process
thereupon
are
directed
Vice-Com
.
Wigorn.
and
in
the
Filazar's
Roll
,
in
the
Margent
is
written
,
Hereford
,
and
in
the
body
of
the
said
Roll
is
written
,
Et
praedictus
Grove
obtulit
se
quarto
die
post
,
Et
Vicecomes
modo
mandat
.
quod
praedictus
Spar
non
est
inventus
,
&c.
Ideo
praeceptum
est
Vicecom.
&c.
and
at
the
Capias
retorned
,
it
is
entred
in
the
Roll
as
before
,
Hereford
:
whereas
the
Capias
is
directed
Vicecom.
Wigorn.
as
of
right
it
ought
to
be
:
and
the
Roll
was
perused
by
the
Court
,
and
it
was
,
ut
supra
,
and
that
without
any
suspicion
of
Rasure
;
for
which
the
Court
gave
day
to
the
Queens
Serjeants
to
advise
themselves
to
maintain
the
Outlawry
;
and
the
Defendants
Council
prayed
,
That
a
Recordatur
be
made
in
what
Estate
the
Roll
now
is
,
for
doubt
of
amendment
by
way
of
Rasure
,
or
otherwise
;
which
was
granted
by
the
Court.
CLXVII
.
Rushton
's
Case
.
Mich.
33
Eliz.
In
the
Exchequer
.
RUshton
was
indebted
to
the
Queen
in
200
marks
,
quorundam
annorum
adhuc
venturorum
;
and
the
debt
of
the
Queen
did
begin
12
Febr.
17
Eliz.
Exception
was
taken
to
this
Office
,
because
that
the
term
is
not
certainly
found
but
generally
quorundam
annorum
;
and
it
was
said
by
Coke
,
That
the
Office
was
good
,
notwithstanding
that
Exception
,
for
the
Queen
is
a
stranger
to
the
Lease
,
and
therefore
ought
not
to
be
forced
to
find
the
precise
certainty
;
which
see
in
Partridge's
Case
in
Plowd
.
The
Defendant
had
made
a
Lease
Pro
termino
quorundam
annorum
contra
formam
statuti
:
Also
Rushton
came
not
to
the
Lease
by
Contract
,
but
by
compulsary
means
,
as
by
Execution
,
&c.
And
here
we
are
not
in
the
Case
of
pleading
,
but
of
an
Office
,
where
such
precise
form
is
not
requisite
:
As
if
it
be
found
by
Office
,
that
J.
S.
was
seised
in
tail
,
without
shewing
of
whose
gift
the
same
was
,
it
is
good
;
so
an
Indictment
,
De
morte
cujusdam
hominis
ignoti
,
the
same
is
good
,
but
such
Endictment
taken
before
the
Coronor
,
is
not
good
:
And
that
a
Lease
for
years
may
be
extended
,
see
21
Ass.
6.
If
a
man
be
indebted
to
the
Queen
,
being
a
Lessee
for
years
,
and
afterwards
before
any
Extent
comes
,
sells
his
term
,
the
same
cannot
be
extended
after
.
And
here
it
appears
,
That
this
Lease
was
to
begin
at
a
day
to
come
,
and
that
the
Lessee
did
enter
before
the
day
,
by
which
he
was
a
Disseisor
;
and
so
he
said
he
had
lost
his
term
.
Tenant
for
the
life
of
another
is
disseised
,
and
dieth
,
he
remains
a
Disseisor
,
and
the
occupancy
doth
not
qualifie
such
disseisin
:
And
afterwards
the
Inquisition
for
the
incertainty
aforesaid
was
holden
void
,
and
a
new
Commission
was
awarded
.
CLXVIII
.
Holland
and
Boin
's
Case
.
Mich.
29
Eliz.
In
the
Common
Pleas.
IN
a
Replevin
by
Thomas
Holland
against
William
Boin's
,
Thomas
Audley
,
Chancellor
of
England
,
and
his
Heirs
,
who
entred
and
died
seised
,
and
that
the
said
Manor
,
inter
alia
,
descended
to
Mary
,
daughter
and
Heir
of
the
said
Thomas
Audley
,
who
entred
,
and
also
died
seised
,
by
force
whereof
the
said
Manor
descended
to
the
said
Thomas
Lord
Howard
,
&c.
and
shewed
,
that
the
said
conveyance
,
by
the
prioress
to
Audley
bore
date
4
Novemb.
29
H.
8.
and
then
enrolled
in
the
Chancery
.
The
Plaintiff
in
Bar
of
the
Avowry
,
shewed
,
that
after
the
making
and
enrolling
of
the
said
Conveyance
,
the
said
Prioress
Leased
the
said
land
to
Sir
H.
Parker
for
99
years
,
and
conveyed
the
said
land
to
him
,
and
shewed
farther
,
That
the
said
Conveyance
specified
in
the
Conusans
was
primo
deliberatum
,
4
Nov.
31.
H.
8.
Absque
hoc
,
that
the
said
Prioress
,
the
said
4
Novembris
,
29
H.
8.
dedit
&
concessit
,
the
said
Manor
to
the
said
Audley
,
upon
which
it
was
demurred
in
Law
;
and
the
Court
was
clear
of
opinion
,
That
the
averment
of
primo
deliberatum
,
against
a
Deed
enrolled
ought
not
to
be
reversed
,
for
by
the
same
reason
it
may
be
averred
never
delivered
,
and
so
upon
the
matter
,
Non
est
factum
:
And
it
was
farther
objected
,
That
bargain
and
sale
by
a
Corporation
is
not
good
;
for
a
Corporation
cannot
be
seised
to
another
use
,
and
the
nature
of
such
Conveyance
is
to
take
effect
by
way
of
use
in
the
Bargainee
,
and
after
the
Statute
to
draw
the
possession
to
the
use
;
But
the
Court
utterly
rejected
that
Exception
was
dangerous
,
(
scil.
)
the
Conveyance
of
the
Prioress
was
not
well
pleaded
;
for
it
ought
to
be
plead
as
a
Bargain
and
Sale
,
and
not
as
a
grant
:
and
Judgment
was
given
accordingly
.
for
such
was
the
Conveyance
of
the
greater
part
of
the
possessions
of
Monasteries
:
And
by
Shuttleworth
Serjeant
,
Although
such
a
Corporation
cannot
take
an
Estate
to
the
use
of
another
,
yet
they
may
charge
their
possessions
with
an
use
to
another
.
CLXIX
.
Venable
's
and
Serjeant
Harris
's
Case
.
Mich.
28
&
29
Eliz.
In
the
King
's
Bench.
Thomas
Venables
in
tail
,
who
3
Eliz.
was
attainted
of
Felony
;
23
Eliz.
was
a
general
pardon
:
Thomas
Venables
24
Eliz.
levied
a
Fine
,
and
suffered
a
common
Recovery
to
the
use
of
Harris
Serjeant
.
An
Office
is
found
,
Harris
traverseth
the
Office
,
and
upon
that
there
is
a
demurrer
.
Leke
argued
,
That
traverse
doth
not
lie
in
this
Case
:
4
H.
7.
7.
where
the
King
is
entitled
by
double
matter
of
Record
,
the
party
shall
not
be
admitted
to
traverse
,
nor
to
his
Monstrans
de
Droit
,
but
is
put
to
his
Petition
,
which
see
,
3
E.
4.
23.
in
the
Case
of
the
Earl
of
Northumberland
,
Thomas
Venables
is
utterly
disabled
to
do
any
Act
;
for
by
Bracton
,
a
person
attaint
,
shall
forfeit
Patriam
,
Regnum
&
Haereditatem
suam
:
11
H.
4.
one
was
attainted
of
Felony
,
and
before
Office
found
,
the
King
granted
over
his
Lands
:
Also
he
is
not
helped
by
the
general
pardon
;
for
before
the
general
pardon
,
he
had
a
special
pardon
,
so
as
the
general
pardon
non
operatur
.
But
the
Iustices
said
,
The
forfeiture
did
remain
untill
the
general
pardon
.
Harris
,
contrary
;
And
he
put
the
case
of
Sir
James
Ormond
,
4
H.
7.
7.
where
the
King
is
entitled
by
matter
of
Record
,
and
the
subject
confesseth
the
King's
title
,
and
avoids
it
by
matter
of
as
high
nature
as
that
is
for
the
King
,
Traverse
in
that
case
lieth
:
and
if
the
King
be
entitled
by
double
matter
of
Record
,
if
the
party
doth
avoid
one
of
the
said
Records
by
another
Record
,
he
shall
be
admitted
to
his
traverse
;
and
so
here
we
have
the
pardon
,
which
is
a
Record
,
and
that
shall
avoid
the
Record
of
the
King
:
See
3
E.
4.
24.
in
the
Earl
of
Northumberland's
Case
;
and
here
the
pardon
hath
purged
the
forfeiture
,
in
respect
of
the
offence
:
and
he
said
,
Tenant
in
tail
being
attainted
of
Felony
,
shall
not
lose
his
lands
,
but
the
profits
onely
,
for
he
hath
his
Estate
by
the
Will
of
the
Donor
,
and
there
is
a
confidence
reposed
in
him
:
as
in
Walsingham's
Case
,
he
cannot
grant
his
Estate
over
:
and
see
Wrothe's
Case
;
An
annuity
granted
,
pro
Consilio
impendendo
cannot
be
granted
over
or
forfeited
,
for
there
is
confidence
:
And
see
Empson's
Case
,
and
Dyer
2.
29
Ass.
60.
If
the
issue
in
tail
be
outlawed
of
Felony
in
the
life
of
his
father
,
and
getteth
his
Charter
of
pardon
in
the
life
of
his
father
,
after
the
death
of
his
father
he
may
enter
;
but
by
Thorp
,
If
the
issue
in
tail
getteth
his
Charter
of
pardon
after
the
death
of
his
father
,
then
the
King
shall
have
the
profits
of
the
lands
during
the
life
of
the
issue
:
And
the
Case
of
Cardinal
Pool
was
debated
in
the
Parliament
,
Adrian
Poynings
,
who
was
an
Alien
,
and
afterwards
is
made
a
Denizen
,
and
the
King
pardons
him
,
and
releaseth
unto
him
all
his
right
in
the
said
Lands
without
any
words
of
Grant
;
and
it
was
adjudged
,
the
same
shall
bind
the
King.
And
he
said
,
that
he
had
found
a
good
precedent
,
14
H.
7.
where
a
general
pardon
before
seisure
into
the
King's
hands
was
allowed
,
contrary
after
seisure
without
words
of
Grant.
See
Br.
29
H.
8.
Charter
of
Pardon
52.
If
a
man
be
attainted
of
Felony
,
and
the
King
pardons
him
all
Felonies
,
&
executiones
eorundem
,
the
same
shall
not
serve
for
life
and
Land
,
if
no
Office
be
found
,
but
it
shall
serve
for
the
Goods
without
words
of
Restitution
and
Grant
;
for
the
King
is
entituled
to
them
by
Outlawry
without
Office
,
but
the
King
is
not
entituled
to
the
Lands
untill
Office
be
found
:
See
ibid.
33
H.
8.
71.
The
Heir
intrudes
,
and
before
Office
found
the
King
pardons
;
now
the
Heir
is
discharged
as
well
of
the
issues
and
profits
,
as
of
the
Intrusion
it self
,
and
also
of
Livery
:
But
a
pardon
given
after
Office
is
available
for
the
Offence
,
but
not
for
the
issues
and
profits
:
And
he
cited
the
Case
of
Cole
in
the
first
Commentaries
,
where
a
pardon
was
granted
Mesne
betwixt
the
stroke
and
the
death
:
See
35
H.
6.
1.
1
E.
4.
1.
8
Eliz.
Dyer
249.
Brereton's
Case
,
11
Eliz.
Dyer
284
,
285.
Egerton
,
Solicitor
to
the
contrary
;
This
Traverse
is
not
good
;
for
he
that
traverseth
,
hath
not
made
Title
to
himself
as
he
ought
,
upon
which
the
Queen
may
take
Issue
;
for
it
is
at
the
Election
of
the
Queen
to
maintain
her
own
Title
,
or
traverse
the
Title
of
the
party
.
At
the
Common
Law
,
no
Traverse
lay
but
where
the
Livery
might
be
sued
;
but
that
is
helped
by
the
Statute
of
34
E.
3.
cap.
14.
but
where
the
King
is
entituled
by
double
matter
of
Record
(
as
in
our
case
he
is
)
no
Traverse
is
allowed
until
2
E.
6.
cap.
8.
And
in
such
case
two
things
are
requisite
:
1.
That
the
Office
be
untruly
found
:
2.
That
the
party
,
who
is
to
be
admitted
to
his
Traverse
,
have
just
Title
or
Interest
of
Estate
of
Freehold
,
&c.
But
in
our
case
,
The
Office
is
confessed
by
the
Traverse
to
be
true
,
although
that
the
Conveyance
be
not
truly
found
:
Also
Harris
,
at
the
time
of
the
Office
found
,
had
not
just
Title
but
an
interest
came
unto
him
long
time
after
the
Office
found
:
Also
the
Traverse
is
not
good
,
for
he
traverseth
the
matter
of
the
Conveyance
,
which
is
not
traversable
;
for
if
the
King
hath
Title
,
non
refert
quomodo
,
or
by
what
Conveyance
he
hath
it
.
As
to
the
matter
in
Law
,
(
scil.
)
Tenant
in
tail
in
Remainder
is
attainted
of
Felony
,
if
the
King
during
the
life
of
Tenant
in
tail
shall
have
the
freehold
?
and
he
conceived
that
he
should
,
for
it
shall
not
be
in
abeyance
,
and
it
cannot
be
in
any
other
;
for
when
he
is
attainted
,
he
is
dead
as
unto
the
King.
The
chief
Lord
cannot
have
it
,
for
Tenant
for
life
is
alive
,
and
also
he
in
the
Remainder
in
Fee
,
&c.
the
Donor
shall
not
have
it
,
for
the
Tenant
in
Remainder
is
not
naturally
dead
,
but
civilly
;
and
the
Land
cannot
revert
before
the
Tenant
in
tail
be
naturally
dead
without
issue
:
but
if
there
were
any
other
in
whom
the
Freehold
might
vest
and
remain
,
then
the
King
should
not
have
the
Freehold
,
but
onely
the
profits
.
So
if
the
Tenant
be
attainted
,
the
Lord
shall
have
the
Lands
presently
;
3
E.
3.
4
E.
3.
The
Husband
,
seised
in
the
right
of
his
Wife
,
is
attainted
of
Felony
;
the
King
shall
have
but
the
profits
,
for
the
Freehold
vests
in
the
Wife
,
and
if
the
Lord
entreth
,
the
Wife
shall
have
an
Assise
.
And
Tenant
in
tail
may
forfeit
for
his
life
,
as
he
may
grant
for
his
life
:
See
Old
N.
B.
99.
If
Tenant
in
tail
,
for
life
,
dower
,
or
by
the
curtesie
,
be
attainted
of
Felony
,
the
King
shall
have
the
Lands
during
their
lives
;
and
after
their
deceases
,
he
in
the
Reversion
shall
sue
unto
the
King
by
Petition
,
and
shall
have
the
Lands
out
of
the
King's
hands
:
and
there
it
is
farther
said
,
That
the
Lord
by
Escheat
cannot
have
it
,
for
the
party
attainted
was
not
his
very
Tenant
,
nor
he
in
the
Reversion
,
for
the
term
yet
endures
.
But
now
it
is
to
see
,
if
the
Freehold
be
in
the
King
without
Office
?
and
he
conceived
and
argued
,
that
it
was
:
Where
the
King
is
entituled
to
an
Action
,
there
the
King
ought
to
have
an
Office
,
and
a
Scire
facias
upon
it
:
as
where
the
King
is
entituled
to
a
Cessavit
,
Action
of
Waste
,
&c.
14
H.
7.
21.
where
the
Entry
in
case
of
a
common
person
is
necessary
,
there
it
is
requisite
that
there
be
an
Office
for
the
King
:
As
if
a
Villain
of
the
King
purchaseth
Lands
,
or
an
Alien
born
,
&c.
so
for
a
condition
broken
,
Mortmain
,
&c.
And
in
some
cases
,
an
Office
is
onely
necessary
to
instruct
the
King
how
he
shall
charge
the
Officer
for
the
profits
which
may
be
supplied
as
well
by
Survey
,
as
by
Office
:
as
if
the
King
be
to
take
by
descent
,
or
as
the
Case
is
here
.
And
true
it
is
,
that
a
person
attainted
of
Felony
may
during
his
Attainder
purchase
Lands
,
and
yet
he
cannot
hold
it
against
the
King
:
and
it
is
clear
,
that
by
the
Common
Law
in
such
cases
,
the
Land
was
in
the
King
,
but
not
to
grant
,
for
the
Statute
of
18
H.
6.
was
an
impediment
to
it
:
but
now
that
defect
is
supplied
by
the
Statute
of
31
H.
8.
cap.
20.
So
that
now
the
King
may
grant
without
Office
:
See
Doughtie's
Case
,
26
Eliz.
And
in
our
Case
,
an
Office
is
not
necessary
to
entitle
the
King
,
but
for
explaining
of
his
Title
:
and
see
9
H.
7.
2.
The
Lands
of
a
man
attainted
of
High
Treason
are
in
the
King
without
Office
;
so
where
the
King's
Tenant
dieth
without
Heir
;
or
Tenant
in
tail
of
the
Gift
of
the
King
dieth
without
issue
:
See
Br.
Office
before
the
Escheator
34.
and
see
13
H.
4.
270.
A
man
is
attainted
of
Treason
,
the
King
before
Office
grants
his
Lands
and
Goods
.
Things
which
lie
in
Grant
,
as
Advowsons
,
Rents
,
Remainder
,
such
things
upon
Attainder
are
in
the
King
without
Office.
As
to
the
general
pardon
of
23
Eliz.
he
said
,
That
that
doth
not
extend
to
this
Case
;
and
that
this
interest
of
the
Queen
by
this
Attainder
doth
not
pass
by
that
pardon
out
of
the
Queen
,
so
if
the
Queen
had
but
a
Right
or
Title
onely
.
Popham
,
Attorney
General
;
By
this
Attainder
the
Estate
of
him
in
the
Remainder
in
tail
,
accrueth
unto
the
Queen
for
the
life
of
him
in
the
Remainder
;
for
by
our
Law
,
Felony
is
punished
by
the
death
of
the
Offendor
,
and
the
loss
of
his
Goods
and
Lands
for
the
examples
of
others
,
therefore
nothing
is
left
in
the
party
:
Tenant
for
life
is
attainted
of
Felony
,
the
King
pardoneth
him
his
life
,
yet
he
shall
have
his
Lands
during
his
life
,
and
he
may
dispose
of
the
same
for
his
life
:
And
so
is
it
of
Tenant
in
tail
,
for
he
may
forfeit
all
that
which
he
hath
,
and
that
is
an
Estate
for
his
life
,
which
is
a
Freehold
.
If
Lands
be
given
to
one
and
his
Heirs
for
the
term
of
the
life
of
another
,
and
the
Donee
be
attainted
of
Felony
,
the
King
shall
have
the
Land
during
the
life
of
Cestuy
que
vie
,
for
the
Heir
cannot
have
it
,
because
the
bloud
is
corrupt
,
and
there
is
not
any
occupancy
in
the
case
:
for
17
E.
3.
the
Iustices
would
not
accept
of
a
Fine
for
the
life
of
another
,
because
there
might
be
an
Occupant
in
the
case
:
But
for
a
Fine
of
Land
to
one
and
his
Heirs
for
the
life
of
another
,
they
would
take
a
Fine
,
for
there
is
no
mischief
of
occupancy
.
Land
is
given
to
A.
for
life
,
the
Remainder
to
B.
for
life
,
the
Remainder
to
the
right
Heirs
of
A.
who
is
attainted
of
Felony
;
B.
dieth
,
now
the
King
hath
the
Fee
executed
.
And
here
in
our
Case
,
If
the
Tenant
for
life
had
been
dead
,
no
Praecipe
had
lien
against
him
in
the
Remainder
being
in
possession
,
but
the
party
who
hath
right
is
to
sue
unto
the
King
by
Petition
.
4
E.
3.
If
one
seised
of
Lands
in
the
right
of
his
Wife
for
life
be
attainted
,
the
King
shall
have
exitus
&
proficua
:
but
he
conceived
that
Case
not
to
be
Law
:
For
see
F.
N.
B.
254
D.
The
Husband
seised
in
the
right
of
his
Wife
in
Fee
,
is
outlawed
for
Felony
,
the
King
seiseth
,
the
Husband
dieth
;
now
shall
issue
forth
a
Diem
clausit
extremum
,
the
words
of
which
Writ
in
such
case
are
,
Quia
A.
cujus
Terr
.
&
Tenement
.
quae
ipse
tenuit
de
jure
&
haereditate
N.
uxoris
suae
adhuc
superstitis
occasione
ejusdem
Utlagar'
in
ipsum
pro
quadam
Felonia
unde
indictatus
fuit
,
&c.
in
Man
.
Domini
H.
patris
nostri
extiterunt
,
&c.
therefore
the
King
had
not
the
issues
onely
,
but
also
the
Lands
:
See
to
the
same
purpose
the
Register
292.
b.
Stamford's
Placita
Coronae
,
186
,
187.
affirms
,
That
Tenant
in
tail
being
attainted
of
Felony
,
shall
forfeit
his
Lands
during
his
life
.
And
he
said
,
that
the
Estate
of
Thomas
Venables
was
in
the
King
without
Office
not
to
grant
,
for
that
is
restrained
by
the
Statute
of
18
H.
6.
but
it
is
in
him
before
Office
,
so
as
he
who
hath
right
ought
to
sue
to
the
King
by
Petition
,
if
he
will
have
his
Land
:
yet
he
conceived
,
that
before
the
Statute
of
18
H.
6.
the
King
might
grant
the
Land
before
Office
,
as
it
appeareth
by
Thirning
,
13
H.
4.
278.
who
was
before
the
said
Statute
:
So
if
the
King's
Tenant
makes
a
Lease
for
years
,
the
Remainder
over
to
another
in
Fee
,
who
dieth
without
Heir
;
the
Remainder
is
in
the
King
without
Office
,
because
a
common
person
in
such
case
cannot
enter
,
but
a
claim
is
sufficient
,
and
therefore
it
shall
be
in
the
King
without
Office.
As
to
the
pardon
,
he
said
,
That
it
doth
not
extend
to
this
Estate
,
for
this
is
a
Freehold
,
ergo
,
not
within
the
pardon
:
As
if
the
King's
Tenant
be
attainted
of
Felony
,
and
the
King
pardons
him
all
offences
,
and
all
things
which
he
may
pardon
,
these
words
shall
not
go
nor
extend
to
Freeholds
,
but
onely
unto
personal
matters
,
and
such
punishments
and
peins
which
do
concern
Chattels
.
But
it
may
be
objected
,
That
by
this
pardon
,
Title
of
Quare
Impedit
,
and
Re-entries
for
Conditions
broken
are
excepted
;
and
therefore
if
they
had
not
been
excepted
,
they
had
been
remitted
by
the
pardon
;
and
therefore
this
pardon
shall
extend
to
Inheritances
and
Freeholds
:
As
to
that
,
I
say
,
That
such
Exceptions
were
not
in
use
in
the
time
of
H.
4.
and
yet
Inheritances
and
Freeholds
were
not
taken
to
be
within
such
pardons
,
and
such
Exceptions
did
begin
5
Eliz.
And
he
said
,
he
had
been
of
Council
in
such
Cases
where
it
hath
been
taken
,
that
such
pardons
did
not
extend
to
Freeholds
:
As
an
Abbat
was
disseised
,
and
afterwards
during
the
Disseisin
the
Abby
is
dissolved
;
the
King
makes
such
pardon
,
the
same
doth
not
transfer
the
Right
of
the
King
,
and
in
that
Pardon
are
divers
Exceptions
of
Goods
and
Chattels
in
many
cases
,
and
therefore
it
cannot
be
intended
that
the
pardon
doth
extend
to
Freeholds
.
And
see
the
said
Act
of
pardon
:
The
Queen
grants
all
Goods
,
Chattels
,
Debts
,
Fines
,
Issues
,
Profits
,
Amercements
,
Forfeitures
,
Sums
of
Moneys
;
which
word
[
Forfeiture
]
shall
be
intended
of
a
personal
Forfeiture
,
&
non
aliter
,
for
it
is
coupled
with
things
of
such
nature
.
And
as
to
the
Traverse
,
he
said
,
It
did
not
lie
in
this
Case
;
for
the
Office
is
not
untrue
,
but
true
in
substance
,
although
void
in
circumstance
:
And
also
the
King
here
is
entituled
by
double
matter
of
Record
,
(
scil.
)
the
Attainder
and
the
Office
:
and
he
said
that
the
Statutes
of
34
and
36
E.
3.
which
gave
Traverse
,
are
to
be
intended
of
Offices
found
virtute
Officii
,
and
not
virtute
Brevis
,
for
then
Efcheators
were
very
troublesome
:
And
the
Statute
of
2
E.
6.
doth
not
give
Traverse
,
but
where
the
Office
is
untruly
found
;
as
if
Tenant
of
the
King
be
disseised
,
and
the
Disseisor
be
attainted
;
the
Queen
seiseth
the
Land
:
Now
the
Disseisee
hath
not
remedy
by
Traverse
upon
the
Statute
of
2
E.
6.
but
is
put
to
his
Monstrans
de
Droit
,
for
the
Office
is
true
:
But
if
I
be
Tenant
of
the
King
,
and
seised
of
Land
accordingly
,
and
it
was
found
that
J.
S.
was
seised
of
my
Land
,
and
attainted
,
&c.
whereas
in
truth
he
had
not
any
thing
in
my
Land
,
there
Traverse
lieth
,
for
the
Office
is
false
;
and
so
in
our
Case
,
for
the
Traverse
it
is
at
the
Common
Law
:
and
it
was
true
that
Venables
was
seised
.
Coke
to
the
contrary
;
and
he
said
,
That
by
the
Attainder
the
Queen
hath
gained
but
a
Chattel
;
and
that
notwithstanding
this
Forfeiture
,
if
Venables
had
been
in
possession
,
a
Praecipe
should
be
brought
against
him
:
And
where
it
hath
been
said
by
Mr.
Attorney
,
That
Writs
set
down
in
the
Register
are
the
best
Expositours
of
our
Law
,
the
same
is
not
so
;
for
the
Register
saith
,
That
Waste
lieth
notwithstanding
a
Mesn
Remainder
,
which
is
not
now
Law
,
but
it
hath
been
clearly
ruled
to
the
contrary
:
and
see
accordingly
50
E.
3.
the
Register
therefore
and
the
Writs
are
subject
to
the
Iudgment
of
our
Law
;
and
the
Writ
of
Diem
clausit
extremum
is
not
to
the
contrary
;
for
I
confess
,
that
in
such
case
the
Land
shall
be
seised
into
the
hands
of
the
King
,
but
the
King
shall
not
have
but
a
Chattel
therein
:
It
hath
been
argued
,
It
may
be
granted
,
John
Salisbury
,
whose
Case
it
was
;
and
their
Lands
by
Act
of
Parliament
given
expresly
to
the
King
:
and
therefore
I
grant
that
their
Lands
were
in
the
King
before
Office.
Tenant
in
Fee
of
a
common
Lord
is
attainted
of
Felony
,
his
Lands
remain
in
him
during
his
life
until
the
Entry
of
the
Lord
,
and
where
the
King
is
Lord
untill
Office
be
found
:
but
in
the
Case
of
a
common
person
,
after
the
death
of
the
person
attainted
,
they
are
in
the
Lord
before
Entry
,
and
in
the
Case
of
the
King
before
Office
,
for
the
mischief
of
abeyances
.
And
see
the
Lord
Lovel's
Case
,
17
and
18
Eliz.
485
,
486.
Plow
.
where
it
is
holden
,
That
upon
Attainder
of
Treason
by
Act
of
Parliament
,
the
Lands
were
not
in
the
King
without
Office
in
the
life
of
the
party
attainted
,
upon
the
words
of
the
Act
,
shall
forfeit
.
See
Stamford
Prerogat.
54
,
55.
acc
.
He
said
,
That
this
interest
which
came
unto
the
King
by
this
Attainder
,
is
but
a
Chattel
,
and
then
it
is
remitted
by
the
Pardon
;
and
so
he
conceived
,
if
it
be
a
Freehold
:
For
the
words
of
the
general
Pardon
are
large
and
liberal
,
[
Pardon
and
release
all
manner
of
Treasons
,
&c.
and
all
other
things
,
Causes
,
&c.
]
and
here
Forfeitures
are
pardoned
;
and
this
word
[
things
]
is
a
transcendent
,
&c.
and
although
it
be
a
general
word
,
yet
by
the
direction
of
the
Act
of
general
Pardon
it
ought
to
be
beneficially
expounded
and
extended
,
as
if
all
things
had
been
specially
set
down
:
Also
the
words
are
,
[
Pardon
them
and
their
Heirs
,
]
therefore
the
Pardon
extends
to
Inheritance
,
for
otherwise
there
is
no
use
of
that
:
And
he
conceived
,
That
by
the
first
branch
of
this
Act
,
that
the
same
extends
to
Inheritances
,
and
to
acquit
the
Lands
of
all
incumbrances
,
for
every
Offence
not
excepted
,
for
there
is
the
word
[
Heirs
,
]
and
the
third
branch
concerns
onely
Chattels
,
and
that
is
by
the
word
[
Grant
,
]
where
the
first
is
by
words
of
acquittal
:
See
33
H.
8.
br.
Charter
of
Pardon
71.
Tenant
of
the
King
dieth
seised
,
the
Heir
intrudes
,
Office
is
found
;
by
Pardon
of
Parliament
all
Intrusions
are
pardoned
;
in
that
case
the
Offence
is
pardoned
,
but
not
the
issues
and
profits
of
the
Lands
;
but
by
a
Pardon
before
all
is
pardoned
.
But
here
in
our
case
the
Office
is
not
void
;
for
the
Statute
makes
all
Precepts
,
Commissions
,
&c.
void
,
being
awarded
upon
such
forfeiture
.
See
also
in
the
second
branch
,
Vexed
or
inquieted
in
Body
,
Goods
,
or
Lands
:
and
see
also
among
the
Exceptions
,
That
persons
standing
indicted
of
wilfull
Murther
,
and
Forfeiture
of
Goods
,
Lands
,
Tenements
,
grown
by
any
offence
by
such
person
:
By
which
he
said
,
that
if
such
Exception
had
not
been
,
the
Land
of
such
person
,
if
he
had
been
attainted
upon
such
Indictment
,
should
be
forfeited
:
as
to
the
Traverse
,
he
said
,
That
because
the
Office
is
true
,
our
Plea
is
in
the
nature
of
Monstrans
de
Droit
,
although
it
concludes
with
a
Traverse
:
We
vary
from
the
Office
in
number
of
the
persons
,
and
in
the
day
of
Feoffment
,
and
every
circumstance
in
case
of
the
King
is
to
be
traversed
,
and
our
Plea
in
substance
confesseth
and
avoideth
the
Offence
.
Although
that
here
the
King
be
intituled
by
double
matter
of
Record
,
(
scil.
)
the
Attainder
and
the
Office
:
yet
one
of
the
said
Records
,
(
scil.
)
the
Attainder
,
is
discharged
by
another
Record
,
(
scil.
)
the
Pardon
,
and
then
but
one
Record
remains
,
(
scil.
)
the
Office
,
and
therefore
our
Traverse
well
lieth
.
And
he
said
,
that
by
the
common
Law
there
was
a
Traverse
;
as
where
it
was
found
by
Office
,
that
the
Lessee
of
the
King
had
committed
Waste
,
or
had
cessed
for
two
years
;
and
that
in
such
case
the
Lessee
and
Tenant
,
in
an
Action
brought
against
them
,
may
traverse
the
Offence
;
therefore
there
was
a
Traverse
at
the
common
Law
,
where
the
King
was
entitled
by
single
matter
of
Record
:
So
upon
Office
finding
Alienation
without
Licence
,
there
was
a
Traverse
by
the
common
Law
:
See
Traverse
in
such
case
in
the
Case
of
William
de
Herlington
,
43
Ass.
28.
See
Br.
Traverse
of
Office
54.
Petition
is
by
the
common
Law
,
and
Traverse
by
the
Statute
:
Frowick
in
his
Reading
.
See
Stamf.
Prerogat
.
60.
That
Traverse
in
case
of
Goods
was
at
the
common
Law
,
but
for
Lands
by
Office
,
by
34
E.
3.
14.
for
before
the
remedy
was
by
Petition
.
See
Co.
4.
part
.
the
Sadler's
Case
55
,
56.
Traverse
was
at
the
common
Law
concerning
Freehold
and
Inheritance
,
but
that
was
in
special
Cases
,
(
scil.
)
when
by
the
Office
the
Land
is
not
in
the
King's
hands
,
nor
the
King
by
that
is
in
possession
,
but
onely
by
the
Office
is
entitled
to
an
Action
,
and
cannot
make
a
Seisure
without
Suit
,
for
there
in
a
Scire
facias
brought
by
the
King
in
the
nature
of
such
Action
to
which
he
is
entitled
,
the
party
may
appear
to
the
Scire
facias
,
and
traverse
the
Office
by
the
common
Law.
It
was
adjourned
.
CLXX
.
Scott
and
Scott
's
Case
.
Mich.
29
Eliz.
In
the
King
's
Bench.
George
Scott
,
2
H.
8.
being
Tenant
in
tail
of
certain
lands
,
suffered
a
common
Recovery
to
the
use
of
his
last
Will
;
and
15
H.
8.
made
his
Will
,
by
which
he
did
declare
,
That
the
Recoverors
should
make
a
good
and
favourable
Lease
to
Hugh
Scott
his
younger
brother
:
and
25
H.
8.
they
make
a
Lease
of
the
same
land
to
the
said
Hugh
for
199
years
according
to
the
Will
of
the
said
George
Scott
,
rendring
Rent
,
11
l.
6
s.
8
d.
payable
at
the
Feast
of
the
Annunciation
and
S.
Michael
,
by
equall
portions
,
and
that
to
the
Recoverors
,
their
Heirs
and
Assigns
;
and
there
was
a
Covenant
,
that
after
the
death
of
the
Recoverors
,
the
said
Rent
should
be
paid
to
Cestuy
que
use
,
his
Heirs
and
Assigns
,
any
thing
in
the
said
Indenture
notwithstanding
.
Proviso
,
That
if
the
Lesse
make
his
Heir
male
his
Assignee
of
that
term
,
that
then
he
shall
pay
the
said
Rent
to
the
Recoverors
,
their
Heirs
and
Assigns
,
and
the
Lessee
shall
not
pay
the
Rent
to
the
Heirs
of
Cestuy
que
use
,
upon
which
a
Distress
is
taken
,
and
thereupon
a
Replevin
brought
.
Drew
argued
for
the
Plaintiff
:
When
a
Condition
is
created
,
the
Law
saith
,
That
it
shall
be
taken
and
construed
favourably
in
the
behalf
of
him
who
is
to
perform
it
:
As
if
one
be
bounden
to
appropriate
such
a
Church
to
such
a
house
before
such
a
day
at
his
own
costs
,
and
the
Obligor
grants
a
Pension
out
of
the
said
Parsonage
,
and
afterwards
appropriates
the
said
Church
,
it
was
holden
that
the
Condition
was
well
performed
,
3
H.
7.
4.
A
Lease
for
years
upon
condition
,
to
scowre
the
Ditches
,
if
the
Lessee
scowreth
them
once
,
it
is
well
enough
:
And
as
to
this
word
Proviso
,
It
is
to
see
,
If
here
it
be
a
word
conditional
:
In
some
Cases
,
this
word
Pro
,
makes
a
Condition
,
as
45
E.
3.
8.
Grant
of
a
Ward
,
pro
bono
servitio
,
if
the
Grantee
departeth
out
of
his
service
,
the
Grant
is
void
:
So
if
an
Annuity
be
granted
unto
a
Physician
pro
consilio
impendendo
,
the
same
is
a
Condition
,
41
E.
3.
6.
For
the
Grantor
hath
not
means
to
compell
the
Grantee
to
give
his
Council
;
but
in
some
Cases
,
this
word
Pro
,
doth
not
make
a
Condition
:
As
if
before
the
Statute
of
West
.
3.
Land
was
given
pro
homagio
suo
,
there
,
if
the
Homage
be
not
done
,
the
Feoffor
could
not
re-enter
,
but
he
ought
to
distrain
.
And
I
conceive
,
that
in
our
Case
,
Proviso
doth
not
make
a
Condition
.
7
H.
6.
44.
A
Feoffment
in
Fee
with
Warranty
,
Proviso
,
that
the
Feoffee
shall
not
vouch
:
So
a
Grant
of
a
Rent-charge
,
Proviso
,
that
the
Grant
shall
not
extend
ad
onerand
.
personam
of
the
Grantor
;
for
here
the
Proviso
is
rather
an
Exception
than
a
Condition
:
A
Lease
for
years
without
impeachment
of
Wast
,
Proviso
,
that
he
shall
not
do
voluntary
Wast
,
the
same
is
a
Qualification
of
the
liberty
for
doing
Wast
.
Grant
of
a
Manor
,
Proviso
,
that
it
shall
not
extend
to
wood
growing
upon
the
Manor
,
the
same
is
an
Exception
,
not
a
Condition
.
See
the
Bishop
of
York's
Case
,
5
Eliz.
Dyer
222.
The
said
Bishop
made
a
Lease
for
certain
years
of
certain
Lands
,
Proviso
,
quod
tempore
vacationis
,
the
Rent
shall
be
paid
to
the
Chapter
,
It
was
holden
that
the
Proviso
was
not
a
Condition
.
And
here
in
this
Case
,
the
Will
of
George
Scott
was
,
That
the
Recoverors
should
make
to
the
said
Hugh
,
a
favourable
Lease
,
which
cannot
be
,
if
it
be
a
conditional
Lease
:
Another
point
was
;
because
the
Rent
is
not
well
demanded
;
for
he
hath
demanded
the
whole
Rent
of
the
year
,
whereas
but
half
a
years
Rent
was
onely
due
.
Coke
,
contrary
:
where
the
Proviso
is
parcel
of
one
sentence
which
contains
a
Covenant
,
or
abridgeth
the
Covenant
,
there
it
shall
not
amount
to
a
Condition
,
but
to
an
Exception
,
as
a
Grant
of
a
Rent-charge
,
Proviso
,
that
he
shall
not
charge
the
person
,
abridgeth
the
force
of
the
Grant
:
so
a
Lease
without
impeachment
of
Wast
,
Proviso
,
that
the
Feoffee
shall
not
do
voluntary
Wast
,
the
same
abridgeth
the
liberty
;
But
in
our
Case
,
this
Proviso
makes
a
Condition
,
and
not
a
Qualification
of
the
sentence
,
or
of
any
Covenant
contained
in
the
sentence
,
nor
doth
it
participate
altogether
with
the
sentence
,
but
stands
substantively
,
for
it
was
a
full
sentence
before
:
A
Feoffment
in
Fee
with
Warranty
,
Proviso
,
that
when
he
is
impleaded
,
he
shall
not
vouch
J.
S.
the
same
is
a
good
Condition
,
for
J.
S.
is
a
stranger
:
contrary
,
that
he
shall
not
vouch
the
Feoffor
:
And
a
Proviso
never
makes
a
Covenant
,
and
therefore
it
shall
be
either
a
Condition
,
or
void
.
And
he
said
,
That
by
the
devise
,
Hugh
Scott
had
a
Lease
without
any
Lease
to
be
made
by
the
Recoverors
.
As
unto
the
demand
of
the
whole
Rent
,
where
but
half
a
years
Rent
was
due
,
the
same
is
good
enough
.
And
so
was
it
adjudged
in
a
Case
betwixt
Andrew's
and
the
Lord
Cromwell
;
for
he
is
at
his
peril
to
pay
the
one
moyety
,
and
in
as
much
as
he
denieth
the
whole
,
he
denieth
every
part
.
It
was
adjorned
.
CLXXI.
Hawkins
's
Case
.
Mich.
29
Eliz.
In
the
King's-Bench
.
ONE
Hawkins
was
seised
of
three
Messuages
in
Bury
in
his
Demesit
as
of
Fee
,
and
had
issue
,
Robert
,
Christian
,
and
Joan
;
Who
shall
survive
:
But
when
one
overlives
,
he
shall
have
in
Fee
,
for
these
words
,
totam
illam
partem
,
go
to
the
whole
Estate
,
as
well
as
to
the
whole
Land
.
I
devise
my
Land
wholy
to
one
,
he
hath
Fee
thereby
:
And
he
said
that
the
three
Devisees
have
Fee-tail
,
and
Fee
expectant
each
severally
as
to
the
Messuage
to
him
limited
.
Golding
,
contrary
;
Each
hath
an
Estate
tail
in
the
house
devised
to
him
,
and
but
an
Estate
for
life
,
expectant
upon
the
death
of
the
other
without
issue
,
for
there
are
no
words
by
which
it
may
appear
what
Estate
he
shall
have
by
the
survivorship
.
I
grant
the
Case
which
Perkins
denies
,
but
Littleton
affirms
(
scil.
)
A
Devise
to
one
of
lands
in
perpetuum
;
for
there
the
intent
appeareth
;
But
where
there
are
not
words
of
Inheritance
,
nor
words
amounting
to
so
much
,
then
it
shall
be
but
an
Estate
for
life
:
And
as
to
the
words
,
totam
partem
illam
,
the
same
is
all
one
as
if
he
had
said
,
partem
illam
without
the
word
totam
.
And
also
he
said
,
That
where
one
onely
survives
,
no
farther
the
Estate
vests
;
for
there
ought
to
be
two
to
take
by
the
survivor
;
for
the
words
are
,
Equally
to
be
divided
betwixt
them
,
And
then
if
it
cannot
accrue
by
survivor
,
then
it
shall
descend
;
and
if
it
had
accrued
to
two
by
the
survivor
,
they
shall
be
thereof
Tenants
in
common
,
not
Ioynt-tenants
by
reason
of
these
words
,
Equally
to
be
divided
.
Clench
,
Iustice
,
The
words
,
Totam
illam
partem
,
go
to
the
house
,
and
not
to
the
Estate
in
it
:
Shute
,
Iustice
,
accordingly
:
and
he
said
,
If
both
daughters
had
survived
,
they
should
have
Fee
in
the
house
of
Robert
,
but
not
by
the
Will
,
but
by
descent
in
coparcenary
:
Also
when
two
are
dead
,
the
son
and
one
daughter
,
then
it
cannot
be
divided
,
therefore
the
Will
as
to
that
is
void
,
and
then
the
common
Law
shall
take
place
,
and
put
the
house
to
the
issue
of
one
daughter
,
and
of
the
other
daughter
surviving
.
Gawdy
,
Iustice
,
Here
is
but
an
Estate
for
life
in
the
survivor
;
It
hath
been
objected
,
That
then
having
but
an
Estate
for
life
,
the
same
Estate
is
drowned
by
the
descent
of
the
Fee-simple
,
so
as
now
the
Estate
limited
by
the
Will
,
is
void
;
To
which
it
may
be
answered
,
That
although
now
,
upon
the
matter
it
be
void
,
yet
,
Ab
initio
,
it
was
not
so
;
for
it
became
void
by
matter
of
later
time
,
(
scil.
)
by
the
descent
of
the
Fee-simple
;
for
if
one
of
the
daughters
had
died
without
issue
before
the
death
of
Robert
,
so
as
the
house
of
such
daughter
should
have
come
to
the
said
Robert
and
the
other
sister
,
there
is
no
coparcenary
,
for
the
son
hath
all
the
Fee
,
and
the
moyety
of
the
same
is
executed
,
and
the
other
moyety
expectant
,
and
the
sister
hath
a
moyety
for
life
,
and
then
the
Devise
not
void
:
Also
here
are
not
two
survivors
,
so
nothing
is
to
be
divided
,
and
therefore
the
Law
shall
say
,
that
the
house
of
Robert
is
descended
,
(
scil.
)
the
Fee
of
it
to
the
daughter
of
Christian
and
Joan
,
and
so
Iudgment
was
given
against
the
husband
,
who
claims
to
be
Tenant
by
the
Curtesie
of
the
whole
Messuage
.
CLXXII
.
Wye
and
Throgmorton
's
Case
.
Pasc.
27
Eliz.
In
the
Common
Pleas.
IN
Debt
upon
a
Bond
by
Wye
,
against
Throgmorton
,
The
Condition
of
the
Obligation
,
was
to
perform
Covenants
in
a
pair
of
Indentures
;
And
the
Covenant
wherein
the
breach
was
assigned
was
,
That
if
R.
W.
Brother
of
the
Plaintiff
,
should
say
,
Make
assurance
of
such
a
Manor
to
the
Defendant
,
as
the
Council
learned
of
the
said
Defendant
should
advise
,
Then
if
the
Defendant
pays
unto
the
Plaintiff
50
l.
the
Obligation
to
be
void
;
The
Defendant
by
advice
of
Council
,
demanded
a
Release
with
Warranty
,
&c.
And
by
Periam
and
Windham
,
The
same
is
not
any
Assurance
,
but
a
means
to
recover
in
value
.
Anderson
,
contrary
:
That
it
was
a
Collateral
Warranty
,
&c.
CLXXIII
.
Cropp
and
Hambleden
's
Case
.
Hill.
28
Eliz.
In
the
King
's
Bench.
Erasmus
Hambleden
,
upon
the
special
Verdict
,
the
Case
was
;
That
one
Martin
Hastings
was
seised
of
the
lands
,
where
,
&c.
in
the
right
of
his
wife
,
for
the
life
of
the
wife
;
and
that
they
both
did
Lease
unto
the
Defendant
for
years
,
rendring
Rent
,
payable
at
the
Feast
of
S.
Michael
,
and
the
Feast
of
the
Annunciation
,
&c.
with
clause
of
re-entry
,
if
the
Rent
be
behind
,
by
a
Month
after
any
of
the
said
Feasts
,
and
after
the
feast
of
S.
Michael
,
26
Eliz.
and
before
the
Month
expired
,
the
Lessee
,
the
now
Defendant
,
sent
his
servant
unto
the
house
of
the
Lessor
,
for
to
pay
to
him
the
Rent
then
due
;
the
servant
went
unto
the
house
of
the
Lessor
,
and
there
asked
for
him
,
to
whom
it
was
answered
by
one
Mary
Briggs
,
daughter
of
the
wife
of
the
Lessor
,
who
there
dwelt
in
the
said
house
with
her
mother
,
that
the
Lessor
was
not
at
home
,
for
which
the
said
servant
delivered
the
said
Rent
to
the
said
Mary
,
requiring
her
to
deliver
the
same
over
to
the
Lessor
,
upon
his
retorn
to
the
house
,
in
the
name
of
his
servant
;
Mary
reserved
the
said
Rent
,
and
upon
the
retorn
of
the
Lessor
,
at
his
house
,
told
him
all
the
matter
aforesaid
,
and
that
the
servant
of
the
Lessor
,
the
Defendant
,
had
required
her
to
tender
the
said
Rent
to
the
Lessor
,
in
the
name
of
the
Defendant
,
and
thereupon
offered
and
tendered
to
him
the
said
Rent
,
and
the
Lessor
refused
it
.
And
the
Iury
found
,
That
the
third
half
year
before
the
tender
mentioned
before
,
the
Lessor
commanded
the
said
Mary
to
receive
the
Rent
then
due
,
who
did
accordingly
,
and
that
the
next
half
year
then
following
,
the
said
Mary
did
receive
the
said
Rent
,
without
commandment
of
the
Lessor
,
but
after
the
Lessor
agreed
unto
it
,
and
that
the
immediate
half
year
before
this
tender
in
question
,
the
Defendant
paid
the
Rent
then
due
,
to
the
Lessor
himself
,
who
received
it
,
And
it
was
the
opinion
of
Wray
,
chief
Iustice
,
that
this
tender
was
good
,
and
it
is
not
like
unto
the
case
of
an
Obligation
;
for
there
the
Obligee
cannot
have
an
Action
of
Debt
before
the
last
day
:
but
here
the
Lessor
might
have
distrained
,
or
have
had
an
Action
of
Debt
before
the
Month
expired
,
and
so
the
Lessor
is
bound
by
this
tender
;
and
by
Gawdy
,
Iustice
,
This
tender
cannot
be
said
a
tender
by
a
stranger
,
for
here
Mary
came
in
privity
of
the
servant
of
the
Lessee
,
and
as
it
is
found
by
Verdict
,
Mary
tendered
it
to
the
Lessor
,
as
being
requested
by
the
servant
of
the
Lessee
:
And
afterwards
,
upon
consideration
had
betwixt
the
Iustices
themselves
;
the
Iustices
,
viz.
Clench
,
Gawdy
and
Wray
,
(
for
Shute
was
then
sick
)
it
was
clearly
resolved
against
the
Plaintiff
,
and
that
the
said
tender
,
as
it
is
found
in
the
Verdict
,
is
a
good
and
sufficient
tender
;
and
the
Lord
Wray
delivered
the
reason
,
as
before
,
and
farther
said
,
That
if
the
said
Rent
had
been
reserved
payable
at
the
feasts
aforesaid
,
or
within
a
Month
after
each
of
them
,
there
the
tender
as
above
,
had
not
been
good
,
nor
should
bind
the
Lessor
;
for
in
such
case
the
Lessor
could
not
distrain
,
or
have
an
Action
of
Debt
for
the
said
Rent
before
the
Month
expired
.
And
this
is
a
case
of
extremity
,
and
deserves
no
favour
;
and
here
is
no
mischief
to
the
Lessor
,
for
he
might
have
had
his
Rent
in
due
time
if
he
would
,
and
his
captious
refusal
shall
not
avail
him
;
And
Iudgment
was
given
accordingly
.
CLXXIV
.
Bostock
and
Covert
's
Case
.
Trin.
33
Eliz.
In
the
Common-Pleas
.
BOstock
and
his
Wife
brought
a
Writ
of
Dower
against
Covert
,
son
and
heir
of
her
former
Husband
,
who
pleaded
,
That
the
Husband
of
the
Demandant
was
seised
of
Lands
,
amounting
to
the
number
of
300
Acres
;
and
held
the
same
by
Knights-service
,
and
died
seised
,
after
whose
death
,
by
virtue
of
the
Statute
of
34
and
32
H.
8.
he
entred
into
100
Acres
of
the
said
Lands
,
as
the
third
part
of
the
said
Lands
descended
,
and
held
the
same
in
severalty
,
being
the
third
part
of
the
clear
yearly
value
of
the
whole
discharged
of
a
Dower
;
and
that
the
Wife
ought
to
have
all
her
Dower
out
of
the
two
parts
devised
.
And
Anderson
said
,
That
the
Plea
was
not
good
;
for
the
heir
who
will
take
advantage
of
the
Statute
in
that
point
,
ought
to
enter
generally
as
Tenant
in
common
with
the
Devisee
,
and
then
in
a
Writ
of
Dower
it
is
a
good
Plea
:
so
if
after
his
entry
as
Tenant
in
common
Partition
be
made
betwixt
him
and
the
Devisee
,
such
a
Plea
is
good
;
but
here
he
hath
entred
severally
into
a
third
part
,
distinct
from
the
residue
,
and
so
hath
ousted
the
Devisee
of
a
third
part
severally
;
for
which
cause
he
cannot
have
advantage
of
this
Plea
:
To
which
the
rest
of
the
Iustices
,
Non
contradixerunt
.
CLXXV
.
Sir
John
Southwel
's
Case
.
Pasch.
37
Eliz.
In
the
Exchequer
.
John
Southwel
of
the
County
of
Lancaster
,
7
Julii
,
19
Eliz.
made
a
Conveyance
of
his
Lands
to
divers
Feoffees
and
their
Heirs
,
upon
condition
,
that
they
should
find
him
and
his
Wife
,
and
so
many
persons
in
his
house
,
&c.
prefer
his
Daughters
in
marriage
,
pay
his
debts
,
&c.
And
if
there
fell
out
at
the
years
end
upon
accompt
made
by
the
Feoffees
any
surplusage
,
that
then
at
the
end
of
every
such
year
,
they
should
answer
such
surplusage
as
should
then
remain
in
their
hands
unexpended
of
the
Rents
and
profits
of
his
said
Lands
;
with
clause
of
revocation
,
&c.
Afterwards
,
the
said
Conveyance
being
in
force
,
came
the
Statute
of
23
Eliz.
concerning
Recusants
;
upon
which
Statute
,
the
said
Southwel
is
now
endicted
;
and
afterwards
upon
a
Commission
issuing
out
of
the
Exchequer
to
the
Sheriff
of
Lancaster
,
to
enquire
of
the
Lands
of
the
said
Southwel
,
although
against
the
said
Conveyance
it
was
given
in
Evidence
,
That
after
the
said
Conveyance
,
the
said
Sir
John
Southwel
had
granted
Trees
from
off
the
said
Lands
,
and
had
received
Fines
and
Incomes
for
Leases
,
&c.
yet
the
Iurors
charged
to
enquire
,
would
not
find
that
the
said
Sir
John
Southwel
had
any
Lands
,
&c.
And
by
special
command
from
the
Queen
,
it
was
referred
out
of
the
Exchequer
,
to
all
the
Iudges
of
England
,
If
the
Lands
of
the
said
Sir
John
Southwel
conveyed
as
aforesaid
,
were
subject
to
the
said
Statute
,
and
the
penalties
thereof
.
And
upon
a
great
deliberation
,
it
was
by
them
all
resolved
and
agreed
,
That
notwithstanding
the
said
Conveyance
,
the
said
Lands
were
liable
to
the
said
Statute
.
And
as
to
the
Iurors
,
who
against
the
Evidence
given
to
them
for
the
Queen
,
gave
their
Verdict
(
ut
supra
)
Process
was
awarded
against
them
out
of
the
Court
of
Exchequer
,
for
to
appear
before
the
Lord
Treasurer
and
the
Barons
.
And
for
their
said
contempt
,
they
were
committed
to
the
Fleet
,
and
each
of
them
fined
50
l.
CLXXVI
.
Moore
and
Savil
's
Case
.
Trin.
27
Eliz.
In
the
Exchequer
.
IN
an
Ejectione
firmae
,
by
Moore
against
Savil
,
the
Case
was
,
That
Tenant
in
tail
leased
the
Land
to
the
father
,
mother
and
son
for
their
lives
,
by
Indenture
,
in
which
it
was
comprehended
,
That
forasmuch
as
the
Lessor
is
but
Tenant
in
tail
,
and
so
cannot
by
Law
limit
these
Estates
by
way
of
Remainder
,
but
jointly
in
possession
;
and
his
intent
was
,
That
because
this
Lease
was
procured
and
obtained
at
the
special
suit
,
and
costs
and
charges
of
the
father
,
That
the
said
son
should
suffer
his
father
,
and
after
him
his
mother
,
to
take
the
profits
of
the
said
Lands
demised
,
and
to
occupy
and
hold
the
said
Lands
to
their
onely
profit
without
interruption
of
the
said
son
,
notwithstanding
his
joint
Estate
in
possession
with
them
,
Provisum
igitur
est
,
That
if
the
said
son
shall
challenge
,
claim
,
demand
or
take
any
profits
of
the
Lands
so
demised
,
or
enter
into
the
same
,
during
the
life
of
his
said
father
or
mother
,
That
then
the
Estate
to
him
limited
by
the
said
Indenture
should
cease
,
and
be
utterly
void
.
And
it
was
the
clear
opinion
of
the
whole
Court
,
That
this
Condition
and
Proviso
was
utterly
void
,
for
it
is
contrary
to
the
Estate
limited
before
;
as
in
the
Case
cited
by
Coke
at
the
Bar.
If
I
lease
to
you
my
Lands
for
20
years
,
Proviso
,
that
you
shall
not
occupy
the
same
the
two
first
years
,
the
same
Proviso
is
void
and
contrary
,
and
repugnant
to
the
Estate
.
CLXXVII
.
Lord
Cromwel
and
Townsend
's
Case
.
Mich.
28
Eliz.
In
the
Star-Chamber
.
HEnry
Lord
Cromwel
,
exhibited
a
Bill
in
the
Star-Chamber
,
against
Roger
Townsend
,
Esquire
,
for
that
the
said
Roger
Townsend
,
in
an
Action
betwixt
James
Taverner
Plaintiff
,
and
James
Cromwel
Farmor
,
of
the
said
Lord
Cromwel
Defendant
,
in
Trespass
,
in
the
favour
and
unlawfull
maintenance
of
the
said
Taverner
,
did
procure
a
partial
Iury
to
be
retorned
.
And
upon
the
hearing
of
the
Cause
,
the
matter
given
in
Evidence
was
,
That
the
said
Taverner
was
a
Copiholder
of
the
said
Lord
Cromwel
,
and
that
the
said
Lord
Cromwel
,
pretending
that
the
said
Taverner
had
forfeited
his
Copihold
,
caused
the
said
James
Cromwel
to
make
an
Entry
,
in
the
right
of
the
said
Lord
,
upon
the
said
Taverner
;
upon
which
Entry
,
Taverner
brought
an
Action
of
Trespass
against
the
said
James
Cromwel
,
in
which
Action
the
parties
were
at
Issue
upon
the
forfeiture
.
And
before
any
Venire
facias
issued
forth
,
Taverner
hearing
that
one
Steward
,
who
was
Bailiff
of
the
Franchize
,
under
the
Earl
of
Arundel
,
and
who
ought
to
make
the
Pannel
,
&c.
was
purposed
to
have
made
the
said
Pannel
not
duly
;
viz.
to
retorn
therein
,
great
Gentlemen
of
the
County
,
who
were
Lords
of
Manors
,
in
favour
of
the
said
Lord
Cromwel
,
went
unto
the
said
Roger
Townsend
,
who
was
then
one
of
the
principal
servants
and
agents
of
the
said
Earl
,
and
shewed
to
him
,
that
if
those
great
persons
and
Lords
of
Manors
be
retorned
for
the
trial
of
that
Issue
,
peradventure
they
would
not
so
easily
appear
for
the
expedition
of
the
parties
,
as
people
of
lesser
condition
;
and
also
many
of
them
being
Lords
of
Manors
,
and
having
customary
Tenants
,
and
therefore
not
indifferent
to
try
that
Issue
,
and
prayed
his
Order
to
the
said
Steward
,
for
the
making
of
an
indifferent
Pannel
;
where
,
upon
a
conference
with
the
said
Steward
for
the
making
of
an
indifferent
Pannel
,
and
shewing
to
him
,
the
making
of
the
said
Pannel
was
not
convenient
,
or
any
equal
course
to
retorn
Knights
,
Esquires
or
Lords
of
Manors
,
but
rather
such
sufficient
persons
,
for
the
greater
expedition
of
Iustice
,
and
indifferency
of
the
trial
;
And
afterwards
the
said
Taverner
exhibited
a
Petition
,
shewing
all
the
special
matter
,
and
praying
him
to
give
Order
for
the
making
of
an
indifferent
Pannel
for
the
trial
of
that
Cause
,
which
Petition
was
delivered
to
the
said
Earl
by
the
said
Townsend
,
in
the
name
of
the
said
Taverner
.
Vpon
which
the
Earl
did
refer
the
said
matter
to
three
of
his
chiefest
agents
and
Counsellours
,
i.
Dicksey
,
Townsend
and
Carrel
,
and
delivered
to
them
the
Book
of
Freeholders
within
the
said
Franchise
,
who
,
according
to
their
Commission
made
a
Pannel
,
which
was
retorned
;
and
the
Iury
passed
with
the
said
James
Cromwel
in
the
right
of
the
said
Lord
:
And
if
this
intermedling
of
Townsend
with
this
matter
,
as
abovesaid
,
&c.
especially
his
conference
with
the
Bailiff
,
be
maintenance
or
not
,
was
the
Question
.
And
by
the
Lord
Anderson
and
the
Lord
Wray
,
chief
Iustices
,
It
was
delivered
for
Law
,
That
because
the
said
Townsend
was
in
manner
a
servant
of
the
said
Earl
,
who
had
retorn
of
Writs
,
and
one
of
his
principal
Counsellours
and
agents
,
and
hearing
,
Ex
insinuatione
,
of
the
said
Taverner
,
the
misdemeanour
of
the
Bailiff
of
his
Lord
could
not
do
better
,
than
to
shew
to
the
Bailiff
his
duty
,
for
it
concerned
the
honour
of
his
Lord
,
and
also
his
Inheritance
in
the
Franchise
;
But
if
the
said
Townsend
had
been
a
mere
stranger
to
the
said
Earl
,
so
as
no
such
privity
had
been
betwixt
them
,
it
had
been
clearly
maintenance
in
Townsend
;
as
it
was
lately
adjudged
in
this
Court
,
in
the
Case
of
one
Gifford
;
CLXXVIII
.
Sir
Moil
Finch
's
Case
.
33
Eliz.
In
the
Exchequer
.
Queen
,
Philip
and
Mary
,
leased
for
seventy
years
for
certain
Rent
payable
at
the
Feasts
of
Saint
Michael
and
the
Annunciation
;
Proviso
,
that
if
the
Rent
be
behind
,
and
not
paid
by
the
space
of
forty
days
after
any
of
the
Feasts
aforesaid
,
that
the
Lease
shall
cease
and
be
void
.
At
Mich.
9
Eliz.
the
Rent
was
not
paid
according
to
the
Proviso
,
but
a
Month
after
the
said
forty
days
it
was
paid
,
and
Acquittance
given
for
it
;
and
so
the
Rents
due
after
unto
30
Eliz.
were
duly
paid
,
and
Acquittances
given
for
the
same
.
The
Queen
gave
and
granted
the
Reversion
in
Fee
to
Sir
Thomas
Henage
,
&c.
and
after
it
was
found
by
Office
that
the
Rent
was
arrear
,
ut
supra
:
Sir
Thomas
Henage
entred
,
and
leased
for
years
to
Sir
Moil
Finch
,
who
being
ejected
,
brought
a
Quo
minus
in
the
nature
of
an
Ejectione
Firmae
,
&c.
It
was
argued
by
Coke
,
That
this
Lease
upon
the
matter
aforesaid
is
avoidable
by
the
Patentee
,
and
that
without
Office
;
for
the
conclusion
of
the
Proviso
is
not
,
that
the
Queen
shall
re-enter
,
but
that
the
Lease
shall
cease
and
be
void
:
and
the
Queen
is
not
driven
to
demand
her
Rent
,
as
in
such
case
a
Subject
is
tied
.
And
he
compared
it
to
the
Case
of
a
common
person
;
If
a
common
person
leaseth
for
years
,
upon
condition
,
that
if
the
Lessee
doth
not
build
upon
the
Land
demised
a
House
within
a
year
after
,
that
the
Lease
shall
be
void
,
and
afterwards
grants
the
Reversion
to
a
stranger
:
the
Grantee
shall
have
advantage
of
this
Condition
,
be
it
broken
before
or
after
the
Grant
;
for
the
Lease
in
such
case
is
void
,
not
onely
voidable
;
and
the
reason
is
,
because
the
Condition
is
collateral
:
which
see
11
H.
7.
17.
A
Lease
for
years
is
made
upon
Condition
,
that
if
the
Lessee
doth
not
go
to
Rome
before
such
a
day
,
that
the
Lease
shall
be
void
;
the
Lessor
grants
the
Reversion
over
,
the
Lessee
attorns
,
and
doth
not
go
to
Rome
within
the
time
appointed
,
the
Grantee
may
re-enter
;
contrary
,
if
the
conclusion
of
the
Condition
had
been
by
way
of
re-entry
,
for
then
it
should
run
in
privity
by
the
Common
Law
:
But
where
a
Lease
with
such
Condition
was
made
for
life
,
with
this
conclusion
of
the
Condition
,
that
the
Lease
shall
be
void
,
the
Grantee
shall
not
take
advantage
of
that
by
the
Common
Law
,
for
there
the
Estate
is
not
void
untill
re-entry
,
for
there
is
a
Freehold
which
ought
to
be
avoided
by
Entry
:
But
in
our
Case
the
Condition
is
upon
the
matter
collateral
,
for
no
demand
is
requisite
to
take
advantage
of
the
Condition
.
And
he
said
it
is
a
general
Rule
,
where
in
the
Case
of
a
common
person
an
Estate
may
be
devested
without
Entry
,
there
in
the
Case
of
the
Queen
there
needs
not
any
Office
;
but
here
in
our
Case
,
if
it
had
been
a
Case
of
a
common
person
,
the
Estate
should
be
devested
without
Entry
,
therefore
in
the
Case
of
the
Queen
without
Office
:
See
Stamford
for
the
Major
Proposition
55.
but
it
doth
not
vest
to
have
Trespass
before
Entry
:
and
he
vouched
the
Case
of
Browning
and
Beston
,
Plow.
136.
where
such
Lease
after
such
Condition
broken
,
is
merely
void
and
dissolved
.
And
he
said
,
That
it
was
the
Opinion
of
the
Iustices
of
the
Common
Pleas
,
now
late
,
That
by
a
Release
to
such
Lessee
,
after
the
condition
broken
,
nihil
operatur
;
for
after
the
Condition
broken
he
is
but
Tenant
at
sufferance
;
and
a
Lease
for
years
,
being
but
a
Cattel
,
may
begin
without
ceremony
,
and
end
without
ceremony
:
2
H.
7.
8.
If
the
King
make
a
Lease
for
years
,
with
clause
of
Re-entry
for
not
payment
of
the
Rent
,
although
the
Rent
be
behind
,
yet
the
King
shall
not
re-enter
before
Office
found
;
and
there
ought
to
be
a
Seisure
,
for
the
Lease
is
not
void
by
the
non-payment
of
the
Rent
,
but
onely
voidable
:
but
if
the
Lease
be
void
for
not
payment
,
as
in
our
case
it
is
,
to
what
purpose
shall
an
Office
be
?
for
by
the
mere
contract
the
Lease
ceaseth
,
without
re-entry
,
or
without
Office
:
But
admit
that
the
Lease
shall
not
cease
without
Office
,
and
before
Office
the
Queen
grants
the
Reversion
over
,
yet
an
Office
found
after
the
Grant
shall
avoid
the
Lease
as
well
as
if
it
had
been
found
before
the
Grant.
A
Lease
is
made
upon
condition
,
that
if
the
Lessor
build
a
House
upon
the
Land
leased
,
and
pay
to
the
Lessee
20
l.
that
then
the
Lease
shall
be
void
;
the
Lessor
builds
the
House
,
and
afterwards
grants
the
Reversion
,
the
Grantee
pays
the
20
l.
now
the
Lease
is
void
,
although
the
Condition
be
partly
performed
in
the
time
of
the
Lessor
,
and
partly
in
the
time
of
the
Grantee
.
So
here
,
although
the
Grant
of
the
Queen
be
Mesn
between
the
non-payment
of
the
Rent
,
and
the
Office
;
for
the
Queen
is
not
entitled
by
the
Office
to
the
Land
,
but
by
the
Condition
broken
,
and
the
Office
is
onely
to
inform
the
Queen
of
her
Title
;
and
when
the
Office
is
once
found
,
it
shall
relate
unto
the
time
of
the
Condition
broken
,
and
shall
be
of
such
force
as
if
then
it
had
been
found
:
Godfrey
contrary
;
and
he
said
,
That
the
Lease
is
in
being
not
impeached
by
the
Condition
,
or
the
Office
:
and
he
said
,
That
notwithstanding
that
the
words
of
the
Lease
are
,
That
the
Lease
shall
be
void
,
yet
before
that
an
Office
be
found
,
the
Lease
shall
not
be
avoided
:
In
all
cases
where
the
Queen
is
entitled
to
any
thing
,
or
to
defeat
the
Estate
of
another
,
an
Office
is
necessary
;
and
that
ground
is
taken
in
the
case
of
the
Lord
Berkley
,
Plow
.
Com.
229.
by
Brown
,
therefore
here
,
it
ought
to
be
found
by
Office
:
See
also
the
case
of
the
Bishop
of
Chichester
,
Fitz.
Abridg.
Forfeiture
18.
46
E.
3.
The
Bishop
leased
for
life
certain
Lands
given
by
the
Progenitors
of
the
King
,
as
parcel
of
the
Barony
of
the
Bishoprick
,
rendring
30
l
Rent
;
and
afterwards
,
by
assent
of
the
Dean
and
Chapter
,
released
a
great
part
of
the
said
Rent
;
the
Lease
and
the
Rent
ought
to
be
found
by
Office.
So
an
Alienation
in
Mortmain
ought
to
be
found
by
Office
,
because
the
interest
of
another
is
to
be
defeated
:
So
where
the
King's
Tenant
ceaseth
,
&c.
the
Villein
of
the
King
purchaseth
Lands
,
or
but
a
Lease
for
years
:
So
where
the
King
is
but
to
have
annum
,
diem
&
vastum
,
Waste
committed
by
the
Committee
of
the
King
:
Lessee
of
the
King
for
years
makes
a
Feoffment
in
Fee
;
in
all
these
cases
the
King
,
without
Office
,
shall
not
be
entitled
.
The
same
Law
is
in
case
of
a
Condition
broken
;
which
see
2
H.
7.
8.
Plow.
213.
Frowick
in
his
Reading
puts
this
case
:
A
Subject
leaseth
for
years
upon
condition
,
which
is
afterwards
broken
,
and
afterwards
the
Lessor
becomes
King
,
here
needs
no
Office
,
for
at
the
time
of
the
breach
of
the
Condition
the
Lessor
was
not
King.
Martin
Forbisher
and
one
Bunny
was
,
that
the
Queen
made
a
Lease
of
Dutchy
Land
upon
Condition
,
which
was
broken
:
It
was
holden
,
that
here
there
needs
not
any
Office
,
for
the
Queen
had
those
Lands
severed
from
the
Crown
by
Parliament
,
and
they
passed
by
the
Dutchy
Seal
by
Livery
,
and
attornment
of
the
Tenants
:
The
Queen
leaseth
for
years
,
Proviso
,
that
the
Lessee
shall
not
alien
;
such
alienation
against
such
a
Condition
ought
to
be
found
by
Office
:
and
therefore
at
this
day
,
where
a
Forfeiture
is
given
to
the
King
,
&c.
by
Statute
,
the
words
are
,
That
the
King
shall
be
seised
without
Office
:
And
as
to
the
Relation
of
an
Office
,
he
said
,
That
an
Office
may
have
a
Relation
as
to
mean
profits
,
but
not
as
to
vest
the
interest
from
the
time
of
the
Title
accrued
.
And
although
that
in
the
Grant
of
the
Queen
to
Sir
Thomas
Henage
there
be
these
words
,
Non
obstante
,
the
not
finding
any
Office
,
yet
in
this
case
an
Office
is
necessary
,
for
the
Queen
cannot
dispense
with
the
Law
,
so
to
alter
or
change
the
Law
,
as
to
make
Lands
in
Borough-English
descendable
at
the
common
Law
:
So
if
the
King
make
a
Lease
for
years
,
with
clause
of
re-entry
,
and
afterwards
grants
the
Reversion
over
to
a
Subject
;
and
farther
grants
,
that
if
the
Rent
be
behind
,
that
the
Lessor
may
re-enter
without
demand
;
yet
the
Grantee
ought
to
demand
the
Rent
.
And
,
as
our
case
is
here
,
there
needs
not
any
Office
to
entitle
the
Queen
to
the
Mean
profits
;
for
although
that
the
Rent
was
not
paid
at
the
day
,
yet
it
was
paid
after
,
and
all
Rent
due
afterwards
,
and
Acquittances
given
for
the
same
;
which
matter
we
have
specially
pleaded
to
the
intent
aforesaid
,
upon
which
the
other
side
have
demurred
,
and
thereby
have
confessed
it
,
&c.
But
this
Office
doth
not
give
any
interest
to
the
Queen
in
the
thing
leased
,
for
she
hath
granted
them
over
before
,
by
which
she
hath
disabled
her self
to
take
advantage
of
the
Condition
aforesaid
,
for
she
hath
surceased
her
time
:
8
H.
5.
Traverse
47.
Tenant
for
life
forfeits
his
Estate
,
and
before
the
King
seiseth
,
The
Tenant
for
life
dieth
,
he
in
the
Reversion
may
enter
,
and
the
King
shall
not
seise
,
for
the
King
hath
surceased
his
time
.
And
if
the
Queen
should
have
advantage
of
this
Condition
,
she
should
avoid
her
own
Grant
,
which
should
be
a
great
inconvenience
;
The
Queen
leaseth
for
years
,
Proviso
,
that
the
Lessee
shall
not
do
Waste
;
the
Queen
grants
over
the
Reversion
after
Waste
done
,
Office
is
found
,
the
Queen
gains
nothing
by
it
.
It
was
agreed
in
the
Case
betwixt
Knight
and
Beech
,
28
Eliz.
That
the
Grant
of
the
Queen
Mesn
between
the
award
of
the
Commission
,
and
the
Retorn
of
it
was
good
;
for
the
Title
of
the
Queen
appeareth
of
Record
,
although
that
the
Commission
was
not
retorned
before
the
Grant
made
:
And
if
an
Office
should
relate
unto
the
time
of
the
Condition
broken
,
it
should
be
in
vain
to
argue
that
point
:
for
in
the
said
case
it
was
holden
a
Record
,
when
the
Iurors
had
put
their
Seals
to
it
,
before
that
it
be
enrolled
:
The
acceptance
of
the
Rent
,
and
the
Acquittances
thereof
are
pleaded
,
1.
To
prove
,
that
there
is
no
cause
to
find
an
Office
in
this
case
,
for
the
Queen
is
answered
the
Mean
profits
:
2.
To
prove
,
that
the
Queen
hath
waved
and
refused
to
take
the
benefit
of
the
Condition
,
but
not
to
conclude
the
Queen
,
and
then
you
cannot
force
her
to
take
the
benefit
of
the
Condition
:
As
the
King
,
Lord
,
and
Tenant
,
the
Tenant
dieth
,
his
Heir
within
age
,
the
King
accepteth
of
the
Services
of
the
Heir
,
and
afterwards
grants
over
the
Seignory
,
after
Office
is
found
,
the
King
shall
not
have
the
Wardship
,
&c.
At
another
day
it
was
argued
by
Popham
,
Attorny
General
,
for
the
Plaintiff
;
and
he
said
,
That
upon
not
payment
of
the
Rent
,
the
Lease
is
ipso
facto
void
,
without
any
Office
found
thereof
,
and
that
by
reason
of
these
words
,
[
shall
not
be
void
;
]
for
he
said
,
it
is
not
a
Condition
,
but
rather
a
limitation
:
As
if
the
King
make
a
Lease
to
three
for
eighty
years
,
si
tam
diu
vixerint
,
one
of
them
dieth
,
the
Lease
is
determined
without
Office
:
So
a
Lease
made
vy
the
Queen
for
years
,
so
long
as
the
Lessee
shall
pay
the
Rent
reserved
,
or
so
long
as
the
Lessee
shall
there
inhabit
:
In
these
cases
,
upon
a
Lease
made
by
a
common
person
,
the
Lessor
before
Entry
might
grant
over
,
and
the
Grantee
shall
have
advantage
of
it
,
for
it
is
a
limitation
,
and
by
the
limitation
the
Lease
is
determined
before
the
Grant
;
contrary
,
if
it
had
been
by
words
of
re-entry
.
A
Lease
for
sixty
years
,
Proviso
,
that
if
the
Lessee
shall
die
within
the
term
,
that
the
Lease
shall
cease
;
the
Lessor
grants
the
Reversion
over
,
the
Grantee
shall
take
advantage
thereof
by
the
common
Law
:
See
the
Case
11
H.
7.
17.
it
is
a
limitation
,
and
not
a
Condition
.
And
he
said
,
in
this
case
an
Office
is
necessary
,
not
to
avoid
the
Lease
,
for
that
was
void
before
;
nor
to
punish
the
Lessee
as
a
Trespassor
,
or
to
fine
him
for
the
continuance
of
his
wrongfull
possession
;
but
to
make
him
responsable
as
an
Accountant
.
In
the
Lease
of
a
common
person
,
where
the
clause
is
,
That
the
Lease
shall
cease
;
If
after
the
Rent
behind
,
the
Lessee
continueth
his
possession
,
yet
the
Lessor
shall
not
punish
the
Lessee
as
a
Trespassor
before
his
Entry
,
for
the
Lessee
by
his
continuance
is
but
Tenant
at
sufferance
,
for
his
first
Entry
was
lawfull
;
And
he
agreed
the
Books
,
14
H.
8.
and
2
H.
7.
That
such
advantages
that
a
common
person
cannot
have
without
Entry
,
the
Queen
cannot
have
without
Office
:
But
a
common
person
before
Entry
cannot
punish
another
by
way
of
Trespass
,
therefore
neither
the
Queen
,
without
Office
,
shall
punish
one
as
an
Intruder
:
And
as
to
the
Case
,
now
lately
adjudged
betwixt
Knight
and
Beech
,
the
same
doth
not
extend
to
our
Case
;
Letters
Patents
,
the
said
Lease
ought
to
have
been
recited
,
if
it
had
not
been
determined
;
and
if
it
be
determined
(
as
this
case
is
)
it
ought
to
be
recited
,
if
there
were
not
a
Non
obstante
;
for
non
constat
to
the
Queen
,
if
it
be
determined
or
not
:
And
he
said
,
That
Leases
which
are
of
Record
,
are
to
be
recited
in
Patents
of
the
King
,
but
not
those
which
are
not
of
Record
,
for
Leases
on
Record
may
be
easily
found
,
but
contrary
of
Leases
in
Fait
:
but
in
our
case
all
is
helped
by
the
Non
obstante
;
for
the
words
of
the
Letters
Patents
are
,
Non
obstante
,
That
no
office
be
thereof
found
,
misrecital
or
non-recital
of
the
former
Leases
,
&c.
It
hath
been
objected
,
That
because
that
the
Law
of
the
Land
is
,
That
in
Grants
of
the
King
,
all
former
Estates
ought
to
be
recited
,
the
Non
obstante
of
the
Queen
shall
not
help
it
:
To
that
he
said
,
That
where
the
Law
makes
for
the
Queen
,
there
the
Queen
for
a
particular
respect
may
dispense
with
the
Law.
If
the
Queen
be
deceived
by
the
not
recital
,
that
makes
the
Letters
Patents
naught
;
but
if
the
Queen
be
not
deceived
by
the
not
recital
,
the
same
shall
not
hurt
.
And
it
is
clear
,
That
the
Queen
may
dispense
with
a
Statute
Law
,
although
perhaps
not
with
the
common
Law
;
The
Queen
grants
upon
suggestion
,
if
the
suggestion
be
false
,
the
Patent
is
void
,
because
the
Queen
is
deceived
in
her
Grant
:
and
if
the
suggestion
rest
in
Articles
,
and
some
of
the
Articles
be
false
,
the
Patent
for
that
is
void
:
but
if
in
the
Patent
such
clause
be
,
That
be
the
suggestion
true
or
false
,
the
Patent
shall
be
good
:
If
the
King
seised
of
a
Manor
,
to
which
an
Advowson
is
appendant
,
grant
the
Manor
,
cum
pertinentii●
,
the
Advowson
shall
not
pass
:
But
if
the
Grant
be
in
tam
amplis
modo
&
forma
,
&c.
prout
ipse
Rex
tenuit
,
the
Advowson
shall
pass
.
And
he
said
,
That
the
Office
here
is
not
necessary
to
determine
the
Lease
,
but
to
enable
the
Queen
to
punish
the
Lessee
for
the
continuance
of
his
possession
:
And
if
the
conclusion
of
the
Condition
had
been
by
way
of
re-entry
for
non-payment
of
the
Rent
,
and
after
the
Rent
is
behind
,
and
afterwards
the
Queen
accepts
the
Rent
due
after
,
the
Queen
is
not
bounden
by
that
,
but
upon
an
Office
found
she
shall
avoid
the
Lease
.
Drew
,
Serjeant
,
contrary
;
and
he
said
,
That
here
is
a
condition
,
but
not
a
limitation
;
for
here
is
the
natural
word
of
a
Condition
,
(
scil.
)
Proviso
.
Some
Cases
put
by
Popham
are
Conditions
,
and
not
limitations
:
As
a
Lease
for
years
,
Proviso
,
that
if
the
Lessee
die
within
the
term
,
that
then
the
Lease
shall
be
void
,
the
same
is
a
Condition
:
And
in
many
Cases
many
words
(
less
apt
than
these
in
our
Case
)
shall
make
a
Condition
:
As
a
Feoffment
,
dummodo
solvat
,
&c.
And
he
said
,
That
without
an
Office
the
Lease
is
not
void
:
See
35
H.
6.
57.
The
King
giveth
to
Religious
use
certain
Lands
,
ad
effectum
,
to
find
a
certain
number
of
Monks
,
to
hold
in
Frankalmoign
:
the
King
in
that
case
cannot
have
Cessavit
,
for
the
Services
are
not
certain
;
but
if
it
be
found
by
Office
,
that
they
have
not
their
number
,
or
do
not
make
their
Prayers
,
the
King
shall
cease
;
by
Br.
Tit.
Offic.
4.
And
he
said
,
that
this
was
often
done
in
the
time
of
Hing
Henry
the
eighth
;
Lands
given
,
Habend
.
pro
erectione
Collegii
Cardinalis
Eborum
,
&c.
Where
the
King
is
to
have
Lands
but
as
a
pledge
,
as
for
an
Alienation
without
licence
,
Office
ought
to
be
found
of
such
Alienation
:
So
of
a
Feoffment
made
to
an
Alien
;
otherwise
it
is
in
case
of
necessity
,
because
the
Freehold
cannot
be
in
abeyance
:
Tenant
of
the
King
is
attainted
of
Treason
before
33
H.
8.
the
King
shall
ha●●●●e
Land
in
point
of
common
Escheat
untill
Office
be
found
,
and
afterwards
by
force
of
the
Attainder
.
So
if
the
Tenant
of
a
Subject
be
attainted
of
Treason
before
Office
found
,
the
Land
shall
be
in
the
Lord
,
but
after
Office
it
shall
be
in
the
King
:
7
H.
4.
If
the
King's
Tenant
dieth
,
his
Heir
within
age
,
the
King
may
seise
the
Body
,
and
grant
it
over
without
Office
,
but
not
the
Lands
:
See
for
the
same
5
E.
6.
Br.
Office
55.
in
the
Case
of
Charles
Brandon
,
35
E.
3.
Villainage
22.
The
Villein
of
the
King
purchaseth
Goods
and
Chattels
,
the
property
of
them
is
in
the
King
before
Office
or
seisure
,
but
in
the
case
of
lands
he
ought
to
seise
:
If
this
had
been
the
case
of
a
common
person
,
the
Lease
should
not
be
avoided
without
demand
,
therefore
neither
in
the
Case
of
the
King
without
Office
:
For
as
the
Lease
it self
was
made
by
matter
of
Record
,
so
it
ought
to
be
avoided
by
matter
of
Record
,
otherwise
it
shall
not
be
taken
void
in
Law
,
notwithstanding
that
the
words
are
,
That
the
lease
shall
be
void
.
By
the
Statute
of
11
H.
7.
Alienations
and
Discontinuances
by
Women
are
made
void
,
the
same
ought
not
to
be
holden
altogether
void
as
betwixt
such
Women
and
the
Alienee
,
but
onely
betwixt
the
Woman
and
the
Heir
,
the
Statute
of
1
Eliz.
enacts
,
That
all
Leases
made
by
a
Bishop
above
the
term
of
twenty
one
years
,
shall
be
void
;
the
same
shall
not
be
construed
to
be
void
,
but
onely
as
to
the
Successor
,
for
it
shall
bind
the
Lessor
himself
,
as
it
was
adjudged
5
Eliz.
in
the
Case
of
the
Bishop
of
Bath
.
As
unto
the
Office
here
in
our
case
,
the
same
shall
not
enure
to
avoid
the
Lease
,
but
onely
to
enable
the
Queen
to
punish
the
party
for
the
Mean
profits
after
the
breaking
of
the
Condition
:
But
in
our
case
,
nothing
is
due
to
the
Queen
for
the
Mean
profits
,
for
we
have
shewed
the
payment
of
all
the
Rents
,
and
the
Arrearages
thereof
,
after
the
breach
of
the
Condition
,
and
before
the
Grant
of
the
King
;
and
therefore
this
Office
,
being
for
no
use
,
shall
be
void
,
unless
it
had
been
found
,
that
the
Land
was
of
more
yearly
value
than
the
Rent
,
&c.
As
in
the
case
of
common
experience
of
Chantries
,
the
Lands
shall
not
be
intended
to
be
of
greater
value
than
the
Rent
to
be
paid
out
of
it
,
if
not
that
it
be
found
by
Office
:
When
the
Queen
hath
after
received
the
Rent
,
and
granted
over
the
Reversion
,
now
the
Forfeiture
is
purged
,
not
by
way
of
conclusion
,
but
it
amounts
to
as
much
as
if
the
Queen
had
said
,
That
she
would
not
take
benefit
of
it
:
4
H.
6.
Champernoun's
Case
:
The
King
,
by
taking
in
Ward
of
the
Heir
of
the
Donee
,
hath
waved
the
Heir
of
the
Donor
:
See
Plow
.
in
the
Lord
Barkley's
Case
,
3
Eliz.
237.
and
F.
N.
B.
143.
And
here
in
our
Case
,
when
the
Queen
grants
over
the
Reversion
,
here
the
whole
use
of
an
Office
is
gone
;
for
no
Office
shall
be
found
for
the
benefit
of
a
Subject
:
and
as
to
the
Queen
,
no
benefit
shall
accrue
unto
her
by
such
Office
,
for
if
she
by
such
Office
shall
be
entituled
to
the
possession
,
she
should
avoid
her
own
Grant
of
the
Reversion
;
for
she
ought
to
have
as
great
an
Estate
by
the
breach
of
the
Condition
,
as
she
had
at
the
time
of
the
Condition
:
And
in
this
Case
the
Office
comes
too
late
for
the
Queen
,
&c.
as
in
the
Lord
Lovel's
Case
,
Plow.
18
Eliz.
482.
A
Lease
for
years
is
made
unto
an
Alien
,
upon
condition
,
that
if
the
Alien
pay
such
a
sum
of
Money
to
the
Lessor
at
any
time
during
the
Lease
,
that
he
shall
have
Fee
;
the
Alien
is
made
a
Denizen
,
the
Money
is
paid
,
and
all
that
is
found
by
Office
:
The
Queen
shall
not
have
the
Fee
,
for
at
the
time
of
the
vesting
of
the
Fee
the
Lesse
was
Denizen
;
and
the
Office
shall
not
relate
to
the
time
when
the
Fee
vests
,
and
no
farther
,
but
to
avoid
incumbrances
:
and
so
in
such
Case
the
Office
comes
too
late
.
And
if
the
King's
Villain
purchaseth
Lands
,
and
the
King
make
him
free
,
and
afterwards
Office
is
found
,
the
same
shall
not
entitle
the
King
,
but
the
Villain
manumitted
shall
hold
the
Land
:
So
in
our
Case
,
the
Queen
after
this
Grant
shall
not
take
the
benefit
of
this
Office
,
or
breach
of
the
Condition
found
by
it
.
And
afterwards
,
Manwood
,
chief
Baron
,
gave
order
,
That
those
who
do
argue
after
,
shall
speak
but
to
two
points
:
1.
Where
the
Queen
Leases
for
years
,
rendring
Rent
payable
at
the
Receipt
at
West
.
in
which
Lease
there
is
a
Proviso
,
That
if
the
Rent
be
behind
,
the
Lease
shall
be
void
,
If
now
the
Rent
not
being
paid
,
the
Lease
shall
be
void
without
any
Office
?
2.
To
what
effect
an
Office
now
shall
be
,
being
found
after
the
Queen
hath
granted
the
Inheritance
over
.
At
another
day
,
Owen
,
Serjeant
,
argued
to
the
contrary
;
and
he
said
,
the
Lease
is
void
without
any
Office
:
for
as
a
Lease
for
years
may
be
made
by
contract
,
so
it
may
be
avoided
by
words
of
contract
,
otherwise
it
is
of
Freehold
;
So
that
a
Lease
shall
be
avoided
without
entry
,
6
E.
6.
137
,
138.
Plow
.
Browning
and
Beston's
Case
;
Offices
are
of
two
sorts
:
First
,
entituling
the
Queen
,
as
purchase
of
an
Alien
,
purchase
of
Villain
,
alienation
in
Mortmain
;
and
Offices
informing
the
Queen
,
where
she
hath
interest
in
the
Land
before
,
as
in
our
Case
here
:
Admit
that
the
Office
was
necessary
to
find
the
breach
of
the
Condition
;
the
Patentee
shall
take
the
benefit
of
it
:
for
being
found
by
Office
,
that
the
Queen
hath
made
such
a
Lease
with
condition
to
be
void
for
non-payment
of
Rent
,
and
that
at
such
a
day
the
Rent
was
behind
,
now
,
being
of
Record
,
every
Subject
shall
take
advantage
of
it
:
As
where
a
Husband
makes
a
Feoffment
in
Fee
upon
condition
,
of
the
Land
of
his
Wife
,
and
dieth
;
If
the
Heir
enter
for
the
Condition
broken
,
now
may
the
Wife
enter
upon
him
;
for
now
the
discontinuance
is
avoided
:
See
11
H.
7.
17.
Where
the
Grantee
of
the
Reversion
shall
take
advantage
of
a
condition
,
ut
supra
,
concluding
,
That
the
Lease
shall
be
void
:
And
see
136.
Plowd
.
Browning
and
Beston's
Case
.
And
although
after
the
default
of
payment
,
the
Rent
due
afterwards
was
accepted
,
yet
that
shall
not
conclude
the
Queen
;
for
this
acceptance
is
not
under
the
great
Seal
,
but
onely
done
by
the
Office
:
Also
the
Lease
being
void
,
for
the
non-payment
,
cannot
be
made
good
by
acceptance
afterwards
.
Atkinson
,
contrary
,
Although
that
the
Lease
be
void
,
de
facto
,
yet
until
it
appeareth
to
the
Court
,
the
Court
cannot
say
it
is
void
,
or
not
void
:
therefore
Office
is
necessary
to
ascertain
the
Court
:
The
Queen
is
a
body
Politick
,
and
the
chief
body
Politick
above
others
,
because
she
is
the
Maker
,
Authour
and
Creatour
of
all
other
Corporations
;
and
that
is
the
reason
,
that
the
King
cannot
speak
without
writing
;
and
this
is
the
most
solemn
writing
:
i.
Writing
of
Record
;
So
she
cannot
take
but
by
Record
:
And
in
our
Case
,
it
doth
not
appear
by
any
writing
of
Record
,
the
Rent
was
behind
;
and
it
is
agreeable
to
the
Majesty
of
a
King
to
do
nothing
without
matter
of
Record
;
which
see
4
Eliz.
in
the
case
of
the
Dutchy
:
And
he
said
there
is
no
difference
betwixt
the
Case
in
2
H.
7.
and
our
Case
:
In
each
Case
it
is
a
Lease
for
years
,
Rent
reserved
,
in
this
onely
differing
,
that
there
is
a
clause
of
re-entry
;
and
here
the
conclusion
of
the
Condition
is
that
the
Lease
shall
be
void
;
but
in
both
Cases
,
none
can
say
that
the
Rent
is
behind
,
untill
it
be
found
by
Office
,
therefore
none
can
say
,
that
the
Lease
is
void
,
untill
Office
found
:
See
by
Thorp
,
35
E.
3.
Chattels
personals
of
the
King's
Villains
,
are
in
the
King
without
office
,
for
such
things
may
be
lost
or
worn
,
contrary
of
Chattels
Reals
,
as
a
Lease
for
years
;
for
Land
cannot
but
continue
:
and
such
things
which
may
be
in
the
King
without
writing
,
he
may
grant
without
writing
,
as
a
chain
of
Gold
,
or
a
Horse
,
Deodands
,
Felons
goods
,
Wreck
,
&c.
vest
without
Office
,
because
Chattels
personals
:
See
20
E.
4.
11.
contrary
,
when
they
are
Chattels
reals
,
and
permanent
;
for
there
an
Office
is
necessary
:
In
the
Case
of
year
,
day
and
waste
,
an
Office
ought
to
be
found
,
Ergo
,
à
multo
fortiori
,
in
case
of
a
Lease
for
years
,
which
is
a
greater
interest
,
&c.
49
E.
3.
11.
There
is
a
general
Rule
,
Quo
modo
quodque
ligatur
,
eo
modo
dissolvitur
:
That
which
passeth
by
Livery
ought
to
be
reduced
by
re-entry
,
that
which
begins
by
Record
,
ought
to
be
determined
by
Record
;
and
here
in
our
Case
,
the
Land
cannot
depart
from
the
King
without
Record
,
therefore
it
shall
not
revert
without
Record
;
although
that
the
breach
of
the
condition
be
but
matter
of
fact
,
yet
the
proof
of
that
ought
to
be
of
Record
:
And
here
in
our
Case
,
is
a
condition
,
and
not
a
limitation
.
And
he
said
,
that
in
the
Case
often
cited
before
of
11
H.
7.
17.
it
is
a
limitation
,
and
not
a
condition
;
For
if
it
were
a
condition
,
the
Grantee
by
the
Law
could
not
take
advantage
of
it
,
because
not
privy
:
and
he
was
clear
of
opinion
,
that
where
the
words
are
,
That
the
Lease
shall
cease
,
or
shall
be
void
;
yet
in
such
cases
there
ought
to
be
an
Office
,
for
in
Leases
of
the
King
there
needs
no
re-entry
,
because
the
King
(
to
speak
properly
)
cannot
re-enter
.
And
the
words
,
[
That
the
Lease
shall
be
void
]
do
amount
to
words
of
re-entry
,
and
he
said
,
That
in
the
Case
of
a
common
person
upon
such
a
condition
broken
,
the
Land
shall
not
be
in
the
Lessor
,
without
re-entry
,
no
more
shall
they
be
here
in
the
Case
of
the
Queen
without
an
Office
:
Also
the
Rent
reserved
upon
this
Lease
was
behind
,
and
the
Lessee
continuing
the
possession
,
the
Queen
by
acceptance
of
the
Rent
,
hath
affirmed
the
party
Tenant
,
and
afterwards
granted
the
Reversion
over
before
any
Office
found
of
that
matter
;
Now
the
Lessee
is
discharged
,
and
shall
never
be
impeached
for
the
said
Rent
behind
;
and
the
Grant
,
Ex
certa
scientia
,
&c.
after
found
,
shall
not
defeat
this
Grant
by
any
relation
.
And
the
Queen
by
her
Grant
hath
included
all
the
advantage
which
accrued
unto
her
by
the
breach
of
the
Condition
,
and
as
to
that
which
hath
been
objected
,
That
in
the
Letters
Patents
there
are
these
words
,
Notwithstanding
the
not
finding
of
any
Office
,
&c.
truly
the
same
makes
the
matter
more
clear
for
us
;
for
by
these
words
,
it
is
apparent
,
that
the
Queen
would
not
have
an
Office
found
;
&
if
so
,
then
the
Land
passeth
as
in
Reversion
,
and
the
Queen
may
dispense
with
a
thing
concerning
her self
:
as
of
late
it
was
adjudged
in
the
Case
of
one
Michel
.
The
Queen
makes
a
Lease
for
years
,
rendring
Rent
,
Si
petatur
,
It
was
holden
in
such
case
,
that
the
Rent
in
such
case
,
ought
to
be
demanded
by
the
Queen's
Officer
;
and
in
such
case
the
Queen
may
well
enough
dispense
with
her
Prerogative
;
and
here
the
Queen
conceived
,
that
she
should
not
have
an
Office
,
nor
have
her
Title
found
by
it
.
Manwood
,
chief
Baron
,
The
Queen
leaseth
for
years
upon
condition
,
That
if
the
Lessee
doth
not
marry
within
two
years
,
that
the
Lease
shall
be
void
,
whether
here
there
ought
to
be
an
Office
or
not
.
Atkinson
said
,
That
here
ought
to
be
an
Office.
At
another
day
,
It
was
argued
again
by
Godfrey
,
This
Lease
is
not
void
,
Ipso
facto
,
for
the
not
payment
of
the
Rent
,
which
is
but
matter
in
fact
:
and
as
this
Lease
hath
his
beginning
by
matter
of
Record
,
so
also
his
end
shall
be
by
matter
of
Record
:
In
cases
of
a
common
person
there
ought
to
be
a
demand
,
therefore
in
case
of
the
King
an
Office
,
in
fait
shall
have
it
without
Office
;
as
the
Temporalties
of
the
Bishop
upon
his
death
,
which
is
matter
in
fait
:
See
F.
N.
B.
174.
The
Widow
of
the
King
marries
her self
without
licence
of
the
King
,
the
King
shall
seize
the
Lands
,
and
that
without
Office
,
and
there
the
marriage
is
matter
in
fait
:
The
King
leaseth
for
years
upon
condition
,
that
if
the
Lessee
marry
,
that
then
the
Lease
shall
be
void
,
If
the
Lessee
marry
her self
,
the
Lease
is
void
without
any
Office
;
and
if
so
,
then
every
stranger
in
the
world
shall
have
advantage
of
it
,
as
the
Case
is
,
11
H.
7.
as
was
the
Case
of
Ralph
Thomas
;
Egerton
,
Solicitor
general
,
to
the
same
intent
;
And
he
said
,
that
this
Lease
is
altogether
void
,
in
privity
,
property
,
right
and
term
:
In
the
Case
of
a
common
person
,
after
the
Rent
behind
,
in
such
case
the
Lessee
should
be
Tenant
at
sufferance
,
which
cannot
be
in
the
King's
Case
;
and
if
Tenant
at
sufferance
,
then
no
privity
;
for
a
Release
by
the
Lessor
to
the
Lessee
cannot
enure
,
and
that
for
want
of
privity
;
Lit.
109.
And
such
Lessee
cannot
attorn
,
and
if
the
Lessor
after
that
accepts
of
the
Rent
,
the
same
doth
not
make
the
Lease
good
,
and
all
for
want
of
privity
;
therefore
here
is
no
privity
:
As
to
property
,
such
a
Lease
shall
not
be
said
Assets
in
the
hands
of
an
Executor
,
nor
shall
be
sold
upon
an
Extent
,
nor
forfeited
by
outlawry
;
And
here
in
this
Case
,
the
Queen
cannot
be
said
to
take
any
thing
by
the
breach
of
the
Condition
,
but
hath
her
reversion
discharged
of
the
Lease
;
and
he
said
,
That
the
Office
is
found
well
enough
for
time
,
and
it
shall
relate
to
the
time
when
the
title
accrued
,
that
is
,
when
the
Rent
was
behind
,
and
the
arrearages
of
the
Rent
do
not
pass
by
the
grant
of
the
Land
,
or
the
reversion
:
The
Queen
hath
a
Rent-charge
out
of
Lands
which
is
behind
,
the
Lands
come
to
the
Queen
,
and
she
grants
the
same
over
,
yet
she
shall
charge
the
Lands
with
the
said
arrearages
;
but
contrary
,
in
case
of
an
injury
done
upon
the
Land
of
the
Queen
:
As
the
Tenant
of
the
King
aliens
without
licence
,
and
afterwards
the
Lands
so
aliened
came
to
the
King's
hands
who
grants
them
over
;
the
Grantee
,
nor
the
Land
shall
be
charged
,
but
onely
he
who
was
party
to
the
alienation
,
his
Lands
,
and
his
Executors
;
So
of
an
Intrusion
:
Tenant
for
life
of
the
King
makes
a
Feoffment
in
Fee
,
the
King
grants
over
the
reversion
,
and
afterwards
the
tortious
Feoffment
is
found
by
Office
;
this
Office
is
soon
enough
for
time
,
and
the
Grantee
of
the
reversion
shall
have
advantage
of
it
,
and
the
King
the
mean
profits
from
the
time
of
the
alienation
:
and
afterward
in
Mich.
Term
,
33
Eliz.
the
Case
was
argued
by
the
Barons
.
Clark
,
Puisne
Baron
,
The
Lease
is
conditional
,
and
with
a
limitation
also
;
so
conditional
and
limitation
mixt
together
,
3
Ass.
10.
Land
given
to
one
untill
he
come
from
foreign
parts
;
Lands
given
to
one
so
long
as
he
shall
continue
sole
,
is
an
Estate
for
life
with
limitation
upon
her
marriage
;
so
during
the
coverture
,
&c.
and
these
limitations
are
not
collateral
,
but
begin
with
the
Estates
,
when
the
Estates
are
limited
;
but
conditions
always
come
when
the
Estate
is
settled
,
as
it
is
in
our
Case
;
yet
if
the
intent
and
substance
of
the
Contract
betwixt
the
King
and
the
Subject
be
well
considered
,
there
shall
not
be
any
difference
,
&c.
Lands
devised
to
one
,
Proviso
,
That
if
the
Devisee
shall
disturb
the
Executors
of
the
Devisor
,
his
Estate
shall
be
void
,
and
the
land
remain
over
,
&c.
the
same
is
a
good
remainder
,
for
it
is
a
limitation
conditional
:
See
Scholastica's
Case
,
Plowd
.
Com.
14
Eliz.
413.
concerning
an
Estate
tail
with
a
limitation
:
And
Fitz.
James
Case
there
put
by
Dyer
:
See
Browning
and
Beston's
Case
before
cited
,
and
Martin
Dockra's
Case
where
a
condition
is
conceived
in
words
of
Covenant
,
&c.
Gent
,
Baron
,
argued
to
the
same
intent
:
Manwood
,
chief
Baron
,
to
the
same
intent
.
The
Rents
reserved
upon
the
Leases
of
the
Queen
,
are
to
be
paid
to
Receivors
,
Baileys
,
or
at
the
Receipt
of
the
Exchequer
:
The
Queen
shall
not
make
any
demand
of
her
rent
,
for
she
hath
an
infinite
number
of
Farmors
,
and
if
demand
be
necessary
,
she
were
to
send
an
army
of
Receivors
,
or
Baileys
to
receive
and
demand
her
rents
.
If
the
Rent
of
the
King
be
to
be
paid
at
the
Exchequer
,
if
the
King's
Fermor
be
there
,
and
tender
the
rent
at
due
time
,
and
none
be
there
to
receive
it
,
he
hath
saved
his
Lease
,
for
he
hath
done
his
possible
endeavor
,
although
the
words
of
the
Condition
in
the
Lease
be
behind
and
unpaid
,
yet
not
tendred
,
shall
be
understood
:
as
in
the
common
case
of
Mortgages
and
Obligations
.
But
in
all
the
Record
before
us
,
there
is
no
words
of
any
tender
,
therefore
,
according
to
the
words
of
the
condition
,
the
Lease
is
meerly
void
,
and
determined
in
right
,
in
privity
,
and
in
tenure
;
for
so
is
the
pleasure
of
the
Prince
expressed
in
her
Letters
Patents
under
the
great
Seal
of
England
,
That
it
shall
be
then
void
,
and
of
no
effect
:
Then
,
i.
whensoever
the
Rent
shall
happen
to
be
behind
;
and
therefore
as
soon
as
the
Rent
was
behind
the
Lease
was
determined
:
so
that
if
after
the
non-payment
a
stranger
had
entred
upon
him
,
(
scil.
)
the
Lessee
,
upon
which
he
brings
Ejectione
Firmae
,
the
Defendant
might
have
pleaded
the
special
matter
against
him
,
Iudgment
if
Action
:
so
as
the
Lease
is
void
in
Right
:
It
is
also
void
in
Privity
and
Tenure
;
for
a
Release
to
such
Lessee
,
after
the
Rent
is
behind
,
is
altogether
void
;
for
he
was
not
then
Lessee
,
and
so
the
privity
is
gone
,
and
no
acceptance
can
make
such
Lease
good
.
And
if
such
a
Lessee
after
his
Rent
would
surrender
,
and
in
consideration
of
such
Surrender
obtain
a
new
Lease
from
the
Queen
,
this
new
Lease
is
also
void
,
for
here
upon
the
matter
is
no
surrender
:
Also
such
a
Lease
is
void
in
property
;
for
if
the
Lessee
in
such
case
dieth
,
his
interest
,
such
as
it
is
,
shall
not
be
accounted
Assets
in
the
hands
of
his
Executor
:
upon
the
breach
of
this
Condition
for
the
Rent
,
although
that
the
Lease
be
become
void
,
yet
the
possession
of
the
land
is
not
resetled
in
the
Queen
without
Office
:
and
although
the
Office
doth
not
make
the
Lease
void
,
which
was
void
before
for
non-payment
of
the
Rent
,
yet
before
Office
found
the
possession
is
not
vested
in
the
Queen
;
for
before
Office
found
we
cannot
award
Process
against
such
a
Lessee
for
his
continuing
the
possession
after
the
Rent
behind
,
and
untill
Office
found
the
Lessee
cannot
be
found
an
Intruder
;
and
Tenant
at
Will
he
cannot
be
,
for
no
other
Will
appears
of
the
Queen
,
but
that
in
the
Letters
Patents
,
and
that
is
to
have
the
Lease
void
,
whensoever
the
Rent
shall
be
behind
,
and
that
Estate
is
gone
because
the
Rent
is
behind
;
Tenant
at
sufferance
he
cannot
be
in
this
case
.
In
case
of
a
common
person
,
when
Lessee
for
years
holds
over
his
term
,
he
is
become
Tenant
at
sufferance
,
and
such
a
Tenant
shall
not
pay
Rent
,
for
it
is
the
folly
of
his
Lessor
to
suffer
his
Lessee
at
sufferance
to
continue
possession
of
the
Land
after
his
term
,
so
as
every
Tenancy
at
sufferance
is
made
by
the
Laches
of
the
Lessor
,
which
Laches
cannot
be
imputed
to
the
Queen
:
therefore
here
,
this
Lessee
,
when
the
Condition
is
broken
,
is
not
a
Tenant
at
sufferance
,
nor
shall
have
the
profits
of
the
Lands
to
his
own
use
,
but
the
Law
shall
account
him
to
be
a
Bailiff
of
his
own
wrong
,
and
so
be
accountable
to
the
Queen
,
but
no
Intruder
till
Office
be
found
:
and
that
appears
in
our
Books
,
1
H.
7.
17.
The
King's
Tenant
dieth
,
his
Heir
within
age
,
if
any
entreth
into
the
Land
of
the
Heir
,
he
shall
not
be
an
Intruder
untill
Office
found
,
but
the
Heir
or
a
stranger
who
entreth
before
Office
,
and
takes
the
profits
,
shall
be
brought
by
Process
into
the
Exchequer
to
make
their
Accounts
,
and
to
answer
the
issues
and
profits
;
but
if
he
intermeddle
after
Office
,
he
shall
be
an
Intruder
.
Tenant
of
the
King
alieneth
without
licence
,
by
that
the
King
is
to
have
the
profits
,
untill
he
compound
with
the
King
,
and
purchaseth
his
pardon
;
and
if
the
Feoffee
taketh
the
profits
after
the
Alienation
,
he
is
a
Pernor
of
the
profits
,
and
shall
answer
for
them
;
but
he
is
not
an
Intruder
untill
Office
found
.
Tenant
of
the
King
is
attainted
of
Felony
,
the
King
is
entitled
to
the
Land
from
the
time
of
the
Felony
committed
,
yet
if
he
take
the
profits
untill
Attainder
,
he
is
not
an
Intruder
,
but
he
taketh
the
profits
without
Title
,
therefore
he
is
Bailiff
of
his
own
wrong
,
and
so
accountable
to
the
King.
And
it
is
not
a
new
thing
,
that
a
Conveyance
or
an
Estate
shall
be
void
as
to
the
Right
onely
,
and
not
as
unto
the
Possession
.
The
Statute
of
Doms
.
West.
2.
finis
ipso
jure
sit
nullus
:
i.
as
to
the
right
of
the
Entail
;
yet
,
as
unto
the
possession
,
the
issue
in
tail
is
bound
untill
he
hath
recovered
it
by
a
Formedon
:
Vpon
the
Statute
of
21
H.
8.
cap.
13.
by
acceptance
of
another
Benefice
against
the
said
Statute
,
the
first
Benefice
shall
be
void
,
&c.
yet
the
same
shall
not
be
construed
so
as
to
possession
,
but
that
the
same
shall
remain
with
him
untill
it
be
taken
away
from
him
:
The
Queen
leaseth
for
years
,
Proviso
,
that
if
the
Lessee
commit
Waste
,
the
Lease
shall
be
void
;
when
first
Waste
is
done
the
Lease
is
determined
in
Right
,
but
not
as
to
the
possession
before
Office
finding
the
Waste
:
So
if
the
Condition
be
for
the
building
of
a
House
,
for
by
the
breach
of
the
Condition
,
the
Lease
,
as
unto
the
right
and
interest
,
is
determined
,
and
after
Office
found
it
shall
revest
the
possession
also
:
And
if
a
Lease
of
the
King
expire
by
effluction
of
time
,
and
such
effluction
appeareth
here
of
Record
,
if
the
Lessee
in
such
case
continueth
his
possession
,
he
shall
be
an
Intruder
.
Sir
Robert
Chester's
Case
,
Dyer
4.
Eliz.
211.
Sir
Robert
Chester
was
Receivor
of
the
King
by
Patent
,
upon
condition
to
render
Account
yearly
at
such
a
day
,
and
before
such
a
day
to
pay
the
arrearages
;
the
condition
is
broken
,
the
Patent
was
void
without
Office
thereof
found
,
but
yet
it
is
not
altogether
void
,
for
a
Scire
facias
shall
be
brought
against
the
Patentee
.
The
King
leaseth
unto
A.
his
Manor
of
D.
and
after
he
leaseth
also
to
the
said
A.
his
Manor
of
S.
Proviso
,
that
if
the
Lessee
doth
not
surrender
his
first
Lease
of
the
Manor
of
D.
at
such
a
day
,
that
then
the
latter
Lease
of
the
Manor
of
S.
shall
be
void
:
The
Surrender
is
not
made
,
now
the
Lessee
,
if
he
continue
his
possession
in
the
Manor
of
S.
after
,
he
is
an
Intruder
.
Now
is
to
see
of
what
effect
the
Office
is
,
not
to
make
the
Lease
void
,
but
to
vest
the
possession
in
the
King
again
:
It
hath
been
objected
,
That
,
as
the
case
is
,
the
Office
is
not
to
any
purpose
,
for
the
Queen
hath
granted
the
inheritance
over
,
so
as
the
possession
cannot
be
revested
in
the
Queen
by
that
Office
against
her
own
Grant
,
nor
can
the
Queen
punish
the
Lessee
as
an
Intruder
for
his
continuance
of
the
possession
after
the
Office
,
nor
can
seise
the
Land
by
such
Office
,
and
there
is
not
any
such
Office
for
the
benefit
of
a
Subject
,
therefore
the
Office
is
meerly
void
.
Let
us
compare
our
Case
unto
the
Case
of
Cessavit
;
The
Tenant
of
the
King
ceaseth
for
two
years
,
the
King
grants
the
Seignory
over
in
fee
,
the
Cesser
is
found
by
Office
,
the
Grantee
of
the
Seignory
gains
nothing
by
it
;
but
that
is
not
like
unto
the
Case
in
question
,
for
there
when
the
Office
is
found
,
the
Tenant
may
tender
the
arrearages
,
for
the
King
is
not
absolutely
entitled
by
the
Cesser
,
because
by
tender
of
the
arrearages
the
Tenant
may
save
his
Tenancy
:
But
in
this
case
,
after
the
Condition
is
once
broken
,
there
is
not
any
means
for
the
Tenant
to
save
the
Forfeiture
:
also
the
King
by
his
Grant
,
after
the
Cesser
,
hath
not
granted
the
thing
which
accrued
unto
him
by
the
Cesser
,
(
scil.
)
the
Tenancy
,
but
onely
the
Seignory
:
but
in
our
case
the
King
hath
granted
the
thing
forfeited
,
i
the
land
demised
:
and
here
is
a
full
forfeiture
,
contrary
in
the
case
of
Cesser
:
And
in
our
Case
the
King
hath
granted
onely
the
land
demised
,
and
not
the
profits
encurred
mean
between
the
breach
of
the
Condition
,
and
the
Grant
of
the
King
,
but
these
remain
to
the
Queen
,
and
to
that
purpose
the
Office
is
good
,
(
scil.
)
to
entitle
the
Queen
to
these
profits
.
And
as
to
that
which
hath
been
objected
,
That
the
Lessee
hath
always
paid
the
Rent
unto
the
Queen
after
the
Condition
broken
,
and
hath
an
Acquittance
of
the
Receipt
of
it
,
therefore
no
profits
due
to
the
Queen
,
for
she
hath
the
Rent
in
lieu
of
the
profits
;
and
it
is
not
reason
,
that
the
Lessee
shall
pay
an
annual
Rent
,
and
also
shall
be
accountable
for
the
mean
profits
,
and
so
the
Office
,
as
unto
the
mean
profits
(
which
in
truth
upon
the
matter
aforesaid
are
not
due
unto
the
Queen
)
is
void
,
and
then
altogether
void
,
quia
nihil
operatur
,
To
that
he
answered
,
That
the
King
shall
not
be
bound
off
the
mean
profits
in
that
case
by
the
payment
of
the
said
Rent
,
for
by
intendment
the
true
annual
value
of
the
Land
is
more
than
the
Rent
reserved
;
and
it
is
not
reason
but
that
the
Queen
shall
be
answered
of
the
surplusage
or
overplus
above
the
Rent
,
and
therefore
the
Office
entituling
the
Queen
to
part
of
the
profits
is
good
enough
:
Tenant
of
the
King
for
life
,
or
for
years
,
makes
a
Feoffment
in
Fee
,
although
that
by
this
Act
he
cannot
pluck
any
thing
out
of
the
King
,
yet
because
he
hath
attempted
to
do
such
a
wrong
,
it
is
a
forfeiture
,
and
the
Lease
for
years
utterly
extinct
by
it
;
for
it
cannot
be
in
the
Feoffor
against
his
own
act
,
by
which
he
hath
departed
with
all
his
Interest
,
&c.
And
the
Feoffee
cannot
have
it
,
for
if
he
hath
any
thing
,
it
ought
to
be
a
Fee-simple
,
or
nothing
at
all
;
and
a
Fee-simple
he
cannot
have
,
for
that
remains
in
the
King
,
and
so
neither
have
Estate
,
then
is
all
in
the
King
,
and
the
King
hath
Title
to
have
the
profits
,
&c.
But
put
case
,
that
after
the
Feoffment
the
King
grant
over
the
Land
in
Fee
,
and
after
that
tortious
Feoffment
is
found
by
Office
,
he
who
accupieth
the
Land
after
the
forfeiture
,
untill
Office
be
found
,
shall
be
occountable
to
the
King
for
the
issues
and
profits
,
&c.
as
Pernor
of
the
profits
,
or
Baily
of
his
own
wrong
,
and
he
who
occupieth
the
Land
after
the
Office
shall
be
punished
as
an
Intruder
.
There
was
a
Case
very
late
in
this
Court
betwixt
Sir
Tho.
Henage
and
one
Hungate
,
which
was
thus
;
Tho.
Henage
,
Office
is
found
,
the
Grantee
entred
,
and
his
entry
was
adjudged
lawfull
,
and
that
the
Queen
should
have
the
mean
profits
from
the
time
of
the
Waste
done
untill
the
time
of
the
Grant.
Some
say
,
(
scil.
)
the
Patentee
of
the
Queen
against
the
Lessee
;
who
cast
in
a
Writ
of
Error
,
and
by
his
Council
prayed
,
That
the
Writ
of
Error
be
not
broken
open
untill
the
Iudgment
be
entred
.
Manwood
,
The
Iudgment
hath
reference
and
relation
unto
the
first
day
of
this
Term
,
and
therefore
do
not
doubt
of
that
.
CLXXIX
.
Sted
's
Case
.
Mich.
32
Eliz.
In
the
Exchequer
.
CLXXX
.
The
Dean
and
Chapter
of
Winsors
Case
.
Mich.
32
Eliz.
In
the
Exchequer
.
(
scil.
)
Conier's
Case
,
where
the
King
gave
a
Parsonage
to
a
Priory
in
Frankalmoign
,
and
the
Tithes
thereof
being
withdrawn
,
the
Prior
impleaded
him
who
withdrew
his
Tithes
in
the
Exchequer
;
and
in
that
Case
it
was
holden
,
that
the
Prior
should
have
the
Privilege
,
for
the
King
is
in
danger
to
lose
his
Patronage
,
or
rather
his
Foundership
,
if
the
Rectory
be
evicted
.
Gent
,
Baron
,
The
Tenant
of
the
King
in
chief
,
or
he
who
pays
first
fruits
,
or
he
who
holds
of
the
Queen
in
Fee-Farm
,
shall
not
have
in
such
respect
the
Privilege
here
.
Quaere
.
CLXXXI
.
Cony
and
Beveridge
's
Case
.
Mich.
30
Eliz.
In
the
Common
Pleas.
CLXXXII
.
Berry
and
Goodman
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
IN
an
Ejectione
Firmae
,
upon
a
special
Verdict
,
the
point
was
,
A.
B.
by
her
Letters
Patents
;
and
the
Patentee
,
before
any
Entry
made
in
the
said
Land
,
granted
the
same
over
.
Some
held
,
that
the
Grant
was
good
,
for
the
Intruder
had
gained
nothing
against
the
Queen
,
and
by
the
Grant
of
the
Queen
,
and
the
assignment
over
,
nothing
accrued
to
him
:
and
where
a
man
hath
possession
of
Lands
,
his
continuance
therein
cannot
gain
to
him
any
interest
,
or
increase
his
Estate
,
without
some
other
act
done
of
later
time
.
If
the
Guardian
do
continue
in
possession
after
the
full
age
of
the
Heir
,
he
is
not
a
Disseisor
,
nor
hath
any
greater
Estate
in
the
Lands
:
and
upon
the
Book
of
21
E.
3.
2.
this
Case
was
collected
;
The
Tenant
of
the
King
dieth
,
his
Heir
within
age
,
a
stranger
intrudes
,
the
Heir
at
full
age
sueth
his
Livery
out
of
the
King's
hands
,
the
Intruder
dieth
in
possession
;
the
same
descent
shall
not
take
away
Entry
.
Coke
contrary
,
The
Intruder
cannot
be
Tenant
at
sufferance
,
for
at
first
he
enters
by
wrong
,
and
none
can
be
Tenant
at
sufferance
but
he
who
comes
in
by
Title
:
And
it
is
clear
,
That
the
Intruder
by
his
first
Entry
doth
not
gain
any
Estate
in
possession
,
upon
which
he
can
have
an
Action
of
Trespass
,
but
after
the
Grant
of
the
Queen
he
hath
presently
Fee
by
wrong
:
8
H.
4.
129.
A
stranger
enters
upon
the
King
to
which
he
hath
right
in
the
right
of
the
Ward
,
yet
the
Freehold
doth
remain
in
the
Heir
.
And
he
said
,
that
if
A.
levyeth
a
Fine
to
B.
sur
Conusans
de
droit
,
&c.
now
the
Conusee
hath
possession
in
Law
,
but
not
in
fact
;
and
if
before
the
entry
of
the
Conusee
W.
entreth
,
and
dieth
seised
,
he
hath
no
remedy
,
for
he
had
not
possession
in
fact
,
so
as
he
might
have
an
Assise
,
or
an
Action
of
Trespass
:
CLXXXIII
.
Wiseman
's
Case
.
24
Eliz.
In
the
Court
of
Wards
.
Wards
,
Wray
,
chief
Iustice
,
Anderson
and
Periam
Assistants
to
him
;
the
Case
was
,
That
Wiseman
was
seised
of
certain
Lands
holden
by
Knight's-service
in
Capite
,
had
issue
by
a
former
Wife
who
died
;
and
made
a
Feoffment
in
Fee
to
the
use
,
of
her
who
should
be
his
Wife
,
for
life
,
and
afterwards
to
the
use
of
himself
and
of
his
issue
of
the
body
of
such
Wife
to
be
begotten
,
the
remainder
over
;
Wiseman
took
a
Wife
,
and
had
issue
,
and
died
;
If
now
,
living
the
Wife
,
the
issue
shall
be
in
Ward
,
was
the
question
?
It
was
argued
by
Coke
,
That
he
shall
not
be
in
Ward
:
And
first
,
it
was
agreed
of
both
sides
,
and
also
by
the
Iustices
,
That
it
was
a
remainder
and
not
a
reversion
;
and
that
at
the
Common
Law
,
the
descent
of
a
remainder
,
during
the
Estate
for
life
,
doth
not
entitle
the
King
unto
Wardship
;
and
there
we
are
to
see
,
if
upon
the
Statute
of
32
H.
8.
the
last
branch
of
it
;
where
two
or
more
persons
hold
any
Lands
of
the
King
by
Knights-service
,
jointly
to
them
and
the
heirs
of
one
of
them
,
and
he
that
hath
the
Inheritance
thereof
dieth
,
his
heir
being
within
age
,
in
every
such
Case
,
the
King
shall
have
the
Ward
,
and
marriage
of
the
body
of
such
heir
,
so
being
within
age
,
the
life
of
the
Freeholder
,
or
Freeholders
of
such
Lands
notwithstanding
:
See
33
H.
6.
14.
That
the
father
,
to
prevent
Wardship
,
may
alien
,
and
take
to
him
and
his
son
,
and
the
heirs
of
the
father
,
which
mischief
was
intended
to
be
remedied
by
the
said
Statute
:
But
these
words
shall
not
in
construction
thereof
extend
farther
than
the
words
especially
,
because
they
cross
the
Common
Law
,
and
go
to
charge
the
Inheritance
of
others
;
and
therefore
they
shall
be
taken
strictly
,
and
not
by
equity
:
as
the
Statute
of
West
.
2.
cap.
40.
Cum
quis
alienat
jus
uxoris
suae
,
concordat
.
est
,
Quod
de
cetero
secta
mulieris
aut
ejus
haeredis
non
differatur
propter
minorem
aetatem
haeredis
,
qui
warrantizare
debuit
,
that
Statute
is
taken
strictly
;
for
if
the
Vouchee
voucheth
over
,
the
second
Vouchee
shall
have
his
age
,
Quod
vide
18
E.
4.
16.
Also
the
Stat.
of
West
.
1.
enacts
,
That
where
the
Disseisor
dieth
seised
,
the
Disseisee
shall
have
his
Writ
upon
the
Disseisin
against
the
heir
of
the
Disseisor
of
what
age
soever
he
be
:
So
the
heirs
of
the
Disseisee
,
yet
it
is
holden
,
9
E.
3.
If
the
Disseisor
leaseth
for
life
,
and
dieth
,
and
the
Lessee
be
impleaded
,
and
makes
default
after
default
,
upon
which
the
heir
of
the
Disseisor
prayeth
to
be
received
,
being
within
age
,
he
shall
have
his
age
,
notwithstanding
the
said
Statute
,
which
shall
be
taken
strictly
,
because
it
controlls
the
Common
Law
,
and
chargeth
the
Inheritance
of
the
Subject
:
So
upon
the
Statute
of
West
.
1.
cap.
39.
That
none
shall
vouch
out
of
the
line
upon
that
Statute
,
although
the
Tenant
to
the
Action
against
whom
the
Praecipe
is
brought
,
is
bound
by
the
Statute
,
yet
Tenant
by
receit
is
at
large
,
and
he
may
vouch
at
the
Common
Law
:
2
H.
7.
2.
16
H.
7.
1.
for
these
Statutes
go
in
abridgment
of
the
Common
Law
,
and
therefore
shall
be
taken
strictly
:
Now
,
according
to
this
Statute
,
it
is
of
the
same
nature
as
the
other
before
remembred
,
and
therefore
shall
not
be
extended
in
construction
beyond
the
Letter
.
As
Sir
Rowland
Hill's
Case
,
Grandfather
,
father
and
son
,
the
grandfather
seised
of
Land
,
ut
supra
,
makes
a
Feoffment
in
Fee
to
the
use
of
himself
for
life
,
and
afterwards
to
the
use
of
the
son
in
Fee
,
The
grandfather
dieth
,
the
father
dieth
,
the
son
shall
not
be
in
Ward
,
Causa
qua
supra
,
For
this
Statute
shall
not
be
construed
by
equity
,
and
by
it
the
words
thereof
,
[
Preferment
of
children
]
shall
not
extend
unto
the
childrens
children
,
but
to
the
children
onely
of
the
King's
Tenant
,
who
makes
the
Conveyance
:
And
the
words
in
this
Statute
[
or
otherwise
]
shall
not
be
intended
to
other
persons
than
are
remembred
in
the
Statute
.
There
was
a
Case
late
,
where
the
Statute
was
construed
in
such
a
manner
,
Quod
vide
18
Eliz.
345.
Thornton's
Case
;
A
Lady
,
seised
of
Lands
in
chief
,
made
Conveyance
of
her
Lands
,
for
the
advancement
of
her
bastard-daughter
,
the
same
Conveyance
is
not
within
the
Statute
:
See
also
the
Lord
Powes's
Case
,
14
Eliz.
Dyer
313.
So
in
the
Case
of
Sir
Hugh
Calverley
,
the
Law
was
taken
,
That
where
the
Husband
dieth
seised
in
the
right
of
his
Wife
,
and
they
levy
a
Fine
unto
the
use
of
the
Husband
and
Wife
,
for
the
advancement
of
the
Husband
;
such
Conveyance
and
disposition
is
not
within
the
Statute
of
32
H.
8.
Popham
,
contrary
,
And
as
to
the
Case
of
making
this
Statute
,
it
was
not
to
overthrow
a
foundation
,
as
it
hath
been
said
;
but
it
was
rather
a
gratuity
of
the
Subjects
to
the
King
for
his
bounty
towards
them
;
for
whereas
by
the
Statute
of
Vses
,
Vses
were
executed
in
possession
,
so
as
the
Subjects
could
not
dispose
of
their
Lands
,
by
their
Wills
,
as
before
the
Vses
:
Now
,
by
this
Statute
,
the
King
was
pleased
to
give
his
Royal
assent
to
an
Act
,
by
which
Lands
might
become
devisable
,
in
respect
of
which
,
the
Subjects
added
to
this
Act
,
the
last
clause
,
to
give
him
Wardship
,
where
it
did
not
lie
before
by
the
Common
Law
,
and
that
as
a
recompence
from
the
Subjects
for
the
King's
bounty
,
and
therefore
it
ought
to
be
construed
beneficially
for
the
King.
And
to
prevent
covin
and
fraud
,
was
not
the
scope
of
this
Statute
;
For
if
three
purchase
Lands
unto
them
,
and
to
the
heirs
of
two
of
them
;
now
it
is
uncertain
whose
heirs
shall
inherit
,
for
non
constat
,
which
of
them
shall
survive
,
and
therefore
no
covin
is
averrable
in
such
case
;
and
yet
if
the
survivor
of
two
to
whom
the
Fee
is
limited
dieth
,
his
heir
within
age
,
such
heir
shall
be
in
Ward
:
So
if
such
Lands
be
given
to
two
,
and
to
the
heirs
of
him
of
those
two
who
shall
first
come
to
the
Church
of
Paul
;
Now
it
is
uncertain
which
of
them
shall
first
come
to
the
Church
of
Paul
,
yet
if
he
who
first
cometh
to
the
Church
of
Paul
dieth
,
his
heir
within
age
,
he
shall
be
in
Ward
;
which
Cases
prove
,
that
covin
and
fraud
were
not
the
cause
of
making
this
Statute
,
but
onely
the
thankfulness
of
the
Subjects
unto
the
King
for
his
bounty
,
as
abovesaid
;
for
if
this
Act
had
not
been
made
,
the
Subjects
should
not
have
power
to
dispose
of
their
Lands
for
the
advancement
of
their
children
,
but
all
should
descend
:
So
as
now
the
King
hath
lost
the
Wardship
and
Primer
seisin
of
two
parts
of
the
Lands
of
his
Tenant
,
and
hath
also
lost
the
averment
of
covin
,
which
he
had
by
the
Common
Law
,
where
Estates
were
made
by
the
King's
Tenant
for
advancement
of
their
children
.
In
respect
of
which
losses
,
the
Subjects
gave
unto
the
King
Wardship
in
case
where
the
Lands
continue
in
jointure
:
as
to
that
which
hath
been
said
;
That
this
Statute
shall
not
be
taken
by
equity
,
I
conceive
the
contrary
;
the
words
of
the
Statute
are
,
In
every
such
case
,
i.
e.
In
every
like
case
,
not
onely
where
two
,
or
more
persons
hold
jointly
to
them
and
the
heirs
of
one
of
them
,
but
also
in
every
the
like
Case
;
as
the
Case
now
in
question
,
and
in
every
Case
where
the
life
of
him
who
hath
the
Freehold
,
is
the
sole
impediment
,
quo
minus
,
the
heir
hath
not
the
Land
by
descent
in
Demesne
:
And
it
may
be
resembled
unto
the
Statute
of
Marlbridge
of
Collusion
,
which
speaks
of
Leases
for
years
,
Quas
tradere
voluerint
ad
terminum
annorum
;
and
yet
a
Lease
for
life
,
or
Lease
for
years
is
within
the
said
Statute
;
for
the
Statute
was
made
in
restraint
of
an
ill
liberty
,
that
the
Tenants
had
by
the
Common
Law
in
prejudice
of
their
Lords
,
which
see
4
E.
6.
53.
&
Plow
.
59.
And
as
to
the
word
[
otherwise
]
that
may
be
construed
,
for
payment
of
his
Legacies
:
And
as
to
equity
enlarging
,
the
Statute
speaks
[
where
many
hold
,
and
to
the
heirs
of
one
;
]
yet
,
if
two
hold
,
to
them
and
the
heirs
of
one
of
them
,
the
same
is
within
the
Statute
:
And
as
to
Equity
restraining
,
he
puts
this
case
;
Land
is
given
to
the
Husband
and
Wife
,
and
the
heirs
of
the
body
of
the
Wife
,
who
have
issue
,
the
Wife
dieth
,
the
issue
within
age
,
he
shall
not
be
in
Ward
;
and
yet
he
is
within
the
Letter
of
the
Statute
,
but
because
that
other
matter
,
That
the
Estate
for
life
,
in
the
Husband
is
an
impediment
,
Quo
minus
,
he
shall
be
in
Ward
:
It
is
a
maxim
of
the
Common
Law
,
That
the
father
shall
have
the
Wardship
of
the
son
and
heir
apparent
,
therefore
he
shall
not
be
within
the
meaning
,
although
he
be
within
the
Letter
of
the
Statute
:
So
,
if
Lands
be
given
to
my
Villain
,
and
to
another
,
and
to
the
heirs
of
my
Villain
,
who
dieth
seised
,
his
heir
within
age
,
I
seise
the
Villain
,
and
claim
the
remainder
,
he
shall
not
be
in
Ward
;
and
yet
he
is
within
the
Letter
of
the
Statute
:
But
I
conceive
,
in
our
Case
,
the
King
shall
have
two
Wards
,
Simul
&
semel
,
the
heir
general
of
Wiseman
,
and
the
issue
in
tail
;
the
heir
general
by
the
Common
Law
,
by
reason
that
his
father
was
the
King's
Tenant
,
who
disposed
of
his
Lands
for
the
advancement
of
his
children
;
and
therefore
the
Queen
shall
have
the
third
part
in
Ward
:
And
also
the
heir
special
shall
be
in
Ward
,
for
that
part
of
the
Statute
.
And
it
is
no
new
thing
to
have
two
Wardships
for
one
and
the
same
Lands
:
As
14
H.
8.
of
the
heir
of
Cestuy
quae
use
,
and
also
of
the
Feoffee
;
and
if
the
Tenant
dieth
seised
,
having
issue
a
daughter
,
who
is
his
heir
,
the
Lord
seiseth
the
daughter
,
and
marrieth
her
,
and
afterwards
a
son
is
born
;
he
shall
have
the
Wardship
also
of
him
:
So
of
the
heirs
of
the
Disseisor
and
Disseisee
;
and
he
said
,
If
Lands
holden
in
chief
be
leased
for
life
,
the
remainder
to
A.
in
Fee
,
A.
dieth
,
his
heir
within
age
,
he
shall
be
in
Ward
,
and
that
by
reason
of
these
words
in
the
Statute
,
[
In
every
such
case
]
it
is
not
the
same
Case
,
but
the
like
Case
;
for
if
he
who
hath
the
Fee
dieth
,
so
as
the
Freehold
survives
to
the
other
;
now
the
Estate
becomes
as
an
Estate
for
life
,
the
remainder
over
.
It
was
adjourned
.
CLXXXIV
.
The
Lord
Howard
and
the
Town
of
Walden
's
Case
.
24
Eliz.
In
the
Exchequer
.
Libere
tenentes
magnatum
&
aliorum
;
but
the
King
is
not
Libere
tenens
alicujus
magnat.
32
H.
6.
21
,
22.
The
King
hath
an
Advowson
in
the
Right
of
his
Dutchy
,
to
which
being
void
,
he
presents
;
he
may
repeal
his
presentment
:
and
he
vouched
divers
presidents
of
Grants
of
the
King
of
such
lands
to
hold
of
him
,
as
of
his
Dutchy
,
and
sometimes
of
others
:
And
the
King
by
his
Dutchy
seal
may
give
lands
in
Mortmain
;
and
the
King
under
his
Dutchy-seal
,
hath
made
divers
Corporations
within
his
Dutchy
,
And
although
this
Rent
be
a
new
thing
,
never
parcel
of
the
Dutchy
,
yet
,
because
it
is
issuing
out
of
the
Dutchy
lands
,
and
reserved
thereout
,
shall
be
of
the
same
nature
,
and
accounted
parcel
of
the
possessions
of
the
Dutchy
:
If
before
the
Statute
of
West
.
3.
one
seised
of
lands
on
the
part
of
his
mother
,
made
a
Feoffment
in
Fee
,
Tenend
.
by
such
services
,
and
died
,
the
Seignory
should
go
to
the
heir
on
the
part
of
his
mother
,
and
should
be
descendable
as
the
land
it self
,
in
lieu
of
which
it
came
:
And
if
Tenant
in
tail
:
now
after
the
Statute
of
32
H.
8.
makes
a
Lease
for
years
according
to
the
Statute
,
rendring
Rent
to
him
and
his
heirs
,
it
shall
be
expounded
such
heirs
which
are
inheritable
to
the
land
,
according
to
the
entail
.
Manwood
,
chief
Baron
,
Demanded
of
Plowden
,
this
Question
;
The
King
makes
a
Feoffment
in
Fee
of
lands
of
his
Dutchy
,
Is
the
same
a
matter
of
Record
?
who
answered
,
yes
,
Manwood
,
Truely
no
,
for
then
there
needed
not
any
livery
.
Egerton
,
Solicitor
,
argued
to
the
contrary
,
and
he
argued
much
upon
the
Statute
of
1
H.
4.
and
1
H.
7.
of
the
separation
of
the
Dutchy
of
Lancaster
from
the
Crown
,
which
see
in
the
Comment.
215.
in
the
Case
of
the
Dutchy
of
Lancaster
;
by
which
Acts
,
the
possessions
of
the
Dutchy
were
devested
out
of
the
body
Politick
of
the
King
,
and
vested
in
his
body
natural
,
and
are
as
their
corporal
holding
in
the
King
,
as
they
were
in
the
Duke
of
Lancaster
,
being
a
Subject
;
who
if
he
had
made
a
Feoffment
,
the
Feoffee
should
not
hold
of
him
,
but
of
the
King
;
Ergo
,
so
shall
it
be
in
the
case
where
the
King
himself
makes
a
Feoffment
:
and
he
cited
a
Case
,
put
in
the
end
of
the
Dutchy
Case
,
4
Eliz.
223.
The
Queen
made
a
Feoffment
of
lands
of
the
Dutchy
out
of
the
County
Palatine
,
to
hold
of
her
in
Capite
;
the
Feoffee
shall
hold
of
her
in
Capite
as
of
her
Crown
of
England
.
The
case
went
farther
;
the
King
after
this
Feoffment
,
granteth
the
Fee-farm
,
the
Question
is
,
If
the
Rent
reserved
upon
this
Feoffment
shall
pass
by
such
grant
or
not
:
and
he
said
,
That
this
Rent
is
not
parcel
of
the
Fee-farm
,
but
rather
a
collateral
charge
upon
the
land
;
for
in
all
cases
where
there
is
a
Tenure
expressed
in
fait
,
or
implyed
in
Law
,
there
the
rent
reserved
after
,
shall
not
be
parcel
of
the
Tenure
,
but
a
Rent
in
gross
by
it self
:
As
in
our
case
,
Tenend
.
in
feod
.
firm
.
makes
a
Tenure
;
therefore
the
Reddend
.
after
shall
not
make
the
sum
reserved
parcel
of
it
:
33
E.
3.
Annuity
52.
before
the
Statute
of
Quia
Emptores
terrarum
;
a
man
makes
a
Feoffment
in
Fee
,
Tenend
.
de
Dominis
Capital
.
rendring
the
rent
of
20
l.
that
Rent
is
a
Rent
in
gross
and
not
parcel
of
the
Tenure
.
King
E.
6.
granted
to
Cranmer
Archbishop
,
and
his
heirs
,
Tenend
.
by
the
fifth
part
of
a
Knight's-fee
,
Reddend
.
6
l.
per
ann.
Cranmer
in
Feoffment
in
Fee
to
the
use
of
himself
for
life
,
the
remainder
to
the
use
of
his
son
in
tail
,
the
remainder
to
the
use
of
the
right
heirs
of
Cranmer
made
a
Fee
,
who
is
attainted
of
Treason
,
by
which
the
remainder
to
his
right
heirs
Escheats
to
the
King
,
and
so
the
Seignory
is
extinct
;
but
it
was
adjudged
,
That
the
Rent
was
in
esse
,
and
not
extinct
by
the
Escheat
of
the
remainder
,
for
it
was
not
parcel
of
the
Seignory
:
So
here
in
our
case
.
Another
matter
was
moved
;
If
this
Rent
,
being
a
new
thing
created
,
de
novo
,
and
not
parcels
of
the
possessions
of
the
Dutchy
,
1
H.
4.
nor
1
H.
7.
shall
be
accounted
in
Law
in
the
right
of
the
Crown
,
or
of
the
Dutchy
;
and
if
of
the
Crown
,
then
it
cannot
pass
by
the
Dutchy-seal
:
and
the
Statute
of
1
H.
4.
speaks
of
such
Lands
and
Tenements
which
were
to
his
Ancestors
,
Dukes
of
Lancaster
;
but
this
Rent
never
was
in
them
,
&c.
and
the
Queen
cannot
enlarge
the
possessions
of
her
Dutchy
by
her
own
Act
;
and
therefore
,
if
J.
S.
being
Tenant
in
Fee-simple
,
be
impleaded
in
a
Praecipe
quod
reddat
,
and
saith
that
he
holdeth
for
life
,
the
remainder
to
the
King
in
Fee
in
the
right
of
his
Dutchy
;
now
this
remainder
is
vested
in
the
King
in
the
right
of
his
Crown
,
and
not
in
the
right
of
his
Dutchy
;
for
it
is
onely
an
Estoppel
:
So
the
Villein
of
the
King
,
in
the
right
of
his
Dutchy
,
purchaseth
lands
,
the
King
seiseth
,
he
shall
have
the
lands
in
the
right
of
his
Crown
,
and
not
in
the
right
of
the
Dutchy
:
If
the
King
giveth
Common
out
of
his
lands
,
parcel
of
his
Dutchy
,
and
afterwards
makes
a
Feoffment
in
Fee
of
the
lands
out
of
which
the
Common
is
granted
,
and
afterwards
the
Commoner
dieth
without
heir
,
the
King
shall
have
the
same
in
the
right
of
his
Crown
,
and
not
in
the
right
of
the
Dutchy
:
So
,
although
the
rent
doth
follow
the
nature
of
the
lands
out
of
which
it
is
issuing
,
yet
it
is
not
so
to
all
intents
;
and
he
said
,
That
by
the
Statute
of
2
&
3
Phil.
&
Ma.
the
King
could
not
enlarge
the
possessions
of
the
Dutchy
;
and
therefore
by
the
said
Act
,
authority
is
given
for
to
annex
possession
unto
the
Dutchy
by
Letters
Patents
;
And
there
is
another
clause
in
the
said
Statute
,
That
if
any
part
of
the
possessions
of
the
Dutchy
have
been
aliened
,
or
granted
unto
any
subject
,
and
are
reverted
to
the
Crown
by
Escheat
,
attainder
,
forfeiture
,
purchase
,
&c.
they
shall
be
deemed
and
accepted
parcel
of
the
Dutchy
;
which
case
proves
,
That
if
the
King
makes
a
Feoffment
of
such
lands
,
the
same
is
a
Tenure
in
chief
;
for
if
it
were
a
Tenure
of
the
Dutchy
,
then
upon
Escheat
,
it
should
be
parcel
of
the
Dutchy
again
,
without
the
help
of
that
Statute
.
Now
,
this
Rent
being
a
Rent
in
gross
,
and
not
parcel
of
the
Seignory
,
Reddendo
Domino
Regi
,
haeredibus
&
successoribus
suis
,
aut
Domino
,
aut
Dominis
feodi
,
when
the
King
grants
the
Seignory
to
the
Lord
Audley
,
it
hath
been
moved
,
that
it
was
in
the
Election
of
the
Feoffee
,
to
pay
the
Rent
to
the
King
,
or
to
the
Lord
Audley
;
but
that
is
not
so
,
for
although
the
Law
be
so
betwixt
Subjects
,
yet
in
case
of
the
King
it
is
otherwise
;
for
the
King
shall
never
be
over-reached
by
an
Election
:
and
therefore
he
shall
pay
the
Rent
to
the
King.
It
was
adjourned
.
CLXXXV
.
The
Executors
of
Sir
William
Cordel
and
Clifton
's
Case
.
Hill.
18
Eliz.
In
the
Common
Pleas.
William
Cordel
,
William
Clifton
in
tail
;
The
Rent
is
behind
,
William
Cordel
dieth
,
Sir
William
Clifton
dieth
,
the
Manor
descends
to
John
Clifton
,
who
grants
a
Copihold
to
Hempston
:
the
Executors
of
Sir
William
Cordel
distrain
for
the
Rent
;
It
was
agreed
by
the
whole
Court
,
(
scil.
)
not
onely
an
action
of
debt
,
but
also
distress
and
avowry
:
See
the
words
of
the
Statute
,
Distrain
for
the
arrearages
,
&c.
upon
the
lands
,
&c.
which
were
charged
with
the
payment
of
such
rents
,
and
chargeable
to
the
Distress
of
the
Testator
;
or
in
the
seisin
or
possession
of
any
other
person
or
persons
claiming
the
said
lands
,
onely
by
and
from
the
same
Tenant
by
purchase
,
gift
,
or
descent
,
in
like
manner
and
form
as
their
Testator
might
or
ought
to
have
done
in
his
life
time
:
And
it
was
moved
by
Fenner
,
That
here
the
said
land
charged
,
doth
not
continue
in
the
seisin
or
possession
of
the
Tenant
;
and
here
Sir
John
Clifton
was
issue
in
tail
,
and
therefore
he
doth
not
claim
onely
by
the
father
,
but
per
formam
Doni
;
and
therefore
he
is
not
liable
;
therefore
neither
his
Copyholder
.
Shuttleworth
,
Serjeant
,
contrary
,
That
Sir
John
Clifton
was
chargeable
;
and
he
claims
onely
from
them
who
immediately
ought
to
have
paid
the
Rent
,
and
the
Copyholder
claims
by
purchase
from
Sir
John
Clifton
,
so
he
claims
from
Sir
William
Clifton
the
Tenant
,
&c.
although
he
doth
not
claim
immediately
from
him
:
For
if
the
Tenant
ought
to
have
paid
it
,
and
dieth
,
and
the
land
descendeth
to
his
heir
,
and
the
Heir
maketh
a
Feoffment
in
Fee
,
the
Feoffee
shall
be
charged
within
this
Statute
,
although
he
doth
not
claim
immediately
:
so
where
land
descends
from
the
Tenant
which
ought
to
have
paid
it
,
and
so
from
Heir
to
Heir
.
The
Statute
of
1
R.
3.
wills
,
that
all
grants
,
&c.
shall
be
good
against
the
Donor
,
his
Heirs
,
&c.
claiming
onely
as
Heirs
to
Cestuy
que
use
,
&c.
Yet
,
if
Cestuy
que
use
granteth
a
Rent-charge
,
and
the
Feoffees
are
disseised
,
the
Grant
shall
be
good
against
the
Disseisor
;
and
yet
he
doth
not
claim
onely
by
Cestuy
que
use
:
And
although
Sir
John
Clifton
be
Tenant
in
tail
,
and
claims
per
formam
Doni
;
Yet
,
because
the
Estate
tail
cometh
under
the
Estate
of
him
who
grants
the
Rent
,
he
shall
be
subject
to
the
charge
.
And
this
Statute
extends
not
onely
to
him
who
claims
by
the
Tenant
,
but
also
to
the
Heir
of
him
who
grants
,
&c.
And
by
Windham
and
Rhodes
,
The
Copyholder
doth
not
claim
onely
by
the
Lord
,
but
he
claims
also
by
the
custome
;
but
the
custome
is
not
any
part
of
his
Title
,
but
onely
appoints
the
manner
how
he
shall
hold
,
&c.
The
possession
continues
here
in
Sir
John
Clifton
,
for
the
possession
of
his
Copyholder
is
his
possession
;
so
as
if
the
Copyholder
be
ousted
,
Sir
John
Clifton
shall
have
an
Assise
:
And
so
the
strict
words
of
the
Statute
are
observed
,
for
the
seisin
and
possession
continues
in
Sir
John
Clifton
who
claims
onely
by
Sir
William
Clifton
who
was
the
Tenant
in
demean
who
ought
to
pay
the
Rent
.
But
Fenner
said
to
that
;
that
the
seisin
and
possession
intended
in
the
Statute
,
is
the
very
actual
possession
,
(
scil.
)
Pedis
dispositio
,
and
such
a
possession
in
which
the
distress
may
be
taken
and
that
cannot
be
taken
in
a
Freehold
without
an
actual
possession
.
CLXXXVI
.
19
Eliz.
In
the
Common-Pleas
.
l.
per
an
.
out
of
it
to
his
younger
son
,
towards
his
Education
and
bringing
up
in
Learning
,
and
if
in
pleading
,
the
Devisee
ought
to
aver
that
he
was
brought
up
in
Learning
was
the
Question
:
And
it
was
holden
by
Dyer
,
Manwood
and
Mounson
,
that
such
averment
needs
not
;
for
the
Devise
is
not
conditional
;
and
therefore
,
although
he
be
not
brought
up
in
Learning
,
yet
he
shall
have
the
Rent
:
and
the
words
of
the
Devise
,
are
,
Towards
his
bringing
up
;
and
he
well
knew
,
that
5
l.
per
an
.
would
not
,
nor
could
extend
to
maintain
a
Scholar
in
Learning
,
s.
per
an
.
during
the
term
of
six
years
,
towards
the
education
and
bringing
up
of
such
a
one
an
Infant
,
and
within
the
two
first
years
of
the
said
term
the
Infant
died
,
so
as
now
there
needed
not
any
supply
towards
his
education
;
yet
it
was
adjudged
,
that
the
yearly
sum
ought
to
be
paid
for
the
whole
term
after
;
for
the
words
[
toward
his
education
]
are
but
to
shew
the
intent
and
consideration
of
the
payment
of
that
sum
,
and
no
word
of
condition
,
&c.
CLXXXVII
.
West
and
Stowel
's
Case
.
Mich.
20
Eliz.
In
the
Common
Pleas.
Thomas
West
against
Sir
John
Stowell
,
The
Plaintiff
Declared
,
That
the
Defendant
,
in
consideration
that
the
Plaintiff
promised
to
the
Defendant
,
that
if
the
Defendant
shall
win
a
certain
match
at
shooting
,
made
between
the
Lord
of
Effingham
and
the
Defendant
,
then
the
Plaintiff
should
pay
to
the
Defendant
10
l.
and
promised
to
the
Plaintiff
,
That
if
the
said
L.
Effingham
shall
win
the
same
match
of
the
Defendant
,
that
then
the
Defendant
would
pay
to
the
Plaintiff
10
l.
And
farther
declared
,
That
the
Lord
Effingham
won
the
match
,
for
which
the
Action
is
brought
.
It
was
moved
,
that
here
is
not
any
sufficient
consideration
;
for
the
promise
of
the
Plaintiff
to
the
Defendant
,
Non
parit
actionem
,
for
there
is
not
any
consideration
upon
which
it
is
conceived
,
but
is
onely
,
Nudum
pactum
,
upon
which
the
Defendant
could
not
have
an
Action
against
the
Plaintiff
.
And
then
here
is
not
any
sufficient
consideration
for
the
promise
of
the
Defendant
.
Mounson
,
Iustice
conceived
,
that
here
the
consideration
is
sufficient
,
for
here
this
counter
promise
is
a
reciprocal
promise
,
and
so
a
good
consideration
,
for
all
the
communication
ought
to
be
taken
together
,
Manwood
,
Such
a
reciprocal
promise
betwixt
the
parties
themselves
at
the
match
,
is
sufficient
;
for
there
is
consideration
good
enough
to
each
,
as
the
preparing
of
the
Bows
and
Arrows
,
the
riding
or
coming
to
the
place
appointed
to
shoot
,
the
labour
in
shooting
,
the
travel
in
going
up
and
down
between
the
marks
:
But
for
the
Bettors
by
,
there
is
not
any
consideration
,
if
the
Bettor
doth
not
give
aim
:
Mounson
,
A
cast
at
Dice
alters
the
property
,
if
the
Dice
be
not
false
;
wherefore
then
is
there
not
here
a
reciprocal
Action
?
Manwood
,
At
Dice
the
parties
set
down
their
monies
,
and
speak
words
which
do
amount
to
a
conditional
gift
;
(
scil.
)
If
that
the
other
party
cast
such
a
cast
he
shall
have
the
money
.
CLXXXVIII
.
Dunne
's
Case
.
19
Eliz.
In
the
King's-Bench
.
DUnne
possessed
of
divers
goods
in
divers
Dioceses
died
intestate
at
Bristow
;
The
Bishop
of
Bristow
committed
administration
to
Jones
and
his
Wife
,
who
administred
;
and
afterwards
the
Bishop
of
Canterbury
,
by
reason
of
his
Prerogative
,
committed
administration
to
Austen
and
Dunne
,
and
they
brought
an
Action
of
Trespass
against
Jones
and
his
Wife
,
for
taking
of
the
goods
of
the
intestate
;
It
was
holden
by
Wray
and
Southcote
,
CLXXXIX
.
Kingwell
and
Chapman
's
Case
.
19
Eliz.
In
the
King's-Bench
.
IN
an
Action
of
Debt
upon
a
Bond
,
by
Kingwell
against
Chapman
;
l.
viz.
at
the
Feast
of
the
Annunciation
20
l.
and
at
Michaelmas
after
10
l.
and
shewed
,
that
the
said
J.
had
paid
the
said
20
l.
at
the
Annunciation
;
and
as
to
the
10
l.
he
pleaded
,
That
the
said
J.
died
before
the
said
Feast
of
Michaelmas
,
upon
which
there
was
a
demurrer
:
And
by
Wray
,
Southcote
and
Gawdy
,
Iustices
,
the
Bond
is
forfeit
.
First
,
because
the
sum
awarded
by
the
Arbitrament
,
is
now
become
a
duty
;
as
if
the
condition
of
the
Bond
had
been
for
the
payment
of
it
:
Secondly
,
day
is
appointed
for
the
payment
of
it
,
10
H.
7.
18.
Thirdly
,
the
Executors
cannot
perform
the
condition
.
But
if
I
be
bound
by
Bond
to
enfeoff
the
Obligee
at
such
a
day
,
and
before
the
said
day
I
die
,
my
Executors
shall
not
be
charged
with
it
;
for
the
Condition
is
become
impossible
by
the
Act
of
God
,
for
the
Land
is
descended
to
the
heir
.
CXC
.
Lodge
's
Case
.
20
Eliz.
In
the
Common-Pleas
.
l.
Diggs
,
according
to
the
custome
of
London
,
attached
in
the
hands
of
Lodge
34
l.
to
be
paid
to
him
at
the
day
,
as
part
of
his
debt
of
40
l.
Lodge
brought
a
Bill
of
Privilege
,
directed
to
the
Mayor
and
Sheriff
of
London
,
and
that
every
person
,
who
had
cause
of
Action
against
Lodge
,
Sequatur
ad
Com.
Legem
,
&c.
Si
sibi
videbitur
expedire
,
&c.
At
the
retorn
of
which
Writ
,
Bendloes
prayed
a
Procedendo
.
And
by
Harper
,
Iustice
,
the
privilege
shall
not
be
allowed
,
because
that
this
Attachment
is
by
custome
,
and
not
allowable
here
;
and
if
Lodge
should
have
the
privilege
,
then
is
the
other
party
without
remedy
:
And
if
an
Attorney
of
this
place
be
impleaded
in
London
upon
a
Concessit
solvere
debit
.
alterius
,
he
shall
not
have
the
privilege
.
Manwood
contrary
;
For
according
to
the
Common
Law
,
Lodge
owed
nothing
to
Diggs
,
but
is
his
Debtor
by
a
custome
:
And
as
to
the
Case
of
Concessit
solvere
,
there
the
promise
was
to
the
party
himself
,
who
brought
the
Action
;
and
he
hath
no
other
remedy
;
but
in
the
Case
at
Bar
,
Diggs
,
who
is
a
stranger
,
vexes
Lodge
,
who
ows
him
nothing
,
having
remedy
against
his
proper
Debtor
,
which
Dyer
granted
,
and
farther
said
,
That
the
privilege
of
this
Court
ought
not
to
be
impeached
by
any
custome
:
And
the
Prothonotaries
cited
a
Case
adjudged
in
the
point
;
That
such
a
privilege
was
allowed
in
the
Case
of
one
Underhil
,
and
afterwards
in
the
principal
Case
the
privilege
was
allowed
.
CXCI.
Segar
and
Bainton
's
Case
.
21
Eliz.
In
the
Common-Pleas
.
Edw.
Bainton
Knight
,
and
to
the
heirs
males
of
his
body
;
Sir
Edw.
Bainton
had
issue
,
Andrew
his
eldest
son
;
and
the
now
Defendant
his
younger
son
,
and
died
;
Andrew
Bainton
covenanted
by
Indenture
with
the
Lord
Seymore
,
That
the
said
Andrew
Bainton
would
assure
the
said
Manor
to
the
use
of
himself
for
life
,
the
Remainder
to
the
use
of
the
said
Lord
and
his
heirs
;
and
the
said
Lord
in
recompense
thereof
,
should
assure
other
Lands
to
the
use
of
himself
for
life
,
the
remainder
to
the
use
of
the
said
Andrew
Bainton
in
tail
,
who
,
37
H.
8.
levied
a
Fine
of
the
said
Manor
without
Proclamations
to
two
strangers
,
to
the
uses
according
to
the
said
agreement
,
and
before
any
assurance
made
by
the
said
Lord
,
the
said
Lord
was
attainted
of
Treason
,
by
which
all
his
Lands
were
forfeited
to
the
King
:
And
afterwards
the
said
Andrew
Bainton
made
a
suggestion
to
Queen
Mary
of
all
this
matter
;
and
upon
his
humble
Petition
,
the
said
Queen
by
her
Letters
Patents
,
reciting
the
said
mischief
,
&c.
Et
praemissa
considerans
,
&
annuens
Petitioni
illius
,
granted
to
him
the
Manor
aforesaid
,
and
farther
,
De
ampliori
gratia
sua
,
did
release
to
the
said
Andrew
Bainton
,
all
her
right
,
possession
,
&c.
which
came
to
her
,
Ratione
attincturae
praed.
vel
in
manibus
nostris
existant
,
vel
existere
deberent
;
after
which
,
5
Eliz.
Andrew
Bainton
levied
a
Fine
to
the
Plaintiff
,
with
Proclamations
,
and
died
without
issue
,
and
the
Defendant
,
as
issue
in
tail
,
entred
.
Puckering
,
Serjeant
:
First
,
it
is
to
see
,
if
by
the
words
of
the
Patent
of
Queen
Mary
;
viz.
De
ampliori
gratia
,
&c.
the
Reversion
in
Fee
which
the
Queen
had
,
shall
pass
or
not
?
Secondly
,
Admitting
that
the
Reversion
doth
not
pass
,
then
if
the
Fine
levied
by
Andrew
Bainton
,
5
Eliz.
to
the
Plaintiff
,
the
Reversion
being
in
the
Queen
,
be
a
bar
unto
the
issue
in
tail
?
For
as
unto
the
first
Fine
levied
,
37
H.
8.
which
was
without
Proclamations
,
the
same
shall
not
bind
the
issue
in
tail
,
neither
as
to
the
right
,
nor
as
to
the
Entry
,
for
it
is
not
any
discontinuance
,
because
the
Reversion
is
in
the
King
;
as
of
things
which
do
not
lie
in
discontinuance
,
as
Rent
,
Common
,
&c.
for
such
a
Fine
is
a
Fine
at
the
Common
Law
,
and
not
within
the
Statute
of
4
H.
7.
and
such
Fine
is
void
against
the
issue
:
But
if
such
a
Fine
without
Proclamation
be
levied
of
a
thing
which
lieth
in
discontinuance
,
then
such
a
Fine
is
not
void
,
but
voidable
by
Formedon
:
and
therefore
this
Fine
in
the
Case
at
Bar
being
levied
without
Proclamation
of
Lands
entailed
,
whereof
the
Reversion
is
in
the
King
at
the
time
of
the
Fine
levied
,
shall
not
bind
the
issue
:
and
by
such
Fine
the
Conusee
hath
nothing
but
a
Fee
determinable
upon
the
life
of
Tenant
in
tail
,
which
Fee
was
forfeited
to
the
Queen
by
the
Attainder
of
the
Lord
Seymore
,
and
that
the
Queen
moved
of
pity
,
did
restore
the
same
to
A.
B.
in
recompence
;
for
the
Indentures
of
themselves
were
not
sufficient
to
raise
any
use
:
See
1
Mariae
,
Dyer
96.
As
to
the
first
point
,
it
seems
that
nothing
passed
of
the
Reversion
,
for
the
Grant
hath
reference
to
the
words
,
All
her
Right
,
Possession
,
&c.
which
came
to
her
ratione
attincturae
,
and
all
the
residue
of
the
Grant
ought
to
have
reference
to
that
,
to
the
ratione
attincturae
,
which
was
the
foundation
of
the
whole
Grant
:
and
here
the
intent
of
the
Queen
was
not
to
any
other
intent
but
onely
to
restore
A.
B.
to
the
said
Manor
,
or
to
his
former
Estate
in
it
;
and
nothing
appears
in
the
Letters
Patents
,
by
which
it
may
appear
,
that
the
Queen
was
knowing
of
her
Reversion
which
she
had
by
descent
,
and
therefore
the
same
cannot
pass
by
general
words
.
If
the
Queen
grants
the
Goods
and
Chattels
of
all
those
which
have
done
any
Trespass
,
for
which
vitam
amittere
debent
,
the
Goods
of
him
who
is
attainted
of
Treason
shall
not
be
forfeited
to
the
Grantee
by
such
general
words
:
8
H.
4.
2.
The
King
grants
omnia
Catalla
Tenentium
suorum
,
qualitercunque
damnatorum
,
the
same
shall
not
extend
to
the
Goods
of
him
who
is
condemned
of
Treason
:
See
22
Ass.
49.
So
in
our
Case
the
Patent
shall
not
serve
to
two
intents
,
but
to
a
restitution
of
the
Manor
,
and
then
nothing
passed
by
this
Patent
but
the
Fee
determinable
,
which
was
conveyed
to
the
Lord
Seymore
,
and
forfeited
by
his
Attainder
.
Then
we
are
to
see
,
how
after
this
grant
the
said
A.
B.
is
seised
.
And
he
said
,
That
he
shall
be
in
of
the
said
Fee
determinable
,
and
not
of
the
Estate
tail
against
his
own
Fine
;
and
then
if
he
be
not
seised
by
force
of
the
Entail
at
the
time
of
the
Fine
levied
,
5
Eliz.
the
same
Fine
cannot
bind
the
tail
:
But
admit
that
at
the
time
of
the
second
Fine
levied
he
was
in
of
an
Estate
in
tail
,
yet
the
same
Fine
shall
not
bar
his
issue
:
For
first
,
this
Fine
cannot
make
any
discontinuance
,
because
that
the
Reversion
in
Fee
is
in
the
King
,
which
is
not
touched
by
the
Fine
:
See
the
Case
of
Sanders
,
where
A.
makes
a
Lease
to
begin
at
a
day
to
come
,
and
afterwards
levies
a
Fine
to
a
stranger
with
Proclamations
;
the
five
years
pass
,
and
afterwards
at
the
day
of
the
Commencement
of
the
Lease
the
Lessee
enters
,
his
entry
is
lawfull
,
and
he
shall
not
be
bound
by
the
non-claim
.
And
so
it
was
adjudged
21
Eliz
between
Sanders
and
Starky
.
After
the
making
of
the
Statute
of
4
H.
7.
of
Fines
,
it
was
much
doubted
,
if
the
issues
of
common
Tenants
in
tail
should
be
bound
by
a
Fine
with
Proclamation
,
forasmuch
as
upon
the
death
of
their
Ancestours
they
were
as
new
purchasors
per
formam
doni
:
and
therefore
it
was
provided
by
the
Statute
of
32
H.
8.
that
the
said
Statute
of
4
H.
7.
should
extend
to
such
common
Entails
;
but
there
was
no
doubt
of
the
Estate
tail
of
the
Gift
of
the
King
:
and
see
betwixt
Jackson
and
Darcy
,
Mich.
15
and
16
Elizab.
Rot.
1747.
in
a
Partitione
facienda
,
the
Case
was
,
Tenant
in
tail
,
the
Remainder
to
the
King
after
the
Statute
of
32
H.
8.
levied
a
Fine
with
Proclamations
,
and
adjudged
,
that
that
should
bind
the
issues
:
and
the
Act
of
32
H.
8.
doth
not
extend
,
but
where
the
Reversion
is
in
the
King
,
but
no
mention
is
there
of
a
Remainder
,
because
the
words
of
the
said
Act
are
general
,
of
all
Tenants
in
tail
,
the
makers
of
the
said
Act
perceiving
that
it
might
be
a
doubt
,
that
the
generality
of
the
said
words
might
exclude
Estates
tail
of
the
Gift
of
the
King
,
they
have
restrained
the
words
in
a
special
manner
,
as
appeareth
by
the
last
words
of
the
same
Act
:
Nor
to
any
Fines
heretofore
levied
,
or
hereafter
to
be
levied
by
any
person
or
persons
of
any
Manors
,
&c.
before
the
levying
of
the
said
Fine
to
any
of
his
or
their
Ancestors
in
tail
by
Letters
Patents
,
or
Act
of
Parliament
,
the
Reversion
whereof
,
at
the
time
of
the
levying
of
such
Fine
,
was
in
the
King
:
and
so
such
Estates
are
excepted
,
and
that
in
such
Cases
where
such
Fines
are
levied
,
they
shall
be
of
such
force
as
they
should
have
been
if
the
said
Act
had
not
been
made
;
and
therefore
he
conceived
,
it
appeared
at
the
said
Parliament
,
That
such
Estate
tails
of
the
Gift
of
the
King
were
not
bound
b●
4
H.
7.
for
otherwise
that
Proviso
or
Exception
had
been
frivolous
.
Walmsley
,
Serjeant
,
to
the
contrary
;
and
he
agreed
,
That
the
first
Fine
doth
not
make
any
discontinuance
;
and
yet
he
conceived
,
it
is
not
altogether
void
against
the
issues
before
that
they
enter
,
for
no
Right
remains
in
the
Conusor
against
his
Fine
:
and
he
conceived
also
that
this
clause
,
ex
uberiori
gratia
nostra
,
did
extend
to
pass
more
than
passed
before
,
for
he
conceived
that
the
Queen
intended
more
liberally
,
viz.
the
Reversion
,
for
this
same
is
not
any
matter
of
Prerogative
,
but
this
is
a
matter
of
interest
which
might
even
in
the
Case
of
the
King
pass
out
of
the
King
by
general
words
:
And
see
3
H.
6.
6
and
7
Br.
Patents
;
A
Grant
of
the
King
ex
insinuatione
shall
not
hinder
the
force
of
the
words
ex
mero
motu
.
And
the
opinion
of
the
Court
was
,
That
the
Reversion
which
was
in
the
King
did
not
pass
by
this
Grant
:
For
the
scope
of
the
whole
Patent
was
,
as
was
conceived
,
to
grant
the
same
onely
which
the
Queen
had
ratione
attincturae
.
Anderson
held
the
Patent
insufficient
,
because
that
the
Prohibition
was
not
full
and
certain
:
Also
he
said
,
That
ex
speciali
gratia
,
&c.
would
not
help
this
Case
,
if
it
were
well
argued
,
for
the
Estate
tail
is
not
well
recited
,
but
onely
that
he
was
seised
de
Statu
haereditario
,
&c.
so
as
the
Queen
was
deceived
.
Periam
,
contrary
;
The
Queen
was
apprised
well
of
the
mischief
and
Grant
aforesaid
,
viz.
of
such
Estate
,
with
which
he
departed
by
the
Fine
.
And
as
to
the
other
point
,
it
was
the
opinion
of
Walmsley
,
That
the
Fine
with
Proclamation
did
bind
the
Entail
.
And
as
to
the
Objection
which
hath
been
made
,
That
the
Conusor
,
at
the
time
of
the
Fine
levied
,
was
not
seised
by
force
of
the
Entail
,
the
same
had
been
good
matter
to
avoid
a
common
Recovery
,
to
alledge
such
matter
in
the
Tenant
to
the
Praecipe
,
but
not
to
this
purpose
:
for
if
Tenant
in
tail
levieth
a
Fine
,
although
he
was
not
seised
at
the
time
of
the
Fine
levied
by
force
of
the
Entail
,
yet
such
a
Fine
shall
bind
the
issues
:
So
if
the
Tenant
in
tail
doth
discontinue
,
and
disseiseth
the
Discontinuee
,
and
so
levieth
a
Fine
.
And
he
conceived
,
That
the
issue
in
tail
is
bound
by
the
Statute
of
4
H.
7.
even
of
the
Gift
of
the
King.
And
see
19
H.
8.
6.
and
7.
where
it
is
holden
,
That
the
issue
in
tail
is
bound
by
the
Act
of
4
H.
7.
And
whereas
it
hath
been
objected
,
That
it
doth
not
extend
,
but
to
such
Fines
which
make
a
discontinuance
at
the
Common
Law
;
the
same
is
not
so
:
for
if
Tenant
in
tail
of
a
Rent
or
Common
levieth
a
Fine
with
Proclamation
,
it
is
very
clear
,
that
the
issues
shall
be
barred
thereby
:
And
he
relied
much
upon
the
Book
of
29
H.
8.
Dyer
.
32.
Tenant
in
tail
of
the
Gift
of
the
King
levyeth
a
Fine
,
or
suffereth
a
common
Recovery
,
although
it
be
not
a
discontinuance
,
because
the
Reversion
is
in
the
King
,
yet
it
is
a
bar
unto
the
issue
.
But
note
,
That
that
was
before
the
Statute
of
34
H.
8.
And
see
now
Wiseman's
Case
,
27
Eliz.
Co.
2.
part
.
and
see
the
Lord
Stafford's
Case
,
7
Jacob.
Co.
8
Reports
,
fo.
78.
CXCII
.
Pleadal
's
Case
.
21
Eliz.
In
the
King's-Bench
.
THe
Case
was
,
That
a
man
seised
of
Lands
in
fee
,
took
a
Lease
by
Indenture
of
the
Herbage
and
Pawnage
of
the
same
Land
:
It
was
the
Opinion
of
the
whole
Court
,
that
the
same
was
no
Estoppel
to
him
to
claim
the
Soil
or
the
Freehold
:
And
it
was
said
by
Plowden
,
and
agreed
by
the
Court
,
That
if
the
Father
and
Son
be
Ioint-tenants
for
an
hundred
years
,
and
the
Son
takes
a
Lease
of
his
Father
of
the
Lands
for
fifteen
years
,
to
begin
,
&c.
the
same
shall
conclude
the
Son
to
claim
the
whole
term
or
parcel
of
it
by
Survivor
.
CXCIII
.
21
Eliz.
In
the
Star-Chamber
.
NOte
,
That
in
the
Star-Chamber
it
was
resolved
,
by
the
Advice
of
many
of
the
Iustices
,
That
an
Infant
having
levyed
a
Fine
,
may
declare
the
uses
upon
it
,
and
such
Declaration
is
good
,
notwithstanding
his
Nonage
:
and
Mr.
Plowden
affirmed
,
CXCIV
.
The
Lord
Awdley
's
Case
.
21
Eliz.
In
the
Court
of
Chancery
.
THE
Lord
Awdley
,
12
H.
7.
enfeoffed
Hoddy
and
others
of
certain
Lands
in
the
County
of
Sommerset
,
viz.
My
Will
is
,
That
my
said
Feoffees
shall
stand
seised
to
the
use
,
That
the
said
Hoddy
shall
receive
of
the
yearly
Profits
of
the
said
Lands
one
hundred
pounds
,
which
he
had
lent
to
the
said
Lord
Awdley
:
and
also
stand
seised
to
pay
all
his
Debts
upon
Bills
signed
with
his
Hand
;
and
after
the
Debts
paid
,
That
the
said
Feoffees
shall
make
Estate
of
the
said
Lands
unto
him
the
said
Lord
Awdley
,
and
Ioan
his
Wife
,
and
to
the
Heirs
of
their
Bodies
,
&c.
with
divers
Remainders
over
.
The
said
Lord
had
issue
by
the
said
Joan
;
and
also
had
issue
by
a
former
Wife
a
Daughter
:
The
Feoffees
never
made
any
Estate
to
the
said
Lord
and
his
Wife
.
And
it
was
the
Opinion
of
divers
of
the
Iustices
and
Sages
of
the
Law
,
That
upon
this
matter
no
use
was
changed
,
for
it
is
not
a
last
Will
,
but
an
intent
.
And
although
that
the
Feoffees
shall
be
seised
unto
the
use
of
the
Feoffor
and
his
Heirs
,
because
that
no
consideration
was
,
for
which
they
should
be
seised
to
their
own
use
;
yet
the
same
cannot
make
a
new
use
unto
the
said
Lord
and
his
wife
in
tail
,
without
conveying
an
Estate
;
for
the
wife
is
a
stranger
unto
the
land
,
and
also
to
the
other
use
.
And
it
cannot
be
a
Testament
or
last
Will
;
for
the
Estate
mentioned
in
the
said
Writing
,
ought
to
be
made
to
the
said
Lord
and
his
wife
,
who
cannot
take
by
his
own
Will
.
And
this
matter
was
depending
in
the
Chancery
;
and
the
advice
of
the
Iustices
being
there
required
,
they
did
deliver
their
opinions
,
That
by
this
Writing
,
no
use
was
changed
,
nor
any
Estate
vested
in
the
said
Lord
and
his
wife
;
and
a
Decree
was
made
accordingly
,
untill
proof
might
be
made
of
such
an
Estate
made
.
CXCV.
Borough
and
Holcroft
's
Case
.
21
Eliz.
In
the
King
's
Bench.
Henry
Borough
,
against
Thomas
Holcroft
,
who
pleaded
,
That
heretofore
he
had
been
indicted
of
the
Murther
of
the
said
Henry
Holcroft
before
J.
S.
Coroner
of
the
Verge
,
and
also
Coroner
of
the
Country
of
Middlesex
,
within
which
County
the
Verge
was
;
and
upon
that
indictment
he
was
arraigned
,
and
confessed
the
indictment
,
and
prayed
his
Clergy
,
&c.
and
demanded
Iudgment
;
If
the
Plaintiff
should
have
this
appeal
?
The
Plaintiff
,
Replicando
,
said
,
by
protestation
,
Nul
tiel
record
,
and
for
plea
did
demur
in
Law.
Dalton
,
for
the
Plaintiff
,
took
Exception
to
the
plea
,
for
the
conclusion
of
it
,
viz.
Iudgment
if
appeal
;
where
it
ought
to
be
,
Iudgment
,
if
he
shall
be
again
put
to
answer
:
And
he
took
a
difference
,
where
a
matter
is
pleaded
against
the
Plaintiff
,
to
which
the
Plaintiff
is
party
:
As
where
a
man
pleads
a
Fine
levied
by
the
Plaintiff
himself
,
there
he
shall
conclude
Iudgment
if
action
;
but
where
the
Fine
is
pleaded
levied
by
the
Ancestors
of
the
Plaintiff
,
there
he
shall
plead
,
Iudgment
,
if
against
such
Fine
,
&c.
Vide
,
9
H.
7.
19.
At
the
common
Law
before
the
Statute
of
3
H.
7.
such
conviction
at
the
suit
of
the
King
did
discharge
the
party
convicted
from
farther
trouble
;
but
if
the
indictment
upon
which
he
was
arraigned
be
insufficient
,
then
it
is
not
any
plea.
And
here
the
indictment
is
insufficient
;
for
by
the
Statute
of
Articuli
super
Chartas
,
cap.
3.
the
Coroner
of
the
County
,
together
with
the
Coroner
of
the
King's
Houshold
shall
do
the
Office
which
belongs
to
it
,
and
send
the
roll
,
to
which
Office
two
Coroners
are
requisite
;
but
here
,
in
the
taking
of
this
inquisition
there
was
but
one
person
although
two
capacities
,
id
est
,
Coroner
of
the
County
,
and
also
Coroner
of
the
Verge
;
and
so
the
indictment
was
taken
,
Coram
non
Judice
:
See
the
Statute
of
the
Star-Chamber
,
which
is
,
That
the
Chancellor
,
&c.
calling
to
them
one
Bishop
,
and
one
temporal
Lord
of
the
King's
Council
,
&c.
If
the
Chancellor
be
a
Bishop
;
yet
another
Bishop
ought
to
be
called
,
&c.
If
I
devise
that
my
lands
shall
be
sold
by
two
Bishops
,
and
J.
S.
hath
two
Bishopricks
,
yet
his
sale
is
not
sufficient
.
Egerton
,
contrary
,
Although
here
is
but
one
person
,
yet
there
are
two
Coroners
:
Quando
duo
jura
concurrunt
in
una
persona
aequum
est
,
ac
si
essent
in
diversis
.
At
the
common
Law
,
before
the
Statute
,
De
Articulis
super
Chartas
,
The
Coroner
of
the
Verge
by
himself
might
enquire
of
Murther
;
but
because
the
Kings
Court
oftentimes
removed
into
another
County
,
by
reason
whereof
no
enquiry
could
be
made
,
for
the
remedying
thereof
,
that
Statute
was
made
,
which
is
in
the
affirmative
,
and
doth
not
abridge
the
common
Law
before
,
and
therefore
it
shall
have
a
reasonable
construction
:
See
the
Statute
of
West
.
1.
cap.
10
,
By
which
it
is
enacted
,
that
sufficient
men
shall
be
chosen
Coroners
,
of
the
most
loyal
and
the
most
sage
Knights
,
this
Statute
shall
not
be
taken
,
Stricto
sensu
,
that
none
shall
be
chosen
Coroners
,
but
Knights
;
but
the
Statute
requires
,
that
sufficient
persons
shall
be
chosen
.
As
to
the
Statute
of
3
H.
7.
It
is
to
be
known
,
That
the
common
Law
[
before
acquitted
]
was
a
good
Plea
,
and
the
cause
was
for
the
great
regard
that
the
common
Law
had
to
the
life
of
a
man
;
In
which
case
a
great
mischief
,
as
the
Statute
recites
,
did
ensue
,
that
to
save
the
appeal
of
the
party
;
they
would
not
arraign
the
party
within
the
year
and
day
after
the
murther
,
within
which
time
,
the
offender
did
compound
with
the
party
interessed
;
and
so
after
the
year
expired
,
all
the
matter
concerning
the
prosecution
,
at
the
King's
suit
,
was
put
in
oblivion
:
wherefore
it
was
enacted
,
That
such
offender
shall
be
within
the
year
arraigned
at
the
suit
of
the
King
;
and
if
the
party
be
acquitted
at
the
Kings
suit
,
within
the
year
and
day
,
That
the
Iustices
before
whom
,
&c.
should
not
set
the
party
at
large
,
but
to
remain
in
prison
,
or
to
let
him
to
bail
,
untill
the
year
and
the
day
be
past
;
and
within
the
said
year
and
day
,
the
wife
,
or
next
heir
to
the
party
slain
may
take
their
appeal
against
the
party
so
acquitted
or
attainted
,
the
said
acquittal
or
attainder
notwithstanding
;
and
he
said
,
that
these
words
[
person
attainted
]
did
not
extend
to
person
convicted
;
for
they
are
two
distinct
conditions
in
Law
;
for
attainder
procures
corruption
of
bloud
,
but
the
same
is
not
wrought
by
conviction
:
and
every
Treason
imports
in
it self
Felony
;
but
yet
notwithstanding
they
are
distinct
Offences
:
See
22
E.
4.
Coron.
44.
where
it
was
ordered
by
all
the
Iustices
of
England
,
That
none
should
be
arraigned
of
the
death
of
a
man
,
at
the
suit
of
the
King
,
within
the
year
and
day
;
so
as
the
suit
of
the
party
be
saved
.
And
the
Iustices
counselled
all
men
of
Law
so
to
do
,
and
that
the
same
be
executed
as
a
Law
without
alteration
,
upon
which
rule
of
the
Iustices
,
arose
an
inconvenience
;
for
after
that
order
of
the
Iustices
was
known
,
The
offender
would
practise
with
the
party
to
whom
the
appeal
by
the
Law
belonged
,
to
obtain
from
him
a
release
for
some
sum
of
money
,
and
then
when
the
year
and
day
passed
,
the
heinousness
of
the
murther
was
out
of
memory
;
This
mischief
being
espied
,
was
the
occasion
of
the
making
of
the
Statute
of
3
H.
7.
But
the
said
Statute
doth
not
meet
with
our
Case
;
but
our
Case
is
at
the
common
Law
,
for
this
Statute
extends
onely
unto
persons
attainted
;
but
a
person
convicted
is
not
touched
by
it
,
and
therefore
being
out
of
the
words
of
the
Statute
,
it
shall
be
also
out
of
the
meaning
of
it
;
for
being
a
penal
Law
,
it
shall
be
taken
by
equity
,
as
all
Statutes
which
give
attaint
shall
be
,
Stricti
juris
,
and
shall
not
be
taken
by
equity
.
It
hath
been
objected
,
that
the
Statute
de
Frangentibus
prisonam
,
4
E.
1.
hath
been
taken
by
equity
,
the
same
is
not
so
;
for
it
is
not
any
penal
Law
,
but
the
same
mitigates
the
rigor
of
the
common
Law
;
for
before
that
Statute
,
the
breaking
of
the
prison
was
Felony
in
every
case
,
but
now
it
is
not
Felony
,
but
where
the
party
was
committed
to
prison
for
Felony
,
&c.
CXCVI.
21
Eliz.
In
the
Common
Pleas.
IN
a
Formedon
of
a
Manor
,
J.
S.
The
Demandant
did
aver
the
Tenant
sole
Tenant
,
as
the
Writ
doth
suppose
,
and
upon
that
issue
was
taken
,
and
found
for
the
Demandant
;
upon
which
,
a
Writ
of
Error
was
brought
,
and
Error
assigned
in
this
.
That
whereupon
Ioynt-tenancy
pleaded
by
Fine
,
the
Writ
ought
to
abate
without
any
averment
by
the
Demandant
against
it
,
the
averment
hath
been
received
against
the
Law
,
&c.
Southcote
,
At
the
common
Law
,
If
the
Tenant
had
pleaded
Ioynt-tenancy
by
Deed
,
the
Writ
should
abate
without
any
averment
;
but
that
was
remedied
by
34
E.
1.
but
Ioynt-tenancy
by
Fine
did
remain
as
it
was
at
the
common
Law
,
for
he
hath
punishment
enough
in
that
by
that
plea
,
if
it
be
false
,
he
hath
by
way
of
conclusion
given
the
moyety
of
the
Land
in
demand
to
him
with
whom
he
hath
pleaded
Ioynt-tenancy
;
and
the
Law
doth
not
intend
that
he
would
so
slightly
depart
with
his
land
for
the
abatement
of
a
Writ
:
As
in
a
Praecipe
quod
reddat
,
the
Tenant
acknowledgeth
himself
to
be
Villein
to
a
stranger
;
the
Writ
shall
abate
without
any
averment
,
if
Frank
and
of
Frank
Estate
;
for
the
Law
presumes
,
that
the
Tenant
would
not
enthral
his
condition
.
Wray
,
to
the
same
intent
:
But
the
Demandant
may
confess
and
avoid
the
Fine
,
as
to
say
,
That
he
that
levyed
the
Fine
was
his
disseisor
,
upon
whom
he
had
before
entred
,
&c.
And
if
Tenant
in
Fee-simple
be
impleaded
,
and
he
saith
that
he
is
Tenant
for
life
,
the
remainder
over
to
A.
in
Fee
,
and
prayes
in
aid
of
A.
the
Demandant
shall
not
take
averment
,
that
the
Tenant
,
the
day
of
the
Writ
purchased
,
was
seised
in
Fee.
Note
that
in
this
fine
Ioynt-tenancy
was
pleaded
but
to
parcel
.
It
was
holden
by
Wray
and
Southcot
,
that
the
whole
Writ
should
abate
;
As
in
a
Writ
the
misnosmer
of
one
shall
abate
the
whole
Writ
against
all
the
Defendants
:
and
so
where
the
Demandant
enters
into
parcel
of
the
land
in
demand
,
if
the
thing
in
demand
be
one
intire
thing
,
it
shall
abate
the
whole
Writ
.
In
this
Case
,
the
Demandant
ought
to
have
in
his
Writ
de
Forsprise
of
the
land
in
demand
,
whereof
the
Ioynt-tenancy
by
Fine
is
pleaded
,
per
availe
,
and
under
the
gift
of
which
the
Formedon
is
conceived
,
and
therefore
in
respect
of
the
title
of
the
Demandant
,
it
remains
in
right
,
parcel
of
the
Manor
,
and
therefore
ought
to
be
demanded
accordingly
with
an
Exception
:
But
if
A.
give
to
B.
a
Manor
,
except
ten
acres
in
tail
,
there
if
after
upon
any
discontinuance
,
the
issue
in
tail
have
a
Formedon
,
in
such
case
there
needs
no
exception
,
for
the
said
ten
acres
were
never
after
the
gift
,
parcel
of
the
Manor
which
was
given
in
tail
,
for
they
were
severed
from
the
Manor
upon
the
gift
;
but
if
land
in
demand
was
several
,
as
twenty
acres
except
two
,
an
exception
is
not
good
,
for
he
might
demand
eight
acres
:
See
E.
1.
F.
N.
B.
866.
Praecipe
unam
bovat
.
terrae
,
except
a
Seleon
,
and
the
Writ
was
abated
,
for
every
demand
ought
to
be
certain
,
but
a
Seleon
is
a
parcel
of
land
uncertain
,
as
to
quantity
,
in
some
places
an
acre
,
in
some
more
,
in
some
less
.
Another
point
was
,
That
because
the
Tenant
hath
admitted
and
accepted
this
averment
,
(
scil.
)
sole
Tenant
,
as
the
Writ
doth
suppose
;
If
the
Court
notwithstanding
the
admittance
of
the
Tenant
ought
without
exception
of
the
party
,
Ex
officio
,
to
abate
the
Writ
;
and
Wray
conceived
,
that
they
should
,
for
it
is
a
positive
Law
;
as
if
a
woman
brings
an
appeal
of
murther
upon
the
death
of
her
brother
,
and
the
Defendant
doth
admit
it
without
challenge
or
exception
,
yet
the
Court
shall
abate
the
appeal
,
10
E.
4.
7.
And
see
the
principal
Case
there
,
Non
ideo
puniatur
Dominus
;
and
if
an
Action
be
brought
against
an
Hostler
upon
the
common
custome
of
the
Realm
,
and
in
the
Writ
he
is
not
named
common
Hostler
,
and
the
Defendant
doth
accept
of
such
Writ
,
without
exception
to
it
,
yet
the
Court
shall
abate
the
Writ
,
Ex
officio
,
11
H.
4.
198.
and
38
H.
6.
30.
CXCVII
.
24
Eliz.
In
the
King
's
Bench.
in
Capite
,
or
holden
of
the
Dutchy
,
was
the
question
?
Egerton
Solicitor
general
,
argued
much
upon
the
Statute
of
1
H.
4.
by
which
the
Dutchy
and
possessions
thereof
were
severed
from
the
Crown
:
See
Plowden
in
the
Case
of
the
Dutchy
of
Lancaster
,
213.
And
see
ibid.
the
Statute
of
1
H.
4.
Entituled
,
Charta
Regis
,
Hen.
4.
1.
De
separatione
Ducatus
Lancastr
.
à
Corona
;
by
which
it
is
enacted
,
That
the
Dutchy
of
Lancaster
,
taliter
&
tali
modo
deducatur
,
gubernetur
&
pertractetur
,
&c.
ac
si
ad
culmen
dignitatis
Regiae
assumpti
minime
fuissemus
:
So
as
by
that
Act
the
Dutchy
is
dis-joined
from
the
Crown
,
and
in
such
point
as
to
possession
,
as
it
was
in
a
common
person
.
But
the
possession
of
the
Dutchy
doth
not
bind
the
person
of
the
King
:
as
10
H.
4.
7.
The
King
brings
an
Action
for
certain
Lands
to
him
descended
from
his
Vncle
,
the
Duke
of
Lancaster
,
and
the
Writ
was
,
Non
omittas
propter
aliquam
libertatem
,
and
exception
was
taken
to
the
Writ
,
because
that
such
clause
ought
not
to
be
in
the
King
's
Writ
,
but
where
the
King
sueth
as
King
,
but
that
Writ
he
sueth
as
Duke
of
Lancaster
,
but
the
exception
,
was
not
allowed
;
The
King
cannot
sue
otherwise
,
but
as
King
:
for
the
person
of
the
King
ought
not
to
be
measured
according
to
his
possession
,
so
as
it
was
a
severance
in
order
,
survey
,
government
and
process
,
and
not
in
respect
of
the
person
.
But
after
the
Statute
of
1
H.
4.
The
said
Act
of
Separation
was
repealed
;
and
farther
enacted
,
that
the
said
King
should
hold
the
said
Dutchy
to
him
and
his
heirs
,
Kings
of
England
;
so
as
thereby
the
Dutchy
is
settled
in
the
politick
Body
of
the
King
:
afterwards
came
the
Statute
of
1
H.
7.
by
which
it
is
enacted
,
That
the
King
shall
hold
the
said
Dutchy
,
and
the
possessions
thereof
,
in
such
manner
and
form
,
and
so
separated
from
the
Crown
as
King
Henry
the
fourth
and
King
Henry
the
fifth
did
hold
the
same
,
so
as
the
Dutchy
was
devested
out
of
the
Body
politick
of
the
King
where
it
was
setled
,
1
H.
4.
and
vested
in
the
Body
natural
of
the
King
so
as
the
possession
of
the
Dutchy
,
as
to
their
government
,
&c.
are
in
the
King
,
as
they
were
in
the
Duke
of
Lancaster
before
he
was
King
:
and
if
the
Duke
of
Lancaster
had
made
a
Feoffment
,
&c.
the
Feoffee
should
not
hold
of
him
,
but
of
the
King
:
So
if
the
King
himself
maketh
a
Feoffment
of
Lands
of
the
Dutchy
,
the
Feoffee
shall
hold
of
the
King
,
&c.
which
see
in
the
Dutchy
of
Lancaster's
Case
,
in
the
end
of
it
:
And
he
conceived
,
That
notwithstanding
the
union
of
the
Crown
and
the
Dutchy
,
yet
the
privity
of
the
Tenure
doth
remain
,
being
preserved
by
the
said
Act
of
1
H.
4.
Another
matter
was
,
That
here
,
the
Tenure
reserved
is
Tenend
.
in
feodi
firma
Reddend
.
10
l.
&c.
And
he
said
,
that
this
Rent
is
not
parcel
of
the
Tenure
,
but
rather
a
Rent-charge
collateral
to
the
Tenure
:
For
in
all
Cases
where
there
is
a
Tenure
expressed
in
suit
,
or
implied
in
Law
before
,
there
Reddendo
following
shall
not
make
the
thing
rendred
parcel
of
the
Tenure
,
Tenend
.
in
feodi
firma
,
makes
the
Tenure
,
&c.
and
the
Reddendo
after
shall
not
make
the
Rent
reserved
parcel
of
the
Tenure
:
See
the
Case
33
E.
3.
Annuity
52.
before
the
Statute
of
Quia
Emptores
terrarum
,
a
man
makes
a
Feoffment
in
Fee
Tenend
.
de
Dom.
Capital
.
Feod
.
&c.
Reddend
.
10
s.
Rent
;
here
,
because
that
the
Tenure
was
reserved
,
Capital
.
Dom.
feodi
illius
,
this
Rent
reserved
is
not
parcell
of
the
Tenure
,
but
a
Rent
in
gross
:
King
Edward
the
sixth
gave
certain
Lands
to
Cranmer
,
Archbishop
of
Canterbury
,
Tenend
.
by
the
fifth
part
of
a
Knight's
Fee
,
Reddend
.
inde
6
l.
per
ann.
Cranmer
made
a
Feoffment
in
Fee
to
the
use
of
himself
for
life
,
and
afterwards
to
the
use
of
his
eldest
son
in
tail
,
the
remainder
to
the
right
heirs
of
Cranmer
,
who
is
attainted
of
Treason
,
by
which
the
remainder
in
Fee
escheated
to
the
King
,
by
which
the
Seignory
is
gone
.
But
it
was
adjudged
,
that
notwithstanding
that
escheat
,
the
Rent
did
remain
,
for
the
Rent
was
not
parcel
of
the
Seignory
.
Now
this
Rent
being
a
thing
newly
created
,
and
not
parcel
of
the
possessions
of
the
Dutchy
in
1
H.
4.
nor
ever
descended
from
any
Ancestor
of
the
King
,
being
Duke
of
Lancaster
,
shall
be
accounted
to
be
in
the
King
in
the
right
of
his
Crown
,
and
so
cannot
pass
by
the
Dutchy-seal
:
See
the
said
Statute
of
1
H.
4.
and
the
King
cannot
enlarge
the
said
Dutchy
,
nor
the
possessions
thereof
beyond
the
possessions
which
were
of
the
Dutchy
at
the
time
of
the
making
of
the
said
Acts
:
As
if
J.
S.
seised
in
Fee
is
impleaded
,
and
he
saith
,
that
he
holds
the
Lands
in
demand
for
life
,
the
remainder
to
the
King
in
the
right
of
his
said
Dutchy
;
now
the
said
remainder
is
vested
in
the
King
,
not
in
the
right
of
the
said
Dutchy
,
but
in
the
right
of
his
Crown
.
The
Villain
of
the
King
in
the
right
of
his
Dutchy
of
Lancaster
,
purchaseth
Lands
,
the
King
seizeth
,
he
shall
be
seised
thereof
in
the
right
of
his
Crown
,
and
not
of
the
Dutchy
:
The
King
grants
Common
out
of
certain
Lands
parcel
of
his
said
Dutchy
,
and
afterwards
makes
a
Feoffment
of
the
said
Lands
to
another
,
the
Grantee
of
the
Common
dieth
without
heir
,
so
as
the
Common
escheats
to
him
;
now
he
shall
have
the
Common
in
the
right
of
the
Crown
and
not
of
the
Dutchy
;
so
although
it
is
said
,
That
the
Rent
shall
follow
the
nature
of
the
Land
out
of
which
,
&c.
yet
the
same
is
but
to
some
intents
,
and
not
to
every
intent
:
See
the
Statute
of
2
and
3
Phil.
&
Ma.
cap.
20.
by
which
it
is
enacted
,
That
all
the
Lands
which
have
been
granted
or
severed
from
the
Dutchy
to
any
person
or
persons
,
and
after
such
grant
,
have
come
or
reverted
to
the
King
in
possession
,
reversion
or
remainder
,
or
otherwise
by
attainder
,
escheat
,
forfeiture
,
&c.
shall
for
ever
be
united
to
the
said
Dutchy
,
and
shall
be
adjudged
and
esteemed
as
part
and
member
of
the
same
;
which
proves
that
such
Lands
were
not
holden
of
the
King
,
as
Duke
of
Lancaster
,
but
as
King
;
for
if
they
had
been
holden
of
the
Dutchy
upon
the
escheat
,
they
should
be
parcel
of
the
Dutchy
again
,
without
help
of
that
Statute
.
See
the
special
Reservation
;
Reddendo
Domino
Regi
,
&
haeredibus
suis
,
aut
illi
cui
de
jure
reddi
debet
,
&c.
Now
,
when
the
King
grants
the
Seignory
to
the
Lord
Audley
,
it
was
in
the
Election
of
the
Ter-tenant
,
to
whom
he
would
pay
the
Rent
,
if
it
had
been
in
the
Case
of
a
common
person
;
but
it
is
otherwise
in
the
Case
of
the
King
:
As
if
A.
holdeth
of
two
several
Lords
by
owel
Feoffment
,
and
dieth
,
his
heir
within
age
;
the
Lord
which
first
gets
the
Ward
shall
have
him
;
but
in
the
Case
of
the
King
it
is
otherwise
:
Plowden
,
The
King
is
not
bound
by
the
Statute
of
West
.
3.
But
in
this
Case
,
in
the
making
of
this
Feoffment
with
this
Tenend
.
&
Reddend
.
the
Feoffee
shall
hold
of
the
King
as
of
his
Dutchy
;
for
all
grants
of
the
King
savour
of
the
person
of
the
King
;
and
then
his
Prerogative
wrapt
in
the
person
,
shall
guide
the
same
:
and
see
the
Statute
of
West
.
3.
extends
to
all
who
make
Feoffments
,
Tenend
.
de
Feoffatoribus
;
but
the
King
is
not
Tenant
to
any
one
.
And
if
the
King
be
seised
of
an
Advowson
in
the
right
of
his
Dutchy
,
and
the
same
becomes
void
,
and
the
King
presents
to
the
same
,
he
may
repeal
his
presentation
:
and
he
vouched
divers
precedents
of
Patents
made
to
many
great
Lords
,
to
hold
of
the
Dutchy
,
and
also
to
hold
of
others
:
And
the
King
by
his
Dutchy-seal
may
give
Lands
in
Mortmain
.
And
he
argued
,
That
this
Rent
,
although
newly
created
,
yet
in
so
much
as
it
came
,
and
accrued
in
respect
of
the
Land
which
was
parcell
of
the
Dutchy
,
it
should
be
accounted
also
parcel
of
the
Dutchy
;
as
if
before
the
Statute
of
West
.
3.
A.
seised
of
Lands
in
Fee
,
of
the
part
of
his
father
makes
a
Feoffment
in
Fee
,
Tenend
.
by
such
services
,
&c.
the
same
Seignory
shall
go
to
the
heirs
of
the
part
of
the
father
,
in
lieu
of
which
the
Seignory
is
come
:
Tenant
in
tail
after
the
Statute
of
32
H.
8.
makes
a
Lease
for
years
,
according
to
the
said
Act
,
rendring
Rent
to
him
and
his
heirs
,
it
shall
be
intended
,
heirs
in
tail
.
It
was
adjourned
.
CXCVIII.
Forster
and
Walker
's
Case
.
Pasch.
26
Eliz.
In
the
King's-Bench
.
IN
an
Ejectione
firmae
,
by
Foster
against
Walker
,
the
Case
was
,
Richard
Meager
was
seised
of
a
house
in
London
:
and
6
E.
6.
he
devised
the
same
to
his
Wife
for
life
,
the
remainder
to
John
his
son
in
tail
,
the
remainder
to
the
Master
and
Wardens
of
the
Cordwaynors
in
London
,
and
died
;
the
Wife
entred
and
died
,
John
died
,
The
Master
,
Wardens
and
Commonalty
of
the
Cordwaynors
entred
,
and
leased
the
Plaintiff
upon
whom
the
heir
general
of
the
Devisor
did
enter
.
The
onely
question
was
,
inasmuch
as
the
Cordwaynors
of
London
are
incorporated
by
the
name
of
Master
and
Wardens
and
Commonalty
of
Cordwaynors
,
If
this
devise
made
to
them
by
the
name
of
Master
and
Wardens
of
the
Cordwaynors
of
London
be
good
or
not
?
It
was
argued
by
Daniel
,
that
the
Devise
by
the
manner
was
good
enough
;
and
he
insisted
much
upon
the
favour
which
the
Law
gives
to
Wills
,
and
to
Legatees
in
the
Devises
and
construction
of
them
,
even
in
Devises
and
Grants
to
Corporations
:
and
as
to
Grants
to
Corporations
,
he
cited
the
Case
of
the
Dean
and
Chapter
of
Norwich
:
Decanus
&
Capitulum
sanctae
&
individuae
Trinit.
and
they
make
a
Lease
,
leaving
out
these
words
[
sanctae
&
individuae
]
and
yet
held
the
Lease
was
good
,
notwithstanding
that
,
for
the
words
left
out
,
are
not
words
of
substance
of
the
name
,
but
for
the
beauty
and
ornament
of
it
:
But
in
the
Case
of
Devise
,
if
the
name
be
mistaken
in
matter
of
substance
,
yet
if
upon
the
Devise
the
intent
of
the
Devisor
sufficiently
appeareth
,
it
is
good
enough
:
for
the
intent
of
the
Devisor
shall
guide
the
Devise
,
and
therefore
by
Devise
,
the
Fee-simple
shall
pass
without
the
word
[
Heirs
.
]
And
he
said
,
that
the
opinion
of
Wray
,
chief
Iustice
,
was
in
the
Case
of
the
Dean
of
Pauls
:
If
I
devise
that
my
Executors
shall
assign
my
Lands
to
J.
S.
the
same
,
implicative
,
is
a
Devise
of
the
Lands
themselves
to
my
Executors
;
for
otherwise
they
could
not
assign
.
So
,
if
I
will
and
devise
,
That
A.
shall
pay
yearly
out
of
my
Manour
of
D.
to
J.
S.
10
l.
the
same
is
a
good
Devise
of
the
Lands
to
A.
So
if
in
the
Case
at
Bar
this
house
had
been
devised
to
the
Cordwaynors
by
the
name
of
the
Society
of
Cordwaynors
,
such
Devise
had
been
good
enough
:
Cooper
contrary
;
and
he
said
,
That
the
intent
of
the
Devisor
ought
to
agree
with
the
Law
,
otherwise
the
Iudges
are
not
to
regard
it
in
point
of
Iudgment
;
and
he
put
the
Case
of
39
H.
6.
10.
(
scil.
)
to
pass
his
Lands
,
and
died
,
and
afterwards
the
States
of
the
Low-countries
wrote
unto
King
Henry
the
8.
acquainting
him
with
the
intention
of
the
Devisor
,
and
also
of
the
opinion
of
their
Laws
there
upon
the
said
Will
,
and
all
in
favour
of
the
Devisee
;
whereupon
the
King
referred
the
consideration
of
the
matter
to
Norwick
,
then
Lord
chief
Iustice
,
who
declared
his
opinion
to
the
King
to
be
,
That
by
that
Devise
,
the
Lands
did
not
pass
,
notwithstanding
the
intent
of
the
Devisor
.
CXCIX
.
Crabdell
's
Case
.
Pasch.
26
Eliz.
In
the
King's-Bench
.
CRabdell
was
bound
by
Recognizance
to
his
good
behaviour
;
upon
which
the
Queen
brought
a
Scire
facias
,
and
surmised
,
that
after
the
Recognizance
acknowledged
,
the
said
Crabdell
was
arrested
and
taken
by
the
Constable
for
suspicion
of
Felony
,
and
of
his
own
wrong
escaped
:
It
was
objected
on
the
part
of
Crabdell
,
because
it
is
not
alledged
by
matter
in
fact
,
that
a
Felony
was
committed
.
But
the
whole
Court
was
of
a
contrary
opinion
;
For
it
is
not
material
,
if
the
Felony
were
committed
or
not
;
for
if
a
Subject
be
arrested
by
a
lawfull
Officer
,
it
is
not
lawfull
for
him
to
escape
;
but
he
ought
to
stand
to
the
Law
,
and
to
answer
unto
the
matter
with
which
he
is
charged
.
And
so
Crabdell
was
forced
to
answer
.
CC.
Basset
and
Prowe
's
Case
.
Pasch.
26
Eliz.
In
the
King's-Bench
.
IN
Debt
upon
a
Bond
,
the
Case
was
,
That
Basset
was
bound
with
Prowe
as
his
surety
,
to
one
Preston
,
in
a
Bond
of
500
l.
and
that
was
upon
a
corrupt
and
usurious
contract
against
the
Statute
;
and
Prowe
was
bound
unto
the
Plaintiff
in
a
Bond
as
a
counter-bond
,
to
save
the
Plaintiff
harmless
from
the
said
Bond
of
500
l.
Basset
is
sued
by
Preston
upon
the
said
Bond
,
and
so
damnified
;
and
thereupon
sued
Prowe
upon
the
counter-bond
,
CCI.
The
Vicountess
Bindon
's
Case
.
Pasch.
26
Eliz.
In
the
Exchequer
.
CCII.
Offley
and
Johnson
's
Case
.
Pasch.
26
Eliz.
In
the
King's-Bench
.
London
:
Offley
removed
the
cause
by
privilege
into
the
King's-Bench
,
whereupon
came
Johnson
,
and
prayed
a
Procedendo
;
and
because
upon
this
matter
no
Action
lieth
by
the
course
of
the
Common
Law
,
but
onely
by
custome
in
such
cities
,
The
cause
was
remanded
;
CCIII
.
Litchfield
and
Cage
's
Case
.
Pasch.
26
Eliz.
In
the
King
's
Bench.
IN
an
Ejectione
firmae
,
the
parties
were
at
issue
;
CCIV.
Scott
's
Case
.
Pasch.
26
Eliz.
In
the
King
's
Bench.
WIlliam
Scott
was
indicted
upon
the
Statute
of
23
Eliz.
of
Recusants
,
by
the
name
of
William
Scott
of
Southwark
,
Gent.
and
upon
that
Indictment
Iudgment
given
for
the
Queen
;
upon
which
Scott
brought
a
Writ
of
Error
,
and
assigned
for
Error
:
That
in
the
Indictment
Scott
is
not
named
of
any
Parish
,
but
generally
of
Southwark
;
for
within
Southward
,
there
are
divers
Parishes
,
and
by
the
said
Statute
it
is
ordained
that
the
penalties
accruing
by
the
said
Statute
ought
to
be
divided
in
three
parts
,
whereof
one
part
is
to
be
applied
to
the
relief
of
the
poor
resident
in
the
Parish
where
the
offence
was
committed
,
and
therefore
it
ought
to
appear
upon
the
Indictment
of
what
Parish
the
party
Indicted
is
,
or
otherwise
,
Non
potest
constare
Curiae
,
to
which
Parish
the
third
part
of
the
Penalty
doth
belong
,
so
that
full
execution
may
be
made
according
to
the
Statute
:
But
the
whole
Court
was
clear
of
opinion
,
That
the
Indictment
is
good
enough
,
notwithstanding
that
Exception
;
for
all
the
penalty
which
accrues
by
the
said
Statute
,
belongs
first
to
the
Queen
;
viz.
a
third
part
thereof
to
her
own
use
,
another
third
part
for
the
relief
,
ut
supra
,
to
be
delivered
by
Warrant
by
the
Officers
of
the
Receipt
of
the
Exchequer
.
And
afterwards
the
Inhabitants
of
the
Parish
in
which
the
offence
was
committed
,
are
to
sue
in
the
Exchequer
for
their
third
part
of
the
penalty
,
and
surmise
in
their
Bill
,
that
the
offence
was
committed
within
their
Parish
;
and
Rule
was
entred
accordingly
.
CCV
.
Gerrard
's
Case
.
Pasch.
26
Eliz.
In
the
Common
Pleas.
CCVI.
Barker
and
Taylor
's
Case
.
Mich.
29
&
30
Eliz.
In
the
Common
Pleas.
THE
Case
was
;
That
a
woman
,
Tenant
in
tail
,
within
the
Statute
of
11
H.
7.
accepted
of
a
Fine
,
Sur
Conusans
de
droit
come
ceo
,
&c.
and
by
the
same
Fine
,
rendred
back
the
lands
to
the
Conusor
for
100
years
.
It
was
moved
,
If
this
conveyance
and
disposition
be
within
the
penalty
of
the
said
Statute
;
for
the
Statute
speaks
of
Discontinuances
,
&c.
And
it
was
the
clear
opinion
of
the
whole
Court
,
That
it
is
within
the
Statute
;
for
by
such
practice
,
the
meaning
of
the
Statute
might
be
defeated
:
CCVII.
Morris
and
Webber
's
Case
.
Trin.
29
Eliz.
In
the
Common
Pleas.
IN
an
Ejectione
firmae
,
by
George
Morris
against
Webber
,
alias
Turnor
,
Humphrey
Bury
,
&c.
And
upon
Not
guilty
,
the
Iury
found
this
special
matter
:
That
Hen.
Bury
was
seised
,
Et
cepit
in
uxorem
quandam
Willmottam
Gifford
.
4
Mariae
.
And
afterwards
:
1
Eliz.
she
Libelled
in
the
Spiritual
Court
against
the
said
Henry
,
in
causa
divortii
de
nullitate
matrimonii
;
and
found
upon
the
Libel
,
In
haec
verba
,
and
all
the
sentence
upon
it
;
viz.
In
Dei
Nomine
,
Amen
.
Per
depositiones
&
examinationes
Medicorum
,
&
aliorum
fide
dignorum
,
&
honestarum
,
&
expertarum
matronarum
comperimus
&
invenimus
:
Quod
praedict.
Henr.
&
Willmotta
legit
.
aetatis
&
plenae
pubert
.
exist
.
per
duos
annos
integros
simul
cohabitaverunt
,
&
in
uno
lecto
concubuerunt
,
&
licet
dict.
Willmotta
operam
liberis
dare
cupierit
,
nunquam
tamen
per
carnalem
copulam
cum
dicto
Henrico
conjungi
,
aut
ab
illo
cognosci
potuit
,
aut
potest
,
idque
propter
vitium
perpetuae
frigiditatis
&
naturae
impotentiae
generandi
,
Quae
nulla
medicorum
opera
curari
pot
,
idque
praedict.
Humphrid
.
saepius
confessus
est
,
se
nunquam
cum
praedicta
Willmotta
tanquam
virum
cum
uxore
conjunctum
fuisse
,
aut
conjungi
potuisse
.
Igitur
invocato
primitus
Dei
nomine
;
Matrimonium
praedict.
irritari
,
cessari
quatenuscunque
de
facto
processit
,
cassum
,
irritum
,
nullumque
in
Lege
,
Juribus
juris
omnino
carere
,
&
carere
debere
decernimus
,
&
declaramus
,
ipsosque
quatenus
sunt
de
facto
matrimonialiter
ad
invicem
conjuncti
a
vinculo
Matrimonii
separamus
,
&c.
Humphry
made
a
Feoffment
in
Fee
unto
the
use
of
himself
for
life
,
and
after
to
the
use
of
the
first
,
or
eldest
son
of
the
body
of
the
said
Henry
in
tail
.
Willmot
married
Cary
,
Henry
took
to
wife
Phillippam
Mountjoy
scientem
Matrimonii
praedict.
&
definitivae
sententiae
praedict.
&
durantibus
ambobus
Matrimoniis
,
tam
inter
dict.
Cary
&
Willmotta
,
quam
inter
dictos
Henricum
&
Phillippam
,
dicta
Phillippa
exitum
habuit
per
dict.
Henricum
,
Humphrey
the
Lessor
,
upon
which
Lease
the
Plaintiff
declared
,
Humphrey
died
:
Henry
entred
,
and
leased
to
the
Plaintiff
.
Shuttleworth
,
Serjeant
,
argued
for
the
Plaintiff
,
That
this
Divorce
not
reversed
or
undone
by
appeal
,
or
otherwise
,
should
stand
in
force
,
and
according
to
it
the
Law
of
the
Land
should
judge
:
See
47
E.
3.
17.
Casu
ultimo
.
Five
manner
of
Divorces
are
mentioned
:
1
Causa
professionis
:
2
Praecontractus
:
3
Consanguinitatis
:
4
Affinitatis
:
5
Frigiditatis
;
upon
a
Divorce
,
Causa
professionis
,
the
wife
shall
be
endowed
,
and
the
heir
shall
inherit
,
but
in
the
other
not
.
And
the
principal
Cause
is
reported
by
the
Lord
Dyer
,
2
Eliz.
179.
where
Cary
and
Willmott
levying
a
Fine
of
the
lands
of
Willmott
,
as
husband
and
wife
;
and
it
was
moved
,
That
such
Fine
ought
not
to
be
engrossed
,
because
that
now
the
Divorce
is
avoided
;
for
Henry
in
his
second
marriage
hath
issue
,
therefore
there
is
no
perpetua
frigiditas
,
&c.
but
at
the
last
it
was
engrossed
,
because
the
sentence
of
the
Divorce
doth
continue
in
its
force
,
and
then
Humphrey
,
born
in
the
second
marriage
,
is
the
first
son
of
Henry
lawfully
begotten
,
and
so
capable
of
the
use
to
him
limited
upon
the
Feoffment
of
Henry
22
E.
4
Fitz.
Consultation
,
51.
by
Catesby
:
where
my
father
and
mother
are
divorced
without
lawfull
cause
,
and
afterwards
they
marry
themselves
elsewhere
,
and
die
,
the
said
Divorce
,
as
long
as
it
is
in
force
shall
bind
me
in
point
of
inheritance
,
and
I
cannot
have
an
Action
as
heir
,
&c.
during
the
Divorce
,
is
in
force
:
For
the
Divorce
being
a
spiritual
Iudgment
shall
not
be
reformed
but
in
the
spiritual
Court
;
and
therefore
this
sentence
of
Divorce
,
Causa
perpetuae
frigiditatis
,
as
long
as
it
is
in
force
not
repealed
or
reversed
,
shall
bind
all
persons
:
But
in
some
cases
,
such
a
Divorce
shall
not
disable
the
party
to
sue
;
as
if
a
man
bringeth
an
Action
,
De
muliere
abducta
cum
bonis
viri
,
where
after
the
trespass
committed
,
the
husband
and
wife
are
divorced
,
yet
the
Action
lieth
,
for
this
Action
is
not
in
the
right
,
but
in
possession
onely
,
and
in
such
Action
,
Never
accoupled
in
legal
Matrimony
,
is
not
any
plea
,
but
the
Defendant
ought
to
answer
to
the
possession
,
Not
his
wife
;
for
although
they
are
divorced
,
yet
the
Action
lieth
;
and
if
Iudgment
is
given
in
the
spiritual
Courts
,
the
Courts
of
the
King
shall
receive
and
admit
of
them
,
as
long
as
they
are
in
their
force
.
The
Abbat
of
Fountain's
Case
,
9
H.
6.
32.
the
custome
of
the
Abby
was
,
That
at
every
vacation
of
the
Abbat
,
the
Monks
should
proceed
to
a
new
Election
,
and
that
he
who
should
be
chosen
by
the
greater
number
of
the
Monks
,
should
be
Abbat
:
and
the
Case
was
,
That
upon
such
avoidance
,
one
A.
was
elected
by
the
greater
number
of
voices
,
(
scil.
)
22
Monks
.
And
B.
was
chosen
by
the
lesser
number
,
(
scil.
)
20
Monks
;
but
notwithstanding
that
,
B.
entred
and
carried
himself
as
Abbat
,
by
the
Institution
of
the
Visitor
,
and
made
a
Deed
by
consent
of
the
Covent
,
and
died
;
it
was
holden
,
That
the
said
Deed
should
bind
the
House
:
for
here
is
a
spiritual
Act
,
(
scil.
)
the
Institution
of
the
Visitor
,
which
being
in
force
,
shall
bind
us
,
and
our
Law
,
34
H.
6.
38.
upon
contention
betwixt
two
Patrons
,
claiming
the
presentment
unto
a
Church
,
the
Bishop
awarded
,
jure
Patronatus
,
which
found
for
one
of
them
,
upon
which
the
Bishop
admitted
the
Clerk
of
him
for
whom
it
was
found
by
the
jure
Patronatus
;
and
afterwards
,
the
other
party
brought
a
Quare
impedit
,
and
it
was
found
for
him
:
Now
this
judicial
Act
done
by
the
Bishop
,
shall
excuse
the
Bishop
from
any
disturbance
.
Fenner
,
Serjeant
,
contrary
,
Although
that
the
sentence
of
this
Divorce
be
set
down
in
peremptory
and
final
terms
,
as
matrimonium
cassum
,
irritum
,
nullum
,
yet
our
Law
shall
respect
the
cause
and
ground
of
it
,
(
scil.
)
Perpetua
frigiditas
,
&c.
and
now
it
appeareth
by
the
success
of
the
second
marriage
,
(
scil.
)
the
issue
Humphrey
,
that
the
cause
and
matter
upon
which
the
Divorce
was
grounded
,
&c.
was
an
offence
of
the
time
,
and
not
of
nature
for
he
is
now
recovered
;
and
in
as
much
as
the
Church
hath
erred
in
the
sentence
of
this
divorce
,
which
error
is
now
apparent
;
this
Court
shall
adjudge
according
to
the
truth
of
the
matter
,
as
the
spiritual
Law
ought
to
have
adjudged
,
and
not
as
they
have
adjudged
:
And
he
cited
Fox's
Case
,
16
Eliz.
The
said
Fox
being
Parson
of
a
Church
,
was
deprived
in
the
Parliament
time
for
incontinency
,
and
by
the
same
Parliament
,
all
incontinencies
were
pardoned
;
Now
upon
the
matter
,
we
are
to
adjudge
this
deprivation
meerly
void
without
any
other
spiritual
act
.
At
another
day
,
the
Case
was
argued
by
Walmsley
Serjeant
,
That
the
sentence
definitive
of
the
spiritual
Court
,
in
cause
of
divorce
,
causa
frigiditatis
,
should
stand
;
and
he
argued
much
in
what
manner
the
Law
of
the
Church
,
and
the
Law
of
the
Law
should
determine
marriage
:
and
he
argued
that
the
right
of
marriage
,
was
determinable
by
the
spiritual
Law
;
and
he
said
,
that
such
sentences
ought
to
be
passed
by
our
Law
:
and
taken
notice
of
;
and
therefore
he
who
pleads
a
Divorce
,
ought
to
shew
before
what
Iudge
the
Divorce
is
had
,
to
the
intent
the
Iudges
may
know
to
what
persons
they
shall
write
for
the
trial
of
it
;
and
it
appears
in
our
books
,
That
our
Law
takes
upon
it
the
Conusance
of
the
competency
of
an
Ecclesiastical
Iudge
;
which
see
,
2
E.
4.
15
and
16.
The
Iudges
of
the
temporal
Courts
of
the
King
,
have
determined
,
That
the
Pope
is
not
a
competent
Iudge
within
this
Realm
:
and
it
is
true
,
the
Common
Law
doth
yeild
unto
the
Law
of
the
Church
the
trial
and
determination
of
the
right
of
marriage
;
but
the
trial
of
the
possession
of
the
marriage
retains
to
it self
:
As
if
an
Infant
marrieth
within
the
age
of
consent
,
and
afterwards
at
full
age
of
consent
,
doth
disagree
,
now
the
common
Law
shall
determine
that
the
same
is
not
any
marriage
:
So
11
H.
4.
167.
The
temporal
Court
shall
adjudge
upon
marriage
in
fact
and
in
possession
,
but
if
the
party
will
plead
,
Fitz.
Consultation
5.
Corbet's
Case
,
4
H.
7.
14.
by
Oxenbridge
,
18
E.
4.
30.
by
Chock
;
and
9
E.
4.
24.
He
who
pleads
a
Divorce
,
ought
to
shew
before
what
Iudge
the
Divorce
was
had
;
but
that
is
not
to
examine
the
matter
,
but
to
know
to
what
person
the
Court
shall
write
for
the
trial
of
it
.
It
is
true
,
that
in
case
of
Resignation
and
Deprivation
,
but
in
case
of
Divorce
,
the
cause
thereof
ought
to
be
shewed
;
for
some
Divorces
dissolve
the
marriage
utterly
,
and
do
bastardize
the
issue
,
and
disable
the
Wife
to
be
endowed
;
and
some
Divorces
do
not
dissolve
it
:
as
that
which
is
but
à
thoro
&
mensa
,
11
H.
7.
27.
But
generally
,
in
spiritual
Iudgments
,
the
causes
of
them
do
not
fall
in
Iudgment
in
any
temporal
Court
:
3
H.
4.
34.
An
Excommengement
pleaded
without
shewing
of
any
cause
;
and
although
in
our
Case
,
the
cause
of
this
Divorce
being
for
Frigidity
,
Sublata
jam
causa
toleretur
effectus
;
and
now
,
the
party
in
whom
such
frigidity
is
assigned
,
is
become
whole
,
as
appeareth
by
his
success
in
his
second
marriage
,
having
now
issue
;
yet
we
ought
not
to
regard
that
,
for
then
we
should
resort
unto
the
cause
of
the
Divorce
,
with
which
we
are
not
to
meddle
.
Gawdy
,
Serjeant
,
to
the
contrary
:
And
first
he
confessed
,
that
the
determination
of
the
right
of
marriage
doth
belong
unto
the
spiritual
Court
;
But
as
unto
the
Case
in
question
,
(
scil.
)
the
Divorce
in
causa
frigiditatis
,
it
appeareth
by
44
Ass.
13.
by
Knivet
,
That
the
party
may
receive
his
Nature
,
in
which
case
he
may
have
again
his
Wife
,
and
there
need
not
in
such
case
a
new
marriage
;
And
because
that
here
it
appeareth
,
That
Bury
hath
recovered
his
Nature
forasmuch
as
he
hath
now
issue
by
another
Wife
,
the
Divorce
is
become
of
no
force
,
which
see
Dyer
2
Eliz.
179.
where
the
Case
now
at
the
Bar
was
in
debate
;
Where
a
Woman
inheretrix
took
a
Husband
,
from
whom
she
was
divorced
,
causa
frigiditatis
,
the
Wife
afterwards
was
married
to
Carle
,
by
whom
she
had
issue
,
and
gave
all
her
Inheritance
to
her
said
second
Husband
:
and
the
first
Husband
also
took
a
Wife
,
of
whom
he
had
issue
;
in
that
Case
,
the
opinion
of
the
Doctors
was
,
That
the
first
Husband
and
his
Wife
should
be
compelled
to
cohabite
together
as
Man
and
Wife
,
because
Ecclesia
decepta
fuit
in
priore
judicio
.
Anderson
,
That
which
we
have
argued
is
very
clear
;
(
scil.
)
That
the
Ecclesiastical
Court
hath
authority
to
determine
the
right
of
marriage
;
But
the
point
of
this
Case
is
,
if
this
Iudgment
of
Divorce
being
given
for
cause
of
Frigidity
which
was
adjudged
to
be
perpetual
;
and
now
by
matter
subsequent
it
appeareth
that
the
party
is
not
frigidus
,
but
he
hath
recovered
his
Nature
,
if
the
Divorce
shall
be
accounted
ipso
facto
void
,
without
other
circumstance
of
the
spiritual
Law
:
and
although
their
sentence
be
definitive
in
terms
,
yet
upon
this
special
matter
,
ex
post
facto
,
if
the
force
thereof
shall
fail
.
And
I
have
conferred
with
many
learned
in
the
Canon
Law
,
which
are
of
such
opinion
;
and
of
that
opinion
was
Doctor
Dale
;
and
therefore
it
is
convenient
,
that
your
Clients
,
each
of
them
do
retain
one
who
is
learned
in
the
said
Law
,
who
can
inform
us
what
their
Law
is
.
And
Rhodes
,
Iustice
,
agreed
in
this
Case
to
what
the
Lord
Anderson
said
,
and
put
the
Case
which
was
in
the
King's-Bench
,
16
Eliz.
Foxe's
Case
,
which
is
before
vouched
,
and
it
was
adjourned
.
And
after
,
at
another
day
,
by
the
appointment
of
the
Iustices
,
the
Case
was
argued
in
Court
by
the
Civilians
and
Canonists
:
Goldingham
,
on
the
part
of
the
Plaintiff
,
and
Steward
on
the
part
of
the
Defendant
:
And
first
it
was
said
on
the
Plaintiff's
part
,
That
by
the
sentence
,
all
the
matter
,
transit
in
rem
judicatam
,
and
therefore
we
shall
not
resort
to
the
matter
censured
,
the
sentence
being
in
its
force
.
And
as
to
that
,
it
was
answered
by
Steward
,
That
transit
in
rem
judicatam
,
but
not
in
case
of
marriage
,
and
in
the
like
cases
,
where
vertitur
periculum
animae
;
for
in
such
cases
the
sentences
are
subject
to
the
success
;
as
if
after
it
appeareth
,
Ecclesiam
fuisse
deceptam
per
errorem
licet
probabilem
(
ut
illi
loquuntur
)
for
then
periculum
animae
vertitur
,
for
then
they
should
continue
their
Adultery
,
unless
the
sentence
of
the
Church
be
annulled
.
Goldingham
,
It
transit
in
rem
judicatam
,
non
quoad
instantiam
,
non
quoad
causam
:
so
that
as
long
as
the
sentence
is
in
force
,
it
is
causa
judicata
;
yet
the
cause
is
subject
to
the
censure
of
the
Church
.
Steward
,
in
our
Case
here
,
all
our
Books
are
,
Matrimonium
sit
nullum
:
Goldingham
,
The
words
are
also
in
such
,
reparabitur
matrimonium
,
in
which
it
is
implied
,
that
some
solemnity
of
the
holy
Church
is
requisite
in
such
reparation
of
marriage
.
Steward
,
where
a
man
is
divorced
,
causa
frigiditatis
,
it
is
prohibited
by
such
sentence
that
he
shall
not
marry
again
,
and
if
he
doth
marry
,
he
is
holden
in
our
Law
perjured
,
and
an
Adulterer
;
and
to
that
purpose
he
cited
divers
authorities
of
the
Canon
Law.
Goldingham
,
This
sentence
is
not
properly
a
Divorce
,
for
here
was
never
properly
a
marriage
:
as
in
Cases
de
praecontract
.
Divorce
upon
that
cannot
be
said
properly
a
Divorce
,
but
a
sentence
of
the
Church
upon
the
errour
of
the
parties
:
and
he
put
many
degrees
of
impositions
in
such
cases
,
Perpetua
frigiditas
,
&
naturalis
impotentia
generandi
;
frigiditas
ex
malefacio
:
i.
e.
quoad
unam
aliquam
personam
,
and
many
others
,
quae
possunt
matrimonium
contrah
,
&
dirimere
contractum
:
and
the
sentences
which
in
our
Law
,
are
contra
jus
constitutionis
:
as
where
there
is
not
any
Citation
,
Declaration
,
or
that
the
sentence
is
of
another
thing
than
that
which
is
contained
in
the
Libell
,
in
such
cases
the
sentence
is
utterly
void
;
but
sentences
there
given
,
contra
jus
partis
,
are
voidable
onely
;
See
Panormit
.
fraternitatis
:
Si
notorie
apparet
sententiam
Divortii
fuisse
injustam
,
libet
revocari
,
non
obstante
quod
non
fuerit
appellat
.
Sententia
cessat
cum
notorie
constat
de
injustitia
:
Et
in
Institutionibus
juris
.
Can.
189.
Si
vir
causetur
arctitudinem
in
muliere
,
per
quam
non
est
habilis
ad
coeundum
,
&
ex
eo
separatur
,
Si
mulier
postea
aliquem
invenierit
qui
seras
reserare
possit
,
ad
primum
conjugium
redire
compellandi
sunt
:
vid.
corpus
Canon
.
357.
conjugium
confirmatur
officio
,
sed
postquam
confirmatur
officio
non
licet
viro
uxorem
dimittere
,
nec
uxori
à
viro
discedere
nisi
causa
fornicationis
,
verum
antequam
confirmatur
impossibilitas
officii
solvit
vinculum
conjugii
:
And
Panorm.
fratern
.
propter
Arctitudinem
mulieris
,
si
apparet
quod
praeter
divinum
miraculum
absque
periculo
corporis
habilis
reddi
non
possit
,
seperentur
:
matrimonium
tamen
redintegrabitur
si
post
appareat
Ecclesiam
fuisse
deceptam
:
Per
matronarum
visum
datum
fuit
intelligi
quod
nunquam
potuit
esse
mater
,
&
eam
ob
causam
divortium
inter
eos
celebrat
.
fuit
,
mulier
virum
cepit
,
qui
seras
reseravit
,
sententiam
divortii
per
errorem
licet
probabilem
novimus
esse
prolatam
,
cum
patet
ex
post
facto
quod
ipsa
cognoscibilis
erat
illi
cujus
semen
commiscetur
,
&
ideo
inter
ipsam
&
primum
virum
matrimonium
extitisse
,
Quare
inter
eam
&
secundum
conjugem
matrimonium
non
esse
,
&c.
Eosque
praecipimus
ab
invicem
seperari
.
Vid.
secundum
partem
Summae
Sylvestrianae
.
Si
Ecclesia
sit
decepta
in
hoc
quod
ille
in
quo
erat
impedimentum
carnalem
copulam
cum
alia
perfecerit
,
redintegrabitur
praecedens
matrimonium
,
&
dirimetur
secundum
,
quamvis
de
sententia
Ecclesiae
factam
.
Et
alibi
:
Si
Ecclesia
se
deceptam
invenierit
ex
hoc
quod
impedimentum
quod
judicavit
perpetuum
,
apparet
temporale
,
redintegrabitur
primum
matrimonium
,
&c.
And
afterwards
the
Case
was
adjourned
.
Afterwards
,
that
is
to
say
,
Mich.
30
and
31
Eliz.
the
Case
was
moved
again
,
and
Iudgment
was
prayed
for
the
Plaintiff
;
and
then
the
Lord
Anderson
,
Ex
assensu
sociorum
,
commanded
that
Iudgment
should
be
entred
for
the
Plaintiff
;
and
shewed
unto
the
Council
of
both
parties
,
That
about
the
Certificate
,
which
the
four
Doctors
have
shewed
unto
us
,
of
their
opinions
upon
the
point
,
we
our selves
have
conferred
with
the
said
Doctors
,
who
have
given
us
their
answers
,
That
the
said
sentence
of
Divorce
being
yet
in
force
,
not
reversed
is
peremptory
,
and
not
subject
to
the
success
:
and
although
in
the
examinations
and
depositions
taken
in
the
Ecclesiastical
Court
,
no
matter
appeareth
,
upon
which
such
peremptory
Divorce
might
be
granted
,
yet
it
might
be
,
as
we
are
informed
by
the
said
Doctors
,
that
upon
the
examination
of
Physicians
and
Matrons
,
sufficient
matter
did
appear
to
the
said
Ecclesiastical
Iudges
,
(
which
for
modesty
sake
ought
not
to
be
entred
of
Record
)
and
that
appeareth
within
the
sentence
;
i.
Habito
sermone
cum
matronis
&
medicis
,
which
speech
not
entred
of
Record
(
causa
qua
supra
)
might
be
the
cause
that
induced
the
Ecclesiastical
Iudges
to
give
sentence
for
the
Divorce
,
notwithstanding
that
the
matter
within
the
Record
be
too
general
to
prove
,
naturalem
frigiditatem
generandi
,
but
rather
maleficium
;
and
afterwards
Iudgment
was
given
for
the
Plaintiff
,
and
so
the
sentence
is
bound
by
the
Divorce
,
as
long
as
the
sentence
doth
continue
in
force
:
See
this
Case
in
Coke
,
5
Part.
Where
upon
a
Writ
of
Error
brought
,
41
Eliz.
the
Iudgment
was
affirmed
.
CCVIII
.
Gittinson
and
Tyrrel
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
GIttinson
brought
an
Action
of
Debt
against
Tyrrel
,
Warden
of
the
Fleet
,
by
a
Bill
of
Privilege
,
but
he
would
not
appear
;
and
the
Court
was
in
great
doubt
,
what
remedy
the
Plaintiff
hath
to
compell
the
Defendant
to
appear
.
For
he
cannot
be
fore-judged
the
Court
,
because
he
hath
an
Estate
of
Inheritance
in
the
said
Office
;
And
afterwards
it
was
surmised
to
the
Court
,
That
the
said
Tyrrel
had
made
a
Lease
of
his
said
Office
to
another
for
three
years
,
and
then
the
Court
was
clear
of
opinion
,
That
the
said
Tyrrel
should
not
have
the
Privilege
;
for
now
during
the
Lease
,
he
is
not
Officer
,
but
the
Lessee
.
CCIX.
Harris
and
the
Lord
Mountjoy
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
HArris
affirmed
a
plaint
of
Debt
in
the
Guildhall
in
London
,
Drew
Drewrie
;
The
Lord
removed
the
matter
into
the
Common-Pleas
,
by
a
Writ
of
Privilege
;
If
now
the
said
Lord
shall
find
Bail
was
the
question
,
because
that
he
is
a
Lord
of
the
Parliament
,
&c.
And
the
opinion
of
the
whole
Court
was
,
that
he
should
find
Bail
,
for
that
is
the
course
of
the
Court
,
whosoever
is
party
.
And
by
Anderson
,
admitting
the
Law
to
be
,
That
the
Body
of
a
Lord
of
Parliament
shall
not
be
taken
in
Execution
(
which
I
do
not
believe
)
yet
notwithstanding
that
Bail
shall
be
found
in
such
case
:
For
the
condition
of
Bail
doth
consist
upon
two
points
:
First
,
that
he
render
his
Body
to
Prison
in
Execution
,
if
Iudgment
be
given
against
him
.
Secondly
,
or
to
pay
the
condemnation
:
And
therefore
if
the
Body
of
a
Baron
of
Parliament
is
not
subject
to
Execution
,
yet
the
Bail
shall
stand
for
the
second
;
i.
e.
to
pay
the
condemnation
;
and
all
the
Iustices
were
of
clear
opinion
,
That
for
Execution
upon
a
Statute-staple
;
Merchant
,
upon
the
Statute
of
Acton
Burnel
,
or
upon
the
Statute
of
23
H.
8.
The
Body
of
a
Baron
of
Parliament
shall
be
taken
in
Execution
;
for
by
these
Statutes
,
such
persons
were
not
exempted
.
CCX
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
NOTE
,
It
was
said
,
That
the
division
of
a
great
Meadow
into
many
parcels
,
by
making
of
Ditches
,
is
not
waste
;
for
the
Meadow
may
be
the
better
for
it
;
and
it
is
for
the
profit
and
ease
of
the
occupiers
of
it
:
CCXI.
Mich.
29
&
30
Eliz.
In
the
Common-Pleas
.
IN
a
Replevin
,
the
Defendant
avowed
for
damage
feasant
,
and
upon
issue
joined
,
it
was
found
for
the
avowant
,
and
damages
assessed
;
and
now
issued
a
Retorno
habendo
,
upon
which
the
Sheriff
did
retorn
,
Averia
elongata
,
whereupon
a
Withernam
was
awarded
,
and
now
came
the
Plaintiff
and
tendred
in
Court
the
damages
assessed
by
the
Iury
,
and
prayed
stay
of
the
Withernam
,
and
threw
the
Moneys
into
Court
;
but
the
whole
Court
was
clear
against
it
,
for
in
this
Case
the
Plaintiff
ought
to
pay
a
Fine
,
because
he
had
essoigned
the
Cattel
,
which
is
a
contempt
;
wherefore
the
Court
assessed
a
Fine
of
three
shillings
four
pence
upon
the
Plaintiff
,
and
then
the
Plaintiff
had
his
Prayer
.
CCXII.
Shrewsbury
and
the
Inhabitants
of
the
Hundred
of
Ashton
.
Pasch.
29
Eliz.
In
the
Common-Pleas
.
AN
Action
upon
the
Statute
of
Hue
and
Cry
,
was
brought
by
Shrewsbury
against
the
Inhabitants
of
the
Hundred
,
of
the
three
Hundreds
de
Ashton
in
the
County
of
Bucks:
It
was
moved
on
the
part
of
the
Defendants
,
That
if
upon
such
Hue
and
Cry
the
Inhabitants
do
their
endeavours
,
as
much
as
in
them
is
,
to
follow
and
take
the
Malefactors
,
and
yet
they
cannot
apprehend
them
,
that
in
reason
they
ought
not
to
be
charged
by
the
said
Statute
.
But
the
whole
Court
was
strongly
against
it
:
And
by
Anderson
,
The
Inhabitants
of
the
Hundred
,
in
which
the
Robbery
was
done
,
are
bound
to
apprehend
the
Felons
,
or
satisfie
the
party
robbed
.
And
the
party
robbed
is
not
bound
to
give
notice
to
the
Inhabitants
,
nor
to
direct
them
which
way
the
Felons
took
their
flight
,
but
the
Inhabitants
are
bound
to
follow
the
Felons
without
any
such
instruction
,
and
after
the
Enquest
was
taken
,
and
gave
a
Verdict
in
this
manner
:
That
whereas
the
Plaintiff
had
declared
,
That
the
Robbery
was
done
in
the
Parish
of
D.
in
the
Hundred
aforesaid
,
the
Iury
found
,
that
the
place
where
the
Robbery
was
done
,
is
a
Lane
within
the
said
Hundred
;
and
that
the
one
side
of
the
said
Lane
is
within
the
Parish
of
S.
and
the
other
side
within
the
said
Parish
of
D.
and
that
the
Robbery
was
done
in
the
side
of
the
said
Lane
,
which
was
in
the
Parish
of
S.
and
prayed
the
opinion
of
the
Court
upon
that
matter
.
And
the
Court
was
clear
of
opinion
,
That
notwithstanding
that
Exception
,
the
Plaintiff
should
have
Iudgment
;
for
here
is
the
right
Hundred
which
ought
to
be
charged
;
and
the
mistaking
of
the
Parish
is
not
to
any
purpose
.
But
then
it
was
moved
on
the
part
of
the
Plaintiff
;
that
for
as
much
as
the
Verdict
aforesaid
was
special
,
by
reason
of
the
doubt
which
the
Iurors
conceived
upon
the
mistaking
of
the
Parish
,
in
the
Plaintiff's
Declaration
,
That
the
charges
of
the
Iurors
should
be
indifferently
born
by
both
parties
,
as
the
course
is
in
cases
of
special
Verdicts
;
but
the
whole
Court
was
clear
against
that
,
and
commanded
that
the
Plaintiff
alone
should
pay
the
said
charges
,
for
the
matter
here
found
specially
is
not
any
doubt
;
but
out
of
all
question
,
for
it
is
clear
that
the
Action
is
well
brought
,
for
as
much
as
the
Hundred
is
charged
,
the
mistaking
of
the
Parish
shall
not
hurt
.
CCXIII.
Hellyard
's
Case
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
A
Habeas
Corpus
was
to
the
Warden
of
the
Fleet
,
to
bring
the
body
of
one
Hellyard
,
who
retorned
the
Writ
,
That
the
said
Hellyard
was
committed
to
the
Fleet
,
Per
mandatum
Francisci
Walsingham
,
Militis
unius
principalium
Secretariorum
Dominae
Reginae
,
&c.
And
because
the
Warden
did
not
shew
in
his
Retorn
for
what
cause
the
said
Hellyard
was
committed
,
the
Court
gave
him
day
to
amend
his
Retorn
,
or
otherwise
the
prisoner
should
be
delivered
.
CCXIV.
Mich.
30
Eliz.
In
the
Common-Pleas
.
UPon
a
Recovery
in
a
Writ
of
Entry
,
Sur
disseisin
of
two
acres
of
land
,
Habere
facias
seisinam
was
awarded
,
The
Sheriff
as
to
one
acre
retorned
Habere
feci
;
as
to
the
other
tarde
.
And
the
Retorn
was
shewed
to
the
Court
;
and
all
the
Iustices
but
Periam
held
,
that
the
Sheriff
should
be
amerced
for
that
Retorn
,
contrary
and
repugnant
in
it self
;
But
by
Periam
,
it
may
be
,
That
the
acre
of
which
no
seisin
is
had
,
was
so
far
distant
from
the
other
acre
,
whereof
seisin
was
,
that
the
Sheriff
,
for
want
of
time
,
could
not
make
execution
of
both
,
being
so
remote
the
one
from
the
other
.
To
which
it
was
answered
,
That
if
the
truth
of
the
Case
was
such
,
then
might
the
Sheriff
make
execution
in
one
acre
in
the
name
of
both
acres
.
And
if
upon
a
Capias
ad
satisfaciend
.
against
two
,
the
Sheriff
doth
retorn
as
to
one
,
Cepi
,
and
to
the
other
tarde
,
he
shall
be
amerced
,
for
those
several
Retorns
cannot
stand
together
.
CCXV
.
Edgar
and
Crispe
's
Case
.
Mich.
30
Eliz.
In
the
Common
Pleas.
Edgar
recovered
against
Crispe
in
Debt
,
and
afterwards
released
to
Crispe
,
and
afterwards
,
notwithstanding
the
release
,
Edgar
sued
for
a
Capias
ad
satisfaciend
.
against
Crispe
,
and
pursued
the
same
untill
Crispe
was
outlawed
:
and
it
was
the
opinion
of
Anderson
,
cheif
Iustice
,
That
Crispe
should
have
an
Audita
Querela
,
notwithstanding
the
Outlawry
;
and
if
the
Audita
Querela
passeth
with
Crispe
,
the
Outlawry
also
should
be
avoided
.
CCXVI
.
Frankwell
's
Case
.
Trin.
30
Eliz.
In
the
King
's
Bench.
IN
Trespass
for
carrying
away
of
Tithes
,
the
Case
was
;
That
Frankwell
,
Parson
of
the
Church
of
D.
was
accused
,
in
forma
Juris
,
before
the
high
Commissioners
,
who
pleaded
,
that
the
same
cause
and
crime
was
prosecuted
against
him
in
the
Arches
,
and
prayed
that
he
might
not
be
doubly
vexed
for
one
and
the
same
offence
;
and
notwithstanding
that
he
was
deprived
,
and
another
Clerk
presented
to
the
same
Church
by
the
Patron
,
and
was
admitted
,
instituted
and
inducted
;
and
upon
entry
,
brought
Trespass
against
the
former
Incumbent
.
And
note
,
the
manner
of
the
Deprivation
,
as
it
was
found
by
Verdict
:
That
the
Bishop
of
London
,
with
the
assent
of
the
other
Commissioners
,
gave
sentence
of
Deprivation
against
him
;
and
it
was
shewed
,
That
the
high
Commissioners
had
not
power
by
1
Eliz.
to
give
sentence
of
any
thing
which
is
dependant
in
another
Court
:
For
it
was
not
the
intent
of
the
said
Act
,
to
take
away
the
jurisdiction
of
the
other
Ecclesiastical
Courts
;
for
then
it
is
in
vain
to
have
such
Courts
:
It
was
also
moved
,
because
the
pleading
is
,
That
the
Bishop
of
London
,
ex
assensu
of
the
other
Commissioners
,
gave
sentence
,
the
same
is
a
void
sentence
;
for
it
ought
to
be
the
sentence
of
all
the
Commissioners
,
for
they
shall
have
equal
authority
:
And
to
this
purpose
,
he
cited
the
Case
,
29
H.
8.
Dyer
40.
where
a
Lease
is
made
of
Lands
,
whereof
the
Dean
and
Chapter
are
seised
,
in
common
,
per
nomen
Decani
ex
assensu
,
&
consensu
totius
Capitul
.
but
it
was
holden
a
void
Lease
;
for
the
Chapter
ought
to
be
party
to
such
Lease
;
contrary
,
where
the
Lease
is
made
of
the
Land
which
is
the
proper
and
peculiar
Inheritance
of
the
Dean
:
But
that
Exception
was
not
allowed
;
for
the
form
of
Entries
in
all
cases
,
hath
always
been
so
.
Coke
,
posito
,
That
the
Commissioners
ought
not
to
proceed
in
this
Case
,
yet
,
because
they
have
so
done
,
the
same
ought
not
to
be
examined
here
;
for
the
Iudges
here
,
ought
to
think
that
this
Deprivation
was
duly
ma●e
;
for
,
cuique
credend
.
in
sua
arte
,
which
Wrey
granted
:
And
it
was
said
by
him
,
That
the
Court
was
created
for
two
causes
:
1
For
the
expedition
of
the
causes
depending
in
the
spiritual
Courts
:
Common
Pleas
,
it
was
moved
;
If
of
a
sentence
given
by
the
high
Commissioners
,
an
Appeal
did
lie
;
and
it
was
certified
by
Clark
,
Doctor
of
the
civil
Law
,
that
it
did
;
for
the
Commissioners
are
as
the
Delegates
of
the
Queen
:
And
as
by
the
Canon
Law
one
might
appeal
from
the
Delegates
of
the
Pope
,
unto
the
person
of
the
Pope
;
so
now
,
one
may
appeal
from
the
high
Commissioners
,
to
the
person
of
the
Queen
:
See
for
that
,
24
H.
8.
12.
Another
Error
was
assigned
,
because
that
the
Commission
gave
authority
to
the
Commissioners
,
to
adjudge
upon
confession
of
the
party
,
or
upon
the
witnesses
;
but
here
none
of
these
two
ways
is
found
by
the
Verdict
;
but
sentence
was
given
upon
his
Plea
,
That
he
was
sued
in
the
Arches
for
the
same
cause
,
and
so
they
have
not
pursued
their
authority
:
for
the
Act
is
,
That
such
Commissioners
shall
have
authority
by
vertue
of
the
said
Act
,
and
of
the
said
Letters
Patents
to
exercise
,
&c.
And
they
are
directed
by
the
Letters
Patents
,
that
they
shall
proceed
upon
due
proof
had
by
confession
or
true
witness
,
to
give
sentence
.
Periam
,
Although
they
have
not
observed
the
due
form
prescribed
unto
them
by
the
Letters
Patents
;
yet
such
sentence
is
not
void
.
Anderson
,
If
the
party
appeareth
and
will
not
answer
,
it
shall
be
taken
pro
confesso
,
and
he
shall
be
condemned
.
CCXVII
.
Sir
John
Sand
's
and
Packsal
Brocas
's
Case
.
Trin.
38
Eliz.
In
the
Common
Pleas.
SIR
John
Sands
brought
an
Action
upon
the
Case
against
Packsal
Brocas
,
upon
a
Trover
of
goods
and
houshold-stuff
;
The
Defendant
pleaded
as
to
parcel
,
that
they
were
fixed
to
his
Freehold
in
S.
in
Hampshire
,
Absque
hoc
,
that
he
found
them
in
other
manner
;
as
to
the
part
,
that
the
Plaintiff
gave
them
to
him
at
D.
in
Hampshire
,
and
as
to
the
other
part
,
he
pleaded
,
Not
guilty
:
For
the
first
part
,
the
Plaintiff
caused
it
to
be
entred
,
Non
vult
ulterius
prosequi
,
and
took
issue
upon
the
two
other
;
and
it
was
found
for
the
Plaintiff
by
several
Iuries
,
in
several
Counties
,
and
damages
and
costs
assessed
by
the
Iuries
:
and
now
the
Defendant
brought
Error
,
and
assigned
Error
i.
because
the
Plaintiff
as
to
the
first
had
entred
,
Non
vult
ulterius
prosequi
,
which
is
a
Non-suit
,
and
Non-suit
in
part
,
is
Non-suit
in
all
.
Anderson
,
It
is
a
Question
,
if
this
be
a
Non-suit
?
The
entry
is
,
Querens
venit
,
&
gratis
concessit
,
that
as
to
the
goods
mentioned
in
the
first
Pleas
,
Non
vultulterius
prosequi
;
Ideo
,
consideratum
est
quod
nihil
de
iisdem
versus
the
Defendant
fiat
,
est
ille
&
pleg
.
in
miseric
.
&
the
Defendant
eat
inde
sine
die
,
Periam
,
A
Non-suit
is
,
when
the
Plaintiff
is
demanded
and
doth
not
appear
;
but
when
he
comes
into
Court
,
and
saith
,
Quod
non
vult
ulterius
prosequi
,
the
same
is
a
Retraxit
:
Nelson
,
Prothonotary
,
Non-suit
is
upon
default
;
but
here
the
Plaintiff
appears
,
and
this
is
the
usual
form
of
entry
of
a
Retraxit
.
Another
Error
was
assigned
,
because
both
Iuries
have
assessed
costs
,
and
Iudgment
given
according
;
whereas
the
last
Verdict
ought
to
do
it
.
And
where
two
Iuries
are
to
try
the
issue
,
the
form
of
the
entry
after
the
first
Verdict
is
,
Cesset
executio
,
untill
the
other
issue
be
tryed
:
Vid.
21
H.
6.
51.
36
H.
6.
13.
Anderson
,
Several
issues
cannot
sever
the
costs
,
although
they
may
the
damages
,
for
it
is
but
one
suit
;
therefore
but
one
costs
;
and
that
is
the
reason
that
Iudgment
shall
not
be
given
untill
the
last
issue
be
tryed
,
because
that
costs
shall
be
but
once
assessed
,
which
was
granted
by
the
whole
Court
:
And
by
Periam
,
The
first
Iury
may
assess
costs
for
the
whole
suit
,
Quod
fuit
concessum
.
Coke
,
Here
are
several
Iudgments
for
the
costs
;
and
although
it
be
void
for
the
later
issue
,
yet
it
is
good
for
the
first
.
Periam
,
How
shall
it
appear
unto
us
which
Verdict
was
the
first
,
and
which
the
last
?
although
that
the
one
Verdict
be
entred
of
Record
before
the
other
,
the
same
doth
not
make
that
it
was
first
given
;
wherefore
,
the
whole
shall
be
reversed
.
CCXVIII
.
Mich.
31
Eliz.
In
the
Common
Pleas.
J.
S.
and
his
heirs
,
who
hath
not
notice
of
the
use
;
The
Tenant
for
life
hath
issue
,
and
dieth
,
the
issue
entreth
:
Glanvile
,
The
use
limited
to
the
first
son
is
destroyed
;
for
without
regress
of
the
Feoffees
,
it
cannot
rise
;
and
that
the
same
is
gone
by
their
Livery
:
See
Plowden's
Com.
340.
And
also
he
vouched
the
case
of
the
Earl
of
Kent
,
whereby
the
release
of
the
surviving
Feoffee
,
a
sleeping
use
was
destroyed
,
and
could
not
afterwards
be
revived
.
Harris
,
The
use
may
rise
without
entry
of
the
Feoffees
:
And
he
put
a
difference
between
uses
created
before
the
Statute
and
uses
created
after
;
for
in
the
first
case
,
they
ought
to
enter
;
and
if
they
be
disabled
by
any
Act
,
as
in
the
case
betwixt
Gascoign
and
the
Earl
of
Kent
,
they
shall
never
rise
,
but
in
the
later
case
,
all
the
authority
and
confidence
is
by
the
Statute
out
of
the
Feoffees
,
and
the
uses
contingent
shall
rise
without
aid
of
the
Feoffees
by
the
operation
of
the
Law
;
for
the
land
is
bound
to
the
uses
,
and
charged
with
them
:
As
upon
a
Recovery
in
a
Warrantia
Chartae
,
the
land
of
the
Defendant
is
charged
,
pro
loco
&
tempore
;
and
according
to
the
common
experience
in
Conveyances
for
the
payment
of
the
Debts
of
the
King
:
as
in
the
case
betwixt
Breden
and
Dennis
.
The
Debtor
of
the
King
makes
a
Feoffment
in
Fee
to
the
use
of
himself
and
his
heirs
,
untill
he
makes
default
of
payment
of
such
a
sum
unto
the
King
at
such
a
day
,
and
upon
default
,
to
the
use
of
the
King
and
his
heirs
.
Cooper
,
There
needs
no
entry
of
the
Feoffees
;
and
he
put
the
difference
put
before
by
Harris
,
betwixt
an
use
created
before
and
an
use
created
after
the
Statute
:
And
now
the
Feoffees
have
not
any
power
to
revive
or
destroy
such
cases
,
but
are
onely
as
instruments
to
convey
the
uses
;
for
the
use
is
created
upon
the
Livery
,
and
is
transferred
by
the
Statute
,
if
the
person
to
whom
the
use
is
limited
be
capable
thereof
at
the
time
of
the
limitation
thereof
;
but
if
not
,
the
Law
shall
preserve
the
same
,
and
it
cannot
by
any
means
be
prevented
.
And
he
put
the
case
of
Bro.
Feoff
.
to
Uses
,
50.
30
H.
8.
And
there
is
a
great
difference
betwixt
an
Vse
limited
before
the
Statute
and
after
the
Statute
;
for
now
,
after
the
Statute
,
the
Feoffees
have
not
any
seisin
,
whereof
they
may
make
a
Feoffment
:
And
he
put
the
case
between
Cheney
and
Oxenbridge
;
Cheney
leased
to
Oxenbridge
for
60
years
,
and
afterwards
enfeoffed
Oxenbridge
to
the
use
of
the
said
Cheney
and
his
wife
for
their
lives
,
with
divers
remainders
over
;
and
it
was
adjudged
in
the
Court
of
Wards
,
that
by
the
Feoffment
the
term
was
not
extinct
:
And
he
put
the
case
of
the
Lord
Paget
in
the
King's
Bench
adjudged
.
A
Feoffment
was
made
unto
the
use
of
the
Feoffor
for
life
,
the
remainder
to
him
whom
the
Feoffor
should
name
at
his
death
,
in
Fee
;
the
Feoffor
and
the
Feoffees
for
good
consideration
,
levied
a
Fine
unto
a
stranger
,
and
afterwards
the
Feoffor
named
one
and
died
,
the
party
named
by
the
Feoffor
shall
have
the
land
,
notwithstanding
the
Fine
.
Beamount
,
The
contingent
use
here
,
is
utterly
destroyed
by
the
Feoffment
aforesaid
;
and
it
appeareth
by
the
preamble
of
the
Act
of
27
H.
8.
That
the
makers
of
the
Act
did
not
favour
Vses
,
but
their
intent
was
utterly
to
extirpate
Vses
:
And
if
contingent
Vses
which
are
not
,
nor
cannot
be
excused
by
the
Statute
should
stand
in
force
,
The
mischief
would
be
,
That
no
purchasor
should
be
secured
and
safe
in
his
purchase
,
but
should
always
be
in
danger
of
a
new
born
Vse
,
not
known
before
;
and
he
grounded
his
farther
argument
upon
the
reason
of
Manwood
and
Dyer
,
Where
a
man
makes
a
Feoffment
in
Fee
to
the
use
of
himself
and
his
Wife
which
shall
be
,
and
afterwards
he
and
the
Feoffees
,
and
those
in
remainder
,
make
a
Feoffment
to
divers
new
Feoffees
,
and
to
new
Vses
;
and
afterwards
he
takes
another
Wife
,
and
dieth
:
It
was
the
opinion
of
the
said
two
Iudges
,
That
by
that
Feoffment
,
ut
supra
,
the
contingent
Vses
are
destroyed
:
For
when
the
Estate
which
the
Feoffees
accept
is
taken
away
,
which
was
the
root
and
foundation
of
the
Vses
which
are
the
branches
and
fruit
of
the
body
of
the
said
Tree
,
it
necessarily
followeth
,
That
they
be
also
taken
away
;
and
because
the
Feoffees
by
their
Livery
,
are
barred
to
enter
to
recontinue
the
Estate
which
should
yield
such
Vses
,
they
also
are
gone
and
extinguished
.
Yelverton
was
of
opinion
,
that
notwithstanding
the
said
Feoffment
,
that
the
Vse
should
rise
in
his
due
time
according
to
the
limitation
of
it
.
It
was
adjourned
.
CCXIX.
The
Lord
North
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
THE
Queen
granted
unto
the
Lord
North
and
his
heirs
,
the
Fines
,
pro
licentia
concordandi
,
and
one
would
not
pay
him
the
Fine
;
for
which
cause
,
the
Lord
North
brought
an
Action
upon
the
Case
against
him
,
and
declared
upon
Indebitatus
assumpsit
,
&c.
Godfrey
moved
this
matter
to
the
Court
,
to
know
their
opinion
,
if
such
Action
would
lie
for
the
matter
or
not
.
Fenner
,
For
a
Fine
in
a
Court-Baron
,
or
Court-Leet
,
debt
lieth
;
but
as
he
conceived
,
CCXX
.
Mrs.
Paschall
's
Case
.
Trin.
31
Eliz.
In
the
Exchequer
.
MIstress
Paschall
was
bound
with
sureties
,
for
her
appearance
before
the
high
Commissioners
,
that
she
should
not
depart
without
licence
under
the
hands
of
three
of
them
;
and
she
pleaded
the
general
Pardon
at
the
last
Parliament
,
in
which
there
is
an
Exception
of
all
Bonds
and
Recognizances
,
except
onely
such
Bonds
and
Recognizances
as
are
for
appearance
:
And
Atkinson
argued
,
That
she
ought
to
be
discharged
,
by
the
Exception
;
for
although
the
departure
without
licence
be
not
specially
named
,
yet
it
is
within
the
sense
;
for
the
not
departure
without
licence
,
is
no
other
thing
,
than
to
continue
her
appearance
.
Popham
contrary
:
For
,
The
Non
departure
without
licence
,
was
set
down
in
the
Condition
to
this
purpose
,
That
she
should
not
go
into
the
Countrey
to
be
corrupted
there
,
or
to
corrupt
other
,
and
receive
Seminaries
,
&c.
therefore
it
is
another
thing
than
appearance
:
Between
Hore
and
Hare
,
the
Case
was
,
One
was
bound
to
make
his
appearance
at
such
a
day
,
and
in
the
mean
time
thrice
every
Month
to
repair
unto
such
a
Preacher
to
be
better
informed
in
Religion
,
although
the
Non
appearance
was
pardoned
;
yet
the
other
point
,
i.
the
resorting
to
the
Preacher
,
is
to
be
answered
.
Atkinson
,
There
the
resorting
to
the
Preacher
is
collateral
,
and
a
several
point
from
the
appearance
:
But
in
the
Case
at
Bar
,
the
not
departure
is
pursuant
to
the
appearance
.
And
the
opinion
of
all
the
Barons
was
,
That
the
pardon
did
not
extend
to
the
same
.
CCXXI
.
Trin.
31
Eliz.
In
the
Common-Pleas
.
Walmsley
:
Periam
,
Where
the
issue
is
,
that
the
Executor
refused
before
such
a
day
,
or
after
,
there
the
issue
shall
be
tried
by
the
Countrey
;
contrary
,
Where
the
issue
is
upon
the
refusal
generally
,
for
the
refusal
is
before
him
as
Iudge
,
as
also
resignation
is
.
CCXXII
.
Giles
's
Case
.
Mich.
28
and
29
Eliz.
In
the
King's-Bench
.
A
Writ
of
Error
was
brought
in
the
King's-Bench
,
to
reverse
a
Iudgment
given
in
an
Action
upon
the
Case
,
in
the
Court
of
Common-Pleas
;
where
the
Writ
brought
against
the
Defendant
there
in
that
Case
,
was
,
Quare
exaltavit
stagnum
per
quod
pratum
of
the
Plaintiff
was
inundatum
:
The
Defendant
in
the
Action
there
pleaded
,
Not
guilty
,
and
the
Iury
found
,
That
the
Defendant
Erexit
stagnum
;
and
they
said
,
That
if
the
Court
shall
judge
,
That
Erectio
and
Exaltatio
be
all
one
,
then
they
find
,
that
the
Defendant
is
guilty
;
and
afterwards
Iudgment
was
given
in
the
said
Court
of
Common-Pleas
for
the
Plaintiff
:
Whereupon
this
Writ
of
Error
is
brought
.
And
Glanvile
,
Serjeant
,
who
argued
for
the
Plaintiff
,
in
the
Writ
of
Error
alledged
the
general
Error
;
viz.
That
Iudgment
was
given
for
the
Plaintiff
,
where
it
ought
to
be
found
for
the
Defendant
:
And
he
said
,
That
Erigere
stagnum
est
de
novo
facere
,
exaltare
,
is
erectum
majoris
altitudinis
facere
,
Deexaltare
est
ad
pristinam
altitudinem
adducere
:
Prosternere
stagnum
,
est
penitus
tollere
:
And
in
every
Action
upon
the
Case
,
such
apt
and
precise
words
are
to
be
in
the
Writ
,
according
as
his
Case
requires
,
unto
the
end
that
Iudgment
may
in
such
Action
be
given
to
the
Plaintiff
according
to
his
plaint
,
and
his
damages
,
In
7
E.
3.
56.
In
Assise
of
Nusans
,
Quare
exaltavit
stagnum
ad
nocumentum
liberi
tenementi
sui
:
The
Defendant
pleaded
,
that
he
had
not
inhanced
it
after
it
was
levied
;
and
there
it
was
said
by
Drew
,
Serjeant
,
That
there
is
not
any
other
Writ
in
the
Chancery
,
but
Quare
exaltavit
stagnum
.
But
that
was
denied
by
Herle
:
For
that
he
said
that
the
Plaintiff
might
have
a
Writ
out
of
the
Chancery
,
Quare
levavit
stagnum
:
And
there
by
that
Book
it
is
assigned
,
That
Levare
stagnum
,
&
exaltare
stagnum
do
differ
:
and
therefore
he
said
,
that
in
this
Case
,
the
Writ
should
abate
for
the
using
of
one
word
for
another
,
8
E.
3.
21.
Fitz.
Nusans
5.
by
Chauntrel
,
In
a
Writ
of
Nusans
,
Quare
levavit
,
if
it
be
found
that
he
levied
it
to
the
Nusans
,
&c.
the
whole
shall
be
destroyed
;
but
in
a
Writ
Quare
exaltavit
,
nothing
shall
be
pulled
down
,
if
it
be
found
for
the
Plaintiff
,
but
that
which
is
enhaunced
onely
:
So
8
Ass.
9.
Br.
Nusans
17.
the
same
Case
is
put
.
And
see
16
E.
3.
Fitz.
Nusans
,
11.
If
the
Nusans
be
found
in
any
other
form
than
the
Plaintiff
hath
declared
,
he
shall
not
recover
:
And
in
48
E.
3.
27.
the
Writ
was
,
Quare
divertit
cursum
aquae
,
&c.
and
the
Plaintiff
shewed
,
that
the
Defendant
had
set
piles
,
and
such
other
things
in
the
water
,
by
reason
whereof
the
course
of
the
water
was
straitened
;
and
because
the
Plaintiff
might
have
had
a
Writ
,
Quare
coarctavit
cursum
aquae
,
the
Writ
was
abated
:
Another
Exception
was
taken
,
viz.
That
the
Assise
of
Nusans
ought
to
be
brought
against
the
Tenant
of
the
Freehold
,
and
therefore
it
would
not
lie
in
this
Case
;
it
not
being
shewed
that
the
Defendant
was
Tenant
of
the
soil
:
Vid.
33
H.
6.
26.
by
Moile
,
If
a
way
be
straitned
and
impaired
,
an
Action
upon
the
Case
lieth
;
but
if
it
be
altogether
stopped
up
,
then
an
Assise
must
be
brought
;
But
there
it
is
said
by
Prisoit
,
That
if
the
stopping
up
of
the
way
be
done
by
the
Tenant
of
the
Land
,
then
an
Assise
lieth
;
if
by
a
stranger
,
then
an
Action
upon
the
Case
:
But
for
common
Nusances
no
Action
lieth
,
but
they
ought
to
be
presented
in
the
Court-Leet
or
Turn
,
and
there
redressed
:
and
such
was
the
opinion
of
the
whole
Court
in
this
Case
.
Then
it
was
moved
,
CCXXIII.
Freeman
and
Drew
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
IN
an
Action
upon
the
Case
by
Freeman
against
Drew
,
The
Defendant
pleaded
,
That
after
the
Assumpsit
whereof
the
Plaintiff
had
declared
,
There
was
an
agreement
betwixt
them
,
That
the
Defendant
and
two
others
should
be
bound
in
a
Bond
to
the
Plaintiff
for
the
sum
promised
;
and
that
they
entred
Bond
accordingly
:
The
Plaintiff
confessed
the
agreement
,
and
that
the
Bond
was
made
according
to
the
agreement
,
and
that
the
parties
bound
did
deliver
the
same
as
their
Deed
,
cuidam
ignoto
,
to
the
Plaintiff
;
The
Defendant
said
,
That
they
did
deliver
the
Deed
to
one
J.
S.
and
gave
notice
thereof
unto
the
servant
of
the
Plaintiff
,
and
that
they
are
now
ready
to
deliver
it
to
the
Plaintiff
,
upon
which
there
was
a
Demurrer
:
Godfrey
argued
,
That
the
said
Plea
of
the
agreement
specially
executed
,
ut
supra
,
was
good
,
as
in
a
Case
lately
adjudged
between
Alford
and
Leigh
,
CCXXIV.
Somers
and
Sir
Richard
Buckley
's
Case
.
32
Eliz.
In
the
Common-Pleas
.
IN
the
Case
betwixt
Somers
and
Sir
Rich
,
Buckley
;
Where
the
Plaintiff
prayed
a
Prohibition
to
the
Court
of
Admiralty
;
The
Case
was
,
That
the
Defendant
sued
in
the
Admiral
Court
for
the
moyety
of
a
Ship
and
prize
taken
by
them
upon
Letters
of
Reprizal
;
CCXXV.
Sir
Richard
Buckley
's
Case
.
Mich.
32
Eliz.
In
the
King's-Bench
.
SIR
Richard
Buckley
was
indicted
upon
the
Statute
of
Praemunire
of
13
and
15
R.
2.
and
the
effect
was
,
That
whereas
one
Griffeth
Matthew
had
murthered
one
Robert
Footman
at
Beaumarris
;
and
whereas
one
Owen
Wood
prosecuted
the
said
Griffeth
Matthew
for
the
said
murther
;
The
said
Griffeth
Matthew
,
Praemissorum
non
ignarus
,
sed
intendens
,
the
said
murther
,
a
Curia
Dominae
Reginae
ad
aliud
examen
,
&c.
pro
quodam
supposito
contemptu
Curiae
Admiralitatis
traxit
in
placitum
:
the
said
Owen
Wood
,
coram
Julio
Caesar
.
in
the
Court
of
Admiralty
holden
at
Islington
,
supposing
the
said
murther
to
be
done
upon
the
high
Sea
,
and
thereupon
caused
him
to
be
arrested
,
and
being
under
arrest
,
to
enter
Bond
unto
the
Lord
Admiral
,
that
he
should
not
prosecute
the
said
murther
against
the
said
Griffeth
Matthew
,
nor
examine
any
witnesses
concerning
the
said
murther
,
and
that
the
said
Sir
Richard
Buckley
was
abettor
and
procurator
of
the
said
Griff.
Mathew
therein
.
To
this
Indictment
many
Exceptions
were
taken
by
Coke
:
In
placitum
pro
quodam
contemptu
,
and
doth
not
shew
the
contempt
in
certain
;
for
it
is
too
general
,
and
so
not
good
:
See
18
Ass.
for
the
stealing
of
certain
Sheep
,
without
shewing
what
Sheep
they
were
,
is
not
a
good
Indictment
.
And
here
he
doth
not
say
;
concerning
the
said
murther
,
or
concerning
the
premisses
:
2
Although
that
the
matter
of
the
Indictment
be
true
;
yet
the
Stat.
of
Praemunire
doth
not
extend
to
it
,
for
the
Statute
inflicts
a
punishment
as
well
upon
the
Iudge
,
(
scil.
)
the
Admiral
,
as
upon
the
party
:
See
10
H.
4.
164.
If
one
Libelleth
in
the
Court
of
Admiralty
for
a
thing
done
upon
the
Land
,
and
it
appeareth
upon
the
Libel
,
that
the
thing
was
done
upon
the
Land
,
and
they
,
notwithstanding
that
hold
Plea
of
it
;
A
Praemunire
lieth
upon
it
.
But
if
the
same
doth
not
appear
within
the
Libel
,
then
it
is
not
within
the
Statute
;
but
a
Prohibition
shall
onely
issue
:
So
in
the
case
of
Tithes
;
If
the
Parson
sueth
for
Tithes
severed
from
the
nine
parts
,
and
that
appeareth
in
the
Libel
,
the
same
suit
is
within
the
Statute
of
Praemunire
;
and
that
was
Cardinal
Woolsey's
Case
:
3
It
is
alledged
,
That
Sir
Richard
Buckley
procured
him
to
do
it
,
but
it
is
not
shewed
any
place
where
the
procurement
was
had
:
And
that
was
resolved
in
the
Case
of
the
Lord
Paget
,
J.
S.
to
enter
into
the
Close
of
the
Lord
Paget
,
and
to
do
a
trespass
there
,
and
because
the
place
of
the
commandment
was
not
set
forth
in
the
Indictment
,
the
Bishop
was
discharged
.
M.
25
and
26
Eliz.
Another
matter
was
objected
,
because
that
the
words
are
,
That
the
said
Sir
Richard
Buckley
did
abet
and
procure
,
in
hac
parte
;
without
shewing
what
thing
.
As
to
this
last
Objection
,
The
Court
was
of
opinion
,
that
the
words
(
in
hac
parte
)
did
refer
to
the
whole
offence
contained
in
the
Indictment
:
Wray
,
It
is
hard
,
That
the
matter
of
the
Indictment
should
be
within
the
Statute
of
Praemunire
;
for
by
the
suit
it
is
supposed
,
That
the
offence
was
done
upon
the
sea
;
and
the
Admiral
hath
jurisdiction
to
punish
murthers
committed
upon
the
sea
,
so
in
some
degree
the
Admiral
hath
Conusance
to
enquire
of
Murther
;
but
if
they
hold
plea
of
any
thing
of
which
in
no
degree
they
have
Conusance
,
it
is
otherwise
.
And
as
to
the
place
where
the
commandment
was
made
,
the
Court
was
clear
of
opinion
,
that
it
ought
to
be
shewed
.
CCXXVI
.
Hooper
's
Case
.
Mich.
32
Eliz.
In
the
King
's
Bench.
JOhn
Hooper
,
alias
Bartholomew
of
D.
&c.
was
indicted
upon
the
Statute
of
8
H.
6.
Of
forcible
Entry
,
and
Exception
was
taken
to
the
Indictment
in
default
of
addition
of
the
place
,
&c.
For
the
addition
is
here
after
the
alias
dict
.
and
so
there
is
no
addition
;
and
therefore
the
party
was
discharged
,
and
it
was
holden
in
this
Case
,
That
Uxor
is
a
good
addition
;
and
where
the
husband
and
wife
are
indicted
,
and
the
husband
be
indicted
of
such
a
place
,
although
the
wife
hath
no
addition
of
place
,
yet
the
same
is
good
enough
;
but
I
ve
said
,
That
in
that
case
there
needs
not
any
place
.
CCXXVII
.
Mich.
32
Eliz.
In
the
King
's
Bench.
A.
Was
Indicted
for
not
repairing
of
a
Bridge
lying
in
such
a
high-way
,
which
A.
is
bound
to
repair
by
reason
of
his
land
adjoyning
;
and
the
Indictment
was
,
That
the
Bridge
was
so
ruinous
,
Ita
quod
Ligei
Dominae
Reginae
per
eam
transire
non
possunt
,
and
concluded
,
ad
nocumentum
eorund
.
&c.
and
that
was
challenged
,
because
it
doth
not
say
,
Ad
nocumentum
omnium
subditorum
:
for
otherwise
it
may
be
intended
a
private
way
,
of
which
a
man
cannot
be
indicted
,
but
the
party
grieved
shall
have
his
Action
upon
the
Case
:
But
the
Exception
was
not
allowed
,
but
the
Indictment
is
good
enough
;
For
the
words
of
the
Indictment
are
,
Sic
quod
Ligei
Dominae
Reginae
illuc
pertransire
non
possunt
;
i.
e.
all
the
Liege
people
and
Subjects
of
the
Queen
;
and
then
,
ad
nocument
.
eorund
.
amounts
to
as
much
as
,
ad
commune
nocumentum
,
&c.
and
for
that
cause
the
Indictment
was
holden
good
enough
.
CCXXVIII
.
Ashpernon
's
Case
.
Mich.
32
Eliz.
In
the
King
's
Bench.
ONE
Ashpernon
was
Indicted
at
the
Sessions
,
in
the
County
of
Sussex
,
for
an
unlawfull
assembly
and
entry
into
the
Close
of
one
A.
called
,
The
Parsonage
land
,
before
two
Iustices
of
Peace
there
,
and
exception
was
taken
to
it
,
because
it
is
not
set
down
in
the
Indictment
,
that
one
of
the
Iustices
was
of
the
Quorum
,
but
that
the
exception
was
disallowed
;
for
the
Indictment
is
sufficient
,
if
none
of
them
be
of
the
Quorum
,
for
they
may
enquire
,
but
not
determine
:
Another
exception
was
,
because
the
contents
of
the
Close
is
not
set
down
in
the
Indictment
;
(
scil.
)
the
number
of
the
acres
,
nor
if
it
be
arrable
,
pasture
,
or
Meadow
;
but
that
was
disallowed
also
;
for
this
is
but
an
Indictment
of
trespass
,
contrary
,
it
is
upon
an
Indictment
upon
the
Statute
of
8
H.
6.
CCXXIX
.
Leveret
and
Townsend
's
Case
.
Mich.
32
Eliz.
In
the
King
's
Bench.
Eliz.
Dyer
,
250.
11
H.
2.
Action
upon
the
Case
,
36.
CCXXX
.
Hore
and
Wridlesworth
's
Case
.
Mich.
32.
Eliz.
In
the
King
's
Bench.
HOre
brought
an
Action
of
trespass
against
Wridlesworth
,
Quare
clausum
&
domum
suam
fregit
.
The
Defendant
pleaded
,
and
put
the
Plaintiff
to
a
new
assignment
:
i.
a
House
called
a
Stable
,
a
Barn
,
and
another
house
called
a
Carthouse
and
Garnier
,
and
that
was
assigned
for
Error
,
for
that
Assignment
is
not
warranted
by
the
Declaration
.
Gawdy
,
The
same
is
good
enough
;
for
Domus
in
the
Declaration
,
contains
all
things
contained
in
the
new
Assignment
.
But
if
the
Declaration
had
been
of
a
Close
,
and
the
new
Assignment
of
a
Barn
,
it
had
not
been
good
.
Wray
,
Domus
est
nomen
collectivum
,
and
contains
many
buildings
,
as
Barns
,
Stables
,
&c.
and
so
was
the
opinion
of
the
whole
Court.
CCXXXI
.
Savacre
's
Case
.
Mich.
32
Eliz.
In
the
King
's
Bench.
A
Writ
of
Error
,
Gloucester
,
M.
31
and
32
Eliz.
upon
a
Iudgment
given
in
a
Quare
Impedit
,
for
the
Queen
.
And
Error
assigned
:
1.
An
Attachment
was
awarded
against
the
Defendant
in
the
Quare
Impedit
;
retornable
Quind
.
Pasch
.
at
which
Savacre
appeared
,
and
cast
an
Essoin
;
and
notwithstanding
that
,
a
Distringas
was
awarded
against
them
both
,
retorned
,
Crast
.
Trin.
and
the
awarding
the
Distringas
was
erronious
;
for
the
Essoin
was
as
an
appearance
for
to
save
,
&c.
and
therefore
against
him
no
Distringas
ought
to
have
been
awarded
:
And
upon
alledging
of
Diminution
,
the
Record
of
the
Essoin
was
certified
;
for
the
same
did
not
appear
upon
the
Plea
Roll.
2
The
Record
is
,
Ipsi
in
Misericord
.
and
so
both
of
the
Defendants
are
amerced
for
the
default
of
appearance
,
Quind
.
Pasch
.
whereas
Savacre
was
then
Essoined
,
and
so
no
cause
of
amerciment
of
him
.
Coke
,
The
original
Writ
was
here
sued
,
Mic.
26
Eliz.
retornable
Quind
.
Hillar
.
and
then
both
the
Defendants
made
default
,
for
which
an
Attachment
was
awarded
retornable
,
15
Pas
.
and
then
Savacre
appeared
,
and
Iudgment
was
given
,
Quod
ipsi
sint
in
Misericord
.
in
which
point
the
Error
is
assigned
:
But
I
conceive
,
that
it
is
not
Error
;
for
upon
the
Attachment
,
the
parties
ought
to
put
in
sureties
for
their
appearance
:
and
the
said
sureties
took
upon
them
,
that
the
Defendants
,
and
each
of
them
should
appear
,
and
if
they
,
or
one
of
them
maketh
default
,
the
sureties
should
be
amerced
;
and
so
here
,
this
Iudgment
,
Ideo
ipsi
in
Misericord
.
shall
refer
to
the
sureties
,
not
to
the
parties
:
for
the
Defendants
shall
not
be
amerced
untill
the
end
of
the
suit
,
and
but
once
onely
in
one
action
,
which
see
,
Book
of
Entries
,
464.
where
there
was
but
one
Defendant
;
and
therefore
,
If
the
amerciment
shall
refer
to
the
Defendant
,
then
it
should
be
,
Ideo
ipse
,
not
ipsi
,
&c.
and
that
is
the
reason
,
wherefore
neither
the
Queen
nor
an
Infant
shall
find
pledges
,
for
no
amerciament
shall
be
upon
their
default
,
therefore
in
vain
for
them
to
find
pledges
,
&c.
And
if
the
pledges
be
amerced
where
they
ought
not
to
be
amerced
by
the
Law
,
yet
the
Defendant
shall
not
have
Error
upon
it
,
for
he
is
not
the
party
grieved
by
that
amerciament
.
And
upon
this
reason
it
is
,
That
in
a
Scire
facias
against
the
bail
,
if
erronious
Iudgment
be
given
against
him
,
the
Defendant
in
the
Action
shall
not
have
a
Writ
of
Error
,
The
awarding
of
the
Distress
upon
the
Roll
against
both
,
where
the
one
of
them
onely
makes
default
,
is
not
error
,
especially
as
this
case
is
;
for
though
that
one
of
them
was
Essoined
untill
the
day
aforesaid
,
yet
at
the
said
day
they
make
default
,
and
so
the
Distress
is
well
awarded
against
him
;
and
although
that
the
Writ
were
ill
awarded
;
yet
when
they
appear
,
Cr.
Trinit
.
at
the
day
of
the
retorn
of
the
Distress
,
all
mean
defaults
in
the
Process
are
saved
,
and
so
the
misawarding
of
the
Distress
,
by
appearance
afterwards
is
supplyed
:
As
39
E.
3.
7.
The
Law
requires
that
in
an
action
grounded
upon
the
Statute
of
Praemunire
,
27
E.
3.
the
Defendant
hath
warning
by
two
Months
;
yet
if
the
Defendant
having
not
had
such
warning
appeareth
,
the
Process
is
well
enough
:
So
9
E.
4.
18.
Where
,
upon
any
Process
the
Defendant
appeareth
,
although
the
day
of
appearance
be
not
lawfull
,
yet
the
parties
shall
be
put
to
answer
:
and
see
many
cases
there
to
the
same
purpose
:
and
such
was
the
opinion
of
the
Court
in
the
principal
Case
.
And
as
to
the
second
Error
,
that
the
Iudgment
,
Ideo
ipsi
in
Miseric
.
shall
be
referred
to
the
sureties
onely
,
and
not
unto
the
party
;
and
that
the
Defendant
shall
be
but
once
amerced
in
one
action
,
the
same
is
true
,
that
he
shall
be
but
once
amerced
for
one
default
;
but
if
many
defaults
be
,
the
Defendant
shall
be
severally
amerced
for
every
default
:
And
it
should
be
unreasonable
that
the
sureties
should
be
amerced
,
and
that
the
Defendant
who
is
as
principal
should
go
free
:
See
the
Book
of
Entries
,
193.
Ipsi
&
plegii
sui
in
Misericordia
,
&c.
CCXXXII
.
Farnam
's
Case
.
Mich.
32
Eliz.
In
the
King's-Bench
.
FArnam
,
Schoolmaster
,
and
others
,
were
Indicted
upon
the
Statute
of
8
H.
6.
for
entring
,
In
domum
Rectoriae
de
Putney
,
ac
in
cert
.
terras
eidem
domui
part
.
jacen
.
in
Putney
,
&c.
Exception
was
taken
to
the
Indictment
,
because
it
recited
the
two
parts
of
the
Statute
:
1
Expulsion
and
Disseisin
with
Force
:
2
Holding
out
;
and
there
is
not
any
offence
in
it
contained
as
to
one
of
them
;
(
scil.
)
Holding
out
;
and
although
it
was
not
necessary
to
recite
the
Statute
,
yet
the
party
meddles
with
it
,
and
doth
not
apply
it
to
the
special
matter
,
the
same
is
naught
:
See
for
that
the
Case
between
Strange
and
Partridge
,
Plow
.
Com.
2
The
entry
is
supposed
,
In
domum
&
certas
terras
eidem
domui
pertinen
.
jacen
.
in
Putney
;
which
is
incertain
,
as
to
the
lands
,
and
it
is
naught
for
the
house
also
;
for
it
is
not
shewed
in
what
Town
the
house
is
,
for
this
clause
,
ac
certas-terras
eidem
domui
pertin
.
jacen
.
in
Putney
,
is
a
distinct
clause
by
it self
,
and
refers
onely
to
the
lands
,
and
doth
not
extend
to
the
house
:
As
to
the
first
exception
,
is
was
disallowed
;
for
it
is
not
like
unto
Partridge's
Case
,
for
there
the
Statute
is
recited
,
which
needs
not
,
and
therefore
,
being
misrecited
,
made
the
Indictment
insufficient
;
but
here
the
Statute
is
well
recited
,
and
therefore
as
unto
that
matter
,
the
Indictment
is
sufficient
:
As
to
the
second
exception
,
the
Iustices
were
of
opinion
,
That
the
Indictment
in
that
respect
,
i.
e.
in
Putney
,
do
refer
to
the
whole
,
and
extend
as
well
unto
the
house
as
unto
the
lands
:
But
as
to
these
words
,
Lands
to
the
said
house
belonging
.
See
the
Case
between
Partridge
and
Croker
,
7
E.
6.
85.
where
it
is
good
enough
,
because
that
the
number
of
the
acres
is
set
incertain
.
And
it
was
holden
by
the
Court
,
That
a
Schoolmaster
is
a
good
addition
,
for
it
is
a
mystery
,
as
a
Scrivener
;
and
afterward
the
Indictment
for
the
house
onely
was
holden
good
.
CCXXXIII
.
Gray
a
Bencher
of
the
Temple
's
Case
.
Mich.
32
Eliz.
In
the
Chancery
.
GRay
,
a
Bencher
of
the
Temple's
Case
,
was
this
;
It
was
found
by
Office
,
That
one
H.
was
seised
in
Fee
of
certain
lands
called
Drayners
,
and
Codred
,
alias
Codreth
,
in
the
County
of
Hertford
,
in
his
Demesne
as
of
Fee
,
and
thereof
enfeoffed
certain
persons
,
unto
the
use
of
himself
,
and
Anne
Capel
,
with
whom
he
afterwards
intermarried
,
and
of
the
heirs
of
their
two
bodies
begotten
,
and
of
such
Estate
died
seised
;
and
farther
it
was
found
,
that
the
said
H.
was
also
seised
of
other
Lands
,
in
Barmesden
in
his
Demesne
as
of
Fee
,
and
therefore
died
seised
;
and
now
came
Gray
into
the
Chancery
,
and
shewed
that
the
said
H.
was
seised
of
the
said
Land
,
called
Drayners
,
in
his
Demesne
as
of
Fee
,
and
thereof
enfeoffed
certain
persons
unto
the
use
of
himself
,
and
the
said
Anne
Capel
,
for
the
term
of
their
lives
,
and
afterwards
,
by
his
Indenture
,
dated
the
23.
of
Decemb.
and
enrolled
,
bargained
and
sold
the
Reversion
thereof
to
the
said
Gray
,
&c.
by
force
whereof
,
&c.
Absque
hoc
,
that
he
was
seised
in
tail
,
and
absque
hoc
,
that
he
thereof
died
seised
in
his
Demesne
,
as
of
Fee-tail
,
as
it
is
found
by
the
said
Office
:
and
for
the
Land
in
Barmesden
,
he
said
,
that
the
Lady
Judde
was
seised
thereof
for
the
term
of
her
life
,
the
Reversion
to
the
said
H.
in
Fee
,
who
granted
to
him
the
said
Reversion
in
Fee
,
&c.
absque
hoc
,
that
he
died
seised
in
his
Demesne
as
of
Fee
,
&c.
And
upon
that
,
the
Queen's
Attorney
joined
issue
,
and
the
Venire
facias
issued
,
De
Cottred
&
Barmesden
;
and
the
Iury
found
,
That
H.
did
not
make
the
Feoffment
to
the
use
of
himself
and
Anne
his
Wife
in
tail
;
and
farther
found
for
Gray
in
all
,
&c.
And
it
was
objected
here
,
That
the
same
is
not
a
good
and
lawfull
trial
:
For
the
Land
is
alledged
to
be
in
Codrett
,
and
the
Venire
facias
is
of
Codred
,
&c.
And
although
the
Venire
facias
be
well
awarded
,
as
unto
Barmesden
,
yet
being
naught
in
part
,
it
is
naught
in
all
,
which
was
granted
by
the
whole
Court
;
And
then
a
new
Venire
facias
shall
issue
forth
for
the
whole
.
Another
Objection
was
,
because
he
pleads
that
the
Lady
Judde
was
seised
of
that
Land
for
the
term
of
her
life
,
in
which
Case
Gray
,
who
is
in
Reversion
,
ought
not
to
be
admitted
to
this
Traverse
,
because
that
Tenant
for
life
,
for
any
thing
that
is
pleaded
to
the
contrary
,
is
yet
alive
;
and
it
is
clear
,
that
none
shall
be
put
to
his
Traverse
,
but
the
party
grieved
;
and
here
he
in
the
Reversion
upon
an
Estate
for
life
,
cannot
be
restored
to
the
possession
,
and
by
consequence
shall
not
have
Traverse
:
See
for
that
,
6
H.
7.
15.
and
37.
Ass.
11.
&c.
2.
The
seisin
in
tail
ought
to
be
traversed
,
and
not
the
descent
,
or
dying
seised
;
for
if
they
were
seised
and
disseised
,
and
so
died
,
the
Queen
shall
have
the
Ward
.
Coke
,
contrary
,
For
Codred
and
Cottered
,
idem
sonant
,
&c.
And
although
that
it
be
found
by
Office
,
that
H.
was
seised
of
Lands
in
Codred
,
alias
Codreth
,
yet
the
Defendant
supplies
the
said
matter
;
for
he
saith
thus
as
unto
the
Land
in
Codred
praedicta
;
which
words
import
that
the
said
Land
was
known
by
the
one
name
or
the
other
;
for
this
word
praedicta
,
is
as
an
Averment
:
which
see
33
H.
8.
Br.
Averm
.
42.
And
so
here
,
this
word
praedicta
is
an
Averment
,
that
Cottered
and
Codred
are
one
:
And
if
so
,
then
the
Venire
facias
is
well
awarded
.
The
Statute
of
18
H.
6.
gives
Traverse
to
those
who
find
themselves
grieved
by
such
Offices
,
or
which
are
put
out
of
their
Lands
or
Tenements
;
and
we
are
within
the
words
of
it
,
for
upon
the
whole
matter
,
we
are
out
of
possession
,
as
it
was
ruled
in
the
Case
of
one
Stukely
in
the
Court
of
Wards
the
last
Term.
If
it
be
found
by
Office
,
That
A.
died
seised
of
my
Manor
,
and
that
he
held
the
said
Manor
of
the
Queen
:
Now
I
am
out
of
possession
;
and
for
that
cause
,
the
bargain
and
sale
of
Dorrel
to
Sir
Francis
Walsingham
was
holden
void
by
the
whole
Court
:
And
4
H.
6.
12.
Traverse
is
given
in
lieu
of
Petition
,
but
he
in
the
reversion
may
have
Petition
,
therefore
he
shall
be
also
admitted
to
Traverse
:
and
this
Case
may
be
resembled
to
the
Case
of
2
E.
3.
23.
where
a
Praecipe
was
brought
against
Tenant
for
life
,
and
he
in
the
Reversion
for
life
prayed
to
be
received
:
It
was
said
by
Thorp
,
That
is
not
within
the
Case
of
the
Statute
,
for
he
is
Tenant
onely
in
the
Remainder
,
and
it
is
possible
that
neither
shall
have
any
thing
;
and
the
Statute
speaks
onely
of
Reversion
:
and
yet
it
was
awarded
,
That
he
should
be
received
,
otherwise
great
prejudice
would
follow
.
And
here
we
are
at
prejudice
;
for
now
,
by
reason
of
this
Office
,
we
cannot
have
our
Action
of
Waste
:
Also
here
we
need
not
to
Traverse
the
dying
seised
in
tail
,
but
it
is
sufficient
to
Traverse
the
gift
in
tail
;
for
if
there
be
not
a
gift
in
tail
it
is
not
possible
that
he
should
die
seised
in
tail
,
which
see
2
E.
4.
15.
by
Laicon
.
Gawdy
,
Iustice
,
conceived
,
that
the
trial
is
not
good
;
for
the
Venire
facias
is
not
from
the
place
where
the
Land
is
;
and
this
word
(
praedicta
)
doth
not
amount
to
an
Averment
;
and
the
Case
cited
before
is
but
the
opinion
of
Brook.
Wray
said
,
That
as
to
the
first
exception
,
that
it
was
good
enough
,
for
both
the
names
,
idem
sonant
;
and
as
to
the
Office
,
by
that
the
Queen
hath
gained
possession
;
so
as
he
who
traverseth
cannot
have
an
Action
of
Waste
:
and
so
he
is
prejudiced
by
the
Office
,
&c.
CCXXXIV
.
Perchall
's
Case
.
Mich.
32
Eliz.
In
the
King's-Bench
.
PErchall
was
Indicted
upon
the
Statute
of
5
E.
6.
cap.
4.
for
drawing
of
his
Dagger
in
the
Church
,
against
J.
S.
without
saying
,
That
he
drawed
it
to
the
intent
to
stick
the
Plaintiff
,
and
therefore
the
Indictment
was
holden
void
as
to
the
Statute
;
and
it
was
moved
,
If
it
should
not
be
a
good
Indictment
for
the
assault
,
so
as
he
might
be
fined
for
it
?
and
by
Sands
,
Clerk
of
the
Crown
,
and
the
whole
Court
,
The
Indictment
is
void
for
the
whole
;
for
the
conclusion
of
the
Indictment
is
,
contra
formam
Statuti
,
and
there
the
Iury
cannot
enquire
at
the
Common
Law.
CCXXXV
.
Mead
and
Cheney
's
Case
.
Mich.
32
Eliz.
In
the
King's-Bench
.
MEad
brought
an
Action
of
Debt
upon
a
Bond
against
Cheney
,
Executor
of
one
Skipwith
,
and
recovered
;
and
upon
a
Fieri
facias
,
the
Sheriff
did
retorn
Devastavit
:
and
it
was
moved
to
have
an
Elegit
,
and
the
Iustices
would
advise
of
it
:
and
afterwards
,
at
another
day
,
a
Precedent
was
shewed
to
the
Court
of
17
Eliz.
and
thereupon
the
Elegit
was
granted
.
CCXXXVI
.
Tompson
and
Trafford
's
Case
.
Trin.
32
Eliz.
In
the
King's-Bench
.
Rot.
910.
Ejectione
firmae
,
the
Case
was
,
That
the
Warden
and
Fellows
of
New
College
in
Oxford
,
8
Eliz.
leased
a
Mansion
house
in
the
Burrough
of
Southwark
,
to
one
Standish
,
for
21
years
,
and
afterwards
,
25
Octob.
21
Eliz.
they
demised
the
same
Mansion
house
to
the
said
Standish
for
21
years
,
to
commence
the
Michaelmas
after
:
And
the
Stat.
of
14
Eliz.
cap.
11.
and
18
Eliz.
cap.
11.
were
also
found
:
And
if
this
second
Lease
shall
be
said
a
Lease
in
Reversion
,
and
so
be
void
by
the
Statute
of
14
Eliz.
was
the
Question
.
Foster
moved
,
That
it
is
a
Lease
in
Reversion
;
for
the
first
Lease
doth
continue
untill
Michaelmas
;
and
so
was
the
opinion
of
the
Iustices
of
Assise
at
the
trial
.
Towse
contrary
:
For
when
Standish
accepteth
the
second
Lease
,
the
same
is
presently
a
surrender
of
the
former
Lease
;
for
he
giveth
power
unto
the
Lessor
for
to
contract
for
the
house
presently
;
and
to
that
purpose
he
cited
Corbet's
Case
,
8
Eliz.
Coke
,
It
is
a
surrender
presently
,
for
you
cannot
apportion
the
Term.
It
was
adjourned
.
CCXXXVII
.
Wood
and
Avery
's
Case
.
Mich.
32
Eliz.
In
the
King's-Bench
.
DEBT
upon
a
Bond
by
Wood
against
Avery
;
the
Condition
was
,
That
where
the
Plaintiff
had
demised
to
the
Defendant
for
term
of
years
,
two
Messuages
,
&c.
If
the
Defendant
at
all
times
,
during
the
term
,
shall
maintain
,
sustain
and
repair
the
said
two
Messuages
with
good
and
sufficient
reparations
,
that
then
,
&c.
And
the
Defendant
pleaded
,
That
he
had
performed
the
Conditions
in
all
,
but
as
to
one
Kitchin
,
which
was
so
ruinous
at
the
time
of
the
Demise
,
that
he
could
not
maintain
or
repair
,
and
therefore
he
took
it
down
,
and
rebuilt
it
again
,
in
so
short
a
time
as
he
could
possible
,
in
the
same
place
,
so
large
,
and
so
sufficient
in
breadth
,
length
and
heighth
as
the
other
Kitchin
was
;
and
that
the
said
Kitchin
all
times
after
the
re-edifying
of
it
,
he
had
sustained
and
maintained
,
and
well
repaired
,
and
demanded
Iudgment
,
&c.
upon
which
Plea
the
Plaintiff
did
demurr
in
Law
;
and
by
the
Court
,
the
Plea
were
a
good
Plea
if
it
were
in
an
Action
of
Waste
,
but
here
where
he
hath
by
his
own
Act
tied
himself
to
an
inconvenience
,
he
ought
at
his
perill
to
provide
for
it
:
And
here
it
was
said
,
That
if
the
Condition
be
impossible
the
Bond
is
single
:
contrary
,
where
a
man
is
charged
by
an
Act
in
Law.
CCXXXVIII
.
Bostwick
and
Bostwick
's
Case
.
Mich.
32
Eliz.
In
the
Common-Pleas
.
DOrothy
Bostwick
brought
Dower
against
Bostwick
an
Infant
,
M.
C.
and
by
his
last
Will
,
devised
two
parts
of
the
Premisses
to
his
Executors
,
during
the
non-age
of
his
heir
,
and
died
,
his
heir
within
age
;
after
whose
death
M.
C.
entred
into
the
third
part
,
descended
as
Guardian
in
Knight's-service
,
and
the
Executors
into
the
other
two
parts
,
upon
which
the
Demandant
brought
one
Writ
of
Dower
against
the
Guardian
,
to
be
endowed
of
the
third
part
;
and
another
Writ
of
Dower
against
the
heir
within
age
,
in
whom
the
Freehold
of
the
two
parts
was
;
The
heir
appearing
by
Attorney
,
pleaded
to
issue
,
which
was
found
for
the
Demandant
;
but
the
Iudgment
was
afterwards
reversed
,
because
the
heir
,
being
within
age
,
did
not
appear
by
Guardian
but
by
Attorney
;
for
which
cause
she
again
brought
a
Writ
of
Dower
against
the
heir
,
and
the
Sheriff
did
retorn
him
summoned
,
but
the
heir
made
default
;
for
which
cause
the
Court
was
moved
in
the
behalf
of
the
Demandant
,
to
have
the
aid
of
the
Court
in
this
Case
:
for
if
upon
default
of
the
Tenant
,
a
Grand
Cape
should
issue
forth
,
and
so
a
Recovery
by
default
should
follow
;
the
same
would
be
Error
:
which
see
6
H.
8.
Br.
Liver
.
Defaul
.
50.
And
therefore
it
was
prayed
,
that
some
person
be
appointed
Guardian
to
the
heir
,
who
may
appear
and
plead
for
him
,
for
otherwise
the
Demandant
is
at
great
mischief
;
for
the
Guardian
now
will
not
suffer
the
heir
to
appear
in
person
:
And
if
the
Widow
now
Demandant
should
stay
for
her
Dower
untill
the
heir
should
come
of
full
age
,
it
would
be
a
great
mischief
:
But
by
Walmesley
,
Periam
and
Windham
,
We
cannot
appoint
a
Guardian
to
the
heir
for
his
appearance
here
,
unless
the
heir
be
here
in
person
in
Court
before
us
;
and
he
was
appointed
to
be
brought
in
person
into
Court.
CCXXXIX
.
Sir
Anthony
Denny
's
Case
.
Mich.
32
Eliz.
In
the
Common-Pleas
.
SIR
Anthony
Denny
,
seised
in
Fee
of
the
Manor
of
Chessam
,
extending
into
Chessam
,
and
in
the
Town
of
Hertford
,
and
also
of
other
Lands
in
Hertford
,
by
his
last
Will
,
devised
the
Manor
of
Chessam
to
Henry
Denny
his
son
and
heir
in
tail
;
and
his
Lands
in
Hertford
,
to
Edward
Denny
his
younger
son
,
&c.
It
was
holden
by
Walmsley
,
Periam
and
Windham
,
(
absent
.
Anderson
)
That
the
younger
son
should
have
that
part
of
the
Manor
of
Chessam
,
which
lieth
in
the
Town
of
Hertford
.
Another
point
in
the
Case
was
,
That
upon
the
death
of
Sir
Anthony
,
and
Office
was
found
without
any
mention
of
this
Devise
;
for
which
cause
,
the
Queen
seised
,
and
leased
all
the
Lands
so
devised
to
a
stranger
,
during
the
minority
of
the
heir
;
The
heir
comes
of
full
age
,
and
hath
Livery
of
the
whole
,
and
without
any
express
entry
,
leaseth
the
Lands
for
years
,
rendring
Rent
;
the
Lessee
entreth
,
and
payeth
the
Rent
to
the
heir
,
the
heir
dieth
,
the
Lessee
assigns
over
his
term
,
and
the
Rent
is
yearly
paid
to
the
right
heir
of
Sir
Anthony
:
And
how
Edward
Denny
entred
,
and
per
Curiam
his
entry
is
lawfull
;
for
if
the
heir
entreth
in
this
Case
,
and
many
descents
follow
;
yet
the
Devisee
may
enter
at
any
time
,
for
his
entry
doth
not
make
any
abatement
or
wrong
,
but
may
well
stand
with
the
Devise
;
for
if
the
Devise
be
waved
,
or
the
Devise
doth
defer
the
execution
of
the
Devisee
;
CCXL
.
The
Case
of
the
Town
of
Leicester
for
Toll
.
Trin.
28
Eliz.
In
the
King's-Bench
.
ad
respondend
.
tam
pro
nobis
,
quam
,
&c.
and
no
exception
is
taken
to
it
:
Another
exception
,
The
Plaintiff
declares
,
That
Leicester
is
an
ancient
Town
,
and
ancient
Demesne
,
and
doth
not
shew
that
it
is
parcel
of
a
Manor
:
See
20
E.
3.
Ancient
Demes
.
25.
such
exception
is
taken
,
but
after
,
the
Defendant
pleads
,
That
all
such
Towns
,
whereof
the
Land
in
question
is
parcell
,
is
ancient
Demesne
;
and
such
plea
was
holden
good
:
See
30
E.
3.
12.
parcell
of
a
Manor
,
which
is
ancient
Demesne
;
and
the
Plaintiff
replied
,
Absque
hoc
,
that
it
is
parcell
of
the
Manor
:
Another
exception
,
That
Lands
holden
in
Socage
onely
,
and
no
other
ought
to
be
discharged
of
Toll
;
and
here
it
is
not
shewed
in
the
Declaration
,
that
the
place
where
,
&c.
is
holden
in
Socage
,
To
which
it
was
answered
,
That
the
same
needs
not
to
be
set
down
in
the
Declaration
;
for
that
is
implied
in
these
words
,
Ancient
Demesn
.
for
otherwise
it
cannot
be
but
Socage
Land
onely
,
and
of
no
other
Tenure
:
A
fourth
Exception
,
The
Letters
Patents
here
shewed
in
discharge
,
are
of
no
value
;
for
the
King
by
his
Letters
Patents
cannot
disinherit
any
one
,
Erg.
nor
discharge
one
of
Toll
wich
is
a
kind
of
disinheritance
;
To
which
it
was
said
,
That
the
Plaintiff
doth
not
declare
of
any
Grant
,
but
of
an
usage
or
custome
,
for
those
of
ancient
Demesn
;
and
farther
,
hath
commanded
by
the
said
Letters
Patents
,
that
such
customs
and
usages
should
hold
place
;
and
upon
the
custome
,
and
the
contempt
,
this
Action
is
grounded
:
A
fifth
exception
,
because
the
Plaintiff
hath
not
shewed
,
that
the
Toll
whereof
the
Plaintiff
hath
counted
,
was
concerning
things
for
provision
for
their
houses
,
manurance
of
their
lands
,
&c.
7
H.
4.
111.
In
an
Action
upon
the
Case
for
not
paying
of
Toll
,
The
Defendant
said
,
That
he
held
certain
lands
of
R.
Lord
of
the
Manor
of
H.
which
Manor
is
ancient
Demesn
,
of
which
Manor
all
the
Tenants
have
been
free
,
to
sell
or
buy
beasts
or
other
things
,
for
the
manurance
of
their
lands
,
and
maintenance
of
their
houses
,
without
paying
Toll
in
any
Market
or
Fair
,
&c.
And
so
justifies
,
that
he
came
to
the
same
Market
,
and
bought
certain
beasts
,
as
the
Plaintiff
had
declared
,
and
that
some
of
them
he
used
about
his
manurance
of
his
lands
,
and
some
of
them
he
put
into
pasture
to
make
them
fat
,
and
more
fit
to
be
sold
,
and
afterwards
,
he
sold
them
at
such
a
Fair
,
&c.
and
the
opinion
of
the
Court
was
with
the
Defendant
:
And
by
Godfrey
and
Coke
,
Such
Tenants
shall
be
discharged
of
Toll
,
not
onely
for
buying
of
things
which
concern
their
sustenance
,
provision
,
and
manurance
of
their
lands
,
but
also
for
all
things
bought
,
as
common
merchandizes
:
28
Ass.
ult
.
by
Thorp
,
Green
and
Seton
,
of
all
things
bought
by
any
for
his
own
use
,
they
shall
be
quit
of
Toll
:
and
then
,
If
the
privilege
of
Tenants
in
ancient
Demesn
,
shall
not
be
quit
of
Toll
,
but
for
things
bought
for
their
sustenance
,
provision
and
manurance
of
their
lands
,
they
have
no
more
favor
than
ordinary
Subjects
:
See
19
H.
6.66
.
Some
are
of
opinion
,
That
such
Tenants
shall
not
pay
Toll
for
things
sold
and
bought
,
coming
upon
their
lands
,
and
touching
their
sustenance
:
See
F.
N.
B.
228.
D.
such
Tenants
are
discharged
of
Toll
for
all
things
by
them
sold
and
bought
,
by
way
of
merchandize
;
as
also
of
things
of
necessity
,
as
sustenance
:
And
see
Crook
,
in
the
cases
of
Itiner
.
138.
he
conceives
,
that
such
Tenants
for
merchandizes
shall
pay
Toll
as
other
merchants
;
but
see
the
Writ
of
F.
N.
B.
228.
the
words
are
De
bonis
,
&
rebus
suis
,
And
Coke
said
,
That
he
had
found
the
reason
wherefore
such
Tenants
should
be
quit
of
Toll
throughout
the
Realm
,
in
an
ancient
Reading
,
viz.
That
all
the
lands
in
the
hands
of
Edw.
the
Confessor
and
Wil.
the
Conqueror
set
down
in
the
Book
of
Doomsday
were
ancient
Demesn
,
and
so
called
Terrae
Regis
,
and
they
were
to
provide
victuals
for
the
Kings
Garrisons
,
for
then
they
were
troublsome
times
;
and
for
those
causes
,
and
because
they
made
provisions
for
others
,
they
had
many
privileges
,
amongst
which
this
one
;
Ut
quietius
aratra
sua
exercerent
,
&
terram
excolerent
:
The
Lord
himself
,
in
ancient
Demesn
shall
not
have
such
privilege
,
for
his
Seignory
is
pleadable
at
the
Common
Law
:
Vid.
F.
N.
B.
228.
B.
And
he
said
,
That
the
Plaintiff
ought
to
alledge
,
that
his
lands
are
parcel
of
such
a
Manor
;
for
there
cannot
be
ancient
Demesn
,
if
there
be
not
a
Court
and
Suitors
,
&c.
And
he
granted
,
that
such
a
Town
might
be
ancient
Demesn
of
the
Crown
,
but
yet
they
shall
not
have
the
privileges
and
liberties
which
the
Tenants
in
ancient
Demesn
have
.
Towns
were
before
Manors
:
London
hath
the
name
of
ancient
Demesn
,
and
yet
they
have
not
such
liberties
,
nor
the
lands
in
it
pleadable
by
Writ
of
right
Close
.
7
H.
6.
31
,
32.
Shute
,
Iustice
,
was
of
opinion
,
That
an
Inhabitant
within
ancient
Demesn
,
although
he
be
not
Tenant
shall
have
the
privileges
:
See
for
that
,
F.
N.
B.
228.
B.
Tenants
at
will
in
ancient
Demesn
shall
be
discharged
of
Toll
,
as
well
as
Tenants
of
the
Freehold
for
life
,
or
for
years
,
37
H.
6.
27.
by
Moile
.
London
is
ancient
Demesn
;
for
they
prescribe
,
that
a
Villein
who
hath
there
dwelt
,
&c.
shall
not
be
taken
from
thence
by
Capias
,
or
Attachment
,
Billing
.
London
is
not
in
the
Book
of
Doomsday
.
Moile
,
They
make
their
Protestation
in
a
Writ
of
Right
Patent
.
Littleton
,
That
is
used
in
divers
places
,
and
at
this
day
in
Exeter
.
And
by
Clench
,
If
a
Tenant
in
ancient
Demesn
levyeth
a
Fine
of
his
lands
,
then
he
shall
not
have
the
privilege
,
untill
the
Fine
be
reversed
,
Quod
fuit
concessum
:
If
the
Lord
of
a
Manor
in
ancient
Demesn
,
purchaseth
all
the
Tenancies
,
the
whole
privilege
is
gone
,
which
Coke
denyed
.
The
Case
was
adjorned
.
CCXLI.
Lennard's
Case
.
Trin.
28
Eliz.
In
the
Common
Pleas.
William
Heydon
was
seised
of
the
lands
,
and
enfeoffed
him
:
And
upon
Ne
enfeoffa
pas
,
the
parties
were
at
issue
;
and
it
was
found
by
special
Verdict
,
That
the
said
William
Heydon
was
seised
,
and
leased
the
Lands
to
the
Defendant
for
years
;
and
afterwards
he
made
a
Deed
of
Feoffment
to
the
same
Lessee
of
the
same
Lands
in
Fee
,
by
the
words
of
Dedi
&
concessi
,
with
a
Letter
of
Attorney
within
the
said
Deed
,
to
make
Livery
to
the
Lessee
;
and
the
Deed
of
Feoffment
was
delivered
to
J.
to
deliver
the
same
to
the
said
Lessee
,
who
delivered
the
same
accordingly
:
The
Lessee
delivered
the
same
to
the
Attorney
named
in
the
Deed
,
who
made
Livery
accordingly
:
And
it
was
moved
by
the
Council
of
the
Plaintiff
,
That
upon
all
this
matter
,
here
is
not
any
Feoffment
:
And
by
Walmesly
,
Serjeant
,
This
Deed
so
delivered
took
its
effect
presently
as
a
confirmation
;
and
then
the
Livery
and
Seisin
comes
too
late
;
for
as
soon
as
the
said
Deed
was
delivered
to
the
Lessee
for
years
,
the
Law
gave
to
it
,
its
operation
to
this
effect
,
To
vest
the
Fee
and
the
Freehold
in
the
Lessee
by
way
of
confirmation
:
See
for
that
,
Littl.
532
,
533.
But
the
whole
Court
was
of
a
contrary
opinion
;
for
it
is
in
the
election
of
the
Lessee
to
take
the
Conveyance
as
a
Feoffment
,
or
as
a
confirmation
:
And
here
it
appeareth
upon
the
Deed
,
that
the
intent
of
both
parties
was
,
That
the
Lessee
should
take
by
way
of
Feoffment
,
and
not
of
confirmation
;
for
otherwise
,
to
what
use
should
be
a
Letter
of
Attorney
inserted
in
the
Deed
?
And
here
the
Lessee
hath
liberty
to
make
his
election
how
he
will
take
;
either
by
Feoffment
,
or
by
confirmation
,
which
election
he
hath
determined
by
the
acceptance
of
the
Livery
:
And
by
Anderson
,
If
tenant
in
tail
be
disseised
,
and
makes
a
Charter
of
Feoffment
,
and
delivers
the
same
to
the
Disseisor
,
who
delivers
the
same
to
the
Attorney
,
named
in
the
Charter
,
who
makes
Livery
accordingly
:
here
is
a
good
Feoffment
,
and
a
discontinuance
;
and
afterwards
,
after
many
motions
made
,
and
day
given
to
shew
cause
,
Iudgment
was
given
,
that
the
Plaintiff
should
be
barred
.
CCXLII.
Rooke
and
Denny
's
Case
.
Trin.
28
Eliz.
In
the
Common-Pleas
.
IN
an
Action
upon
the
Case
,
by
Rooke
against
Dennis
,
for
misusing
of
the
Plaintiff's
Horse
,
by
occasion
of
which
misuse
,
the
said
Horse
became
blind
of
one
eye
,
and
gall-back'd
.
The
Plaintiff
counted
,
That
the
said
Horse
was
stolen
by
three
Felons
,
after
whom
the
Plaintiff
made
fresh
suit
,
and
that
the
Felons
were
apprehended
,
and
attainted
at
his
suit
because
Iustice
Windham
:
CCXLIII
.
Pretiman
and
Cooke
's
Case
.
Hill.
29
Eliz.
In
the
King
's
Bench.
IN
Ejectione
firmae
,
The
Case
was
,
A.
A.
grants
,
Totum
statum
suum
,
both
the
Estates
pass
,
and
the
Grant
includes
the
whole
;
See
41
E.
3.
Fitz.
Br.
541.
In
Ravishment
of
Ward
,
supposing
the
ravishment
of
two
daughters
,
Quarum
maritagium
ad
ipsum
pertinet
,
and
it
was
challenged
,
because
he
doth
not
say
Maritagia
,
but
the
challenge
was
not
allowed
;
and
he
said
,
That
if
a
man
deviseth
his
land
wholly
to
A.
that
he
hath
a
Fee-simple
:
See
the
Case
,
H.
28
Eliz.
the
Case
between
Higham
and
Harwood
:
And
Coke
said
,
That
they
had
by
this
Devise
a
Fee-tail
,
with
a
Fee-simple
Expectant
,
each
of
them
severally
in
the
Messuage
to
them
limited
:
Golding
,
Each
of
the
Devisees
hath
an
Estate-tail
in
the
Messuage
,
to
them
devised
,
and
but
an
Estate
for
life
in
the
Messuage
which
is
to
accrue
upon
the
death
without
issue
,
&c.
For
no
Estate
is
limited
expresly
,
nor
what
Estate
the
survivor
shall
have
;
for
here
are
not
any
words
which
do
import
a
Fee-simple
,
as
(
according
to
Littleton
)
imperpetuum
;
or
to
do
what
he
will
with
,
&c.
See
for
that
22
E.
3.
ad
Terminum
qui
praeteriit
:
but
here
are
onely
bare
words
,
of
which
no
farther
construction
can
be
made
,
but
for
life
:
And
as
to
the
words
,
Totam
illam
partem
,
the
same
doth
not
extend
farther
,
than
if
he
said
,
Partem
suam
:
And
he
said
,
that
nothing
vests
in
him
who
survives
;
for
there
ought
to
be
two
to
take
by
the
survivor
,
or
otherwise
nothing
shall
accrue
to
the
survivor
;
for
the
words
of
the
Devise
are
aequaliter
inter
eos
dividend
and
that
which
accrues
by
survivor
shall
be
divided
betwixt
two
,
otherwise
nothing
shall
accrue
.
And
if
it
cannot
survive
to
two
,
then
it
shall
descend
to
the
issue
of
the
sister
who
is
dead
,
and
to
the
surviving
daughter
,
and
they
shall
be
tenants
in
common
,
and
not
joint-tenants
.
Clench
,
These
words
,
Totam
illam
partem
,
go
onely
to
the
house
,
and
not
to
the
Estate
in
it
,
which
Shute
granted
:
If
both
the
daughters
had
survived
Robert
,
they
should
have
Fee
in
the
house
of
Robert
not
by
the
Will
,
but
by
descent
;
and
this
Devise
shall
not
take
effect
otherwise
,
and
the
Devise
as
to
that
is
void
,
and
then
the
Common
Law
shall
hold
place
,
and
that
is
,
to
descend
to
the
issue
of
the
one
sister
,
and
the
surviving
sister
:
And
here
the
survivor
hath
but
an
Estate
for
life
in
the
house
of
Robert
,
and
then
by
the
death
of
Robert
,
the
Fee-simple
accruing
to
the
surviving
sister
,
the
moyety
of
her
Estate
for
life
is
extinct
.
And
if
one
of
the
daughters
had
died
without
issue
before
Robert
,
the
house
of
such
daughter
had
come
to
Robert
and
the
other
sister
,
as
coparceners
;
for
the
son
is
to
have
all
the
Fee
,
and
a
moyety
of
the
same
executed
,
and
a
moyety
expectant
,
and
the
other
sister
should
have
a
moyety
for
life
,
and
so
the
Devise
not
void
.
And
afterwards
Iudgment
was
given
against
the
husband
of
the
surviving
daughter
.
CCXLIV
.
Hurlston
's
Case
.
Hill.
29
Eliz.
In
the
King
's
Bench.
Writ
of
Error
against
the
Queen
,
upon
a
Iudgment
given
for
the
Queen
,
in
the
County
Palatine
of
Chester
;
It
was
moved
by
Gawdy
,
the
Queens
Serjeant
,
that
the
Writ
did
not
lye
;
for
he
ought
to
sue
to
the
Queen
by
Petition
,
which
see
23
E.
3.
22.
A
Writ
of
Error
cannot
be
granted
,
Absque
speciali
gratia
Dom.
Regis
:
See
also
22
E.
3.
3.
And
the
case
was
,
That
Iudgment
was
given
for
the
Queen
in
a
Scire
facias
,
to
reverse
the
Patent
of
the
Constableship
of
the
Castle
of
Chester
,
and
by
him
in
Chester
,
there
are
many
Courts
;
King's-Bench
,
Common-Pleas
,
Exchequer
,
Chancery
:
And
here
a
Iudgment
or
Decree
in
the
Chancery
cannot
be
reversed
,
but
by
Parliament
;
and
so
he
conceived
of
a
Iudgment
given
in
the
Chancery
at
Chester
,
and
it
cannot
be
reversed
in
the
King's-Bench
:
Also
they
have
a
custome
in
Chester
,
that
they
may
reverse
within
certain
Months
the
Iudgment
before
.
Clench
,
There
needs
no
Petition
,
for
both
the
Patentees
claim
from
the
Queen
;
and
whether
there
be
Error
or
not
,
the
Queen
is
not
prejudiced
:
Coke
,
There
needs
no
Petition
,
for
it
is
now
past
,
for
the
Queens
Attorney's
hand
is
to
it
;
11
Eliz.
In
one
Haunce's
case
,
a
Writ
of
Error
was
brought
against
the
Queen
,
and
they
were
compelled
to
sue
to
the
Queen
by
Petition
:
Coke
,
In
the
Exchequer
,
If
an
erronious
Iudgment
be
given
for
the
Queen
in
a
Bill
of
Intrusion
,
the
party
shall
have
a
Writ
of
Error
against
the
Queen
without
any
Petition
.
It
was
the
case
of
one
Eliz.
Mordant
,
15
Eliz.
she
brought
a
Writ
of
Error
to
reverse
a
Fine
,
levyed
by
her
,
during
her
minority
,
against
the
Queen
,
and
the
proceeding
in
it
was
stayed
,
because
she
had
not
sued
to
the
Queen
by
Petition
first
:
Wray
,
Many
Outlawries
have
been
reversed
by
Error
without
any
Petition
,
and
yet
in
such
case
the
Queen
hath
an
immediate
interest
.
CCXLV
.
Gomersall
and
Gomersall
's
Case
.
Mich.
29
Eliz.
In
the
King
's
Bench.
IN
an
Account
,
The
Plaintiff
charged
the
Defendant
as
Bailiff
of
his
Shop
,
Curam
habens
,
&
administrationem
bonorum
:
The
Defendant
answered
to
the
goods
onely
,
and
said
nothing
to
the
Shop
:
Tanfield
moved
the
same
matter
for
Error
in
arrest
of
Iudgment
:
As
14.
H.
4.
309
,
310.
One
charged
another
as
Bailiff
of
his
house
,
Et
curam
habens
bonorum
in
eo
existen
.
the
traverse
was
,
That
he
was
not
Bailiff
of
the
house
,
Pro
ut
:
that
is
good
,
and
goeth
to
all
,
but
he
cannot
answer
to
the
goods
,
and
say
nothing
to
the
house
:
See
49
E.
3.
7.
Br.
Accomp
.
21.
A
man
brought
an
Accompt
against
one
as
Bailiff
of
his
Manor
,
Habens
curam
of
twenty
Oxen
and
Cows
,
and
certain
quarters
of
Corn
:
And
by
Belknap
,
If
he
have
the
Manor
and
no
goods
,
yet
he
shall
accompt
for
the
Manor
,
and
it
shall
be
no
Plea
,
to
say
that
the
Plaintiff
sold
him
the
goods
without
traversing
,
without
that
,
that
he
was
his
Bailiff
to
accompt
render
:
And
as
to
the
Manor
,
he
may
say
,
that
the
Plaintiff
leased
the
same
to
himself
for
years
,
without
that
,
that
he
was
his
Bailiff
:
Another
exception
was
taken
by
him
,
That
the
Plaintiff
chargeth
him
with
moneys
,
Ad
merchandizandum
;
And
he
traverseth
,
that
he
was
not
his
Receivor
denarior
.
ad
computandum
pro
ut
:
and
so
he
doth
not
meet
with
the
Plaintiff
,
and
so
it
is
no
issue
.
And
it
is
not
helped
by
the
Statute
of
Jeofailes
,
32
H.
8.
but
mis-joining
of
issue
is
helped
by
that
Statute
,
19
Eliz.
W.
an
Attorney
of
the
Common-Pleas
,
did
charge
another
Attorney
of
the
same
Court
,
with
a
Covenant
to
have
three
years
board
in
marriage
with
the
Defendant's
daughter
;
and
he
pleaded
that
he
did
not
promise
two
years
board
,
and
so
issue
was
joined
and
tried
,
and
the
same
could
not
be
helped
by
the
Statute
,
because
it
was
no
issue
,
and
did
not
meet
with
the
Plaintiff
:
So
if
one
charge
in
the
Debet
&
detinet
,
and
he
answers
to
the
Detinet
onely
,
it
is
no
issue
;
and
therefore
it
is
not
helped
by
the
Statute
.
In
29
H.
6.
in
trespass
for
entring
into
his
house
,
and
taking
of
his
goods
,
the
Defendant
pleaded
,
Non
intravit
,
and
the
issue
was
tried
,
and
damages
given
;
and
because
the
taking
of
the
goods
was
not
also
in
issue
,
all
was
void
,
4
E.
3.
One
shall
not
accompt
by
parcels
,
because
the
Action
is
intire
:
See
3
E.
3.
8.
and
Book
of
Entries
,
202.
A
Precedent
,
14
H.
7.
That
the
Verdict
was
not
full
,
and
did
not
go
to
the
whole
,
and
therefore
was
void
.
Hele
,
Serjeant
,
contrary
:
And
as
to
the
first
point
he
said
,
That
there
is
a
Case
in
9
E.
3.
Accompt
.
35.
where
the
Plaintiff
chargeth
the
Defendant
in
accompt
as
Bailiff
of
his
house
,
and
that
he
had
the
administration
of
his
goods
;
viz.
Forty
sacks
of
wooll
;
and
upon
issue
joined
,
the
Iury
found
,
that
he
was
not
Bailiff
of
his
house
;
but
they
farther
find
,
that
he
had
received
the
forty
sacks
of
wooll
,
to
render
accompt
of
the
same
;
and
the
Plaintiff
in
that
Case
had
Iudgment
for
the
sacks
of
wooll
;
although
there
was
no
Verdict
found
for
the
house
:
See
5
H.
7.
24.
Where
if
a
Iury
be
charged
with
several
issues
,
and
the
one
of
the
issues
is
found
,
and
the
other
not
;
that
the
same
makes
no
discontinuance
:
or
if
one
of
the
issues
be
discontinued
,
yet
it
is
no
discontinuance
as
to
the
whole
.
But
admit
the
same
be
not
helped
by
the
Common
Law
,
yet
he
said
it
is
helped
by
the
Statute
of
32
H.
8.
of
Jeofailes
;
which
is
,
Non
obstant
.
discontinuance
or
miscontinuance
.
Daniel
,
to
the
same
purpose
:
And
he
said
that
the
Books
before
cited
of
14
H.
4.
and
49
E.
3.
are
not
ruled
,
nor
the
Cases
there
adjudged
;
in
the
one
Book
the
Defendant
pleaded
,
That
the
Plaintiff
gave
the
goods
unto
him
,
and
in
the
other
Book
,
that
he
sold
the
said
goods
unto
him
,
and
demanded
Iudgment
of
the
Action
:
And
he
said
,
That
it
is
no
good
answer
;
for
they
are
Pleas
onely
before
the
Auditors
,
and
not
in
an
Action
upon
Accompt
:
and
farther
he
said
,
That
although
the
Verdict
be
found
but
for
part
,
yet
it
is
good
;
for
no
damages
are
to
be
recovered
in
an
Accompt
:
In
trespass
,
it
is
true
,
if
one
issue
be
found
,
and
not
the
other
,
and
joint-damages
be
given
;
the
Verdict
is
not
good
for
any
part
,
but
if
several
damages
be
given
,
then
it
is
good
,
as
it
is
ruled
in
21
H.
6.
Coke
,
26
H.
8.
is
,
That
the
Plaintiff
cannot
declare
generally
of
an
house
,
Curam
habens
,
&
administrationem
bonorum
;
but
he
must
farther
say
:
Twenty
quarters
of
Corn
,
or
the
like
,
&c.
In
the
principal
Case
,
it
is
a
joint-charge
and
but
one
for
the
shop
and
goods
;
and
he
answers
unto
one
onely
,
but
he
ought
to
answer
to
all
,
or
else
it
is
no
answer
at
all
.
But
Coke
found
out
another
thing
,
viz.
That
there
is
a
thing
put
in
issue
which
is
not
in
the
Verdict
,
nor
found
,
nor
touched
in
the
Verdict
,
and
that
was
the
Verdict
of
all
which
is
found
not
to
be
good
,
and
it
is
not
helped
by
the
Statute
of
32
H.
8.
of
Jeofailes
.
I
grant
,
that
discontinuances
are
helped
by
the
Statute
of
32
H.
8.
but
imperfect
Verdicts
are
not
helped
thereby
:
Exchequer
Chamber
,
and
it
was
Brache's
Case
:
An
information
was
against
Brache
,
for
entring
into
a
house
,
and
an
hundred
Acres
of
Lands
in
Stepney
;
He
pleaded
,
not
guilty
,
The
Iury
found
him
guilty
for
the
hundred
acres
,
but
said
nothing
as
to
the
house
;
upon
which
a
Writ
of
Error
was
brought
,
and
Iudgment
was
reversed
:
and
he
said
,
it
was
not
a
discontinuance
,
but
no
verdict
for
part
.
Daniel
,
That
was
the
default
of
the
Clerks
who
did
not
enter
it
,
and
it
hath
been
the
usage
to
amend
the
defaults
done
by
the
Clerks
in
another
Term
:
All
the
Iustices
said
,
That
is
true
,
if
the
Postea
be
brought
in
and
not
entred
;
but
here
it
is
entred
in
the
Roll
in
this
form
.
Daniel
,
Where
I
charge
one
in
Accompt
with
so
much
by
the
hands
of
such
a
one
,
and
so
much
by
the
hands
of
such
a
one
,
although
there
be
but
one
Absque
hoc
to
them
all
,
yet
they
are
as
several
issues
.
The
Court
answered
,
Not
so
,
unless
there
be
several
issues
joined
to
every
one
of
them
.
But
by
Gawdy
,
Iustice
,
If
there
be
several
issues
,
and
the
one
be
found
,
and
the
other
not
,
no
Iudgment
shall
be
given
:
Clench
,
Iustice
,
In
the
principal
Case
,
It
is
not
a
charge
of
the
goods
,
but
in
respect
of
the
shop
,
therefore
that
ought
to
be
traversed
:
Shute
,
Iustice
,
The
Traverse
of
the
shop
alone
is
not
good
:
Egerton
the
Queen's
Solicitor
said
,
That
the
Books
might
be
reconciled
,
and
that
there
needed
not
a
Traverse
to
the
goods
,
for
the
Traverse
of
the
shop
,
Prout
,
is
an
answer
to
all
:
But
now
he
takes
issue
upon
the
goods
onely
,
which
issue
is
not
warranted
by
the
Declaration
;
and
he
said
,
That
if
one
charge
me
as
Bailiff
of
his
goods
,
ad
Merchandizandum
,
I
shall
answer
for
the
increase
,
and
shall
be
punished
for
my
negligence
;
But
if
he
charge
me
as
his
Receiver
,
ad
computandum
,
I
shall
not
be
answerable
,
but
for
the
bare
money
,
or
thing
which
was
delivered
.
CCXLVI
.
Mich.
29
Eliz.
In
the
Common-Pleas
.
J.
S.
The
Plaintiff
by
Replication
saith
,
That
the
Defendant
prest
his
Cattel
of
his
own
wrong
,
Absque
hoc
,
that
he
is
Bailiff
to
J.
S.
And
by
Anderson
,
Periam
concessit
,
and
also
Rhodes
.
A.
distrains
,
and
being
asked
for
what
cause
he
distrains
,
and
he
assigns
a
cause
which
is
not
sufficient
,
and
afterwards
an
Action
is
brought
against
him
,
CCXLVII.
Mich.
29
Eliz.
In
the
Common-Pleas
.
THE
Case
was
,
That
the
Queen
gave
Lands
in
tail
to
hold
in
Capite
,
and
afterwards
granted
the
Reversion
:
Windham
,
In
this
Case
the
Tenure
is
not
incident
to
the
Reversion
,
but
is
in
respect
of
the
person
;
and
therefore
the
Tenure
in
Capite
doth
remain
;
and
the
Donee
shall
hold
of
the
Queen
as
in
gross
:
And
also
the
Grantee
of
the
Reversion
,
shall
hold
of
the
Queen
in
Capite
;
and
so
two
Tenures
in
Capite
for
the
same
Lands
:
See
30
H.
8.
Dyer
45.
If
the
Queen
in
this
cause
had
reserved
a
Rent
upon
the
Gift
in
tail
,
the
same
should
go
with
the
Reversion
.
CCXLVIII
.
Dighton
and
Clark
's
Case
.
Mich.
29
Eliz.
In
the
King's-Bench
.
DIghton
brought
Debt
upon
a
Bond
,
the
Condition
of
which
was
,
That
whereas
the
Plaintiff
was
in
quiet
possession
of
such
lands
,
If
now
neither
J.
S.
nor
J.
B.
nor
J.
G.
did
not
disturb
the
Plaintiff
in
his
possession
of
the
said
lands
by
any
indirect
means
,
but
by
due
course
of
Law
,
That
then
,
&c.
that
Defendant
pleaded
,
That
neither
J.
S.
nor
J.
D.
or
J.
G.
did
disturb
the
Plaintiff
by
any
indirect
means
,
but
by
due
course
of
Law
;
upon
which
there
was
a
demurrer
.
Godfrey
,
The
Plea
in
Bar
is
not
good
;
for
there
is
a
Negativa
pregnans
,
(
scil.
)
a
Negative
which
implies
an
Affirmative
:
See
21
H.
6.9
.
In
a
Writ
of
Entry
,
Sur
Disseisin
,
the
Defendant
saith
,
That
the
Demandant
by
his
Deed
,
after
the
Darrein
continuance
,
did
confirm
and
ratifie
the
possession
of
the
Tenant
,
&c.
The
Demandant
said
,
Not
his
Deed
after
the
Darrein
continuance
;
and
the
same
was
holden
to
be
,
Negativa
pregnans
;
See
more
there
,
and
see
also
5
H.
7.
7.
And
see
farther
,
39
H.
6.
8
,
9.
Another
Exception
was
taken
to
the
Plea
in
Bar
,
because
he
hath
pleaded
,
That
neque
J.
S.
neque
J.
D.
neque
J.
G.
had
disturbed
the
Demandant
by
any
indirect
means
,
but
onely
by
due
course
of
Law
;
and
that
issue
cannot
be
tried
;
not
by
the
Countrey
,
for
they
cannot
know
what
is
a
due
course
of
Law
;
and
by
the
Court
it
cannot
be
tried
,
for
the
Defendant
hath
not
certainly
shewed
by
what
due
course
of
Law
the
Demandant
hath
been
disturbed
,
which
see
22
E.
4.
40
,
41
,
&c.
The
Lord
Lisle's
Case
.
In
Debt
upon
a
Bond
,
the
Condition
was
,
That
if
the
Defendant
before
such
a
day
,
or
any
other
for
him
,
and
in
his
name
,
come
to
B.
and
there
shew
unto
the
Plaintiff
,
or
one
of
his
Council
,
by
him
assigned
,
a
sufficient
and
lawfull
discharge
of
an
annual
Rent
which
the
Plaintiff
claims
out
of
two
houses
of
the
Defendant
in
B.
aforesaid
,
That
then
the
said
Bond
shall
be
void
;
and
the
Defendant
said
,
That
he
at
the
day
assigned
,
contained
in
the
Condition
,
that
A.
and
B.
by
assignment
of
the
Defendant
came
to
B.
and
tendred
to
shew
to
N.
and
W.
of
the
Plaintiff's
Council
,
a
sufficient
discharge
of
the
said
annual
Rent
,
and
that
they
did
refuse
to
see
it
,
upon
which
there
was
a
demurrer
in
Law
:
and
Iudgment
was
given
for
the
Plaintiff
,
and
that
the
Plea
was
no
Plea
;
for
the
Defendant
ought
to
have
shewed
in
his
Plea
,
what
manner
of
discharge
he
would
have
shewed
,
as
a
release
,
unity
of
possession
,
&c.
But
as
the
Case
is
here
;
If
the
Plaintiff
shall
traverse
the
Plea
in
Bar
,
the
issue
joined
upon
it
cannot
be
tried
,
for
the
Iury
cannot
know
which
is
a
lawfull
and
sufficient
discharge
,
but
the
same
shall
be
tried
by
the
Court
;
for
if
the
Defendant
had
tendered
to
the
Plaintiff
a
discharge
by
unity
of
possession
,
the
Iury
cannot
know
if
it
be
a
sufficient
discharge
:
and
as
the
Plea
is
here
,
he
hath
not
shewed
what
discharge
he
would
have
shewed
to
the
said
Council
;
and
therefore
we
cannot
judge
of
the
same
:
If
one
be
bound
to
plead
a
sufficient
Plea
before
such
a
day
,
in
such
a
Court
,
in
such
an
Action
,
it
is
not
sufficient
that
he
hath
pleaded
a
sufficient
Plea
,
but
he
ought
to
shew
what
Plea
he
hath
pleaded
,
otherwise
the
Court
cannot
judge
if
the
Plea
be
sufficient
or
not
:
Vid.
35
H.
6.
19.
and
37
H.
8.
Br.
Cand.
16.
where
a
man
will
plead
that
he
hath
saved
the
party
harmless
,
he
ought
to
shew
how
.
Shute
,
Iustice
,
and
Clench
,
Iustice
,
If
the
Defendant
had
pleaded
,
not
disturbed
by
any
indirect
means
,
such
a
Plea
had
been
good
enough
:
Gawdy
,
Iustice
,
If
he
had
pleaded
,
not
disturbed
contra
formam
Conditionis
praed
.
it
had
been
a
good
Plea
;
In
a
Writ
of
Entry
,
Ne
entra
pas
,
contra
formam
Statuti
,
He
did
not
alien
within
age
,
is
a
Negative
pregnant
:
but
the
party
may
say
,
he
did
not
alien
,
Modo
&
forma
;
all
the
part
to
this
Plea
which
comes
after
the
But
,
is
surplusage
,
and
Negation
:
Gawdy
,
It
is
a
Plea
which
is
pleaded
with
all
the
words
of
the
Condition
intirely
.
Clench
,
The
Case
put
by
Godfrey
,
22
E.
4.
differs
from
the
Case
at
Bar
:
For
there
he
pleaded
all
in
the
affirmative
,
therefore
in
such
a
Case
he
ought
to
plead
specially
;
but
in
the
Case
at
Bar
all
is
in
the
Negative
,
in
which
Case
such
special
pleading
is
not
necessary
.
If
I
be
bounden
that
I
shall
not
go
out
of
Westminster-hall
untill
night
,
but
tarry
in
the
Hall
till
night
,
In
an
Action
against
me
upon
that
Bond
,
I
may
plead
in
iisdem
verbis
:
If
I
be
bound
upon
Condition
,
That
I
will
not
return
to
Serjeant's-Inn
the
direct
way
,
but
by
St.
Giles
,
I
shall
plead
,
in
totidem
verbis
:
Godfrey
,
I
agree
those
Cases
,
for
the
matter
which
comes
after
the
But
,
is
triable
by
the
Countrey
,
but
so
it
is
not
in
the
principal
Case
:
Clench
,
But
is
but
a
word
of
surplusage
,
and
if
that
,
and
all
which
follows
had
been
left
out
,
it
had
been
well
enough
.
It
was
adjourned
.
CCXLIX
.
Courtney
and
Kelloway
's
Case
.
Mich.
26
Eliz.
In
the
Common-Pleas
.
COurtney
brought
an
Action
upon
the
Statute
of
5
Eliz.
concerning
Perjury
,
against
Kelloway
,
and
declared
,
That
where
Sir
Gawen
Carew
had
heretofore
brought
an
Action
upon
the
Case
against
the
now
Plaintiff
for
slanderous
words
,
viz.
because
that
the
said
now
Plaintiff
had
affirmed
,
that
the
said
Sir
Gawen
had
had
the
Pocks
,
To
which
Declaration
,
the
now
Plaintiff
had
pleaded
,
that
Kelloway
,
the
now
Defendant
,
reported
to
the
said
now
Plaintiff
,
That
he
himself
,
i.
e.
Kelloway
,
had
heretofore
healed
the
said
Sir
Gawen
of
the
Pocks
,
Absque
hoc
,
that
he
spake
them
simply
of
his
own
head
;
upon
which
they
were
at
issue
,
and
the
said
Kelloway
was
produced
as
a
witness
on
the
part
of
the
said
Courtney
;
and
the
said
Kelloway
,
upon
his
oath
,
deposed
at
the
Trial
of
the
said
issue
,
That
he
never
had
reported
to
the
now
Plaintiff
,
That
he
himself
had
healed
the
said
Sir
Gawen
of
the
Pocks
;
for
which
the
Iury
found
for
Gawen
,
and
also
assessed
greater
damages
in
respect
that
they
found
,
That
Courtney
spake
the
said
words
of
his
own
head
,
&c.
and
not
of
the
report
of
Kelloway
.
It
was
the
opinion
of
the
whole
Court
,
that
the
now
Plaintiff
should
have
this
Action
;
For
notwithstanding
that
that
oath
doth
not
trench
much
unto
the
proof
or
disproof
of
the
issue
,
yet
because
that
by
reason
of
the
oath
the
Iury
have
aggravated
the
damages
,
the
Action
doth
lie
,
as
in
case
of
Trespass
of
breaking
his
Close
,
and
spoiling
his
grass
,
the
Defendant
pleads
,
Not
guilty
;
and
at
the
trial
of
the
issue
a
witness
is
produced
on
the
Plaintiff's
part
,
who
deposeth
upon
his
oath
,
That
the
Land
where
,
&c.
was
so
rich
in
grass
,
that
it
was
ready
to
be
mowed
whereas
in
truth
none
,
or
very
little
grass
was
there
growing
,
yet
if
the
Iury
find
upon
other
evidence
the
Defendant
guilty
,
it
is
an
occasion
to
induce
the
Iury
to
tax
the
greater
damages
:
all
which
the
Court
granted
.
CCL
.
Holland
and
Drake
's
Case
.
Mich.
26
Eliz.
In
the
Common
Pleas.
IN
an
Ejectione
firmae
,
brought
by
Holland
against
Drake
,
and
five
others
;
Drake
pleaded
,
Not
guilty
;
the
other
five
,
Quoad
20
acres
,
pleaded
Not
guilty
also
;
and
as
to
the
residue
,
that
long
time
before
that
,
Andrews
(
Lessor
of
the
Plaintiff
)
had
any
thing
in
the
land
;
That
Hen.
Lord
Cromwel
was
seised
,
and
leased
the
same
to
them
for
two
years
,
and
afterwards
granted
the
Reversion
to
Andrews
,
to
whom
they
attorned
;
Andrews
within
the
said
term
,
entred
upon
them
,
and
leased
to
the
Plaintiff
upon
whom
they
re-entred
,
as
was
lawfull
for
them
to
do
,
The
Plaintiff
by
Replication
,
said
,
That
long
time
before
the
said
Lord
Cromwel
had
any
thing
,
&c.
Andrews
himself
was
seised
,
untill
by
the
said
Lord
Cromwel
disseised
,
and
leased
to
the
Defendants
,
Ut
supra
,
and
granted
the
Reversion
to
the
said
Andrews
with
attornment
,
who
entred
,
and
leased
to
the
Plaintiff
,
who
entred
,
and
was
possessed
,
untill
by
the
said
Defendants
ejected
,
Modo
&
forma
,
pro
ut
,
&c.
And
upon
this
Replication
,
the
said
five
Defendants
did
demur
in
Law.
It
was
argued
,
That
the
Plaintiff
in
his
Replication
,
hath
departed
from
his
Declaration
;
for
by
his
Declaration
,
he
hath
supposed
himself
to
be
ejected
by
all
the
six
Defendants
;
and
in
the
Replication
he
saith
,
That
he
was
possessed
untill
by
the
said
five
Defendants
,
who
plead
in
Bar
he
was
ejected
;
so
he
hath
departed
from
his
Declaration
in
the
number
of
the
Ejectors
;
for
he
ought
to
have
said
,
untill
he
by
the
said
five
,
and
also
by
the
said
Drake
was
ejected
:
as
12
E.
4.
6.
in
trespass
upon
Entry
upon
the
Statute
of
5
R.
2.
against
J.
and
E.
J.
died
pendant
the
Writ
,
and
E.
pleaded
in
Bar
,
and
the
Plaintiff
did
reply
and
conclude
,
and
so
was
he
seised
untill
the
said
E.
Simul
cum
dicto
:
J.
named
in
the
Writ
,
entred
upon
the
Plaintiff
,
&c.
But
the
opinion
of
the
whole
Court
was
clear
to
the
contrary
;
for
here
in
the
case
at
Bar
,
Drake
,
by
his
several
issue
,
which
he
hath
joyned
with
the
Plaintiff
,
upon
Not
guilty
,
is
severed
from
the
other
five
Defendants
;
and
then
when
they
plead
in
Bar
,
The
Plaintiff
ought
to
reply
to
them
without
meddling
with
Drake
,
who
upon
his
several
Plea
,
and
issue
joyned
upon
it
,
is
a
stranger
to
them
;
as
if
the
said
five
had
been
the
onely
Defendants
:
But
if
he
had
not
replyed
to
Drake
,
as
if
Drake
had
made
default
,
or
had
died
after
the
Writ
brought
;
as
in
the
case
before
cited
of
28
E.
4.
there
he
ought
to
have
replyed
,
as
it
is
objected
:
So
in
an
Ejectione
firmae
of
twenty
acres
,
The
Defendant
,
as
to
ten
acres
pleads
,
Not
guilty
;
upon
which
they
are
at
issue
;
and
the
Plaintiff
replies
,
and
says
,
as
to
the
other
ten
acres
,
and
so
was
he
possessed
,
untill
by
the
Defendant
of
the
said
ten
acres
he
was
ejected
;
this
is
good
without
speaking
of
the
other
ten
acres
,
upon
which
the
general
issue
is
joyned
.
And
the
Court
was
ready
to
have
given
Iudgment
for
the
Plaintiff
;
but
they
looked
upon
the
Record
,
and
seeing
that
one
issue
in
this
Action
was
to
be
tryed
between
the
Plaintiff
and
the
said
Drake
:
And
although
the
Plaintiff
offered
to
release
his
damages
,
and
the
issue
joyned
,
and
to
have
Iudgment
against
the
five
Defendants
who
had
demurred
;
Ejectione
firmae
,
in
which
Case
the
possession
of
the
land
is
to
be
recovered
;
and
it
may
be
,
for
any
thing
that
appeareth
,
That
Drake
,
who
hath
pleaded
the
general
issue
,
hath
Title
to
the
land
,
&c.
But
if
this
Action
had
been
an
Action
of
Trespass
,
there
in
such
case
,
Ut
supra
,
upon
release
of
damages
,
and
the
issue
joyned
,
the
Plaintiff
should
have
Iudgment
presently
.
CCLI
.
French
's
Case
.
Mich.
26
Eliz.
In
the
King
's
Bench.
IT
was
presented
before
the
Coroner
,
That
John
French
was
,
Felo
de
se
,
and
that
certain
goods
of
the
said
John
French
,
were
in
the
possession
of
J.
S.
and
this
presentment
was
certified
into
the
King's
Bench
;
upon
which
Process
issued
forth
against
the
said
J.
S.
and
continued
untill
he
was
Outlawed
.
And
now
came
J.
S.
and
cast
in
his
Writ
of
Error
,
to
reverse
the
said
Outlawry
,
and
assigned
for
Error
,
because
that
in
the
presentment
upon
which
he
was
Outlawed
,
there
is
not
any
addition
given
to
the
said
J.
S.
And
at
the
first
,
it
was
doubted
;
If
upon
that
presentment
Process
of
Outlawry
did
lye
:
and
Ive
,
one
of
the
chief
Clerks
of
the
Crown-Office
,
said
to
the
Court
,
That
such
Process
in
such
case
did
lye
;
and
that
he
could
shew
five
hundred
precedents
to
that
purpose
.
Another
matter
was
moved
upon
the
Statute
of
1
H.
5.
5.
of
Additions
:
If
this
Outlawry
by
the
Statute
aforesaid
,
ought
to
be
reversed
by
default
of
Addition
;
for
as
much
as
the
said
Statute
speaks
onely
of
Outlawries
upon
original
Writs
in
personal
Actions
,
Appeals
and
Indictments
;
But
it
was
agreed
by
the
whole
Court
,
That
as
to
this
purpose
,
the
presentment
should
be
accounted
in
Law
as
an
Indictment
,
and
afterwards
the
Outlawry
against
French
was
reversed
.
CCLII
.
Mich.
26
Eliz.
In
the
King
's
Bench.
A
Lease
for
thirty
years
was
made
by
Husband
and
Wife
,
if
they
so
long
should
live
,
and
if
they
die
,
&c.
That
the
land
should
remain
to
A.
their
son
,
during
the
term
aforesaid
.
And
it
was
holden
by
Wray
,
Iustice
,
That
if
the
Husband
and
Wife
do
die
within
the
term
,
that
the
son
should
have
the
land
,
De
novo
for
thirty
years
:
But
Gawdy
was
of
opinion
,
that
he
shall
have
it
for
so
many
years
,
which
after
their
death
should
be
expired
.
CCLIII
.
Cooper
's
Case
.
Mich.
26
Eliz.
In
the
King
's
Bench.
IN
an
Ejectionefirmae
,
The
Case
was
,
That
the
Husband
and
Wife
had
right
to
enter
into
certain
lands
in
the
right
of
the
wife
;
and
a
Deed
of
Lease
for
years
is
written
in
the
name
of
the
Husband
and
Wife
,
to
one
A.
for
to
try
the
Title
;
and
also
a
Letter
of
Attorney
to
B.
to
enter
into
the
land
,
and
to
deliver
the
said
Deed
of
Lease
to
the
said
A.
in
the
name
of
the
Husband
and
Wife
,
Ejectione
firmae
,
and
the
whole
matter
aforesaid
was
found
by
special
Verdict
;
and
the
Plaintiff
had
Iudgment
to
recover
,
for
the
special
matter
found
by
Verdict
,
i.
e.
the
Deed
of
Lease
,
and
the
Letter
of
Attorney
,
do
maintain
the
Declaration
well
enough
;
and
here
is
a
Lease
made
by
Husband
and
Wife
,
according
to
that
,
the
Plaintiff
hath
declared
.
CCLIV
.
Mich.
29
Eliz.
In
the
King's-Bench
.
IN
an
Action
of
Trespass
for
breaking
of
the
Plaintiff's
Close
,
F.N.
B.
86
and
87.
Quare
clausum
fregit
,
&
20
Cuniculos
cepit
:
Against
a
stranger
he
may
have
an
Action
,
but
not
against
the
commoner
,
because
he
hath
wrong
in
his
common
by
the
feeding
of
the
Conies
there
;
for
although
he
hath
not
an
interest
in
the
soil
,
yet
he
hath
an
interest
in
the
profits
of
it
,
and
a
commoner
may
distrain
the
beasts
of
him
who
hath
not
right
of
common
for
damage-feasance
,
as
the
books
are
,
4
H.
7.
3.
15
H.
7.
15.
and
there
the
commoner
hath
not
any
remedy
,
if
he
cannot
enter
and
kill
the
Conies
,
for
he
cannot
take
them
damage-feasance
,
nor
can
impound
them
;
for
no
Replevin
lyeth
of
them
:
if
the
owner
of
the
soil
ploweth
the
lands
,
yet
the
commoner
may
put
in
his
cattel
,
claiming
his
common
,
and
he
may
well
justifie
the
same
,
because
the
wrong
beginneth
in
the
owner
of
the
soil
.
At
another
day
,
the
Case
was
moved
again
;
and
then
it
was
argued
by
Coke
,
and
he
said
,
The
point
is
;
Whether
a
commoner
having
common
of
pasture
,
may
kill
the
Conies
which
are
upon
the
ground
;
and
he
argued
,
That
he
might
not
.
And
first
,
he
said
,
It
is
to
be
considered
,
what
interest
he
who
hath
the
Freehold
may
have
in
such
things
as
are
,
Ferae
naturae
;
and
then
what
authority
a
commoner
hath
in
the
ground
in
which
he
hath
common
.
As
to
the
first
point
,
he
said
,
That
although
such
beasts
are
,
Ferae
naturae
,
yet
they
are
reduced
to
such
a
property
when
they
are
in
my
ground
by
reason
of
my
possession
which
I
then
have
of
them
,
that
I
may
have
an
Action
of
trespass
against
him
who
taketh
them
away
:
as
in
the
book
in
,
42
E.
3.
If
one
hath
Deer
in
his
Park
,
and
another
taketh
them
away
,
he
may
have
an
Action
of
Trespass
for
the
taking
of
them
:
See
12
H.
8.
If
a
Keeper
or
Forrester
follow
a
Buck
which
is
chase
out
of
the
Park
or
Forrest
,
although
he
who
hunteth
him
killeth
the
Buck
in
his
own
ground
,
yet
the
Keeper
or
Forrester
may
enter
into
his
ground
,
and
seize
the
Deer
,
because
the
property
and
possession
of
the
Deer
is
yet
in
them
by
their
persuit
:
In
7
H.
6.
It
is
holden
,
That
if
a
wild
beast
doth
go
out
of
the
Park
,
the
owner
of
the
soil
hath
lost
his
property
in
it
;
but
upon
the
said
book
,
it
may
be
well
collected
,
that
whilest
it
remains
in
the
Parke
,
That
the
owner
of
the
Park
hath
property
in
it
;
for
18
E.
4.
14.
It
is
doubted
,
whether
a
man
can
have
property
in
such
things
,
which
are
,
Ferae
naturae
:
But
in
10
H.
7.
6.
it
is
holden
,
That
an
action
of
Accompt
lyeth
for
things
which
are
,
Ferae
naturae
:
and
see
14
H.
8.
1.
In
the
Bishop
of
London's
Case
,
and
22
H.
6.
59.
That
as
long
as
such
things
are
in
the
parties
ground
,
they
are
in
his
possession
,
and
he
hath
a
property
in
them
;
and
in
an
Action
brought
for
them
;
The
Writ
shall
be
,
Quare
damas
suas
cepit
,
by
Newton
;
And
see
in
the
Register
,
fol.
102.
where
an
Action
was
brought
,
Quare
ducent
.
Cuniculos
suos
pretii
,
&c.
cepit
.
It
hath
been
objected
on
the
other
side
,
That
the
Defendant
hath
common
there
;
To
that
I
answer
,
Admit
he
hath
common
,
yet
he
hath
not
an
interest
in
the
soil
;
for
he
cannot
meddle
with
the
wood
,
grass
,
or
other
profit
arising
of
the
soil
,
but
the
interest
which
the
commoner
hath
,
is
onely
the
feeding
of
the
grass
with
●he
mouths
of
his
cattel
:
and
if
he
who
hath
the
Freehold
in
the
ground
,
doth
bring
an
Action
against
the
commoner
for
entring
into
his
land
;
If
the
Defendant
pleads
,
Not
guilty
,
he
cannot
give
evidence
that
he
hath
common
there
;
for
such
evidence
will
not
maintain
the
issue
:
See
22
Ass.
A
commoner
cannot
take
in
the
cattel
of
a
stranger
to
agist
upon
the
common
;
and
therewith
agreeth
the
book
of
12
H.
8.
and
so
it
hath
been
adjudged
in
this
Court.
Godfrey
,
contrary
:
And
he
argued
,
That
it
is
lawfull
for
the
commoner
to
kill
the
Conies
feeding
in
the
common
:
And
he
agreed
all
the
cases
which
were
put
by
Coke
;
and
farther
he
said
,
That
the
owner
of
the
ground
had
not
an
absolute
,
but
a
kind
of
a
qualified
property
in
the
Conies
;
and
therefore
see
the
Book
of
3
H.
6.
and
F.N.
B.
If
a
Writ
of
Trespass
be
brought
,
Quare
Cuniculas
suas
cepit
,
the
Writ
shall
abate
;
and
yet
he
hath
a
kind
of
property
,
or
a
possession
rather
in
them
.
I
grant
that
against
a
stranger
the
Plaintiff
might
have
his
Action
for
killing
of
his
Conies
,
but
not
against
the
commoner
,
because
the
commoner
hath
a
wrong
done
unto
him
by
the
Conies
,
eating
of
his
common
,
and
therefore
he
may
kill
them
;
and
although
the
commoner
may
not
meddle
with
the
land
,
because
he
hath
not
an
interest
in
it
;
yet
in
some
cases
he
may
meddle
with
the
profits
of
it
,
and
he
may
distrain
the
cattel
of
a
stranger
there
,
damage-feasance
;
as
the
Book
is
in
15
H.
7.
I
grant
that
it
is
not
lawfull
for
Tenant
for
life
to
kill
the
Conies
of
him
who
hath
free-warren
in
the
land
.
For
if
a
man
bringeth
an
Action
of
Trespass
,
Quare
warrenam
suam
intravit
,
&
Cuniculos
suos
cepit
:
It
is
no
Plea
for
the
Defendant
to
say
,
That
it
is
his
Freehold
.
See
43.
E.
3.
accordingly
.
In
L.
5
E.
4.
In
Trespass
,
Quare
clausum
fregit
,
&
Cuniculos
suos
cepit
:
The
Defendant
said
,
That
the
Plaintiff
made
a
Lease
at
will
to
J.
S.
of
the
land
,
and
that
he
,
as
servant
to
the
said
J.
S.
did
kill
the
Conies
there
,
and
it
was
holden
a
good
Plea
;
and
yet
it
is
there
said
,
That
by
the
grant
of
the
land
,
the
Conies
do
not
pass
;
but
the
reason
of
the
book
might
be
,
as
I
conceive
,
because
the
feeding
on
the
land
with
the
Conies
,
is
to
his
damage
,
and
therefore
,
that
he
might
justifie
the
killing
of
them
:
and
so
are
the
Books
of
2
H.
7.
and
4
E.
4.
If
I
have
common
of
pasture
in
lands
,
and
the
Tenant
ploweth
up
the
land
,
I
shall
have
an
action
upon
the
Case
in
the
nature
of
a
Quod
permittat
.
And
in
9
E.
4.
If
one
hath
lands
adjoyning
to
my
land
,
and
levyeth
a
Nusance
,
I
may
enter
upon
the
land
,
and
abate
the
Nusance
:
So
if
a
man
taketh
my
goods
and
carrieth
them
unto
his
own
lands
,
I
may
enter
therein
,
and
seize
my
goods
:
So
if
a
Tenant
of
the
Freehold
plows
the
land
and
soweth
it
with
corn
,
the
commoner
may
put
in
his
cattel
,
and
therewith
eat
the
corn
growing
upon
the
land
:
So
if
a
man
do
falsly
imprison
me
,
and
put
me
in
his
house
,
I
may
justifie
the
breaking
open
of
his
house
to
get
forth
.
In
21
H.
6.
All
the
Inhabitants
of
a
Town
do
prescribe
to
have
common
in
such
a
field
every
year
after
Harvest
,
If
one
particular
man
who
hath
Freehold
land
,
with
the
said
field
sowed
,
will
not
within
convenient
time
gather
in
his
Corn
,
but
suffer
the
same
to
continue
there
of
purpose
to
bar
the
Inhabitants
of
their
Common
,
The
Inhabitants
of
the
Town
may
put
in
their
Cattel
into
the
said
field
,
and
therewith
eat
his
Corn
,
and
he
shall
have
no
remedy
for
their
so
doing
;
and
he
put
the
Question
,
What
remedy
the
Commoner
should
have
for
the
eating
and
destroying
of
his
Common
which
his
Cattel
should
have
,
for
that
he
can
neither
distrain
them
damage-feasance
,
nor
impound
them
:
for
a
Replevin
doth
not
lie
of
Conies
;
and
therefore
he
said
,
he
hath
no
other
remedy
but
to
kill
and
destroy
the
Conies
.
See
19
E.
3.
and
F.
N.
B.
If
the
Lord
doth
surcharge
the
Common
,
the
Commoner
may
have
an
Action
against
him
;
but
in
this
Case
he
can
have
no
Action
:
Gawdy
,
Iustice
,
The
Commoner
cannot
destroy
or
kill
the
Conies
,
because
he
may
have
other
remedy
:
Shute
,
Iustice
,
A
Commoner
cannot
take
or
distrain
the
beasts
of
the
Tenant
of
the
land
for
damage-feasance
,
therefore
he
cannot
take
or
destroy
the
Conies
which
are
upon
the
land
,
because
he
may
have
other
remedy
;
for
he
may
have
an
Action
upon
the
Case
,
or
an
Assize
for
putting
of
the
Conies
upon
the
land
,
if
the
owner
of
the
land
leave
not
sufficient
Common
for
the
Cattel
of
the
Commoner
;
and
afterwards
Iudgment
was
given
for
the
Plaintiff
.
CCLV.
Manwood
and
Burston
's
Case
.
Hill.
29
Eliz.
In
the
Exchequer-Chamber
.
MAnwood
,
chief
Baron
of
the
Exchequer
,
brought
an
Action
upon
the
Case
against
Burston
,
and
declared
,
That
whereas
Agnes
Griffin
was
possessed
of
the
third
part
of
the
Manor
and
Rectory
of
Higham
:
for
term
of
years
,
by
Demise
of
the
Master
and
Fellows
of
St.
John's
College
in
Cambridge
,
made
to
Worthington
;
and
whereas
John
Sutton
was
possessed
of
another
third
part
of
the
said
Manor
and
Rectory
by
the
same
Demise
;
and
whereas
John
Palmer
was
possessed
of
another
third
part
of
the
said
Manor
and
Rectory
for
the
same
term
,
The
said
Burston
,
20
Aprilis
,
28
Eliz.
in
consideration
that
the
said
Plaintiff
,
Obtinuisset
de
praed.
Agnet
.
totum
terminum
suum
assurari
ipsis
Rogero
Manwood
,
and
the
Defendant
;
(
scil.
)
Unam
medietatem
dictae
tertiae
partis
dicto
Rogero
,
&
alteram
medietatem
,
unto
the
said
Defendant
,
apud
London
,
in
such
a
Ward
,
Assumpsit
eidem
querent
.
Quod
si
idem
querens
procuraret
dictam
Johannem
Palmer
,
to
assent
and
sell
his
third
part
,
the
one
moyety
to
the
Plaintiff
,
and
the
other
to
the
Defendant
for
320
l.
That
the
Defendant
solveret
aequam
portionem
inde
,
(
scil.
)
160
l.
And
licet
,
the
Plaintiff
,
had
procured
the
said
Palmer
,
22
Aprilis
,
an
.
supradict
.
to
assent
and
sell
the
third
part
for
320
l.
to
be
paid
3
Maii
,
the
same
year
,
and
the
rest
at
another
day
;
and
licet
,
the
said
Plaintiff
was
ready
to
pay
his
part
,
and
offered
the
same
,
(
scil.
)
160
l.
And
licet
the
said
Palmer
was
ready
and
offered
to
sell
and
convey
his
term
aforesaid
,
&c.
yet
the
said
Defendant
,
solvere
aequam
partem
suam
,
(
scil.
)
160
l.
Non
fuit
paratus
sed
recusavit
.
for
which
the
said
Palmer
,
Noluit
vendere
his
part
or
interest
,
by
which
the
Plaintiff
was
damnified
,
&c.
The
Defendant
pleaded
,
That
after
the
Assumpsit
,
the
Plaintiff
did
discharge
the
Defendant
of
the
said
promise
;
upon
which
they
were
at
issue
;
and
it
was
found
for
the
Plaintiff
,
who
had
Iudgment
to
recover
.
Vpon
which
Burston
brought
a
Writ
of
Error
in
the
Exchequer
Chamber
.
And
divers
Errors
were
assigned
:
1.
It
is
not
shewed
at
what
time
the
term
of
Agnes
Griffin
did
begin
:
2.
The
Lease
of
the
College
is
not
shewed
to
be
by
writing
:
3.
It
is
not
shewed
for
what
term
Palmer
was
possessed
:
4.
It
is
not
shewed
at
what
time
the
Plaintiff
had
obtained
the
part
of
Agnes
:
5.
The
Assumpsit
is
laid
to
be
,
apud
London
,
in
Warda
de
Farrington
extra
,
and
so
apud
London
;
and
extra
London
,
which
is
repugnant
:
6.
The
Plaintiff
hath
declared
,
That
the
Colledge
had
leased
to
Worthington
;
and
that
A.
and
B.
were
possessed
,
Virtute
dimissionis
praed
.
To
these
Errors
,
the
chief
Baron
put
in
his
answer
in
writing
:
As
to
the
two
first
,
they
are
in
the
recital
,
and
but
matter
of
induction
to
the
consideration
,
and
not
traversable
,
nor
otherwise
material
to
be
alledged
for
the
commencement
of
them
,
or
for
the
Rent
,
but
onely
the
ending
of
the
term
to
come
is
sufficient
:
As
in
an
Action
upon
the
Case
;
That
whereas
the
Defendant
was
indebted
unto
the
Plaintiff
in
divers
sums
of
money
,
amounting
to
40
l.
the
Defendant
,
in
consideration
thereof
,
promised
,
&c.
the
Plaintiff
needs
not
to
shew
any
certainty
of
the
Contract
,
or
other
circumstance
,
how
,
or
in
what
manner
the
Debt
did
accrue
,
or
begin
:
As
in
an
Action
upon
the
Case
,
The
Plaintiff
declares
,
That
whereas
he
hath
married
the
daughter
of
the
Defendant
,
the
Defendant
in
consideration
that
the
Plaintiff
would
assure
to
his
said
Wife
,
Land
to
the
yearly
value
of
20
l.
for
her
jointure
,
as
shall
be
advised
by
the
Council
of
the
Defendant
,
That
he
will
pay
unto
the
Plaintiff
100
l.
And
licet
the
Plaintiff
hath
made
such
a
jointure
of
Land
in
S.
unto
such
yearly
value
for
the
use
of
his
Wife
,
by
the
advice
of
the
Council
of
the
Defendant
,
&c.
Here
the
Plaintiff
needs
not
to
shew
what
manner
of
Conveyance
,
or
Assurance
was
advised
;
for
it
is
sufficient
,
if
the
consideration
recited
be
proved
in
evidence
with
the
circumstances
;
but
in
pleading
,
it
is
not
traversable
nor
issuable
.
The
third
Error
is
mistaken
:
The
fourth
is
answered
as
the
two
first
;
for
it
is
but
matter
of
recital
;
and
the
consideration
past
and
executed
before
the
Assumpsit
,
and
not
at
the
time
of
the
Assumpsit
,
and
but
an
Induction
or
conveyance
to
the
Promise
:
The
fifth
matter
is
mis-construed
;
for
there
are
two
Wards
of
Farrington
,
infra
,
&
extra
:
infra
the
Walls
,
and
extra
the
Walls
,
and
yet
both
,
apud
London
,
and
extra
is
to
be
referred
to
Farrington
,
and
not
to
London
;
and
there
ought
to
be
made
a
point
after
extra
;
as
Farrington
extra
;
London
.
The
sixth
is
mistaken
;
for
there
is
no
Error
in
that
:
for
the
Assignee
is
possessed
,
Virtute
dimissionis
;
for
the
original
Lease
is
the
virtue
and
strength
of
the
possession
of
the
Assignee
:
But
if
these
exceptions
had
been
material
,
yet
forasmuch
as
the
issue
is
not
upon
the
Assumpsit
,
for
that
is
confessed
by
the
Defendant
,
and
by
that
the
recital
,
consideration
,
and
all
the
special
matters
confessed
to
be
true
:
But
the
Defendant
hath
pleaded
a
new
matter
after
the
Assumpsit
,
in
discharge
of
the
Assumpsit
,
which
discharge
is
found
against
him
,
all
the
particulars
in
which
the
Errors
are
assigned
,
are
out
of
the
Book
;
and
now
the
matter
of
discharge
is
onely
material
:
As
in
debt
for
arrearages
of
Rent
reserved
on
a
Lease
for
years
,
if
the
time
and
place
of
the
making
of
the
Lease
be
not
set
forth
in
the
Declaration
,
the
Declaration
is
not
good
.
But
if
the
Defendant
plead
a
collateral
matter
;
as
release
of
the
arrearages
,
or
other
such
matter
,
now
all
the
imperfections
of
the
Declaration
are
waved
,
&c.
At
another
day
the
matter
was
argued
again
.
There
are
three
manner
of
considerations
upon
which
an
Assumpsit
may
be
grounded
:
1
A
debt
precedent
:
2
Where
he
to
whom
such
a
promise
is
made
,
is
damnified
by
doing
any
thing
,
or
spends
his
labour
at
the
instance
of
the
Promiser
,
although
no
benefit
cometh
to
the
Promiser
:
As
I
agree
with
a
Surgeon
to
cure
a
poor
man
(
who
is
a
stranger
unto
me
)
of
a
sore
,
who
doth
it
accordingly
,
he
shall
have
an
Action
:
3
Or
there
is
a
present
consideration
,
&c.
The
first
Exception
was
,
because
the
Assumpsit
being
laid
to
procure
such
a
Lease
which
another
had
,
i.
e.
one
A.
it
is
not
shewed
in
the
Declaration
,
in
facto
,
That
A.
had
such
a
Lease
,
and
if
he
had
not
any
such
Lease
,
then
there
cannot
be
any
consideration
to
procure
it
:
For
,
Ex
nihilo
,
nihil
fit
.
Secondly
,
the
Declaration
is
,
That
A.
was
possessed
of
a
Lease
for
years
,
to
be
ended
and
determined
in
An.
1606.
without
shewing
any
beginning
of
it
;
and
although
that
Lease
be
but
matter
of
Conveyance
and
inducement
,
yet
,
because
it
is
the
ground
of
the
Action
,
it
ought
to
be
certainly
and
sufficiently
set
forth
.
Thirdly
,
the
Lease
to
be
procured
,
is
laid
to
be
made
by
a
College
in
Cambridge
,
and
it
is
not
shewed
for
what
term
of
years
,
i.
e.
for
21
years
or
under
;
for
if
it
be
above
,
then
such
Lease
is
void
.
Fourthly
,
It
is
not
laid
in
the
Declaration
,
that
the
Lease
was
by
writing
,
and
then
void
;
for
a
College
cannot
make
a
Lease
without
writing
;
and
it
shall
be
intended
it
was
made
without
Deed
,
because
it
is
not
laid
to
be
by
Deed
:
As
if
a
Corporation
makes
a
Lease
for
life
,
and
afterwards
granteth
the
Reversion
for
years
,
he
that
will
entitle
himself
to
the
said
Reversion
,
ought
to
say
in
pleading
That
he
made
the
Lease
for
life
by
Deed
,
although
the
Lease
for
life
in
such
case
be
but
matter
of
Conveyance
:
Fifthly
,
It
is
not
laid
in
the
Declaration
,
That
the
Lease
to
be
assured
was
in
esse
,
and
had
continuance
at
the
time
it
was
to
be
assured
;
for
although
it
be
laid
to
be
in
esse
,
at
the
time
of
the
promise
,
yet
being
a
particular
interest
,
it
shall
not
be
intended
to
continue
,
if
it
be
not
specially
shewed
:
As
10
H.
7.
26.
Sixthly
,
Here
the
Plaintiff
hath
not
cause
of
Action
,
but
Palmer
,
for
the
Assumpsit
upon
which
the
Action
is
grounded
,
the
money
is
to
be
payable
to
Palmer
,
not
to
the
Plaintiff
,
2
E.
4.
5.
My
Bailiff
lets
my
Land
to
Farm
,
rendring
Rent
,
he
shall
not
have
an
Action
for
the
Rent
,
but
I
my self
,
in
whose
right
he
leased
:
25
Eliz.
It
was
the
Case
of
one
Crewe
,
I
promised
unto
J.
S.
J.
S.
but
his
servant
shall
have
Action
upon
the
promise
:
and
although
the
Defendant
hath
pleaded
collateral
matter
,
by
which
the
promise
is
confessed
,
yet
the
same
doth
not
amend
the
matter
;
for
if
the
Declaration
be
insufficient
,
the
Court
,
ex
Officio
,
ought
to
stay
Iudgment
:
As
6
H.
7.
10.
In
trespass
,
the
Defendant
pleads
,
That
there
was
an
Accord
betwixt
them
,
that
in
satisfaction
of
the
said
Trespass
,
he
should
pay
to
the
Plaintiff
such
a
sum
,
and
make
two
Windows
,
the
which
sum
he
had
paid
,
before
the
day
,
without
speaking
any
thing
of
the
Windows
,
The
Plaintiff
pleaded
,
No
such
Accord
,
and
it
was
found
for
the
Plaintiff
;
and
although
the
Plaintiff
doth
admit
the
Plea
as
good
,
yet
the
Court
,
ex
Officio
,
shall
stay
the
Iudgment
:
See
the
Book
of
Entries
4.
A
Carpenter
brought
an
Action
upon
the
Case
,
and
declared
generally
upon
the
Assumpsit
,
Pro
diversis
rebus
vocat
.
Carpenters
wares
,
&
pro
diversis
laboribus
per
querent
.
at
the
instance
of
the
Defendant
,
in
arte
lignaria
,
&c.
and
holden
good
without
any
particulars
.
It
was
adjourned
.
CCLVI.
Payne
's
Case
.
Mich.
29
Eliz.
In
the
Exchequer-Chamber
.
A
Writ
of
Error
was
brought
by
Payne
,
Br.
Praerogat.
113.
The
Villain
of
the
the
King
purchaseth
goods
,
the
property
thereof
is
in
the
King
without
seisure
,
and
so
of
all
personal
Chattels
,
because
transitory
,
1
H.
7.
17.
4
H.
7.
1.
39
H.
6.
26.
And
here
it
appeareth
upon
Record
,
that
this
Deed
of
Assignment
,
was
delivered
to
Baron
Clark
,
the
16
of
May
,
at
Westminster
:
and
to
that
we
say
,
That
the
said
day
was
,
Dies
Ascentionis
,
&
sic
non
juridicus
,
and
so
no
Court
there
then
holden
,
and
then
the
said
Deed
was
not
delivered
in
Court
of
Record
,
and
then
not
delivered
unto
him
as
a
Iudge
,
but
as
a
private
person
,
although
it
was
delivered
to
the
use
of
the
Queen
:
But
in
37
H.
6.
there
is
some
opinion
,
That
if
such
a
Deed
be
delivered
in
Court
to
one
of
the
Barons
,
or
be
put
into
the
King's
Coffers
,
that
then
it
is
a
Record
.
Atkinson
contrary
,
And
as
to
the
first
Exception
;
It
is
to
be
known
,
That
in
every
Plea
,
where
a
contempt
is
laid
to
the
charge
of
the
Defendant
;
he
ought
first
to
excuse
or
clear
the
contempt
:
and
therefore
here
,
the
Exordium
of
the
Plea
is
,
Quoad
venire
vi
&
armis
,
&
quicquid
est
in
contemptum
dominae
Reginae
,
nec
non
de
tota
ulteriore
transgressione
&
contemptu
per
ipsos
fieri
supposit
.
ipse
in
nullo
est
inde
culpabilis
:
and
afterwards
plead
over
;
and
so
it
is
in
an
Action
of
trespass
:
and
also
upon
the
Statute
of
8
H.
6.
of
Forcible
entry
;
and
here
the
issue
upon
the
contempt
follows
the
other
issue
:
for
if
the
one
issue
be
found
against
the
Defendant
,
so
also
is
the
other
.
As
to
the
other
point
,
I
grant
,
That
a
Corporation
cannot
take
,
or
speak
without
writing
:
And
the
King
being
the
Corporation
of
Corporations
,
and
the
chief
of
Corporations
,
and
who
makes
all
Corporations
,
cannot
take
without
a
writing
of
as
high
a
nature
:
(
scil.
)
Record
.
And
we
have
a
Record
here
,
(
as
it
is
granted
of
the
other
side
)
being
inrolled
the
18.
of
May
,
which
was
delivered
the
16.
of
May
;
and
then
Payne
,
upon
the
whole
matter
,
was
the
17.
of
May
an
intruder
,
by
relation
of
the
Deed
to
the
time
of
the
first
delivery
;
And
an
intruder
by
his
entry
cannot
gain
any
thing
out
of
the
Queen
;
and
therefore
the
information
upon
the
intrusion
is
,
diversis
diebus
,
&
vicibus
intrusit
:
although
it
be
but
one
continued
possession
;
and
therefore
at
every
instant
,
during
his
possession
,
he
is
an
intruder
:
As
unto
the
delivery
of
the
Deed
of
Assignment
upon
the
day
of
the
Ascention
,
which
is
not
dies
juridicus
,
the
same
is
not
material
,
as
is
12
E.
4.
8.
by
Pigot
:
If
the
day
of
the
Retorn
of
a
Writ
,
i.
e.
quarto
die
falls
out
in
die
Dominica
,
yet
it
is
good
enough
,
although
no
Court
can
then
be
holden
,
but
the
day
following
,
and
the
Plea
is
not
discontinued
;
And
this
delivery
of
the
Deed
of
Assignment
,
might
be
out
of
Term
,
and
therefore
at
any
day
within
the
Term
,
which
is
not
dies
juridicus
,
but
contrary
,
of
a
thing
which
is
necessarily
to
be
done
within
the
Term
:
as
in
the
Case
between
Fish
and
Broket
,
of
Proclamations
made
upon
a
Fine
;
for
a
man
may
acknowledge
a
Recognizance
,
or
a
Deed
to
be
inrolled
in
the
time
of
Vacation
,
&c.
Tanfield
:
As
to
the
interest
,
the
inrolment
hath
relation
,
but
not
as
to
the
profits
;
for
Payne
cannot
be
an
intruder
,
the
17
of
May
by
any
relation
.
Popham
,
the
Queens
Attorney
,
When
an
information
upon
intrusion
and
taking
of
the
profits
is
here
exhibited
,
the
Defendant
ought
to
justifie
his
entry
;
and
if
the
entry
be
found
against
him
,
so
as
his
entry
is
an
intrusion
,
then
the
unlawfull
taking
of
the
profits
is
found
also
;
and
he
said
,
That
the
Deed
acknowledged
,
and
delivered
to
the
Baron
,
is
a
Record
,
although
it
be
not
enrolled
,
be
the
acknowledgment
thereof
either
out
of
Court
,
or
in
Court
:
If
an
information
upon
a
Penal
Statute
be
exhibited
unto
a
Baron
of
the
Exchequer
out
of
Court
,
and
afterwards
another
informer
exhibits
another
information
upon
the
same
Statute
for
the
same
offence
against
the
same
person
,
and
that
is
brought
into
the
Court
before
the
first
,
the
first
information
shall
be
preferred
,
and
the
Defendant
shall
answer
to
that
,
and
not
to
the
other
,
and
for
the
exhibiting
of
it
in
Court
,
or
out
of
Eourt
,
it
is
not
material
:
And
the
Assignment
,
when
it
is
inrolled
,
hath
relation
unto
the
acknowledgment
of
it
:
A
Reversion
is
granted
to
one
for
life
,
the
Remainder
to
the
King
,
the
particular
Tenant
Attorns
,
the
Remainder
is
not
in
the
King
by
the
Attornment
,
but
if
the
Deed
be
afterwards
inrolled
it
shall
be
said
to
be
in
the
King
from
the
time
of
the
Attornment
,
and
the
King
shall
have
the
benefit
of
the
whole
mean
profits
from
the
time
of
the
Attornment
:
A
Lease
for
years
is
made
by
the
King
reserving
Rent
,
with
clause
of
distress
;
That
if
the
Rent
be
not
paid
,
that
the
Lease
shall
be
void
,
the
Rent
is
not
paid
,
ten
years
after
an
Office
is
found
,
the
King
shall
be
answered
all
the
profits
from
the
time
of
the
default
of
payment
of
the
Rent
;
and
although
no
intrusion
can
be
laid
on
the
information
,
17
Maii
,
yet
it
shall
be
for
the
18
day
of
May.
Coke
,
The
Iudgment
for
the
Queen
upon
an
information
of
intrusion
,
Quod
defend
.
de
intrusione
,
transgressione
,
&
contemptu
praedict
convincantur
,
&c.
and
afterwards
a
Commission
shall
issue
forth
,
to
enquire
of
the
mean
profits
,
and
there
the
Defendant
may
shew
the
matter
for
to
mitigate
the
damages
;
and
if
the
intrusion
be
at
any
time
in
the
information
,
it
is
well
enough
to
have
Iudgment
;
and
in
our
Case
,
the
continuance
is
laid
18
Maii.
Egerton
,
Solicitor
General
,
The
Record
doth
warrant
the
Iudgment
given
upon
it
;
for
possession
laid
in
the
Queen
is
sufficient
to
maintain
this
information
;
and
here
Payne
doth
not
answer
to
the
title
of
the
Queen
,
but
traverseth
the
intrusion
,
and
therefore
being
found
an
intruder
by
Verdict
,
Iudgment
ought
to
be
given
upon
it
,
for
the
Iury
have
found
the
intrusion
generally
,
and
not
specially
,
the
17
of
May
,
and
that
cannot
be
assigned
for
Error
,
for
it
is
part
of
the
Verdict
of
which
Error
doth
not
lye
,
but
attaint
,
for
if
any
Error
was
,
the
same
was
in
the
Iury
and
not
in
the
Court
;
which
Manwood
granted
:
Tanfield
,
As
unto
the
Case
of
continuance
of
an
intrusion
,
it
is
clear
,
that
every
continuance
ought
to
have
a
beginning
;
for
a
thing
which
hath
not
a
beginning
,
cannot
be
continued
;
and
here
is
not
any
beginning
;
for
the
beginning
which
is
laid
in
the
information
,
is
pretended
to
be
,
17
Maii
,
and
that
cannot
be
for
the
Cause
aforesaid
:
Popham
,
If
an
information
be
brought
of
intrusion
,
as
appears
in
many
Memorandums
in
the
Exchequer
,
where
,
in
truth
,
there
is
not
any
Record
to
prove
it
,
and
the
Iury
find
the
intrusion
:
Will
you
have
a
Writ
of
Error
upon
it
?
And
every
continuance
of
intrusion
,
is
intrusion
:
Anderson
,
The
same
matter
had
been
good
evidence
,
Sed
non
habet
locum
hic
.
CCLVII
.
Beale
and
Langley
's
Case
.
Trin.
29
Eliz.
In
the
Common
Pleas.
Int.
Hil.
Rot.
1544.
JOhn
Beale
was
Plaintiff
in
a
Replevin
,
against
Robert
Langley
and
Roger
Hill
:
The
Case
was
,
That
Henry
,
Earl
of
Arundel
was
seised
of
the
Manor
of
Bury
in
his
Demesn
as
of
Fee
,
whereof
the
place
in
which
,
was
parcel
demised
and
demiseable
,
according
to
the
custome
of
the
said
Manor
by
Copy
in
Fee
,
whereof
Langley
was
a
Copiholder
in
Fee
,
&c.
and
the
said
Earl
so
seised
,
enfeoffed
divers
persons
of
the
said
Manor
unto
the
use
of
himself
for
life
,
and
afterwards
to
the
use
of
the
Lord
Lumley
,
and
Elizabeth
his
wife
,
daughter
of
the
said
Earl
,
and
the
heirs
of
their
two
bodies
begotten
,
who
made
a
Lease
of
the
said
Customary
lands
by
Indenture
unto
the
Plaintiff
for
100
years
;
and
the
question
was
,
If
by
this
Lease
,
the
lands
be
so
severed
from
the
Manor
,
that
the
Copihold
is
extinct
:
Walmesly
took
exception
to
the
pleading
;
for
that
Langley
pleads
,
That
the
custome
within
the
Manor
is
,
That
if
any
Copiholder
seised
of
Customary
lands
of
the
said
Manor
dieth
thereof
seised
,
having
many
sons
,
That
the
youngest
son
shall
inherit
;
and
he
sheweth
,
That
the
Lord
of
the
said
Manor
granted
to
his
father
and
his
mother
the
said
customary
lands
,
by
Copy
,
to
have
to
his
said
father
and
mother
,
and
the
heirs
of
his
father
,
&c.
And
that
his
father
died
,
and
that
his
mother
survived
him
and
died
,
and
he
as
youngest
son
,
according
to
the
custome
entred
,
and
he
said
,
That
this
custome
,
set
forth
by
the
Defendant
,
doth
not
maintain
his
entry
;
For
the
custome
intendeth
but
a
general
and
immediate
descent
upon
a
Copy
made
unto
a
man
,
and
to
his
heirs
,
but
such
is
not
the
descent
here
,
for
the
wife
surviveth
;
during
whose
life
,
the
heir
cannot
enter
;
nor
is
there
here
such
Estate
in
the
father
of
the
Defendant
unto
whom
the
custome
set
forth
in
the
Avowry
can
extend
:
For
the
custome
is
alledged
,
Where
a
Copyholder
hath
a
Copyhold
Estate
to
him
and
his
heirs
.
And
here
the
Title
of
the
Defendant
is
,
That
a
customary
Estate
was
granted
to
the
father
and
the
mother
,
and
the
heirs
of
the
father
,
so
as
this
Estate
is
not
within
the
Letter
of
the
custome
;
And
to
that
purpose
he
cited
the
Case
of
Sir
John
Savage
,
i.
e.
the
making
of
the
Lease
,
hath
destroyed
his
Seignory
,
and
lost
the
services
,
as
to
this
land
:
And
Windham
,
Iustice
said
,
That
the
Lord
himself
had
destroyed
the
custome
as
to
the
services
,
but
not
as
to
the
customary
interest
of
the
Tenant
;
but
the
Lord
Anderson
was
of
opinion
,
That
the
Rents
and
services
do
remain
;
and
if
the
Copiholder
,
after
such
Lease
committeth
Waste
,
that
it
is
a
forfeiture
to
the
Lord
;
and
that
will
fall
in
evidence
upon
a
trial
,
although
such
Waste
cannot
be
found
by
an
ordinary
presentment
:
and
the
same
Law
which
alloweth
the
Copiholder
his
Copihold
interest
against
this
Lease
,
will
allow
unto
the
Lord
his
Rents
and
services
:
and
he
said
,
That
the
Lord
shall
have
the
Rents
and
services
,
and
not
the
Lessee
,
Quod
mirum
,
against
his
own
Lease
;
See
33
Eliz.
between
Murrel
and
Smith
now
reported
by
the
Lord
Coke
in
his
4
Report
.
fol.
20.
CCLVIII.
Russel
and
Broker
's
Case
.
Trin.
29
Eliz.
In
the
Common
Pleas.
RUssel
brought
Trespass
against
Broker
,
viz.
Lex
Forrestae
est
,
&c.
for
the
Law
of
the
Forrest
is
not
the
common
Law
of
the
Land
,
and
we
are
not
bound
to
take
notice
of
it
,
but
it
ought
to
be
pleaded
,
or
otherwise
the
Plaintiff
ought
to
have
traversed
the
prescription
of
the
Defendant
,
for
here
are
two
prescriptions
;
one
pleaded
by
the
Defendant
by
way
of
Bar
,
the
other
set
forth
by
the
Plaintiff
in
his
Replication
without
any
traverse
of
that
with
is
alledged
in
the
Bar
,
which
cannot
be
good
;
but
if
the
Plaintiff
had
shewed
in
his
Replication
,
Lex
Forrestae
talis
est
,
&c.
then
the
prescription
of
the
Defendant
had
been
answered
without
any
more
;
for
none
can
prescribe
against
a
Statute
.
Exception
was
taken
to
the
Bar
,
because
the
Defendant
had
justified
the
cutting
down
of
Oaks
,
without
alledging
,
that
there
was
not
any
underwood
,
but
the
Exception
was
not
allowed
;
for
he
hath
choice
,
ad
libitum
suum
.
Another
Exception
was
taken
,
because
he
hath
not
shewed
,
that
at
the
time
of
the
cutting
,
it
was
not
fawning
time
;
CCLIX
.
Mich.
29
Eliz.
In
the
Common-Pleas
.
A
Black-Smith
of
South-Mims
,
in
the
County
of
Middlesex
,
took
a
Bond
of
another
Black-Smith
of
the
same
Town
,
that
he
should
not
exercise
his
Trade
or
Art
of
a
Black-Smith
within
the
same
Town
,
nor
within
a
certain
precinct
of
it
;
and
upon
that
Obligation
,
the
Obligee
brought
an
Action
of
Debt
in
the
Common-Pleas
,
depending
which
,
the
Obligor
complained
to
the
Iustices
of
Peace
of
the
said
County
upon
the
matter
against
the
Obligee
,
upon
which
the
matter
being
found
by
examination
,
the
Iustices
committed
the
Obligee
to
prison
;
and
now
,
upon
the
whole
matter
,
Puckering
,
Serjeant
,
prayed
a
Habeas
Corpus
for
the
said
Obligee
to
the
Sheriff
of
Middlesex
,
and
it
was
granted
:
and
Fleetwood
,
Recorder
of
London
,
being
at
the
Bar
,
the
Court
told
him
openly
of
this
matter
,
That
by
the
Laws
,
Iustices
of
Peace
have
not
Conusance
of
such
offences
,
nor
could
meddle
with
them
;
for
their
power
is
limited
by
their
commission
and
the
Statutes
;
and
the
Recorder
did
much
relye
upon
the
opinion
of
Hull
,
2
H.
5.
5.
But
by
the
clear
opinion
of
the
whole
Court
,
although
this
Court
,
being
a
high
Court
,
A
Justicies
issued
forth
to
the
Sheriff
of
H.
for
the
Debt
of
40
l.
and
the
Plea
was
determined
before
the
Vnder-Sheriff
in
the
absence
of
the
Sheriff
,
and
it
was
now
moved
by
Puckering
,
Serjeant
,
If
a
Writ
of
Error
,
or
a
Writ
of
false
Iudgment
did
lie
in
that
Case
:
And
first
,
the
opinion
of
the
Iustices
was
,
That
the
Sheriff
himself
in
his
person
ought
to
hold
Plea
of
a
Justicies
;
and
if
he
maketh
a
Precept
or
Deputation
to
another
,
the
same
is
meerly
void
:
34
H.
6.
48.
And
see
the
said
Case
abridged
;
Fitz.
Bar.
161.
and
it
was
said
,
That
a
Justicies
is
not
an
Original
Writ
,
but
a
Commission
to
the
Sheriff
,
to
hold
Plea
,
ultra
40
s.
and
upon
a
Iudgment
given
upon
a
Justicies
,
a
Writ
of
false
Iudgment
lieth
,
and
not
a
Writ
of
Error
:
See
for
that
,
7
E.
4.
23.
And
it
was
the
opinion
of
Anderson
,
chief
Iustice
,
That
such
Iudgment
is
utterly
void
,
and
Coram
non
Judice
.
CCLXI
.
Trin.
29
Eliz.
In
the
Common-Pleas
.
NOTE
,
by
Anderson
,
chief
Iustice
,
That
if
Cestuy
que
use
,
CCLXII
.
Hamper
's
Case
.
Hill.
31
Eliz.
In
the
King's-Bench
.
HAmper
was
indicted
upon
the
Statute
of
5
Eliz.
of
Perjury
,
Et
sic
commisit
voluntarium
perjurium
:
Yet
the
opinion
of
the
Court
was
,
that
the
same
doth
not
help
the
matter
;
and
for
that
cause
,
the
party
was
discharged
:
For
,
contra
formam
Statuti
,
will
not
help
the
matter
,
nor
supply
it
;
and
yet
it
was
moved
and
urged
,
That
contra
formam
Statuti
would
help
it
;
and
it
was
holden
in
this
Case
,
That
if
a
witness
doth
depose
falsly
,
but
the
Iury
doth
not
give
credit
to
it
,
nor
give
their
Verdict
against
his
oath
,
although
the
party
grieved
cannot
sue
him
:
yet
he
may
be
punished
at
the
King's
suit
.
CCLXIII
.
Moulton
's
Case
.
Hill.
31
Eliz.
In
the
King's-Bench
.
IT
was
moved
by
Coke
,
That
one
Robert
Moulton
,
Tenant
in
tail
,
Writs
of
Error
to
reverse
both
the
Fines
;
and
the
Tenant
,
to
the
Writ
of
Error
,
brought
upon
the
first
Fine
,
pleaded
the
second
Fine
in
Bar
of
it
;
and
in
Bar
upon
a
Writ
of
Error
brought
upon
the
second
Fine
,
he
pleaded
the
first
Fine
;
and
the
Court
advised
him
to
plead
,
That
the
Fine
pleaded
in
Bar
was
erroneous
:
7
H.
4.
107.
where
a
man
is
to
annul
an
Outlawry
,
his
person
shall
not
be
disabled
by
any
other
Outlawry
.
CCLXIV
.
Broccus
's
Case
.
Trin.
30
Eliz.
In
the
Common-Pleas
.
BRoccus
,
Lord
of
a
Manor
,
covenanted
with
his
Copiholder
,
CCLXV.
Foster
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
NOTE
,
It
was
said
,
and
holden
by
the
whole
Court
in
this
Case
,
That
in
Debt
brought
against
Executors
,
If
the
Defendants
plead
,
That
the
Testator
was
bound
in
a
Recognizance
,
in
such
a
sum
,
beyond
which
they
have
not
any
thing
in
their
hands
;
That
it
is
a
good
Replication
to
say
,
That
the
Recognizance
was
entred
into
for
performance
of
Covenants
contained
in
certain
Indentures
,
of
which
Covenants
none
are
yet
broken
.
CCLXVI.
Partridge
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
A
Quo
Warranto
was
brought
against
Partridge
,
in
which
Case
,
It
was
holden
by
all
the
Iustices
,
That
a
man
may
prescribe
to
hold
a
Leet
oftener
than
twice
in
one
year
,
and
at
other
days
than
are
set
in
the
Statute
of
Magna
Charta
,
cap.
35.
because
the
said
Statute
is
in
the
Affirmative
;
But
Popham
said
,
That
one
cannot
prescribe
against
a
Statute
,
See
for
the
same
,
Book
of
Entries
,
13
E.
3.
Leet
12.
and
he
said
,
That
the
want
of
a
Tunbrel
and
Pillory
,
is
a
good
cause
of
forfeiture
of
the
Liberty
:
which
Coke
denied
.
And
it
was
farther
moved
by
Popham
,
That
if
a
general
pardon
be
granted
with
general
exceptions
in
it
,
he
that
will
take
advantage
of
the
same
,
ought
to
plead
it
,
and
shew
that
he
is
not
any
person
excepted
;
for
otherwise
the
Iudges
cannot
allow
him
the
benefit
of
it
,
because
they
do
not
know
if
he
be
a
person
excepted
or
not
;
But
if
there
were
special
persons
excepted
by
name
,
and
none
other
excepted
,
but
onely
those
persons
,
there
the
party
needs
not
to
plead
it
,
for
the
Court
may
discern
J.
B.
from
J.
D.
See
8
E.
3.
7.
and
26
H.
8.
7.
If
a
man
commits
Felony
,
and
also
Treason
,
and
afterwards
comes
a
general
pardon
for
the
Felony
,
but
Treason
is
excepted
,
and
the
party
is
arraigned
of
Felony
:
by
Coke
,
he
shall
have
the
benefit
of
the
pardon
;
but
Popham
contrary
,
for
he
is
disabled
by
the
Treason
.
And
it
was
agreed
by
the
whole
Court
,
That
in
a
Quo
Warranto
,
It
is
not
sufficient
for
the
Defendant
to
say
,
That
such
a
Subject
hath
lawfull
interest
to
hold
a
Leet
,
without
making
Title
to
himself
;
for
the
Writ
is
,
Quo
Warranto
he
claims
,
&c.
And
afterwards
Iudgment
was
given
for
the
Queen
.
CCLXVII
.
Wiggen
and
Arscot
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
IN
a
Prohibition
,
the
surmise
was
,
That
the
Exposition
of
Statutes
doth
belong
unto
the
Queen's
temporal
Courts
;
and
Arscot
had
sued
in
the
spiritual
Court
for
Tithes
,
whereas
in
truth
,
for
not
reading
of
the
Articles
according
to
the
Statute
of
13
Eliz.
he
was
deprived
,
ipso
facto
,
and
so
he
was
not
Parson
:
for
which
cause
,
Gawdy
prayed
a
Prohibition
;
for
he
said
,
that
the
surmise
was
good
and
sufficient
:
For
the
Question
is
,
Parson
,
or
not
Parson
?
and
that
shall
be
tried
here
by
the
Common
Law.
And
I
do
not
know
that
it
hath
ever
been
ruled
here
to
the
contrary
before
.
Clench
,
Iustice
,
It
hath
not
been
ruled
to
the
contrary
;
yet
because
great
inconvenience
may
arise
upon
the
admitting
of
it
,
The
Court
hath
taken
order
,
That
no
Prohibition
shall
be
granted
upon
such
a
surmise
,
without
great
probability
of
the
truth
of
the
surmise
:
Where
a
Prohibition
is
awarded
upon
such
a
surmise
,
the
party
needs
not
to
prove
his
surmise
according
to
the
Statute
of
2
E.
6.
cap.
13.
for
this
surmise
is
conceived
upon
a
cause
of
later
time
,
since
the
said
Statute
,
and
was
not
any
cause
to
have
a
Prohibition
at
the
time
of
the
said
Statute
.
CCLXVIII
.
Winter
and
Loveday
's
Case
.
Trin.
31
Eliz.
In
the
King's-Bench
.
Rot.
759.
IN
an
Action
of
Covenant
by
Winter
against
Loveday
;
It
was
found
by
special
Verdict
,
That
Winter
,
by
Deed
indented
Mortgaged
to
Loveday
,
a
certain
Lease
upon
condition
to
pay
400
l.
to
Loveday
at
a
day
certain
,
at
the
porch
of
such
a
Church
;
and
upon
such
payment
,
Winter
to
have
back
his
Lease
;
and
Loveday
covenanted
,
That
upon
repayment
of
the
money
he
should
have
back
all
his
Evidences
concerning
the
same
:
and
it
was
farther
found
,
That
at
the
day
of
payment
one
Cornwallys
sent
unto
Loveday
to
know
if
Loveday
would
receive
the
money
which
Winter
owed
to
him
,
at
his
house
,
who
answered
that
he
was
content
,
and
he
came
there
,
and
the
money
was
told
and
delivered
in
bags
to
Loveday
;
but
afterwards
some
contention
did
arise
between
Winter
and
Loveday
for
certain
Writings
;
for
which
cause
Cornwallys
said
,
That
if
they
would
not
agree
betwixt
them
,
That
they
should
not
have
his
money
.
Whereupon
Winter
requested
Cornwallis
,
that
he
might
have
the
money
to
carry
to
the
said
porch
of
the
said
Parish
Church
,
who
was
contented
,
and
there
Loveday
came
to
receive
it
,
and
Winter
would
not
pay
it
.
Tanfield
moved
,
That
the
same
was
a
good
payment
to
discharge
the
Mortgage
;
for
the
money
was
told
in
the
house
of
Cornwallis
,
and
Loveday
there
put
it
up
into
bags
;
and
the
same
is
a
good
payment
and
receit
:
Coke
contrary
,
Here
is
not
any
payment
,
for
it
was
not
the
money
of
Winter
,
but
of
Cornwallis
,
as
appeareth
by
the
words
of
Cornwallis
;
(
scil.
)
If
they
could
not
agree
they
should
not
have
his
money
:
Also
Winter
requested
Cornwallis
,
that
he
might
have
the
money
to
carry
to
the
porch
of
the
Parish
Church
aforesaid
,
by
which
it
appeareth
,
that
it
was
not
Winter's
money
.
And
for
that
cause
,
it
was
also
the
opinion
of
the
Court
,
that
the
same
was
not
any
sufficient
tender
.
See
for
this
,
Astwick
,
Hil.
28
Eliz.
CCLXIX
.
Ordway
and
Parrot
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
ORdway
brought
a
Scire
facias
against
Parrot
and
Hallsey
,
who
were
Bail
in
a
Bill
of
Debt
,
for
one
Bennet
;
and
they
pleaded
,
That
the
said
Bennet
had
payed
the
money
recovered
,
to
the
Plaintiff
,
according
to
the
condition
of
the
Recognizance
;
and
it
was
the
opinion
of
the
whole
Court
,
that
it
was
no
Plea
without
alledging
payment
upon
Record
;
for
if
this
should
be
suffered
,
every
man
should
be
inforced
twice
to
trie
his
Action
;
wherefore
the
Plea
was
disallowed
.
CCLXX.
Coniers
and
Holland
's
Case
.
Trin.
30
Eliz.
In
the
King's-Bench
.
CCLXXI.
Richmond
and
Butcher
's
Case
.
Mich.
33
Eliz.
In
the
Common-Pleas
.
CCLXXII
.
Mich.
30
Eliz.
In
the
Common-Pleas
.
IN
an
Action
of
Trespass
brought
by
a
poor
woman
for
breaking
of
her
Close
;
she
declared
of
a
Continuando
of
the
Trespass
,
by
six
years
and
upon
Nihil
dicit
pleaded
,
she
had
Iudgment
to
recover
;
upon
which
issued
forth
a
Writ
of
Enquiry
of
Damages
;
and
now
came
the
poor
woman
,
and
shewed
to
the
Court
,
That
the
Iury
had
found
too
little
damages
,
i.
e.
but
10
s.
whereas
the
Land
is
worth
4
l.
per
ann
.
and
the
Trespass
had
continued
by
six
years
together
,
and
prayed
that
the
said
Writ
might
not
be
received
,
and
that
the
Court
would
grant
her
another
Writ
to
have
a
Melius
inquirendum
of
the
damages
,
but
the
whole
Court
denied
to
grant
any
such
Writ
,
for
so
there
might
be
infinite
enquiries
:
But
sometimes
,
at
the
prayer
of
the
Defendant
,
when
excessive
damages
are
found
,
or
any
misdemeanors
alledged
in
the
Plaintiff
,
procuring
or
using
such
a
Writ
of
Enquiry
of
damages
,
we
use
to
relieve
the
Defendant
,
by
granting
and
issuing
forth
of
a
new
Writ
,
but
to
the
Plaintiff
never
,
because
the
suing
forth
of
the
Writ
is
his
own
act
:
And
by
Rhodes
,
Iustice
,
The
late
Countess
of
Darby
brought
a
Writ
of
Dower
,
and
had
Iudgment
to
recover
;
and
she
surmised
that
her
husband
died
seised
,
and
prayed
a
Writ
of
Enquiry
of
damages
,
and
had
it
granted
unto
her
;
and
because
too
small
damages
were
found
,
she
would
have
suppressed
the
said
Writ
,
and
procured
a
new
Writ
,
but
she
could
not
obtain
it
;
and
at
last
she
was
driven
to
bring
in
the
first
Writ
,
and
so
it
was
done
.
CCLXXIII
.
Scrog
's
and
Griffin
's
Case
.
Hill.
30
Eliz.
In
the
King
's
Bench.
IN
an
Action
upon
the
Case
,
upon
a
promise
by
Scrogs
,
against
Griffin
;
The
Plaintiff
declared
,
That
whereas
such
a
day
,
one
Brown
and
another
,
did
run
for
a
wager
,
from
Saint-John-Street
,
to
High-gate
,
That
he
of
the
said
two
,
that
first
got
thither
,
and
came
again
,
should
have
5
l.
which
wager
,
the
said
Brown
did
win
;
and
whereas
after
the
said
match
so
performed
,
the
said
Plaintiff
affirmed
,
that
there
was
deceit
and
covin
in
the
performance
of
the
said
match
,
upon
which
the
Defendant
,
in
consideration
of
twelve
pence
,
to
him
delivered
by
the
Plaintiff
,
promised
,
that
if
the
Plaintiff
can
prove
,
that
any
deceit
or
covin
was
used
,
or
practised
in
the
performance
of
the
said
match
,
that
then
upon
request
,
he
should
pay
to
the
Plaintiff
5
l.
And
upon
Non
Assumpsit
pleaded
,
it
was
found
for
the
Plaintiff
,
and
it
was
moved
by
Foster
,
in
arrest
of
Iudgment
,
That
here
is
not
any
request
set
forth
in
the
Declaration
:
and
also
,
that
this
deceit
is
enquired
of
in
London
,
whereas
it
ought
to
be
in
Middlesex
where
the
Race
was
run
:
and
it
was
agreed
by
all
the
Iustices
,
That
the
proof
ought
to
be
made
in
this
Action
,
as
in
the
common
Cases
of
voyages
:
and
that
request
now
is
but
matter
of
conformity
,
and
not
of
necessity
.
Wray
,
Iustice
,
It
is
clear
,
That
always
proof
ought
to
be
as
it
is
here
;
if
not
,
that
the
matter
be
referred
to
a
special
proof
,
before
a
person
certain
.
And
as
to
the
trial
,
The
deceit
is
not
in
issue
,
but
onely
the
promise
;
and
therefore
the
issue
is
well
tried
in
London
:
Also
this
Action
here
includes
proof
and
request
:
for
there
cannot
be
made
any
other
proof
,
and
the
proof
is
the
effect
;
for
which
cause
he
concluded
,
that
Iudgment
should
be
entred
for
the
Plaintiff
,
which
was
done
accordingly
.
CCLXXIV
.
Fuller
and
Trimwell
's
Case
.
Pasch.
29
Eliz.
In
the
Common
Pleas.
IN
a
Replevin
by
Fuller
,
against
Trimwell
,
who
made
Conusance
,
A.
T.
did
pretend
right
to
the
land
where
,
&c.
and
the
Defendant
,
in
the
right
of
the
said
A.
T.
took
the
cattel
,
&c.
Absque
hoc
,
that
he
took
them
as
Bailiff
to
the
said
House
,
upon
which
the
Defendant
did
demur
in
Law
;
and
it
was
argued
by
Shuttleworth
,
Serjeant
,
That
the
traverse
is
not
good
,
which
see
,
26
H.
8.
8.
5
H.
7.
2.
Not
his
Bailiff
;
but
if
the
truth
of
the
Case
be
so
,
he
may
plead
of
his
own
wrong
,
without
such
cause
,
&c.
And
see
also
,
28
H.
6.
4.
The
Commandment
is
not
traverseable
,
but
in
special
Cases
,
where
the
Commandment
determines
the
interest
of
the
other
party
,
which
see
,
13
H.
7.
12
,
13.
Rhodes
,
Periam
and
Windham
:
and
as
to
that
which
hath
been
objected
,
That
if
this
traverse
be
allowed
,
the
meaning
of
the
party
shall
be
drawn
in
question
;
i.
e.
the
meaning
of
him
who
took
the
cattel
,
the
same
is
not
any
mischief
,
for
so
it
is
in
other
cases
;
as
in
the
case
of
Recaption
,
See
9
H.
6.
1.
45
E.
3
,
4.
CCLXXV
.
Humphreston
's
Case
.
Pasch.
16
Eliz.
In
the
King
's
Bench.
Ejectione
firmae
,
It
was
found
by
special
Verdict
,
That
W.
Humphreston
seised
of
the
Manor
of
Humphreston
,
suffered
a
common
Recovery
to
be
had
thereof
by
Kinnersley
and
Fowk
in
the
Writ
of
Entry
in
the
Post
,
to
the
intent
that
they
should
make
an
Estate
to
the
said
W.
Humphreston
,
and
Elionar
his
wife
for
their
lives
,
the
remainder
,
Seniori
puero
dicti
W.
and
to
the
heirs
of
the
body
dicti
senioris
pueri
legitime
procreat
.
the
remainder
to
the
heirs
of
the
body
of
the
said
W.
Humphreston
,
with
divers
remainders
over
.
And
afterwards
the
Recoverers
,
in
December
following
,
by
Indenture
made
an
Estate
accordingly
,
and
made
Livery
to
W.
Humphreston
and
his
wife
;
and
afterwards
,
in
November
,
2
E.
6.
by
Indenture
between
the
said
W.
Humphreston
of
the
one
party
,
and
Kinnersley
on
the
other
part
,
The
said
W.
Humphreston
did
covenant
with
the
said
Kinnersley
,
to
do
all
such
lawfull
and
reasonable
things
for
to
assure
the
said
lands
unto
the
use
of
the
said
W.
Humphreston
and
Elionar
his
wife
for
their
lives
,
and
afterwards
,
to
the
use
of
the
eldest
child
of
the
body
of
the
said
W.
Humphreston
lawfully
begotten
,
and
to
the
heirs
of
the
body
of
the
said
eldest
child
of
the
body
of
the
said
W.
Humphreston
;
and
after
to
divers
other
uses
over
;
and
afterwards
,
Ter.
Pasch.
2
E.
6.
W.
Humphreston
and
Elionar
his
wife
,
levyed
a
Fine
of
the
said
land
to
C.
and
B.
in
Fee
,
to
the
use
of
the
said
Indenture
;
Elionar
died
,
W.
Humphreston
married
another
wife
,
and
had
issue
a
daughter
,
named
Frances
,
and
afterwards
had
issue
a
son
,
named
William
,
and
died
.
William
the
son
,
being
of
the
age
of
six
years
,
entred
into
the
lands
,
and
leased
the
same
to
the
Plaintiff
for
years
,
who
being
ejected
by
the
Defendant
,
brought
the
Ejectione
firmae
:
And
this
special
Verdict
.
And
the
points
moved
upon
it
were
argued
by
Atkins
,
Phetiplace
,
Fenner
,
Fleetwood
,
Plowden
and
Bromley
,
and
afterwards
this
Case
was
argued
by
the
Iustices
:
And
Gawdy
,
puisne
Iustice
conceived
,
That
Iudgment
ought
to
be
given
for
the
Plaintiff
:
First
,
he
conceived
,
that
this
Lease
for
years
made
by
the
Infant
,
without
Deed
and
without
Rent
reserved
is
not
void
;
so
as
every
stranger
shall
take
advantage
of
it
,
but
onely
voidable
;
for
an
Infant
may
make
a
Bond
,
and
a
Contract
for
his
commodity
and
profit
,
and
the
same
shall
bind
him
;
as
for
his
meat
and
drink
,
apparel
,
&c.
But
if
upon
such
Lease
he
had
reserved
a
small
Rent
,
as
one
peny
,
where
the
land
was
worth
100
l.
per
ann
.
such
a
Lease
had
been
void
;
and
in
our
Case
,
this
Lease
was
made
upon
the
land
,
and
was
made
for
to
try
the
title
to
it
,
which
is
a
good
consideration
,
and
to
the
profit
of
the
Infant
,
and
for
his
advancement
,
and
then
the
Lease
is
not
void
.
It
hath
been
objected
,
That
here
the
Recovery
being
suffered
to
the
intent
that
the
Recoverers
should
make
an
Estate
,
ut
supra
,
&c.
that
the
use
shall
rise
presently
upon
the
Recovery
to
him
who
suffered
the
Recovery
,
and
then
the
Recoverers
could
not
make
Livery
unto
him
;
he
held
strongly
,
That
the
use
and
the
possession
should
be
adjudged
in
the
Recoverers
,
untill
they
made
the
Estates
,
&c.
for
they
otherwise
could
not
make
the
Estates
,
&c.
[
To
the
intent
]
shall
be
construed
,
that
they
shall
have
the
lands
,
untill
they
made
the
Estates
,
&c.
And
he
held
,
that
the
remainder
limited
,
Seniori
puero
,
where
there
is
not
any
,
in
rerum
natura
,
is
good
enough
:
as
a
remainder
limited
to
him
who
shall
first
come
to
Pauls
.
And
he
conceived
,
that
the
son
should
take
this
remainder
,
and
not
the
daughter
:
and
he
conceived
,
that
the
Estate
tail
here
,
was
not
executed
,
i.
e.
the
second
intail
;
Divers
Authors
of
Grammer
,
have
been
produced
to
prove
,
that
Puer
,
may
be
taken
both
ways
,
Tam
puer
,
quam
puella
,
Desporterius
,
Calapine
,
Melancthon
,
and
the
Grammer
allowed
,
but
I
conceive
,
that
Puer
is
a
word
proper
for
a
Boy
,
and
Puella
for
a
Maid
;
and
where
we
have
proper
words
,
we
ought
not
to
iudge
but
according
to
them
;
and
because
the
word
is
doubtfull
,
we
ought
to
consider
the
cause
upon
the
circumstances
,
and
therefore
it
is
to
be
intended
,
that
W.
Humphreston
had
a
greater
desire
that
his
son
should
have
his
Inheritance
,
than
his
daughter
,
if
there
be
not
some
special
matter
to
prove
that
the
intent
of
the
father
was
for
his
daughter
.
Southcote
,
Iustice
,
agreed
with
Gawdy
in
the
first
point
;
and
also
that
the
Recoverers
have
convenient
time
to
make
the
Estates
;
and
that
they
are
to
make
the
same
without
request
for
the
benefit
of
the
wife
,
who
is
a
stranger
to
it
,
and
is
to
have
the
lands
for
her
ioynture
;
and
he
cited
the
Case
of
the
Abbat
of
York
,
44
E.
3.
8.
and
9.
where
the
difference
is
taken
between
a
Feoffment
made
upon
condition
to
re-enfeoff
the
Feoffor
,
or
to
enfeoff
a
stranger
:
And
here
in
our
Case
the
Feoffment
is
made
in
convenient
time
,
and
here
is
sufficient
consideration
,
That
the
Recoverers
shall
be
seised
to
their
own
uses
,
untill
,
&c.
And
these
words
,
[
Ea
intentione
]
shall
be
taken
for
a
Condition
:
And
also
that
this
remainder
limited
,
Seniori
puero
,
is
good
notwithstanding
that
there
be
not
any
Senior
puer
alive
at
the
time
.
And
as
to
the
word
(
puer
)
he
held
,
that
it
did
extend
to
both
Sexes
indifferently
;
and
because
it
is
doubtfull
what
Sex
the
father
intended
,
we
are
to
construe
the
same
upon
the
circumstances
,
which
appear
upon
the
parts
of
the
Indentures
:
and
here
it
appeareth
upon
the
Indenture
,
that
he
hath
explained
his
mind
,
(
scil.
)
Eldest
child
,
be
it
Male
or
Female
:
As
if
I
have
two
sons
,
named
J.
and
I
devise
my
lands
,
or
limit
a
remainder
to
J.
my
son
,
the
Law
shall
construe
this
Devise
to
extend
to
my
younger
son
;
for
without
devise
or
limitation
my
eldest
son
should
have
it
.
But
if
J.
S.
hath
two
sons
,
known
by
the
names
of
A.
and
I
Devise
lands
to
A.
son
of
J.S.
there
I
ought
to
explain
my
meaning
openly
:
And
he
conceived
,
That
the
Estate
tail
is
executed
defeasiable
in
W.
Humphreston
,
upon
issue
afterwards
had
;
and
that
the
daughter
should
have
the
lands
,
and
not
the
son
;
and
if
the
Fine
destroy
the
remainder
in
abeyance
limited
to
the
eldest
child
,
then
the
said
eldest
child
shall
have
it
,
de
novo
,
by
the
later
conveyance
.
And
as
to
the
Warranty
of
the
Fine
,
because
the
possession
of
the
Conusees
is
removed
by
the
Statute
of
27
H.
8.
to
the
daughter
,
she
shall
not
have
the
benefit
of
the
Warranty
as
to
vouch
,
but
she
shall
Rebutt
:
as
22
Ass.
37.
69.
Where
a
Feoffment
in
Fee
is
made
to
my
Villein
with
Warranty
and
before
that
the
Feoffor
dieth
,
I
enter
upon
my
Villein
,
so
as
the
Warranty
upon
the
death
of
the
Warrantor
is
not
attached
upon
the
possession
of
my
Villein
,
I
shall
not
have
advantage
of
that
Warranty
:
A
Disseisor
makes
a
Feoffment
in
Fee
upon
Condition
,
the
Disseisee
re-leaseth
the
Feoffee
with
Warranty
,
the
Disseisor
entreth
for
the
condition
broken
;
now
the
Disseisor
shall
Rebutt
by
that
Warranty
,
but
not
vouch
.
And
here
in
our
Case
,
the
Fine
is
a
discontinuance
,
so
as
the
son
is
put
to
his
Action
,
if
he
had
right
,
and
then
the
Warranty
shall
bind
him
;
but
contrary
,
if
his
entry
be
lawfull
.
And
as
to
the
Lease
made
by
the
Infant
,
he
conceived
,
that
it
being
made
without
Rent
,
it
was
meerly
void
,
for
it
was
without
consideration
.
Wray
,
chief
Iustice
,
As
to
the
first
point
,
he
was
of
opinion
,
That
the
Recoverers
shall
be
seised
to
their
own
use
,
untill
they
make
the
Estate
for
that
was
the
use
implied
,
for
all
uses
are
directed
and
ruled
by
the
intent
implied
or
expressed
of
him
,
to
whom
the
land
is
;
and
his
intent
was
,
that
such
Estates
should
be
made
,
and
to
such
purpose
the
Recovery
was
suffered
:
As
if
I
enfeoff
A.
unto
the
use
of
B.
for
his
life
,
there
it
is
implied
,
That
B.
shall
be
seised
of
the
Fee
to
my
use
,
I
covenant
,
That
J.
S.
shall
take
the
profits
of
my
lands
for
his
life
,
this
is
a
good
use
of
the
lands
for
his
life
;
and
he
held
,
that
the
Recoverors
should
be
seised
to
their
own
use
,
untill
,
&c.
And
the
Recoverers
ought
to
make
the
Estates
within
convenient
time
,
or
otherwise
the
use
should
be
revested
again
in
him
who
suffered
the
Recovery
;
and
here
the
Estate
was
made
within
convenient
time
:
And
he
said
,
That
in
every
Case
where
a
remainder
is
limited
in
abeyance
to
one
by
a
proper
name
,
the
same
is
not
good
,
but
by
a
general
name
it
is
good
enough
if
the
party
be
in
esse
when
the
remainder
falls
:
as
a
remainder
limited
upon
an
Estate
for
life
unto
the
first
son
,
or
daughter
of
J.
S.
where
J.
S.
at
the
time
hath
not
any
son
or
daughter
,
the
same
is
good
,
if
such
person
shall
be
in
esse
,
at
the
time
of
the
death
of
the
Tenant
for
life
,
17
E.
3.
A
remainder
limited
Filio
primo
genito
,
&c.
and
3
E.
3.
Fitz.
Tail.
8.
Land
given
to
J.
S.
Et
uxori
quam
primo
matrimonio
duxerit
in
uxorem
,
and
afterwards
he
taketh
a
wife
,
she
shall
take
by
the
same
Conveyance
.
And
as
to
the
Warranty
,
This
Fine
with
Warranty
was
levyed
to
C.
and
B.
unto
the
use
of
himself
for
life
,
the
remainder
to
the
use
of
the
eldest
child
,
&c.
and
he
intended
,
That
the
daughter
should
not
have
the
benefit
of
this
Warranty
;
for
by
the
Statute
,
the
possession
is
removed
,
and
transferred
in
the
Post
before
the
Warranty
could
attach
;
and
therefore
the
same
shall
not
bind
the
son
,
neither
by
Voucher
,
nor
by
Rebutter
:
But
Tenant
by
the
Curtesie
shall
have
benefit
of
the
Warranty
;
for
although
he
be
in
the
Post
,
yet
he
continueth
the
Estate
which
was
made
to
the
wife
.
And
as
to
the
point
in
question
,
we
ought
to
consider
,
that
the
Statute
of
27
H.
8.
of
Vses
is
,
That
Cestuy
que
use
shall
have
the
lands
in
such
plight
as
he
had
the
use
,
which
was
without
Warranty
;
and
therefore
it
shall
be
transferred
into
possession
without
Warranty
:
As
to
the
Lease
made
by
the
Infant
without
rent
,
profit
,
or
other
recompence
,
he
conceived
the
same
to
be
utterly
void
;
as
if
he
grant
a
Rent
,
or
an
Advowson
,
he
may
say
,
that
he
did
not
grant
,
&c.
for
the
thing
included
in
the
Deed
,
doth
not
pass
,
although
he
delivereth
the
Deed
of
Grant
,
with
his
own
hand
:
Two
ioynt-tenants
within
age
,
one
makes
a
Lease
of
years
,
and
dieth
,
the
other
shall
avoid
it
;
for
the
Lease
is
utterly
void
,
of
which
every
stranger
may
take
advantage
;
but
of
acts
voidable
,
it
is
otherwise
:
As
two
Infants
joynt-tenants
,
the
one
Leaseth
for
life
,
and
makes
Livery
in
person
,
and
dieth
,
the
other
shall
not
avoid
it
:
Two
joynt-tenants
,
the
one
maketh
a
Feoffment
upon
condition
,
and
dieth
,
the
other
shall
not
take
benefit
of
the
condition
:
But
here
the
Lease
is
meerly
void
,
of
which
every
stranger
shall
take
advantage
,
and
therefore
upon
this
point
the
Plaintiff
shall
be
barred
.
And
also
he
was
of
opinion
,
That
this
remainder
in
abeyance
limited
,
Seniori
puero
,
was
not
destroyed
by
the
Fine
,
for
it
is
in
the
consideration
of
the
Law
,
and
so
preserved
by
the
Law
;
and
therefore
a
descent
in
the
time
of
vacation
of
an
Abbat
,
shall
not
bind
the
successor
;
and
so
where
the
party
is
beyond
the
seas
;
for
such
persons
and
their
estates
,
the
Law
privilegeth
and
preserveth
:
So
a
remainder
limited
to
the
right
heirs
of
J.
S.
And
where
the
King
seiseth
by
reason
of
a
Ward
,
and
during
such
seisin
of
the
King
,
a
descent
is
cast
,
the
same
shall
not
bind
him
who
hath
right
;
for
he
could
not
enter
upon
the
possession
of
the
King
:
and
by
the
Statute
of
32
H.
8.
A
Recovery
had
against
Tenant
for
life
,
the
remainder
unto
the
right
heirs
of
J.
S.
who
is
alive
at
the
time
of
the
Recovery
,
is
not
helped
by
the
Statute
of
32
H.
8.
For
the
words
of
the
Statute
are
,
To
whom
the
reversion
or
remainder
shall
then
appertain
:
See
11
R.
2.
Fitz.
Detin.
46.
and
so
he
concluded
,
because
that
this
remainder
is
in
the
custody
of
the
Law
,
and
not
in
esse
,
it
is
privileged
and
preserved
and
not
destroyed
by
the
Fine
;
and
upon
issue
had
,
the
remainder
shall
be
executed
,
notwithstanding
the
said
act
done
by
the
father
;
and
without
any
entry
to
be
made
by
the
Conusees
to
raise
the
use
,
for
the
remainder
limited
,
Seniori
puero
,
neither
was
,
nor
could
be
discontinued
:
As
to
the
principal
point
of
the
Case
,
viz.
How
these
words
,
Seniori
puero
,
shall
be
expounded
,
although
divers
authorities
have
been
cited
out
of
Latine
Authours
,
That
this
word
(
puer
)
shall
be
taken
for
the
Male
or
Female
;
yet
I
conceive
,
That
more
commonly
,
it
shall
be
taken
for
the
Male
than
for
the
Female
,
and
we
ought
to
judge
according
to
the
intent
of
the
parties
,
and
not
according
to
the
strict
signification
of
the
word
in
Latine
,
especially
where
it
is
doubtfull
how
it
shall
be
expounded
:
9
H.
7.
16.
A.
was
bound
in
a
Bond
upon
condition
to
pay
,
decem
libras
auri
puri
;
although
there
be
not
any
such
phrase
in
Latine
,
yet
because
it
appeareth
so
to
be
the
meaning
of
the
Obligee
to
have
fine
gold
,
it
was
so
taken
:
39
H.
6.
10.
and
11.
The
word
(
uterque
)
id
est
,
quilibet
pro
parte
sua
,
See
the
Book
:
so
it
was
lately
adjudged
in
the
Court
of
Common-Pleas
,
where
three
were
bounden
,
Et
eorum
uterque
,
which
was
construed
to
be
,
Quilibet
,
for
we
ought
always
in
construction
of
Deeds
,
to
have
regard
to
the
meaning
of
the
parties
,
and
not
to
argue
the
aptness
of
the
Latine
word
.
And
I
conceive
,
That
if
a
Lease
be
made
for
life
,
the
remainder
puero
of
J.
S.
who
hath
a
son
and
a
daughter
,
the
son
shall
have
the
land
,
&c.
for
the
most
worthy
shall
be
preferred
;
and
therefore
,
if
a
Freeman
marrieth
a
Neife
,
she
is
enfranchised
for
ever
,
according
to
the
opinion
of
Fitzherbert
,
which
I
hold
to
be
good
Law
,
for
the
husband
is
the
more
worthy
:
So
if
the
Lease
for
life
be
made
〈◊〉
J.
S.
the
remainder
to
the
right
heirs
of
A.
B.
who
hath
issue
three
daughters
,
and
dieth
,
the
eldest
shall
have
the
remainder
,
and
not
the
other
with
her
,
because
she
is
the
more
worthy
;
and
so
a
remainder
upon
an
Estate
for
life
of
lands
in
Gavelkind
limited
to
the
right
heirs
of
J.
S.
who
hath
issue
two
sons
,
the
eldest
shall
have
it
:
So
here
in
the
principal
Case
,
(
Puer
)
shall
be
expounded
son
,
because
he
is
the
more
worthy
:
But
here
are
other
circumstances
,
which
give
occasion
of
another
construction
;
for
this
doubtfull
word
(
Puer
)
is
explained
by
the
English
Indenture
,
which
the
father
,
W.
Humphreston
,
caused
to
be
made
;
[
Unto
the
use
of
the
eldest
Child
]
which
is
a
good
exposition
of
the
former
Conveyance
:
and
I
am
of
opinion
,
that
the
same
ought
to
be
meant
of
the
daughter
,
for
so
soon
as
she
is
born
,
the
remainder
vests
in
her
,
and
by
the
birth
of
the
son
after
shall
not
be
devested
:
Land
is
leased
to
A.
for
life
,
the
remainder
to
T.
son
of
A.
who
hath
two
sons
of
the
same
name
,
the
eldest
shall
have
it
,
because
the
more
worthy
;
but
,
if
afterwards
the
Donor
declares
his
meaning
to
the
contrary
,
the
same
shall
stand
,
&c.
And
afterwards
Iudgment
was
given
against
the
Plaintiff
,
and
that
the
daughter
should
have
the
Lands
.
CCLXXVI
.
Pasch.
16
Eliz.
In
the
King's-Bench
.
CCLXXVII
.
Pasch.
16
Eliz.
In
the
King's-Bench
.
THree
men
were
bounden
by
Recognizance
,
jointly
and
severally
,
against
all
which
the
Conusee
sued
forth
Execution
by
Scire
facias
;
and
upon
issue
joined
,
it
was
found
for
the
Plaintiff
in
the
King's-Bench
,
and
Execution
awarded
by
Capias
ad
Satisfaciend
.
And
because
the
same
erronicè
emanavit
,
being
upon
a
Recognizance
,
it
was
drawn
off
the
File
;
and
now
the
Conusee
brought
an
Action
of
debt
upon
the
Iudgment
against
one
of
them
,
and
the
opinion
of
the
whole
Court
was
,
that
it
would
not
lie
,
because
the
Iudgment
was
joint
against
them
all
three
.
CCLXXVIII
.
Pasch.
16
Eliz.
In
the
King's-Bench
.
A.
Brought
an
Action
upon
the
Case
,
and
declared
,
That
the
Dean
and
Chapter
of
Westminster
,
did
lease
unto
him
a
house
for
years
by
Deed
indented
,
of
which
Indenture
he
was
possessed
,
and
afterwards
lost
it
,
and
by
Trover
it
came
to
the
hands
of
the
Defendant
,
who
sold
it
,
and
converted
the
money
thereof
coming
to
his
own
use
;
The
Defendant
pleaded
,
Not
guilty
;
and
the
Plaintiff
gave
in
evidence
,
That
the
said
Lease
was
made
to
him
,
and
to
one
B.
and
that
the
said
Indenture
was
delivered
to
the
said
B.
(
And
that
was
agreed
to
be
the
possession
of
them
both
)
and
afterwards
B.
died
,
and
afterwards
A.
the
Plaintiff
,
was
the
sole
owner
of
it
:
and
that
was
holdden
to
be
good
Evidence
on
the
part
of
the
Plaintiff
;
and
if
the
Plaintiff
can
prove
the
other
part
of
his
Declaration
;
i.
e.
that
the
Indenture
came
unto
the
hands
of
the
Defendant
,
and
that
he
sold
it
,
that
then
he
should
recover
.
But
it
was
given
in
Evidence
on
the
Defendants
parts
,
that
the
said
B.
sold
to
the
said
Defendant
his
part
and
interest
in
the
said
Lease
,
and
also
the
said
indenture
;
so
as
now
he
is
become
Tenant
in
common
with
the
Plaintiff
,
and
then
his
sale
doth
not
give
any
cause
of
Action
to
the
Plaintiff
and
that
was
holden
by
the
whole
Court
to
be
good
evidence
without
pleading
of
it
;
The
Case
went
farther
;
That
A.
being
within
age
,
his
father
leased
the
lands
for
20
years
,
and
afterwards
the
son
at
his
full
age
upon
the
back
of
the
Indenture
did
release
to
the
Defendant
all
his
right
;
and
it
was
holden
by
Wray
,
Iustice
,
That
when
the
father
leased
,
he
did
it
as
Guardian
to
his
son
;
and
it
was
not
any
Ejectment
of
the
son
,
but
it
was
a
Lease
in
the
behalf
of
the
son
,
although
the
son
might
avoid
it
,
and
then
when
the
endorsment
is
ut
supra
,
the
same
is
a
good
assignment
;
and
afterwards
the
Plaintiff
was
Nonsuit
.
CCLXXIX
.
Pasch.
16
Eliz.
In
the
King's-Bench
.
IN
an
Action
upon
the
Case
,
the
Plaintiff
declared
,
That
B.
by
his
Will
did
devise
to
each
of
his
daughters
,
he
having
two
daughters
,
200
l.
and
that
the
survivor
should
have
the
whole
;
and
shewed
farther
,
that
one
of
his
two
daughters
died
,
and
that
B.
made
his
Wife
his
Executrix
,
and
that
the
said
wife
took
to
husband
the
Defendant
;
and
farther
declared
,
That
the
Defendant
in
consideration
of
all
that
,
and
that
the
Defendant
should
take
the
surviving
daughter
to
wife
,
and
in
consideration
that
the
Defendant
had
Assets
to
pay
all
Debts
and
Legacies
,
&c.
did
promise
to
pay
to
the
Plaintiff
400
l.
at
four
several
days
:
The
first
day
of
payment
incurred
,
and
no
money
was
paid
,
whereupon
the
Plaintiff
brought
the
Action
;
the
Defendant
pleaded
,
That
he
made
no
such
promise
;
and
it
was
found
for
the
Plaintiff
,
and
damages
were
assessed
for
the
default
of
payment
at
the
first
day
;
and
that
was
moved
in
arrest
of
Iudgment
,
because
the
Assumpsit
was
intire
,
and
the
Plaintiff
ought
to
have
forborn
his
suit
until
all
the
days
of
payment
were
past
,
and
then
to
have
one
entire
Action
for
the
whole
;
but
the
opinion
of
the
whole
Court
was
against
that
;
for
they
said
,
It
is
not
like
unto
a
Debt
upon
a
Contract
,
or
a
Bill
,
where
the
debt
is
to
be
paid
at
several
days
;
for
here
no
debt
is
to
be
recovered
but
onely
damages
for
the
debt
;
and
this
default
of
payment
is
a
wrong
,
and
therefore
the
Action
will
well
lie
,
and
so
it
was
adjudged
.
CCLXXX
.
Pasch.
16
Eliz.
In
the
King's-Bench
.
A.
Devised
,
that
his
lands
should
descend
to
his
son
,
but
he
willed
,
CCLXXXI
.
Bawell
and
Lucas
's
Case
.
Pasch.
16
Eliz.
In
the
Common-Pleas
.
IN
a
Replevin
by
Bawell
against
Lucas
;
It
was
agreed
by
all
the
Iustices
,
viz.
Mounson
,
Manwood
,
Harper
and
Dyer
,
That
if
a
man
seised
of
a
Manor
,
leased
part
of
the
Demeans
for
years
,
or
for
life
,
That
the
reversion
doth
remain
parcel
of
the
Manor
,
but
such
a
Reversion
by
the
Grant
of
the
Manor
,
doth
not
pass
without
Attornment
of
the
Lessee
:
And
where
a
Manor
is
granted
by
Feoffment
unto
another
,
and
afterwards
the
Tenants
attorn
,
the
services
pass
by
the
Livery
and
not
by
any
Grant
;
and
although
in
the
first
Grant
the
Lessee
doth
not
attorn
,
but
a
long
time
after
,
yet
the
Reversion
is
not
severed
from
the
Manor
;
for
the
Attornment
,
as
to
that
intent
,
shall
have
relation
to
the
Livery
to
make
the
Reversion
to
pass
from
the
time
of
the
Grant
,
but
not
to
charge
the
Lessee
with
Waste
:
and
Dyer
said
,
That
if
a
Feoffment
in
Fee
be
made
of
a
Manor
,
with
an
Advowson
appendant
,
and
the
Tenants
do
not
attorn
,
yet
the
Feoffee
shall
have
the
Advowson
;
for
the
Advowson
is
appendant
to
the
principal
part
of
the
Manor
,
(
scil.
)
the
Demeans
,
and
cannot
be
appendant
to
the
services
:
and
Dyer
said
,
That
if
A.
maketh
a
Feoffment
in
Fee
of
a
Manor
,
part
of
which
is
in
Lease
for
years
,
Habendum
to
the
Feoffee
and
his
heirs
,
to
the
use
of
the
Feoffee
and
his
heirs
upon
condition
that
the
Feoffee
shall
pay
to
the
Feoffor
within
ten
days
,
1000
l.
and
if
he
fail
,
then
to
the
use
of
the
Feoffor
for
life
,
the
remainder
to
the
use
of
his
son
in
tail
,
and
the
money
is
not
paid
,
the
Lessee
attorns
after
the
ten
days
to
the
Feoffee
,
CCLXXXII
.
Vavasor
's
Case
.
Hill.
16
Eliz.
In
the
Common-Pleas
.
THE
Case
was
,
That
Nicholas
Ellis
seised
of
the
Manor
of
Woodhall
,
leased
the
same
to
William
Vavasor
and
his
wife
,
for
the
life
of
the
wife
,
the
remainder
to
the
right
heirs
of
the
husband
:
The
husband
made
a
Feoffment
in
Fee
to
the
use
of
himself
and
his
wife
for
their
lives
,
the
remainder
to
his
right
heirs
,
the
husband
died
,
the
wife
held
in
,
and
committed
waste
in
a
Park
,
parcel
of
the
Manor
;
It
was
moved
,
If
the
Writ
of
Waste
shall
suppose
that
the
wife
holdeth
in
,
Ex
dimissione
Nichol.
Ellis
,
or
Ex
dimissione
viri
:
and
the
opinion
of
all
the
Iustices
was
,
That
the
Writ
upon
this
matter
ought
to
be
general
;
viz.
That
she
holds
in
,
de
haereditate
,
J.
S.
haeredis
,
&c.
without
saying
,
ex
dimissione
hujus
,
vel
illius
,
for
she
is
not
in
by
the
Lessor
,
nor
by
the
Feoffees
,
but
by
the
Statute
of
Uses
;
and
therefore
the
Writ
shall
be
,
Ex
haereditate
,
&c.
And
also
the
opinion
of
the
Iustices
was
,
That
the
wife
in
this
case
,
is
not
remitted
,
but
that
she
is
in
according
to
the
form
of
the
Feoffment
:
Dyer
,
The
Formedon
brought
against
Manures
,
rehearsed
in
the
Writ
,
a
Will
and
divers
Conveyances
,
by
reason
of
which
,
the
Writ
was
of
exceeding
length
;
and
in
such
cases
the
Writ
is
good
;
yet
if
the
Writ
be
general
,
it
is
sufficient
.
Note
in
this
Case
,
That
the
Plaintiff
assigned
the
waste
in
destroying
of
Deer
in
the
Park
:
And
Mead
,
Serjeant
,
said
,
That
waste
cannot
be
assigned
in
the
Deer
,
unless
the
Defendant
hath
destroyed
all
the
Deer
,
and
of
that
opinion
was
Dyer
:
Manwood
,
If
the
Lessee
of
a
Pigeon-house
destroy
all
the
old
Pigeons
but
one
or
two
couple
,
the
same
is
waste
;
and
if
the
Keeper
doth
destroy
all
the
Deer
,
so
as
the
ground
is
become
not
Parkable
,
the
same
is
waste
,
although
he
hath
not
destroyed
the
whole
:
See
8
R.
2.
Fitz.
Wast
.
97.
If
there
be
a
sufficient
store
left
in
a
Park
;
Pond
,
&c.
it
is
well
enough
,
&c.
CCLXXXIII
.
Mutton
's
Case
.
Hill.
16
Eliz.
In
the
Common
Pleas.
JAne
Mutton
brought
a
Writ
of
Entry
,
Sur
disseisin
,
Anne
Mutton
who
pleaded
,
That
one
John
Mutton
was
seised
,
and
levyed
a
Fine
to
the
use
of
himself
,
and
such
wife
and
wives
as
the
said
John
should
after
marry
,
by
what
name
or
names
they
should
be
called
,
for
term
of
their
lives
,
and
afterwards
to
the
use
of
the
same
Jane
,
now
Demandant
in
tail
,
the
remainder
over
to
the
right
heirs
of
the
said
John
Mutton
,
and
afterwards
the
said
John
Mutton
took
to
wife
,
the
now
Tenant
,
upon
which
Bar
the
Demandant
did
demur
in
Law.
And
it
was
argued
by
Jeofries
,
Serjeant
,
John
Mutton
,
untill
he
took
a
wife
,
and
then
unto
the
use
of
him
and
his
wife
for
their
lives
,
the
same
had
been
a
good
use
to
the
wife
;
But
in
our
Case
,
the
use
is
limited
to
the
wife
in
praesenti
,
and
not
upon
a
contingent
;
and
because
the
wife
at
the
time
of
the
limitation
was
not
capable
,
she
shall
never
take
after
;
and
yet
it
may
be
said
,
That
a
joynt
Estate
may
be
in
esse
,
and
yet
to
begin
at
several
times
:
as
18
E.
4.
12.
A
Feoffment
is
made
to
three
,
and
Livery
is
made
to
one
of
them
;
and
first
one
of
them
agrees
to
the
Livery
,
and
a
year
after
,
another
agreeth
,
and
afterwards
the
third
;
although
they
take
nothing
untill
agreement
,
yet
when
they
have
agreed
,
the
agreement
shall
have
relation
to
the
time
of
the
Livery
;
but
in
truth
,
the
reason
thereof
is
,
because
the
Freehold
shall
be
adjudged
in
them
all
,
untill
they
have
disagreed
.
And
if
a
disseisin
be
to
the
use
of
A.
B.
and
C.
And
first
A.
agrees
to
it
,
and
afterward
B.
and
after
C.
although
they
took
nothing
untill
agreement
,
yet
when
they
have
agreed
,
their
agreement
shall
have
relation
to
the
time
of
the
first
disseisin
;
and
if
in
such
case
the
Disseisor
had
made
a
Lease
before
agreement
,
the
party
to
whose
use
after
agreeing
,
shall
avoid
such
Lease
.
CCLXXXIV
.
Stamford
's
Case
.
Hill.
16
Eliz.
In
the
Common
Pleas.
THE
Case
was
,
A.
took
a
wife
,
and
afterwards
married
Elizabeth
Stamford
,
living
his
first
wife
,
and
by
Deed
gave
part
of
his
goods
to
the
said
Elizabeth
;
and
as
to
the
residue
of
his
goods
,
being
but
of
small
value
,
he
made
the
said
Elizabeth
his
Executrix
,
and
died
;
she
refused
the
Executorship
,
for
which
the
Ordinary
committed
Adminstration
to
B.
Gawdy
,
Serjeant
,
asked
the
advice
of
the
Court
,
against
whom
the
Action
of
Debt
should
lie
?
for
,
if
the
Creditor
impleadeth
the
Administrator
,
he
hath
not
Assets
;
if
the
Executrix
her self
,
she
will
plead
that
she
hath
renounced
the
Cxecutorship
,
and
that
Administration
is
committed
to
B.
And
the
opinion
of
Dyer
,
Iustice
,
was
,
That
the
Gift
is
void
by
the
Common
Law
,
and
also
by
the
Statute
of
13
Eliz.
and
then
,
if
the
Gift
be
void
any
way
,
the
Creditor
may
have
an
Action
of
Debt
against
the
said
Elizabeth
as
Executor
of
her
own
wrong
:
And
see
that
such
a
Gift
is
void
by
the
Common
Law
,
43
E.
3.
2.
And
by
Manwood
,
Iustice
,
He
who
takes
the
goods
of
the
dead
,
shall
not
be
charged
as
executor
of
his
own
wrong
,
unless
he
doth
something
as
Executor
:
as
to
pay
Debts
,
make
Acquittances
,
&c.
See
41
E.
3.
31.
32
H.
6.
7.
Dyer
,
If
one
takes
the
goods
of
the
dead
,
and
converteth
them
to
his
own
use
,
he
is
chargeable
as
Executor
,
and
so
it
hath
been
adjudged
in
the
time
of
this
Queen
,
in
the
Case
of
one
Stokes
,
which
was
affirmed
by
Bendloes
and
Harper
:
See
now
Co.
2
Part.
53.
Reade's
Case
;
where
no
lawfull
Executor
,
or
Administrator
is
,
there
,
if
a
stranger
takes
the
goods
of
the
dead
into
his
possession
,
the
same
is
a
good
Administration
to
charge
him
as
Executor
of
his
own
wrong
.
CCLXXXV
.
Hill.
19
Eliz.
In
the
Common-Pleas
.
That
such
Recovery
shall
be
void
against
such
persons
to
whom
the
reversion
,
or
remainder
shall
then
appertain
,
i.
e.
at
the
time
of
such
Recovery
.
And
it
was
said
by
one
of
the
Serjeants
at
Bar
;
That
if
lands
be
given
to
E.
for
life
,
the
remainder
to
B.
in
tail
,
the
remainder
to
C.
in
Fee
,
B.
dyeth
,
his
wife
young
with
child
,
with
a
son
;
a
Recovery
is
had
against
E.
with
the
issue
of
C.
and
afterwards
the
son
is
born
,
he
shall
not
be
helped
by
this
Statute
of
32
H.
8.
for
that
remainder
was
not
in
esse
,
at
the
time
of
the
Recovery
.
But
it
was
holden
in
the
principal
Case
,
That
the
heir
might
avoid
the
said
Recovery
by
the
Common
Law
;
for
the
recompence
cannot
extend
to
such
a
remainder
,
which
is
not
in
esse
.
CCLXXXVI
.
Sidenham
and
Worlington
's
Case
.
Pasch.
27
Eliz.
In
the
Common
Pleas.
J.
S.
who
was
arrested
in
the
King's
Bench
,
upon
an
Action
of
30
l.
and
that
afterwards
,
for
the
default
of
J.
S.
he
was
constrained
to
pay
the
30
l.
after
which
,
the
Defendant
meeting
with
the
Plaintiff
,
promised
him
for
the
same
consideration
,
That
he
would
repay
that
30
l.
which
he
did
not
pay
,
upon
which
the
Plaintiff
brought
the
Action
;
the
Defendant
pleaded
,
Non
assumpsit
,
upon
which
issue
was
joyned
,
which
was
found
for
the
Plaintiff
.
Walmsley
,
Serjeant
,
for
the
Defendant
,
moved
the
Court
,
That
this
consideration
will
not
maintain
the
Action
,
because
the
consideration
and
promise
did
not
concur
and
go
together
;
for
the
consideration
was
long
before
executed
,
so
as
now
it
cannot
be
intended
that
the
promise
was
for
the
same
consideration
,
As
if
one
giveth
me
a
Horse
,
and
a
Month
after
,
I
promise
him
10
l.
for
the
said
Horse
,
he
shall
never
have
Debt
for
the
10
l.
nor
Assumpsit
upon
that
promise
;
for
there
is
neither
contract
,
nor
consideration
,
because
the
same
is
executed
:
Anderson
,
This
Action
will
not
lie
;
for
it
is
but
a
bare
agreement
,
&
nudum
pactum
,
because
the
contract
was
determined
,
and
not
in
esse
at
the
time
of
the
promise
;
But
he
said
,
it
is
otherwise
upon
a
consideration
of
marriage
of
one
of
his
cosins
;
for
marriage
is
always
a
present
consideration
:
Windham
agreed
with
Anderson
,
and
he
put
the
Case
in
3
H.
7.
If
one
selleth
a
Horse
unto
another
,
and
at
another
day
he
will
warrant
him
to
be
sound
of
limb
and
member
,
it
is
a
void
warrant
,
for
that
such
warranty
ought
to
have
been
made
or
given
at
such
time
as
the
Horse
was
sold
:
Periam
,
Iustice
,
conceived
,
That
the
Action
did
well
lie
;
and
he
said
,
That
this
Case
is
not
like
unto
the
Cases
which
have
been
put
of
the
other
side
:
For
there
is
a
great
difference
betwixt
Contracts
and
this
Case
,
for
in
Contracts
upon
sale
,
the
consideration
,
and
the
promise
,
and
the
sale
,
ought
to
meet
together
,
for
a
Contract
is
derived
from
con
and
trahere
,
which
is
a
drawing
together
,
so
as
in
Contracts
every
thing
which
is
requisite
,
ought
to
concur
and
meet
together
,
viz.
the
consideration
of
the
one
side
,
and
the
sale
or
the
promise
on
the
other
side
;
But
to
maintain
an
Action
upon
an
Assumpsit
,
the
same
is
not
requisit
,
for
it
is
sufficient
,
if
there
be
a
moving
cause
or
consideration
precedent
,
for
which
cause
or
consideration
the
promise
was
made
,
and
such
is
the
common
practice
at
this
day
:
For
in
an
Action
upon
the
Case
,
upon
a
promise
,
The
Declaration
is
laid
▪
That
the
Defendant
,
for
,
and
in
consider
action
of
20
l.
to
him
paid
,
(
posted
scil.
)
that
is
to
say
,
at
a
day
after
super
se
assumpsit
,
and
that
is
good
,
and
yet
there
the
consideration
is
said
to
be
Executed
;
And
he
said
,
that
the
Case
in
Dyer
,
10
Eliz.
●72
.
would
prove
the
Case
;
For
there
the
Case
was
,
That
the
Apprentize
of
one
Hunt
,
was
arrested
when
his
Master
Hunt
was
in
the
Country
,
and
one
Baker
,
one
of
the
neighbours
of
Hunt
,
to
keep
the
said
Apprentize
out
of
prison
,
became
his
ball
,
and
paid
the
Debt
;
afterwards
Hunt
the
Master
,
returning
out
of
the
Country
,
thanked
Baker
for
his
neighbourly
kindness
to
his
Apprentize
,
and
promised
him
,
that
he
would
repay
him
the
sum
which
he
had
paid
for
his
servant
and
Apprentize
:
And
afterwards
,
upon
that
promise
,
Baker
brought
an
Action
upon
the
Case
against
Hunt
,
and
it
was
adjudged
in
that
Case
,
that
the
Action
would
not
lie
,
because
the
consideration
was
precedent
to
the
promise
,
because
it
was
executed
and
determined
long
before
.
But
in
that
Case
,
it
was
holden
by
all
the
Iustices
,
That
if
Hunt
had
requested
Baker
to
have
been
surety
or
bail
,
and
afterwards
Hunt
had
made
the
promise
for
the
same
consideration
,
the
same
had
been
good
,
for
that
the
consideration
did
precede
,
and
was
at
the
instance
and
request
of
the
Defendant
.
Rhodes
,
Iustice
,
agreed
with
Periam
;
and
he
said
,
That
if
one
serve
me
for
a
year
,
and
hath
nothing
for
his
service
,
and
afterwards
,
at
the
end
of
the
year
,
I
promise
him
20
l.
for
his
good
and
faith
full
service
ended
,
he
may
have
and
maintain
an
Action
upon
the
Case
upon
the
same
promise
,
for
it
is
made
upon
a
good
consideration
;
but
if
a
servant
hath
wages
given
him
,
and
his
Master
,
ex
abundanti
doth
promise
him
10
l.
more
after
his
service
ended
,
he
shall
not
maintain
an
Action
for
that
10
l.
upon
the
said
promise
;
for
there
is
not
any
new
cause
or
consideration
preceding
the
promise
;
which
difference
was
agreed
by
all
the
Iustices
,
and
afterwards
,
upon
good
and
long
advice
,
and
consideration
had
of
the
principal
Case
,
Iudgment
was
given
for
the
Plaintiff
,
and
they
much
relied
upon
the
Case
of
Hunt
,
and
Baker
,
10
Eliz.
Dyer
,
272.
See
the
Case
there
.
CCLXXXVII
.
Higham
's
Case
.
Trin.
25
Eliz.
In
the
Common-Pleas
.
Thomas
Higham
was
seised
of
100
Acres
of
Lands
,
called
Jacks
,
usually
occupied
with
a
House
;
and
that
he
let
the
said
House
,
and
40
of
the
said
100
Acres
to
J.
S.
for
life
,
and
made
his
Will
,
by
which
he
devised
the
said
House
,
and
all
his
Lands
called
Jacks
,
then
in
the
occupation
of
the
said
J.
S.
unto
his
Wife
for
life
,
and
that
after
the
decease
of
his
Wife
,
the
remainder
thereof
,
and
of
all
his
other
Lands
belonging
to
Jacks
,
should
be
to
R.
his
second
son
,
&c.
And
by
Mead
,
The
Wife
shall
not
have
by
implication
the
residue
of
Jacks
;
for
she
had
an
express
Estate
in
the
House
and
40
Acres
of
Lands
,
and
having
expressed
his
Will
concerning
the
same
,
it
shall
not
be
extended
by
implication
;
and
he
said
,
It
had
been
adjudged
between
Glover
and
Tracy
,
That
if
Lands
be
devised
to
one
,
and
the
heirs
Males
of
his
body
,
and
if
he
die
without
heirs
of
his
body
,
that
then
the
Land
shall
remain
over
,
that
the
Donee
hath
but
an
Estate
in
tail
to
the
heirs
Males
of
his
body
:
Anderson
,
Anthony
Brown
,
it
was
holden
that
if
a
man
seised
of
two
Acres
of
Lands
,
deviseth
one
of
them
to
his
Wife
for
life
,
and
that
J.
S.
shall
have
the
other
Acre
after
the
death
of
his
Wife
,
that
the
Wife
hath
not
any
Estate
in
the
latter
Acre
.
It
was
also
moved
,
What
thing
shall
pass
to
his
second
son
by
this
Devise
?
and
by
the
Lord
Anderson
,
The
words
,
usually
occupied
with
it
,
amount
to
the
words
,
the
Lands
let
with
it
;
but
these
60
Acres
are
not
let
with
it
,
therefore
they
shall
not
pass
:
Windham
contrary
;
Although
they
do
not
pass
by
the
words
,
occupied
with
it
,
yet
they
shall
pass
by
the
name
of
Jacks
,
or
belonging
to
Jacks
;
and
afterwards
,
Anderson
,
mutata
opinine
,
agred
with
him
.