CASES
Reported
by
S
R.
JOHN
POPHAM
Knight
,
Lord
chief
Justice
of
ENGLAND
,
In
the
time
of
Queen
ELIZABETH
;
and
written
with
his
own
hand
in
French
,
and
now
faithfully
done
into
English
:
to
which
are
added
some
remarkable
CASES
,
Reported
by
other
Learned
,
and
Judicious
Pens
,
since
his
death
.
Fenner
versus
Fisher
.
Mich.
34.
and
35.
Eliz.
Reginae
,
in
the
Kings
Bench
IN
Trespasse
brought
by
Iustice
Fenner
against
Andrew
Fisher
,
for
a
Trespasse
done
in
the
Parsonage
house
of
Cravfords
in
the
County
of
Kent
,
30.
Maij
34.
of
the
Queen
,
the
Defendant
pleaded
that
one
〈…〉
was
seised
of
the
same
Messuage
in
his
Demesne
as
of
see
,
and
being
so
seised
,
the
〈…〉
day
of
,
in
the
same
year
,
did
demise
it
to
the
Defendant
for
two
years
,
from
such
a
Feast
then
last
past
;
by
virtue
of
which
he
entred
and
was
possessed
,
untill
the
Plaintiff
claiming
by
colour
of
a
Deed
made
of
the
sayd
Wrigh●
where
nothing
passed
by
the
Deed
,
upon
which
the
Defendant
entred
,
&c.
The
Plaintiff
replies
by
protestation
,
that
the
sayd
Wrigh●
was
not
seised
as
the
Defendant
hath
alledged
:
And
for
Plea
saith
,
that
the
sayd
Wright
did
not
let
it
to
the
Defendant
,
as
the
Defendant
hath
alledged
;
upon
which
being
at
Issue
,
and
found
for
the
Plaintif
;
Ackinson
moved
,
that
Iudgment
ought
not
to
be
given
for
the
plaintiff
,
because
that
he
hath
not
made
any
Title
by
his
Replication
,
for
by
9
E.
4.
49.
In
Trespasse
the
Defendant
pleads
in
Bar
and
gives
colour
to
the
Plaintiff
;
it
is
taken
for
a
Rule
that
the
Plaintiff
ought
to
make
Title
:
Cook
answered
,
that
he
needs
not
to
make
Title
in
this
case
,
but
that
it
sufficeth
to
traverse
the
Bar
without
making
a
Title
,
and
sayd
that
in
22
E.
4.
Fitzh
.
Trespass
,
It
is
adjudged
that
in
Trespasse
the
Plaintiff
may
traverse
the
Bar
without
making
Title
in
his
Replication
;
and
here
in
as
much
as
it
is
acknowledged
by
the
Defendant
,
that
Wright
did
demise
it
to
the
Plaintiff
,
and
that
this
is
a
Lease
ta
will
at
the
least
not
defeated
by
his
own
shewing
,
but
by
the
Lease
made
to
Defendant
,
this
being
traversed
and
found
against
the
Defendant
.
The
Plaintiff
by
the
acknowledgment
of
the
Defendant
himself
,
hath
a
good
Title
against
him
to
enter
into
the
Land
,
and
by
it
the
Defendant
by
his
Re-entry
is
become
Trespass●●
to
the
Plaintiff
;
and
he
sayd
,
that
in
2
E.
4.
fol.
In
Trespasse
,
where
the
Defendant
pleads
that
he
let
the
Land
to
the
Plaintiff
for
another
mans
life
,
and
that
he
for
whose
life
it
was
,
was
dead
,
upon
which
he
entred
,
and
it
is
adjudged
that
it
sufficeth
for
the
Plaintiff
to
maintain
that
Cestuy
&
vie
was
yet
living
without
making
any
other
Title
:
And
yet
these
reasons
Cleoch
and
Gawdy
held
the
Replication
good
,
to
which
Popham
sayd
,
that
we
as
Iustices
ought
not
to
adjudge
for
the
Plaintif
where
a
good
&
formall
bar
is
pleaded
as
here
it
is
.
But
wherby
the
Record
it self
which
is
before
us
,
we
cannot
see
that
the
Plaintiff
hath
good
cause
of
Action
:
And
therefore
I
agree
that
in
Trespasse
in
some
cases
the
Plaintiff
may
traverse
the
Bar
,
or
part
of
it
,
without
making
any
other
Title
then
that
which
is
acknowledged
to
the
Plaintiff
by
the
Bar
,
but
this
alwaies
ought
to
be
where
a
Title
is
acknowledged
to
the
Plaintiff
by
the
Bar
,
and
by
another
means
destroy
by
the
same
Bar
,
for
there
it
sufficeth
the
Plaintiff
to
traverse
that
part
of
the
Bar
which
goeth
to
the
destruction
of
the
Title
of
the
Plaintiff
comprised
in
the
Bar
,
without
making
any
other
Title
,
but
if
hee
will
traverse
any
other
part
of
the
Bar
,
he
cannot
do
it
without
making
an
especiall
Title
to
himself
in
his
Replication
,
where
by
the
Bar
the
first
possession
appeareth
to
be
in
the
Defendant
,
because
that
although
the
Traverse
there
be
found
for
the
Plaintiff
,
yet
notwithstanding
by
the
Record
in
such
a
Case
the
first
Possessions
will
yet
appear
to
be
in
the
Defendant
,
which
sufficeth
to
maintain
his
Regresse
upon
the
Plaintiff
,
and
therefore
the
Court
hath
no
matter
before
them
in
such
a
Case
to
adjudge
for
the
Plaintiff
,
unlesse
in
cases
where
the
Plaintiff
shews
a
speciall
Title
under
the
Possession
of
the
Defendant
;
As
for
example
,
In
trespasse
for
breaking
of
his
Close
,
the
Defendant
pleads
that
J.
G.
was
seised
of
it
in
his
Demesne
as
of
fee
,
and
enfeoffed
J.
K.
by
virtue
of
which
he
was
seised
accordingly
,
and
so
being
seised
,
enfeoffed
the
Defendant
of
it
,
by
which
he
was
seised
,
untill
the
Plaintiff
claiming
by
calour
of
a
Deed
of
Feoffment
made
by
the
sayd
J.
G.
long
before
that
he
enfeoffed
J.
K.
(
where
nothing
passed
by
the
sayd
Feoffment
)
entred
,
upon
which
the
Defendant
did
re-enter
,
here
the
Plaintiff
may
well
traverse
the
Feoffment
supposed
to
be
made
by
the
sayd
J.
G.
to
the
sayd
I.
K.
without
making
Title
,
because
that
this
Feoffment
only
destroies
the
Estate
at
will
made
by
the
sayd
I.
G.
to
the
Plaintiff
,
which
being
destroyed
he
cannot
enter
upon
the
Defendant
,
albeit
the
Defendant
cometh
to
the
Land
by
Disseisin
,
and
not
by
the
Feoffment
of
the
sayd
I.
K.
for
the
first
Possession
of
the
Defendant
is
a
good
Title
in
Trespasse
against
the
Plaintiff
,
if
he
cannot
shew
or
maintain
a
Title
Paramoun●
.
But
the
Feoffment
of
the
sayd
I.
G.
being
traversed
and
found
for
him
,
he
hath
by
the
acknowledgment
of
the
Defendant
himself
a
good
Title
against
him
,
by
reason
of
the
first
Estate
at
will
acknowledged
by
the
Defendant
to
be
to
the
Plaintiff
,
and
now
not
defeated
:
But
in
the
same
case
he
cannot
traverse
the
Feoffment
supposed
to
be
made
to
the
sayd
I.
K.
to
the
Defendant
,
without
an
especiall
Title
made
to
himself
;
for
albeit
that
I.
K.
did
not
enfeoff
the
Defendant
,
but
that
the
Defendant
disseised
him
,
or
that
he
cometh
to
the
Land
by
another
means
,
yet
he
hath
a
good
Title
against
the
Plaintiff
by
his
first
Possession
,
not
destroyed
by
any
Title
Paramount
,
by
any
matter
which
appeareth
by
the
Record
,
upon
which
the
Court
is
to
adjudge
;
and
with
this
accord
the
opinion
of
31
&
.
4.
1.
That
the
materiall
matter
of
the
Bar
ought
alwaies
to
be
traversed
,
or
other
wise
that
which
upon
the
pleading
is
become
to
be
materiall
,
and
that
which
the
Plaintiff
traversed
here
,
to
wit
,
the
Lease
made
by
Wright
to
the
Defendant
is
the
materiall
point
of
the
Bar
which
destroyeth
the
Title
Paramount
acknowledged
to
the
Plaintiff
by
the
colour
given
in
the
Bar
which
is
good
without
another
Title
made
:
So
note
well
the
diversity
where
in
pleading
in
Trespasse
the
first
Possession
is
acknowledged
in
the
Plaintiff
by
the
Bar
,
and
where
it
appeareth
by
the
pleading
to
be
in
the
Defendant
,
and
where
,
and
by
what
matter
the
first
Possession
acknowledged
in
the
Plaintiff
by
the
Bar
is
avoided
by
the
same
Bar
;
And
upon
this
,
Iudgment
was
given
for
the
Plaintiff
,
as
appeareth
in
34.
and
35.
Eliz.
Rol.
Earl
of
Bedford
,
versus
Eliz.
&
Anne
Russell
.
Mich.
34.
and
35.
Eliz.
2.
IN
tho
Court
of
Wards
,
the
Case
was
thus
,
between
the
now
Earl
of
Bedford
,
Baruake
Chaldon
,
&c.
in
Commitatu
Dorset
,
in
his
Demesne
as
of
see
,
and
so
seised
the
fourth
year
of
Queen
Eliz.
of
it
enfeoffed
the
Lord
S.
John
of
Bletsoe
,
and
others
in
see
,
to
the
use
of
himself
for
forty
years
,
from
the
date
of
the
sayd
Deed
,
and
after
to
the
use
of
the
sayd
John
then
his
second
Son
,
and
the
Heirs
Males
of
his
body
;
and
for
default
of
such
Issue
,
then
to
the
use
of
the
right
Heirs
of
the
sayd
Earl
the
Feoffor
for
ever
:
Afterwards
Edward
Lord
Russell
Son
and
Heir
apparant
to
the
sayd
Earl
dyed
without
Issue
,
and
after
the
sayd
John
Lord
Russell
dyed
without
Issue
Male
,
having
Issue
the
sayd
two
Daughters
,
afterwards
to
wit
27
Eliz.
the
sayd
Francis
Earl
of
Bedford
,
by
Indenture
made
between
him
and
the
Earl
of
Cumberland
and
others
in
consideration
of
the
advancement
of
the
Heirs
Males
of
the
body
of
the
sayd
Earl
,
which
by
course
of
descent
should
or
might
succeed
the
sayd
Earl
,
in
the
name
and
dignity
of
the
Earldome
of
Bedford
,
and
for
the
better
establishment
of
his
Lordships
Mannors
and
Hereditaments
,
in
the
name
and
blood
of
the
sayd
Earl
,
covenanted
and
grantes
with
the
sayd
Covenantees
,
that
he
and
his
Heirs
hereafter
shall
stand
seised
of
the
sayd
Mannors
(
amongst
others
)
to
the
use
of
himself
for
life
,
without
impeachment
of
Waste
,
and
after
his
decease
to
the
use
of
Francis
the
Lord
Russell
,
and
the
Heirs
Males
of
his
body
;
&
for
default
of
such
Issue
,
to
the
use
of
Sir
William
Russell
Knight
,
his
youngest
Son
,
and
the
Heirs
Males
of
his
body
,
with
diverse
Remainders
over
:
after
which
the
sayd
Francis
,
Lord
Russell
tyed
,
having
Issue
Edward
the
now
Earl
of
Bedford
,
and
after
this
the
sayd
Franc●s
late
Earl
of
Bedford
dyed
also
,
and
after
the
Daughters
of
the
sayd
John
Lord
Russell
,
or
the
now
Earl
of
Bedford
,
shall
have
these
Mannors
of
Barunke
,
&c.
was
the
question
;
and
upon
this
it
was
argued
by
Cook
,
Sollinton
and
others
,
for
the
Daughters
,
that
an
use
at
Common-law
,
was
but
a
confidence
put
in
some
to
the
benefit
and
behoof
of
others
,
and
that
Conscience
was
to
give
remedy
,
but
for
those
for
whose
availe
the
confidence
was
,
and
that
was
in
this
Case
,
for
the
sayd
Daughters
which
were
the
right
Heirs
to
the
sayd
Francis
late
Earl
of
Bedford
,
upon
the
first
conveyance
made
41
Eliz.
for
the
confidence
that
he
put
in
the
Feoffees
,
as
to
the
profits
that
he
himself
was
to
have
,
was
but
for
the
forty
years
,
and
how
can
any
other
say
that
he
shall
have
any
other
Estate
,
when
he
himself
saith
,
that
he
will
have
it
but
for
forty
years
;
and
therefore
in
this
case
his
right
Heir
shall
take
as
a
Purchasor
,
by
the
intent
of
the
Feoffor
which
hath
power
to
make
a
disposition
of
the
use
at
his
pleasure
,
and
his
pleasure
(
as
appeareth
)
was
to
have
it
so
,
and
it
is
not
as
if
the
use
had
been
limitted
to
be
to
himself
for
life
with
such
a
Remainder
over
,
in
which
Case
the
use
of
the
Fee
by
the
operation
of
Law
ought
to
execuse
in
himself
for
the
Free-hold
which
was
in
him
before
:
As
where
Land
is
given
to
one
for
life
,
the
Remainder
to
his
right
Heirs
,
he
hath
a
Fee-simple
executed
,
but
here
he
shall
have
but
an
Estate
for
forty
years
precedent
,
and
that
the
Fee-simple
cannot
be
executed
by
such
a
limitation
made
to
the
right
Heirs
;
but
in
case
of
an
Estate
for
years
only
precedent
such
a
limitation
to
his
right
Heirs
afterwards
is
not
good
,
but
in
case
of
an
use
it
is
otherwise
,
for
it
may
remain
to
be
executed
,
to
be
an
use
in
Esse
where
the
right
Heir
shall
be
,
and
therefore
not
to
be
resembled
to
an
Estate
made
in
Possession
.
And
an
Vse
is
alwaies
to
be
guided
according
to
that
which
may
be
collected
to
be
the
purpose
and
intent
of
the
parties
:
And
therefore
if
a
man
make
an
Estate
of
his
Land
without
limitation
of
any
Vse
or
confidence
,
the
Law
shall
say
that
it
is
to
his
own
use
,
but
if
it
be
upon
confidence
then
it
shall
be
to
the
Vse
of
the
party
to
whom
it
is
made
,
or
according
to
the
confidence
which
sh●ll
be
absolute
,
or
according
to
that
which
is
limitted
,
which
may
alter
that
which
otherwise
shall
be
taken
upon
the
generall
confidence
,
as
30
H.
6.
Fitz.
Devise
,
If
a
man
devise
Lands
to
another
in
Fee
,
he
hath
the
use
and
Title
of
it
,
but
if
it
be
limitted
to
his
use
for
his
life
only
,
the
use
of
the
Fee
shall
be
to
the
Heir
of
the
Devisor
,
for
by
the
limitation
his
intent
shall
be
taken
to
be
otherwise
,
then
it
should
be
taken
if
this
limitation
had
not
been
;
and
in
as
much
as
in
this
case
the
Earl
reserves
to
himself
but
the
use
for
years
,
it
is
evident
that
his
intent
never
was
to
have
the
Fee
,
to
surrender
this
Term
,
which
perhaps
he
intended
to
be
for
the
benefit
of
his
will
,
which
shall
be
defeated
contrary
to
his
purpose
,
if
the
Fee
shall
be
also
in
him
by
the
death
of
the
sayd
Iohn
,
without
Issue
Male
,
and
therefore
the
sayd
Daughters
ought
to
have
the
Land
.
And
on
the
other
part
it
was
argued
by
Glanvil
:
Serjeant
,
and
Egerton
the
Attorney
Generall
,
that
this
limitation
made
to
the
right
Heirs
,
is
void
in
the
same
manner
,
as
if
a
man
give
Lands
to
another
for
life
,
the
Remainder
to
the
right
Heirs
of
the
Feoffor
,
in
this
case
the
Heir
shall
take
by
descent
as
a
Reversion
remaining
to
the
Feoffor
,
and
not
as
a
Remainder
devested
out
of
him
,
for
the
ancient
right
priviledge
the
Estate
which
he
may
take
,
and
therfore
he
shall
take
it
by
descent
and
not
by
purchase
;
for
the
name
of
right
Heir
is
not
a
name
of
purchase
betwixt
the
Ancestor
and
his
heir
,
because
that
doth
instance
that
he
happeneth
to
be
heir
,
he
takes
it
by
descent
,
and
then
it
comes
too
late
to
take
by
purchase
;
And
another
reason
that
the
Daughters
shall
not
have
it
is
,
because
that
when
Sir
Iohn
Russell
dies
without
Issue
Male
,
which
Estate
might
have
preserved
the
Remainder
,
if
it
shall
be
a
Remainder
,
there
was
not
any
right
heir
of
the
sayd
Francis
Earl
of
Bedford
to
take
this
Remainder
,
because
that
the
sayd
Earl
survived
him
:
And
therefore
it
is
to
bee
resembled
to
this
Case
;
Land
is
given
in
Tail
,
the
Remainder
to
the
right
Heirs
of
I.
G.
the
Donee
dyes
without
Issue
in
the
life
of
I.
G.
in
this
case
,
albeit
I.
G.
dyes
afterwards
having
an
heir
,
yet
this
heir
shall
never
have
the
Loud
,
because
he
was
not
heir
in
Esse
to
take
it
when
the
Remainder
fell
,
and
for
the
mean
Estate
for
years
this
cannot
preserve
a
Remainder
,
no
more
then
when
Land
is
given
for
years
,
the
Remainder
to
the
right
heirs
of
I.
G.
this
Remainder
can
never
be
good
if
I.
G.
be
then
living
,
because
such
a
Remainder
cannot
depend
but
upon
a
Free-hold
precedent
at
least
,
and
therefore
the
Inheritance
here
shall
go
to
the
now
Earl
of
Bedford
by
the
second
assurance
.
And
upon
consideration
of
the
Case
and
severall
Confirmes
had
upon
this
amongst
the
Iudges
and
Barens
,
it
was
at
last
resolved
by
all
(
but
Baron
Clarke
)
that
the
Daughters
shall
not
have
the
Mannors
in
the
County
of
Do●set
,
but
the
now
Earl
of
Bedford
,
and
principally
upon
this
reason
,
because
there
was
nor
right
Heir
to
take
as
Purchasor
where
the
mean
Estate
Taile
was
determined
,
which
was
by
the
Lord
Iohn
,
without
Issue
Male
,
for
they
agreed
that
the
Remainder
to
the
right
Heirs
if
it
be
a
Remainder
cannot
be
preserved
by
the
mean
Estate
for
years
,
for
it
ought
to
be
a
Free-hold
at
least
which
ought
to
preserve
such
a
Remainder
,
untill
there
be
one
to
take
it
by
name
of
Purchasor
as
right
Heir
.
And
at
this
day
they
did
not
think
there
was
any
diversity
between
the
Case
of
a
Remainder
in
Possession
limitted
to
the
right
heir
of
one
,
and
of
a
Remainder
in
use
so
limited
over
to
another
.
Mich.
34.
and
35.
Eliz:
In
the
Kings
Bench.
3.
IN
Ejectione
firmae
upon
speciall
verdict
the
case
was
thus
,
A
man
possessed
of
a
Term
of
years
in
right
of
his
wife
,
made
a
Lease
for
years
of
the
same
Land
to
begin
after
his
death
which
was
the
Lessor
,
and
afterwards
he
dyed
and
his
wife
survived
him
,
and
the
question
was
,
whether
the
wife
shall
have
the
Land
after
the
death
of
the
husband
,
or
the
Lessee
,
for
if
the
husband
had
devised
the
same
Land
to
an
estranger
,
yet
the
Wife
shall
have
it
and
not
the
Devisee
,
as
it
happened
in
the
Case
of
Matthew
Smith
,
who
made
first
such
a
Devise
of
a
Term
of
his
Wife
,
and
yet
the
Wife
had
it
;
because
that
by
the
death
of
the
husband
(
before
which
the
Devise
did
not
take
effect
)
the
wife
had
it
in
her
first
Right
not
altered
in
the
life
of
her
Husband
;
but
it
was
agreed
in
this
case
by
all
the
Court
,
that
the
Lessee
shall
have
it
during
his
Term
,
for
as
the
husband
during
his
life
might
contract
for
the
Land
for
the
whole
term
which
the
wife
had
in
it
,
so
might
he
do
for
any
part
of
the
term
at
his
pleasure
,
for
if
he
may
devise
the
Land
for
one
and
twenty
years
to
begin
presently
,
he
also
may
make
it
to
begin
at
any
time
to
come
after
his
Death
,
if
the
term
of
the
Wife
be
not
expired
,
but
for
the
Remainder
of
the
term
of
the
husband
,
made
no
disposition
during
his
life
,
the
Wife
shall
have
it
,
which
by
Popham
this
Case
happened
upon
a
specialll
Verdict
in
the
County
of
Somerset
,
about
20
Eli.
Where
he
and
Sergeant
Baber
were
Practisers
in
the
Circuit
there
,
to
wit
,
the
Lands
were
demised
to
husband
and
wife
for
their
lives
,
the
Remainder
to
the
Survivor
of
them
for
years
,
the
Husband
granted
over
this
term
of
years
and
dyed
,
and
the
question
was
whether
the
Wife
shall
have
the
term
of
years
or
the
Grantee
,
and
adjudged
that
the
Wife
shall
have
it
,
and
it
was
upon
this
reason
,
because
there
was
nothing
in
the
one
or
the
other
to
grant
over
,
untill
there
was
a
Survivor
:
And
the
same
Law
had
been
if
the
Wife
bad
dyed
after
the
Grant
,
and
the
Husband
had
survived
,
yet
he
shall
have
the
term
against
his
own
Grant
;
as
if
a
Lease
were
made
for
Life
,
the
Remainder
for
years
to
him
which
first
cometh
to
Pauls
,
if
A.
grant
this
Term
for
years
to
another
,
and
afterwards
A.
is
the
first
which
commeth
to
Pauls
,
yet
the
Grantee
shall
not
have
this
Term
because
it
was
not
in
A.
by
any
means
neither
in
Interest
nor
otherwise
untill
he
came
to
Pauls
:
As
if
a
man
make
a
Lease
for
life
,
the
Remainder
to
the
Right
heirs
of
J.
S.
J.
S.
hath
Issue
a
Son
which
selleth
this
Remainder
,
and
afterwards
I.
S.
dyed
,
this
Son
being
his
Heir
notwithstanding
his
Sale
,
he
shall
have
this
Remainder
&
not
his
Grantee
,
because
it
was
not
in
him
at
the
time
of
his
Grant
,
but
by
a
matter
which
cometh
,
Ex
post
facto
,
to
wit
the
death
of
his
Father
,
and
afterwards
Iudgment
was
given
in
the
first
case
,
that
the
Grantee
shal
have
the
term
granted
to
him
by
the
Husband
,
and
that
the
Wife
shall
not
have
the
term
during
this
Leese
Hunt
Versus
Gateler
.
Mich.
34.
and
35
Eliz.
in
Commun
.
Banco
.
IN
a
Replevin
between
Hunt
Plaintiff
,
and
Gateler
Avowant
in
the
Common
Pleas
,
which
was
adjorned
for
difficulty
into
the
Exchequer
Chamber
,
the
Case
was
thus
,
Tenant
in
tail
,
Remainder
in
Fee
,
he
in
Remainder
in
Vide
this
case
Cook
lib.
1.
61.
by
the
name
of
Cape●s
case
.
Fee
grants
a
Rent-charge
in
Fee
out
of
the
same
Land
,
to
begin
after
the
Estate
tail
determined
,
Tenant
in
Tail
suffer
a
common
Recovery
with
a
Voucher
over
,
to
the
use
of
the
sayd
Hunt
in
Fee
,
and
dyed
without
Issue
inheritable
to
the
intail
,
and
whether
Hunt
shall
now
hold
the
Land
charged
with
the
Rent
,
was
the
question
;
and
after
that
it
had
long
depended
,
and
was
many
times
argued
in
the
Common
Pleas
,
and
Exchequer
Chamber
,
at
Hertford
Term
it
was
at
last
resolved
by
all
the
Iustices
and
Barons
unanimously
,
that
the
sayd
Rent
charge
wss
gone
by
the
Recovery
,
although
the
Estate
tail
was
expired
,
because
that
he
which
is
in
,
is
in
under
this
Intail
:
And
therefore
Popham
sayd
,
suppose
th●t
the
Tenant
in
tail
himself
before
the
Recovery
had
granted
a
Rent
charge
out
of
the
same
Land
,
or
had
made
a
Lease
for
yeers
,
or
had
acknowledged
a
Statute
,
all
those
had
been
good
,
and
to
be
executed
against
him
which
cometh
in
under
the
Recovery
,
notwithstanding
that
the
Estate
tayl
had
been
determined
for
want
of
an
heir
inheritable
to
the
intail
,
for
he
which
recovereth
cannot
lay
that
he
against
whom
he
recovered
had
but
an
Estate
in
tail
,
and
if
his
Lease
remain
yet
good
(
as
all
agreed
it
did
)
how
can
the
Lease
,
a
Rent
granted
by
him
in
the
Remainder
,
be
good
also
,
for
the
one
and
the
other
cannot
stand
together
,
and
therefore
all
the
Leases
,
Charges
,
or
Statutes
acknowledged
or
made
by
him
in
the
Remainder
,
are
gon
and
avoided
by
the
Recovery
had
against
Tenant
in
tail
.
To
which
opinion
all
the
other
agreed
,
and
Popham
sayd
further
,
That
he
in
the
Remainder
upon
an
Estate
tail
,
cannot
by
any
means
plead
to
defend
his
Remainder
,
unless
the
Tenant
will
as
by
vouching
of
him
,
and
therefore
shall
be
bound
by
the
Act
of
Tenant
in
Tail
,
where
the
Estate
it self
is
bound
as
here
it
is
by
the
Voucher
,
and
then
they
which
come
in
by
him
in
the
Remainder
by
way
of
Lease
,
Charge
,
or
Statute
,
(
which
are
not
so
much
favoured
in
Law
as
Tenant
in
tail
himself
)
be
in
better
condition
then
he
in
the
Remainder
himself
is
;
for
he
in
the
Remainder
upon
an
Estate
tail
cannot
put
more
into
the
Mouth
of
the
Lessee
or
Grantee
to
defend
their
Estates
,
then
he
himself
could
have
to
defend
his
Remainder
,
and
this
is
the
reason
that
such
a
Termer
or
Grantee
shall
never
falsifie
the
Recovery
had
against
Tenant
in
tail
,
as
the
Grantee
or
Termer
shall
do
which
cometh
in
under
Tenant
in
tail
against
whom
the
Recovery
was
had
,
for
there
as
the
Tenant
in
tail
may
plead
to
defend
his
Possession
and
Estate
,
so
may
his
Termer
or
Grantee
of
a
Rentcharge
do
,
for
by
the
Demise
or
Grant
made
,
the
Tenant
in
tail
hath
put
all
the
Pleas
into
their
mouthes
for
their
Interests
which
he
himself
had
to
defend
his
Right
and
Possession
,
which
they
may
plead
for
the
time
to
defend
their
Possessions
and
Rights
as
well
as
the
Tenant
in
tail
himself
may
do
,
and
this
is
the
reason
that
such
may
falsifie
Recoveries
against
their
Lessors
or
Grantors
,
if
they
be
not
had
upon
the
meer
right
Paramount
,
which
he
that
cometh
in
by
such
a
Remainder
as
before
cannot
do
,
for
such
a
one
in
Remainder
cannot
be
received
to
defend
his
Right
,
but
his
mouth
is
meerly
foreclosed
to
do
it
,
and
by
the
same
reason
are
all
those
which
come
in
by
such
men
foreclosed
to
defend
their
Interests
or
Estates
,
and
upon
this
Audgement
was
given
in
the
same
Tearm
in
the
common
Pleas.
Gibbons
versus
Maltyard
and
Martin
.
IN
an
Ejectione
firmae
,
brought
in
the
Kings
Bench
by
John
Gibbons
Vide
this
case
in
Cook
lib.
8.
130
Thetford
Scholies
case
.
Plaintiff
,
upon
a
Demise
made
by
Edward
Peacock
the
Son
,
of
Lands
in
Croxton
,
in
the
County
of
Norfolk
,
against
Thomas
Maltyard
and
John
Martin
,
upon
a
speciall
verdict
,
the
case
appeared
to
be
thus
,
to
wit
,
that
Sir
Richard
Fulmerston
Knight
,
was
seised
of
the
sayd
Lands
(
amongst
others
)
holden
in
soccage
in
his
Demesne
as
of
Fee
,
and
being
so
seised
by
his
last
Will
in
Writing
,
made
9
Eliz.
Ordained
that
a
Devise
shall
be
made
by
his
Executors
that
a
Preacher
shall
be
found
for
ever
to
preach
the
Word
of
God
in
the
Church
of
Saint
Maries
in
Thetford
,
four
times
in
the
year
,
and
to
have
for
his
Labour
ten
shillings
for
every
Sermon
.
And
further
he
devised
to
his
Executors
and
their
heirs
certaine
Lands
and
Tenements
in
Thetford
aforesaid
to
this
intent
;
and
upon
this
condition
,
that
they
or
the
Survivor
of
them
within
seven
years
after
his
decease
,
should
procure
of
the
Queens
Highness
to
erect
a
free
Grammar
School
in
Thetford
for
ever
to
be
had
and
kept
in
a
house
by
them
to
be
erected
upon
part
of
the
sayd
Land
,
&
that
they
shal
assure
three
of
the
said
ienements
for
the
house
and
Chamber
of
the
Schoolmaster
and
Vsher
,
and
their
Successors
for
ever
,
and
for
the
other
tonement
,
that
they
shall
make
an
assurance
of
it
for
the
Habitation
of
font
poor
people
(
two
men
and
two
women
)
for
ever
.
And
for
the
better
maintenance
of
the
sayd
Preacher
,
Schoolmaster
,
Vsher
,
and
Poore
people
,
he
devised
(
amongst
others
)
his
sayd
tenements
in
Croxton
to
his
Executors
for
ten
years
for
the
performance
of
his
Will
,
and
after
this
he
devised
them
to
Sir
Edward
Cleer
,
and
Frances
his
Wife
(
the
Daughter
and
Heir
of
the
sayd
Sir
Richard
,
and
to
the
Heirs
of
the
sayd
Sir
Edward
,
upon
Condition
,
that
if
the
sayd
Sir
Edward
his
Heires
or
Assignes
,
before
the
end
of
the
sayd
ten
years
shall
assure
Lands
or
Tenements
in
possession
to
the
value
of
five
and
thirty
pounds
a
year
,
to
the
sayd
Executors
or
the
Survivor
of
them
,
their
Heirs
and
Assignes
,
or
to
such
persons
their
heirs
or
Successors
as
his
sayd
Executors
or
the
Survivor
of
them
shall
name
or
assigne
for
and
towards
the
maintenance
of
the
sayd
Preacher
,
Schoolmaster
,
and
Vsher
,
in
the
sayd
School
house
,
&c.
and
for
the
releif
of
the
sayd
poor
people
in
the
one
of
the
sayd
houses
,
according
to
the
Ordinance
as
he
himself
in
the
sayd
Will
had
declared
,
or
otherwise
as
by
his
Executors
or
the
Survivor
of
them
shall
be
prescribed
.
And
if
the
sayd
Sir
Edward
and
his
Heirs
shall
make
default
in
the
assurance
of
the
sayd
Land
by
him
to
be
assured
as
aforesayd
,
then
hee
will
that
immediatly
upon
such
default
,
his
Estate
,
and
the
Estate
of
the
sayd
Frances
shall
cease
in
the
sayd
Lands
in
Croxton
,
&c.
and
then
he
devise
the
same
Lands
to
his
Executors
and
their
Heirs
for
ever
to
the
use
of
them
and
their
heirs
upon
trust
and
confidence
that
they
or
the
Survivor
of
them
and
their
Heirs
shall
assure
the
same
,
or
otherwise
yearly
dispose
the
profits
of
them
in
finding
the
sayd
Preacher
and
other
charitable
works
as
aforesayd
and
made
Edward
Peacock
Father
to
the
Lessor
,
(
whose
Heir
the
Lessor
is
)
and
others
his
Executors
,
and
dyed
9.
of
the
Queen
,
after
whose
Death
all
the
Executors
refuse
to
be
Executors
.
The
seven
years
passe
without
the
establishing
of
the
School
,
and
other
things
according
to
the
Will
for
the
first
part
of
it
,
whereby
the
Land
in
Thetford
was
forfeited
to
the
heir
for
the
Condition
broken
,
and
within
the
ten
years
Sir
Edward
Cleer
made
a
Feoffment
of
Land
to
the
value
of
35.
l.
a
year
to
the
surviving
Executor
,
for
the
use
of
the
School
,
but
with
acondition
contrary
to
the
Will
,
and
no
Livery
wa●
made
upon
the
sayd
Feoffment
,
but
it
was
inrolled
of
Record
in
the
Chancery
,
whereby
the
sayd
Sir
Edward
had
broken
the
Condition
annexed
to
his
Estate
,
and
also
during
all
this
time
neither
the
Executors
nor
their
Heirs
had
done
any
thing
in
finding
the
Preacher
or
the
other
works
of
charity
with
the
profits
of
the
sayd
Lands
in
Croxton
,
or
in
assuring
of
it
according
to
the
Will
,
and
yet
the
sayd
Edward
Peacock
the
Son
in
September
32.
Eliz.
being
Heir
to
the
surviving
Executor
,
entred
into
the
Land
in
Croxton
,
and
demised
it
to
the
Plaintiff
for
seven
years
,
upon
which
the
Defendant
as
Servant
,
and
by
the
commandement
of
Sir
Edward
Cleer
,
and
of
Edmund
the
Son
and
Heir
of
the
sayd
Frances
(
who
was
then
dead
)
entred
,
upon
which
entry
and
Efectment
the
Action
was
brought
,
and
it
was
mooved
by
Godfrey
and
others
that
the
entry
of
the
Defendants
was
lawfull
,
first
in
the
right
of
the
sayd
Sir
Edward
,
because
that
his
Estate
by
the
Statute
of
23.
H.
8.
cap.
was
without
condition
,
or
determined
;
because
that
by
this
Statute
all
the
uses
limited
in
such
a
manner
are
made
void
,
because
they
are
in
the
nature
of
a
Mortmain
,
as
may
appear
by
a
Proviso
at
the
end
of
the
same
Statute
for
a
certain
person
of
Norwich
who
had
Devised
Lands
for
the
case
of
the
poor
Inhabitants
of
the
same
Citty
,
in
Taxes
and
Tallages
,
and
for
cleansing
of
streets
there
and
for
discharge
of
toll
,
and
Custome
within
the
City
,
all
which
were
good
uses
,
and
not
tending
to
Superstition
,
and
yet
if
it
had
not
been
for
the
Proviso
they
had
been
gon
by
the
body
of
the
Statute
:
And
the
Statute
ordained
also
,
that
every
penalty
and
thing
which
shall
be
devised
to
defraud
this
Statute
shall
be
void
;
and
if
this
do
not
help
them
,
yet
the
Entry
made
in
the
right
of
the
sayd
Heir
,
of
Sir
Richard
Fulmerston
,
is
good
;
for
the
estates
of
the
sayd
Executors
are
also
bound
as
with
a
tacite
condition
that
these
things
shall
be
performed
which
are
not
done
,
and
therefore
the
entry
in
right
of
the
heir
is
lawfull
,
for
the
words
Ad
propositum
,
ea
intentione
,
and
the
like
in
a
Will
are
good
Conditions
which
Gaudey
agreed
,
&
vouched
the
case
28.
Sess.
Pl.
but
it
was
after
often
argument
agreed
by
all
the
Court
that
the
first
exception
was
to
no
purpose
,
for
they
conceived
that
this
Statute
was
to
be
taken
to
extend
only
to
the
uses
which
tend
to
Superstition
,
as
might
be
collected
as
well
by
the
words
of
it
in
the
very
body
of
the
Act
at
the
beginning
,
as
by
the
time
in
which
it
was
made
,
for
at
this
time
they
began
to
have
respect
to
the
ruine
of
the
authority
of
the
Pope
,
and
to
the
dissolution
of
the
Abbies
,
Chantries
,
and
the
like
:
And
by
Popham
,
the
Proviso
was
put
in
the
Statute
,
but
for
satisfaction
of
the
Burgesses
of
the
same
City
at
this
time
,
and
not
for
any
necessity
as
oftentimes
it
happens
.
And
for
the
other
point
,
he
sayd
,
that
it
appeareth
fully
by
the
Will
that
it
was
not
the
intent
of
the
sayd
Sir
Richard
to
have
the
Land
in
Croxton
bound
with
any
condition
in
the
possession
of
his
Executors
,
or
with
any
other
matter
which
determine
their
Estate
,
for
the
Words
,
that
they
shall
have
it
upon
trust
and
confidence
,
exclude
all
constraint
which
is
in
every
condition
,
and
the
Will
is
,
that
they
shall
have
it
to
the
use
of
themselves
and
their
Heirs
for
ever
,
which
c●nnot
be
if
it
shall
be
abridged
by
any
Limitation
or
Determination
:
And
he
sayd
,
that
the
Lord
Anderson
demanded
of
him
a
Case
which
was
adiudged
in
the
Common
Pleas
29.
Eliz.
Rot.
639.
which
was
thus
,
One
Michel
made
a
Lease
for
years
rendring
Rent
,
and
for
default
of
payment
a
re-entry
with
Covenants
on
the
part
of
the
Lessee
to
repair
the
Messuages
,
&c.
and
the
term
continuing
the
sayd
Michel
,
by
his
Will
in
Writing
,
devised
the
same
Land
to
the
sayd
Lessee
for
more
years
then
hee
had
to
come
in
it
,
rendring
yearly
the
like
Rent
,
and
under
the
same
Covenants
which
he
now
holds
it
,
and
dyed
,
and
afterwards
the
first
term
expired
,
the
Lessee
does
not
repaire
the
Houses
,
and
the
question
was
,
whether
by
this
he
hath
forfeited
his
term
,
and
adjudged
that
as
to
this
it
was
not
any
condition
,
and
a
Covenant
it
could
not
be
,
for
a
Covenant
ought
alwaies
to
come
on
the
part
of
the
Lessee
himself
,
which
cannot
be
this
case
,
for
he
doth
not
speak
any
thing
in
the
Will
to
bind
him
,
but
they
are
all
the
words
of
the
Devisor
himself
which
comprised
in
a
Will
,
and
it
never
was
his
intent
to
have
it
to
be
a
condition
,
and
therefore
void
as
to
the
Lessee
to
bind
him
either
by
way
of
Covenant
or
Condition
,
so
here
,
&c.
And
for
the
sayd
Feoffment
enrolled
without
Livery
,
it
was
agreed
by
all
,
that
it
was
not
of
any
force
to
make
the
Land
to
passe
to
the
Executors
,
but
the
enrolment
conclude
him
to
say
not
his
Deed
▪
And
also
that
the
Executors
refuse
to
be
Executors
,
this
shall
not
hinder
them
to
take
by
Devise
as
to
the
Inheritance
,
whereupon
it
was
adjudged
that
the
Plaintiff
shall
recover
as
appears
.
Thomson
Versus
Trafford
.
Hillary
Term
35
of
Queen
E●izabeth
.
IN
an
Ejectione
firmae
,
between
John
Thomson
Plaintiff
▪
and
Thoma●
Trafford
Defendant
,
the
case
was
thus
,
The
President
and
Schollers
of
Magdelen
Colledge
in
Oxford
,
20
Decemb.
8.
Eliz
Did
let
a
Messuage
u●
the
Burrough
of
Southwark
,
to
which
no
Land
appertained
to
William
Sta●dish
for
twenty
years
,
from
the
Feast
of
Saint
Michael
next
ensuing
,
rendring
the
ancient
Rent
,
and
25.
Octob.
21.
Eliz:
they
did
let
the
same
Messuage
to
the
same
Standish
for
twenty
years
from
the
Feast
of
Saint
Michae●
then
next
ensuing
,
rendring
also
the
ancient
Rent
,
and
31
August
30.
Eliz.
The
President
and
Schollers
made
a
new
Lease
of
the
same
Messuage
to
Sir
George
Carew
Knight
,
for
twenty
years
from
making
of
the
Lease
rendring
the
ancient
Rent
,
which
Lease
was
conveyed
by
mean
Assignments
to
the
Plaintiff
,
upon
which
the
Action
was
brought
against
the
sayd
Trafford
which
had
the
Interest
of
the
sayd
Standish
by
mean
Assignments
:
Popham
said
,
that
Ipso
facto
upon
the
last
Lease
made
,
and
annexed
by
Standish
,
the
first
Leass
was
determined
and
gone
,
for
this
last
contract
dissolves
the
first
when
the
one
and
the
other
cannot
stand
together
,
as
they
cannot
here
,
because
the
one
intermix
with
the
other
,
and
so
was
the
opinion
in
the
Common
Bench
about
1
Eliz.
in
the
case
of
the
Abby
of
Barking
,
of
which
I
have
seen
a
Report
.
And
here
Standish
before
Michaelmas
,
next
after
the
second
Lease
made
to
him
could
not
grant
over
his
first
term
to
be
good
to
the
Grantee
,
for
if
this
should
be
,
the
second
term
shall
not
be
good
to
Standish
;
but
for
the
remnant
of
the
years
after
,
the
first
term
finished
,
which
cannot
be
because
it
standeth
in
the
power
of
the
Grantor
with
the
assent
and
acceptance
of
the
Grantee
to
make
the
second
Grant
good
,
for
the
whole
term
,
to
wit
,
from
Michaelmas
,
and
this
cannot
be
but
by
a
determination
in
Law
of
the
first
term
immediatly
,
which
is
made
by
his
own
acceptance
,
and
therefore
a
prejudice
to
none
but
himself
,
and
Volenti
non
fit
injuria
,
and
the
first
Term
cannot
have
his
continuance
untill
Mich.
but
is
gone
presently
by
the
acceptance
of
the
second
Lease
in
the
whole
,
for
the
first
contract
which
was
entyre
cannot
be
so
dissolved
in
part
,
but
in
the
whole
,
as
to
that
which
the
party
hath
,
and
therefore
the
first
Term
(
as
the
case
is
here
)
is
gone
in
the
whole
,
to
which
Clench
and
Gaudy
agreed
:
And
if
so
then
this
last
Lease
to
Standish
was
but
as
a
Lease
made
to
begin
at
a
time
to
come
,
which
is
made
good
by
the
Stat.
of
14
Eliz.
if
it
do
not
exceed
the
time
of
40
years
from
the
making
of
the
Lease
;
for
the
purpose
of
this
Act
was
,
that
Colledges
and
the
like
shall
not
make
Grants
in
Reversion
,
albeit
it
be
for
a
year
,
and
the
reason
was
,
because
that
by
such
Grants
in
Reversion
they
shall
be
excluded
to
have
their
Rent
of
the
particular
Tenants
for
the
time
:
And
therfore
in
the
case
of
the
Countesse
of
Sussex
,
who
had
a
Ioynture
assured
to
her
for
her
life
by
Act
of
Parliament
,
with
a
Provise
,
that
the
Earle
her
Husband
might
demise
it
for
one
and
twenty
yeares
,
rendring
the
usuall
Rent
,
where
the
sayd
Earle
had
made
a
Lease
for
one
and
twentie
yeares
,
according
to
the
Statute
,
within
a
yeare
before
the
end
of
the
same
Lease
,
the
said
Earle
made
a
new
Lease
of
the
same
Land
to
Wroth
his
Servant
for
one
and
twentie
yeares
,
to
begin
after
the
end
of
the
former
Lease
,
rendring
the
usuall
Rent
,
and
died
,
the
said
Countesse
avoided
this
last
Lease
by
Iudgement
given
in
this
Court
,
because
it
shall
be
intended
to
be
a
Lease
in
Possession
,
which
he
ought
to
make
by
the
Proviso
,
from
the
time
of
the
making
of
it
,
otherwise
by
such
perverse
construction
,
the
true
intent
of
the
Statute
shall
be
utterly
defrauded
.
But
here
to
make
a
Lease
for
twentie
yeares
to
one
in
Possession
,
and
to
make
another
Lease
to
another
for
twentie
yeares
,
to
begin
after
the
end
of
the
former
Lease
,
is
good
,
because
that
the
one
and
the
other
do
not
exceed
the
fortie
yeares
comprised
in
the
Statute
.
And
the
Iustices
of
the
Common
Bench
the
same
day
at
Sergeants
Inn
agreed
to
the
opinion
of
Popham
for
the
determination
of
the
whole
first
Term
,
by
the
taking
of
the
second
Term
by
Standish
.
Ward
versus
Downing
.
2.
IN
an
Ejectione
firmae
brought
by
Miles
Word
against
Robert
Downing
,
the
case
was
thus
;
O●e
Robert
Brown
was
seised
of
certain
Lands
in
in
the
County
of
Norfolk
,
in
his
Demesne
as
of
Fee
(
which
were
of
the
nature
of
Gavelkin●
)
and
had
Issue
George
his
eldest
Son
,
William
his
middlemost
Son
,
and
Thomas
his
youngest
Son
,
and
being
so
seised
6
Decem.
1559.
made
his
Testament
in
writing
,
by
which
he
devised
the
sayd
Tenements
in
these
words
.
Item
,
I
give
unto
Alice
my
wife
the
use
and
occupation
of
all
my
Houses
and
Lands
,
as
well
free
,
as
copy-hold
,
during
her
naturall
life
.
Item
,
I
will
,
that
George
my
Son
shall
have
after
the
decease
of
his
Mother
all
those
my
Houses
and
Lands
,
wherof
the
use
was
given
to
his
sayd
Mother
for
the
term
of
her
life
,
To
have
and
to
hold
to
him
and
his
Heirs
for
ever
,
and
if
the
sayd
George
dye
without
Issue
of
his
body
lawfully
begotten
,
then
I
will
my
sayd
Lands
shall
in
like
manner
remain
unto
William
my
Son
and
his
Heirs
for
ever
.
And
I
will
that
all
such
money
as
shall
be
payd
of
any
Legacy
by
the
sayd
George
,
shall
be
allowed
by
the
sayd
William
,
to
whom
the
sayd
George
shall
appoint
.
Item
,
I
will
,
that
if
the
sayd
George
and
William
depart
the
world
before
they
have
Issue
of
their
bodies
lawfully
:
Then
I
will
that
all
my
sayd
Houses
and
Lands
shall
remain
unto
Thomas
my
Son
and
to
his
Heirs
for
ever
.
Item
,
That
if
the
sayd
George
shall
enjoy
my
sayd
Houses
and
Lands
,
then
I
will
the
sayd
George
shall
pay
out
of
the
sayd
Lands
to
William
and
Thomas
his
Brother
26
l.
13
s.
4
d.
that
is
to
say
,
at
his
first
entry
into
the
sayd
Lands
,
to
pay
unto
the
sayd
William
his
Brother
40
s.
and
so
to
pay
yearly
untill
the
summ
of
13
l
6
s.
8
d.
be
fully
answered
and
payd
,
and
then
immediatly
to
pay
unto
Thomas
his
Brother
13
l
6
s.
8
d.
to
be
payd
unto
the
sayd
Thomas
,
when
the
sayd
William
shall
be
fully
answered
by
40
s.
a
year
,
in
like
proportion
as
is
aforesayd
:
And
if
my
sayd
Son
George
sh●ll
refuse
to
pay
unto
William
and
Thomas
his
Brother
the
summs
of
26
l
13
s.
4
d
in
manner
and
form
as
is
before
limitted
;
Then
I
will
that
all
my
Houses
Lands
and
Tenements
with
the
Appurtenances
remain
to
Will●am
my
Son
and
his
Heirs
for
ever
,
paying
therfore
26
l.
13
s.
4
d.
viz.
13
l.
6
s.
8
d.
to
George
my
Son
,
and
13
l.
6
s.
8
d.
to
Thomas
my
Son
,
in
such
manner
and
sort
as
the
sayd
George
shall
pay
if
he
should
enjoy
the
sayd
Lands
:
And
if
it
fortune
the
sayd
William
to
enjoy
the
sayd
Lands
,
then
the
sayd
William
sh●ll
pay
unto
Thomas
his
Brother
the
whole
summ
of
26
l.
13
s.
4
d.
as
is
●foresayd
.
After
which
the
sayd
Robert
dyed
seised
of
the
s●yd
Tenements
in
question
,
and
his
sayd
wife
entred
into
them
for
her
life
by
virtue
of
the
sayd
Will
,
in
whose
life
time
the
sayd
George
dyed
without
Issue
,
after
which
the
sayd
Thomas
also
,
to
wit
,
9
Dec.
1576.
made
his
Testament
in
writing
,
and
of
this
made
Mary
his
wife
his
Executrix
,
and
dyed
,
having
Issue
Martha
by
the
s●yd
Mary
:
Afterwards
the
sayd
Alice
the
wife
of
the
D●visor
,
t●e
l●st
of
March.
●2
Eliz.
dyed
,
and
after
her
death
,
to
wit
,
the
first
of
May
32
Eliz.
the
sayd
William
entred
into
the
sayd
Tenements
,
and
was
therof
seised
in
his
Demesne
as
of
Fee-tail
,
and
the
sayd
Mary
in
the
life-time
of
the
sayd
Alice
proved
the
Testament
of
the
sayd
Thomas
Brown
,
and
the
sayd
William
did
not
pay
the
sayd
26
l
13
s.
4
d.
to
the
sayd
Mary
,
nor
any
part
therof
according
to
the
Will
,
and
the
sayd
Martha
being
Daughter
and
Heir
of
the
said
Thomas
therupon
entred
into
the
sayd
Tenements
,
and
did
let
the
sayd
Moyety
of
which
the
sayd
Action
was
brought
to
the
sayd
Ward
for
two
years
,
upon
which
the
sayd
Downing
in
the
right
and
by
the
commandment
of
the
sayd
William
re-entred
,
and
expelled
the
sayd
Plaintiff
bu●
the
conclusion
of
the
Verdict
was
not
upon
the
expulsion
,
but
only
if
the
entry
of
the
sayd
Downing
shall
be
adjudged
lawfull
,
then
they
find
the
Defendant
not
guilty
,
and
if
it
were
not
lawfull
,
then
they
find
him
guilty
.
Fennor
,
the
Estate
of
the
sayd
William
is
conditional
by
the
Will
,
to
wit
,
that
he
shall
pay
to
Thomas
the
40
Marks
,
according
to
the
Will
,
because
the
Will
is
,
that
the
sayd
money
shall
be
payd
as
is
aforesaid
,
or
before
the
sayd
moneys
which
were
to
be
payd
,
was
expresly
limitted
to
be
payd
upon
the
forfeiture
of
his
Estate
:
And
further
if
it
shall
not
be
taken
for
a
Condition
,
then
Thomas
hath
no
remedy
for
the
money
to
be
payd
to
him
;
and
although
it
be
limitted
to
be
payd
but
to
Thomas
,
who
was
dead
before
the
day
of
payment
of
it
,
yet
it
shall
be
taken
as
a
duty
limited
to
him
which
shall
be
paid
to
his
Executors
,
because
that
a
time
certain
is
limited
for
the
payment
of
it
,
to
wit
,
when
the
Land
is
come
to
the
sayd
William
,
which
is
,
by
the
death
of
the
sayd
Alice
,
but
if
no
time
had
been
limitted
for
the
payment
of
it
,
and
they
had
died
before
the
payment
of
it
,
it
had
been
otherwise
;
And
it
being
a
condition
in
William
,
albeit
it
descend
upon
him
,
as
well
upon
him
as
upon
the
Heir
of
the
sayd
Thomas
,
yet
it
remains
a
good
Condition
for
the
part
of
the
Heir
of
the
sayd
Thomas
,
not
determined
by
the
descent
of
the
other
part
upon
the
Heir
of
the
sayd
William
.
And
further
he
sayd
,
that
here
the
Condition
shall
not
be
sayd
to
be
broken
,
but
upon
refusall
of
payment
by
the
sayd
William
,
as
in
the
case
of
George
to
whom
it
refers
by
the
words
(
as
is
aforesaid
)
which
refusall
is
not
found
,
and
therfore
the
Plaintiff
shall
be
barred
.
Clench
,
The
Executors
of
the
said
Thomas
know
not
when
,
nor
at
what
place
to
demand
it
,
and
therfore
he
thinks
that
the
said
William
ought
to
have
tendred
the
money
to
the
said
Executrix
at
his
perill
.
Popham
,
The
payment
limited
to
be
made
by
the
said
George
is
at
his
first
entry
after
the
death
of
Alice
,
and
then
to
pay
40
s.
and
so
yearly
untill
40
Marks
are
paid
to
the
sayd
William
,
and
therupon
40
s.
yearly
to
the
sayd
Thomas
,
untill
other
twenty
Marks
are
paid
to
him
;
so
that
this
is
the
form
of
the
payment
,
to
wit
,
at
his
entry
,
as
well
for
the
place
as
the
time
,
for
it
cannot
be
made
at
his
entry
,
unless
upon
the
Land
it self
,
and
therfore
by
the
purport
of
the
Wil
,
the
Land
shall
be
taken
for
the
place
where
the
payment
ought
to
be
made
,
for
avoiding
the
inconvenience
which
otherwise
will
ensue
;
As
if
I
am
bound
to
pay
to
you
20
l.
upon
your
first
coming
to
such
a
place
,
this
place
shall
be
taken
for
the
place
where
the
payment
shall
be
made
.
And
wheras
it
is
said
further
in
the
Will
,
and
so
to
pay
yearly
40
s.
untill
the
twenty
Marks
are
paid
to
William
,
this
payment
also
by
the
words
(
and
so
to
pay
yearly
,
&c.
)
shall
be
at
the
same
place
at
the
end
of
every
year
,
upon
the
next
day
after
the
end
of
it
,
or
otherwise
there
will
be
no
certainty
when
it
shall
be
paid
,
and
therfore
the
first
day
of
every
year
shall
be
the
very
day
of
payment
,
and
this
also
by
virtue
of
the
said
words
(
and
so
yearly
)
And
at
the
last
day
of
payment
by
George
to
William
,
or
Thomas
there
ought
to
be
paid
but
26
s.
8
d.
because
that
then
there
remains
no
more
to
be
paid
of
the
summs
limited
to
be
paid
to
them
;
And
when
the
Will
here
hath
finished
with
George
for
that
which
he
is
to
pay
,
it
goes
further
,
and
if
he
refuseth
to
pay
the
said
summs
to
William
and
Thomas
,
in
manner
and
form
aforesaid
,
then
he
wils
that
all
the
said
Lands
shall
remain
to
the
said
William
and
his
Heirs
for
ever
,
paying
yearly
,
&c.
and
so
there
is
an
express
penalty
to
George
if
he
refuse
to
make
payment
,
to
wit
,
that
he
shall
loose
the
Land
for
default
of
payment
made
by
George
by
the
word
(
paying
)
annexed
to
the
Estate
which
is
a
Condition
,
but
he
conceived
that
this
last
payment
to
be
made
to
Thomas
,
is
not
to
be
made
upon
any
penalty
,
nor
that
a
Condition
is
to
be
implyed
in
it
,
although
Thomas
hath
no
remedy
for
it
,
but
in
conscience
,
because
it
is
a
meer
confidence
put
in
William
to
pay
it
:
And
he
said
,
that
he
was
the
rather
moved
to
be
of
this
opinion
,
because
every
one
of
the
precedent
Limitations
was
with
an
expresse
Condition
annexed
to
them
,
as
to
George
,
if
he
refuse
,
&c.
But
when
William
is
to
have
but
an
Estate-tail
upon
the
determination
of
the
Estate
made
to
George
,
for
default
of
Issue
there
he
saith
nothing
,
but
that
the
said
William
shall
pay
to
the
said
Thomas
fortie
Marks
,
as
is
aforesaid
,
which
is
but
a
declaration
of
his
intent
,
that
he
put
confidence
in
him
for
the
payment
of
it
,
and
did
not
bind
himself
upon
condition
,
as
in
the
other
cases
,
which
he
might
have
done
by
expresse
words
of
condition
,
if
his
intent
had
been
so
,
as
well
as
he
did
in
the
other
cases
,
if
his
purpose
had
been
so
;
and
the
words
,
that
he
shall
pay
,
as
is
aforesaid
,
is
to
be
understood
for
the
place
and
time
when
it
shall
be
paid
,
according
as
George
ought
to
pay
it
:
And
it
doth
not
seem
to
stand
with
reason
,
to
expound
it
,
for
a
Condition
to
destroy
the
Remainder
limited
to
the
said
Thomas
;
but
if
it
shall
be
a
Condition
upon
a
relation
,
because
of
the
words
,
that
he
shall
pay
it
,
as
aforesaid
mentioned
,
that
the
payment
ought
to
be
paid
to
the
Executor
of
the
said
Thomas
,
albeit
he
died
before
the
day
of
payment
,
because
this
was
a
summ
in
grosse
limited
to
be
paid
to
the
said
Thomas
at
a
certain
time
.
But
if
it
shall
be
taken
for
a
Condition
in
William
,
he
thinks
cleerly
that
the
said
William
ought
to
have
given
notice
to
the
Executrix
of
the
said
Thomas
before
he
had
made
his
first
entry
into
the
Land
of
the
Ten.
when
he
intended
to
make
his
entry
,
so
that
the
Executrix
might
be
there
at
the
same
time
to
have
made
demand
of
the
money
,
which
ought
to
have
been
done
,
or
otherwise
there
cannot
be
a
refusall
in
the
said
William
,
and
without
his
refusall
or
other
default
in
him
,
the
Condition
cannot
be
broken
,
if
it
had
such
a
relation
as
to
make
the
payment
as
George
ought
to
do
it
:
And
so
the
Executor
of
Thomas
cannot
have
notice
when
William
will
make
his
first
entry
into
the
Land
,
if
he
do
not
give
him
notice
of
it
,
and
therfore
if
it
shall
be
a
Condition
it
had
been
broken
on
the
part
of
William
,
for
want
of
giving
notice
to
the
Executor
of
the
time
of
his
first
entry
,
wherby
the
Executor
might
have
notice
of
the
time
to
make
his
demand
,
because
without
a
demand
refusall
cannot
be
,
and
the
Executor
is
excused
to
make
demand
when
he
had
no
notice
of
the
time
,
and
therfore
the
default
of
William
in
not
giving
notice
of
it
shall
be
taken
against
him
as
strongly
as
if
he
had
made
a
refusall
to
pay
upon
demand
;
for
if
notice
had
been
given
to
the
Executor
,
and
he
had
demanded
the
money
,
and
William
had
said
nothing
to
it
,
but
omitted
to
pay
it
,
yet
this
shall
be
a
refusall
in
Law
.
But
of
this
nothing
appeareth
in
the
Verdict
,
whether
the
Executor
had
notice
given
to
him
or
not
,
nor
nothing
mentioned
in
the
Verdict
whether
any
demand
or
refusall
was
made
of
the
money
or
not
,
and
therfore
the
Verdict
as
to
these
points
is
incertain
to
judge
upon
,
whether
it
shall
be
taken
to
be
a
Condition
in
William
:
But
it
seems
as
the
Verdict
is
,
that
Iudgment
ought
to
be
given
against
the
Plaintiff
,
for
the
conclusion
of
the
Verdict
is
upon
the
entry
of
the
Defendant
,
whether
this
be
lawfull
or
not
,
and
not
upon
the
expulsion
,
or
whether
upon
the
other
Moyetie
his
entry
was
lawfull
in
right
of
the
said
William
,
because
they
were
Tenants
in
Common
.
3.
IN
Trespasse
of
Assault
,
Battery
,
and
Imprisonment
,
made
such
a
day
at
in
the
Countie
of
Cornwall
,
brought
by
against
:
The
Defendant
saith
,
that
he
was
Constable
of
the
same
Town
,
and
that
the
Plaintiff
the
said
day
,
year
,
and
place
,
brought
an
Infant
not
above
the
age
of
ten
daies
in
his
armes
,
and
left
him
upon
the
ground
to
the
great
disturuance
of
the
people
there
being
,
and
that
he
commanded
the
Plaintiff
to
take
up
the
said
Infant
,
and
to
carry
it
from
them
with
him
,
which
the
Plaintiff
refused
to
do
,
for
which
cause
he
quietly
laid
his
hands
upon
the
Plaintiff
and
committed
him
to
the
Stocks
in
the
same
Town
,
where
he
continued
for
such
a
time
,
untill
he
agreed
to
take
up
the
Infant
again
,
which
is
the
same
Assault
,
Battery
,
and
Imprisonment
,
of
which
the
Plaintiff
complains
,
upon
which
the
Plaintiff
demurred
.
Fennor
was
of
opinion
that
that
,
which
the
Constable
did
was
lawfull
,
and
that
it
is
hard
that
an
Officer
shall
be
so
drawn
in
question
for
it
,
for
this
shall
be
an
utter
discouragement
to
good
Officers
to
execute
their
Offices
as
they
ought
to
do
.
Popham
,
A
Constable
is
one
of
the
most
ancient
Officers
in
the
Realm
for
the
conservation
of
the
Peace
,
and
by
his
Office
he
is
a
Conservator
of
the
Peace
;
and
if
he
sees
any
breaking
of
the
Peace
,
he
may
take
and
imprisen
him
untill
he
find
surety
by
obligation
to
keep
the
Peace
:
And
if
a
man
in
fury
be
purposed
to
kill
,
maime
,
or
beat
another
;
the
Constable
seeing
it
,
may
arrest
and
imprison
him
untill
his
rage
be
passed
,
for
the
conservation
of
the
Peace
.
And
if
a
man
layes
an
Infant
which
cannot
help
it self
upon
a
Dunghill
,
or
openly
in
the
field
,
so
that
the
Beasts
or
Fouls
may
destroy
it
,
the
Constable
seeing
it
may
commit
the
party
so
doing
,
to
Prison
,
for
what
greater
breach
of
the
Peace
can
there
be
then
to
put
such
an
Infant
by
such
means
in
danger
of
its
life
?
And
what
diversity
is
there
between
this
case
and
the
case
in
question
,
for
no
body
was
bound
by
the
Law
to
take
up
the
Infant
but
he
which
brought
it
thither
,
and
by
such
means
the
Infant
might
perish
,
the
default
therof
was
in
the
Plaintiff
,
and
therfore
the
Action
will
not
lye
:
And
therupon
it
was
agreed
that
the
Plaintiff
take
nothing
by
his
Writ
.
Hayes
versus
Allen.
4.
TErm
.
Pasch.
33
Eliz.
Rot.
1308.
A
Cui
in
vita
was
brought
in
the
Common
Pleas
,
by
Ralph
Hayes
against
William
Allen
,
of
a
Messuage
with
the
Appurtenances
in
St.
Dunstans
in
the
East
,
London
,
in
which
it
was
supposed
that
the
said
Wil.
had
no
entry
,
but
after
the
demise
which
John
Bradley
,
late
husband
to
Anne
Bradley
,
Aunt
of
the
said
Ralph
(
whose
heir
the
said
Ral
:
was
)
made
to
Tho.
Allen
and
Jo.
Allen
,
and
counts
accordingly
,
&
shews
how
Cosin
and
Heir
,
to
wit
,
Son
of
Wil.
brother
of
the
said
Anne
,
Wil.
Allen
traverse
the
Demise
made
to
the
said
Tho.
and
Jo.
Allen
,
and
at
Nisi
prius
it
was
found
,
that
the
said
Jo.
Bradley
and
Anne
his
wife
was
seised
in
their
demesn
as
of
fee
,
in
right
of
the
said
Ann
,
of
a
Messuage
in
S.
Dunstans
aforesaid
,
containing
from
the
North
to
the
South
18
foot
,
and
from
East
to
West
12
foot
and
a
half
,
and
being
so
seised
during
their
Marriage
,
by
their
Deed
,
sealed
with
their
Seals
,
enfeoffed
the
said
Tho.
Allen
and
Jo.
Allen
therof
,
to
hold
to
them
and
their
heirs
,
to
the
use
of
the
said
Jo.
Bradley
and
Anne
his
wife
for
their
lives
,
and
afterwards
to
the
use
of
the
Church-wardens
of
S.
Dunstans
,
Lond.
and
of
their
successors
for
ever
,
to
the
use
of
the
poor
of
the
same
place
,
and
that
Livery
was
made
accordingly
,
and
that
the
said
Deed
was
inrolled
in
the
Chancery
at
Westm.
and
that
afterwards
the
said
Anne
died
,
and
that
Jo.
Bradley
survived
her
&
died
,
and
that
the
right
of
the
said
Mess
.
descended
to
the
said
Ra.
as
cosin
and
heir
of
the
said
A.
And
that
Sir
W.
Allen
K.
was
seised
of
a
peece
of
land
in
S.
Dunst
.
aforesaid
,
containing
6
foot
4
inches
contigious
and
adjacent
to
the
said
Mess
.
late
the
said
Jo.
Bradleys
and
A.
his
wife
,
in
his
demesn
as
of
fee
;
And
that
the
said
Sir
Wil.
after
the
said
feoffment
,
and
before
this
Writ
purchased
,
utterly
drew
away
the
said
Messuage
,
late
the
said
John
Bradleys
and
Ann
his
wife
,
and
drected
a
new
house
upon
the
Land
of
the
said
Sir
William
,
and
upon
part
of
the
Land
upon
which
the
other
house
stood
,
containing
from
the
North
to
the
South
thirteen
foot
,
&
from
the
East
to
the
West
eighteen
foot
ten
inches
,
which
Messuage
so
newly
built
,
stood
the
day
of
the
Writ
purchased
,
and
yet
stands
.
&c.
And
if
upon
the
whole
matter
the
said
Demise
of
the
said
John
Bradley
and
Anne
be
,
and
in
Law
ought
to
be
adjudged
the
Demise
of
the
said
Messuage
,
newly
built
upon
the
said
part
of
land
,
where
the
Messuage
of
the
said
John
Bradley
and
Anne
stood
,
then
,
the
Iury
find
that
the
said
John
Bradley
demised
to
the
said
Thomas
and
Iohn
Allen
the
said
house
newly
erected
as
aforesaid
,
as
the
Plaintiff
hath
alledged
,
and
if
not
,
then
they
find
that
he
did
not
demise
.
And
upon
this
Verdict
Iudgment
was
given
there
,
and
an
especiall
Writ
of
Habere
facias
seisinam
awarded
of
the
said
Messuage
,
with
the
Appurtenances
;
viz.
18
foot
of
it
from
the
North
to
the
South
,
and
12
foot
and
an
half
of
it
from
the
East
to
the
West
;
upon
which
a
Writ
of
Error
being
brought
in
the
Kings
Bench
,
it
was
alledged
for
Eror
by
Coke
Sollicitor
that
upon
this
Verdict
Iudgment
ought
to
have
been
given
for
the
Tenant
,
and
not
for
the
Demandant
,
for
what
was
remaining
of
that
which
was
of
the
house
,
is
not
a
house
,
but
only
a
peece
of
a
house
,
and
therfore
it
ought
to
have
been
demanded
by
the
name
of
a
peece
of
Land
,
containing
so
much
one
way
,
and
so
much
another
;
for
a
house
wasted
and
utterly
drawn
away
,
cannot
be
demanded
by
a
Messuage
,
but
by
the
name
of
a
Curtilage
,
or
so
much
Land
of
such
contents
;
for
a
Praecipe
lies
of
a
peece
of
Land
containing
so
many
feet
in
length
,
and
so
many
in
breadth
:
And
also
Land
built
during
the
possession
of
him
which
hath
it
by
Tort
,
cannot
be
demanded
by
the
name
of
Land
by
him
which
hath
right
,
but
by
the
name
of
a
house
,
nor
e
contra
,
for
every
demand
of
Land
ought
to
be
made
according
to
the
nature
of
which
it
is
at
the
time
of
the
Action
brought
,
be
it
a
Messuage
,
Land
,
Meadow
,
Pasture
,
Wood
,
&c.
And
if
the
Walls
of
a
house
be
made
upon
the
Land
without
any
covering
,
yet
it
shall
be
demanded
but
by
the
name
of
Land
;
for
he
said
,
that
it
cannot
be
a
house
without
its
perfection
to
be
habitable
,
which
he
said
is
not
here
,
because
it
stands
upon
the
Land
of
the
said
Anne
,
which
hath
not
the
perfection
of
a
house
habitable
without
the
remnant
.
But
this
notwithstanding
the
first
Iudgment
,
was
affirmed
;
for
it
was
said
by
Popham
,
and
other
Iustices
,
that
,
that
which
is
erected
upon
the
Land
of
the
said
Anne
,
shal
be
said
a
house
as
to
the
right
of
the
Heir
of
the
said
Anne
,
for
a
house
may
be
such
to
be
demanded
by
the
name
of
a
house
,
albeit
it
hath
not
all
the
perfection
of
a
house
,
as
if
it
hath
no
doors
,
so
if
it
hath
part
of
the
side
wals
not
made
,
drawn
away
,
or
fallen
,
yet
the
remainder
continues
to
be
demanded
by
the
name
of
an
house
;
so
if
part
of
the
covering
be
decayed
,
yet
it
shall
be
demanded
by
the
name
of
an
house
,
and
the
rather
here
,
because
with
that
which
is
upon
the
other
Land
it
is
a
perfect
house
;
And
I
may
have
a
perfect
house
although
the
side
Walls
belong
to
another
:
as
in
London
,
where
a
man
joynes
his
house
to
the
side
walls
of
his
Neighbours
,
he
hath
a
perfect
house
,
and
yet
the
side
walls
belong
to
another
,
and
this
commonly
happens
in
London
,
but
it
is
otherwise
if
it
were
never
covered
,
or
if
the
covering
be
utterly
fallen
,
or
drawn
away
,
for
without
a
covering
a
house
cannot
be
said
to
be
a
house
,
for
the
covering
to
keep
a
man
from
the
Storms
and
Tempests
over
head
,
is
the
principall
thing
belonging
to
a
house
.
And
further
,
suppose
that
a
man
hath
a
Kitchin
,
or
a
Hall
upon
Land
,
to
which
another
hath
right
,
he
which
hath
right
ought
to
demand
it
by
the
name
of
a
house
:
suppose
then
that
there
is
adjoyning
to
this
upon
other
land
a
Parlor
,
a
Buttery
,
a
Shop
,
a
Closet
,
and
the
like
,
with
Chambers
over
them
,
this
doth
not
change
the
form
of
the
Writ
that
he
is
to
have
which
hath
right
,
although
before
it
was
built
by
the
name
of
a
house
,
and
yet
as
to
the
rent
both
the
one
and
the
other
was
but
a
house
,
but
as
to
the
demandant
it
is
otherwise
,
for
they
are
severall
,
so
here
:
And
the
Demise
which
before
was
made
of
the
house
drawn
away
,
shall
be
now
upon
the
matter
a
Demise
,
as
to
this
part
of
it
a
new
Messuage
;
for
if
a
man
make
a
Lease
for
years
of
a
house
,
and
the
Tetmor
pull
it
down
,
and
erect
there
a
new
house
,
or
if
land
be
demised
,
and
the
Lessee
build
a
house
upon
it
,
in
an
Action
of
Wast
,
for
Wast
done
in
this
new
house
,
the
Writ
shall
suppose
that
he
did
wast
in
the
Houses
,
&c.
which
were
demised
to
him
,
and
yet
in
the
one
case
it
is
not
the
Messuage
which
was
demised
to
him
,
and
in
the
other
the
house
was
not
demised
,
but
the
Land
only
;
But
he
hath
no
term
in
the
house
but
by
the
Demise
before
made
:
And
it
seems
to
Popham
,
that
Allen
the
Defendant
cannot
pull
down
this
part
of
the
house
erect
upon
his
own
land
to
the
prejudice
of
the
house
which
Hayes
demands
,
if
this
which
is
erected
upon
the
land
of
Allen
be
of
such
a
necessity
,
that
without
it
the
house
of
Hayes
cannot
stand
for
a
house
;
but
if
he
dies
after
that
Hayes
hath
built
it
,
then
Hayes
shall
have
an
Action
upon
the
case
against
him
for
the
damages
which
he
sustained
by
it
:
As
if
a
man
agree
with
me
that
I
shall
set
the
outer
wall
of
my
house
upon
his
land
,
and
I
do
it
accordingly
,
and
afterwards
the
party
which
grants
me
this
licence
,
breaketh
it
down
,
if
the
Grant
were
by
Deed
I
shall
have
an
Action
of
Covenant
for
it
,
and
if
but
by
Paroll
,
yet
I
shall
have
an
Action
upon
the
case
against
him
.
And
here
this
being
done
by
him
which
was
then
Owner
and
Possessor
of
the
one
and
the
other
land
,
it
shall
be
taken
as
a
licence
in
Law
,
to
the
benefit
of
him
which
hath
right
,
which
he
cannot
pull
down
after
it
is
once
made
,
but
he
shall
be
subject
to
Hayes
his
Action
for
it
,
or
otherwise
Hayes
shall
be
at
great
mischief
and
prejudice
by
the
Act
of
him
which
did
the
wrong
,
which
the
Law
will
not
suffer
,
but
rather
shall
turn
this
to
the
prejudice
of
him
which
did
the
wrong
,
then
to
the
prejudice
of
the
other
which
shall
have
wrong
by
the
doing
of
it
;
for
Volenti
non
fit
injuria
,
As
if
I
am
to
inclose
between
my
Neighbour
and
my self
,
and
my
Neighbour
pull
down
this
inclosure
or
part
of
it
,
wherby
my
Cattell
escape
into
the
land
adjoyning
,
and
depasture
there
,
I
shall
be
excused
of
this
Trespasse
in
the
same
manner
as
if
he
had
licenced
me
to
have
occupied
it
,
and
whatsoever
hapneth
to
this
Land
adjoyning
by
my
Neighbours
means
,
shall
be
in
the
same
degree
as
my
Neighbours
Act
,
for
what
he
does
shall
be
to
his
own
prejudice
.
And
upon
the
Iudgment
affirmed
,
the
Attorney
of
the
said
Hayes
made
the
like
Writ
of
Habere
facias
seisinam
,
directed
to
the
Sheriffs
of
London
,
as
was
done
in
the
Common
Pleas
,
wherupon
it
was
affirmed
to
the
Court
in
Hillary
Term
next
ensuing
,
that
the
Sheriffs
had
made
their
execution
by
the
quantity
of
the
feet
comprised
in
the
writ
,
and
that
in
the
doing
of
it
there
was
pulled
down
the
part
of
another
house
of
the
said
Allen
which
was
erected
two
feet
upon
the
land
of
the
said
Anne
,
and
prayed
remedy
for
it
,
and
that
this
Habere
facias
seisinam
varying
from
the
thing
recovered
,
might
not
be
filed
;
To
which
it
was
said
,
that
this
quantity
of
feet
was
but
a
Surplusage
in
the
Writ
,
and
that
the
Writ
before
this
was
sufficient
and
warranted
by
the
Verdict
and
judgment
.
Sherrey
versus
Richardson
.
5.
IN
Debt
upon
an
Obligation
of
50
l.
by
Lawrence
Sherrey
against
Arnold
Richardson
,
the
case
was
this
;
16
Martii
33
Eliz.
the
said
Richardson
was
bound
to
Sherrey
in
50
l.
with
condition
to
stand
to
and
observe
the
Arbitrement
,
Award
,
order
,
rule
,
finall
end
and
judgment
of
one
Walter
Bolton
and
Edward
Price
Arbitrators
,
indifferently
elected
to
arbitrate
,
award
,
and
judge
of
and
for
all
Actions
,
Suits
,
Quarrels
,
and
Demands
whatsoever
betwixt
them
,
untill
the
date
of
the
Obligation
,
so
that
it
be
made
and
done
in
writing
under
their
hands
and
Seals
,
ready
to
be
delivered
to
the
parties
,
at
,
or
before
the
last
day
of
this
instant
month
of
April
,
and
the
said
Arbitrators
the
last
day
of
April
,
33
Eliz.
made
an
Arbitrement
in
writing
under
their
hands
and
Seals
,
that
within
four
daies
next
ensuing
the
award
,
either
of
the
said
parties
shall
release
each
to
other
all
Actions
,
Suits
,
and
Demands
before
the
date
of
the
said
Obligation
,
with
this
Proviso
,
that
if
either
of
the
said
parties
shall
be
discontented
with
the
said
Award
,
or
any
part
of
it
,
within
twenty
daies
after
the
Award
,
that
then
upon
the
payment
of
10
s.
by
the
party
which
thinks
himself
agrieved
with
the
Award
,
to
the
other
,
within
the
twenty
daies
the
Award
shall
be
void
,
&
either
of
them
to
be
at
liberty
against
the
other
as
before
the
Award
;
and
by
the
whole
Court
,
if
the
Award
shall
be
said
made
within
the
time
comprised
in
the
O●ligation
,
where
the
Proviso
had
been
to
be
performed
after
the
four
daies
,
it
had
been
good
,
and
a
finall
Award
,
because
that
the
Proviso
to
make
the
Award
void
after
the
time
limited
for
making
of
Releases
,
is
repugnant
to
that
which
was
to
be
executed
before
,
to
wit
,
that
either
of
them
shall
release
each
to
other
within
four
daies
,
for
every
Award
ought
to
be
reasonable
and
indifferent
betwixt
the
parties
in
all
appearance
,
and
so
that
the
one
part
of
it
ought
not
to
impugn
or
encounter
the
other
,
and
here
to
what
purpose
shall
it
be
to
make
the
Award
void
,
and
to
put
out
at
liberty
against
the
other
,
when
they
have
made
Releases
each
to
other
,
and
what
indifferenty
or
reason
should
there
be
,
that
when
one
hath
released
,
the
other
may
dissolve
the
Arbitrement
by
the
Proviso
,
and
how
may
the
Obligation
which
had
been
once
forfeited
by
the
not
making
of
the
Release
within
the
four
daies
be
helped
and
become
not
forfeited
by
dissolving
of
the
Arbitrement
by
the
Proviso
.
But
by
Popham
,
Gawdy
,
and
Clench
.
if
the
Releases
had
been
limited
to
have
deen
made
at
a
day
to
come
,
as
ten
daies
after
,
and
that
the
Proviso
had
been
to
have
been
performed
in
the
mean
time
before
these
ten
daies
,
then
the
Award
had
been
void
,
because
they
had
not
pursued
the
submission
,
for
it
was
no
finall
end
of
the
controversie
,
in
as
much
as
it
is
not
certain
by
reason
of
the
Condition
,
whether
it
shall
be
an
end
or
not
:
But
it
seems
to
Popham
,
that
the
Award
here
is
not
made
within
the
time
that
it
ought
to
have
been
made
by
the
Condition
,
for
the
Obligation
is
alledged
to
be
made
the
16
of
March
,
33
Eliz.
and
then
no
month
can
be
the
instant
month
but
March
,
and
therfore
this
word
April
is
but
a
meer
negation
,
and
if
it
should
not
be
so
,
to
what
April
shall
it
refer
?
for
there
is
no
matter
to
guide
it
more
to
one
April
then
another
,
but
the
generall
intendment
which
happily
shall
guide
it
to
the
next
April
,
for
avaiding
of
incertainty
,
if
it
had
not
been
for
the
words
(
this
instant
moneth
)
and
the
words
(
within
this
moneth
)
shall
not
be
said
to
be
frivolous
&
vain
,
where
they
may
have
a
good
and
plain
intendment
,
but
rather
the
word
(
April
)
which
is
repugnant
to
it
shall
be
said
to
be
void
and
a
meer
negation
;
but
it
seems
to
him
that
as
the
Award
is
,
the
case
being
that
at
any
time
within
20
daies
after
the
Award
made
,
the
one
or
the
other
disliking
the
Award
,
might
have
been
defeated
upon
the
payment
of
10
s.
if
the
10
s.
had
been
paid
within
four
daies
,
as
it
might
have
been
,
and
before
the
Releases
made
the
party
by
the
intent
of
the
Award
had
not
been
bound
to
have
made
the
Releases
,
because
that
by
it
within
the
time
before
the
Releases
made
,
the
Arbitrement
shall
be
defeated
by
the
Condition
if
it
had
been
a
good
Award
,
and
therfore
it
shall
not
be
said
to
be
a
finall
Award
at
the
time
of
the
Award
made
,
because
that
instantly
upon
it
,
before
the
four
daies
are
passed
,
there
was
power
in
the
said
parties
to
have
defeated
the
Award
upon
the
payment
of
the
said
10
s.
and
therfore
it
seems
to
himself
also
that
the
Award
was
void
,
and
by
consequence
the
Plaintiff
shall
be
barred
.
6.
KIng
Richard
the
3.
by
his
Letters
Patents
granted
to
the
Burgesses
of
Glocester
and
to
their
Successors
,
that
the
Town
of
Glocester
,
&c.
shall
be
a
County
of
it self
,
several
and
distinct
from
the
County
of
Glocester
for
ever
,
and
no
part
of
that
County
,
and
shall
be
called
the
County
of
the
Town
of
Glocester
;
neverthelesse
saving
and
reserving
to
himself
and
his
Heirs
,
that
the
Iustices
of
Assise
in
the
County
of
Glocester
,
the
Iustices
of
Goal-delivery
,
and
of
the
Peace
,
in
holding
of
their
Sessions
,
and
also
the
Sheriff
of
the
County
of
Glocester
in
holding
of
his
County-Courts
,
and
every
of
them
may
freely
enter
into
the
said
Town
,
and
keep
the
said
Sessions
and
County-Courts
,
of
,
and
for
any
thing
and
matter
arising
out
of
the
said
County
of
the
Town
aforesaid
,
and
within
the
said
County
of
Glocester
,
as
before
time
they
had
accustomed
to
hold
them
there
,
the
said
Grant
or
any
other
thing
notwithstanding
.
And
grants
further
,
that
they
shall
have
a
Major
,
two
Sheriffs
,
and
one
Recorder
,
within
the
same
County
of
the
Town
of
Glocester
,
and
that
the
Ministers
of
the
Sheriff
of
the
County
shall
not
afterwards
enter
to
do
or
execute
any
thing
there
which
to
their
Office
of
Sheriff
appertaineth
,
or
any
waies
to
intermeddle
with
it
,
except
only
for
the
Sheriff
of
the
County
of
Glocester
,
to
hold
their
County-Courts
as
is
aforesaid
:
And
that
the
Major
&
Aldermen
of
the
said
Town
for
the
time
being
,
&
their
Successors
,
having
power
and
authority
to
enquire
here
&
determine
all
things
which
Iustices
of
P.
or
Iustices
assigned
,
to
hear
&
determine
Trespasses
and
Misdemeanors
within
the
County
of
Glocest
.
before
this
time
have
made
or
exercised
:
And
that
the
Iustices
of
Peace
,
of
him
,
his
Heirs
,
or
Successors
within
the
said
County
of
Glocester
,
should
not
intermeddle
with
the
things
or
causes
which
belong
to
the
Iustices
of
Peace
within
the
said
Town
,
&c.
And
upon
this
Charter
divers
things
were
moved
by
Sir
William
Periam
Knight
,
now
chief
Baron
of
the
Exchequer
;
before
his
going
into
the
Circuit
.
1.
Whether
,
by
the
saving
of
the
Charter
they
have
sufficient
power
reserved
to
them
to
fit
within
the
Town
,
being
now
exempted
from
the
said
Town
of
Glocester
,
to
enquire
there
of
the
Felonies
done
in
the
said
County
of
Glocester
;
And
so
for
the
Assises
and
Nisi
prius
taken
there
of
things
made
in
the
County
of
Glocester
.
Then
if
the
the
Sheriffs
may
execute
their
Warrants
made
there
at
the
time
of
the
Assises
or
Goal-delivery
,
notwithstanding
the
exemption
given
to
them
by
the
Patent
.
And
it
was
agreed
by
all
the
Justices
that
the
saving
in
the
Patent
is
sufficient
for
the
Iustices
of
Assise
and
Goal-delivery
to
sit
there
for
the
things
which
happen
within
the
County
of
Glocester
,
for
as
the
King
may
by
his
Letters
Patents
make
a
County
,
and
exempt
this
from
any
other
County
,
so
may
he
in
the
making
of
it
save
and
except
to
him
and
his
Successors
such
part
of
the
Iurisdiction
or
priviledge
which
the
other
County
from
which
it
is
exempted
,
had
in
it
before
;
As
in
divers
places
of
the
Realm
,
the
Goal
of
a
Town
which
is
a
County
of
it self
,
or
which
is
a
place
priviledged
from
the
County
,
is
the
Goal
of
the
County
,
and
the
place
where
the
Assises
or
Goal-delivery
is
holden
,
is
within
the
County
of
the
Town
,
and
yet
serve
also
for
the
County
at
large
;
as
in
the
Sessions
Hall
at
Newgate
,
which
serves
as
well
for
the
County
of
Middlesex
as
for
London
,
and
yet
it
stands
in
London
,
but
by
usage
it
hath
alwaies
been
so
,
and
nothing
can
be
well
prescribed
unto
by
usage
which
cannot
have
a
lawfull
beginning
by
Award
or
Grant
,
and
this
by
the
division
of
London
from
Middlesex
at
the
beginning
might
be
so
.
And
so
the
Goal
of
Bury
,
&c.
And
although
that
the
words
are
,
saving
to
him
and
his
Heirs
,
yet
by
the
word
(
Heirs
)
it
shall
be
taken
for
a
perpetual
saving
,
which
shall
go
to
his
Successors
,
which
is
the
Queen
,
and
the
rather
because
it
is
a
saving
for
Iustice
to
be
done
to
the
Subjects
,
which
shall
be
taken
as
largely
as
it
can
be
:
And
albeit
the
expresse
saving
for
the
Sheriff
is
but
for
to
hold
his
turn
,
yet
in
as
much
as
the
authority
of
the
Iustices
of
Assise
and
Goal-delivery
in
holding
their
Sessions
as
before
was
accustomed
is
saved
,
it
is
Included
in
it
,
that
all
which
appertain
to
the
execution
of
this
Service
,
is
also
saved
,
or
otherwise
the
saving
shall
be
to
little
purpose
:
And
therfore
that
the
Sheriff
,
or
other
Minister
made
by
the
authority
of
these
Courts
,
is
well
made
there
and
warranted
by
the
Charter
:
And
wee
ought
the
rather
to
make
such
exposition
of
the
Charter
,
because
it
hath
been
alwaies
after
the
Charter
so
put
in
execution
by
all
the
Iustices
of
Assise
:
But
it
seems
that
by
this
Commision
for
the
County
a
thing
which
happens
in
the
Town
cannot
be
determined
,
albeit
it
be
Felony
commited
in
the
Hall
during
the
Sessions
,
but
by
a
Commission
for
the
Towne
it
may
.
7.
SIr
Francis
Englefield
Knight
,
being
seised
in
his
Demesne
as
of
Fee
,
of
Vide
this
case
reported
in
Coke
,
lib.
7.
12
,
13.
the
Mannor
of
Englefield
,
in
the
County
of
Berks
,
and
of
divers
other
Lands
,
in
the
first
year
of
Queen
Eliz.
departed
out
of
the
Realm
by
licence
of
the
Queen
for
a
time
,
and
remained
out
of
the
Realm
in
the
parts
beyond
the
Seas
above
the
time
of
his
licence
,
wherby
the
Queen
by
her
Warrant
under
her
privy
Seal
required
him
to
return
,
upon
which
he
was
warned
,
but
did
not
come
,
wherupon
the
Queen
seised
his
Land
for
his
contempt
;
After
which
the
Statute
of
Fugatives
was
made
13.
year
of
the
Queen
,
upon
which
by
Commissions
found
upon
this
Statute
,
all
his
Lands
were
newly
seised
,
and
afterwards
17
Eliz.
by
Indenture
made
between
him
and
Francis
Englefield
his
Nephew
,
and
sealed
by
the
said
Sir
Francis
at
Rome
,
the
said
Sir
Francis
covenanted
with
his
said
Nephew
,
upon
consideration
of
advancement
of
his
Nephew
,
and
other
good
considerations
to
raise
an
use
,
that
he
and
his
Heirs
and
all
others
seised
of
the
said
Mannor
,
&c.
shall
hereafter
stand
seised
of
them
to
the
use
of
himself
for
term
of
his
life
,
without
impeachment
of
Wast
,
and
afterwards
to
the
use
of
his
Nephew
,
and
of
the
Heirs
Males
of
his
body
,
and
for
default
of
such
Issue
,
to
the
use
of
the
right
Heirs
and
Assigns
of
the
said
Francis
the
Nephew
for
ever
,
with
a
Proviso
,
that
if
the
said
Sir
Francis
shall
have
any
Issue
Male
of
his
body
,
that
then
all
the
said
Vses
and
Limitations
shall
be
void
:
and
with
a
Proviso
further
,
that
if
the
said
Sir
Francis
by
himself
or
any
other
,
shall
at
any
time
during
his
life
,
deliver
or
tender
to
his
said
Nephew
a
King
of
Gold
,
to
the
intent
to
make
the
said
Vses
and
Limitations
void
,
that
then
the
said
Vses
and
Limitations
shall
be
void
,
and
that
therafter
the
said
Mannors
,
&c.
shall
be
as
before
.
Afterwards
the
said
Francis
was
attainted
of
Treason
supposed
to
be
committed
by
him
,
18
Eliz.
A
Le
umures
in
partibus
transmarinis
,
&
le
attainder
fuit
primerment
.
utlagary
&
apres
.
per
act
de
Par.
28
Eliz.
by
which
the
forfeiture
of
the
Condition
was
given
to
the
Queen
,
and
at
the
same
Parliament
it
was
also
enacted
,
that
all
and
every
person
or
persons
which
had
,
or
claimed
to
have
any
Estate
of
Inheritance
,
Lease
,
or
Rent
then
not
entred
of
Record
,
or
certified
into
the
Court
of
Exchequer
,
of
,
in
,
to
,
or
out
of
any
Mannors
,
Lands
,
&c.
by
or
under
any
Grant
,
Assurance
,
or
Conveyance
whatsoever
,
had
or
made
at
any
time
after
the
beginning
of
the
Raign
of
her
Majesty
,
by
any
persons
attainted
of
any
Treasons
mentioned
in
the
said
Act
after
the
8.
day
of
February
,
18
Eliz.
within
two
years
next
ensuing
the
last
day
of
the
Session
of
the
said
Parliament
,
shall
openly
shew
in
the
said
Court
of
Exchequer
,
or
cause
to
be
openly
shewn
there
the
same
,
his
,
or
their
Grant
,
Conveyance
,
or
Assusance
,
and
there
in
the
Term
time
in
open
Court
,
the
same
shall
offer
and
exhibit
,
or
upon
his
or
their
Oath
affirming
that
they
have
not
the
same
,
nor
can
come
by
it
,
or
that
it
was
never
put
in
writing
,
then
the
effect
therof
to
be
entred
and
inrolled
of
Record
,
or
else
every
such
conveyance
and
assurance
should
be
void
and
of
none
effect
,
to
all
intents
and
purposes
;
saving
to
every
person
and
persons
(
other
then
to
parties
and
privies
to
such
conveyance
&
such
as
shall
not
exhibit
the
said
conveyance
according
to
the
true
meaning
of
this
Act
)
all
such
Rights
,
&c.
wherupon
the
said
Francis
the
Nephew
,
the
20.
day
of
Novem.
30
Eliz.
in
his
own
person
affirmed
upon
his
Oath
that
he
had
not
the
said
conveyance
,
nor
knew
not
how
to
come
by
it
,
but
delivered
the
effect
of
the
assurance
,
omitting
the
time
when
it
was
made
,
otherwise
then
that
it
was
made
after
the
beginning
of
the
Queens
Raign
,
and
before
the
Treason
committed
by
the
said
Sir
Francis
,
and
before
the
Statute
made
13
Eliz.
against
Fugatives
,
and
omitting
also
the
last
clause
of
the
Condition
for
the
tender
of
the
said
King
;
and
this
he
offered
openly
in
the
Court
of
Exchequer
the
same
day
:
after
which
the
Queen
being
moved
with
the
said
Condition
,
made
a
Warrant
per
Letters
Patens
under
the
great
Seal
,
dated
17.
Martii
31
Eliz.
to
Richard
Broughton
and
Henry
Bourchier
Esquires
,
for
her
and
in
her
place
and
stead
,
to
deliver
or
tender
to
the
said
Francis
the
Nephew
a
King
of
Gold
,
to
the
intent
to
make
void
the
Vses
and
limitations
limited
by
the
said
Indenture
,
and
to
return
their
proceedings
upon
it
into
the
Court
of
Exchequer
,
wherupon
they
made
a
tender
of
a
King
of
Gold
to
the
said
Francis
the
Nephew
,
the
18.
day
of
March
,
31
Eliz.
which
he
refused
to
receive
;
And
the
two
years
after
the
said
Session
of
Parliament
was
the
23.
day
of
March
,
31
Eliz.
And
the
said
Broughton
and
Bourchier
returned
all
this
that
they
had
done
as
before
,
with
the
Commissions
into
the
Exchequer
,
according
to
the
Commission
:
And
upon
this
at
the
Parliament
holden
35
Eliz.
upon
an
Act
which
then
was
to
passe
touching
the
Land
and
Attainder
of
the
said
Sir
Francis
,
diverse
questions
were
moved
amongst
all
the
Iudges
and
Barons
then
there
;
wherof
1.
The
first
was
,
whether
the
effect
of
the
Assurance
made
by
Sir
Francis
was
delivered
into
the
Exchequer
according
to
the
intent
of
the
Act
,
because
it
wanted
the
time
when
it
was
made
,
and
also
one
of
the
Proviso's
?
And
upon
good
deliberation
they
all
did
agree
that
it
was
not
put
in
according
to
the
purport
of
the
said
Act
,
for
the
time
may
be
materiall
to
be
known
,
for
the
fraud
which
by
the
same
Statute
might
be
averred
to
be
in
the
making
of
this
Conveyance
,
and
for
the
better
tryall
of
the
validity
of
the
assurance
and
of
the
cause
of
it
,
therfore
the
true
effect
therof
ought
to
de
delivered
or
shewn
in
writing
to
be
entred
of
Record
,
because
the
Queens
Councell
may
see
and
understand
by
it
whether
the
Queen
might
have
Title
to
it
,
or
not
;
and
how
can
this
be
if
it
doth
not
appear
when
it
was
done
?
And
for
the
Condition
how
can
the
Queen
by
presumption
come
to
the
notice
of
it
,
if
it
be
not
shewn
to
her
?
And
this
was
one
principall
matter
of
the
effect
of
the
said
assurance
which
ought
to
have
been
shewn
,
for
this
shewing
ought
to
be
for
the
benefit
and
advantage
of
the
Queen
,
and
not
so
much
for
the
advantage
of
the
party
.
And
here
the
effect
of
it
which
shall
shew
for
the
Queen
is
omitted
,
and
therfore
not
shewn
in
writing
according
to
the
purport
and
intent
of
the
Statute
,
which
was
,
that
by
it
the
Queen
and
her
Councell
may
see
what
will
make
for
her
in
the
Grant
,
Conveyance
,
or
Assurance
.
2.
Whether
this
Condition
were
given
to
the
Queen
,
because
that
the
words
in
this
Indenture
precedent
to
the
Condition
,
are
these
;
viz.
Because
that
the
said
Francis
the
Nephew
might
happen
to
be
of
evill
behaviour
and
government
;
the
said
Sir
Francis
provided
as
before
,
which
(
as
was
alledged
)
was
founded
upon
a
particular
regard
and
respect
,
which
was
proper
to
himself
,
and
therfore
cannot
be
transferred
to
the
Queen
;
and
it
doth
not
appear
that
he
yet
had
been
of
ill
behaviour
:
But
this
notwithstanding
,
all
agreed
that
this
Condition
is
in
the
Queen
by
the
attainder
of
the
said
Sir
Francis
,
as
well
by
the
Act
of
his
Attainder
,
as
by
the
Act
of
33
H.
8.
which
give
the
forfeiture
of
Conditions
also
expressy
in
the
case
of
Treason
.
3.
Whether
there
ought
to
be
an
Office
for
finding
the
performance
of
the
Condition
according
to
the
Warrant
,
and
all
agreed
that
there
need
not
,
because
that
when
any
man
is
to
do
a
thing
by
Warrant
of
Letters
Patents
for
the
Queen
,
to
be
returned
in
any
Court
,
it
sufficeth
for
him
to
return
it
,
which
he
hash
done
according
to
the
Letters
Patents
,
with
the
Warrant
it self
,
and
then
that
which
is
so
returned
,
is
as
well
of
Record
as
if
it
were
found
by
Office
and
returned
of
Record
;
and
so
it
was
agreed
in
the
Exchequer
,
about
16
Eliz.
in
the
case
of
Edward
Dacres
,
who
had
made
an
Assignment
of
his
Goods
and
Chattells
to
Sir
Alexander
Culpdpper
and
others
,
who
afterwards
was
attainted
of
Treason
by
Outlawry
,
and
the
Condition
adjudged
to
be
forfeited
to
the
Queen
by
the
Statute
of
33
H.
8.
and
a
Warrant
was
made
by
Letters
Patents
to
Sir
Thomas
George
to
perform
the
Condition
,
who
did
it
,
and
returned
that
he
had
done
it
accordingly
,
wherby
the
assurance
to
the
said
Sir
Alexander
and
his
Companions
was
avoided
,
and
all
the
Goods
and
Chattels
of
the
said
Edward
forfeited
to
the
Queen
,
and
all
this
was
in
the
Queen
without
Office
found
,
for
that
which
the
Sheriff
or
other
Minister
doth
by
virtue
of
any
Writ
or
Warrant
which
is
to
be
of
Record
,
when
it
is
returned
of
Record
,
it
is
as
well
of
Record
as
the
Writ
or
Warrant
it self
,
so
here
,
&c.
4.
But
the
greatest
question
was
(
which
was
not
any
thing
in
the
case
here
)
whether
the
Estate
made
to
Francis
the
Nephew
were
void
,
eo
instanti
upon
Hillary
Term
finished
31
Eliz.
although
the
two
year
after
the
Session
of
Parliament
,
28
Eliz.
did
not
end
untill
the
28.
day
of
March
,
31
Eliz.
in
as
much
as
no
Term
was
or
could
be
within
two
years
after
it
,
in
which
the
assurance
or
the
effect
of
it
might
be
shewn
openly
in
the
Court
of
Exchequer
,
or
that
it
shall
tarry
to
be
void
untill
the
two
years
are
fully
expired
;
as
if
a
man
make
assurance
of
his
Land
upon
condition
,
that
if
he
do
not
go
to
Rome
within
two
years
next
ensuing
,
that
it
shall
be
to
the
use
of
I.
S.
and
his
Heirs
,
and
he
stay
untill
a
week
within
the
end
of
the
two
years
,
in
so
much
as
it
is
not
possible
to
perform
it
within
the
two
years
,
yet
the
use
doth
not
change
untill
the
two
years
are
past
;
but
in
this
case
it
ought
to
be
shewn
a
Term
within
the
two
years
,
which
is
as
much
as
to
say
,
that
if
the
Terms
be
all
past
,
so
as
it
cannot
be
done
after
it
within
the
two
years
,
the
Assurance
eo
instanti
upon
the
finishing
of
the
last
Term
is
become
void
;
as
if
an
Assurance
be
upon
condition
,
that
if
in
the
Term
time
,
within
two
years
he
do
not
levy
a
Fine
to
I.
S.
and
his
Heirs
,
&c.
now
if
the
last
Term
passe
without
the
Fine
,
the
Vse
change
,
albeit
the
two
years
be
not
expired
;
si
Parolls
fort
Plea
:
And
there
is
great
diversity
where
an
Estate
is
to
be
defeated
,
or
an
Vse
is
to
be
raised
upon
an
Act
to
be
done
,
or
not
done
,
within
a
time
certain
,
within
two
years
,
and
where
within
two
years
generally
,
for
in
the
first
case
the
Vse
change
upon
the
Act
done
,
or
not
done
immediatly
,
and
in
the
other
not
untill
the
two
years
are
finished
,
because
that
by
presumption
alwaies
within
two
years
the
Act
may
be
done
for
any
thing
of
which
the
Law
takes
conusance
.
But
if
the
Act
to
be
done
,
or
not
done
,
refer
to
any
time
certain
within
the
two
years
,
as
if
he
do
not
pay
10
l.
to
one
before
the
Feast
of
S.
Michael
the
Arch-angel
within
the
two
years
,
that
then
the
Vse
shall
change
,
or
the
Estate
shall
be
void
,
in
these
cases
immediatly
upon
the
last
Feast
of
S.
Michael
the
Arch-angel
,
within
the
two
years
the
Vse
change
,
or
the
Estate
shall
be
void
,
as
the
case
is
,
and
shall
not
tarry
untill
the
full
end
of
the
two
years
to
do
it
,
for
in
the
words
themselves
the
diversity
appeareth
.
8.
AT
the
same
time
there
was
another
Indenture
shewn
to
the
said
Iudges
,
bearing
date
the
4.
day
of
May
,
1
Eliz.
made
between
the
said
Sir
Francis
Englefi●ld
of
the
one
part
:
And
Sir
Edward
Fitton
,
and
Sir
Ralph
Egerton
Knights
,
of
the
other
part
,
and
inrolled
in
the
Exchequer
,
according
to
the
Statute
of
the
30.
day
of
October
,
30
Eliz
by
which
the
said
Francis
for
him
and
his
Heirs
covenanted
with
them
,
that
as
well
in
consideration
of
a
Marriage
had
and
solemnised
between
John
Englefield
,
brother
of
the
said
Sir
Francis
,
and
Margaret
Fitton
,
Sister
to
the
said
Sir
Edward
,
and
for
the
augmentation
and
interest
of
the
Ioynture
of
the
said
Margaret
,
as
for
other
good
causes
and
reasonable
considerations
,
the
said
Sir
Francis
especially
moving
,
the
said
Sir
Francis
before
the
Feast
of
S.
John
Baptist
,
then
next
ensuing
,
would
assure
Lands
within
the
County
of
Warwick
,
of
the
value
of
60
l.
a
year
to
the
said
Sir
Edward
and
Sir
Ralph
,
and
their
Heirs
,
to
the
use
of
the
said
Margaret
for
her
life
,
and
for
her
Ioynture
,
for
part
of
it
,
and
for
the
remainder
that
it
shall
also
be
to
the
use
of
the
said
Margaret
for
her
life
,
in
case
that
the
Lady
Anne
then
the
wife
of
the
said
Sir
Francis
.
should
recover
her
Dower
of
the
said
60
l.
a
year
.
And
the
said
Sir
Francis
for
him
and
his
Heirs
,
did
further
covenant
with
the
said
Sir
Edward
and
Sir
Ralph
,
that
if
it
should
happen
that
the
said
Sir
Francis
shall
die
without
Issue
Male
of
his
body
,
the
said
Iohn
or
any
Issue
of
his
body
upon
the
body
of
the
said
Margaret
begotten
then
living
,
that
then
after
the
death
of
the
said
Sir
Francis
,
as
well
the
Mannor
of
Englefield
,
as
all
his
other
Lands
(
making
especiall
mention
of
them
)
should
be
and
might
descend
,
remain
,
revert
,
continue
or
be
in
possession
or
rebersion
to
the
said
Iohn
Englefield
,
and
to
the
Heirs
Males
of
his
body
upon
the
body
of
the
said
Margaret
lawfully
begotten
,
if
the
sayd
Iohn
were
then
living
,
or
to
the
Heirs
Males
of
the
body
of
the
sayd
Iohn
upon
the
body
of
the
sayd
Margaret
lawfully
begotten
,
without
any
Act
or
Acts
,
Thing
or
Things
made
,
or
to
be
made
by
the
sayd
Sir
Francis
to
the
contrary
therof
.
And
upon
this
,
it
was
moved
,
that
there
was
a
variance
between
this
Deed
now
shewn
,
and
this
Inrolement
,
and
that
therfore
it
doth
not
appeare
,
whether
this
Deed
was
shewn
in
the
Court
or
delivered
there
according
to
the
Statute
therof
made
,
28
Eliz.
for
in
the
Deed
it
is
(
for
other
good
causes
)
and
this
word
(
good
)
is
not
comprised
within
the
Inrolement
.
But
as
to
it
,
all
the
Iudges
and
Barons
agreed
,
that
albeit
these
defeats
hapned
by
the
negligence
of
the
Clerk
in
writing
and
examining
,
this
Inrollement
remaines
good
,
in
as
much
as
the
omissions
are
in
matters
and
words
which
are
of
abundance
,
and
not
in
that
which
is
any
substance
of
the
Deed.
But
the
Lords
of
Parliament
which
were
Committees
of
this
case
in
the
Parliament
,
sent
for
the
Record
of
the
sayd
Inrolement
,
and
would
have
had
this
to
have
been
amended
in
the
Chamber
next
to
the
Parliament
;
but
as
the
Officer
was
in
doing
of
it
,
the
Iudges
advised
that
it
should
not
be
done
,
as
well
because
this
was
not
the
place
where
it
ought
to
be
amended
,
but
the
Court
of
Exchequer
if
it
were
,
or
needed
to
be
amended
:
And
also
because
that
the
two
years
after
the
Session
of
Parliament
of
28
Eliz.
was
then
past
.
Then
it
was
moved
whether
by
the
Covenant
and
considerations
aforesaid
,
the
use
shall
passe
or
were
raised
to
John
Englefield
,
or
now
to
his
Son
Francis
,
Nephew
to
the
said
Sir
Francis
,
and
begotten
upon
the
body
of
the
sayd
Margaret
.
And
all
agreed
that
it
is
not
for
divers
reasons
.
1.
Because
it
is
,
that
if
it
happen
that
Sir
Francis
die
without
Issue
Male
,
that
then
it
shall
be
to
John
as
before
,
if
he
be
then
living
,
or
to
the
Heirs
Males
of
his
body
as
before
,
which
is
in
the
disjunctive
,
to
wit
,
that
it
shall
remain
to
John
,
or
to
his
Heirs
Male
of
his
body
,
which
cannot
raise
any
use
,
but
found
only
in
Covenant
for
the
incertainty
,
and
also
it
is
upon
a
future
contingent
,
to
wit
,
if
the
said
John
be
then
living
.
2.
Because
the
Covenant
is
,
that
it
shall
come
or
descend
,
&c.
in
the
disjunctive
,
and
if
he
had
covenanted
that
it
shall
descend
to
Iohn
after
his
death
without
Issue
Male
,
it
had
been
cleer
that
no
use
had
been
raised
by
it
,
for
it
shall
be
but
a
meer
Covenant
,
to
wit
,
that
he
shall
leave
it
to
descend
to
him
;
and
here
it
being
in
the
disjunctive
it
cannot
be
any
other
then
a
bare
Covenant
,
to
wit
,
that
he
shall
suffer
it
to
descend
,
or
otherwise
by
conveyance
to
come
to
John
,
after
his
death
without
Issue
Male
,
the
one
,
or
the
other
at
his
pleasure
.
And
yet
further
,
that
it
shall
descend
,
come
,
or
remain
to
John
in
possession
or
reversion
,
so
that
he
may
make
the
one
or
the
other
void
at
his
pleasure
,
which
cannot
be
,
if
an
Vse
shall
be
raised
by
it
,
and
therfore
also
it
enures
but
as
a
bare
Covenant
,
which
he
may
perform
either
the
one
or
the
other
way
at
his
pleasure
.
Also
it
is
,
that
it
shall
so
descend
or
come
to
John
without
any
act
or
thing
done
or
to
be
done
by
him
to
the
contrary
,
wherby
also
it
fully
appeareth
,
that
the
assurance
of
the
said
John
shall
stand
for
all
this
Land
upon
the
Covenant
,
and
not
upon
any
use
which
was
to
be
altered
or
changed
by
it
.
But
if
an
Vse
may
change
by
the
Mannor
upon
the
consideration
,
yet
it
shall
not
change
to
the
said
John
or
his
Issues
,
untill
the
death
of
the
said
Sir
Francis
without
Issue
Male
,
because
that
untill
that
happen
,
if
the
said
John
had
been
living
,
he
had
not
had
any
Vse
,
because
it
is
that
he
shall
have
the
Land
then
if
he
be
then
living
,
and
if
it
shall
not
be
in
him
untill
this
time
,
it
shall
not
be
in
his
Son
untill
Sir
Francis
be
dead
without
Issue
;
for
it
is
if
the
said
John
or
any
Issue
Male
of
his
body
,
&c.
be
then
living
,
then
it
shall
descend
,
come
,
or
remain
,
&c.
so
that
it
doth
not
come
to
them
untill
it
may
appear
whether
the
said
John
,
or
any
Issue
Male
of
his
body
upon
the
body
of
the
said
Margaret
,
be
in
rerum
natura
,
when
Sir
Francis
shall
be
dead
without
Issue
Male
,
and
therfore
it
yet
remains
upon
a
contingent
,
whether
the
use
shall
be
to
the
Heirs
Males
of
the
body
of
the
said
John
,
if
it
shall
be
said
that
it
is
an
Vse
,
and
therfore
in
the
mean
time
the
entire
Fee-simple
remains
in
Sir
Francis
,
not
yet
changed
,
but
for
the
Estate
tail
it self
in
himself
,
if
any
change
shall
be
,
as
appeareth
before
that
it
shall
not
be
,
and
therfore
by
the
attainder
of
the
said
Sir
Francis
,
the
whole
Fee-simple
is
now
all
forfeited
to
the
Queen
,
before
that
the
use
may
be
to
the
Heirs
Males
of
the
body
of
the
said
John
:
And
the
Queen
shall
not
come
to
this
Land
in
any
privity
by
the
said
Sir
Francis
,
but
in
the
Post
by
the
Escheat
,
and
therfore
the
possession
of
the
Queen
now
,
or
of
her
Patentee
shall
never
be
changed
with
this
Vse
,
which
shall
never
be
carried
out
of
any
other
possession
but
such
which
remaineth
in
privity
untill
the
use
is
to
come
in
Esse
,
no
more
now
then
as
it
might
at
common
Law
before
the
Statute
of
Vses
,
27
H.
8.
And
this
as
to
the
future
Vse
was
the
opinion
of
Popham
,
and
some
other
of
the
Iustices
.
And
nota
21
H.
7.
plito
.
30.
If
a
man
covenant
in
consideration
of
the
Marriage
of
his
Son
,
that
immediatly
after
his
death
his
Land
shall
evert
,
remain
,
or
descend
to
his
Son
,
to
him
and
the
Heirs
of
his
body
,
or
to
him
and
his
Heirs
for
ever
,
that
this
is
but
a
bare
Covenant
,
and
doth
not
change
any
Vse
;
And
what
diversity
then
is
there
in
the
case
of
Sir
Francis
Englefield
,
who
covenants
that
it
shall
descend
or
remain
in
possession
,
or
revert
.
And
as
it
seems
the
great
difficulty
which
was
in
the
case
of
Sir
Robert
Constable
,
which
was
put
by
Gerard
Attorney-generall
,
6
Eliz.
and
it
appeareth
in
Dyer
1.
Mar.
was
because
that
the
Covenant
was
,
that
it
shall
be
to
the
Son
in
possession
or
use
,
which
for
the
incertainty
in
as
much
as
it
was
in
them
to
leave
the
one
or
the
other
,
or
perhaps
the
Estate
of
their
Land
was
such
,
that
part
was
in
possession
and
part
in
use
,
and
therfore
according
to
the
intent
taken
rather
for
a
Covenant
then
for
matter
sufficient
to
change
the
use
:
But
it
was
so
that
it
was
never
helped
by
any
right
which
he
had
,
but
by
the
grace
of
the
Queen
he
enjoyed
it
.
Easter
Term
,
35
Eliz.
Crocker
and
York
,
versus
Dormer
.
1.
UPon
a
Recovery
had
by
John
Crocker
and
George
York
,
against
Geffrey
Dormer
,
in
a
Writ
of
Entry
in
the
Post
,
of
the
Mannor
of
Farningho
,
with
the
Appurtenances
,
and
of
6
Messuages
,
6
Cottages
,
&c.
in
Farningho
,
and
of
a
yearly
Rent
or
pension
of
4
Marks
issuing
out
of
the
Church
or
Rectory
of
Farningho
,
and
of
the
Advowson
of
the
Church
of
Farningho
,
in
the
County
of
Northampton
,
William
Dormer
Son
and
Heir
of
the
said
Geffrey
,
brought
a
Writ
of
Error
,
and
assigned
diverse
Errors
.
1.
Because
that
●uch
a
form
of
Writ
doth
not
lye
of
an
Advowson
,
but
only
a
Right
of
Advowson
,
Darrein
presentment
and
Quare
impedit
.
2.
Because
he
demands
the
Advowson
of
the
Rectory
,
and
also
a
Rent
issuing
out
of
the
same
Rectory
.
3.
Because
the
Demand
for
the
Rent
is
in
the
Disjunctive
,
to
wit
,
a
Rent
or
a
Pension
.
4.
Because
it
is
a
pension
,
wheras
a
Pension
is
not
sutable
in
our
Law
,
but
in
the
Spirituall
Court
;
To
which
Gawdy
said
,
that
there
is
a
great
diversity
between
a
common
Recovery
,
which
is
an
assurance
between
parties
and
a
Recovery
which
is
upon
Title
,
for
a
common
Recovery
is
to
an
Vse
,
to
wit
,
to
the
use
of
him
against
whom
it
is
had
,
if
no
other
use
can
be
averred
,
and
therfore
as
to
the
Vse
,
it
is
to
be
guided
according
to
the
intent
of
the
parties
,
and
by
a
common
Recovery
had
against
Tenant
for
life
,
he
in
the
Reversion
if
he
be
not
party
or
privy
to
it
,
may
enter
for
a
forfeiture
,
as
it
was
adjudged
very
lately
in
the
Exchequer
,
by
the
advice
of
all
the
Iustices
in
the
case
of
a
Recovery
had
against
Sir
William
Petham
Knight
,
and
in
all
these
things
it
is
otherwise
in
case
of
a
Recovery
upon
Title
,
and
therfore
in
as
much
as
this
common
Recovery
is
but
a
common
Assurance
between
parties
,
and
is
alwaies
by
assent
between
parties
,
to
the
end
that
they
may
make
assurance
from
one
to
another
,
there
shall
be
and
alwaies
hath
been
a
contrary
exposition
to
a
Recovery
which
is
by
pretence
of
Title
,
and
it
hath
been
common
to
put
in
such
Recoveries
,
Advowsons
,
Commons
,
Warrens
,
and
the
like
,
and
yet
alwaies
allowed
:
And
if
this
shall
be
now
drawn
in
question
,
infinite
Assurances
shall
by
this
be
indangered
,
which
the
Law
will
not
suffer
,
and
therfore
the
demand
of
an
Advowson
and
Pension
in
the
Writ
of
Entry
makes
not
the
Writ
vitious
,
as
it
shall
do
in
another
Writ
of
Entry
founded
upon
a
Title
and
not
upon
an
Assurance
.
And
as
to
that
,
that
the
Rent
and
the
Advowson
also
is
demanded
,
this
is
good
,
because
the
Advowson
is
another
thing
then
the
Rectory
it self
,
out
of
which
the
Rent
is
demanded
to
be
issuing
:
And
for
the
disjunctive
demand
of
the
Rent
or
Pension
,
it
makes
no
matter
in
this
case
,
because
it
is
a
common
Recovery
in
which
such
a
precise
form
is
not
necessary
to
be
used
as
in
other
Writs
,
and
also
a
Pension
issuing
out
of
a
Rectory
is
the
same
with
the
rent
:
To
which
Clench
and
Fennor
agreed
in
all
;
but
Popham
moved
that
the
greatest
difficulty
in
this
case
is
the
demand
made
to
the
disjunctive
,
to
wit
,
of
the
annuall
Rent
or
Pension
,
for
if
a
Pension
issuing
out
of
a
Rectory
shall
be
said
to
be
a
thing
meerly
spirituall
,
and
not
to
be
demanded
by
our
Law
,
or
meerly
of
another
nature
then
the
Rent
it self
,
with
which
it
is
conjoyned
by
the
word
(
or
)
then
it
is
erroneous
;
for
albeit
a
common
Recovery
,
be
now
a
common
assurance
of
Land
past
by
the
assent
of
parties
,
and
therfore
hath
another
conservation
,
then
that
which
passeth
by
pretence
of
Title
,
yet
we
are
not
to
omit
grosse
absurdities
in
such
common
Recoveries
,
as
to
demand
an
acre
of
Land
or
Wood
in
the
Mannor
of
Sale
,
or
Dale
,
or
black
acre
,
or
white
acre
,
these
are
not
good
in
common
Recoveries
,
because
there
is
no
certainty
in
the
demand
which
of
them
the
party
is
to
recover
,
which
kind
of
absurdity
is
not
to
be
admitted
in
these
Recoveries
;
for
this
is
but
a
meer
ignorance
in
the
Law
and
the
Ministers
of
it
.
And
to
this
Gawdy
and
the
other
Justices
agreed
,
but
they
sayd
,
that
a
Pension
issuing
and
a
Rent
shall
be
taken
for
all
one
;
for
if
a
man
grant
a
Pension
of
20
s.
a
year
,
issuing
out
of
the
Mannor
of
D.
or
of
the
Rectory
of
S
these
are
Rents
issuing
out
of
them
:
and
if
the
demand
had
been
of
an
annuall
Rent
,
or
Annuity
of
20
s.
a
year
issuing
out
of
the
Rectory
,
this
had
been
good
.
To
which
Popham
agreed
,
and
yet
sayd
,
if
it
had
been
an
annuall
Rent
of
20
s.
&c.
or
of
an
Annuity
of
20
s.
it
had
nof
been
good
,
because
that
the
word
(
issuing
)
is
not
referred
to
the
Annuity
,
but
to
the
Rent
only
,
and
therfore
are
meerly
generall
,
and
not
as
the
same
,
but
if
the
demand
were
of
an
annuity
,
rent
,
or
payment
of
20
s.
issuing
out
of
a
Rectory
,
it
is
good
,
for
this
is
but
one
and
the
same
.
Then
it
was
alledged
that
notwithstanding
that
which
appears
to
the
Court
,
it
cannot
be
taken
that
this
was
a
common
Recovery
,
for
upon
the
assignment
of
the
Error
,
it
is
not
averred
that
it
was
a
common
Recovery
,
to
which
Popham
said
,
that
common
Recoveries
are
such
common
Assurances
to
all
persons
that
are
well
known
to
all
,
and
especially
to
us
that
they
need
not
be
averred
,
for
they
are
known
by
certain
Marks
,
to
wit
,
by
the
voluntary
entry
into
the
Warranty
,
the
common
Voucher
and
the
like
:
And
at
last
they
all
agreed
that
the
Iudgment
shall
be
affirmed
.
2.
In
Wast
,
by
Thomas
Haydock
against
Richard
Warnford
,
the
case
was
this
;
One
Michael
Dennis
was
seised
in
his
Demesne
as
of
Fee
,
of
the
third
part
of
a
Messuage
,
and
of
certain
Lands
in
Bury
Blunsden
in
the
County
of
Wilts
,
and
being
so
seised
the
last
of
April
,
9
●liz
.
demised
them
to
Susan
Warnford
for
41.
years
,
from
the
Feast
of
S.
Michael
the
Arch-angel
then
next
ensuing
,
who
assigned
this
over
to
Richard
Warnford
,
after
which
the
said
Michael
Dennis
by
bargain
and
sale
enrolled
,
according
to
the
Statute
conveyed
the
Reversion
to
John
Simborn
Esquire
,
and
his
Heirs
,
the
said
Iohn
being
then
seised
of
another
third
part
therof
in
his
Demesne
as
of
Fee
,
after
which
,
to
wit
,
the
first
day
of
Iune
,
17
Eliz.
the
said
Iohn
Simborn
demised
the
said
third
part
,
which
was
his
before
his
said
purchase
to
the
said
Richard
Warnford
for
21
years
then
next
ensuing
,
and
afterwards
the
said
Iohn
Simborn
died
seised
of
the
Reversion
of
the
said
two
parts
,
and
this
descended
to
Barnaby
Simborn
his
Son
and
next
Heir
,
who
the
20
of
Iune
,
28
Eliz.
by
bargain
and
sale
enrolled
,
according
to
the
Statute
conveyed
,
be
Reversion
of
the
said
two
parts
to
the
said
Thomas
Haydock
and
his
Heirs
,
after
which
the
said
Richard
Warnford
committed
Wast
in
the
said
house
,
wherupon
the
said
Thomas
Haydock
brought
an
action
of
Wast
against
him
,
according
to
the
said
two
severall
Leases
,
and
assigned
the
Wast
in
suffering
the
Hall
of
the
price
of
20
l.
a
Kitchin
of
the
price
of
20
l.
and
so
of
other
things
to
be
uncovered
,
wherby
the
great
Timber
of
them
became
rotten
,
and
so
became
ruinous
,
to
the
disinherison
of
the
Plaintiff
,
and
upon
a
Nihil
dicit
,
a
Writ
was
awarded
to
enquire
of
Damages
,
in
which
it
was
comprised
that
the
Sheriff
shall
go
to
the
place
wasted
,
and
there
enquire
of
the
said
Damages
,
who
returned
an
inquisition
taken
therof
at
Bury
Blunsden
,
without
making
mention
that
he
went
to
the
place
wasted
,
and
that
it
was
taken
there
,
wherupon
Iudgment
was
given
in
the
common
Bench
,
that
the
said
Plaintiff
shall
recover
his
Seisin
against
the
Defendant
of
the
said
places
wasted
,
with
their
Appurtenances
Per
visum
Iurator
.
Inquisitionis
predict
.
&
damna
sua
occasione
vast●
in
eisdem
locis
in
triplo
secun●ū
formam
statuti
,
&c.
And
upon
this
a
Writ
of
Error
was
brought
in
the
Kings
Bench
,
and
there
by
all
the
Iustices
it
was
agreed
that
it
was
but
Surplusage
to
comprehend
in
the
Writ
of
enquiry
of
Damages
,
that
the
Sheriff
shall
go
to
the
place
wasted
,
and
there
enquire
of
the
Damages
,
in
as
much
as
by
the
not
denying
therof
,
the
Wast
is
acknowledged
,
and
therfore
he
need
not
go
to
the
place
wasted
:
But
where
a
Writ
is
awarded
to
enquire
of
the
Wast
upon
default
made
at
the
grand
Distresse
,
there
by
the
Statute
of
West
.
2.
cap.
24.
the
Sheriff
ought
to
go
in
person
to
the
place
Wasted
,
and
enquire
of
the
Wast
done
,
and
therfore
in
that
case
it
is
needfull
to
have
the
clause
in
it
,
that
the
Sheriff
shall
go
to
the
place
wasted
,
and
there
enquire
of
it
:
for
by
the
view
the
Wast
may
be
the
better
known
to
them
,
but
where
the
Wast
is
acknowledged
,
as
here
,
that
clause
need
not
,
and
albeit
it
be
comprehended
in
the
Writ
,
yet
the
Sheriff
is
not
therby
bound
to
go
to
the
place
wasted
,
and
to
enquire
there
,
but
he
may
do
it
at
any
place
within
his
Bayliwick
where
he
will
,
and
therfore
it
is
no
error
in
this
point
:
And
they
agreed
also
that
the
Wast
is
well
assigned
in
the
entire
Hall
,
&c.
although
the
Action
were
brought
but
upon
the
Demises
of
two
third
parts
of
it
,
and
it
cannot
be
done
in
these
parts
,
but
that
it
is
done
in
the
whole
,
and
also
it
cannot
be
done
in
the
whole
,
but
that
it
is
also
done
in
the
three
parts
,
but
yet
the
doing
therof
is
not
to
the
disinheritance
of
the
Plaintiff
,
but
in
these
two
third
parts
;
and
therfore
no
error
in
this
manner
of
assigning
of
the
Wast
.
And
they
also
agreed
that
the
Action
is
well
brought
upon
these
severall
Demises
,
because
neither
the
interest
of
the
Term
,
nor
of
the
Inheritance
was
severed
nor
divided
to
severall
persons
at
the
time
of
the
doing
of
the
Wast
,
but
the
two
Terms
in
the
one
,
to
wit
,
in
Warnford
,
and
the
Inheritance
of
these
immediatly
in
the
other
,
to
wit
,
in
Haydock
;
And
by
Popham
also
,
the
thing
in
which
the
Wast
is
assigned
,
is
one
and
the
same
thing
and
not
diverse
,
to
wit
,
a
Messuage
,
and
therfore
by
Brudnell
and
Pollard
,
14
H.
8.
10.
if
severall
Demises
are
made
of
one
and
the
same
Messuage
by
one
and
the
same
person
,
as
one
part
at
one
time
,
and
another
part
at
another
,
an
Action
of
Wast
may
well
lye
:
Albeit
Fitzherbert
and
Brook
seem
therin
to
be
of
a
contrary
opinion
,
and
that
severall
Actions
of
Wast
ought
to
be
in
that
case
.
And
the
exception
was
taken
,
because
the
Iudgment
was
entred
that
he
shall
recover
the
place
wasted
,
Per
visum
Jurator
.
praedict
.
wheras
they
had
not
the
view
of
it
in
this
case
,
for
this
should
be
where
it
is
given
upon
a
Writ
awarded
to
enquire
of
the
Wast
upon
default
made
at
the
grand
Distresse
;
whereas
here
the
Wast
is
not
denied
but
acknowledged
.
But
as
to
this
,
severall
Presidents
were
shewn
,
the
one
upon
Demurrer
for
part
,
Hill.
1.
Mariae
.
Rot.
301.
and
another
Tr.
31.
H.
8.
Rot.
142.
in
an
Information
,
in
both
which
Cases
the
Iudgment
was
entred
as
here
,
to
wit
,
Per
visum
Jur.
praedict.
and
yet
in
these
,
the
Wast
was
as
acknowledged
:
Whereupon
it
was
ordered
that
the
Iudgment
should
be
affirmed
.
3.
In
an
Ejectione
firmae
brought
by
Sir
Moyle
Finch
Knight
,
Plaintiff
against
John
Risley
Defendant
,
for
a
Messuage
and
a
Mill
in
Raveston
in
the
County
of
Buckinghamshire
,
the
case
for
the
matter
in
Law
appeared
shortly
to
be
this
.
The
King
and
Queen
Philip
and
Mary
by
their
Letters
Patents
,
dated
the
eight
of
July
,
3.
&
4.
of
their
Raign
,
made
a
Lease
of
the
Reversion
of
the
Mannor
of
Raveston
(
of
which
this
was
parcell
)
to
Sir
Robert
Throgmorton
for
seventy
years
,
from
such
a
Feast
,
after
the
death
of
the
Countesse
of
Ormond
,
who
then
had
it
for
her
life
,
rendring
yearly
73
l.
13
s.
payable
at
the
Feasts
of
Saint
Michael
the
Arch-angel
,
and
the
Annunciation
of
our
Lady
,
at
the
receit
of
the
Exchequer
by
equall
portions
,
with
a
Proviso
that
the
Lease
shall
cease
,
if
the
said
Rent
or
any
part
therof
were
arrear
,
and
not
paid
at
the
said
Feast
,
or
a
certain
time
after
,
the
Reversion
descend
to
the
now
Queen
,
and
the
said
Countesse
died
7
Eliz.
part
of
the
Rent
then
payable
,
was
not
paid
at
the
day
,
nor
within
the
time
limited
by
the
Proviso
,
afterwards
Queen
Elizabeth
by
her
Letters
Patents
,
dated
30.
May
,
30
Eliz.
granted
the
said
Mannor
to
the
said
Sir
Moyl
,
and
one
Awdeley
and
their
Heirs
in
Fee
,
with
a
clause
in
it
,
that
the
Letters
Patents
shall
be
good
,
notwithstanding
there
be
not
any
recitall
of
any
Leases
or
Grants
at
any
time
before
that
made
by
her
,
or
any
of
her
Progenitors
;
after
which
an
Office
is
found
for
the
Queen
,
that
the
Rent
was
arrear
and
not
paid
as
before
,
after
which
the
said
Sir
Moyl
and
Awdeley
assured
the
said
Mannors
by
bargain
and
sale
to
Sir
Thomas
Hennage
who
demised
the
said
Messuage
and
Mill
to
the
said
Sir
Moyl
,
upon
whom
the
said
Risley
entred
in
right
of
the
said
Lease
made
by
the
said
King
Phillip
and
Queen
Mary
,
under
Thomas
Throgmorton
,
who
then
pretended
to
have
the
term
of
the
said
Lease
from
Sir
Robert
his
Father
.
The
case
was
well
argued
at
the
Bar
,
and
now
at
the
Bench
,
where
Fennor
moved
first
,
Whether
it
were
a
Condition
.
2.
Whether
an
Office
were
requisite
.
3.
Whether
this
Office
found
,
comes
soon
enough
for
time
:
For
the
first
he
conceived
that
it
was
a
conditional
Limitation
,
for
a
Limitation
is
that
which
limits
an
Estate
certain
o●
doubtfull
,
as
Quandiu
in
manibus
nostris
fore
contigerit
,
quamdiu
amicus
sit
,
or
dummodo
solverit
:
And
there
(
dummodo
)
was
a
Condition
as
appeareth
,
5
Ass
plit
.
9.
&
2.
Ass.
a
Grant
made
to
J.
S.
and
his
Heirs
tam
di●
,
as
the
Grantor
and
his
Heir
shall
enjoy
such
a
Mannor
,
this
is
a
Limitation
,
and
a
Limitation
alwaies
determines
the
Estate
,
but
a
Condition
albeit
it
be
broken
during
the
Estate
,
yet
it
doth
not
determine
the
Estate
,
and
so
it
is
of
a
conditional
Limitation
,
and
therfore
t
is
not
in
the
King
untill
an
Office
be
therof
found
,
for
the
King
submits
himself
to
the
Law
,
for
Bracton
saith
,
Quod
non
debet
judicare
sed
secundum
legem
,
and
his
Prerogative
is
so
excellent
,
that
he
cannot
take
a
part
with
any
thing
,
but
by
matter
of
Record
,
neither
can
he
draw
the
Right
or
Possession
of
any
one
in
question
upon
a
bare
surmise
,
but
by
Office
or
other
matter
of
Record
,
for
a
Record
alwaies
carries
credit
with
it
.
And
there
is
no
diversity
where
two
matters
are
limited
in
Deed
,
and
where
one
is
limited
in
a
Deed
,
and
the
other
by
the
Law
:
And
the
contrary
objections
are
easily
answered
,
for
when
the
Tenant
in
tail
of
the
King
dies
without
Issue
,
it
is
in
the
King
without
Office
,
because
the
Law
does
not
help
them
which
contemn
it
.
But
in
case
of
an
Office
which
is
forfeited
,
it
is
in
the
King
to
dispose
without
Office
,
because
the
King
is
not
to
have
the
Office
it self
but
the
disposition
of
it
,
and
yet
it
is
to
be
defeated
by
Scire
facias
in
the
Chancery
.
If
a
Mill
be
demised
for
life
,
upon
condition
that
he
shall
not
let
it
but
to
a
Milner
,
and
he
breaks
the
Condition
,
in
case
of
the
King
there
must
be
an
Office
to
avoid
it
,
and
there
the
Office
entitles
the
King
to
the
Condition
and
not
to
the
Entry
,
for
after
the
Office
it
is
not
in
the
King
untill
Entry
:
And
here
the
Rent
may
be
paid
to
the
Kings
Bayly
in
the
Country
,
which
is
matter
in
fait
,
and
therfore
shall
not
be
defeated
without
Office
;
And
here
the
Office
comes
too
late
to
give
any
advantage
to
the
Patentee
,
for
the
King
cannot
grant
a
Title
of
Entry
before
Office
,
no
more
then
the
Assignes
of
a
common
person
can
take
advantage
of
a
Condition
broken
in
the
time
of
the
Grantor
,
of
which
the
Grantor
did
not
take
advantage
in
his
time
;
And
if
the
Queen
makes
a
Lease
durante
beneplacito
,
the
Patentee
shall
not
avoid
it
,
as
it
appears
in
the
Lord
Burgleighs
case
,
and
therfore
the
Office
her●
shall
not
help
the
Patentee
,
but
the
Queen
for
the
mean
profits
:
for
although
nullum
tempus
occurrit
Regi
,
yet
the
Patentee
shall
not
take
advantage
of
this
Prerogative
.
Clench
agreed
cleerly
,
that
it
was
a
Limitation
,
but
yet
that
it
is
at
the
Queens
liberty
to
avoid
or
make
it
good
,
for
perhaps
the
Rent
is
better
then
the
value
of
the
Land
,
and
upon
this
reason
a
Lease
from
the
King
Probi●
hominibus
de
dale
,
or
to
a
Monk
rendring
rent
,
is
good
,
which
otherwise
had
been
meerly
void
:
And
by
the
Office
found
,
the
Election
of
the
Queen
appeareth
,
without
which
the
Lease
is
to
continue
,
and
therfore
the
Patentee
shall
not
defeat
that
which
happened
in
the
Queens
time
before
.
Popham
,
to
say
that
the
Office
helps
the
Queen
for
the
mean
Profits
,
and
that
now
the
Patentee
shall
not
take
advantage
to
avoid
the
Lease
is
too
absurd
;
for
the
Queen
cannot
take
advantage
to
have
the
mean
Profits
,
but
in
respect
of
the
avoidance
of
the
Lease
:
And
if
the
Lease
were
made
void
or
determined
against
the
Queen
,
it
shall
not
remain
good
and
of
force
against
the
Patentee
,
and
also
to
say
,
that
the
Lease
might
have
its
continuance
,
after
that
it
is
determined
by
the
Limitation
comprehended
in
the
Writing
,
by
reason
of
a
reservation
,
is
also
too
absurd
,
for
so
it
may
be
said
,
that
if
the
Queen
make
a
Lease
for
years
,
if
J.
S.
shall
live
so
long
,
rendring
rent
,
that
this
Lease
may
have
continuance
after
the
death
of
J.
S.
which
cleerly
is
not
Law
;
And
the
Patentee
here
shall
take
the
advantage
to
avoid
the
Lease
hapned
before
his
Patent
made
,
because
that
no
Office
need
to
be
found
of
the
not
payment
before
it
passed
from
the
Queen
to
make
it
voyd
,
and
the
reason
is
,
because
this
Proviso
(
as
it
is
penned
)
is
a
meer
Limitation
of
the
Estate
,
and
not
any
manner
of
Condition
;
And
therfore
if
the
Queen
make
a
Lease
for
100.
years
,
if
the
Lessee
shall
so
long
lawfully
pay
the
Rent
reserved
at
the
day
of
payment
,
if
he
fail
of
payment
of
the
Rent
reserved
at
the
day
limited
,
the
Lease
is
ipso
facto
determined
,
and
it
need
not
be
found
by
Office
.
And
what
diversity
is
there
where
the
Limitation
is
conjoyned
to
the
estate
it self
,
and
where
it
cometh
in
by
a
Proviso
afterwards
,
all
being
in
one
and
the
same
Deed
,
and
therfore
spoken
at
one
and
the
same
time
,
for
the
one
and
the
other
case
manifesteth
that
the
contract
and
agreement
is
,
that
the
Lease
shall
not
continue
longer
then
the
default
of
the
payment
of
the
Rent
.
And
in
this
case
,
suppose
that
the
Queen
had
granted
over
the
Land
?
shall
not
the
Patentee
have
advantage
to
avoid
the
Lease
,
because
that
no
Office
was
found
before
?
It
is
cleer
that
he
shall
,
or
otherwise
this
is
now
become
to
be
an
absolute
Lease
for
a
hundred
years
,
which
is
not
Law
,
for
it
is
meerly
contrary
to
the
Contract
,
and
therfore
absurd
to
be
maintained
:
I
agree
with
the
generall
rule
that
nothing
shal
passe
to
,
or
from
the
Queen
but
by
matter
of
Record
;
but
this
makes
nothing
against
me
in
this
case
,
for
here
the
same
Record
which
passeth
the
Estate
to
the
party
,
to
wit
,
the
Patent
of
the
Lease
contains
the
time
how
long
it
shall
endure
,
longer
then
which
it
cannot
continue
:
And
therfore
by
9
H.
7.
If
the
King
makes
a
Gift
in
tail
,
and
the
Donce
dies
without
Issue
,
the
Land
is
in
the
King
without
Office
,
so
in
every
other
case
where
the
Estate
is
determined
according
to
the
limitation
,
for
he
cannot
be
put
out
of
possession
wrongfully
,
and
now
hath
right
to
hold
it
against
him
.
And
I
say
that
no
warrant
or
authority
can
be
found
throughout
the
whole
Law
where
a
Lease
or
Estate
made
by
the
King
is
determined
by
an
expresse
limitation
comprised
in
the
Patent
it self
of
the
Grant
,
that
there
need
not
any
Office
or
other
thing
to
determine
it
,
for
that
which
is
comprised
in
the
same
Patent
may
determine
it
,
of
it self
.
And
further
,
wheras
the
Proviso
is
,
that
the
re-entry
shall
be
for
default
of
payment
of
the
Rent
,
and
the
like
,
there
the
Term
continues
untill
the
re-entry
be
made
,
notwithstanding
the
Condition
be
broken
,
as
appeareth
by
all
the
Iustices
,
28
H.
8.
because
it
is
expresly
limited
that
it
shall
be
defeated
by
the
re-entry
,
&
there
before
re-entry
be
made
,
the
Action
of
Wast
shall
be
,
quod
tenet
:
And
by
12
H.
7.
where
a
common
person
is
put
to
his
Entry
,
there
the
Queen
is
put
to
an
Office
,
with
which
agrees
Stamford
in
his
Book
of
Prerogative
:
But
in
this
case
,
if
it
were
between
common
persons
,
the
Lease
shall
be
determined
upon
default
of
payment
of
the
Rent
,
and
before
any
re-entry
,
and
therfore
in
the
Queens
case
it
shall
be
determined
without
Office
.
But
if
the
case
had
been
,
that
if
the
Rent
had
been
arrear
and
not
paid
,
that
then
upon
re-entry
made
,
it
ought
to
cease
,
there
an
Office
had
been
necessary
to
countervail
the
Entry
in
case
of
the
Queen
,
or
otherwise
the
Lease
shall
not
cease
,
because
the
Queen
cannot
make
an
Entry
but
by
such
means
,
and
therfore
it
ought
to
be
by
matter
comprised
in
the
Patent
.
It
hath
been
said
,
that
this
shall
be
a
conditionall
Limitation
,
and
that
therfore
an
Office
is
necessary
;
but
I
say
,
that
here
is
not
any
matter
or
quality
of
a
Condition
,
but
meerly
of
a
Limitation
,
and
t
is
rather
a
contingent
Limitation
then
any
manner
of
Condition
,
and
this
is
well
proued
by
11
H.
7.
which
is
,
that
the
Grantee
of
a
Reversion
shal
take
advantage
of
it
at
common
Law
,
the
which
he
cannot
do
if
it
savour
any
way
of
a
Condition
,
and
by
27
H.
8.
a
Proviso
in
a
Deed
ought
alwaies
to
be
expounded
according
to
the
purport
,
because
that
it
is
placed
in
a
Deed
,
somtimes
for
a
Condition
,
as
where
a
Proviso
is
that
the
Lessee
shall
not
alien
;
somtimes
for
an
exception
,
as
where
a
Proviso
is
,
that
the
Lease
shall
not
extend
to
such
an
acre
,
or
such
a
thing
,
somtimes
for
a
Limitation
,
as
here
and
in
the
like
cases
.
And
in
this
case
the
release
of
the
Rent
shall
make
it
,
that
the
Lease
shall
never
be
determined
for
the
not
payment
of
it
,
because
tha●●●terwards
there
cannot
be
any
such
default
of
payment
;
and
therfore
in
such
a
case
the
Limitation
remaineth
absolute
and
discharged
of
the
contingent
,
which
otherwise
had
determined
it
:
As
if
a
man
make
a
Lease
for
a
100.
years
,
if
the
Lessee
in
the
mean
time
do
not
cut
such
a
Tree
,
a
release
of
all
Conditions
will
not
serve
,
yet
if
the
Lessor
himself
or
any
other
but
the
Lessee
cut
it
,
the
Lease
is
become
absolute
for
a
100.
years
:
And
so
upon
this
point
my
conceit
appeareth
.
But
the
most
colourable
thing
which
hath
been
alledged
on
the
other
side
,
was
by
my
Brother
Drew
,
which
was
,
that
in
counting
upon
an
Ejectione
firmae
,
and
pleading
in
such
a
Lease
as
here
,
it
shall
be
as
an
absolute
Lease
for
the
years
comprised
in
the
Habendum
,
without
making
any
mention
of
the
Prouiso
,
upon
which
he
enforced
it
that
it
shall
be
taken
to
be
of
more
efficacy
then
if
it
stood
meerly
upon
the
Contingent
;
for
he
said
,
that
upon
a
Lease
made
for
years
,
if
the
Lessee
shall
so
long
live
,
and
the
like
,
in
the
count
,
and
also
in
the
pleading
mention
ought
to
be
made
of
the
life
of
the
Lessee
:
I
agree
it
to
be
true
that
the
pleading
shall
be
so
,
for
in
count
counting
,
and
in
plea
pleading
,
if
the
matter
of
the
Contingent
procede
the
Limitation
,
or
be
anncred
to
the
Limitation
,
there
a
man
ought
to
speak
to
the
Contingent
,
or
otherwise
it
is
not
good
,
as
by
14
H.
8.
it
shall
be
of
a
Condition
where
it
is
precedent
;
But
in
case
of
a
Condition
it
is
quite
otherwise
,
for
if
●
man
make
a
Lease
to
another
for
years
,
Si
tamdiu
vixerit
,
or
Dummodo
solverit
,
&c.
or
the
like
,
which
are
annexed
to
the
limitation
of
the
Estate
;
in
all
these
cases
in
counting
and
also
in
pleading
,
he
ought
to
aver
the
life
of
the
Lessee
,
or
otherwise
the
contents
of
the
thing
according
to
the
limitation
:
But
where
that
which
was
the
Limitation
cometh
by
a
Proviso
,
after
the
Habendum
which
distinguisheth
the
sentence
as
here
,
there
,
because
it
it
is
a
matter
distinct
and
subsequent
from
the
Habendum
,
and
not
annered
to
it
,
he
need
not
to
speak
of
it
,
but
there
it
shall
alwaies
come
in
to
be
shewn
of
the
other
part
,
and
this
is
the
usuall
and
common
case
of
difference
for
pleading
,
but
this
makes
no
difference
of
the
Estate
;
And
therfore
if
an
Obligation
be
made
with
a
Condition
endorsed
,
the
Plaintiff
in
debt
upon
it
doth
not
speak
of
the
Condition
in
his
Count
,
but
if
the
Condition
be
precedent
,
or
stands
comprised
within
the
body
of
the
Obligation
,
then
he
ought
to
speak
of
it
in
his
Count
,
as
appeareth
by
28
H.
8.
where
a
man
was
bound
in
twenty
quarters
of
Malt
,
to
be
paid
at
such
a
day
,
and
if
he
fail
,
that
he
shall
pay
forty
quarters
at
such
a
day
,
if
he
demand
the
forty
quarters
in
his
count
,
he
ought
to
shew
the
default
of
payment
of
the
twenty
quarters
at
the
day
limited
for
it
,
and
yet
the
Condition
that
is
out
of
,
and
that
which
is
comprehended
within
the
Obligation
are
but
as
one
for
the
substance
,
but
for
the
form
it
differs
as
to
the
pleading
,
which
form
ought
to
be
observed
.
Another
reason
is
in
this
case
,
because
that
the
payment
of
the
Rent
is
limited
to
●●
made
at
the
receit
of
the
Exchequer
,
in
which
case
if
it
had
been
〈…〉
had
been
entred
of
Record
,
and
not
being
so
,
the
default
appeareth
o●
Record
,
and
where
the
default
appeareth
of
Record
,
there
needs
no
Office
,
for
●●
shall
be
in
vain
to
make
that
to
appear
upon
Record
by
Office
,
which
〈◊〉
appeareth
of
it self
by
Record
,
and
therfore
in
4.
and
5.
〈…〉
&
Mary
it
appeareth
,
where
Sir
John
Savage
was
Sheriff
of
the
〈…〉
Fee
,
and
that
he
was
indited
of
two
severall
voluntary
〈…〉
,
and
for
not
keeping
of
his
Turn
in
loco
consueto
upon
two
〈…〉
removed
into
the
Kings
Bench
in
8
H.
8.
upon
the
motion
of
the
〈…〉
-
generall
the
Office
was
seised
into
the
Kings
hand
without
Scire
facias
,
or
any
Inquisition
found
therof
,
and
as
appeareth
3
Eliz.
One
B●ake
who
by
Patent
was
the
Kings
Remembrancer
in
the
Exchequer
being
made
one
of
the
B●rons
of
the
same
Exchequer
,
the
other
Office
was
ipso
facto
●one
and
determined
,
&
there
need
no
inquisition
to
be
made
of
it
,
nor
Scire
facias
to
avoid
it
,
because
the
taking
of
the
Office
of
a
Baron
is
of
Record
;
And
a
man
cannot
be
a
Iudge
and
a
Minister
in
one
and
the
same
Court
,
and
therfore
the
first
Office
is
determined
by
taking
of
the
second
,
and
there
need
no
Office
to
be
found
of
it
,
the
matter
it self
being
apparant
upon
Record
,
and
therfore
as
it
appeareth
it
was
adjudged
in
13
H.
8.
that
a
new
Patent
of
the
same
Office
of
Remembrancer
making
recitall
of
the
former
Patent
(
which
appeared
as
before
upon
Record
to
be
void
)
with
a
clause
Quod
post
mortem
sive
determinationem
,
&c.
therof
,
the
new
Grant
shall
take
effect
,
was
void
.
And
Englefields
case
was
lately
adjudged
in
the
Exchequer
(
and
at
the
Parliament
35
Eliz.
allowed
to
be
good
Law
by
all
the
Iustices
there
being
)
where
the
Queen
had
a
Condition
given
to
her
by
forfeiture
upon
an
Attainder
of
Treason
to
be
performed
by
the
payment
of
a
summ
of
money
,
or
the
like
:
If
the
Queen
makes
a
Warrant
by
Patent
to
one
to
perform
the
Condition
,
and
to
return
his
proceedings
therupon
into
the
Exchequer
,
who
performs
it
accordingly
,
and
therupon
returns
all
that
he
hath
done
with
his
Warrant
into
the
Exchequer
,
no
Office
need
to
be
found
of
the
performance
of
the
Condition
,
because
that
by
the
return
(
which
is
warranted
by
the
Patent
)
the
Condition
appeareth
sufficiently
upon
Record
to
be
performed
,
and
therfore
no
Office
need
to
be
found
,
no
more
of
the
not-payment
in
this
case
.
It
hath
been
said
by
some
,
that
it
may
be
that
the
Patentee
hath
tendred
the
Rent
at
the
receit
,
and
that
they
would
not
receive
or
record
the
receit
of
it
,
and
that
then
it
should
be
hard
that
he
should
loose
his
Lease
,
no
default
being
in
him
:
to
which
I
say
,
suppose
a
man
be
bound
to
make
his
appearance
in
any
of
the
Kings
Courts
,
may
he
say
,
that
he
appeared
there
according
to
the
Obligation
,
&
excuse
himself
by
such
bare
averment
therof
,
unlesse
his
appearance
be
entred
of
Record
?
It
is
cleer
that
he
cannot
,
as
appeareth
by
18
E.
4.
for
appearance
in
a
Court
of
Record
,
is
not
unlesse
it
be
of
Record
,
yet
it
may
be
said
,
that
then
the
case
may
be
had
to
the
party
:
as
if
the
Officer
will
not
record
his
appearance
,
which
is
the
same
mischief
as
in
this
case
,
but
this
will
not
help
him
,
for
first
the
Law
presumes
that
every
Officer
wil
be
indifferent
betwixt
party
and
party
;
and
upon
this
opinion
had
of
him
he
is
admitted
to
his
Office
,
wherupon
the
Law
presumes
that
if
the
party
would
have
appeared
,
that
the
Officer
would
have
recorded
it
,
and
in
as
much
as
he
did
not
do
it
,
it
shall
be
taken
that
he
did
not
appear
.
But
the
strongest
reason
in
the
case
is
this
,
to
wit
,
if
default
be
not
in
the
party
to
do
that
which
he
ought
to
do
,
but
in
the
Officer
to
do
that
which
belongeth
to
his
Office
,
as
to
record
that
which
he
ought
to
record
,
there
the
Officer
shall
be
chargable
to
the
party
in
an
Action
upon
the
case
,
to
answer
him
so
much
in
Damages
as
he
hath
sustained
by
such
default
of
the
Officer
,
and
the
Law
will
put
the
party
rather
to
such
a
recovery
then
to
answer
it
by
a
bare
matter
of
averment
which
ought
to
be
of
Record
.
And
further
such
a
voluntary
default
may
be
a
forfeiture
of
his
Office
,
and
so
a
sufficient
penalty
in
case
of
an
Officer
.
And
to
say
,
that
the
Office
of
Receit
is
not
an
Office
of
Record
,
is
too
absurd
,
for
it
is
a
principall
member
and
part
of
the
Court
of
Exchequer
,
and
as
wel
of
Record
,
for
the
matters
belonging
to
it
,
as
the
Offices
of
the
Pipe
and
Remembrancers
are
for
those
things
which
belong
to
them
;
and
the
Records
of
Receit
as
well
inrolled
in
Rolls
of
Parchment
as
any
other
Records
of
the
Queen
in
this
,
or
any
other
Court
,
&
it
is
commonly
used
now
to
convey
Reversions
&
Remainders
to
the
Queen
,
with
a
Proviso
to
be
void
upon
payment
of
a
certain
sum
of
mony
to
the
Queen
at
the
receit
of
the
Exchequer
,
&
it
is
as
usual
upon
payment
made
there
to
have
it
back
again
without
office
found
of
this
paym
.
and
what
is
the
reason
of
it
?
now
,
but
because
the
paym
.
there
is
alwaies
entred
upon
Record
,
&
therfore
no
Office
needs
make
this
paym
.
to
appear
upon
Record
.
And
for
the
case
of
Sir
Rob.
Chester
.
4
Eliz.
there
is
great
diversity
between
that
&
this
case
,
for
it
is
ordained
by
the
Act
that
upon
the
default
of
paym
.
(
which
is
not
limited
there
to
be
made
at
the
receit
)
the
office
shal
be
forfeited
,
&
not
that
the
estate
in
the
office
shall
cease
:
And
of
a
thing
forfeited
it
is
at
the
election
of
him
who
is
to
take
advantage
of
the
forfeiture
,
whether
he
will
take
it
or
not
,
and
till
the
advantage
taken
therof
the
party
still
remains
an
Officer
.
And
therfore
if
the
Queen
make
a
Lease
for
years
,
and
the
Termer
makes
a
Feoffment
in
Fee
,
the
Term
by
this
is
extinct
,
as
was
agreed
upon
an
Evidence
in
the
Exchequer
28
El.
in
the
case
of
Drayton
Basset
,
and
before
that
,
in
the
same
case
in
the
Kings
Bench
,
and
yet
no
reversion
is
drawn
therby
out
of
the
Queen
.
Suppose
then
that
the
Queen
before
any
Office
found
therof
,
grant
the
Land
over
in
Fee
,
shall
not
the
Patentee
take
advantage
therof
by
extinguishing
the
Term
?
It
is
cleer
that
he
shall
,
and
albeit
a
Termer
holdeth
over
his
Term
,
yet
the
Patentee
of
the
Queen
,
and
also
the
Bargainee
of
a
common
person
after
the
Inrolement
of
the
Bargain
shall
take
advantage
of
this
determination
of
the
Term.
And
for
the
not
reciting
of
Throgmortons
Lease
in
the
Letters
Patents
made
to
Finch
and
Audeley
,
it
is
to
no
purpose
to
speak
to
it
,
because
the
Estate
was
finished
before
the
Grant
;
And
further
,
because
there
was
a
Non
obstante
in
the
Patent
,
that
it
shall
be
effectuall
,
notwithstanding
any
not
recitall
of
any
Lease
being
of
Record
,
or
not
being
of
Record
,
mis-recitall
,
&c.
which
was
by
all
at
the
Bonch
admitted
to
be
good
,
and
not
contradicted
by
any
.
And
for
the
Office
found
after
the
Grant
made
,
I
did
not
speak
to
it
,
because
it
is
of
no
purpose
to
help
the
Patentee
,
but
yet
shall
serve
the
Queen
for
the
mean
profits
,
as
hath
been
said
:
See
more
of
this
case
,
Trin.
36
Eliz.
pl.
2.
Trinity
Term
35
Eliz.
Hughes
versus
Robotham
.
1.
MEredith
Hughes
brought
an
Action
upon
the
Case
against
William
Robotham
Executor
to
Ja.
Robotham
,
for
that
the
Plaintiff
in
the
life
time
of
the
sayd
Testator
,
to
wit
,
the
12th
.
of
Ap●il
,
28
Eliz.
at
London
,
in
such
a
Parish
and
Ward
,
was
possessed
of
a
Messuage
,
with
the
Appurtenances
,
in
the
same
Parish
and
Ward
,
for
divers
years
then
to
come
;
And
whereas
also
the
said
Testator
was
then
possessed
of
the
reversion
therof
after
divers
years
then
also
to
come
,
and
so
possessed
the
said
Testator
the
said
12th
.
day
of
April
,
at
London
,
in
the
Parish
and
Ward
aforesaid
,
in
consideration
that
the
Plaintiff
at
the
instance
and
request
of
the
Testator
in
his
life
time
would
surrender
all
his
Estate
and
Term
of
years
which
he
then
had
to
come
in
the
said
Messuage
,
with
the
Appurtenances
,
and
procure
one
Thomas
Thornell
to
give
to
the
said
Testator
a
100.
marks
for
a
Lease
therof
to
be
made
by
the
said
Testator
to
the
said
Thornell
,
he
assumed
and
promised
to
pay
to
the
Plaintiff
30
l.
of
the
said
100.
marks
,
when
he
should
be
therunto
required
by
the
Plaintiff
.
And
the
Plaintiff
alledged
in
facto
,
that
he
at
the
instance
and
request
of
the
said
Testator
in
his
life
time
afterwards
,
to
wit
,
the
20th
.
day
of
April
,
28
Eliz.
at
London
,
in
the
Parish
and
Ward
aforesaid
,
surrendred
to
the
said
Testator
all
the
Estate
and
term
of
years
which
he
then
had
to
come
in
the
said
Messuage
,
&c.
and
that
he
,
the
same
20th
.
day
of
April
,
in
the
same
Parish
and
Ward
,
procured
the
sayd
Thornell
to
give
to
the
said
Testator
100.
marks
for
a
Lease
of
the
said
Messuage
,
&c.
by
the
Testator
to
the
said
Thornell
,
then
and
there
made
for
19
years
,
from
the
Feast
of
the
Annunciation
of
our
Lady
then
last
past
,
and
that
yet
the
said
Testator
in
his
life
time
,
nor
the
said
Defendant
after
his
death
,
have
not
paid
to
him
the
said
30
l.
albeit
the
said
Testator
in
his
life
time
,
to
wit
,
the
24.
day
of
April
aforesaid
,
at
London
,
in
the
Parish
and
Ward
aforesaid
,
as
therunto
required
by
the
said
Plaintiff
,
and
albeit
the
Defendant
after
the
death
of
the
said
Testator
,
to
wit
,
the
10th
.
day
of
April
,
32
Eliz.
in
the
Parish
and
Ward
aforesaid
,
was
also
therunto
required
by
the
said
Plaintiff
:
And
albeit
there
were
sufficient
Goods
and
Chattels
of
the
said
Testator
at
the
time
of
his
death
,
to
pay
as
well
the
said
30
l.
as
all
other
Debts
of
the
said
Testator
,
and
also
to
discharge
the
Funerals
of
the
said
Testator
,
which
Goods
and
Chattels
came
to
the
said
hand
of
the
said
Defendant
,
&c.
And
after
Non
assumpsit
pleaded
,
and
a
Verdict
for
the
Plaintiff
,
exception
was
taken
in
arrest
of
Iudgment
,
that
the
Declaration
was
not
good
.
1.
Because
it
is
,
that
the
Plaintiff
the
20th
.
day
of
April
,
28
Eliz.
surrendred
all
the
Estate
and
term
which
he
had
then
to
come
,
and
this
(
for
any
thing
shewn
)
may
be
another
Term
then
he
had
the
12th
.
day
before
,
for
it
is
not
said
,
and
so
being
possessed
the
20th
.
day
he
surrendred
,
but
generally
as
before
.
And
further
the
consideration
was
,
that
he
ought
to
surrender
all
the
Term
which
he
had
the
12th
.
day
of
April
,
which
cannot
be
made
the
20th
.
day
,
for
in
the
mean
time
,
part
of
the
Term
is
incurred
,
and
therfore
the
purpose
was
that
the
surrender
should
have
been
made
immediatly
as
soon
as
might
be
,
so
as
by
the
delay
therof
the
●●d
Robotham
should
not
loose
any
part
of
the
Term
to
come
.
And
it
was
further
alledged
,
that
a
term
for
years
cannot
be
surrendred
to
another
Termer
for
years
.
Gawdy
,
The
consideration
is
,
that
the
Plaintiff
at
the
request
of
the
Testator
in
his
life
time
should
surrender
,
so
that
it
is
not
to
be
done
untill
he
be
required
by
the
Testator
,
and
not
instantly
at
his
perill
without
request
precedent
;
and
here
it
is
alledged
that
the
Plaintiff
at
the
request
of
the
said
Testator
,
the
20th
.
day
of
April
surrendred
,
which
is
well
done
,
and
according
to
the
agreement
,
and
albeit
it
had
been
more
formall
to
have
said
that
the
said
Plaintiff
so
being
possessed
afterwards
,
to
wit
,
the
20th
.
day
of
April
,
surrendres
,
&c.
yet
it
shall
not
be
intended
that
he
had
any
other
term
then
that
which
he
had
before
,
if
it
be
not
shewn
on
the
other
side
in
his
Bar
,
and
especially
here
,
where
the
Action
is
not
grounded
upon
the
Term
,
but
upon
the
Assumpsit
,
and
the
consideration
is
nothing
but
an
inducement
to
the
Assumption
,
which
is
not
so
formall
to
be
made
as
if
the
Action
had
been
grounded
upon
the
Term
it self
.
And
therfore
in
an
Action
upon
the
case
upon
an
Assumpsit
,
it
sufficeth
to
say
,
that
wheras
the
Defendant
was
indebted
to
the
Plaintiff
in
divers
summs
of
money
amounting
in
all
to
a
100
l.
the
Defendant
assumed
to
pay
him
the
100
l.
at
such
a
day
,
without
saying
,
how
or
in
what
manner
these
Debts
accrued
,
or
when
,
because
the
Action
is
nor
meerly
founded
upon
the
Debt
but
upon
the
promise
,
and
the
Debts
are
but
inducements
to
it
:
But
if
it
were
to
recover
the
Debts
themselves
in
an
Action
of
Debt
there
ought
to
be
made
a
certainty
therof
,
to
wit
,
when
,
and
how
it
comes
.
And
further
here
,
in
as
much
as
the
Assumpsit
is
found
for
the
Plaintiff
,
it
shall
be
implyed
that
the
consideration
was
duly
performed
,
for
without
due
proof
of
the
consideration
the
Plaintiff
hath
failed
of
his
assumption
,
and
therfore
also
it
shall
be
now
taken
that
the
Testator
hath
such
a
term
of
years
in
reversion
,
to
which
the
term
for
years
in
possession
may
be
surrendred
,
for
he
said
,
that
he
who
hath
ten
years
in
possession
may
well
surrender
to
him
who
hath
more
years
,
as
twenty
in
reversion
;
for
the
lesser
may
surrender
to
the
greater
term
.
To
all
which
Popham
and
Fennor
agreed
:
And
Popham
said
further
,
although
it
shall
be
taken
most
strongly
against
Hughes
,
to
wit
,
that
Robotham
had
a
lesser
term
in
the
reversion
then
Hughes
had
in
the
possession
,
yet
the
surrender
shall
be
good
,
for
in
Law
it
is
greater
and
more
beneficiall
for
him
to
have
a
lesser
term
to
be
a
term
in
possession
,
then
to
have
it
to
be
in
reversion
:
●●nd
by
him
,
if
a
Lessee
for
twenty
years
make
a
Lease
for
ten
years
,
then
he
w●ich
makes
the
Lease
for
ten
years
hath
a
reversion
upon
these
ten
years
,
so
that
if
Rent
be
reserved
upon
it
,
he
may
distrain
for
it
and
have
Fealty
of
the
Termor
:
And
if
he
grant
the
Reversion
over
for
ten
years
,
with
attornment
of
the
Termor
in
possession
,
the
Grantee
hath
the
Reversion
and
shall
have
the
Rent
for
the
time
,
and
yet
the
Remainder
for
years
remains
alwaies
to
the
Grantor
,
and
therfore
before
the
Reversion
granted
ever
,
the
Termor
for
ten
years
in
possession
might
have
surrendred
to
his
Lessor
,
and
therby
the
said
Lessor
shall
have
so
many
of
the
said
years
which
were
then
to
come
of
his
former
term
of
twenty
years
;
And
after
the
Reversion
granted
,
he
,
which
hath
the
ten
years
may
surrender
to
the
Grantee
of
ten
years
in
Reversion
,
and
there
he
shall
have
so
many
years
in
possession
which
were
to
come
of
his
Reversion
,
Quod
nota
bene
:
And
if
he
had
had
a
lesser
term
in
the
Reversi●n
then
the
Less●r
himself
had
in
the
Possession
,
it
shall
go
to
the
benefit
of
the
first
Termor
for
twenty
years
,
who
was
his
Grantor
,
for
the
Term
in
possession
is
quite
gone
and
drowned
in
the
Reversion
to
the
benefit
of
those
who
have
the
R●version
therupon
,
having
regard
to
their
Estate
in
the
Reversion
,
and
not
otherwise
;
to
all
which
Fennor
agreed
,
wherupon
Gawdy
gave
the
rule
that
Iudgment
shall
be
entred
for
the
Plaintiff
:
But
Popham
said
,
that
if
the
consideration
for
the
surrender
had
not
been
sufficiently
alledged
,
that
the
Plaintiff
sh●uld
not
be
helped
by
the
other
consideration
of
100.
marks
given
by
Thornel
,
for
if
such
an
Assumption
as
this
is
be
founded
upon
two
more
considerations
,
and
such
which
by
possibility
may
be
performed
,
then
the
party
hath
failed
of
his
Suit
:
As
if
a
man
in
consideration
of
5
s.
paid
,
and
of
other
5
s.
to
be
paid
at
a
day
to
come
,
assume
to
do
a
thing
,
or
to
pay
money
,
if
the
one
5
s.
be
not
paid
,
or
if
it
be
not
averred
that
the
other
5
s.
was
paid
at
the
day
limited
for
the
payment
of
it
,
the
party
hath
failed
in
his
assumption
in
the
one
case
,
and
the
declaration
is
insufficient
in
the
other
case
,
for
he
hath
made
a
departure
from
his
consideration
:
But
if
one
of
the
considerations
be
impossible
,
or
against
Law
,
there
the
other
considerations
which
are
possible
,
or
stand
with
the
Law
suffice
if
they
he
well
alledged
.
And
he
said
,
that
the
Executor
shall
be
charged
with
the
contract
of
the
Testator
by
common
course
of
the
Court
,
which
stands
upon
reason
,
for
if
an
Action
of
Debt
upon
a
bare
contract
be
brought
against
an
Executor
,
if
he
do
not
demur
upon
it
but
plead
to
the
Pa●s
,
that
he
owes
him
nothing
,
and
it
is
found
against
him
,
he
shall
be
the●
by
charged
of
the
Goods
of
the
dead
;
and
the
cause
why
he
may
be
helped
by
demurring
upon
the
declaration
in
that
case
,
is
,
bec●use
the
Testator
might
have
waged
his
Law
in
that
case
of
debt
,
which
the
Executor
could
not
do
of
other
contracts
,
and
therfore
shall
not
be
charged
with
it
by
such
an
act
,
if
he
will
help
himself
by
demurrer
;
but
in
●he
assumption
of
his
Testator
,
he
could
not
have
waged
his
Law
:
and
it
is
founded
upon
the
death
of
the
Testator
,
to
wit
,
his
debt
,
with
which
the
Executor
by
a
mean
may
be
charged
as
before
,
and
therfore
the
assumption
in
such
a
c●se
maint●inable
against
the
Executor
.
But
if
the
Testator
upon
good
consideration
assume
to
make
assurance
of
Land
,
or
to
do
any
other
such
collaterall
thing
which
doth
not
sound
in
a
duty
of
a
thing
payable
,
there
the
Executor
sh●ll
never
be
charged
with
such
an
assumption
to
render
recompence
for
it
.
And
to
this
agreed
all
the
Iustices
●●
the
common
Bench
,
and
Barons
of
the
Exchequer
;
And
such
an
assu●●●ion
hath
not
been
allowed
in
the
Kings
Bench
but
of
late
time
,
and
th●●
but
〈…〉
or
two
cases
.
But
in
the
other
case
it
hath
been
common
and
of
〈…〉
,
and
therfore
now
too
late
to
be
drawn
in
question
;
and
if
it
should
●●
,
it
may
be
maintained
with
good
reason
in
this
case
of
a
duty
of
●●ing
payable
,
in
as
much
as
the
Testator
cannot
wage
his
Law
in
the
Action
,
but
in
the
other
case
there
is
no
reason
nor
course
of
the
Court
to
maintai●
it
:
But
the
Iudges
in
the
Exchequer
Chamber
reversed
all
these
Iudments
in
both
cases
.
2.
Nota
,
that
this
Term
was
adjourned
to
Octob.
Trin.
and
because
the
Writ
was
,
that
Adjournment
shall
be
made
in
Octob.
Trin.
of
all
cases
,
untill
Tres
Trinitat
.
the
Adjournment
was
made
in
every
of
the
Courts
of
Kings
Bench
,
Common
Bench
,
and
the
Exchequer
,
the
very
first
day
of
Octob.
Trin.
then
it
was
holden
by
the
Iustices
,
that
the
Adjournment
ought
not
to
have
been
made
untill
the
sitting
of
the
Court
the
fourth
day
from
Octabis
.
And
because
that
the
Writs
were
,
that
at
the
said
Tres
Tr.
the
Term
shall
be
holden
therafter
,
as
if
no
Adjournment
had
been
,
the
Iustices
held
that
they
ought
to
sit
the
first
day
of
the
said
Tres
Trin.
and
so
from
thence
every
day
untill
the
end
of
the
Term
,
and
for
all
causes
,
as
if
no
adjournment
had
been
;
and
so
they
did
accordingly
,
saving
by
assent
some
of
the
Iustices
did
not
come
thither
by
reason
of
their
far
distance
from
London
,
at
the
end
of
the
Term
upon
the
last
Adjournment
:
But
they
held
,
that
if
it
had
not
been
for
the
especiall
words
in
the
Writ
,
which
were
,
that
it
shall
be
then
holden
as
if
no
Adjournment
had
been
,
the
Ess●ines
had
been
the
first
day
of
Tres
Trin.
and
the
full
Term
had
not
been
untill
the
fourth
day
,
which
was
the
last
day
of
the
Term
,
quod
nota
,
and
so
it
was
of
the
Adjournment
which
hapned
first
at
Westminster
,
and
afterwards
at
Hertford
from
Michaelmas
Term
now
last
past
.
Michaelmas
Term
35
and
36
Eliz.
Gravenor
versus
Brook
and
others
.
1.
IN
an
Ejectione
firmae
by
Edward
Gravenor
Plaintiff
,
against
Richard
Brook
and
others
Defendants
,
the
case
appeared
to
be
this
;
Henry
Hall
was
seised
in
his
Demesne
as
of
Fee
,
according
to
the
custom
of
the
Mannor
of
A.
in
the
County
of
D.
of
certain
customary
Tenements
holden
of
the
said
Mannor
called
Fairchildes
and
Preachers
,
&c.
In
the
third
year
of
Henry
the
8th
.
(
before
which
time
the
customary
Tenements
of
the
said
Mannor
had
alwaies
been
used
to
be
granted
by
Copy
of
Court
Roll
of
the
said
Mannor
in
Fee-simple
,
or
for
life
or
years
,
but
never
in
Fee-tail
but
then
)
the
said
Henry
Hall
surrendred
his
said
Copy-hold
Land
,
to
the
use
of
Joane
his
eldest
Daughter
for
her
life
,
the
remainder
to
John
Gravenor
the
eldest
Son
of
the
said
Joane
,
and
to
the
Heirs
of
his
body
,
the
Remainder
to
Henry
Gravenor
her
other
Son
,
and
the
Heirs
of
his
body
,
the
Remainder
to
the
right
Heirs
of
the
said
Henry
Hall
for
ever
;
wherupon
in
3
H.
8.
at
the
Court
then
there
holden
,
a
grant
was
made
by
Copy
of
Court
Roll
accordingly
,
and
Seisin
given
to
the
said
Joane
by
the
Lord
accordingly
.
Henry
Hall
died
,
having
Issue
the
said
Joane
and
one
Elizabeth
,
and
at
the
Court
holden
within
the
said
Mannor
,
4
H.
8.
the
death
of
the
said
Henry
Hall
was
presented
by
the
Homage
,
and
that
the
said
Daughters
were
his
Heirs
,
and
that
the
Surrender
made
as
before
was
void
,
because
it
was
not
used
within
the
said
Mannor
to
make
Surrenders
of
Estates
tails
,
and
therupon
the
said
Homage
made
division
of
the
said
Land
,
and
limited
Fairchilds
for
the
purparty
of
the
said
Joane
,
and
Preachers
for
the
purparty
of
the
said
Elizabeth
,
and
Seisin
was
granted
to
them
accordingly
.
Elizabeth
died
seised
of
her
said
part
,
after
which
33
H.
8.
Margaret
her
Daughter
was
found
Heir
to
her
,
and
admitted
Tenant
to
this
part
;
after
which
Joane
dyed
seised
of
the
said
Tenements
as
the
Law
will
.
And
after
the
said
Margaret
takes
to
Husband
one
John
Adye
,
who
with
his
said
wife
surrendred
his
said
part
to
the
use
of
the
said
John
Adye
and
of
his
said
wife
,
and
of
their
Heirs
;
and
afterwards
the
said
Margaret
died
without
Issue
,
and
the
said
John
Adye
held
the
part
of
his
said
wife
,
and
surrendred
it
to
the
use
of
the
said
Richard
Brook
,
and
of
one
John
North
,
and
their
Heirs
who
were
admitted
accordingly
,
after
which
,
the
said
John
Gravenor
died
without
Issue
,
and
now
the
said
Henry
Gravenor
was
sole
Heirs
to
him
,
and
also
to
the
said
Henry
Hall
who
had
Issue
Edward
Gravenor
,
and
dyed
,
the
said
Edward
entred
into
the
said
Lands
called
Preachers
,
and
did
let
it
to
the
Plaintiff
,
upon
whom
the
said
Richard
Brook
and
the
other
Defendants
did
re-enter
and
eject
him
.
And
all
this
appeareth
upon
a
speciall
Verdict
.
And
by
Clench
and
Gawdy
,
an
Estate
tail
cannot
be
of
Copyhold
Land
,
unlesse
it
be
in
case
where
it
hath
been
used
,
for
the
Statute
of
Donis
conditionalibus
shall
not
enure
to
such
customary
Lands
,
but
to
Lands
which
are
at
common
Law
,
and
therfore
an
Estate
tail
cannot
be
of
these
customary
Lands
,
but
in
case
where
it
hath
been
used
time
out
of
mind
,
and
they
said
,
that
so
it
hath
been
lately
taken
in
the
Common
Bench
;
But
they
said
,
that
the
first
remainder
limited
to
the
said
John
Gravenor
here
upon
the
death
of
the
said
John
,
was
a
good
Fee-simple
conditional
,
which
is
well
warrantes
by
the
custom
to
demise
in
Fee
,
for
that
which
by
custom
may
be
demised
of
an
Estate
in
Fee
absolute
,
may
also
be
demised
of
a
Fee-simple
conditionall
,
or
upon
any
other
limitation
,
as
if
I.
S.
hath
so
long
Issue
of
his
body
,
and
the
like
,
but
in
such
a
case
no
Remainder
can
be
limited
over
,
for
one
Fee
cannot
remain
over
upon
another
,
and
therfore
the
Remainder
to
the
said
Henry
was
void
:
But
they
said
,
that
for
all
the
life
of
the
said
John
Gravenor
,
nothing
was
in
the
said
Elizabeth
which
could
descend
from
her
to
the
said
Margaret
her
Daughter
,
or
that
might
be
surrendred
by
the
said
Margaret
and
her
Husband
,
and
therfore
the
said
Margaret
dying
without
Issue
,
in
the
life
time
of
the
said
John
Gravenor
who
had
the
Fee-simple
conditionall
,
nothing
was
done
which
might
hinder
the
said
Edward
,
Son
to
the
said
Henry
Gravenor
of
his
Entry
,
and
therfore
the
said
Plaintiff
ought
to
have
his
Iudgment
to
recover
,
for
they
took
no
regard
to
that
which
the
Homage
did
,
4th
.
year
of
Hen.
8.
But
Fennor
and
Popham
held
,
that
an
Estate
tail
is
wrought
out
of
Copy-hold
Land
by
the
equity
of
the
Statute
of
Donis
conditionalibus
,
for
otherwise
it
cannot
be
that
there
can
be
any
Estate
tail
of
Copyhold
Land
,
for
by
usage
it
cannot
be
maintained
,
because
that
no
Estate
tail
was
known
in
Law
before
this
Statute
,
but
all
were
Fee-simple
,
and
after
this
Statute
it
cannot
be
by
usage
,
because
this
is
within
the
time
of
limitation
,
after
which
an
usage
cannot
make
a
prescription
,
as
appeareth
22
&
23
Eliz.
in
Dyer
:
And
by
8
Eliz.
a
Custom
cannot
be
made
after
Westm.
2.
And
what
Estates
are
of
Copyhold
land
,
appeareth
expresly
by
Littleton
,
in
his
Chapter
of
Tenant
by
Copyhold
,
&c.
And
in
Brook
Title
,
Tenant
by
Copyhold
,
&c.
15
H.
8.
In
both
which
it
appeareth
that
a
Plaint
lyeth
in
Copyhold
Land
in
the
nature
of
a
Formedon
in
the
Descender
at
common
Law
,
and
this
could
not
be
before
the
Statute
of
Donis
conditionalibus
for
such
Land
,
because
that
before
that
Statute
there
was
not
any
Formedon
in
the
Descender
at
common
Law
,
and
therfore
the
Statute
helps
them
for
their
remedy
for
intailed
Land
which
is
customary
by
equity
:
Add
if
the
Action
shall
be
given
by
equity
for
this
Land
,
why
shall
not
the
Statute
by
the
same
equity
work
to
make
an
Estate
intail
also
of
this
nature
of
the
Land
?
We
see
no
reason
to
the
contrary
;
and
if
a
man
will
well
mark
the
words
of
the
Statute
of
Westm.
2.
cap.
1.
he
shall
well
perceive
that
the
Formedon
in
Descender
was
not
before
this
Statute
,
which
wills
that
in
a
new
case
a
new
remedy
may
be
given
,
and
therupon
sets
the
form
of
a
Formedon
in
Descender
:
But
as
to
the
Formedon
in
the
Reverter
,
it
is
then
said
,
that
it
is
used
enough
in
Chancery
,
and
by
Fitzherbert
in
his
Natura
brevium
,
the
Formedon
in
the
Descender
is
founded
upon
this
Statute
,
and
was
not
at
Common
Law
before
;
And
the
reason
is
,
because
these
Copyholds
are
now
become
by
usage
to
be
such
Estates
that
the
Law
allows
them
to
be
good
against
the
Lords
themselves
,
they
performing
their
Customs
and
Services
,
and
therfore
are
more
commonly
guided
by
the
guides
and
rules
of
the
common
Law
,
and
therfore
as
appeareth
in
Dyer
,
Tr.
12.
Eliz.
Possessio
fratris
,
of
such
an
Estate
,
facit
sororem
esse
haeredem
.
And
to
say
that
Estates
of
Copyhold
Land
are
not
warranted
but
by
custom
,
and
every
Custom
lies
in
Vsage
;
and
without
Vsage
a
Custom
cannot
be
,
is
true
,
but
in
the
Vsage
of
the
greater
the
lesser
is
alwaies
implyed
:
As
by
Vsage
,
three
lives
have
been
alwaies
granted
by
Copy
of
Court
Roll
,
but
never
within
memory
,
two
,
or
one
alone
,
yet
the
grant
of
one
or
two
lives
only
is
warranted
by
this
Custom
,
for
the
use
of
the
greater
number
warrants
the
lesser
number
of
lives
,
but
not
è
converso
:
And
so
Fee-simples
upon
a
Limitation
.
or
Estates
in
tail
are
warranted
by
the
equity
of
the
Statute
,
because
they
are
lesser
Estates
then
are
warranted
by
the
Custom
,
and
these
lesser
are
implyed
as
before
in
the
greater
,
and
none
will
doubt
but
that
in
this
case
the
Lord
may
make
a
Demise
for
life
,
the
Remainder
over
in
Fee
,
and
it
is
well
warranted
by
the
Custom
,
and
therfore
it
seems
to
them
that
it
is
a
good
Estate
tail
to
John
Gravenor
,
and
a
good
Remainder
over
to
Henry
his
Brother
,
and
if
so
,
it
follows
that
the
Plaintiff
hath
a
good
Title
to
the
Land
,
and
that
Iudgment
ought
to
be
given
for
him
.
And
for
the
dying
seised
of
Elizabeth
,
they
did
not
regard
it
,
for
she
cannot
dye
seised
of
it
as
a
Copyholder
,
for
she
had
no
right
to
be
Copyholder
of
it
:
And
by
the
dying
seised
of
a
Copyholder
at
common
Law
,
it
shall
be
no
prejudice
to
him
who
hath
right
,
for
he
may
enter
;
But
here
in
as
much
as
she
cometh
in
by
admittance
of
the
Lord
at
the
Court
,
her
Occupation
cannot
be
fortious
to
him
,
and
therfore
no
descent
at
common
Law
by
her
dying
seised
,
for
it
was
but
as
an
Occupation
at
Will.
But
if
it
shall
not
be
an
Estate
tail
in
John
Gravenor
,
as
they
conceive
strongly
it
is
,
yet
for
the
other
causes
alledged
by
Gawdy
and
Clench
,
Iudgment
ought
to
be
given
for
the
Plaintiff
,
and
the
Remainder
which
is
not
good
shall
not
prejudice
the
Fee-simple
conditionall
granted
to
John
,
which
is
no
more
then
if
the
Surrender
had
been
to
the
use
of
Iohn
Gravenor
and
his
Heirs
,
the
Remainder
over
,
because
that
we
as
Iudges
see
that
this
cannot
be
good
by
Law
,
and
therfore
not
to
be
compared
to
the
case
where
the
Custom
warrants
but
one
life
,
and
the
Lord
grants
two
joyntly
or
successively
,
there
both
the
one
and
the
other
is
void
:
And
this
is
true
,
because
the
custom
is
the
cause
that
it
was
void
,
and
not
the
Law
,
and
also
it
is
a
larger
Estate
then
the
Custom
warrants
,
which
is
not
here
,
and
upon
this
Iudgment
was
given
that
the
Plaintiff
shall
recover
.
And
by
Popham
,
it
hath
been
used
,
and
that
upon
good
advice
in
some
Ma●nors
,
to
bar
such
Estates
tails
by
a
common
Recovery
prosecuted
in
the
Lords
Court
,
upon
a
Plaint
in
nature
of
a
Writ
of
Entry
in
the
Post
.
2.
JUlius
Cesar
Iudge
of
the
Admiralty
Court
,
brought
an
Action
upon
the
Case
for
a
Slander
against
Philip
Curtine
a
Merchant-stranger
,
for
saying
,
that
the
said
Cesar
had
given
a
corrupt
Sentence
;
And
upon
not
guilty
pleaded
,
and
200.
marks
Damages
given
,
it
was
alledged
in
arrest
of
Iudgment
,
where
it
was
tryed
,
by
Nisi
prius
at
the
Guildhall
by
a
partiall
Inquest
,
because
that
upon
the
default
of
strangers
,
one
being
challenged
and
tryed
out
,
a
Tales
was
awarded
De
circumstantibus
by
the
Iustice
of
Nisi
prius
;
wheras
(
as
was
alledged
)
a
Tale
could
not
have
been
granted
in
this
case
,
for
the
Statute
of
35
H.
8
cap.
6.
which
give
the
Tales
is
to
be
intended
but
of
commontryals
of
English
,
for
the
Statute
speaks
at
the
beginning
but
of
such
Iuries
,
which
by
the
Law
eught
to
have
40
s.
of
Free-hold
,
and
wills
that
in
such
cases
the
Venire
facias
ought
to
have
this
clause
,
Quorum
quilibet
habeat
40
s.
in
terris
,
&c.
which
cannot
be
intended
of
Aliens
which
cannot
have
Free-hold
:
And
it
goes
further
that
upon
default
of
Iurors
,
the
Iustices
have
authority
at
the
Prayer
of
the
Plaintiff
or
Defendant
,
to
command
the
Sheriff
or
other
Minister
to
whom
it
appertaineth
to
make
a
return
of
such
other
able
persons
of
the
said
County
,
then
present
at
the
same
Assises
or
Nisi
prius
which
shall
make
a
full
Iury
,
&c.
which
cannot
be
intended
of
Aliens
but
of
Subjects
,
and
therfore
shall
be
of
tryals
which
are
onely
of
English
,
and
not
of
this
Inquest
which
was
part
of
Aliens
.
And
further
the
Tales
was
awarded
only
of
Aliens
,
as
was
alledged
on
the
Defendants
part
,
but
in
this
point
it
was
a
mistake
,
for
the
Tales
was
awarded
generally
de
circumstantibus
,
which
ought
alwaies
to
be
of
such
as
the
principall
Pannell
was
.
But
Per
Curiam
the
exceptions
were
disallowed
,
for
albeit
the
Statute
is
,
as
hath
been
said
,
yet
when
the
Statute
comes
to
this
clause
,
which
gives
that
a
Tales
may
be
granted
by
the
Iustices
of
Nisi
prius
,
and
is
generally
referred
to
the
former
part
of
the
Act
,
for
it
is
added
;
Furthermore
be
it
enacted
,
that
upon
every
first
Writ
of
Habeas
Corpora
,
or
Distringas
with
a
Nisi
prius
,
&c.
the
Sheriff
,
&c.
shall
return
upon
every
Juror
5
s.
Issues
at
the
least
,
&c
,
which
is
generall
of
all
:
And
then
it
goes
further
,
And
wills
,
that
in
every
such
Writ
o●
Habeas
Corpora
,
or
Distringas
with
a
Nisi
prius
where
a
full
Jury
doth
not
appear
before
the
Justices
of
Assise
,
or
Nisi
prius
,
that
they
have
power
to
command
the
Sheriff
,
or
other
Minister
to
whom
it
appertains
,
to
nominate
such
other
persons
as
before
,
which
is
generall
in
all
places
where
a
Nisi
prius
is
granted
,
and
therfore
this
is
not
excepted
neither
by
the
Letter
nor
intent
of
the
Law
.
And
where
it
is
said
(
such
persons
)
by
it
,
is
to
be
intended
such
as
the
first
,
which
shall
be
of
Aliens
,
as
well
as
English
,
where
the
case
requires
it
,
for
expedition
was
as
requisite
in
cases
for
,
or
against
them
,
as
if
it
were
between
other
persons
.
And
Aliens
may
well
be
of
the
County
or
place
where
the
Nisi
prius
is
to
be
taken
,
and
may
be
there
:
for
although
an
Alien
cannot
purch●se
Land
of
an
Estate
of
Free-hold
within
the
Realm
,
yet
he
may
have
a
house
for
habitation
within
it
,
for
the
time
that
he
is
there
,
albeit
he
be
no
Denison
,
but
be
to
remain
there
for
Merchandise
,
or
the
like
:
And
by
Gawdy
,
where
the
default
was
only
of
strangers
,
the
Tales
might
have
been
awarded
only
of
Aliens
,
as
where
a
thing
is
to
be
tryed
by
Inquest
within
two
Counties
,
and
those
of
the
one
County
appear
,
but
not
those
of
the
other
,
the
Tales
might
be
of
the
other
County
only
.
Davies
versus
Gardiner
.
3.
AN
Action
upon
the
case
for
a
Slander
was
brought
by
Anne
Davies
against
Iohn
Gardiner
;
That
wheras
there
was
a
Communication
of
a
Marriage
to
be
had
between
the
Plaintiff
and
one
Anthony
Elcock
,
the
Defendant
to
the
intent
to
hinder
the
said
Marriage
,
said
,
and
published
,
that
there
was
a
Grocer
in
London
that
did
get
her
with
Child
,
and
that
she
had
Vide
this
case
reported
,
Cook
lib.
4.
16.
b
:
the
Child
by
the
said
Grocer
,
wherby
she
lost
her
Marriage
.
To
which
the
Defendant
pleaded
not
guilty
,
and
was
found
guilty
at
the
Assises
at
Aylesbury
to
the
Damages
of
200.
marks
:
And
now
it
was
alledged
in
Arrest
of
Iudgment
,
that
this
matter
appeareth
to
be
meerly
spirituall
,
and
therfore
not
determinable
at
common
Law
,
but
to
be
prosecuted
in
the
spirituall
Court.
But
per
Curiam
the
Action
lies
here
,
for
a
woman
not
maried
candot
by
intendment
have
so
great
advancement
as
by
her
Marriage
,
wherby
she
is
sure
of
maintenance
for
her
life
,
or
during
her
Marriage
,
and
Dower
and
other
benefits
which
the
temporall
Laws
gives
by
reason
of
her
Marriage
,
and
therfore
by
this
slander
she
is
greatly
prejudiced
in
that
which
is
to
be
her
temporall
advancement
,
for
which
it
is
reason
to
give
her
remedy
by
way
of
Action
at
common
Law
:
As
if
a
woman
keep
a
Victualling
house
,
to
which
divers
of
great
credit
repair
,
wherby
she
hath
her
livelyhood
,
and
one
will
say
to
her
Guests
,
that
as
they
respect
their
credits
,
they
take
care
how
they
they
use
such
a
house
,
for
there
the
woman
is
known
to
be
a
Bawd
,
wherby
the
Guests
avoid
her
house
,
to
the
losse
of
her
husband
,
shall
not
she
in
this
case
have
an
Action
at
common
Law
for
such
a
slander
?
It
is
cleer
that
shee
will
.
So
,
if
one
saith
,
that
a
woman
is
a
common
Strumpet
,
and
that
it
is
a
slander
to
them
to
come
to
her
house
,
wherby
she
looseth
the
ad●antage
which
she
was
wont
to
have
by
her
Guests
,
she
shall
have
her
Action
●or
this
at
common
Law
.
So
here
upon
these
collaterall
circumstances
,
wherby
it
may
appear
that
she
hath
more
prejudice
then
can
be
by
calling
of
one
Harlot
,
and
the
like
.
And
Iudgment
was
given
for
the
Plaintiff
.
Hillary
Term
,
36
Eliz.
in
the
Kings
Bench.
IN
Michaelmas
Term
,
33
,
&
34
Eliz.
Rot.
181.
William
and
Joane
his
wife
,
Administratrir
of
Andrew
Stock
,
brought
an
Action
upon
the
Case
upon
an
Assumpsit
,
made
to
the
Intestate
for
the
payment
of
5
l.
to
William
Stock
,
who
imparled
untill
Tuesday
next
after
,
Octa.
Hillary
next
,
which
was
the
24th
.
day
of
January
,
and
then
the
Defend●nt
demanded
Oyer
of
the
Letters
of
Administration
which
were
entred
,
in
haec
verba
.
Wherby
it
appeareth
that
the
Letters
of
Administration
were
committed
to
the
said
Joane
by
Thomas
Taylor
Batchelor
of
Law
,
Commissary
to
the
Bishop
of
London
,
&c.
wherby
the
Defendant
pleaded
,
that
after
the
last
continuance
,
●he
said
Letters
Patents
of
Administ●ation
,
sealed
with
the
Seal
of
the
Vicar
Generall
of
the
said
Bishop
,
which
he
useth
in
this
behalf
,
and
brought
here
into
Court
,
bearing
date
the
27th
.
day
of
January
1591.
which
was
three
daies
after
the
continuance
,
committed
the
Administration
to
the
said
Defendant
.
And
pleaded
further
the
Act
of
37
H.
8.
which
sayes
,
that
it
shall
be
lawfull
hereafter
for
any
person
,
being
a
Doctor
of
the
Law
,
to
be
Chancellor
,
Commissary
,
or
to
exercise
Ecclesiasticall
Iurisdiction
,
albeit
he
were
a
meer
Lay
person
,
so
that
such
a
person
be
a
Doctor
as
aforesaid
,
and
avers
,
that
at
the
time
of
the
committing
of
the
Administration
to
the
said
Joane
,
the
said
Thomas
Taylor
was
a
meer
Lay
person
,
and
not
Doctor
Legis
civilis
nec
minister
allocatus
,
according
to
the
Laws
of
the
Church
of
England
,
wherby
he
had
no
lawfull
power
to
commit
the
Administration
.
Vpon
which
it
was
demurred
generally
,
and
by
all
the
Court
the
Plaintiff
had
Iudgment
to
recover
;
for
we
are
to
consider
what
our
Law
was
in
this
case
before
this
Statute
of
37
H.
8.
And
albeit
a
Doctor
then
affirmed
,
that
the
Canon
Law
was
,
that
there
was
a
meer
nullity
in
such
Administration
,
so
although
the
party
that
did
it
,
not
being
a
Clark
nor
Doctor
,
according
to
the
Stat.
of
37
H.
8.
yet
all
the
Iustices
agreed
,
that
the
Administration
so
committed
will
be
adjudged
in
our
Law
to
be
of
force
and
effect
,
being
shewn
under
the
Seal
of
the
Officer
and
committed
by
him
,
who
is
reputed
the
Officer
,
who
ought
to
do
it
,
and
is
invested
in
the
Office
untill
it
be
avoided
by
sentence
,
and
yet
such
an
avoidance
shall
not
make
a
mans
act
to
be
made
void
,
no
more
then
if
a
meer
Lay-man
be
presented
to
a
benefice
,
albeit
this
be
a
meer
nullity
in
our
Law
,
and
void
,
yet
we
adjudge
the
Church
full
,
according
to
the
publike
admission
,
constitution
and
induction
,
and
not
according
to
the
capacity
of
the
person
,
which
is
a
thing
secret
,
untill
such
a
one
be
deprived
for
it
by
sentence
in
the
spirituall
Court
,
and
yet
the
Church
shall
be
in
our
Law
void
but
from
the
time
of
deprivation
,
of
which
notice
ought
to
be
given
to
the
Patron
.
So
here
,
he
remains
as
to
our
Law
an
Officer
untill
his
authority
be
defeated
by
sentence
of
the
spirituall
Court
,
otherwise
great
mischief
will
happen
;
for
an
infinite
number
of
Administrations
may
be
drawn
in
question
by
Averment
,
that
he
,
who
granted
them
was
a
meer
lay
person
,
and
so
make
such
Garboils
in
the
Common-wealth
,
which
is
not
to
be
suffered
for
the
inconveniency
which
will
happen
by
it
;
and
therfore
our
Law
which
is
founded
upon
reason
shall
judge
of
it
according
to
the
open
appearance
of
the
Officer
,
to
wit
,
that
he
hath
a
grant
made
to
him
,
and
not
according
to
the
private
capacity
of
the
person
,
and
this
is
not
altered
by
the
said
Statuts
which
is
made
in
affirmation
of
it
,
and
makes
the
authority
of
a
Doctor
of
Law
absolute
,
not
to
be
defeated
by
the
Civill
or
Canon
Law
,
which
is
not
in
the
other
case
:
But
yet
it
doth
not
make
this
case
of
worse
condition
then
it
was
at
Common
Law
.
And
by
all
the
pleading
of
the
Administration
committed
to
the
Defendant
,
is
not
good
,
because
it
appeareth
by
the
date
of
it
,
that
it
was
made
after
the
day
of
the
last
continuance
,
and
therfore
could
not
have
been
pleaded
untill
a
new
continuance
after
:
And
by
the
Doctor
the
last
Administration
does
not
avoid
the
first
,
but
in
case
where
there
is
an
especial
revecation
of
the
first
:
But
they
did
not
speak
of
the
doublenesse
because
the
Demurrer
was
generall
and
not
speciall
,
and
also
because
the
other
matters
were
so
cleer
.
2.
IN
Trespasse
for
carrying
away
certain
Loads
of
Hay
,
the
case
hapned
to
be
this
;
The
Plaintiff
pretending
Title
to
certain
Hay
which
the
defend
▪
had
standing
in
certain
Land
,
to
be
more
sure
to
have
the
Action
passe
for
(
to
wit
,
the
Plaintiff
)
and
mixed
it
with
the
Defendants
Hay
,
after
which
the
Defendant
took
and
carried
away
both
the
one
and
the
other
that
was
intermired
,
upon
which
the
Action
was
bought
,
and
by
all
the
Court
cleerly
the
Defendant
shall
not
be
guilty
for
any
part
of
the
Hay
,
for
by
the
intermirture
(
which
was
his
own
act
)
the
Defendant
shall
not
be
prejudiced
as
the
case
is
,
in
taking
the
Hay
.
And
now
the
Plaintiff
cannot
say
which
part
of
the
Hay
is
his
,
because
the
one
cannot
be
known
from
the
other
,
and
therfore
the
whole
shall
go
to
him
who
hath
the
property
in
it
with
which
it
is
intermired
,
as
if
a
man
take
my
Garment
and
Embroider
it
with
Silk
,
or
Gold
,
or
the
like
,
I
may
take
back
my
Garment
,
But
if
I
take
the
Silk
from
you
,
and
with
this
,
face
or
embroider
my
Garment
,
you
shall
not
take
my
Garment
for
your
Silk
which
is
in
it
,
but
are
put
to
she
Action
for
taking
of
the
Silk
from
you
.
So
here
,
if
the
Plaintiff
had
taken
the
Defendants
Hay
and
carried
it
to
his
house
,
or
otherwise
,
and
there
intermired
it
with
the
Plaintiffs
Hay
,
there
the
Desendant
cannot
take
back
his
Hay
,
but
is
put
to
his
Action
against
the
Plaintiff
for
taking
his
Hay
.
The
difference
appeareth
,
and
at
the
same
day
at
Serjeants
Inne
in
Fleetstreet
,
the
difference
was
agreed
by
Anderson
.
Pe●iam
,
and
other
Iustices
there
,
and
this
case
was
put
by
Anderson
:
It
a
Goldsmith
be
melting
of
Gold
in
a
Pot
,
and
as
he
is
melting
it
,
I
will
cast
Gold
of
mine
into
the
Pot
,
which
is
melted
together
with
the
other
Gold
,
I
have
no
remedy
for
my
Gold
,
but
have
lost
it
.
Bullock
versus
Dibler
.
3.
IN
an
Ejectione
firmae
between
Edward
Bullock
Plaintiff
,
and
John
Dibler
De●endant
,
the
case
appeared
to
be
this
;
A
man
was
seised
of
a
Copyhold
Ten●●ent
,
p●rcell
of
the
Mannor
of
Stratfield
Mortimer
,
the
County
of
Berks
,
in
right
of
his
wife
,
in
his
Demesne
as
of
Fee
,
and
surrendred
this
Copy
bold
Tenement
by
himself
without
his
wife
,
to
the
use
of
a
stranger
in
Fee
,
who
was
〈◊〉
by
the
Lo●●
accordingly
,
the
Husband
dies
,
the
wife
dies
,
the
Heir
of
the
wife
without
any
admittance
enters
upon
the
stranger
,
and
makes
a
Lease
for
a
year
to
the
Plaintiff
,
upon
whom
the
Defendant
in
right
of
him
to
whom
the
Surrender
was
made
,
re-enters
,
and
adiudged
that
the
Plaintiff
ought
to
recover
,
and
that
the
surrender
of
the
Husband
was
not
as
a
discontinuance
against
the
wise
,
to
put
the
Heir
to
his
Plaint
in
nature
of
a
Sur
Cui
in
vita
,
for
a
Discontinuance
shall
not
be
by
a
Deed
of
Feement
only
,
but
by
it
with
the
Livery
ensuing
,
wherby
the
entire
Fee-simple
is
given
,
what
Estate
so
ever
the
Feoffor
had
by
reason
of
the
Livery
,
where
by
Deed
of
Grant
nothing
passed
but
that
which
the
party
might
lawfully
grant
:
And
here
it
shall
be
taken
as
if
the
Grant
had
been
made
by
the
Husband
which
passed
but
his
Estate
,
to
wit
,
that
which
he
might
lawfully
grant
without
prejudice
to
his
wife
.
But
yet
there
is
this
diversity
between
a
surrender
of
an
Estate
for
life
,
and
a
surrender
of
an
Estate
in
Fee
to
the
use
of
a
scranger
,
to
wit
,
that
by
the
one
the
Estate
drowned
in
the
Lord
by
the
surrender
,
and
by
the
other
it
is
not
drowned
in
the
Lord
,
but
is
transferred
to
him
to
whom
it
was
made
,
upon
which
he
is
admitted
to
it
;
otherwise
,
in
the
last
case
it
returns
to
him
who
surrendred
,
and
then
upon
the
admittance
he
is
in
the
Per
by
him
who
surrendred
,
and
not
by
the
Lord
,
or
by
the
Surrender
made
by
Tenant
for
life
,
he
to
whose
use
it
is
made
ought
to
take
it
of
the
Lord
,
and
he
is
there
in
by
him
,
and
not
by
him
who
surrendred
.
And
this
is
the
common
difference
betwixt
Customary
Estates
for
lives
,
and
Customary
Estates
of
Inheritance
.
And
the
Plaint
of
Cui
in
vita
is
given
where
recovery
by
default
is
against
the
husband
and
wife
,
and
not
upon
the
surrender
of
the
husband
;
for
suppose
the
husband
had
surrendred
meerly
to
the
Lord
himself
,
yet
the
wife
might
have
entred
after
the
death
of
the
husband
,
because
the
surrender
goes
but
to
the
Estate
which
the
husband
might
lawfully
part
with
,
and
therfore
rather
to
be
resembled
to
a
Grant
then
to
a
Feoffment
.
And
notwithstanding
that
he
was
not
admitted
,
yet
he
might
enter
and
take
the
profits
,
and
make
a
Lease
according
to
the
custom
,
or
bring
an
Action
of
Trespasse
against
him
who
disturbes
him
?
But
if
the
Lord
require
his
Fine
or
his
Services
,
and
the
Heir
refuse
to
do
them
,
this
may
be
a
forfeiture
of
his
Copyhold
;
But
untill
lawfull
Seisin
made
by
the
Lord
(
because
it
belongeth
to
him
)
the
Heir
may
intermeddle
with
the
Possession
,
albeit
he
be
not
admitted
by
the
Lord
where
it
is
an
Estate
of
Iuheritance
by
the
Custom
.
And
in
this
Term
also
in
another
case
,
in
the
same
Court
it
was
adjudged
.
that
an
Infant
who
surrenders
his
Copyhold
Land
within
age
,
may
enter
at
his
full
age
,
without
being
put
any
Suit
for
it
.
And
the
first
case
was
very
well
argued
by
one
Brock
,
a
Puny
utter
Barister
of
the
Inner-Temple
,
this
Term
for
the
Plaintiff
.
And
it
was
the
first
Demur
that
he
argued
in
Court
.
Forth
versus
Holborough
.
4.
IN
an
Action
of
Debt
upon
an
Obligation
of
200.
marks
brought
by
Robert
Forth
Doctor
of
Law
,
and
Mary
his
Wife
,
as
Executrix
to
Doctor
Drewry
,
against
Richard
Holborough
,
the
Case
upon
Demurrer
appeared
to
be
this
;
to
wit
,
That
the
said
Dr.
Drewry
was
seised
in
his
Demesne
as
of
Fee
,
of
the
Suit
of
the
Mannor
of
Goldingham
Hall
in
the
County
of
Essex
,
and
so
seised
the
last
day
of
Novemb.
27
Eliz.
demised
it
to
the
said
Richard
Holborough
for
17.
years
from
the
said
last
day
of
Novemb.
wherby
the
Defend●nt
antred
into
it
the
next
day
,
and
was
therof
possessed
accordingly
,
and
so
possessed
the
last
day
of
Novemb.
28
Eliz.
entred
into
an
Obligation
to
the
said
Dr.
Drewry
,
with
condition
,
that
if
he
,
his
Heirs
,
Executors
,
Administrators
and
Assignes
,
or
any
of
them
should
well
and
truly
pay
or
cause
to
be
paid
to
Dorothy
Goldingham
widow
,
or
her
Assigns
,
at
the
Mannor-house
of
Goldingham
Hall
in
the
County
of
Essex
,
for
the
Term
of
17.
years
,
from
the
Feast
of
S.
Michael
the
Arch-angel
then
last
past
,
or
an
Annuity
or
annuall
Rent
of
20.
marks
of
lawfull
English
money
,
at
the
Feast
of
the
Annunciation
of
our
Lady
,
and
S.
Michael
the
Arch-angel
,
by
equall
portions
,
if
the
said
Dororhy
shall
so
long
live
,
and
the
said
Richard
Holborough
,
or
his
Assigns
,
or
any
other
claiming
by
,
or
under
the
said
Richard
,
or
his
Assigns
,
shal
or
may
so
long
occupy
or
enjoy
the
said
Scite
of
the
Mannor
of
Goldingham
Hall
,
that
then
the
Obligation
shall
be
void
;
after
which
untill
the
9th
.
day
of
May
,
29
Eliz.
the
Defendant
enjoyed
the
said
Scite
,
and
paid
duly
the
said
Annuity
,
and
then
he
surrendred
his
Estate
in
the
said
Scite
to
the
said
Dr.
Drewry
,
and
after
this
did
not
pay
the
Annuity
over
,
and
yet
continued
the
possession
of
the
said
Scite
.
And
by
all
the
Iustices
the
Defendant
notwithstanding
the
Surrender
made
to
the
Obligee
himself
,
ought
to
have
continued
the
payment
of
the
Annuity
to
the
said
Dorothy
,
for
albeit
the
Term
be
drowned
,
and
merged
in
the
Reversion
,
and
so
hath
no
continuance
as
to
him
in
the
Reversion
,
yet
as
to
any
thing
heretofore
done
by
the
Defendant
who
was
the
Termor
in
Iudgment
of
Law
,
it
is
to
be
said
to
have
continuance
:
As
if
he
had
granted
a
Rent-charge
out
of
it
to
have
continuance
during
the
said
Term
,
although
he
surrender
his
Term
to
him
in
the
Reversion
,
yet
the
charge
continues
,
and
as
to
it
,
the
Reversion
shall
be
said
to
be
in
the
Termor
,
and
albeit
the
Obligee
himself
shall
not
take
advantage
of
his
own
,
or
to
have
the
advantage
of
the
forfeiture
of
an
Obligation
there
,
where
his
own
act
is
the
cause
of
his
breach
.
And
if
it
had
been
,
that
the
said
Dorothy
during
the
said
Term
shall
have
the
use
of
a
Chamber
within
the
Scite
,
without
the
interruption
of
him
,
or
his
Assigns
,
there
,
if
after
the
Surrender
,
the
said
Dorothy
Drewry
had
interrupted
him
of
the
use
of
the
said
Chamber
,
the
forfeiture
of
the
Obligation
shall
not
be
taken
against
the
Defendant
for
it
.
But
here
the
Condition
is
of
a
collaterall
thing
to
be
done
,
to
wit
,
the
payment
of
the
Annuity
to
a
stranger
,
with
which
the
Land
is
not
bound
,
and
therfore
the
breach
comes
meerly
in
default
of
the
Obligor
,
and
of
the
Obligee
in
no
part
,
to
wit
,
and
therfore
the
Obligation
here
is
forfeited
.
And
by
Popham
,
the
case
here
is
more
cleer
upon
consideration
of
the
words
of
the
Condition
,
for
the
words
are
,
I
the
Defendant
shall
,
or
may
enjoy
,
&c.
and
this
word
(
may
enjoy
)
shall
be
alwaies
intended
reasonably
,
to
wit
,
if
it
may
without
any
thing
to
be
done
by
him
to
the
contrary
;
and
here
if
he
had
not
made
the
Surrender
,
he
might
have
enjoyed
the
Scite
untill
the
end
of
his
Term
,
and
therfore
because
it
cometh
of
his
own
act
,
wherby
he
,
or
his
Assigns
shall
not
enjoy
it
for
the
Term
,
if
it
shall
be
said
,
that
he
in
the
Reversion
shall
not
be
said
in
,
by
the
Termor
of
which
he
himself
shall
not
take
any
advantage
,
in
as
much
as
if
this
had
not
been
,
he
might
have
enjoyed
for
the
whole
Term.
To
which
all
the
other
Iustices
also
agreed
,
and
upon
this
Iudgment
was
given
for
the
Plaintiff
.
But
if
any
had
defeated
the
said
Term
by
a
lawfull
entry
,
by
a
Title
Paramount
,
the
Obligation
had
not
been
forfeited
for
any
default
of
payment
after
this
Entry
,
but
if
Rent
had
been
reserved
upon
the
Lease
,
and
for
default
of
payment
,
a
Re-entry
had
been
made
,
yet
by
Popham
the
payment
ought
to
be
continued
upon
the
perill
of
the
forfeiture
of
the
Obligation
,
for
the
words
(
may
enjoy
)
in
as
much
as
there
it
is
the
meer
default
of
the
Defendant
himself
,
there
the
Lease
does
not
continue
,
of
which
he
shall
not
take
advantage
to
save
his
Obligation
.
But
note
the
form
of
the
Demurrer
,
and
that
it
might
have
been
been
better
ioyned
,
which
is
to
be
seen
in
the
Record
where
it
is
entred
.
Easter
Term
36
Eliz.
Geilles
versus
Rigeway
.
IN
debt
for
306.
l
6.
s.
8
d.
by
William
Geillies
,
against
Thomas
Rigeway
Esq
late
Sheriff
of
Devon
;
For
that
wheras
John
Chaunder
alias
Chaundeler
,
was
in
execution
with
the
said
Sheriff
for
the
said
summ
,
the
said
Sheriff
afterwards
,
to
wit
,
the
tenth
day
of
December
,
34
Eliz.
at
London
,
in
such
a
Parish
and
Ward
suffered
him
to
escape
,
the
said
Rigeway
then
being
Sheriff
of
Devon
,
and
having
him
then
in
execution
,
&c.
To
which
the
Defendant
pleaded
,
how
that
he
took
him
in
Execution
by
the
Proces
at
Stockram
in
the
County
of
Devon
,
as
the
Plaintiff
hath
alledged
,
and
there
detained
him
in
safe
custody
untill
the
8th
.
day
of
December
,
34
Eliz.
at
which
day
the
said
Chaundeler
broke
the
Prison
,
and
escaped
out
of
it
contrary
to
the
will
of
the
said
Defendant
,
and
that
the
Defendant
did
freshly
pursue
him
,
and
in
this
fresh
pursuit
did
re-take
him
the
11th
.
day
of
December
,
then
next
ensuing
at
Stockram
aforesaid
,
and
detained
him
in
execution
for
the
said
306
l.
6
s.
8
d.
during
the
time
of
his
Office
,
and
delivered
him
ever
to
the
new
Sheriff
,
&c.
To
which
the
Plaintiff
replyed
by
protestation
,
that
he
did
not
make
fresh
pursuit
;
And
for
plea
saith
,
That
after
the
going
away
of
the
said
Chaundeler
,
and
before
his
re-taking
by
the
said
Defendant
as
aforesaid
,
the
said
Chaundeler
for
a
whole
day
and
night
,
to
wit
,
at
London
,
in
the
Parish
and
Ward
aforesaid
,
was
out
of
the
view
of
the
said
Defendant
,
&c.
Vpon
which
it
was
demurred
in
Law
.
And
it
was
moved
by
Cook
Attorney-generall
,
that
Iudgment
ought
to
be
given
for
the
Plaintiff
;
for
,
in
as
much
as
it
was
alledged
,
that
he
was
out
of
the
view
of
the
Sheriff
for
a
day
and
a
night
together
,
there
it
shall
be
intended
to
be
a
default
in
the
Defendant
in
the
making
of
his
pursuit
,
and
therfore
chargable
to
the
Plaintiff
,
and
yet
he
agreed
,
that
if
the
Sheriff
had
made
his
pursuit
freshly
;
although
that
at
the
turning
of
a
Lane
,
end
of
a
house
,
or
the
like
,
the
Prisoner
had
been
out
of
the
view
of
the
Sheriff
for
a
small
time
,
as
untill
the
Sheriff
commeth
to
this
turning
,
end
of
the
house
,
or
the
like
,
yet
the
Sheriff
may
re-take
the
Prisoner
,
and
he
shall
be
yet
said
to
be
in
execution
to
the
party
against
his
will
,
yet
when
he
is
for
so
long
a
time
out
of
his
view
,
it
shall
be
otherwise
,
for
the
default
which
the
Law
presumes
to
be
in
him
;
and
therfore
in
this
case
the
action
lies
.
To
which
it
was
answered
by
Popham
,
Gawdy
,
and
Clench
,
That
if
he
makes
fresh
pursuit
,
so
that
it
doth
not
appear
fully
that
there
was
a
default
in
the
Sheriff
in
his
pursuit
,
although
he
were
so
long
out
of
his
view
,
yet
he
shall
be
said
to
be
in
execution
for
the
party
against
his
will
upon
the
retaking
of
him
:
As
if
be
be
pursued
to
a
house
where
he
is
kept
for
a
long
time
,
and
the
Sheriff
set
a
guard
upon
the
house
,
and
after
this
re-take
him
the
next
,
or
any
other
day
without
departing
from
thence
,
the
Sheriff
in
such
a
case
may
re-take
him
upon
his
coming
out
of
the
house
,
and
he
shall
be
in
execution
to
the
party
against
his
own
will
.
And
so
in
all
like
Cases
;
As
if
he
pursues
him
in
the
night
,
so
as
he
cannot
see
him
,
and
yet
by
the
tract
of
the
horse
,
or
enquiry
he
makes
diligent
pursuit
to
re-take
him
,
so
that
it
cannot
appear
that
there
was
any
negligence
or
default
in
him
in
making
pursuit
.
And
it
is
not
the
form
of
the
pleading
to
alledge
,
that
he
pursued
him
freshly
,
and
had
him
alwaies
in
his
view
untill
he
re-took
him
,
but
only
that
he
pursued
him
freshly
and
took
him
in
this
fresh
pursuit
,
without
saying
any
thing
that
he
was
in
his
view
,
and
therfore
his
being
out
of
the
view
of
the
Sheriff
is
not
materiall
in
the
case
,
but
the
fresh
pursuit
,
and
the
taking
of
him
in
this
pursuit
.
Then
Coke
moved
,
that
the
Bar
was
not
good
,
because
he
doth
not
shew
where
he
made
the
pursuit
,
so
that
he
might
agres
to
answer
that
which
is
alledged
by
the
Plaintiff
,
to
wit
,
his
being
at
large
at
London
,
and
therfore
the
Bar
not
being
good
,
Iudgment
shall
be
given
against
the
Defendant
for
the
insufficiency
of
his
Bar
:
for
a
Repleader
shall
not
be
in
case
of
Demurs
,
as
it
hath
been
adjudged
here
very
lately
,
and
also
in
the
Common
Bench.
To
which
it
was
answered
by
the
said
Iustices
,
That
if
the
Bar
be
insufficient
in
matter
,
so
that
it
may
appear
by
it
,
that
the
Plaintiff
hath
sufficient
cause
of
Action
,
which
in
matter
is
not
sufficiently
avoided
by
the
Bar
,
Judgment
shall
be
given
for
the
Plaintiff
upon
the
Bar
,
if
the
Replication
be
sufficient
,
and
no
Repleader
;
but
if
the
Bar
be
sufficient
for
the
matter
and
insufficient
for
the
form
only
,
as
it
is
here
,
there
before
the
Statute
of
Eliz.
for
pleading
there
shall
be
a
Repleader
,
but
now
because
no
Demurrer
was
upon
the
Bar
,
but
a
Replication
made
to
it
,
therfore
by
Popham
no
advantage
shall
be
taken
of
the
Bar
for
matter
of
form
,
which
is
admitted
by
the
party
,
and
no
advantage
taken
therof
according
to
the
Statute
.
And
they
all
agreed
,
that
the
Sheriff
,
albeit
he
did
not
make
fresh
pursuit
upon
the
escape
,
may
yet
take
,
re-take
the
Prisoner
who
escaped
from
him
out
of
Execution
,
for
the
Prisoner
shall
not
take
advantage
to
avoid
the
Execution
;
and
therfore
in
respect
of
the
Plaintiff
,
who
yet
may
accept
the
Prisoner
to
be
in
execution
,
the
Sheriff
may
re-take
the
Prisoner
.
But
if
the
Plai
.
had
recovered
against
the
Sheriff
before
for
the
escape
,
then
the
Sheriff
for
his
Indempnity
cannot
re-take
him
,
but
is
put
to
his
Action
upon
the
Case
against
the
Prisoner
,
for
the
Sheriff
hath
no
colour
in
such
a
case
of
escape
to
retake
him
,
but
in
respect
,
and
for
the
advantage
of
the
Plaintiff
,
who
had
Iudgment
against
the
Prisoner
,
and
not
in
respect
of
the
private
wrong
done
to
himself
,
of
which
he
hath
no
Iudgment
,
and
as
it
is
now
,
the
Replication
not
being
good
(
by
Popham
)
Iudgment
ought
to
be
given
against
the
Plaintiff
.
But
by
assent
it
was
ordered
that
the
Defendant
shall
put
in
new
Bail
,
and
that
upon
it
,
he
shall
plead
anew
;
But
how
shall
it
be
if
the
Sheriff
do
notmake
fresh
Suit
and
re-take
him
?
And
afterwards
he
,
at
whose
Suit
he
was
in
Execution
recovered
against
the
Sheriff
;
may
the
Prisoner
have
an
Audita
querela
upon
the
matter
?
Vpon
an
Assembly
of
all
the
Iustices
at
Serjeants-Inn
in
Fleetstreet
,
with
the
Barens
of
the
Exchequer
,
it
was
cleerly
agreed
by
them
all
(
but
two
,
who
at
the
beginning
made
some
doubt
of
it
,
but
at
the
end
assented
also
.
)
If
in
the
night
,
the
house
of
any
be
broken
,
with
an
intent
to
steal
any
thing
being
in
the
house
,
although
no
person
be
in
the
house
at
this
time
,
yet
this
is
Burglary
,
for
the
Law
is
,
that
every
one
shall
be
in
security
in
the
night
,
as
well
for
their
Goods
as
their
persons
which
be
in
the
house
.
And
if
a
Church
be
broken
in
the
night
for
the
stealing
of
any
thing
in
it
,
this
is
Burglary
,
though
no
person
be
in
it
at
this
time
.
And
so
hath
the
Law
alwaies
been
put
in
execution
,
and
in
all
the
Books
which
speak
of
Burglary
,
it
is
not
mentioned
that
any
person
ought
to
be
in
the
house
,
but
that
it
is
Burglary
,
the
Messuage
being
●eck●n
in
the
night
,
to
the
intent
to
kill
any
person
th●●e
,
or
to
the
intent
to
steal
any
thing
out
of
it
.
And
the
case
that
of
late
time
it
hath
been
put
in
the
Inditements
of
Burglary
,
that
some
person
was
then
there
,
&c
,
hath
been
,
because
that
in
such
cases
of
Burglary
,
Clergy
was
taken
away
,
but
now
by
the
Statute
of
18
Eliz.
Clergy
is
taken
away
in
every
case
of
Burglary
.
And
the
ancient
Presidents
are
,
Quod
domum
of
such
a
one
Nectanter
Felonice
&
burglariter
fregit
,
without
making
mention
that
any
person
was
then
in
it
,
or
making
mention
that
it
was
Domus
mansionalis
of
any
:
And
it
may
be
a
Mansion
House
,
albeit
no
person
then
inhabit
in
it
.
And
agreed
that
hereafter
it
shall
be
so
put
in
execution
by
all
the
Iustices
.
See
this
more
fully
hereafter
,
Trin.
36
Eliz.
Pl.
1.
in
this
Book
.
AT
Tres
Paschae
this
Term
there
were
made
for
Serjeants
at
Law
;
viz.
Lewkenor
,
Savage
and
Williams
of
the
Middle-Temple
,
Heale
only
of
the
Inner-Temple
,
Kingsmill
,
Warburton
,
Branthwaite
,
and
Flemming
of
Lincolns-Inn
,
and
Daniel
and
Spurling
of
Grayes-Inn
.
And
all
the
Iustices
were
assembled
in
the
Middle-Temple
Hall
,
the
Wednesday
past
M●nsem
Paschae
,
being
the
second
day
of
May
,
where
the
two
chief
Iustices
,
and
chief
Baron
sate
upon
the
Vpper-Bench
of
the
same
Hall
,
in
their
Scarlet
Robes
with
their
Collers
of
S.
S.
and
every
one
of
the
other
Iustices
and
Barens
in
their
Ancienty
,
one
on
the
one
side
,
and
the
other
on
the
other
side
in
their
Scarlet
Robes
also
,
and
then
came
the
new
Serjeants
in
their
black
Gowns
before
the
Iustices
there
,
the
two
eldest
being
put
in
the
midst
before
the
chief
Iustice
of
England
,
and
so
every
one
of
them
,
one
on
the
one
side
,
and
the
other
on
the
other
side
,
according
to
their
Ancienty
,
and
every
one
of
the
said
Serjeants
having
one
of
his
Servants
behind
him
at
his
back
,
with
his
Masters
Scarlet
Hood
and
Coife
upon
his
arms
:
And
therupon
the
said
chief
Iustice
made
his
Speech
in
this
manner
.
IF
men
will
enter
into
a
due
consideration
upon
what
grounds
the
Laws
of
this
Realm
have
their
Original
Foundation
,
and
what
good
effects
are
wrought
through
the
due
execution
of
the
same
they
might
say
,
and
that
justly
,
that
the
profession
therof
is
both
an
honest
,
and
honourable
Profession
.
The
Laws
are
derived
partly
from
the
law
of
God
and
partly
from
the
Law
of
Nature
.
From
the
Law
of
God
,
in
that
it
ordaineth
means
how
the
people
may
be
truly
instructed
in
the
knowledge
and
fear
of
God
:
How
they
should
demean
themselves
towards
their
Soveraign
and
Prince
:
How
they
ought
to
live
one
with
the
other
,
and
how
to
be
defended
from
oppressions
and
injuries
.
From
the
Law
of
Nature
,
in
that
it
provideth
how
each
man
may
defend
himself
,
that
he
may
live
by
his
own
labours
,
or
otherwise
according
to
his
profession
or
calling
;
That
he
may
secure
his
Posterity
of
that
which
he
hath
gathered
together
by
his
industry
,
and
that
man
with
man
may
live
together
in
such
secure
and
comfortable
Society
as
appertaineth
.
And
what
be
the
effects
which
grow
by
the
due
execution
of
the
Laws
?
They
are
these
.
By
it
,
God
is
known
,
the
Soveraign
Prince
obeyed
,
the
people
are
kept
to
live
in
peace
,
and
that
is
yeilded
to
each
which
is
his
due
:
And
can
there
be
any
better
things
then
these
upon
the
face
of
the
Earth
?
No
,
there
cannot
.
The
Law
therfore
being
taken
from
so
good
a
ground
,
and
working
such
notable
and
honourable
effects
,
who
can
justly
say
otherwise
,
but
that
the
profession
of
such
a
Law
in
an
honourable
profession
?
Are
not
the
Judges
of
the
Law
professors
of
the
Law
?
See
then
what
God
himself
in
his
word
hath
said
of
Judges
in
Psal.
82.
speaking
of
Judgment
and
Justices
he
saith
thus
;
I
have
said
yee
are
Gods
,
and
can
there
be
any
higher
name
then
this
in
Heaven
or
Earth
?
And
why
are
they
so
learned
?
but
for
that
,
they
in
their
Offices
do
resemble
that
which
is
the
Office
of
God
,
as
to
discern
so
far
forth
as
mans
capacity
can
reach
unto
between
right
and
wrong
,
truth
and
falshood
,
the
just
and
the
unjust
,
which
is
a
most
high
,
weighty
and
honourable
charge
,
and
therfore
2
Chro:
196.
cha
.
Jehosophat
said
to
the
Judges
,
Take
heed
what
you
do
,
for
you
do
not
execute
the
Judgments
of
men
,
but
of
the
Lord
,
and
He
will
be
with
you
in
Judgment
.
By
which
it
is
evident
,
that
they
are
either
grosly
ignorant
,
or
otherwi●e
very
malignant
and
con●emptuous
persons
that
may
not
be
induced
to
be
reformed
,
that
do
in
any
wise
hold
the
profession
to
be
either
base
or
contemptible
.
And
this
I
may
truly
say
to
the
encouragement
and
comfort
of
such
as
being
honest
do
profess
the
Law
:
That
in
the
most
parts
of
England
there
are
more
Gentlemens
houses
,
and
those
of
continuance
raised
and
advanced
by
that
profession
alone
,
then
by
all
other
the
professions
that
can
be
spoken
of
,
and
approved
,
.
Let
any
man
of
Experience
in
the
State
,
of
the
generall
part
of
the
Realm
enter
into
a
due
consideration
of
it
,
and
I
am
well
assured
he
shall
find
it
so
;
wherby
it
may
plainly
appear
,
that
Gods
blessings
for
worldly
benefits
have
greatly
abounded
towards
such
as
have
walked
evenly
and
justly
in
that
calling
:
yet
happily
there
may
be
some
(
I
mean
such
as
slip
in
by
extraordinary
means
)
that
somtime
do
give
scandall
to
the
Profession
;
as
where
such
are
called
to
the
Degrees
of
Learning
,
as
are
either
ignorant
,
or
infamous
persons
,
wherby
they
either
cannot
advise
as
they
should
,
or
by
giving
themselves
over
to
slights
and
to
shifts
,
they
do
not
advise
as
they
ought
.
A
matter
abhorred
of
all
good
and
honest
men
:
But
the
same
being
duly
weighed
,
tendeth
to
the
touch
of
the
person
,
and
not
of
the
Profession
.
Nevertheless
to
avoid
this
Scandall
,
I
would
advise
;
1.
Such
as
have
Government
in
these
houses
of
Court
,
should
be
very
carefull
and
respective
in
their
Calls
,
not
only
to
the
bench
as
Readers
,
but
of
those
also
whom
they
call
to
the
Bar
,
that
they
may
be
such
as
may
appear
to
be
both
learned
,
and
honest
,
and
such
as
may
not
justly
be
impeached
of
Ignorance
,
or
Ignominy
;
for
such
are
not
only
to
advise
between
parties
,
but
many
of
them
are
drawn
to
Credit
and
Government
also
in
their
Countries
,
and
therfore
behoofull
to
be
free
from
such
Imputations
.
And
sithence
without
the
knowledge
of
the
Law
in
some
measure
,
such
as
govern
in
their
Countries
,
may
often
fall
to
commit
such
Errors
as
were
to
be
wished
might
be
otherwise
.
It
were
convenient
that
Gentlemen
,
yea
,
those
of
best
worth
would
bring
up
their
very
heirs
in
the
knowledge
of
the
Laws
,
as
that
they
might
in
after
ages
,
when
as
they
shall
be
called
to
Government
,
be
so
able
to
govern
under
her
Majesty
as
might
best
stand
with
their
Reputations
,
and
the
good
of
their
Countries
.
And
now
your selves
that
are
here
present
,
and
have
been
called
to
this
State
and
Degree
of
Serjeants
at
Law
(
a
State
and
Degree
I
may
well
call
it
,
for
that
her
Majesty
doth
so
term
it
)
Since
your
gravities
and
your
good
conversations
in
your
callings
hither-to
,
and
the
good
opinion
conceived
of
your
Learnings
,
Experiences
,
and
Discretions
hath
moved
her
Majesty
to
call
you
to
this
Dignity
.
I
am
now
to
advise
you
so
to
demean
and
govern
your selves
in
your
Profession
as
those
good
things
thus
conceived
of
you
may
not
henceforth
any
waies
be
blemished
,
but
rather
encrease
,
to
your
further
Reputations
and
Credits
.
In
which
you
are
to
have
a
speciall
regard
that
you
be
thankfull
,
first
,
to
God
,
who
hath
so
guided
the
course
of
your
lives
hither-to
,
as
it
hath
made
you
to
have
been
thought
to
have
merited
this
Advancement
.
Then
to
her
Majesty
,
who
upon
good
report
made
,
hath
conceived
so
well
of
you
as
to
call
you
to
this
Degree
,
wherin
it
behoveth
you
so
to
demean
your selves
,
as
in
all
her
Highness
Service
,
both
in
your
Countries
and
otherwise
,
as
you
shall
be
called
therunto
,
as
you
may
be
found
to
deal
therin
effectually
,
diligently
,
and
justly
.
And
lastly
,
to
the
Country
and
Common
wealth
who
hath
carried
so
good
a
report
of
you
,
as
therby
you
have
been
the
rather
brought
to
this
place
:
And
the
most
thankfulness
you
can
shew
to
your
Country
,
is
,
to
Councell
your
Clients
according
to
your
skill
honestly
,
and
truly
,
wherby
they
may
not
be
encouraged
to
spend
their
time
and
their
substance
in
vain
,
frivolous
,
and
unjust
Suits
;
to
be
faithfull
and
secret
to
your
Clients
,
not
disclosing
their
Councels
to
their
prejudice
,
that
you
expedite
your
Clients
Cause
so
far
forth
with
conveniency
,
and
your
Clients
safety
,
that
both
in
your
practice
and
otherwise
,
your
speech
and
behaviour
towards
all
men
be
modest
and
discreet
,
yea
,
such
as
appertaineth
to
men
of
your
Gravities
and
Callings
,
that
without
respect
of
persons
,
yea
,
be
bold
to
maintain
your
Clients
honest
Cause
,
so
far
forth
as
may
stand
with
knowledge
and
discretion
:
And
that
in
all
things
you
respect
more
your
honesties
,
then
your
profits
.
And
touching
these
points
,
you
have
a
continuall
memory
,
and
that
alwaies
about
you
,
in
your
very
Garments
:
And
therfore
by
the
Coif
,
in
respect
it
is
white
many
things
are
signified
,
as
Gravity
,
Wisdom
,
and
Experience
,
for
that
these
Virtues
are
proper
to
the
gray
haires
,
and
white
headed
men
.
There
is
also
signified
therby
,
that
you
should
be
both
honest
and
of
an
unspotted
life
;
And
in
that
it
is
fashioned
like
a
Helmet
,
it
signifieth
,
that
you
should
be
both
bold
to
utter
your
knowledge
in
the
Law
,
in
the
honest
and
just
cause
of
your
Client
,
without
respect
of
persons
whomsoever
it
concerneth
.
And
by
the
party
colour'd
Garments
,
being
both
of
deep
colours
,
and
such
as
the
Judges
themselves
in
ancient
time
used
(
for
so
we
receive
it
by
tradition
is
signified
soundness
and
depth
of
judgment
and
ability
to
discerne
of
Causes
,
what
colour
soever
be
cast
over
it
,
and
under
,
or
with
what
vail
or
shadow
soever
it
be
disguised
.
For
the
wholness
and
closness
of
your
Garments
,
they
do
signifie
integrity
to
be
used
in
your
advices
,
and
secrecy
in
your
councels
.
And
in
that
the
Garments
being
single
and
unlined
,
it
betokeneth
that
you
should
be
sincere
and
plain
in
your
advises
,
and
not
double
,
carrying
your
opinion
to
your self
one
way
,
and
you
advise
it
your
Client
clean
another
way
.
The
two
Tongues
do
signifie
,
that
as
you
should
have
one
Tongue
for
the
Rich
for
your
Fee
,
as
a
reward
for
your
long
studies
and
labours
,
so
should
you
also
have
another
Tongue
as
ready
without
reward
to
defend
the
Poor
and
Oppressed
;
And
therin
to
shew
your
seves
thankfull
to
God
for
all
that
which
he
hath
bestowed
upon
you
.
And
for
the
Rings
you
give
,
as
Gold
is
amongst
all
Mettals
the
purest
,
so
should
you
be
of
all
others
of
your
Profession
the
perfectest
both
in
knowledge
and
in
the
other
Virtues
before
remembred
:
And
in
that
it
is
a
Ring
,
and
round
without
end
,
it
betokeneth
that
you
have
made
a
perpetuall
Vow
to
this
your
Profession
and
Calling
,
and
are
as
it
were
wedded
unto
it
:
And
therfore
I
heartily
wish
you
may
alwaies
walk
therin
according
as
appertaineth
to
your
Calling
.
And
this
done
,
the
ancienst
Serjeant
beginneth
to
recite
his
pleading
,
and
so
each
after
other
in
order
.
And
that
done
,
the
ancientest
kneeleth
down
before
the
chief
Justice
of
England
,
and
so
the
rest
before
the
Justices
and
Barons
as
they
are
in
ancienty
,
and
had
severally
by
the
said
chief
Justice
their
Coifs
put
upon
their
heads
,
and
then
their
red
Hoods
upon
their
shoulders
,
and
then
the
Serjeants
return
to
their
Chambers
,
and
put
on
their
party
colourd
Garments
,
and
so
walk
on
to
Westminster
the
one
after
the
other
,
as
they
be
in
ancienty
,
bare-headed
,
with
all
their
Coifs
on
,
and
so
are
in
their
turn
presented
the
one
after
the
other
,
by
two
of
the
ancientest
Serjeants
:
And
after
their
pleadings
recited
,
they
give
their
Rings
in
the
Court
by
some
friends
,
and
so
are
therupon
set
in
their
place
at
the
Bar
according
to
their
ancienty
.
And
all
this
done
,
they
return
to
their
Chambers
,
and
there
put
on
their
black
Gowns
,
and
red
Hoods
,
and
come
into
the
Hall
each
standing
at
his
Table
according
to
his
ancienty
bare-headed
,
with
his
Coif
on
,
and
after
setteth
himself
upon
the
Bench
,
having
a
whole
mess
of
meat
,
with
two
courses
of
many
Dishes
served
unto
him
;
And
in
the
afternoon
they
put
on
their
Purple
Gowns
,
and
then
go
in
order
to
Pauls
,
where
it
hath
been
accustomed
that
they
heard
Service
,
and
had
a
Sermon
.
Edwards
versus
Halinder
.
4.
IN
an
Action
upon
the
Case
by
Rice
Edwards
against
Edward
Halinder
;
The
Plaintiff
declared
by
his
Bill
that
one
Edward
Banister
was
seised
in
his
Demesne
as
of
Fee
,
of
a
Messuage
in
such
a
Parish
and
Ward
in
London
,
and
being
so
seised
did
let
to
him
the
Cellar
of
the
same
house
the
23.
day
of
April
,
32
Eliz.
for
a
week
,
from
the
same
day
,
and
so
from
week
to
week
,
so
long
as
the
parties
should
please
,
at
such
a
Rent
by
the
week
,
wherby
he
was
possessed
.
And
further
,
that
the
said
Edward
Banister
being
seised
of
the
said
house
,
as
is
aforesaid
,
afterwards
,
to
wit
,
29.
July
,
in
the
32.
year
aforesaid
,
gave
to
the
said
Defendant
Officium
,
Anglice
,
the
Warehouse
of
the
said
Messuage
being
right
over
the
said
Cellar
,
for
a
week
from
thenceforth
,
and
so
from
week
to
week
,
so
long
as
the
parties
should
please
,
paying
such
a
Rent
,
wherby
the
Defendant
was
therof
possessed
accordingly
:
And
the
Plaintiff
being
possessed
of
the
said
Cellar
,
and
the
Defendant
of
the
Warehouse
,
as
aforesaid
,
and
the
Plaintiff
then
having
in
the
said
Cellar
three
Butts
of
Sack
to
the
value
of
40
l.
&c.
The
Defendant
the
30
:
day
of
July
in
the
32.
year
aforesaid
,
put
such
a
quantity
of
weight
and
burthen
of
Merchandize
into
the
said
Warehouse
,
and
therby
did
so
overburthen
the
floor
of
the
said
Warehouse
,
so
that
by
the
force
and
weight
of
the
said
burthen
,
the
said
floor
the
said
30.
day
of
July
was
broken
,
and
by
force
therof
did
fall
,
and
that
therby
the
Merchandize
that
were
in
the
said
Warehouse
did
fall
out
of
the
said
Warehouse
into
the
said
Cellar
upon
the
said
Vessels
of
Wine
,
and
by
force
therof
brake
the
said
Vessels
of
Wine
,
wherby
the
said
Wine
did
flye
out
of
the
said
Vessels
,
and
became
of
no
value
,
to
the
Plaintiffs
damage
of
a
hundred
pound
,
&c.
To
which
the
Defendant
saith
,
That
within
a
small
time
before
the
Trespasse
committed
,
the
floor
of
the
said
Warehouse
sustained
as
great
a
burthen
of
Merchandize
as
this
was
:
And
that
the
Warehouse
was
demised
to
him
as
the
Plaintiff
hath
alledged
to
lay
in
it
30.
Tun
weight
,
wherby
he
was
possessed
,
and
so
possessed
the
said
30.
day
of
July
,
did
put
into
the
said
Warehouse
but
14.
Tun
weight
of
Merchandize
,
and
that
the
damages
which
the
Plaintiff
had
by
the
breaking
of
the
floor
,
was
,
because
the
floor
at
the
time
of
the
laying
of
the
merchandise
upon
it
,
&
also
before
the
lease
made
to
him
therof
was
so
rotten
,
and
a
great
part
of
the
Wall
upon
which
the
said
floor
lyes
,
so
much
decayed
,
that
for
default
of
Reparations
and
supporting
therof
by
those
to
whom
the
reparations
did
belong
,
before
the
Lease
therof
made
,
it
suddainly
brake
,
which
matter
he
is
ready
to
aver
;
Wherupon
the
Plaintiff
demurred
,
and
Iudgment
was
given
for
the
Plaintiff
in
the
Exchequer
,
upon
which
a
Writ
of
Error
was
brought
in
the
Exchequer
Chamber
,
and
the
Error
assigned
was
,
that
the
Iudgment
ought
to
have
been
given
for
the
Defendant
,
because
that
now
it
appeareth
that
there
was
not
any
default
in
the
Defendant
,
for
he
was
not
to
repair
that
which
was
so
ruinous
at
the
time
of
his
Lease
,
and
therfore
if
it
did
bear
so
much
lately
before
,
it
cannot
fall
by
the
default
of
the
Defendant
in
the
weight
put
upon
it
,
but
by
the
ruinousnes
of
the
thing
demised
;
And
yet
by
the
advice
of
the
Iustices
the
Iudgment
was
this
Term
affirmed
:
for
the
Plaintiff
hath
alledged
expresly
,
that
the
floor
brake
by
the
weight
of
the
Merchandize
put
upon
it
.
which
ought
to
be
confessed
and
avoided
,
or
traversed
;
wheras
here
he
answers
but
argumentatively
,
to
wit
,
that
it
did
bear
more
before
,
therfore
that
he
did
not
break
it
by
this
weight
,
or
that
it
was
so
ruinous
that
it
brake
,
Ergo
not
by
the
weight
:
wheras
here
it
is
expresly
alledged
,
that
it
brake
by
the
weight
put
upon
it
,
and
if
lesser
weight
had
been
put
it
would
not
have
broken
.
And
he
who
takes
such
a
ruinous
house
ought
to
mind
well
what
weight
he
put
into
it
at
his
perill
,
so
that
it
be
not
so
much
that
another
shall
take
any
damage
by
it
:
But
if
it
had
fallen
of
it self
without
any
weight
put
upon
it
,
or
that
it
had
fallen
by
the
default
only
of
the
posts
in
the
Cellar
which
support
the
floor
,
with
which
the
Defendant
had
nothing
to
do
,
there
the
Defendant
shall
be
excused
?
But
here
it
is
expresly
alledged
,
that
it
fell
by
the
weight
put
upon
it
,
which
ought
to
be
answered
:
As
if
a
man
take
an
Estate
for
life
,
or
years
in
a
ruinous
house
,
if
he
pull
it
down
he
shall
be
charged
in
Wast
,
but
if
it
fall
of
it self
,
he
shall
be
excused
in
Wast
;
so
there
is
a
diversity
where
default
is
in
the
party
,
and
where
not
,
so
here
,
the
Defendant
ought
to
have
taken
good
care
,
that
he
did
not
put
upon
such
a
ruinous
floor
more
then
it
might
well
bear
,
&
if
it
would
not
bear
any
thing
,
he
ought
not
to
put
any
thing
into
it
,
to
the
prejudice
of
a
third
person
,
and
if
he
does
,
he
shall
answer
to
the
party
his
damages
.
Collard
versus
Collard
.
5.
IN
an
Ejectione
firmae
brought
by
Constantine
Collard
against
Richard
Collard
,
the
case
appeared
to
be
this
;
Thomas
Collard
was
seised
in
his
Demesne
as
of
Fee
,
of
Lands
in
Winkle
in
the
County
of
Devon
,
called
the
Barton
of
Southcote
:
And
having
two
Sons
,
to
wit
,
Eustace
the
eldest
,
and
Richard
(
the
now
Defendant
)
the
youngest
,
and
the
eldest
being
to
be
married
,
the
said
Thomas
in
consideration
of
this
marriage
,
being
upon
the
said
Barton
said
these
words
.
Eustace
stand
forth
,
I
do
here
,
reserving
an
Estate
for
my
own
life
and
my
wives
life
,
give
unto
thee
and
thy
Heirs
for
ever
these
my
Lands
,
and
Barton
of
Southcote
;
after
which
the
said
Thomas
enfeoffed
his
youngest
Son
of
Barton
,
with
warranty
from
him
and
his
Heirs
,
the
eldest
Son
enter
,
and
let
it
to
the
Plaintiff
,
upon
whom
the
Defendant
re-enter
,
upon
which
re-entry
the
Action
was
brought
,
and
upon
a
speciall
Verdict
all
this
matter
appeared
:
But
it
was
not
found
by
the
Verdict
,
that
the
said
Thomas
Collard
the
Father
was
dead
,
and
therfore
the
Warranty
was
not
any
thing
in
the
Case
.
And
it
was
moved
by
Heale
that
the
Plaintiff
ought
to
be
barred
,
because
it
did
not
passe
by
way
of
Estate
,
in
as
much
as
a
man
cannot
passe
a
Freehold
of
a
Land
from
himself
to
begin
at
a
time
to
come
,
and
by
it
to
create
a
particular
Estate
to
himself
,
and
in
use
it
cannot
passe
,
because
that
by
a
bare
parole
and
Vse
cannot
be
raised
,
and
by
giving
my
Land
to
my
Son
,
Cosin
,
and
the
like
,
nothing
will
passe
without
Livery
,
for
there
is
not
consideration
to
raise
an
Vse
.
Fennor
,
The
words
shall
be
taken
,
as
if
he
had
said
(
here
I
give
you
this
Barton
reserving
an
Estate
for
my
life
)
although
the
words
of
reservation
have
priority
in
their
time
from
the
speaking
of
them
,
because
a
reservation
cannot
be
but
out
of
a
thing
granted
,
and
therfore
the
reservation
shall
be
utterly
void
,
or
otherwise
ought
to
be
taken
according
to
their
proper
nature
,
to
wit
,
to
be
in
their
operation
subsequent
,
and
so
shall
not
hurt
the
Grant
,
and
therfore
are
not
to
be
compared
to
the
case
where
a
man
grant
that
after
the
death
of
I.
S.
or
after
his
own
death
a
stranger
shall
have
his
Land
,
which
Popham
granted
.
And
Fennor
said
further
,
that
these
words
being
spoken
upon
the
Land
,
as
before
amount
to
a
Livery
.
Gawdy
said
,
That
the
words
as
they
are
spoken
amount
to
a
Livery
,
if
the
words
are
sufficient
to
passe
the
Estate
,
but
he
conceived
that
the
words
are
not
sufficient
to
make
the
Estate
to
passe
to
the
said
Eustace
,
because
his
intent
appeareth
,
that
Eustace
was
not
to
have
the
Land
untill
after
the
death
of
him
and
his
wife
,
and
therfore
of
the
same
effect
,
as
if
he
had
granted
the
Land
to
the
said
Eustace
after
his
death
;
and
as
an
Vse
it
cannot
passe
,
because
by
a
bare
word
an
Vse
cannot
be
raised
,
as
appeareth
in
divers
Reports
.
Mich.
12
,
&
13
Eliz.
which
is
a
good
case
to
this
purpose
:
But
to
say
generally
that
an
Vse
cannot
be
raised
or
charged
upon
a
perfect
Contract
by
words
upon
good
consideration
,
cannot
be
Law
;
and
therfore
it
is
to
be
considered
what
the
Law
was
before
the
Statute
of
27
H.
8.
And
I
thinke
that
none
will
deny
,
but
that
by
grant
of
Land
for
money
,
before
this
Statute
an
Vse
was
raised
out
of
the
same
Land
,
for
a
bargain
and
sale
of
Land
for
money
,
and
a
grant
of
Land
for
money
is
all
one
,
and
no
difference
between
them
:
And
is
not
a
grant
of
Land
made
in
consideration
of
marriage
of
my
Son
and
Daughter
,
as
valuable
as
a
grant
of
it
for
money
?
It
is
cleer
that
it
is
,
and
much
more
valuable
,
as
my
blood
is
more
valuable
to
me
then
my
money
;
and
therfore
it
is
absurd
to
say
,
that
the
consideration
of
money
raise
or
change
an
Vse
at
Common
Law
,
and
not
such
a
consideration
of
marriage
.
And
in
such
a
case
at
Common
Law
there
was
not
any
diversity
,
that
the
party
who
so
grant
or
hargain
for
the
one
or
the
other
considerations
was
f●ised
of
the
Land
granted
,
or
bargained
in
use
,
or
possession
,
but
that
the
Vse
by
the
Contract
was
transferred
according
to
the
bargain
in
both
cases
where
there
is
a
consideration
:
And
where
through
all
the
Law
shall
it
be
seen
that
of
any
thing
which
might
passe
by
contract
,
there
need
any
other
thing
then
the
words
which
make
the
contract
,
as
writing
or
the
like
testifying
it
?
And
that
the
Law
was
so
,
it
appeareth
by
the
Statute
of
Inrolements
of
bargains
and
sales
of
Land
made
27
H.
8.
which
enacts
,
that
no
Freehold
,
nor
Vse
therof
shall
passe
by
bargain
and
sale
only
,
unlesse
it
be
by
deed
indented
and
enrolled
according
to
the
Statute
;
Ergo
,
if
this
Statute
had
not
been
,
it
had
passed
by
the
bargain
and
sale
by
bare
words
;
and
in
as
much
as
the
Statute
enacts
this
in
case
of
bargain
and
sale
only
,
the
other
cases
,
as
this
case
here
,
are
as
it
was
before
at
Common
Law
.
And
by
an
exception
at
the
end
of
the
same
Statute
,
London
is
as
it
was
at
Common
Law
,
and
therfore
now
Lands
may
passe
there
at
this
day
by
bargain
and
sale
,
by
word
without
deed
,
for
it
is
out
of
the
Statute
:
And
how
can
we
say
,
that
the
Statute
of
Vses
does
any
thing
to
alter
the
Common
Law
in
this
point
,
by
any
intent
of
the
makers
therof
,
wheras
at
the
same
Parliament
they
made
an
especiall
Law
in
the
case
of
bargain
and
sale
of
Lands
.
And
at
this
day
,
for
the
Lands
in
London
,
notwithstanding
the
Statute
of
Vses
,
the
Law
hath
been
put
in
practice
,
and
alwaies
holden
as
to
the
Lands
there
to
be
good
,
if
sold
by
bare
Parole
as
it
were
at
Common
Law
.
And
I
have
heard
it
reported
by
Manwood
late
chief
Baron
of
the
Exchequer
,
that
it
was
in
question
in
the
time
of
King
Edw.
the
6th
.
whether
the
use
of
a
Freehold
of
Land
will
passe
upon
a
Contract
by
Parole
without
Deed
in
consideration
of
marriage
;
upon
which
all
the
then
Iustices
were
assembled
upon
a
doubt
rising
in
a
case
,
hapning
in
the
Star-chamber
,
and
then
resolved
by
all
the
Iustices
(
as
he
said
)
that
it
shall
passe
;
and
he
said
,
that
himself
was
of
this
opinion
also
:
And
to
say
,
that
by
grant
of
Land
at
Common
Law
,
the
use
had
been
raised
out
of
the
possessions
of
the
Land
which
the
Grantor
then
had
,
and
by
it
passe
to
the
Bargainee
,
and
that
it
shall
not
be
raised
and
passed
to
another
by
grant
of
Land
in
consideration
of
marriage
,
which
is
a
more
valuable
consideration
then
money
,
is
absurd
and
against
all
reason
.
And
for
the
solemnity
,
Vses
in
such
cases
(
in
respect
of
marriage
)
were
the
cause
that
they
alwaies
were
left
as
they
were
at
Common
Law
,
and
not
restrained
as
the
case
of
bargain
and
sale
is
,
which
by
Common
intendment
may
be
made
more
easily
and
secretly
,
then
that
which
is
done
in
consideration
of
marriage
,
which
is
alwaies
a
thing
publike
and
notorious
,
but
it
is
not
reasonable
that
every
slight
or
accidentall
speech
shall
make
an
alteration
of
any
Vse
:
As
if
a
man
ask
of
any
one
what
he
will
give
or
leave
to
any
of
his
Sons
or
Daughters
for
their
advancement
in
marriage
,
or
otherwise
for
their
advancement
,
this
shall
be
but
as
a
bare
speech
or
communication
which
shall
not
alter
or
change
any
Vse
:
But
where
there
is
upon
the
Speech
a
conclusion
of
a
Marriage
between
the
friends
of
the
parties
themselves
,
and
that
in
consideration
therof
,
they
shall
have
such
Lands
,
and
for
such
an
Estate
,
there
the
Vse
shall
be
raised
by
it
,
and
shall
passe
accordingly
to
the
parties
,
according
to
the
conclusion
which
Fennor
granted
.
But
by
Popham
,
If
it
may
be
taken
upon
the
words
spoken
,
that
the
purpose
was
to
have
the
Estate
passe
by
way
of
making
of
an
Estate
,
as
by
way
of
Feoffment
,
&c.
then
notwithstanding
the
consideration
expressed
,
the
use
shall
not
change
,
nor
no
Estate
by
it
but
at
will
,
untill
the
Livery
made
therupon
:
And
therfore
if
a
man
make
a
Deed
of
Feoffment
,
with
expresse
consideration
of
marriage
,
although
the
Deed
hath
words
in
it
of
Dedi
&
Concessi
,
with
a
Letter
of
Attorney
to
make
Livery
therupon
,
there
untill
Livery
made
nothing
passe
but
at
will
,
because
that
by
the
Warrant
of
Attorney
,
it
appeareth
the
full
intent
of
the
parties
was
,
that
it
shall
passe
by
way
of
Feoffment
,
and
not
otherwise
,
if
it
be
of
Land
in
possession
:
And
if
it
be
of
Land
in
Lease
,
not
untill
Attornment
of
Tenants
,
which
was
granted
by
all
the
Iustices
.
But
if
a
man
in
consideration
of
money
makes
a
Deed
of
Gift
,
Grant
,
Bargain
,
and
Sale
of
his
Lands
to
another
,
and
his
Heirs
by
Deed
indented
,
with
a
Letter
of
Attorny
to
make
Livery
,
if
Livery
be
therupon
made
before
Inrolement
,
there
it
hath
been
adjudged
to
passe
by
the
Livery
,
and
not
by
the
Inrolement
.
But
by
Popham
,
where
Land
is
to
passe
in
possession
by
Estate
executed
,
two
things
are
requisite
:
The
one
,
the
grant
of
the
said
Land
,
the
other
,
the
Livery
to
be
made
therupon
,
for
by
the
bare
Grant
without
Livery
,
it
doth
not
passe
as
by
way
of
making
of
an
Estate
:
And
this
is
the
cause
that
such
solemnity
hath
been
used
in
Liveries
,
to
wit
,
if
it
were
of
a
Messuage
,
to
have
the
people
out
of
it
,
and
then
to
give
Seisin
to
the
party
by
the
Ring
of
the
door
of
the
House
,
and
of
Land
by
a
Turff
and
a
Twig
,
and
the
like
,
which
may
be
notorious
:
Yet
I
agree
it
shall
be
a
good
Livery
to
say
to
the
party
,
Here
is
the
Land
,
enter
into
it
,
and
take
it
to
you
and
your
Heirs
for
ever
,
or
for
life
,
or
in
tail
,
as
the
case
is
;
And
albeit
Livery
by
the
View
may
be
made
in
such
manner
,
yet
by
the
sealing
of
the
Deed
of
Grant
upon
the
Land
,
or
by
grant
of
it
upon
the
Land
without
Livery
,
nothing
passe
but
at
will
.
But
if
therupon
one
party
saith
to
the
other
after
the
Grant
,
or
upon
it
,
Here
is
the
Land
,
enter
upon
it
,
and
take
it
according
to
the
Grant
,
this
is
a
good
Livery
:
But
he
ought
to
say
this
,
or
somthing
which
amounts
to
so
much
,
or
otherwise
it
shall
not
passe
by
the
bare
Grant
of
the
Land
,
although
it
be
made
upon
the
Land
.
Clench
said
,
That
when
Thomas
said
to
Eustace
,
Stand
forth
,
here
I
do
give
to
thee
and
thine
Heirs
these
Lands
,
this
amounts
to
a
Grant
and
a
Livery
also
;
and
by
the
words
of
the
Reservation
of
the
Estate
to
himself
,
and
his
wife
for
their
lives
,
in
this
the
Law
shall
make
an
use
in
the
said
Thomas
and
his
wife
for
their
lives
:
so
that
by
such
means
it
shal
enure
,
as
if
he
had
reserved
the
use
therof
to
him
and
his
wife
,
and
so
it
shall
enure
to
them
as
it
may
by
the
Law
according
to
his
intent
,
without
doing
prejudice
to
the
Estate
passed
to
the
said
Eustace
:
And
afterwards
Term
Mich.
36
,
&
37
Eliz.
the
Case
was
again
disputed
amongst
the
Iustices
,
and
then
Popham
said
,
That
the
Case
of
Ba●gains
and
Sales
of
Lands
in
Cities
,
as
London
,
&c.
as
appeareth
in
Dyer
6.
Eliz.
are
as
they
were
at
Common
Law
;
To
which
all
the
Iustices
agreed
,
and
therfore
shall
passe
by
Bargain
by
parole
,
without
writing
.
And
by
Bayntons
Case
in
6
,
&
7
Eliz.
it
is
admitted
of
every
side
,
that
an
Vse
was
raised
out
of
a
Possession
at
Common
Law
by
Bargain
and
Sale
by
parole
,
and
otherwise
,
to
what
purpose
was
the
Statute
of
Inrolements
,
and
by
the
same
case
it
is
also
admitted
now
to
passe
by
parole
upon
a
full
agreement
by
words
in
consideration
of
Marriage
,
or
the
continuance
of
Name
,
or
Blood
.
For
it
is
agreed
there
,
that
the
consideration
of
nature
is
the
most
forceable
consideration
which
can
be
,
and
agreed
also
that
a
bare
Covenant
by
writing
without
consideration
,
will
not
change
an
Vse
,
therfore
the
force
therof
is
in
the
consideration
,
of
which
the
Law
hath
great
respect
:
And
therfore
the
Son
and
Heir
apparant
ex
assensu
patris
,
onely
may
at
the
door
of
the
Church
endow
his
wife
of
his
Fathers
Land
,
which
he
hath
in
Fee
,
and
this
is
good
by
Littleton
,
although
the
Son
hath
nothing
in
it
,
wherby
an
Estate
passe
to
the
wife
,
which
is
more
then
an
Vse
.
Nature
is
of
so
strong
consideration
in
the
Law
;
And
therupon
after
advice
,
Iudgment
was
given
for
the
Plaintiff
:
the
Roll
of
this
appeareth
in
Banco
Regis
,
1
Hill
35.
Eliz.
Rot.
355.
And
upon
this
Iudgment
,
a
Writ
of
Error
was
brought
,
and
the
Iudgment
aforesaid
reversed
in
the
point
of
Iudgment
in
the
Exchequer
,
by
the
Statute
of
27
Eliz.
Kettle
versus
Mason
,
and
Esterby
.
6.
IN
a
second
deliverance
between
Joh.
Kettle
Plaintiff
,
and
George
Mason
Vide
this
case
Coke
lib.
1.
146
,
&c.
and
Francis
Esterby
,
Avowants
,
the
case
appeared
to
be
this
:
Thomas
May
was
seised
of
the
Mannor
of
Sawters
and
Hawlin
,
in
the
County
of
Kent
,
in
his
Demesne
as
of
Fee
,
and
being
so
therof
seised
,
enfeoffed
Thomas
Scot
and
John
Fremling
and
their
Heirs
,
to
the
use
of
Dennis
May
his
Son
and
Heir
apparant
and
his
Heirs
,
upon
condition
,
that
the
said
Dennis
and
his
Heirs
should
pay
to
one
Petronell
Martin
for
his
life
,
an
annuall
Rent
of
10
l.
which
the
said
Thomas
had
before
granted
to
the
said
Petronell
,
to
begin
upon
the
death
of
the
said
Thomas
;
And
upon
condition
also
,
that
the
said
Thomas
upon
the
payment
of
10
s.
by
him
to
the
said
Feoffees
,
or
any
of
them
&c.
might
re-enter
:
After
which
the
said
Thomas
May
and
Dennis
,
by
their
Deed
dated
30.
May
,
19
Eliz.
granted
a
Rent-charge
out
of
the
said
Mannor
of
20
l.
a
year
to
one
Anne
May
for
her
life
,
after
which
the
said
Thomas
May
paid
the
said
10
s.
to
the
said
Feoffees
in
performance
of
the
Condition
aforesaid
,
and
therupon
re-entred
into
the
Land
and
enfeoffed
a
stranger
:
And
whether
by
this
the
Rent
were
defeated
,
was
the
question
:
And
it
was
mooved
by
Coke
Attorney-generall
that
it
was
not
,
but
that
in
respect
that
he
joyned
in
the
part
,
it
shall
enure
against
the
said
Thomas
by
way
of
confirmation
,
which
shall
bind
him
as
well
against
this
matter
of
Condition
,
as
it
shall
do
against
any
Right
which
the
said
Thomas
otherwise
had
.
And
therfo●e
by
Littleton
,
If
a
Disseisor
make
a
Lease
for
years
,
or
grant
a
Rent-charge
,
and
the
Disseisor
confirm
them
,
and
afterwards
re-enters
;
albeit
Lit.
there
makes
a
Quaere
of
it
,
yet
Cook
said
,
That
the
Disseisor
should
not
avoid
the
Charge
,
or
Lease
which
was
granted
by
the
whole
Court
.
And
by
him
the
opinion
is
in
P.
11.
H.
7.
21.
If
Tenant
in
Tail
makes
a
Feoffment
to
his
own
use
upon
Condition
,
and
afterwards
is
bound
in
a
Statute
,
upon
which
Execution
is
sued
,
and
afterwards
he
re-enter
for
the
Condition
broken
,
he
shall
not
avoid
the
Execution
,
no
more
the
Rent
here
.
Fennor
agreed
with
Cook
,
and
said
further
,
That
in
as
much
as
every
one
who
hath
Title
and
Interest
have
joyned
in
the
Grant
,
it
remains
perpetually
good
.
And
therfore
if
a
Parson
at
Common
Law
had
granted
a
Rent-charge
out
of
his
Rectory
,
being
confirmed
by
the
Patron
and
Ordinary
,
it
shall
be
good
in
perpetuity
,
and
yet
the
Parson
alone
could
not
have
charged
it
,
and
the
Patron
and
Ordinary
have
no
Interest
to
charge
it
,
but
in
as
much
as
all
who
have
to
intermeddle
therin
are
parties
to
it
,
or
have
given
their
assent
to
it
,
it
sufficeth
.
Gawdy
was
of
the
same
opinion
,
and
said
,
That
there
is
no
Land
but
by
some
means
or
other
it
might
be
charged
,
and
therfore
if
Tenant
for
life
grant
a
Rent-charge
in
Fee
,
and
he
in
the
Reversion
confirm
the
Grant
,
per
Littleton
,
the
Grant
is
good
in
property
,
so
here
.
To
which
Clench
also
assented
,
but
Popham
said
,
That
by
the
entry
for
the
Condition
,
the
Charge
is
defeated
:
And
therfore
we
are
to
consider
upon
the
ground
of
Littleton
in
his
Chapter
of
Confirmation
,
to
what
effect
a
Confirmation
shall
enure
,
and
this
is
to
bind
the
right
of
him
who
makes
the
Confirmation
,
but
not
to
alter
the
nature
of
the
Estate
of
him
to
whom
the
Confirmation
is
made
;
And
therfore
in
the
case
of
a
grant
of
a
Rent-charge
by
the
Disseisor
,
which
is
confirmed
by
the
Demisee
:
the
reason
why
the
Confirmation
shall
make
this
good
,
is
,
because
that
as
the
Disseisee
hath
right
to
defeat
the
right
and
the
Estate
of
the
Disseisor
by
his
Regresse
,
in
the
same
manner
hath
he
right
therby
to
avoid
a
Charge
,
or
a
Lease
granted
by
the
Disseisor
,
which
Right
for
the
time
may
be
bound
by
his
confirmation
.
But
when
a
man
hath
an
Estate
upon
condition
,
although
the
Feoffor
,
or
his
Heirs
confirm
this
Estate
,
yet
by
this
the
Estate
is
not
altered
as
to
the
Condition
,
but
it
alwaies
remaineth
,
and
therfore
Nihil
operatur
by
such
a
confirmation
to
prejudice
the
Condition
.
And
so
there
is
a
great
diversity
,
when
hewho
confirmeth
,
hath
right
to
the
Land
,
and
where
but
a
Condition
in
the
Land
.
And
by
him
,
if
a
Feoffee
upon
condition
make
a
Feoffment
over
,
or
a
Lease
for
life
or
years
,
every
one
of
these
have
their
Estates
subject
to
the
Condition
;
and
therfore
by
a
Confirmation
made
to
them
,
none
can
be
excluded
from
the
Condition
:
And
the
same
reason
is
in
case
of
a
Rent
granted
by
a
Feoffor
upon
Condition
,
it
is
also
subject
to
the
Condition
,
and
therfore
not
excluded
from
it
by
the
Confirmation
,
as
it
shall
be
in
case
of
a
Right
.
And
to
prove
this
diversity
,
suppose
there
be
Grand-father
,
Father
,
and
Son
,
the
Father
disseise
the
Grand-father
,
and
makes
a
Feoffment
upon
Condition
,
and
dies
,
after
which
the
Grand-father
dies
,
now
the
Son
confirms
the
Estate
of
the
Feoffee
,
by
this
he
hath
excluded
himself
from
the
Right
which
descended
to
him
by
his
Grand-father
,
but
not
to
the
Condition
which
descended
to
him
from
his
Father
.
And
of
this
opinion
were
Anderson
and
other
Iustices
at
Serjeants-Inn
in
Fleetstreet
,
for
the
principall
Case
upon
the
Case
moved
there
,
by
Popham
this
Term
:
And
as
the
case
is
,
it
would
have
made
a
good
question
upon
the
Statute
of
Fraudulent
Conveyances
,
if
the
Avowry
had
been
made
as
by
the
grant
of
Thomas
May
,
in
as
much
as
the
Estate
made
to
the
use
of
Dennis
,
was
defeasable
at
the
pleasure
of
the
said
Thomas
,
in
as
much
as
it
was
made
by
the
Tenant
of
the
Land
,
as
well
as
by
him
who
made
the
Conveyance
,
which
is
to
be
judged
fraudulent
upon
the
Statute
.
But
this
as
the
pleading
was
,
cannot
come
in
question
in
this
case
:
And
afterwards
by
the
opinion
of
other
three
Iudges
,
Iudgment
was
given
that
the
Grant
should
bind
the
said
Thomas
May
,
and
his
Feoffees
after
him
,
notwithstanding
his
regresse
made
by
the
Condition
,
in
as
much
as
the
Grant
of
the
said
Thomas
shall
enure
to
the
Grantee
by
way
of
confirmation
.
And
by
Gawdy
,
If
a
Feoffee
upon
Condition
make
a
Feoffment
over
,
and
the
first
Feoffor
confirm
the
Estate
of
the
last
Feoffee
,
he
shall
hold
the
Land
discharged
of
the
Condition
,
because
his
Feoffment
was
made
absolutely
without
any
Condition
expressed
in
his
Feoffment
.
But
Popham
denied
this
,
as
it
appeareth
by
Littleton
Tit.
Descents
,
because
he
hath
his
Estate
subject
to
the
same
Condition
,
and
in
the
same
manner
as
his
Feoffor
hath
it
,
into
whomsoever
hands
it
hapneth
to
come
,
and
therfore
the
Confirmation
shall
not
discharge
the
Condition
,
but
is
only
to
bind
the
right
of
him
who
made
it
in
the
possession
of
him
to
whom
it
is
made
but
not
upon
Condition
.
Morgans
Case
.
7.
RObert
Morgan
Esquire
,
being
seised
in
his
Demesne
as
of
Fee
,
of
certain
Lands
called
Wanster
Tenements
in
Socage
,
having
Issue
John
his
eldest
Son
,
Christopher
his
second
Son
,
and
William
his
youngest
Son
;
by
his
last
Will
in
writing
,
demised
to
the
said
Christopher
and
William
thus
;
viz.
Ioyntly
and
severally
for
their
lives
,
so
that
neither
of
them
stall
alienate
the
Lands
,
and
if
they
do
,
that
they
shall
remain
to
his
Heirs
.
Robert
the
Father
dies
,
and
afterwards
John
his
Son
and
Heir
dies
without
Issue
,
the
reversion
by
this
descends
to
the
said
Christopher
who
dies
,
leaving
Issue
.
And
upon
this
Case
made
in
the
Court
of
Wards
,
the
two
chief
Iustices
Popham
and
Anderson
agreed
first
,
That
upon
the
devise
and
death
of
the
Father
,
the
said
Christopher
and
William
were
Joynt-tenants
of
the
Land
,
and
not
Tenants
in
Common
,
notwithstanding
the
word
(
severally
)
because
it
is
coupled
with
the
said
word
(
joyntly
.
)
But
yet
they
agreed
also
,
that
by
the
descent
from
John
to
Christopher
,
the
Fee-simple
was
executed
in
the
said
Christopher
,
for
the
Moyety
in
the
same
Mannor
,
as
if
he
had
purchased
the
Reversion
of
the
whole
,
or
of
this
Moyety
,
and
that
it
is
not
like
to
the
Case
where
Land
is
given
,
and
to
the
Heirs
of
one
of
them
;
in
which
case
for
the
benefit
of
the
Survivorship
,
it
is
not
executed
to
divide
the
Ioynture
,
because
the
Estates
are
made
at
one
and
the
same
time
together
,
and
therfore
not
like
to
the
case
where
the
Inheritance
cometh
to
the
particular
Estate
by
severall
and
divided
means
:
And
a
Decree
was
made
accordingly
.
Trin.
36.
Eliz.
In
the
Kings
Bench.
1.
IT
was
agreed
by
all
the
Iustices
and
Barons
of
the
Exchequer
,
upon
an
Assembly
made
at
Serjeants-Inn
,
after
search
made
for
the
ancient
Presidents
,
and
upon
good
deliberation
taken
.
If
a
man
have
two
houses
,
and
inhabit
somtimes
in
one
,
and
somtimes
in
the
other
,
if
that
House
in
which
he
doth
not
then
inhabity
be
broken
in
the
night
,
to
the
intent
to
steal
the
Goods
then
being
in
his
house
,
that
this
is
Burglary
,
although
no
person
bee
then
in
the
House
,
and
that
now
by
the
new
Statute
made
,
such
an
Offender
shall
not
have
his
Clergy
,
for
before
the
Statutes
were
made
,
which
take
away
Clergy
in
case
of
Burglary
,
where
any
person
was
put
in
fear
,
no
mention
was
made
in
the
Inditements
of
Burglary
,
that
any
person
was
in
the
House
:
But
it
was
generall
that
the
house
of
such
a
one
Noctanter
fregit
,
and
such
Goods
then
there
Felonice
cepit
.
And
the
breaking
of
a
Church
in
the
night
to
steal
the
Goods
,
there
is
Burglary
,
although
no
person
be
in
it
,
because
this
is
the
place
to
keep
the
Goods
of
the
Parish
.
And
in
the
same
manner
the
house
of
every
one
is
the
proper
place
to
preserve
his
Goods
,
although
no
person
be
there
:
And
that
the
Law
was
alwaies
,
so
it
is
to
be
collected
by
the
course
of
the
Statutes
therof
made
,
for
first
the
Statute
of
23
H.
8.
doth
not
take
Clergy
from
any
in
case
of
Burglary
,
unlesse
some
of
the
same
Family
be
in
the
house
,
and
put
in
fear
.
And
in
5
Eliz.
6.
The
Offendor
shall
be
ousted
of
his
Clergy
,
if
any
of
the
Family
be
in
the
house
,
be
they
sleeping
or
waking
.
And
these
Statutes
were
the
cause
that
it
was
used
of
late
time
,
to
put
in
the
Inditements
of
Burglary
,
that
some
person
of
the
Family
was
then
in
the
house
,
to
put
them
from
their
Clergy
.
But
this
doth
not
prove
that
it
shall
not
be
Burglary
,
but
where
some
person
was
in
the
house
,
and
by
18
Eliz.
Clergy
is
taken
away
in
all
cases
of
Burglary
generally
,
without
making
mention
of
any
person
to
be
there
,
which
enforce
the
resolution
aforesaid
,
and
according
to
it
,
they
all
agreed
hereafter
to
put
it
in
Execution
.
Finch
versus
Riseley
.
2.
IN
this
Term
the
case
betweeen
Finch
and
Riseley
was
in
question
before
all
the
Iustices
and
Barons
for
this
,
assembled
at
Serjeants-Inn
in
Fleetstreet
,
where
after
Arguments
heard
by
the
Councell
of
the
parties
upon
this
point
only
.
If
the
Queen
make
a
Lease
for
years
,
rendring
Rent
,
with
a
Proviso
,
that
the
Rent
be
not
paid
at
the
day
limited
,
that
the
Lease
shall
cease
,
without
making
mention
that
it
was
to
be
paid
at
the
receit
,
whether
the
Lease
shall
cease
upon
the
default
of
payment
,
before
Office
found
therof
?
And
by
Periam
and
some
of
the
Iustices
,
the
Lease
stall
not
cease
untill
an
Office
be
found
of
the
default
,
because
it
is
a
matter
in
Fait
which
determines
it
,
to
wit
,
the
not-payment
.
And
by
Gawdy
,
it
shall
be
taken
as
if
it
had
been
for
the
not-payment
,
that
the
Proviso
had
been
that
the
Lease
shall
be
forfeited
:
In
which
case
it
is
not
detennined
untill
Re-entry
made
for
the
forfeiture
,
which
in
the
Queens
case
ought
alwaies
to
be
by
Office
,
which
countervails
the
re-entry
of
a
common
person
;
As
where
the
Queen
makes
a
Lease
,
rendring
Rent
,
and
for
default
of
payment
a
Re-entry
,
albeit
the
Rent
be
not
paid
,
yet
untill
Office
found
therof
,
the
Rent
continues
.
Popham
,
Anderson
,
and
the
greater
part
of
the
Iustices
and
Barons
resolved
that
it
was
cleer
in
this
case
,
that
Ipso
facto
upon
the
default
of
payment
,
the
Lease
was
determined
,
according
to
the
very
purport
of
the
contract
,
beyond
which
it
cannot
have
any
beeing
,
and
therfore
there
needs
no
Office
in
the
case
.
But
where
it
is
that
it
shall
be
forfeited
,
or
that
he
shall
re-enter
,
there
untill
advantage
taken
of
the
forfeiture
in
the
one
case
,
or
untill
re-entry
made
in
the
other
case
,
the
Term
alwaies
continues
by
the
contract
:
And
where
in
the
case
of
a
common
person
,
there
is
need
of
a
re-entry
to
undo
the
Estate
,
there
in
the
case
of
the
King
there
needs
an
Office
to
determine
the
Estate
,
for
an
Office
in
the
Kings
case
countervails
an
entry
,
for
the
King
in
person
cannot
make
the
entry
:
And
upon
this
resolution
of
the
greater
part
of
the
Iustices
in
Mich.
Term
31
,
&
32
Eliz.
the
same
case
was
in
question
in
the
Office
of
Pleas
in
the
Exchequer
,
between
the
said
Moil
Finch
Plaintiff
,
and
Thomas
Throgmorton
,
and
others
,
Defendants
,
and
there
adjudged
by
Manwood
late
chief
Baron
,
and
all
the
other
Barons
unanimously
after
long
argument
at
the
Bar
and
Bench
,
that
the
Lease
was
void
upon
default
of
payment
of
the
Rent
according
to
the
Proviso
of
the
Lease
,
and
this
immediatly
without
Office
for
the
reasens
before
remembred
;
upon
which
Iudgment
was
given
,
a
Writ
of
Error
was
brought
before
the
Lord
Keeper
of
the
great
Seal
,
and
the
Lord
Treasurer
of
England
,
where
it
long
depended
,
and
after
many
arguments
,
the
Iudgment
given
in
the
Exchequer
by
the
advice
of
Popham
and
Anderson
was
affirmed
,
and
that
upon
this
reason
,
for
the
Proviso
shall
be
taken
to
be
a
limitation
to
determine
the
Estate
,
and
not
a
Condition
to
undo
the
Estate
,
which
cannot
be
defeated
in
case
of
a
Condition
,
but
by
entry
in
case
of
a
common
person
,
and
but
by
Office
(
which
countervails
an
entry
)
in
the
case
of
the
Queen
.
And
this
Iudgment
was
so
affirmed
in
Mich.
Term
,
36
,
&
37
Eliz.
Smiths
Case
.
3
IT
was
found
by
Diem
clausit
extremum
,
after
the
death
of
Richard
Smith
,
that
in
consideration
of
a
marriage
to
be
had
between
Margaret
Smith
,
and
William
Littleton
a
younger
Son
to
Sir
John
Littleton
Knight
,
and
of
1300.
marks
paid
by
the
said
Sir
John
to
the
said
Richard
,
he
made
assurance
by
Fine
of
his
Lands
(
being
174
l.
a
year
)
viz.
Of
part
therof
of
the
value
of
123
l.
a
year
,
of
which
part
was
holden
of
the
Queen
by
Knights
Service
in
Capite
,
to
the
use
of
himself
for
his
life
,
and
after
his
decease
to
the
use
of
the
said
William
and
Margaret
,
and
the
Heirs
of
the
body
of
the
said
William
,
begotten
on
the
body
of
the
said
Margaret
,
and
for
default
of
such
Issue
,
to
the
use
of
the
right
Heirs
of
the
said
William
.
And
of
the
residue
therof
,
being
also
holden
in
Capite
of
the
Queen
,
to
the
use
of
himself
for
his
life
,
and
after
his
decease
to
the
use
of
the
first
Issue
Male
of
the
said
Richard
,
and
to
the
Heirs
Males
of
his
body
,
and
then
to
other
Issues
of
his
body
,
and
for
default
of
such
Issue
,
to
the
said
William
and
Margaret
,
and
the
Heirs
of
the
body
of
the
said
William
,
on
the
body
of
the
said
Margaret
lawfully
begotten
,
and
for
default
of
such
Issue
,
to
the
right
Heirs
of
the
said
William
,
with
this
Prouiso
,
That
it
shall
be
lawfull
for
the
said
Richard
,
to
make
a
Joynture
to
his
wife
of
the
Lands
limited
to
his
Issue
Males
,
and
for
making
of
Leases
for
21.
years
,
or
three
lives
,
for
any
part
of
the
said
Land
,
rendring
the
ancient
Rent
,
except
of
certain
parcels
,
and
that
William
died
without
Issue
,
and
that
Gilbert
Littleton
was
his
Brother
and
Heir
,
and
that
the
said
Margaret
married
the
said
George
Littleton
youngest
brother
to
the
said
William
,
which
are
yet
living
:
And
that
the
said
Richard
married
Dorothy
,
and
made
her
a
Joynture
according
to
the
Proviso
:
And
that
the
said
Richard
had
Issue
Iohn
Smith
,
and
died
,
the
said
Iohn
being
his
Son
and
Heir
,
and
within
age
.
After
which
,
a
Melius
inquirendum
issued
,
by
which
it
was
found
,
that
the
said
Margaret
was
the
Daughter
of
the
said
Richard
,
and
that
the
said
Land
was
of
the
value
of
12000
l.
at
the
time
of
the
assurance
:
And
how
much
of
the
Land
shall
be
in
ward
,
and
what
Land
,
and
what
the
Melius
inquirendum
makes
in
the
case
,
was
the
question
put
to
the
two
chief
Iustices
,
Popham
and
Anderson
,
who
agreed
,
that
the
Queen
now
shall
have
the
third
part
,
as
well
of
that
which
was
assured
to
William
and
Margaret
,
immediatly
after
the
death
of
the
said
Richard
,
as
of
that
which
was
limited
to
Dorothy
for
the
life
of
the
said
Margaret
,
for
although
money
were
paid
,
yet
this
was
not
the
only
consideration
why
the
Lands
were
assured
,
but
the
advancement
of
the
Daughter
,
and
now
by
the
surviving
of
the
said
Margaret
,
shee
shall
be
said
to
be
in
the
whole
,
which
was
assured
to
her
by
her
Father
,
and
for
her
advancement
,
and
the
Land
(
as
it
appears
)
was
of
greater
value
then
the
money
given
,
and
may
as
well
be
thought
to
be
given
for
the
Remainder
of
the
Fee
.
And
agreeable
to
this
was
the
case
of
Coffin
of
Devonshire
,
about
the
beginning
of
the
Raign
of
the
now
Queen
,
which
was
that
the
said
Coffin
for
moneys
paid
by
one
Coffin
his
Cosin
(
having
but
D●ughters
himself
)
conveyed
his
Land
to
the
use
of
himself
and
his
wife
,
and
to
the
Heirs
Males
of
his
body
,
and
for
default
of
such
Issue
to
the
use
of
his
said
Cosin
and
his
Heirs
,
for
which
,
his
said
Cosin
was
to
give
a
certain
sum
of
money
to
the
Daughters
for
their
marriage
:
Coffin
dies
,
his
said
Daughters
being
his
Heirs
and
within
age
,
and
were
in
ward
to
the
Queen
,
the
Lands
being
holden
by
Knights
Service
in
Capite
:
And
the
third
part
of
the
Land
was
taken
from
the
wife
of
Coffin
for
the
life
of
the
said
wife
,
if
the
Heirs
continue
so
long
in
Ward
.
And
it
was
also
agreed
by
them
and
the
Councell
of
the
Court
,
that
the
Melius
inquirendum
was
well
awarded
,
to
certifie
that
the
said
Margaret
was
the
Daughter
of
the
said
Richard
,
of
which
the
Court
could
not
otherwise
well
take
Conusance
,
for
they
thought
that
it
was
not
matter
to
come
in
by
the
averment
of
the
Attorney-generall
,
as
Dyer
hath
reported
it
:
But
now
by
the
Statute
,
it
ought
to
be
found
by
Inquisition
,
and
being
a
thing
which
stands
with
the
former
Inquisition
,
it
ought
to
be
supplied
by
the
Melius
inquirendum
:
for
the
same
Statute
which
gives
the
Wardship
in
case
where
Land
is
conveyed
for
the
advancement
of
the
Wife
,
or
Infants
,
or
for
the
satisfaction
of
Debts
and
Legacies
of
the
party
by
the
implication
of
the
same
Statute
,
this
may
be
found
by
Inquisitton
;
and
if
it
be
omitted
in
the
Inquisition
,
it
ought
to
be
found
by
a
Melius
inquirendum
,
but
not
to
come
in
by
a
bare
surmise
.
And
therfore
if
in
the
Inquisition
it
be
found
,
that
the
Ancestor
had
conveyed
his
Land
by
the
Melius
inquirendum
,
it
may
be
found
that
it
was
for
the
payment
of
his
Debts
or
Legacies
,
or
that
the
party
to
whom
,
or
to
whose
use
it
was
made
,
was
the
Son
,
or
Wife
of
the
party
that
made
it
,
and
that
by
the
very
purport
of
the
Statutes
32.
&
34
H.
8.
as
by
Fitzherbert
,
if
it
be
surmised
,
that
the
Land
is
of
greater
value
then
it
is
found
,
a
Melius
inquirendum
shall
issue
,
and
so
shall
it
be
if
it
be
found
that
one
is
Heir
of
the
part
of
the
Mother
,
but
they
know
not
who
is
Heir
of
the
part
of
the
Father
;
so
if
it
be
not
found
what
Estate
the
Tenant
had
,
or
of
whom
the
Land
was
holden
:
so
upon
surmise
made
,
that
he
is
seised
of
some
other
Estate
,
or
that
he
held
it
by
other
Services
,
by
Fitzherbert
a
Melius
inquirendum
shall
Issue
,
and
upon
this
order
given
,
it
was
decreed
accordingly
this
Term.
Morgan
versus
Tedcastle
.
4.
IN
the
same
Term
upon
matter
of
Arbitrement
between
Morgan
and
Tedcastle
,
touching
certain
Lands
at
Welburn
,
in
the
County
of
L●ncoln
,
put
to
Popham
,
Walmesley
,
and
Ewens
Baron
of
the
Exchequer
:
Wheras
Morgan
had
granted
to
Tedcastle
a
100.
acres
of
Land
in
such
a
field
,
and
60
,
in
such
a
field
,
and
20.
acres
of
Meadow
in
such
a
Meadow
in
Welburn
and
Hanstead
,
in
which
the
acres
are
known
by
estimations
or
limits
,
there
be
shall
take
the
acres
as
they
are
known
in
the
same
places
,
be
they
more
or
lesse
then
the
Statute
,
for
they
passe
as
they
are
there
known
,
and
not
according
to
the
measure
by
the
Statute
.
But
if
I
have
a
great
Close
,
containing
20.
acres
of
Land
by
estimation
,
which
is
not
18.
And
I
grant
10.
acres
of
the
same
Close
to
another
,
there
he
shall
have
them
,
according
to
the
measure
by
the
Statute
,
because
the
acres
of
such
a
Close
are
not
known
by
parcels
,
or
by
meets
and
bounds
,
and
so
it
differeth
from
the
first
case
:
And
upon
the
case
then
put
to
Anderson
,
Brian
,
and
Fennor
,
they
were
of
the
same
opinion
:
Quod
nota
.
Humble
versus
Oliver
.
5.
IN
Debt
by
Richard
Humble
against
William
Oliver
,
for
a
Rent
reserved
upon
a
Lease
for
years
,
the
case
was
this
;
Thomas
Plain
was
seised
in
his
Demesne
as
of
Fee
,
of
a
Messuage
in
S.
and
so
seised
,
did
let
it
to
the
Defendant
for
divers
years
yet
to
come
,
rendring
Rent
,
payable
at
four
usuall
Feasts
of
the
year
,
the
Lessee
entred
accordingly
,
after
which
the
said
Plain
by
Bargain
and
Sale
enrolled
,
conveyed
the
Reversion
therof
to
the
said
Humble
and
his
Heirs
,
and
before
the
Feast
of
the
Annunciation
of
our
Lady
,
35
Eliz.
to
wit
,
the
1.
day
of
February
,
in
the
same
year
the
said
Oliver
assigned
over
his
whole
Term
to
one
Southmead
,
who
before
the
same
Feast
entred
accordingly
,
and
for
the
Rent
due
at
the
Feast
the
Annunciation
of
our
Lady
,
the
Plaintiff
brought
this
Action
:
And
it
was
agreed
by
the
whole
Court
that
the
Action
would
not
lie
against
him
;
for
although
Plain
(
if
he
had
not
aliened
the
Reversion
over
)
might
have
had
this
Action
against
the
said
Oliver
,
notwithstanding
that
he
had
assigned
over
his
Term
before
,
for
the
privity
of
contract
which
was
between
them
,
in
as
much
as
they
were
parties
to
it
of
either
part
,
yet
the
Grantee
of
the
Reversion
shall
not
have
advantage
of
the
privity
,
he
being
a
meer
stranger
to
the
Contract
,
and
now
was
but
privy
in
Law
by
the
Bargain
,
and
therfore
now
he
hath
no
remedy
but
against
him
who
had
the
Estate
at
the
time
when
the
Rent
hapned
to
be
due
;
and
this
is
Southmead
,
and
not
Oliver
.
The
Roll
of
this
case
is
in
the
Kings
Bench
,
Hill.
36.
Eliz.
Rot.
420.
Mich.
36
,
&
37
Eliz.
In
the
Kings
Bench.
Button
versus
Wrightman
.
1.
IN
an
Ejectione
firmae
,
between
John
Bu●ton
Plaintiff
,
and
Etheldred
Wrightman
Widow
,
and
other
Defendants
;
for
a
House
and
certain
Lands
in
Harrow
.
The
Case
upon
a
speciall
Verdict
was
this
;
The
Dean
and
Chapter
of
Christs
Church
in
Oxford
,
were
incorporated
by
K.
H.
8
,
by
his
Letters
Patents
,
dated
4.
Novemb.
38
H.
8.
by
the
name
of
the
Dean
and
Chapter
of
the
Cathedrall
Church
of
Christ
,
&c.
Oxford
,
of
the
Foundation
of
King
Henry
the
8th
.
and
so
to
be
called
for
ever
;
after
which
the
said
Dean
and
Chapter
was
seised
in
their
Demesne
as
of
Fee
,
of
the
said
House
and
Land
,
and
so
being
seised
by
the
name
of
the
Dean
and
Chapter
Ecclesiae
Cathedralis
Christi
in
Accademia
Oxon.
ex
fundatione
Reg.
H.
8.
enfeoffed
Edward
,
late
Lord
North
therof
,
by
their
Deed
,
hearing
date
the
21.
day
of
April
,
1.
E.
6.
who
afterwards
dyed
,
and
the
now
Lord
North
entred
,
and
did
let
it
to
the
Plaintiff
,
who
was
ousted
by
the
Defendant
,
claiming
the
said
House
by
a
Lease
made
by
the
said
Dean
and
Chapter
in
the
time
of
Queen
Elizabeth
,
for
divers
years
yet
to
come
,
and
whether
his
entry
were
lawfull
,
or
not
,
was
the
question
,
and
all
depends
upon
the
mis-naming
of
the
Corporation
:
But
it
was
found
that
the
City
of
Oxford
,
and
the
Vniversity
of
Oxford
were
all
one
,
and
that
the
Town
of
Oxford
was
made
a
City
by
the
Charter
of
King
H.
8.
And
by
Fennor
,
the
Feoffment
made
to
Edward
Lord
North
,
for
the
misnaming
of
the
Corporation
,
was
void
,
for
he
said
,
that
Accademia
&
villa
de
Oxford
,
are
divers
in
name
,
and
divers
in
nature
,
for
the
Vniversity
is
to
the
Schollars
and
learned
men
there
,
and
the
Town
for
the
Inhabitants
,
and
the
name
of
a
place
is
a
principal
thing
in
a
Corporation
,
which
in
a
new
Corporation
ought
to
be
precise
,
according
to
the
very
Letter
of
the
Charter
therof
:
And
therfore
in
the
case
of
Chester
it
was
agreed
,
that
Cestria
being
omitted
,
the
Charter
for
the
Dean
and
Chapter
there
had
been
void
.
But
by
Popham
,
Gawdy
,
and
Clench
,
this
is
not
such
a
mis-naming
as
to
the
place
which
shall
make
the
Feoffment
void
:
for
suppose
it
had
been
Decanus
&
Capitalis
Ecclesiae
Cathedralis
Christi
in
Civitate
Oxon.
it
had
been
good
,
for
Oxon.
&
Civitas
Oxon.
are
one
and
the
same
.
So
it
is
if
an
Hospitall
be
erected
by
the
name
of
the
Hospitall
of
S.
Johns
in
S.
Clements
;
and
they
make
a
Grant
by
the
name
of
the
Hospitall
of
S.
Johns
in
the
Parish
of
S.
Clements
,
it
is
good
,
for
it
appeareth
to
be
the
same
:
And
here
if
a
man
will
say
,
that
it
shall
go
to
the
Vniversity
of
Oxford
,
this
every
one
conceives
to
be
the
Town
of
Oxford
,
and
so
of
Cambridge
,
and
therfore
in
8
H.
6.
it
was
agreed
to
be
a
good
addition
for
the
place
in
an
Action
personall
,
against
such
a
one
Chancellor
of
the
Vniversity
of
Oxford
,
and
so
it
is
against
J.
Rector
of
the
Parish
Church
of
Dale
,
without
any
other
addition
for
the
place
,
yet
the
Statute
is
,
that
it
ought
to
be
named
of
what
Town
,
Hamlet
,
or
place
the
party
is
.
And
by
Popham
,
the
place
in
a
Corporation
may
well
be
resembled
to
the
Sur-name
of
a
man
,
and
as
a
Grant
made
by
any
persons
Christian
name
,
as
John
,
Thomas
,
&c
:
is
not
good
,
so
in
a
Corporation
it
is
not
good
to
say
,
Dean
,
and
Chapter
,
Mayor
,
and
Comminalty
,
and
the
like
,
without
saying
,
of
what
place
:
And
anciently
men
took
most
commonly
their
Surnames
from
their
places
of
habitation
,
especially
men
of
Estate
,
and
Artizans
often
took
their
names
from
their
Arts
,
but
yet
the
Law
is
not
so
precise
in
the
case
of
Sur-names
,
and
therfore
a
Grant
made
by
,
or
to
John
,
Son
and
Heir
of
I.
C.
or
Filio
juniori
I.
S.
is
good
:
But
for
the
Christian
name
,
this
alwaies
ought
to
be
perfect
.
So
in
the
case
of
a
Corporation
,
it
sufficeth
to
have
a
sufficient
demonstration
of
the
place
where
the
Corporation
is
,
albeit
it
be
not
by
the
precise
words
comprised
in
the
Charter
:
as
in
naming
Accademia
Oxon.
pro
Villa
Oxon
,
and
it
is
common
,
of
which
I
have
seen
divers
Charters
,
where
a
Town
was
incorporated
by
the
name
of
Mayor
,
and
Comminalty
of
such
a
Town
,
as
Bristoll
,
Exeter
,
and
others
,
which
afterwards
have
been
made
Cities
,
and
yet
Charters
made
to
them
,
and
Grants
made
by
them
,
by
the
name
of
Mayor
and
Comminalty
of
the
City
is
good
,
but
more
precisenesse
is
vsed
in
the
body
of
the
name
of
a
Corporation
before
the
place
to
which
they
are
annexed
,
and
yet
in
them
,
that
which
is
but
an
ornament
to
the
name
comprehended
in
the
Charter
,
shall
not
hurt
the
Grant
,
as
of
Chapiter
,
of
S.
George
of
Windsor
,
if
it
be
of
S.
George
the
Martyr
,
and
the
like
,
the
Grant
by
such
a
name
is
good
,
because
the
Martyr
is
but
an
addition
of
Ornament
to
the
name
comprised
in
the
Charter
,
and
it
is
no
other
but
the
same
in
re
vera
.
So
here
,
if
it
had
been
Domini
nostri
Jesu
Christi
,
because
it
is
the
same
,
and
is
but
an
ornament
to
the
word
Christ
comprised
in
the
Charter
,
and
so
should
it
be
also
if
it
had
been
Christi
filii
Dei
Salvatoris
nostri
,
because
it
is
but
a
true
addition
to
the
same
;
wherupon
Iudgment
was
given
for
the
Plaintiff
,
as
appeareth
in
the
Kings
Bench
,
Pas.
35
E.
Rot.
258.
And
Popham
said
further
in
this
case
,
that
to
erect
an
Hospitall
by
the
name
of
an
Hospitall
,
in
the
County
of
S.
or
in
the
Bishopprick
of
B.
and
the
like
,
is
not
good
,
because
he
is
bound
to
a
place
too
large
,
and
incertain
:
But
a
Colledge
erected
in
Accademia
Cantabrig
.
or
Oxon.
is
good
,
and
s●me
are
so
founded
because
it
tends
but
to
a
particular
place
,
as
a
City
,
Town
,
&c.
King
versus
Bery
and
Palmer
.
2.
IN
an
Ejectione
firmae
,
brought
by
William
King
against
John
Bery
and
William
Palmer
Defendants
,
for
two
Messuages
and
certain
Lands
in
Halstead
in
the
County
of
Leicester
,
upon
a
Demise
alledged
to
be
made
by
Dorothy
Pool
,
and
Robert
Smith
▪
the
case
upon
a
speciall
Verdict
was
this
;
The
said
Dorothy
was
Tenant
for
life
of
the
said
Tenants
,
the
Remainder
over
to
the
said
Robert
Smith
and
his
Heirs
,
and
they
being
so
seised
made
the
Lease
in
the
Declaration
,
upon
which
the
Action
was
brought
.
And
per
curiam
,
the
Lease
found
by
the
Verdict
doth
not
warrant
the
Lease
alledged
in
the
Declaration
;
for
although
they
joyned
in
the
Demise
,
yet
during
the
life
of
the
said
Dorothy
it
is
her
Demise
,
and
not
the
Demise
of
the
said
Robert
Smith
;
but
as
his
confirmation
for
that
time
:
for
he
hath
nothing
to
do
to
meddle
with
the
Land
during
the
life
of
the
said
Dorothy
,
but
after
the
death
of
the
said
Dorothy
then
it
shall
be
said
to
be
the
Domise
of
the
said
Robert
Smith
,
and
not
before
,
because
untill
this
time
Smith
hath
nothing
to
do
to
meddle
with
the
Land
.
And
in
a
more
strong
case
,
If
Tenant
for
life
,
and
he
in
the
Reversion
in
Fee
make
a
Gift
in
tail
,
for
the
life
of
Tenant
for
life
,
it
shall
be
said
to
be
his
Gift
,
but
after
his
death
it
shall
be
said
the
Gift
of
him
in
the
Reversion
,
and
if
the
Estate
tail
had
expired
during
the
life
of
the
said
Tenant
for
life
,
he
shall
have
the
Land
again
in
his
former
Estate
,
and
there
shal
be
no
forfeiture
in
the
case
,
because
he
in
the
Reversion
of
the
immediate
Estate
of
Inheritance
had
joyned
in
it
,
and
therfore
hath
dispensed
with
that
which
otherwise
had
been
a
meer
forfeiture
of
the
Estate
for
life
,
wherby
it
was
awarded
by
the
Court
that
the
Plaintif
take
nothing
by
his
Bill
in
33
,
&
34
Eliz.
Rot.
And
the
Judgment
is
entred
,
Hill.
34.
Eliz.
Ret.
72.
3.
In
this
Term
I
hapned
to
see
a
Case
agreed
by
the
Iustices
in
3.
&
4.
Eliz.
which
was
this
:
If
a
man
make
a
Lease
of
two
Barns
,
rendring
Rent
,
and
for
default
of
payment
,
a
Re-entry
,
if
the
Tenant
be
at
one
of
the
Barns
to
pay
the
Rent
,
and
the
Lessor
at
the
other
to
demand
the
Rent
,
and
none
be
there
to
pay
it
,
that
yet
the
Lessor
cannot
enter
for
the
Condition
broken
,
because
there
was
no
default
in
the
Tenant
,
he
being
at
one
,
for
it
was
not
possible
for
him
to
be
at
both
places
together
.
And
upon
this
Case
now
remembred
to
the
Iustices
,
Popham
,
Walmesley
,
and
Fennor
said
,
That
perhaps
also
the
Tenant
had
not
money
sufficient
to
have
been
ready
to
have
paid
it
,
at
either
of
the
said
places
,
but
it
is
sufficient
for
him
to
have
and
provide
one
Rent
,
which
cannot
be
at
two
places
together
.
And
by
the
Case
reported
here
also
;
If
Lands
and
Woods
are
demised
together
,
the
Rent
ought
to
be
demanded
at
the
Land
,
and
not
the
Woood
,
because
the
Land
is
the
more
worthy
thing
,
and
also
more
open
then
the
Wood
:
And
therfore
by
the
three
Iustices
aforesaid
,
Rent
ought
not
to
be
demanded
in
any
private
place
of
a
Close
,
as
amongst
Bushes
,
in
a
Pit
,
or
the
like
,
nor
in
the
open
and
most
usuall
passage
therof
,
as
at
a
Stile
,
Gate
,
and
the
like
.
4.
Vpon
a
Prohibition
sued
out
of
the
Kings
Bench
,
the
Case
appeared
to
be
this
.
The
late
Lord
Rich
,
Father
to
the
now
Lord
Rich
devised
,
to
his
Daughter
,
for
her
advancement
in
marriage
1500.
upon
condition
,
that
she
marry
with
the
consent
of
certain
friends
,
and
deviseth
further
,
that
if
his
Goods
and
Chattels
are
not
sufficient
to
pay
his
Debts
and
Legacies
,
that
then
there
shall
be
200
l.
a
year
of
his
Lands
sold
to
supply
it
,
and
dies
,
making
the
now
Lord
Rich
his
Executor
,
his
Goods
and
Chattels
not
being
sufficient
to
pay
the
Debts
of
the
Testator
,
as
was
averred
,
the
said
Daughter
married
with
a
Husband
against
the
will
of
those
who
were
put
in
trust
to
give
their
assents
;
and
the
Husband
and
the
Wife
sued
in
the
Spirituall
Court
for
the
Legacy
:
And
it
was
surmised
that
they
would
not
allow
the
proofs
of
the
said
now
Lord
Rich
,
exhihited
to
prove
the
payment
of
the
Debts
of
his
Testator
;
and
further
,
that
they
would
charge
him
for
the
sale
of
the
Land
;
upon
which
matter
the
Prohibition
was
granted
to
the
Delegates
,
before
whom
the
matter
depended
,
and
now
consultation
was
prayed
in
the
case
.
Vpon
which
it
was
affirmed
by
a
Doctor
of
the
Civill
Law
,
that
they
will
allow
the
proofs
for
the
payment
of
the
Debts
,
according
to
our
Law
,
and
that
the
Legacy
shall
not
be
paid
untill
the
Debs
are
satisfied
.
But
he
said
,
that
by
the
Law
,
if
the
Executor
do
not
exhibit
his
Inventory
,
but
neglect
it
for
a
year
,
or
more
,
that
then
if
any
omission
or
default
be
in
the
true
value
of
the
Inventory
exhibited
,
that
then
such
on
Executor
for
this
default
shall
pay
all
the
Legacies
of
his
Testator
,
of
what
value
soever
they
are
,
not
respecting
the
Debts
,
or
the
value
of
the
Goods
or
Chattels
,
how
small
soever
the
omission
,
or
default
be
in
the
Inventory
;
And
so
he
said
was
the
case
of
the
now
Sir
Richard
S.
who
did
not
bring
in
the
Inventory
for
four
years
after
the
death
of
the
Testator
,
and
that
in
the
Inventory
exhibited
,
the
values
of
every
thing
were
found
to
be
too
small
,
and
therfore
to
be
charged
by
their
Law
,
albeit
he
hath
not
Goods
and
Chattels
sufficient
of
the
Testators
.
To
which
it
was
answered
,
that
this
was
quite
without
reason
,
for
by
such
means
every
Subject
of
the
Realm
may
be
utterly
defeated
,
if
he
take
upon
him
the
charge
of
an
Executorship
:
And
if
this
shall
be
admitted
,
no
man
will
take
upon
him
the
Execution
of
the
Will
of
any
,
and
by
such
a
means
none
will
have
their
Wills
performed
,
which
shall
be
too
inconvenient
.
And
they
said
further
,
that
in
as
much
as
Debts
are
to
be
proved
by
the
Common
Law
of
the
Realm
,
those
of
the
Ecclesiasticall
Courts
ought
to
admit
in
the
proof
therof
,
such
proofs
as
our
Law
allows
,
and
not
according
to
the
precisenesse
of
their
Law
:
And
although
by
their
Law
such
a
Condition
as
before
being
annexed
to
a
Legacy
,
is
void
,
because
that
marriage
oughr
to
be
free
without
Coercion
,
yet
where
we
are
to
judge
upon
the
point
(
as
we
are
here
)
if
the
Execution
happen
to
be
charged
because
of
the
sale
of
Land
,
and
for
the
money
coming
therof
,
a
prohibition
shall
be
granted
to
the
Ecclesiasticall
Iudge
in
such
a
case
,
wherby
the
Court
granted
a
speciall
consultation
in
the
Case
,
to
wit
,
that
they
proceed
for
the
Legacy
,
provided
,
that
they
charge
the
Executor
no
further
then
he
hath
in
Goods
and
Chattels
of
the
Testator
,
after
his
true
and
due
Debts
are
satisfied
:
And
that
in
the
case
of
the
proof
of
these
Debts
,
they
allow
such
proofs
as
by
the
Law
of
the
Land
are
holden
to
be
sufficient
in
such
a
case
;
Quod
nota
ben●
,
as
to
the
restraining
of
Ecclesiasticall
Courts
in
their
proceedings
,
to
bind
any
subject
touching
his
private
temporall
Estate
,
against
all
reason
:
And
as
to
it
,
that
they
do
not
intermeddle
in
any
thing
belonging
to
the
Common
Law
of
the
Realm
,
as
Debts
,
and
the
like
,
against
the
due
course
of
the
Common
Law
.
Cawdry
versus
Atton
.
5.
IN
Trespasse
brought
by
Robert
Cawdry
Clerk
,
against
George
Atton
,
Vide
this
Case
Coke
lib.
5.
1.
pa.
for
breaking
his
Close
at
North
Luffenham
in
the
County
of
Rutland
,
upon
not
guilty
,
and
a
speciall
Verdict
,
the
Case
appeared
to
be
this
,
to
wit
,
that
the
Plaintiff
was
Rector
Ecclesiae
de
North
Luffenham
aforesaid
,
of
which
the
place
was
parcell
,
and
being
so
seised
,
was
deprived
of
his
Rectory
by
the
late
Bishop
of
London
and
his
Colleagues
,
by
virtue
of
the
high
Commission
to
them
and
others
diverted
,
because
he
had
pronounced
and
uttered
slanderous
and
contumelious
words
against
,
and
in
depravation
of
the
Book
of
Common-prayer
;
But
the
form
of
the
sentence
was
,
that
the
said
Bishop
by
,
and
with
the
assent
and
consent
of
five
others
of
the
said
Commissioners
his
Companions
,
and
namely
which
deprived
him
.
And
further
,
it
was
not
found
,
that
the
Commissioners
named
were
the
naturall
Subjects
born
of
the
Queen
,
as
the
Statute
enacts
that
they
should
be
:
And
if
the
deprivation
be
void
,
then
they
find
the
Defendant
guilty
,
and
if
it
were
good
,
then
they
find
him
not
guilty
.
And
it
was
moved
that
the
deprivation
was
void
.
First
,
Because
that
wheras
the
Commission
is
to
them
,
or
any
three
of
them
,
of
which
the
said
Bishop
to
be
one
amongst
others
,
it
ought
to
have
been
the
sentence
of
them
all
,
according
to
the
authority
given
to
them
,
which
is
equall
,
and
not
that
it
was
done
by
one
with
assent
of
the
other
.
Then
because
it
is
not
found
that
the
Commissioners
are
the
naturall
Subjects
of
the
Queen
born
,
as
by
the
words
of
the
Statute
they
should
be
.
Another
is
,
because
the
punishment
which
the
Statute
provides
for
those
of
the
Ministry
which
deprave
this
Book
,
is
to
loose
the
profits
of
all
their
Spirituall
Promotions
but
for
a
year
,
and
to
be
imprisoned
by
the
space
of
six
months
,
and
not
to
be
deprived
untill
the
second
Offence
,
after
that
he
had
been
once
committed
,
and
therfore
to
deprive
him
for
the
first
offence
was
wrongfull
and
contrary
to
the
Statute
.
But
by
the
whole
Court
for
the
form
of
the
deprivation
,
it
is
,
that
which
is
used
in
the
Ecclesiasticall
Courts
,
which
alway
names
the
chief
in
Commission
,
that
are
present
at
the
beginning
of
the
Sentence
,
and
for
the
other
they
mention
them
only
as
here
,
but
of
their
assent
and
consent
to
it
,
and
in
such
cases
we
ought
to
give
credit
to
their
form
,
and
therfore
t
is
not
to
be
compared
to
an
authority
given
at
Commen
Law
by
Commission
.
And
for
the
matter
that
is
not
found
,
that
the
Commissioners
were
the
naturall
Subjects
of
the
Queen
born
,
it
is
to
be
intended
that
they
were
such
,
unlesse
the
contrary
appear
:
But
here
at
the
beginning
it
is
found
that
the
Queen
,
secundum
tenorem
&
effectum
actus
predict
.
had
granted
her
Commission
to
them
in
causis
Ecclesiasticis
,
and
therfore
it
appeareth
sufficiently
that
they
were
such
as
the
Statute
wills
them
to
be
.
And
for
the
deprivation
,
they
all
agreed
that
it
was
good
,
being
done
by
the
authority
of
the
Commission
,
for
the
Statute
is
to
be
understood
where
they
prosecute
upon
the
Statute
by
way
of
Inditement
,
and
not
to
restrain
the
Ecclesiasticall
Iurisdiction
,
being
also
but
in
the
Affirmative
.
And
further
by
the
Act
and
their
Commission
,
they
may
proceed
according
to
their
discretion
to
punish
the
offence
proved
or
confessed
before
them
,
and
so
are
the
words
of
their
Commission
warranted
by
the
clause
of
the
Act.
And
further
,
the
Ecclesiasticall
Iurisdiction
is
saved
in
the
Act.
And
further
,
all
the
Bishops
and
Popish
Priests
were
deprived
by
virtue
of
a
Commission
warranted
by
this
clause
in
the
Act
:
And
now
lately
it
was
agreed
by
all
the
Iustices
,
that
a
Fine
of
200.
marks
set
upon
one
for
a
vitious
liver
by
the
high
commission
was
warranted
by
virtue
of
the
Commission
and
Act
:
And
therfore
if
the
Act
with
the
Commission
,
are
to
be
consdered
in
this
case
,
wherupon
it
was
agreed
that
the
Plaintiff
should
take
nothing
by
his
Writ
:
Which
you
may
see
,
Hill
.
33.
Eliz.
Rot.
315.
Hall
versus
Peart
.
6.
IN
an
Ejectione
firmae
brought
by
William
Hall
Plaintiff
,
for
Land
in
D.
in
the
County
of
Somerset
,
upon
a
Lease
made
by
William
Dodington
against
John
Peart
and
other
Defendants
,
upon
a
speciall
Verdict
the
case
appeared
to
be
this
.
That
one
Iohn
Brown
was
in
possession
of
certain
Lands
in
D.
aforesaid
,
Vide
this
case
in
Cook
lib.
2
32
,
33.
by
the
name
of
Doding●ons
case
.
which
before
were
parcel
of
the
possessions
of
the
Hospitall
or
Priory
of
S.
Iohns
in
Wells
,
the
Inheritance
therof
then
being
in
the
late
King
H.
8.
by
the
Act
of
dissolutions
:
And
the
King
being
so
seised
by
his
Letters
Patents
,
dated
26.
of
March
,
30
H.
8.
ex
gratia
speciali
,
certa
scientia
&
mero
motu
suo
,
granted
to
Iohn
Ayleworth
,
and
Ralph
Duckenfield
,
omnia
illa
Messuagia
Ter.
Tenemt
.
&
gardina
sua
&
quaecunque
tune
in
separabilibus
tenuris
diversarum
personarum
,
which
he
named
particularly
,
amongst
which
the
said
Iohn
Brown
was
one
in
Civitate
Wellen.
ac
in
suburbiis
ejusdem
Civitat
.
&
exira
eandem
civitat
.
within
the
Jurisdictions
and
Liberties
of
the
said
City
,
late
parcell
of
the
possessions
of
the
said
Hospitall
,
and
that
the
said
Iohn
Brown
had
not
then
any
other
Lands
late
parcel
of
the
possessions
of
the
said
Hospitall
,
but
this
in
D.
and
that
this
Land
was
quite
out
of
the
said
City
of
Wells
,
and
of
the
Suburbs
therof
,
and
also
out
of
the
Liberties
and
Jurisdiction
of
the
said
City
,
and
yet
it
was
found
that
it
was
in
the
particular
and
parcell
of
the
value
,
and
valued
in
it
in
the
Tenure
of
the
said
Iohn
Brown
at
6
s.
8
d.
a
year
,
and
the
grant
was
to
the
said
Iohn
Ayleworth
and
Ralph
Duckenfield
,
and
to
the
Heirs
of
the
said
Iohn
Ayleworth
forever
.
And
it
was
moved
that
the
Grant
was
good
to
the
said
Ayleworth
and
Duckenfield
,
because
of
the
Statute
of
non-recitall
and
mis-recitall
,
because
it
appeareth
by
the
particular
,
and
value
that
it
was
intended
to
be
passed
:
And
if
this
doth
not
passe
,
nothing
can
passe
which
was
in
the
Tenure
of
the
said
Brown
,
because
he
had
nothing
in
the
places
comprised
in
the
Patent
.
But
it
was
agreed
by
all
the
Court
,
that
it
shall
not
passe
by
the
said
Patent
in
this
case
,
for
the
word
(
illa
)
is
to
be
restraind
by
that
which
follows
in
the
Patent
,
where
it
depends
upon
a
generality
,
as
here
,
and
that
it
refers
but
to
that
in
Wells
,
as
the
liberty
of
that
which
was
parcell
of
the
possessions
of
the
said
Hospitall
,
and
in
the
Tenure
of
the
said
John
Brown
:
And
if
it
were
not
of
these
possessions
,
or
not
in
Wells
,
&c.
or
not
in
the
Tenure
of
the
said
John
Brown
,
it
shall
not
passe
,
for
the
intent
of
the
King
in
this
case
shall
not
be
wrested
according
to
the
particular
or
the
value
,
which
are
things
collaterall
to
the
Patent
,
but
according
to
his
intent
comprised
in
,
or
to
be
collected
by
the
Patent
it self
.
And
Popham
said
,
that
by
Grant
of
omnia
,
terras
Tenementa
&
Hereditamenta
sua
in
case
of
the
Queen
nothing
passe
,
if
it
be
not
restraind
to
a
certainty
,
as
in
such
a
Town
,
or
late
parcell
of
the
Possessions
of
such
a
one
,
or
of
such
an
Abbey
,
or
the
like
,
in
which
cases
it
passeth
,
as
appeareth
by
32
H.
8.
in
case
of
the
King
:
But
if
it
be
Omnia
,
terras
&
tenementa
sua
vocat
.
D.
in
the
Tenure
of
such
a
one
and
in
such
a
Town
,
and
late
parcell
of
the
possessions
of
such
a
one
,
there
albeit
the
Town
or
the
Tenant
of
the
Land
be
utterly
mistaken
,
or
that
it
be
mistaken
of
what
possessions
it
was
,
it
is
good
,
for
it
sufficeth
that
the
thing
be
well
and
fully
named
,
and
the
other
mistakes
shall
not
hurt
the
Patent
.
And
the
word
of
Ex
certa
scientia
,
&c.
will
nof
help
the
Patent
in
the
principall
case
.
And
the
case
of
29
E.
3.
is
not
to
be
compared
to
this
case
,
for
it
was
thus
.
The
King
granted
the
Advowson
of
the
Priory
of
Mountague
(
the
Prior
being
an
Alien
)
to
the
Earl
of
Salisbury
and
his
Heirs
for
ever
:
And
also
the
keeping
and
Farm
with
all
the
Appurtenances
and
Profits
of
the
said
Priory
,
which
he
himself
had
curing
the
War
,
with
the
keeping
of
certain
Cell●
belonging
to
the
said
Priory
;
the
said
Earl
died
,
William
Earl
of
Salisbury
being
his
Son
and
Heir
,
and
within
age
,
wherupon
the
King
reciting
that
he
had
seised
the
Earls
Lands
into
his
hands
after
his
death
,
for
the
Nonage
of
the
Heir
,
he
granted
to
the
said
Earl
all
his
Advowsons
of
all
the
Churches
which
were
his
Fathers
,
and
all
the
Advowsons
of
the
Churches
which
belong
to
the
Prior
of
Mountague
,
to
hold
untill
the
full
age
of
the
said
Heir
,
&
quas
nuper
concessit
prefat.
Comiti
patri
,
&c.
In
which
case
,
although
the
King
had
not
granted
the
Advowsons
to
the
said
Earl
the
Father
aforesaid
,
by
the
former
Patent
,
because
no
mention
was
of
the
Advowsons
therof
,
yet
they
passe
by
this
Patent
,
notwithstanding
that
which
follows
after
,
to
wit
,
and
which
he
granted
to
the
Father
of
the
Grantee
:
But
there
it
is
by
a
Sentence
distinct
,
and
not
fully
depending
upon
the
former
words
,
as
here
,
to
wit
,
Omnia
illa
Messuagia
,
&c
in
Wells
,
in
the
Tenure
of
the
party
,
parcell
of
the
Possessions
of
such
an
Hospitall
,
or
Priory
:
Quod
nota
,
and
the
difference
.
And
because
the
Defendant
claimed
under
the
first
Patent
,
and
the
Plaintiff
by
the
latter
Patent
,
it
was
agreed
,
that
the
Plaintiff
should
recover
:
Which
you
may
see
in
the
Kings
Bench.
Harrey
versus
Farcy
.
7.
IN
an
Ejectione
firmae
brought
by
Richard
Harrey
Plaintiff
,
for
the
Moyety
of
certain
Tenements
in
North-petherton
,
in
the
County
of
Somerset
,
upon
a
Lease
made
by
Robert
Bret
against
Humfrey
Farcy
Defendant
,
upon
not
guilty
,
and
a
speciall
Verdict
found
,
the
case
appeared
to
be
this
,
to
wit
,
That
Robert
Mallet
Esquire
,
was
seised
of
the
said
Tenements
,
in
his
Demesne
as
of
Fee
,
and
so
seised
demised
▪
them
to
John
Clark
,
and
Elianor
Middleton
,
for
term
of
their
lives
,
and
of
the
longer
liver
of
them
,
after
which
the
said
Tenements
(
amongst
others
)
were
assured
by
Fine
to
certain
persons
and
their
Heirs
,
to
the
use
of
the
said
Robert
Mallet
for
term
of
his
life
,
and
after
his
decease
to
the
use
of
John
Mallet
his
Son
and
Heir
of
his
body
,
and
for
default
of
such
Issue
,
to
the
use
of
the
right
Heirs
of
the
aid
Robert
Mallet
.
After
which
the
said
Robert
Mallet
(
having
Issue
the
said
John
Mallet
,
Christian
,
and
Elianor
Mallet
)
died
,
the
said
John
Mallet
then
being
within
age
,
and
upon
Office
found
in
the
County
of
Devon
,
for
other
Lands
holden
of
the
Queen
in
Capite
by
Knights
Service
was
for
it
in
Ward
to
the
Queen
:
Afterwards
the
said
John
Mallet
died
without
Issue
during
his
Nonage
,
and
the
Lands
aforesaid
therby
descended
to
his
said
two
Sisters
,
to
whom
also
descended
other
Lands
in
the
County
of
Devon
,
holden
of
the
Queen
in
Capite
by
Knights
Service
,
conveyed
also
by
the
same
Fine
in
like
manner
,
as
the
Lands
in
North
Petherton
,
the
said
Christian
then
being
of
the
age
of
22.
years
,
and
the
said
Elianor
of
the
age
of
15.
yeares
,
upon
which
the
said
Christian
and
Elianor
,
12.
Novemb.
31
Eliz.
tendred
their
Livery
before
the
Master
of
the
Wards
,
and
before
the
Livery
sued
,
the
said
Christian
took
the
said
Robert
Bret
to
husband
,
and
the
said
Elianor
took
to
husband
one
Arthur
Ackland
;
after
which
in
the
Utas
of
the
Purification
of
our
Lady
,
32
Eliz.
the
said
Robert
Bret
and
Christian
his
wife
,
levied
a
Fine
of
the
said
Tenements
in
North-petherton
,
amongst
others
to
George
Bret
and
John
Pecksey
,
Sur
conusance
de
droit
come
ceo
que
ils
ont
de
lour
done
,
by
the
name
of
the
Moyety
of
the
Mannor
of
North
petherton
,
&c.
with
warranty
against
them
and
the
Heirs
of
the
said
Christian
against
all
men
,
who
tendred
it
by
the
same
Fine
to
the
said
Robert
Bret
and
Christian
,
and
the
Heirs
Males
of
their
bodies
,
the
remainder
to
the
Heirs
Males
of
the
body
of
the
said
Christian
,
the
remainder
over
to
the
right
Heirs
of
the
said
Robert
Bret
,
which
Fine
was
engrossed
the
same
Term
of
S.
Hillary
,
and
the
first
Proclamation
was
made
the
12th
.
day
of
February
in
the
same
Term
;
the
second
,
the
first
day
of
June
in
Easter
Term
,
32
Eliz.
The
third
,
the
8th
.
day
of
July
in
Trinity
Term
next
:
And
the
fourth
Proclamation
was
made
the
4th
.
day
of
October
,
in
Michaelmas
Term
next
after
.
And
the
said
Christian
died
without
Issue
of
her
body
.
The
9th
.
day
of
February
,
32
Eliz.
between
the
hours
of
3.
&
7.
in
the
afternoon
of
the
same
day
.
And
the
22.
of
March
,
32
Eliz.
the
said
Robert
Bret
by
his
writing
indented
,
dated
the
same
day
and
year
,
for
a
certain
summ
of
money
to
him
paid
,
by
the
Queen
,
bargained
and
sold
,
gave
and
granted
the
said
Teuements
to
the
said
Queen
,
her
Heirs
and
Successors
for
ever
,
which
Deed
was
acknowledged
the
25th
.
day
of
March
,
32
Eliz.
and
enrolled
in
the
Chancery
the
12th
.
day
of
May
,
in
th●
same
year
:
And
there
was
a
Proviso
in
the
same
Deed
,
that
if
the
said
Robert
Bret
shall
pay
to
the
Queen
at
the
receipt
of
the
Exchequer
5
s.
of
lawfull
money
,
that
then
the
said
Gift
,
Grant
,
Bargain
,
and
Sale
shall
be
void
,
and
that
from
thence-forward
it
shall
be
lawfull
for
the
said
Robert
Bret
and
his
Heirs
to
re-enter
into
the
said
Tenements
,
and
in
the
mean
time
between
the
Inrolement
of
this
Deed
:
And
the
said
14th
.
day
of
Octob.
to
wit
,
the
15th
.
day
of
September
,
32
Eliz.
the
said
Arthur
upon
the
said
Tenements
in
North-petherton
,
entred
and
claimed
the
Reversion
therof
in
the
right
of
the
said
Elianor
his
wife
,
by
reason
of
the
death
of
the
said
Christian
:
And
that
afterwards
,
to
wit
,
the
30th
.
day
of
February
,
33
Eliz.
the
said
Robert
Bret
to
redeem
the
said
Tenements
out
of
the
Queen
,
paid
the
said
5
s.
at
the
receipt
of
the
Exchequer
,
which
payment
is
there
recorded
,
and
enrolled
accordingly
;
after
which
in
September
,
34
Eliz.
the
said
Arthur
and
Elianor
sued
out
a
speciall
Livery
of
the
said
Elianor
,
out
of
the
hands
of
the
Queen
,
of
all
the
Lands
seised
into
the
hands
of
the
Queen
by
reason
of
the
Nonage
of
the
said
John
Mallet
.
And
afterwards
in
the
same
meneth
of
September
,
34
Eliz.
the
said
Arthur
and
Elianor
sued
out
another
speciall
Livery
,
as
Heir
to
the
said
Christian
,
of
all
the
Lands
which
were
in
the
Queens
hands
by
the
death
of
the
said
Christian
.
And
it
was
further
found
,
that
the
said
John
Clark
and
Elianor
Middleton
,
died
after
the
5
s.
paid
as
before
,
and
that
the
said
Robert
Bret
entred
the
8th
.
day
of
October
,
34
Eliz.
and
then
made
the
Lease
to
the
Plaintiff
,
upon
which
the
Defendant
by
commandment
of
the
said
Arthur
,
and
with
him
entred
upon
the
Plaintiff
;
and
the
generall
question
was
,
Whether
the
entry
of
the
Defendant
were
lawfull
?
But
no
ouster
of
the
Plaintiff
was
found
.
And
by
Clench
,
and
Fennor
,
a
Fee-simple
passe
at
Common
Law
by
a
Fine
levied
by
him
in
Reversion
,
or
Remainder
in
Tail
,
because
a
Fine
is
said
to
be
a
Feoffment
of
Record
,
and
by
their
entry
and
Feoffment
a
Fee-simple
passe
in
such
a
case
at
Common
Law
.
But
by
Popham
,
and
Gaudy
,
a
Fee-simple
doth
not
passe
,
nor
nothing
but
that
which
Tenant
in
Tail
may
lawfully
grant
over
,
which
is
for
his
life
,
in
which
he
said
,
that
Littleton
was
plain
in
all
cases
of
Grant
,
although
it
be
by
Fine
,
and
a
Fee-simple
does
not
passe
at
Common
Law
,
but
where
the
Fee
may
be
drawn
out
of
him
who
had
the
Reversion
or
Remainder
in
Fee
therupon
,
if
such
a
Reversion
or
Remainder
had
been
in
a
stranger
,
which
had
not
been
in
this
case
,
if
the
Reversion
or
Remainder
had
been
in
a
stranger
;
and
therfore
a
Discontinuance
cannot
be
of
an
Intail
where
the
Reversion
or
Remainder
is
in
the
King
.
But
by
them
all
,
however
it
was
at
Common
Law
,
it
is
cleer
upon
the
Statute
of
Fines
,
that
a
Fee-simple
determinable
passe
by
such
a
Fine
as
soon
as
the
Fine
is
levied
,
because
every
Fine
by
presumption
of
Law
shall
be
taken
to
be
such
wherupon
proclamation
is
made
,
untill
the
contrary
therof
appeareth
to
the
Court.
And
this
is
the
reason
why
a
Quid
juris
clamat
is
at
this
day
maintained
upon
such
a
Fine
,
which
was
not
at
Common
Law
before
this
Statute
,
or
otherwise
it
will
never
lye
.
And
so
it
was
holden
lately
in
the
Common
Bench
,
in
the
case
of
Iustice
Wimondham
,
and
yet
we
may
see
that
the
Quid
juris
clamat
ought
to
be
brought
before
that
the
Fine
be
engrossed
,
wherby
it
is
manifest
that
now
a
Fee-simple
shall
passe
by
the
Fine
levied
,
for
the
possibility
of
the
Proclamations
,
to
wit
,
that
the
Proclamations
shall
not
be
made
,
and
to
this
Fee-simple
the
Proclamations
shall
enure
to
make
a
bar
to
the
Estate-tail
:
But
such
a
Fine
by
Popham
and
Gawdy
was
not
any
wrong
to
him
who
had
the
Reversion
or
Remainder
in
Fee
being
levied
by
him
who
had
a
mean
Reversion
or
Remainder
in
Tail
,
depending
upon
an
Estate
for
life
,
or
in
Tail
precedent
.
And
it
is
cleer
,
that
the
Proclamations
do
not
make
the
Estate
,
but
enure
to
the
Estate
made
by
the
Fine
,
for
if
an
Estate
be
granted
in
Reversion
for
life
,
or
in
Tail
by
Fine
,
with
Proclamations
by
such
a
Tenant
in
Tail
,
in
Reversion
or
Remainder
,
the
Proclamations
work
to
this
Estate
,
and
no
further
,
for
alwaies
the
Estate
passe
by
the
Fine
,
and
the
Proclamations
make
the
Bar
according
to
the
Estate
,
which
passe
by
the
Fine
before
.
But
by
Clench
,
Gawdy
,
and
Fennor
,
the
Fee-simple
which
was
in
the
Queen
after
the
Fine
levied
as
before
,
was
divested
by
means
of
this
claim
made
upon
the
possession
of
the
Queen
,
lo
that
the
Proclamations
following
are
of
no
force
to
hurt
the
Estate
tail
,
for
they
said
,
in
divers
cases
a
possession
may
be
invested
out
of
the
Queen
without
Office
,
Petition
,
or
Monstrans
de
droit
,
as
the
case
is
,
where
a
man
devise
that
his
Land
shall
be
sold
,
and
in
the
mean
time
before
the
sale
,
the
possession
of
the
Land
cometh
to
the
Queen
,
and
afterwards
the
Land
is
sold
according
to
the
Will
,
the
Vendee
enter
,
there
the
Land
passe
from
the
Queen
therby
,
and
is
divested
,
and
so
in
many
other
cases
.
And
in
all
cases
where
the
Queens
Estate
is
determined
,
the
Subject
may
enter
into
the
Land
without
Office
,
or
Ouster
le
main
,
&c.
And
they
said
,
if
it
had
been
in
the
possession
of
a
common
person
,
that
by
such
a
claim
the
force
of
the
Fine
had
been
defeated
;
and
this
appeareth
by
the
case
between
Smith
and
Stapleton
in
the
Commentaries
,
where
it
is
holden
that
where
a
Fine
is
levied
with
Proclamations
by
Tenant
in
Tail
of
an
Advowson
,
Rent
,
or
Tithes
,
by
claim
made
by
the
Issue
in
Tail
,
before
the
Proclamations
are
passed
,
where
the
Tenant
in
Tail
is
dead
,
the
same
is
defeated
,
and
that
the
Proclamations
passing
afterwards
,
shall
not
be
of
force
to
bar
the
Intail
.
And
they
said
,
that
the
conveyance
therof
to
the
Queen
after
the
Fine
levied
,
doth
not
make
it
to
be
in
worse
case
;
And
admit
it
will
not
serve
against
the
Queen
,
yet
the
claim
will
serve
against
Bret
,
when
he
had
entred
by
the
performance
of
the
Condition
.
And
Clench
and
Gawdy
said
,
that
Bret
shall
not
take
advantage
of
this
covenous
Deed
made
by
himself
,
of
very
purpose
to
bar
the
party
who
had
right
,
and
to
put
him
without
remedy
,
no
more
then
where
the
Disseisor
enfeoff
his
Father
who
dies
seised
,
he
shall
not
take
advantage
of
this
descent
,
or
if
he
who
hath
cause
of
Action
to
recover
Lands
by
Covin
,
causeth
another
to
enter
into
the
Lands
,
to
the
intent
to
recover
against
him
,
and
does
it
accordingly
for
the
Covin
,
the
Recovery
shall
be
avoided
,
and
in
the
same
manner
here
.
But
Popham
took
a
diversity
,
where
the
Possession
or
the
Estate
of
the
Queen
is
determined
,
and
where
not
,
for
where
the
Estate
is
determined
,
there
the
Subject
may
enter
into
the
Land
without
Office
,
or
ouster
le
main
:
But
where
the
Possession
continues
,
there
the
party
shall
not
come
to
it
,
unlesse
by
petition
,
Monstrans
de
droit
officio
,
or
the
like
,
and
therfore
hee
said
,
that
if
the
Queen
had
an
Estate
pur
auter
vie
,
or
depending
upon
any
other
Limitation
,
if
it
be
determined
according
to
the
Limitation
,
the
party
who
hath
interest
may
enter
;
so
in
the
case
of
the
Devise
put
before
.
And
if
a
Lease
be
made
for
life
,
the
Remainder
in
Tail
,
the
Reversion
in
Fee
,
and
he
in
the
Remainder
in
Tail
levy
a
Fine
,
Sur
conusance
de
droit
come
ceo
que
il
ad
de
son
done
to
a
stranger
,
with
proclamations
according
to
the
Statute
,
and
afterwards
the
stranger
convey
the
Remainder
to
the
Queen
,
her
Heirs
and
Successors
,
and
after
the
Tenant
for
life
dies
,
and
after
he
in
the
Remainder
in
tail
dies
without
Issue
,
now
may
he
in
the
Remainder
in
Fee
enter
,
because
the
Estate
of
the
Queen
is
determined
:
But
here
the
Queen
hath
a
Fee-simple
in
her self
but
determinable
upon
the
Estate-tail
which
yet
remaineth
,
which
Fee-simple
in
Reversion
cannot
be
divested
out
of
the
possession
of
the
Queen
but
by
matter
of
Record
,
of
so
high
nature
as
it
is
in
her
,
to
wit
,
by
Petition
,
Monstrans
de
droit
,
or
the
like
:
As
if
a
Reversson
or
Remainder
be
alienated
in
Mortmain
,
the
claim
of
the
Lord
sufficeth
ther●
to
vest
the
Reversion
in
the
Lord
for
the
Alienation
,
but
if
the
Reversion
or
Remainder
of
which
such
a
claim
was
made
be
conveyed
to
the
King
,
his
remedy
is
now
by
Office
,
Monstrans
de
droit
,
or
Petition
,
for
claim
will
not
now
serve
him
,
for
this
shall
be
to
divest
the
possession
out
of
the
Queen
,
which
by
such
means
cannot
be
done
no
more
then
where
a
Reversion
or
Remainder
is
granted
to
the
Queen
upon
Condition
,
but
he
ought
to
have
an
Office
to
find
the
performance
of
it
,
if
it
be
to
be
performed
by
matter
in
pais
,
and
without
Monstrans
de
droit
,
or
otherwise
it
shall
not
be
divested
out
of
the
Queens
possession
,
yet
in
the
case
of
a
common
person
,
a
claim
will
divest
it
out
of
them
,
but
not
so
of
the
Queen
.
And
these
cases
Gawdy
agreed
;
but
he
conceived
that
in
the
case
in
question
,
the
claim
made
determines
the
Estate
of
the
Queen
,
which
is
made
by
means
of
the
Fine
upon
the
Statute
.
And
Popham
denied
the
case
put
in
7
H.
6.
to
be
Law
,
as
it
is
put
upon
the
opinion
of
Strange
there
,
for
it
is
cleer
,
that
the
claim
there
does
not
divest
any
possession
which
was
in
the
King
by
means
of
the
Wardship
,
and
if
this
be
not
therby
defeated
,
the
claim
does
not
help
the
Disseisee
against
the
Descent
;
and
this
appeareth
fully
by
Littleton
,
who
saith
so
of
a
Claime
which
avoids
a
Descent
,
to
wit
,
that
it
ought
to
be
such
upon
which
the
Disseisee
may
upon
every
such
Claim
made
have
an
Action
of
Trespasse
or
Assise
against
the
Dissessor
,
or
him
who
is
in
possession
,
if
he
continue
his
possession
after
such
Claim
made
,
which
cannot
be
in
this
case
where
the
possession
is
in
the
King
,
which
cannot
be
defeated
by
such
a
Claim
.
And
in
the
Lord
Dyer
where
the
Feoffee
,
or
Mortgagee
of
Lands
holden
of
the
Queen
in
Capite
by
Knights
Service
,
died
before
the
day
of
Redemption
,
his
Heir
being
within
age
,
wherby
upon
Office
found
,
the
Queen
had
the
Wardship
of
the
body
and
land
of
the
Heir
,
after
which
the
Mortgagee
at
the
day
of
redemption
made
payment
,
and
of
this
also
an
Office
was
found
,
yet
he
could
not
enter
either
before
or
after
Office
,
but
upon
Monstrans
de
droit
therupon
he
had
his
Ouster
le
main
:
And
the
reason
why
a
Claim
shall
serve
in
this
case
between
common
persons
,
is
,
because
that
by
such
Claim
the
thing
it self
is
devested
out
of
him
who
had
it
before
,
and
therby
actually
vested
in
him
who
made
the
claim
:
As
where
a
Villain
purchase
a
Reversion
by
the
Claim
of
the
Lord
,
the
Reversion
is
actually
in
him
,
as
it
is
of
a
Possession
by
Entry
:
But
where
he
is
put
to
his
Claim
to
devest
any
thing
out
of
a
common
person
,
he
is
put
to
his
Suit
to
devest
it
out
of
the
Queen
.
Aad
to
say
,
that
Bret
should
not
take
advantage
of
this
Conveyance
made
,
to
make
it
good
by
the
Fine
.
I
think
the
Law
to
be
clear
otherwise
as
to
this
point
,
for
the
Statute
of
Fines
was
made
tor
the
security
of
Purchasors
and
Possessors
of
Land
,
and
therfore
taken
more
strongly
against
them
who
pretend
Right
or
Title
,
and
for
the
greatest
advantage
that
may
be
for
the
Possessors
of
Lands
,
and
therfore
the
Possessor
by
what
ever
means
he
can
,
may
make
his
Fine
to
be
forceable
?
And
therfore
the
Fine
upon
this
Statute
differeth
much
from
a
Fine
at
Common
Law
;
for
where
at
Common
Law
an
Infent
being
a
Disseisor
was
disseised
by
one
who
levies
a
Fine
,
and
the
year
and
the
day
passe
without
claim
of
the
first
Disseisee
,
now
was
the
first
Disseisee
barred
:
yet
if
afterwards
the
Infant
(
who
was
not
bound
by
the
Fine
)
enter
,
the
first
Disseisee
may
enter
upon
him
,
because
that
by
this
entry
the
Fine
at
Common
Law
was
utterly
defeated
.
But
now
by
the
Statute
,
such
a
Fine
being
levied
with
Proclamations
,
the
first
Disseisee
not
pursuing
according
to
the
Statute
,
is
barred
for
ever
.
And
although
the
Infant
enter
at
full
age
,
and
undoes
the
Fine
as
to
himself
,
yet
this
Fine
remains
alwaies
to
bar
the
first
Disseissee
,
and
makes
that
the
Infant
hath
now
Right
against
all
the
world
,
and
so
now
takes
advantage
therof
:
And
this
is
the
intent
of
the
Statute
for
the
repose
of
Controversies
and
Suits
,
and
the
quiet
of
the
people
.
And
if
I
procure
a
Fine
to
be
levied
on
purpose
to
bar
another
of
his
Action
,
which
he
may
have
against
me
for
the
Land
,
yet
I
shall
take
advantage
of
this
Fine
,
and
the
other
shall
have
no
advantage
against
me
,
because
of
this
Covin
,
for
if
this
should
be
admitted
,
it
will
countervail
the
benefit
which
is
intended
to
be
by
means
of
the
Statute
of
Fines
.
And
if
a
Disseisor
enfeoffee
another
upon
Condition
,
to
the
intent
that
a
Fine
with
Proclamations
shall
be
levied
to
the
Feoffee
to
bar
the
Disseisee
,
and
after
the
Disseisee
is
barred
,
the
Disseisor
enter
for
the
Condition
,
he
shall
yet
take
advantage
of
the
Fine
against
the
Disseisee
.
And
Popham
put
a
case
which
was
in
this
Court
,
23
Eliz.
upon
a
speciall
Verdict
which
was
between
Okes
Plaintiff
,
upon
the
Demise
of
John
late
Lord
Sturton
of
Cottington
which
was
this
.
The
Lord
Sturton
was
Tenant
for
life
of
certain
Lands
in
Lighe
in
the
County
of
Somerset
,
the
remainder
in
Tail
to
Charles
late
Lord
Sturton
,
Father
to
the
said
Iohn
Lord
Sturton
;
and
the
said
Charles
Lord
Sturton
,
disseised
the
said
Lady
Sturton
,
and
levied
a
Fine
of
the
said
Land
to
Cottington
and
his
Heirs
,
with
Proclamations
according
to
the
Statute
,
and
warranted
it
against
him
,
and
his
Heirs
.
And
the
said
Lord
Charles
dyed
before
the
Proclamations
past
,
and
the
Warranty
descended
upon
the
said
John
Lord
Sturton
,
after
which
,
and
before
the
Proclamations
past
,
the
said
Lady
Sturton
entred
upon
the
said
Cottington
,
after
which
the
said
Lady
died
,
and
after
her
death
and
all
the
Proclamations
past
,
the
said
John
Lord
Sturton
as
Heir
in
Tail
entred
,
and
made
the
Lease
to
the
said
Okes
,
upon
whom
Cottington
the
Defendant
entred
,
as
under
the
right
of
the
said
Cottington
the
Conusee
.
And
I
perceiving
the
Court
strongly
to
incline
upon
the
matter
of
Warranty
,
that
it
shall
bar
the
entry
of
the
Heir
,
and
make
a
discontinuance
against
him
,
according
to
the
inference
which
is
taken
by
Littleton
in
his
Chapter
of
Discontinuance
,
because
the
truth
was
,
and
so
acknowledged
to
the
Court
(
although
it
were
omitted
in
the
Verdict
)
that
the
said
Charles
Lord
Sturton
,
was
attained
of
Felony
and
Murther
,
and
so
the
blood
corrupted
between
the
said
Charles
and
John
Lord
Sturton
,
wherby
in
a
new
Action
the
Garranty
had
not
hurt
the
Title
of
the
said
Lord
John
.
I
then
moved
the
Court
upon
the
other
point
of
the
Fine
with
Proclamations
;
and
the
Court
also
agreed
in
this
point
,
if
the
Warranty
had
not
been
,
that
yet
the
Fine
with
Proclamations
shall
bar
the
said
John
Lord
Sturton
,
notwithstanding
the
entry
made
by
the
Lady
Sturton
were
before
the
Proclamations
past
,
because
that
notwithstanding
his
regresse
made
,
the
Reversion
remains
in
Cottington
not
defeated
by
his
regresse
,
in
respect
of
the
Statute
whch
makes
that
the
Fine
remains
effectuall
against
the
Heir
in
Tail
,
if
nothing
be
done
by
him
to
undo
it
before
the
Proclamations
past
as
by
claim
,
regresse
,
and
the
like
;
but
the
Act
of
a
stranger
shall
not
help
him
,
wherby
Iudgment
being
therupon
given
against
the
said
Okes
,
the
said
John
Lord
Sturton
stood
satisfied
,
and
the
Cottingtons
enjoy
the
Land
to
this
day
;
wheras
,
if
this
opinion
of
the
Court
had
not
been
on
a
new
Action
,
the
said
Sir
John
might
have
been
relieved
against
the
Warranty
.
And
Gaudy
said
,
that
this
was
a
very
good
Case
for
the
point
upon
the
Statute
in
this
case
.
Earl
of
Shrewsbury
versus
Sir
Thomas
Stanhop
.
8.
GIlbert
Earl
of
Shrewsbury
brought
a
Scandalum
Magnatum
against
Thomas
Stanhop
Knight
,
and
it
was
upon
the
Statute
Tam
pro
Domina
Regina
quam
pro
seipso
,
&c.
For
that
communication
was
had
between
the
said
Sir
Thomas
,
and
one
Francis
Fletcher
,
of
divers
things
touching
the
said
Earl
,
the
said
Francis
at
such
a
day
and
place
,
said
to
the
said
Thomas
,
My
Lord
(
the
said
Earl
meaning
)
is
a
Subject
(
innuendo
)
that
the
said
Earl
was
a
Subject
of
the
now
Queen
)
the
said
Sir
Thomas
then
and
there
said
of
the
said
Earl
these
slanderous
words
,
to
wit
,
he
(
intending
the
said
Earl
)
is
sorry
for
that
(
meaning
that
the
said
Earl
was
sorry
that
he
was
then
a
Subject
to
our
said
Soveraign
Lady
the
Queen
)
that
is
his
grief
(
meaning
that
it
was
grief
to
the
said
Earl
,
that
the
said
Earl
was
Subj●ct
to
the
Queen
)
to
the
damage
of
the
said
Earl
of
20000
l.
To
which
the
said
Sir
Thomas
Stanhop
said
,
that
a
question
was
formerly
moved
between
the
said
Earl
and
the
Defendant
,
touching
the
subversion
and
drawing
away
of
certain
Weares
heretofore
erected
by
the
said
Sir
Thomas
at
Shel●ord
,
in
the
said
County
of
Nott.
where
the
Action
was
brought
to
oust
the
River
of
Trent
there
,
&
that
for
the
subversion
therof
a
Petition
was
exhibited
to
the
privy
Councell
of
the
Queen
,
before
the
speaking
of
the
said
words
,
by
certain
Inhabitants
of
the
County
of
Lincoln
,
and
divers
other
places
not
known
to
the
Defendant
,
with
the
privity
,
allowance
and
knowledge
of
the
said
Earl
,
which
Petition
at
the
time
of
the
speaking
of
the
said
words
,
depended
before
the
said
Councell
not
determined
,
wherupon
at
the
day
and
place
comprised
in
the
Declaration
,
there
was
Communication
between
the
said
Defendant
and
the
said
Francis
Fletcher
concerning
their
purpose
to
have
the
said
Wears
subverted
,
and
touching
the
said
Petition
,
upon
which
the
said
Francis
said
to
the
said
Defendant
,
the
matter
(
meaning
the
Petition
aforesaid
,
hanging
undetermined
before
the
Councell
aforesaid
)
is
to
be
heard
before
the
privy
Councel
meaning
the
aforesaid
Councell
of
the
Queen
)
and
what
their
Honours
(
meaning
the
Councell
aforesaid
)
determine
my
Lord
(
the
aforesaid
Earl
meaning
)
will
willingly
obey
:
To
which
the
said
Francis
then
there
answered
saying
,
My
Lord
(
the
aforesaid
Earl
meaning
)
is
a
Subject
,
upon
which
the
said
Defendant
(
they
then
having
speech
as
well
of
the
said
Petition
,
as
of
the
order
therupon
to
be
taken
by
the
said
Councell
)
answered
saying
,
the
words
comprised
in
the
Declaration
,
meaning
that
he
was
sorry
,
and
grieved
that
he
was
subject
to
the
order
to
be
made
upon
the
Petition
aforesaid
by
the
said
Councell
,
and
averred
that
this
was
the
same
speech
upon
which
the
Action
was
grounded
:
upon
which
it
was
demurred
in
Law
,
and
for
cause
shewn
according
to
the
Statute
it
was
alledged
that
the
bar
was
defective
,
because
it
is
not
alledged
at
what
place
,
nor
by
whom
,
nor
against
whom
the
Petition
was
exhibited
;
and
also
because
that
by
the
Bar
the
matter
of
the
Declaration
is
not
confessed
,
avoided
,
or
traversed
,
and
also
that
the
Bar
was
insufficient
:
And
it
seemed
to
Fennor
,
that
the
matter
of
the
Bar
had
been
sufficient
if
it
had
been
well
pleaded
:
but
the
Plaintiff
alledgeth
the
words
to
be
spoken
in
one
sence
in
the
Affirmative
,
and
the
Defendant
shews
matter
also
in
the
Affirmative
which
proves
the
words
to
be
spoken
in
another
sence
then
the
Declaration
imporrs
,
and
two
Affirmatives
can
never
make
a
good
Issue
,
and
therfore
the
Defendant
ought
to
have
taken
a
traverse
to
that
which
is
comprised
in
the
Declaration
,
and
for
want
of
this
traverse
the
plea
in
Bar
is
not
good
.
Gawdy
said
,
that
the
Bar
is
not
sufficient
neither
in
matter
nor
form
;
not
in
matter
,
because
that
wheras
Fletcher
said
,
that
the
said
Earl
was
a
Subject
,
this
can
have
no
other
sence
,
but
that
he
was
a
Subject
to
the
Queen
in
his
Allegiance
and
her
Soveraignty
,
and
so
much
is
drawn
out
of
the
course
of
their
former
speech
,
and
therfore
the
answer
which
the
Defendant
made
to
it
refers
to
his
subjection
of
alleagiance
,
and
not
to
the
matter
of
obedience
,
which
he
owed
to
the
order
of
the
said
Councell
,
and
if
it
cannot
have
any
other
sence
in
good
understanding
,
he
cannot
help
himself
now
by
an
Innuendo
,
which
is
in
it selfe
according
to
common
intendment
,
contrary
to
that
which
the
nature
of
the
words
in
themselves
do
purport
:
And
if
it
had
been
good
for
the
matter
,
yet
it
is
not
good
for
the
form
,
for
want
of
a
Traverse
,
for
without
the
Traverse
the
plea
is
not
answered
in
that
case
which
is
laid
to
the
charge
of
the
Defendant
.
But
Popham
and
Clench
held
strongly
to
the
contrary
,
and
that
this
Bar
is
good
in
matter
,
and
(
as
the
case
is
)
cannot
be
otherwise
,
and
that
the
form
also
is
good
enough
,
and
yet
the
two
Affirmatives
cannot
make
a
good
Issue
:
but
in
case
of
two
Affirmatives
,
a
Traverse
shall
not
be
,
but
where
the
Affi●matives
do
not
agree
in
one
.
As
if
the
Defendant
in
Trespasse
Intitles
himself
by
the
Feoffment
of
a
stranger
,
and
the
Plaintiff
reply
,
and
maintain
that
the
same
stranger
did
enfeoff
him
,
this
cannot
make
a
good
Issue
without
a
Traverse
of
the
Feoffment
alledged
to
be
made
to
the
Defendant
.
But
in
the
same
case
if
the
Plaintiff
saith
,
that
true
it
is
,
that
the
stranger
enfeoffed
the
Defend
an
t
,
but
this
was
to
the
use
of
the
Plaintiff
and
his
Heirs
,
there
no
Traverse
shall
be
on
the
Plaintiffs
part
,
because
as
to
the
matter
of
the
Feoffment
it
agrees
with
the
Defendant
,
in
which
case
it
shall
not
take
any
Traverse
,
but
there
the
Traverse
shall
come
on
the
Defendants
part
to
maintain
the
Feoffment
to
his
own
use
,
Absque
hoc
,
that
the
Feoffment
was
to
the
use
of
the
Plaintiff
,
for
now
that
which
the
Defendant
saith
,
(
albeit
it
be
in
the
Affirmative
)
yet
it
is
a
Traverse
to
that
which
the
Plaintiff
hath
alledged
,
and
therfore
he
needs
not
traverse
the
plea
:
And
so
a
diversity
where
the
Affirmative
is
,
to
traverse
that
which
is
alledged
by
the
other
party
,
and
where
not
,
for
in
one
case
the
conclusion
shall
be
with
a
Traverse
,
and
in
the
other
not
:
Then
in
this
case
when
the
Plaintiff
alledged
that
the
Defendant
spake
these
words
,
which
prima
facie
shall
be
intended
to
be
spoken
in
this
sence
,
as
the
Plaintiff
hath
alledged
,
although
no
Innuendo
had
been
in
the
case
,
for
if
it
shall
not
be
so
intended
without
the
Innuendo
,
the
Innuendo
will
not
help
it
,
yet
when
the
Defendant
hath
declared
the
circumstance
wherupon
these
words
were
spoken
,
and
then
the
speaking
of
them
therupon
,
now
he
hath
confessed
the
very
words
themselves
to
be
spoken
,
but
upon
the
circumstance
discovered
to
be
in
another
sence
then
prima
facie
,
they
are
to
be
taken
,
and
therfore
he
shall
not
take
a
Traverse
,
for
he
acknowledgeth
the
very
words
,
but
not
the
intendment
which
the
very
Law
prima
facie
presumes
upon
the
words
,
and
therfore
shall
not
take
a
Traverse
:
for
this
intendment
of
Law
being
answered
by
matter
expresly
in
the
plea
shall
never
be
traversed
,
as
in
the
case
put
of
a
Feoffment
,
prima
facie
,
it
shal
be
intended
to
be
to
the
use
of
the
Feoffee
,
yet
when
the
other
party
maintains
that
this
Feoffment
was
to
his
use
,
he
shall
not
take
a
Traverse
to
that
which
the
Law
intends
and
presumes
.
And
if
a
man
upon
speech
had
with
a
Hunter
,
saith
,
That
he
hath
murthered
all
the
Hares
within
7.
miles
of
his
house
,
and
another
answer
and
say
,
he
is
a
Murtherer
indeed
,
wherupon
the
Hunter
brings
an
Action
upon
the
Case
against
him
,
for
saying
,
that
the
Plaintiff
was
a
murtherer
,
the
Action
will
well
lye
.
Yet
when
the
other
shall
discover
the
communication
wherupon
the
words
were
spoken
,
this
shall
be
a
good
Bar
without
a
Traverse
yet
if
it
be
true
that
there
were
no
such
communication
between
the
parties
as
is
mentioned
in
the
Bar
,
the
Plaintiff
then
hath
good
cause
of
Action
,
and
therf●re
he
may
well
say
,
De
injuria
sua
propria
absque
tali
causa
,
and
this
being
sound
it
shall
be
against
the
Defendant
.
So
upon
speech
of
a
Butcher
who
had
killed
a
1000.
Oxen
in
a
year
,
and
one
hearing
it
will
say
,
that
he
is
a
notable
Murtherer
,
this
upon
the
matter
disclosed
is
not
actionable
.
And
it
shall
be
mischievous
by
a
Traverse
or
by
pleading
generally
not
guilty
,
to
put
such
speciall
matter
in
the
mouth
of
Lay-people
to
give
their
Verdict
upon
,
being
ignorant
,
and
therfore
easie
to
be
miscarried
in
the●r
judgment
,
and
therfore
it
shall
be
the
rather
admitted
by
speciall
pleading
to
be
put
to
the
judgment
of
the
barred
Judges
,
then
into
the
mouths
of
lay
Gents
.
And
here
when
Fletcher
speaking
of
the
order
to
be
taken
by
the
Councell
,
upon
the
Petition
said
,
that
the
Earl
would
obey
their
order
,
to
which
the
Defendant
answered
,
that
he
knew
not
what
the
Earl
would
do
,
the
said
Fletcher
said
therupon
,
that
he
was
a
Subject
,
and
what
was
the
intent
of
Fletcher
in
saying
so
?
no
other
,
but
that
because
he
was
a
Subject
,
therfore
he
ought
to
obey
;
and
if
it
be
so
to
be
understood
,
as
of
necessity
it
ought
,
(
or
else
they
were
not
spoken
by
Fletcher
to
any
purpose
,
which
cannot
be
intended
)
then
shall
the
words
following
(
being
spoken
therupon
by
the
Defendant
)
be
taken
to
be
spoken
in
answer
to
the
matter
of
the
Speeches
spoken
by
the
said
Fletcher
,
and
this
,
is
that
he
was
sorry
,
and
it
was
his
grief
that
he
must
be
so
subject
as
to
be
bound
therby
to
obey
their
Order
:
as
if
a
man
saith
to
another
,
that
he
was
sorry
that
he
was
so
subject
,
that
he
must
obey
a
Iudgment
against
him
in
the
Queens
Court
,
this
is
no
cause
of
Action
,
for
this
tends
but
to
his
subjection
to
the
Law
,
or
good
order
,
or
the
like
,
which
do
not
give
cause
of
Action
:
As
if
one
saith
of
another
,
that
he
is
of
the
Temple
,
who
alwaies
rebell
against
the
Governours
of
the
said
house
,
then
saith
another
to
him
,
Will
you
then
say
and
maintain
that
he
is
a
Rebell
,
yes
,
sayes
one
of
the
other
,
I
will
do
so
;
If
an
Action
be
brought
for
the
last
words
,
the
Action
will
lye
,
but
if
the
other
discover
the
circumstances
of
the
Speech
in
the
Bar
,
wherupon
it
was
spoken
,
the
Action
will
not
lye
:
And
this
the
Defendant
may
well
do
without
traversing
that
which
is
alledged
,
because
he
acknowledgeth
it
,
although
in
another
sense
,
then
the
Law
Prima
Facie
imports
upon
the
Declaration
.
And
if
in
Speech
between
two
,
one
of
them
saith
of
a
stranger
,
that
he
hath
treacherously
betrayed
his
Friend
in
revealing
all
his
secrets
,
and
councell
,
wherupon
the
other
then
saith
,
that
he
hath
done
as
a
Traytor
therin
,
and
the
other
saith
to
him
again
,
he
is
a
Traytor
,
and
he
answering
to
it
,
saith
,
true
,
he
is
a
Traytor
;
Now
if
the
stranger
brings
an
Action
of
the
Case
against
him
,
for
saying
of
these
last
words
,
Prima
Facie
,
it
imports
good
cause
of
Action
,
without
any
Innuendo
,
as
that
he
intended
therby
that
he
was
a
Traytor
to
the
Queen
,
because
the
words
in
common
intendment
have
such
a
sence
,
yet
upon
the
matter
disclosed
by
way
of
Bar
,
with
the
circumstances
how
they
were
spoken
,
the
Plaintiff
shall
be
barred
,
if
he
cannot
maintain
that
they
were
spoken
without
such
a
cause
,
which
alter
the
intendment
that
the
Law
hath
otherwise
of
the
words
.
And
Gawdy
agreed
also
,
that
in
such
cases
the
Defendant
may
plead
the
generall
Issue
,
and
upon
the
matter
also
the
Jury
ought
to
find
him
not
guilty
.
But
Popham
and
Clench
sayd
,
that
this
was
a
dangerous
matter
to
be
put
in
the
mouthes
of
the
Lay
Gents
,
as
hath
been
said
before
,
and
therfore
to
put
it
to
the
Iudgment
of
the
Law
by
pleading
.
And
for
the
exception
they
ought
to
have
shewn
here
,
where
,
by
whom
,
and
against
whom
the
Petition
was
delivered
,
to
this
they
said
,
that
the
exception
was
to
no
purpose
,
for
this
was
but
a
conveyance
to
the
Speech
used
,
which
Speech
was
the
substance
of
the
Bar
;
and
in
this
they
put
the
case
of
the
Lord
Cromwell
which
was
in
this
Court
,
22
Eliz.
Rot.
752.
In
an
Action
upon
the
Statute
of
Scandalum
Magnatum
,
by
him
brought
against
Thomas
Dye
Clark
,
for
saying
to
the
Lord
Cromwel
,
It
is
no
news
though
you
like
not
of
me
,
for
you
like
of
those
that
maintain
Sedition
against
the
Queens
proceedings
;
in
which
the
Defendant
said
,
that
he
was
Vicar
of
North
Linham
,
in
the
County
of
Norf.
and
that
the
Plaintff
mentioned
one
Vincent
Goodwyn
Clark
at
such
a
time
,
and
one
Iohn
Trendle
at
such
another
time
,
neither
of
them
being
licenced
to
preach
in
the
said
Church
,
against
the
will
of
the
said
Defendant
,
and
shew
how
they
severally
preached
there
in
their
Sermons
(
and
shew
certainly
in
what
point
)
Seditious
Doctrine
against
the
Laws
of
the
Church
,
as
against
the
Crosse
used
in
Baptisme
,
and
the
wearing
of
the
Surplice
,
and
that
afterwards
in
speech
therupon
between
the
said
Plaintiff
and
him
,
the
Plaintiff
said
to
the
Defendant
,
That
the
Defendant
was
a
false
Knave
,
and
said
in
English
words
,
that
he
liked
not
of
the
Defendant
;
wherupon
the
Defendant
said
the
words
comprised
in
the
Declaration
Innuendo
,
That
he
liked
of
the
said
Goodwyn
and
Trendle
who
maintain
Sedition
(
Innuendo
)
seditious
Doctrine
against
the
Queens
proceedings
.
Innuendo
predict
Leges
&
Stat.
Eccl●siae
hujus
regni
Angl.
&c.
And
the
Plaintiff
was
put
to
answer
,
Scilicet
de
injuria
sua
propria
absque
tali
causa
,
&c.
And
note
in
this
case
,
the
Defendant
would
first
have
justified
for
the
matter
preached
by
one
,
and
it
was
not
allowed
by
the
Court
,
but
he
was
put
to
speak
to
both
,
or
otherwise
it
had
not
been
good
because
his
speeches
were
in
the
plurall
number
,
to
wit
,
That
he
liked
of
those
,
which
refers
to
more
then
to
one
.
And
it
was
said
in
this
case
,
that
the
word
(
Subject
)
might
have
severall
significations
according
to
the
circumstance
wherupon
it
is
spoken
:
As
Subiect
generally
without
more
,
is
to
be
intended
of
the
Queen
,
but
according
to
the
circumstance
,
it
may
be
said
,
Subject
of
England
,
or
Subject
of
Ireland
,
or
Subject
to
the
Law
,
or
subject
to
any
other
authority
,
or
power
set
over
him
,
or
subject
to
his
Affections
.
And
if
a
man
saith
of
another
,
that
he
is
a
Subject
,
and
therfore
he
ought
to
serve
the
Queen
in
her
Warrs
,
and
he
answers
,
that
he
is
sorry
for
that
,
and
is
grieved
for
it
,
no
Action
wil
lye
for
this
,
because
the
grievance
refers
to
service
,
which
is
to
be
done
,
and
not
to
his
Subjection
as
a
Subject
.
Dillon
versus
Fraine
.
9.
IN
Trespasse
brought
by
William
Dillon
Esquire
,
against
John
Fraine
,
See
this
in
Cook
lib.
1.
120.
b●
the
name
of
Chudleighs
case
.
for
breaking
of
his
Close
at
Tavestock
in
the
County
of
Devon
,
called
Seden
,
upon
not
guilty
,
and
a
speciall
Verdict
,
the
case
appeared
to
be
this
,
to
wit
,
that
Sir
Richard
Chudleigh
Knight
,
was
seised
in
his
Demesne
as
of
Fee
,
of
the
Mannor
of
Hescot
,
with
the
Appurtenances
,
in
the
County
of
Devon
,
of
which
the
said
Close
was
parcel
,
and
so
seised
,
26
April
,
3
,
&
4
Phil.
&
Mar.
by
his
Deed
of
Feoffment
,
of
the
same
date
enfeoffed
Sir
Tho.
Saintleger
Knight
,
and
others
,
and
their
Heirs
,
of
the
said
Mannor
,
to
the
use
of
the
said
Sir
Richard
Chudleigh
and
his
Heirs
,
of
the
body
of
the
said
Elizabeth
,
then
the
wife
of
Richard
Bainfield
Esquire
,
lawfully
begotten
,
and
for
default
of
such
Issue
,
then
to
the
use
of
the
said
Sir
Richard
Chudleigh
,
and
of
his
Heirs
of
the
bodies
of
other
wives
,
of
other
persons
lawfully
begotten
:
And
for
default
of
such
Heirs
,
then
to
the
use
of
the
performance
of
the
Will
of
the
said
Sir
Richard
Chudleigh
for
10.
years
after
his
decease
,
and
after
the
said
Term
finished
,
then
to
the
use
of
the
said
Sir
John
Saintleger
and
his
Co-feoffees
and
their
Heirs
,
during
the
life
of
Christopher
Chudleigh
,
Son
and
Heir
apparant
of
the
said
Sir
Richard
,
and
after
the
death
of
the
said
Christopher
,
then
to
the
use
of
the
first
Issue
Male
of
the
body
of
the
said
Christopher
,
and
to
the
Heirs
Males
of
the
body
of
this
first
Issue
Male
,
and
for
default
of
such
Issue
,
to
the
second
Issue
Male
of
the
body
of
the
said
Christopher
,
&
to
the
Heirs
Males
of
the
body
of
this
second
Issue
Male
,
and
so
to
the
tenth
Issue
Male
:
And
for
default
of
such
Issue
,
then
to
the
use
of
Thomas
Chudleigh
,
another
Son
of
the
said
Sir
Richard
,
and
of
the
Heirs
of
his
body
lawfully
begotten
;
And
for
default
of
such
Issue
,
to
the
use
of
Oliver
Chudleigh
another
Son
of
the
said
Sir
Richard
,
and
of
the
Heirs
of
his
body
lawfully
begotten
:
And
for
default
of
such
Issue
,
to
the
use
of
Nicholas
Chudleigh
another
Son
of
the
said
Sir
Richard
,
and
of
the
Heirs
of
his
body
lawfully
begotten
,
and
for
default
of
such
Issue
,
to
the
right
Heirs
of
the
said
Sir
Richard
Chudleigh
for
ever
;
wherby
they
were
seised
accordingly
,
after
which
the
17th
.
of
Novemb.
5
,
&
6.
Phil.
&
Mar.
the
said
Sir
Richard
died
without
any
Heir
of
the
body
of
any
of
the
wives
before
mentioned
:
And
after
that
the
said
Christopher
took
to
wife
one
Christian
Strecheley
,
after
which
,
to
wit
,
the
14th
.
day
of
August
,
1
Eliz.
the
said
Sir
John
Saintleger
and
the
other
Feoffees
,
by
their
Deed
of
the
same
date
,
enfeoffed
the
said
Christopher
of
the
said
Mannor
,
to
have
and
to
hold
to
him
and
his
Heirs
for
ever
,
to
the
use
of
the
said
Christopher
and
his
Heirs
,
the
said
Oliver
Chudleigh
then
being
living
,
after
which
,
to
wit
,
the
20th
.
day
of
September
,
3
Eliz
,
the
said
Christopher
had
Issue
of
his
body
lawfully
begotten
,
one
Strechly
Chudleigh
his
first
Issue
Male
:
And
after
this
,
to
wit
,
the
30.
day
of
March
,
5
Eliz.
the
said
Christopher
had
Issue
of
his
body
lawfully
begotten
,
one
John
Chudleigh
his
second
Issue
Male
,
after
which
,
to
wit
,
the
first
day
of
July
,
6
Eliz.
the
said
Christopher
by
his
Deed
indented
of
the
same
date
,
and
inrolled
within
six
months
,
according
to
the
Statute
bargained
and
sold
the
said
Mannor
to
Sir
John
Chichester
Knight
,
and
to
his
Heirs
,
and
in
the
interint
also
between
the
date
of
this
Deed
,
and
in
the
inrolement
therof
,
to
wit
,
the
6th
.
day
of
July
,
in
the
same
6th
.
year
,
by
his
Deed
of
the
same
date
,
the
said
Christopher
enfeoffed
the
said
Sir
John
Chichester
and
his
Heirs
of
the
said
Mannor
,
and
by
the
same
Deed
warranted
it
for
him
and
his
Heirs
,
to
the
said
Sir
John
Chichester
and
his
Heirs
,
wherupon
the
said
Sir
John
Chichester
entred
into
the
said
Mannor
,
after
which
,
to
wit
,
the
first
day
of
October
,
12
Eliz.
the
said
Christopher
died
,
after
which
the
7th
.
day
of
November
,
13
Eliz.
the
said
Stretchley
Chudleigh
died
without
Issue
of
his
body
:
And
after
the
death
of
the
said
Sir
Richard
Chudleigh
,
to
wit
,
the
6th
.
day
of
September
,
7
Eliz.
the
said
Sir
John
Chichester
enfeoffed
one
Philip
Chichester
and
his
Heirs
of
the
said
Mannor
,
to
the
use
of
the
said
Philip
and
his
Heirs
.
And
the
said
Close
being
Copyhold
and
Customary
Land
of
the
said
Mannor
demisable
by
the
Lord
of
the
same
Mannor
,
or
his
Steward
,
for
the
time
being
,
for
life
or
lives
by
Copy
of
Court-roll
,
according
to
the
custom
of
the
said
Mannor
.
The
said
Philip
at
a
Court
holden
at
the
said
Mannor
,
for
the
said
Mannor
,
the
8th
.
day
of
December
,
15
Eliz.
by
Copy
of
Court-roll
granted
the
said
Close
to
the
said
John
Frain
,
for
Term
of
his
life
,
according
to
the
custom
of
the
said
Mannor
,
after
which
,
to
wit
,
the
11th
.
day
of
March
,
28
Eliz.
the
said
John
Chudleigh
being
now
Heir
to
the
said
Christopher
,
enfeoffed
the
said
William
Dillon
of
the
said
Mannor
,
to
have
and
to
hold
to
him
and
his
Heirs
,
to
the
use
of
the
said
William
and
his
Heirs
for
ever
,
wherby
he
entred
,
and
was
seised
,
untill
the
said
John
Fraine
entred
into
the
said
Close
upon
him
,
the
8th
.
day
of
February
,
30
Eliz.
upon
which
entry
of
the
said
Fraine
this
Action
is
brought
.
And
for
difficulty
of
the
case
it
was
adjourned
into
the
Exchequer
Chamber
before
all
the
Iustices
and
Barons
of
the
Exchequer
;
And
there
it
was
agreed
by
all
,
that
a
Warranty
descending
upon
an
Infant
shall
not
bind
him
,
in
case
that
the
entry
of
the
Infant
be
lawfull
into
the
Land
,
to
which
the
Warranty
is
united
:
But
the
Infant
ought
in
such
a
case
to
look
well
that
he
do
not
suffer
a
descent
of
the
Land
after
his
full
age
,
before
he
hath
made
his
re-entry
for
then
the
Warranty
,
when
he
is
to
have
an
Action
for
the
Land
,
shall
bind
him
.
And
they
agreed
also
that
a
Copyhold
granted
by
a
Disseisor
,
or
any
other
who
hath
the
Mannor
of
which
it
is
parcel
by
wrong
,
shall
be
avoided
by
the
Disseisee
,
or
any
other
who
hath
right
to
the
Mannor
by
his
entry
or
recovery
of
the
Mannor
.
And
so
by
Popham
it
was
agreed
by
the
Iustices
in
the
case
of
the
Manner
of
Hasselbury
Brian
,
in
the
County
of
Dorset
,
between
Henry
late
Earl
of
Arundell
,
and
Henry
late
Earl
of
Northumberland
:
but
then
he
said
,
that
it
was
agreed
,
that
admittance
upon
surrenders
of
Copyholders
in
Fee
,
to
the
use
of
another
,
or
if
an
Heir
in
case
of
a
Descent
of
a
Copyhold
were
good
,
being
made
by
a
Disseisor
of
a
Mannor
,
or
any
other
who
hath
it
by
Tort
,
because
these
are
acts
of
necessity
,
and
for
the
benefit
of
a
stranger
,
to
wit
,
of
him
who
is
to
have
the
Land
by
the
surrender
,
or
of
the
Heir
:
And
also
Grants
made
by
Copy
by
the
Feoffee
,
upon
condition
of
a
Mannor
,
before
the
Condition
broken
,
are
good
,
because
he
was
lawfull
Dominus
pro
tempore
.
And
for
the
matter
upon
the
Statute
of
27
H.
8.
what
shall
become
of
this
future
use
●imited
to
the
first
,
second
,
and
other
Issues
Males
not
in
Esse
at
the
time
of
the
Feoffment
.
Ewens
,
Owen
,
Bateman
,
and
Fennor
said
,
That
an
Use
at
Common
Law
is
no
other
then
a
confidence
which
one
person
puts
in
another
,
for
a
confidence
cannot
be
in
Land
,
or
other
dead
thing
,
but
ought
alwaies
to
be
in
such
a
thing
which
hath
understanding
of
the
trust
put
in
him
,
which
cannot
be
no
other
then
such
a
one
who
h●th
reason
and
understanding
to
perform
what
the
other
hath
committed
to
him
,
which
confidence
shall
bind
but
in
privity
,
and
yet
the
confidence
is
in
respect
of
the
Land
,
but
every
one
who
hath
the
Land
is
not
bound
to
the
confidence
,
but
in
privity
shall
be
said
to
be
in
the
Heir
,
and
the
Feoffee
who
hath
knowledge
of
the
confidence
,
and
in
him
who
cometh
to
the
Land
by
Feoff●ent
without
consideration
,
albeit
he
hath
no
knowledge
therof
,
and
yet
every
Feoffee
is
not
bound
although
he
hath
knowledge
of
the
confidence
,
as
an
Alien
Person
,
Attaint
,
and
the
like
,
not
the
King
,
he
shall
not
be
seised
to
anothers
use
,
because
he
is
not
compellable
to
perform
the
confidence
;
nor
a
Corporation
,
because
it
is
a
dead
body
,
although
it
consist
of
naturall
persons
:
and
in
this
dead
body
a
confidence
cannot
be
put
,
but
in
bodies
naturall
.
And
this
was
the
Common
Law
before
the
Statute
of
27
H.
8.
Then
the
Letter
of
the
Statute
is
not
to
execute
any
Vse
before
that
it
hapneth
to
be
an
Vse
in
Esse
;
for
the
words
are
,
Where
any
person
is
seised
to
the
use
of
any
other
person
,
that
in
such
a
case
,
he
who
hath
the
Vse
shall
have
the
same
Estate
in
the
Land
which
he
had
before
in
the
Vse
;
Ergo
,
by
the
very
letter
of
the
Law
he
ought
to
have
an
Estate
in
the
Vse
,
and
there
ought
to
be
a
person
to
have
the
Vse
before
the
Statute
intends
to
execute
any
possession
to
the
Vse
,
for
the
words
are
expresse
,
that
in
every
such
case
he
shall
have
it
,
therfore
not
another
:
And
therfore
the
Statute
had
purpose
to
execute
the
Vses
in
possession
,
Reversion
,
or
Remainder
,
presently
upon
the
conveyance
made
to
the
Vses
:
But
for
the
future
Vses
which
were
to
be
raised
at
a
time
to
come
upon
any
contingent
,
as
to
the
Infants
here
,
not
being
then
born
,
the
Statute
never
intended
to
execute
such
Vses
untill
they
happen
to
have
their
beeing
,
and
in
the
mean
time
to
leave
them
as
they
were
at
Common
Law
,
without
medling
with
,
or
altering
of
them
in
any
manner
untill
this
time
,
and
if
before
this
time
,
the
root
out
of
which
these
contingent
Vses
ought
to
spring
be
defeated
,
the
Vse
for
this
is
utterly
destroyed
,
and
shall
never
afterwards
have
his
being
:
as
here
by
the
Feoffment
made
by
the
said
Sir
John
Saintleger
and
his
Co-feoffees
,
who
then
were
but
as
Tenements
pur
auter
vie
,
to
wit
,
for
the
life
of
Christopher
,
and
which
was
a
forfeiture
of
their
Estate
,
and
for
which
Oliver
Chudleigh
might
have
entred
,
it
being
before
that
the
said
Strechley
or
John
Chudleigh
were
born
,
the
privity
of
them
from
Estate
.
being
the
root
out
of
which
this
future
use
ought
to
have
risen
is
gone
and
destroyed
,
and
therfore
the
Contingent
Vses
utterly
therby
overthrown
.
As
if
before
the
Statute
of
27
H.
8.
Tenant
for
life
had
been
,
the
remainder
over
in
Fee
to
an
Vse
:
If
the
Tenant
for
life
had
made
a
Feoffment
in
Fee
,
and
he
in
the
Remainder
had
released
to
the
Feoffee
,
the
Vse
had
been
gone
for
ever
,
so
in
all
these
cases
of
contingent
Vses
at
this
day
,
for
he
who
cometh
to
the
possession
of
Land
by
Disseisin
,
or
wrong
done
to
the
Possessor
,
who
is
seised
to
anothers
use
,
shall
never
be
seised
to
anothers
use
.
And
the
case
being
so
,
that
it
is
out
of
the
letter
of
the
Statute
to
execute
such
contingent
Vses
,
it
is
more
strong
for
them
out
of
the
meaning
of
the
Statute
to
execute
,
then
before
they
happen
to
be
in
Esse
:
for
this
shall
be
to
make
all
mischiefs
comprehended
in
the
Preamble
of
this
Statute
,
and
against
which
the
Statute
intended
to
provide
sufficient
remedy
in
a
worse
mischief
then
they
were
before
the
making
of
the
same
Statute
,
and
this
shall
be
but
a
perverse
instruction
of
the
Statute
.
And
they
said
,
that
the
subtleties
used
from
time
to
time
by
means
of
those
Vses
,
to
the
great
deceit
and
trouble
of
the
people
,
were
the
cause
of
the
making
of
this
Statute
,
27
H.
8.
and
by
all
the
Statutes
formerly
made
touching
Vses
,
it
appeareth
that
they
were
all
taken
to
be
grounded
upon
fraudulent
and
crafty
devises
,
and
therfore
this
Law
had
no
great
purpose
to
favour
them
,
but
a
Fortiorari
,
not
to
make
them
in
worse
case
by
means
of
the
Statute
then
they
were
before
,
and
therfore
it
shall
not
be
taken
that
the
Vse
is
executed
by
the
Statute
,
which
stands
upon
a
contingency
,
of
which
a
greater
mischief
will
ensue
,
then
there
was
in
such
a
case
before
the
Statute
,
and
therfore
by
the
Feoffment
made
in
the
interim
,
before
the
birth
of
the
Infants
,
which
otherwise
ought
to
have
preserved
the
Vse
,
this
Vse
was
utterly
destroyed
;
and
although
the
Feoffee
of
Christopher
had
notice
of
the
Vse
,
yet
this
doth
not
now
help
in
the
case
,
because
the
Feoffment
did
wrong
to
the
Estate
first
setled
,
which
was
subject
to
the
Vse
,
and
extinct
in
the
same
possibility
which
had
been
otherwise
in
the
Feoffees
to
have
given
livelyhood
to
the
said
Contingent
Vse
:
And
therfore
the
Iudgment
by
them
ought
to
be
,
that
the
Plaintiff
shall
be
barred
.
Walmesley
,
That
the
great
mischief
which
was
at
Common
Law
upon
these
Feoffments
to
Uses
,
was
,
that
none
could
know
upon
the
occupation
of
the
Land
,
who
was
true
Owner
of
the
Land
,
for
Cestay
que
Vse
was
the
Pernor
of
the
Profits
,
but
in
whom
the
Freehold
or
Inheritance
of
the
Land
was
,
there
were
not
many
which
knew
,
wherby
great
mischief
came
to
the
assurances
which
men
had
of
Land
which
they
purchased
,
and
by
it
men
knew
not
against
whom
to
bring
their
Actions
to
recover
their
Rights
,
and
by
it
Wives
lost
their
Dowers
,
Husbands
their
Tenancy
by
the
Curtesie
,
Lords
their
Escheats
,
Wardships
,
and
the
like
.
And
this
mischief
hapned
by
reason
that
one
had
the
profit
,
and
another
the
estate
of
the
Land
:
And
the
Statute
was
made
to
put
the
Land
and
the
Estate
quite
out
of
the
Feoffee
,
who
before
did
not
meddle
with
the
Land
to
Cestay
que
Use
,
who
before
had
but
the
occupation
and
profits
of
the
Land
,
and
to
this
intent
the
letter
of
the
Law
serves
very
well
,
which
sayes
that
the
Estate
of
the
Feoffee
shall
be
cleerly
in
Cestuy
que
Use
,
and
therfore
nothing
by
the
intent
and
letter
of
the
Law
is
now
to
remain
in
the
Feoffee
,
no
more
then
a
Scintilla
juris
nemor'd
in
Brents
Case
in
my
Lord
Dyer
.
Eliz.
and
the
whole
Estate
in
the
interim
untill
the
contingent
happen
shall
be
in
them
who
have
their
Vses
in
Esse
,
and
when
the
Contingent
happen
,
the
Statute
gives
place
to
this
Contingent
Vse
,
and
by
the
execution
therof
comes
between
the
Estates
before
executed
,
and
as
out
of
these
by
the
Statute
,
but
nothing
is
now
after
the
Statute
in
the
Feoffees
,
for
the
purpose
of
the
Statute
,
was
(
as
I
have
said
)
to
take
away
all
from
the
Feoffee
,
for
all
was
devested
from
him
,
because
that
betwixt
the
Feoffor
,
&
the
Feoffee
was
all
the
fraud
before
the
Statute
,
and
the
very
letter
of
the
Statute
is
to
extinguish
and
extirpate
the
assurances
fraudulently
made
,
which
was
alwaies
by
reason
of
assurances
made
between
the
Estate
of
the
Land
in
one
,
and
the
possession
therof
in
another
,
and
to
cause
that
now
that
the
Estate
shall
be
to
the
use
,
where
the
occupation
was
before
:
And
this
Statute
was
not
made
to
extinguish
or
discredit
Vses
,
but
to
advance
them
,
as
by
bringing
the
very
Estate
in
possession
to
the
Vse
,
and
by
it
the
trust
now
taken
from
all
others
who
were
trusted
with
it
before
,
so
the
Statute
doth
not
condemn
the
uses
,
but
the
fraud
which
was
by
reason
of
them
before
.
And
the
Statute
being
,
that
the
Estate
,
Right
,
and
Title
of
the
Feoffees
shall
go
to
the
uses
,
therfore
nothing
remaineth
in
the
Feoffees
,
but
all
by
authority
of
Parliament
adjudged
to
be
in
Cestay
que
use
,
which
is
the
highest
Iudgment
that
can
be
given
in
any
Court
,
and
the
words
(
Stand
and
be
seised
at
any
time
)
refer
as
well
to
the
future
,
as
present
uses
,
and
the
Statute
intended
as
well
to
help
the
uses
which
shall
be
upon
any
Contingent
,
as
those
which
are
at
present
,
for
a
future
or
contingent
Vse
is
to
be
said
an
Vse
,
according
to
its
nature
or
quality
,
and
it
shall
be
executed
according
to
its
quality
when
it
happen
.
And
the
words
are
,
that
the
Estate
which
was
in
the
Feoffee
shall
be
in
Cestay
que
use
and
not
the
Estate
which
is
,
and
therfore
when
the
use
hapneth
to
be
in
an
instant
,
the
Estate
which
at
the
first
Livery
was
in
the
Feoffee
,
to
this
use
shall
now
be
executed
in
possession
to
this
contingent
use
,
albeit
it self
was
altogether
executed
(
as
I
said
before
)
in
the
Vses
which
were
in
Esse
,
and
if
so
,
it
followeth
that
nothing
which
is
done
in
the
mean
time
by
the
Feoffee
or
can
be
done
by
any
other
,
can
prejudice
or
hurt
the
execution
of
this
Vse
in
contingency
when
the
contingency
happen
.
And
for
the
case
of
Brook
,
30
H.
8.
it
is
plain
in
paint
,
which
is
this
.
A
Covenant
with
B.
that
if
B.
enfeoff
him
of
three
acres
of
Land
in
D.
that
then
the
said
A.
and
his
Heirs
,
and
all
others
seised
of
such
Lands
shall
stand
therof
seised
to
the
use
of
the
said
B.
and
his
Heirs
,
after
which
A
,
enfeoffed
a
stranger
of
this
Land
,
after
which
B.
enfeoffed
the
said
A
:
of
the
said
three
acres
,
now
the
use
shall
be
to
the
said
B.
and
his
Heirs
of
the
said
other
Land
,
for
the
Statute
so
binds
the
Land
to
this
Contingency
when
it
happens
,
that
by
no
means
it
can
be
defeated
,
and
this
is
the
cause
that
Leases
made
by
force
of
Provisoes
comprised
in
assurances
are
good
,
and
cannot
be
avoided
,
for
the
Interests
to
these
Leases
is
wrought
by
the
first
Livery
and
the
Statute
,
atd
therfore
upon
the
matter
,
I
conceive
,
that
Judgment
ought
to
be
given
for
the
Plaintiff
.
Gawdy
conceived
that
it
is
executed
by
the
intent
,
but
not
by
the
letter
of
the
Statute
,
for
the
purpose
was
to
remove
all
the
Estate
from
the
Feoffee
,
and
to
put
it
in
Cestay
que
use
wholly
,
to
wit
,
in
possessions
,
to
the
Vses
which
were
in
Esse
,
and
in
aleyance
as
to
the
Vses
which
were
to
come
and
contingent
;
and
now
by
the
same
Statute
the
contingency
of
the
possession
shal
go
in
licence
of
the
contingent
Vse
,
and
now
an
Vse
limited
to
one
for
life
,
with
Remainder
over
to
the
Heirs
of
the
body
of
I.
S.
or
to
the
first
Son
of
I.
S.
shall
be
in
the
same
manner
as
if
Land
at
this
day
had
been
letten
to
one
for
life
,
with
Remainder
over
to
the
Heirs
of
the
body
of
I.
S.
or
to
the
first
Son
of
I.
S.
and
not
otherwise
,
for
the
quality
which
he
had
in
the
Vse
,
the
same
(
by
the
very
letter
of
the
Statute
)
he
shall
now
have
in
the
possession
and
Estate
of
the
Land
,
and
the
Statute
is
not
to
undo
any
Vse
,
but
to
transfer
an
Estate
in
the
Land
to
the
Vse
.
But
he
said
,
That
by
the
Feoffment
made
to
Christopher
,
the
Contingent
remainder
which
was
devested
in
Stretchly
and
Iohn
Chudleigh
depending
upon
the
Estate
which
Sir
Iohn
Saintleger
and
his
Co-feoffees
had
for
the
life
of
Christopher
,
is
utterly
gone
and
destroyed
in
the
same
manner
,
as
where
a
Lease
is
made
for
life
,
the
remainder
to
the
right
Heirs
of
I.
S.
or
to
the
Heirs
of
the
body
of
I
,
S.
if
the
Tenant
for
life
dies
,
or
aliens
,
wherby
he
makes
a
forfeiture
,
and
determines
his
Estate
in
the
life
of
the
said
I.
S.
his
Heir
shall
never
have
the
Land
by
the
remainder
afterwards
,
because
he
was
not
in
Esse
,
as
an
Heir
at
the
time
when
the
Estate
ended
,
for
there
cannot
be
a
remainder
without
a
particular
Estate
,
neither
can
it
stand
or
be
preserved
.
And
as
in
this
case
without
a
particular
Estate
of
Free-hold
,
a
Remainder
cannot
be
,
no
more
in
the
case
now
in
question
being
now
become
by
means
of
the
Statute
,
as
if
it
had
been
an
Estate
executed
in
possession
;
and
for
this
cause
only
he
conceived
,
that
Judgment
ought
to
be
given
against
the
Plaintiff
.
And
Clench
agreed
with
this
opinion
in
all
,
and
both
of
them
agreed
,
if
there
be
none
to
take
the
Vse
according
to
the
limitation
at
the
time
,
when
it
falleth
to
be
in
Possessions
,
that
he
shall
never
take
it
,
although
it
happen
to
be
in
Esse
afterwards
.
Clark
said
,
that
Uses
were
not
at
Common
Law
,
but
grew
by
sufferance
of
time
,
as
appeareth
by
the
words
of
the
Statute
it self
,
and
the
mischief
and
subtlety
which
was
before
this
Statute
was
not
in
the
Fine
,
Feoffment
,
or
other
Assurances
of
Land
,
but
by
means
o●
the
Uses
limitted
therupon
,
contrary
to
that
which
was
used
in
the
ancient
course
o●
the
Common
Law
,
,
and
the
Statute
was
made
to
reduce
the
Common
Law
to
its
ancient
force
and
course
,
and
therfore
ought
to
conceive
such
a
construction
,
as
may
agree
with
the
purpose
of
the
makers
of
the
Statute
,
and
therfore
the
best
construction
of
this
Statute
is
,
not
to
execute
other
manner
of
Uses
,
but
in
some
cases
to
extinguish
them
,
as
where
it
is
such
,
as
will
make
the
case
in
as
ill
,
or
worse
condition
then
it
was
before
the
making
of
the
Statute
.
It
hath
been
agreed
by
all
,
that
the
Statute
doth
not
execute
any
Use
which
was
suspended
at
the
time
of
the
making
of
the
Statute
,
as
by
reason
of
a
Disseisor
,
or
the
like
hapning
before
;
and
if
it
doth
not
execute
the
Use
which
is
in
suspence
for
the
right
which
he
had
in
the
Use
,
how
can
it
execute
the
Use
which
hath
not
any
being
?
for
in
such
cases
,
of
Infants
not
born
as
here
,
untill
they
be
in
Rerum
natura
,
the
Use
cannot
have
any
being
.
And
in
the
same
manner
in
all
cases
where
the
Vse
is
not
to
rise
but
upon
a
future
contingent
:
And
what
good
shall
this
Statute
do
,
if
these
leaping
Vses
shall
arise
without
being
impeached
?
Nothing
,
but
alwaies
nourish
a
Viper
in
the
bosom
of
the
Law
,
which
is
quite
against
the
intent
of
the
makers
of
the
Statute
.
The
Law
was
made
to
preserve
peace
amongst
the
Subjects
,
and
to
assure
their
Possessions
,
as
many
other
Statutes
did
,
that
were
made
about
this
time
,
as
the
Statutes
of
Fines
,
Wills
,
and
others
.
But
if
the
exposition
of
this
Statute
shall
be
as
the
other
side
hath
taken
it
,
it
will
make
the
confusion
which
will
happen
therupon
intollerable
,
and
much
worse
then
it
was
before
the
Statute
was
made
and
(
as
Walsh
said
)
if
no
assurance
can
be
made
to
be
forcible
against
such
a
contingent
Use
,
this
will
make
it
worse
then
it
was
before
.
And
hesaid
,
that
it
was
not
to
be
compared
to
the
interest
of
Lands
to
begin
at
a
time
to
come
,
nor
to
the
case
where
a
man
devise
that
his
Land
shal
be
sold
,
in
which
case
,
be
shall
not
be
impeached
by
any
manner
of
assurance
,
to
be
made
in
the
mean
time
by
the
Heir
,
and
the
reason
is
,
because
the
Vendee
takes
by
the
Will
under
the
Estate
of
the
Heir
,
and
not
by
the
sale
,
and
therfore
upon
the
matter
,
he
conceived
that
the
Plaintiff
ought
to
be
barred
.
Periam
said
,
that
Uses
were
at
Common
Law
,
and
to
prove
it
,
he
vouched
24
H.
8.
abridged
in
Brook
.
And
he
said
,
that
there
have
been
alwaies
trusts
,
Ergo
,
Uses
ab
initio
,
but
they
had
not
such
estimation
at
the
beginning
as
they
have
had
by
continuance
of
time
,
and
so
it
was
of
Copyholds
:
And
these
Uses
at
Common
Law
bind
but
in
privity
according
to
the
trust
,
but
do
not
bind
in
the
possession
of
him
who
cometh
to
the
Land
in
the
Post
:
But
now
by
the
Statute
all
trusts
are
gone
,
and
the
Estate
of
the
Land
it self
transferred
to
the
Use
,
and
now
the
Use
guides
the
Land
,
and
not
the
Land
the
Use
.
And
the
Statute
did
not
intend
to
destroy
any
Use
,
but
to
bring
it
back
to
the
Possession
,
according
to
the
course
of
the
common
Law
,
and
to
avoid
the
fraud
.
And
as
before
the
Statute
the
Use
it self
in
such
a
case
of
Contingency
was
in
obeyance
for
the
time
,
so
now
the
Estate
it self
is
in
obeyance
by
the
Statute
,
which
wills
,
that
he
shall
now
have
an
Estate
in
the
Land
it self
,
of
such
a
quality
as
he
had
before
in
the
Use
;
for
the
Statute
puts
all
cleerly
out
of
the
Feoffees
,
and
it
is
not
inconvenient
to
have
a
Possession
so
to
a
Contingent
Use
,
and
if
it
had
not
been
in
the
words
of
the
Statute
,
yet
(
as
hath
been
sayd
)
it
shall
be
so
taken
by
the
intent
of
the
Statute
;
for
it
never
was
the
intent
of
the
makers
of
the
Statute
to
do
wrong
to
any
by
means
of
the
Statute
.
And
therfore
he
put
the
case
of
Cramner
,
who
made
a
Feoffment
to
the
use
of
himself
for
his
life
,
and
after
his
decease
to
the
use
of
his
Executors
for
years
,
this
Estate
for
years
is
not
now
vested
in
any
,
because
a
man
cannot
have
an
Executor
during
his
life
,
and
yet
it
remains
as
in
the
custody
of
the
Law
,
untill
there
are
Executors
to
take
it
.
And
he
said
,
that
the
case
of
the
Lady
Bray
was
as
strong
to
prove
the
case
in
question
,
to
be
,
at
he
takes
it
,
which
cannot
be
answered
,
for
if
she
had
married
with
the
Lord
Bray
by
the
assent
of
the
Councell
assigned
for
it
,
according
to
the
agreement
,
she
had
taken
an
Estate
by
the
Contingency
,
but
in
as
much
as
she
did
not
do
it
,
it
was
otherwise
.
And
we
are
to
consider
well
,
what
we
do
in
this
case
,
it
is
a
Tree
,
the
branches
wherof
over-shadow
all
the
Possessions
of
the
Realm
in
effect
,
for
the
Estates
and
Leases
in
manner
of
all
stand
upon
those
assurances
to
Uses
,
and
to
pull
up
such
a
Tree
by
the
roots
,
is
to
put
all
the
Realm
in
a
confusion
,
and
therfore
if
there
be
any
mischief
therin
,
it
is
better
to
help
it
by
Parliament
,
then
to
alter
it
by
Judgment
.
And
so
upon
the
whole
matter
,
I
conceive
that
Judgment
ought
to
be
given
for
the
Plaintiff
.
Anderson
,
That
an
Use
was
not
at
Common
Law
,
for
the
Common
Law
had
no
respect
to
it
,
but
to
the
Feoffee
,
and
it
was
the
person
who
by
the
Law
had
any
thing
to
do
in
the
Land
,
and
not
Cestay
que
Vse
,
for
he
might
punish
Cestay
que
Vse
for
his
medling
with
the
Land
,
and
Cestay
que
Vse
had
no
remedy
against
him
by
no
means
;
But
by
Suboepna
in
the
Court
of
Conscience
.
And
further
,
an
Vse
being
limited
to
another
in
Fee
,
no
Vse
can
be
limited
further
therupon
for
any
Estate
.
And
it
hath
been
well
sayd
,
that
the
letter
of
the
Statute
of
27
H.
8.
did
not
tend
to
execute
this
Vse
which
was
not
in
Esse
,
and
for
the
intent
therof
,
that
it
did
not
tend
to
execute
any
contingent
Vse
untill
that
it
happen
,
which
is
proved
by
the
case
,
that
an
Estate
for
years
being
assigned
over
,
or
granted
to
an
Vse
,
the
Vse
of
this
is
not
executed
by
the
Statute
of
27
H.
8.
as
it
was
agreed
about
27
Eliz.
and
what
was
the
reason
in
the
case
,
but
because
there
was
not
any
Seisin
in
the
Vse
,
but
only
a
possession
to
the
Vse
?
wherby
the
words
of
the
Statute
are
much
to
be
regarded
.
And
here
how
can
there
be
a
Seissin
to
the
Vse
which
is
not
?
it
cannot
be
,
and
therfore
for
the
like
reason
,
as
in
the
other
case
it
is
never
executed
,
nor
shall
be
removed
by
means
of
such
an
Vse
,
untill
it
hapneth
to
be
an
Vse
in
Esse
.
And
for
Brents
Case
,
I
have
alwaies
taken
the
better
opinion
to
be
,
that
the
Wife
cannot
take
in
the
case
for
the
mean
disturbance
,
notwithstanding
the
Iudgment
which
is
entred
therupon
,
which
was
by
assent
of
the
parties
and
given
only
upon
a
default
made
after
an
Adjournment
upon
the
Demurrer
,
for
he
said
,
that
he
had
viewed
the
Roll
therof
on
purpose
;
and
if
it
be
,
that
such
a
Contingent
Vse
be
not
executed
untill
it
hapneth
to
be
in
Esse
,
here
it
appeareth
,
that
by
the
Feoffment
Christopher
is
in
,
of
another
Estate
which
was
not
subject
to
the
Vse
,
because
he
is
in
by
forfeiture
and
wrong
made
to
this
Estate
,
and
therfore
not
bound
to
the
Vse
in
Contingency
,
although
he
made
it
without
consideration
,
and
although
he
had
notice
of
this
contingent
Vse
,
and
therfore
this
contingent
Vse
utterly
defeated
before
it
had
any
being
.
But
in
all
the
Cases
put
on
the
other
side
,
it
doth
not
appear
that
there
was
any
thing
done
in
disturbance
of
these
mediate
uses
before
they
hapned
,
and
therfore
not
to
be
compared
to
this
case
,
wherby
he
conceived
that
the
Plaintiff
ought
to
be
barred
.
Popham
said
,
That
in
as
much
as
the
manner
of
assurance
made
by
Sir
Richard
Chudleigh
may
seem
strange
,
and
in
some
manner
to
touch
the
reputation
of
the
said
Sir
Richard
(
who
was
a
grave
and
honest
Gentleman
)
to
those
who
heare
it
,
and
do
not
know
the
reason
why
he
did
it
,
which
I
remember
to
be
this
as
I
have
heard
,
to
wit
,
That
the
said
Christopher
had
killed
one
Buller
a
Gentleman
of
good
reputation
,
wherupon
he
fled
into
France
,
and
the
said
Sir
Richard
doubting
what
would
become
of
his
Estate
;
if
he
should
dye
before
he
had
setled
his
Land
,
and
yet
having
a
desire
to
have
power
to
undo
the
assurance
which
he
purposed
to
make
,
if
he
pleased
,
his
Councell
then
thought
the
best
way
to
make
and
devise
the
assurance
,
so
,
that
such
an
Estate
of
Inheritance
might
therby
be
in
him
which
could
not
descend
to
the
said
Christopher
,
and
yet
such
,
that
he
might
therby
undo
the
assurance
made
by
the
Recovery
when
he
pleased
,
and
yet
such
also
as
should
never
take
effect
in
any
of
the
Issues
of
his
other
Wives
,
to
the
prejudice
of
his
right
Wives
,
because
he
never
had
a
purpose
to
marry
with
any
of
these
Wives
.
And
to
that
which
hath
been
touched
by
Periam
,
That
this
Limitation
first
made
is
a
Fee-simple
in
Sir
Richard
,
I
conceive
cleerly
the
contrary
,
For
if
it
should
be
so
,
then
no
Vse
could
be
limited
over
upon
this
Fee-simple
,
as
hath
been
said
before
,
and
therfore
all
the
remainder
of
the
Case
had
been
to
no
end
;
but
he
said
,
that
it
was
an
Estate-tail
speciall
in
Sir
Richard
,
and
denied
the
opinion
of
Ay
scough
taken
so
in
20
H.
6.
and
this
by
reason
of
the
Statute
of
Donis
conditionalibus
,
which
wills
Quod
voluntas
donatoris
secundum
formam
doni
in
charta
doni
manifeste
expressam
de
caetero
observetur
.
And
here
it
is
expresse
,
that
the
Heirs
of
Sir
Richard
begotten
upon
any
of
the
said
Wives
shall
have
the
Land
,
and
therby
it
shall
be
understood
that
his
Heirs
shall
be
intended
by
common
intendment
the
Heirs
by
him
.
To
which
opinion
Anderson
agreed
.
And
for
the
matter
,
Popham
conceived
cleerly
that
there
was
not
any
such
use
at
Common
Law
as
we
commonly
call
an
use
,
and
yet
he
acknowledged
there
were
alwaies
trusts
at
Common
Law
;
but
every
trust
is
not
to
be
said
an
use
:
for
none
will
doubt
but
that
a
t●ust
may
be
,
and
is
many
times
put
in
others
at
this
day
,
as
upon
pu●chase●
made
in
other
mens
names
,
and
assurances
also
upon
trust
,
and
yet
we
will
not
say
that
this
is
an
use
,
and
without
doubt
such
trusts
were
at
Common
Law
,
but
not
the
uses
aforesaid
,
and
the
reason
that
moved
him
to
take
the
Law
to
be
so
,
was
,
that
he
had
not
seen
any
ancient
record
,
Statute
,
or
Book
of
Law
,
nor
any
writing
before
the
time
of
Ed.
3.
which
made
any
mention
of
this
word
use
;
and
if
it
had
been
at
Common
Law
,
without
doubt
(
as
they
said
)
some
mention
would
have
been
made
therof
.
The
reasons
which
are
alledged
in
27.
H.
8.
and
in
the
case
vouched
24.
H.
8.
that
a
trust
was
at
Common
Law
is
,
by
the
one
of
them
the
Causa
Matrimonii
prolocuti
,
which
(
as
they
pretend
)
ought
to
prove
that
there
was
a
trust
at
Common
Law
.
And
the
other
the
Statute
of
Marlbridge
,
that
the
Lord
in
case
of
Wards
against
Feoffments
made
by
Collusion
,
which
Feoffments
(
they
alledge
)
prove
that
a
trust
then
was
.
To
which
it
was
said
,
that
the
gift
made
by
a
woman
to
another
,
to
the
intent
that
he
shal
marry
her
,
hath
in
it
a
Condition
more
properly
implied
,
to
wit
,
that
if
he
doe
not
marry
her
,
that
she
shall
have
her
land
back
againe
,
for
which
the
Common
Law
gives
her
remedy
by
the
Action
aforesaid
,
for
if
it
had
been
but
a
trust
,
no
remedy
had
been
by
the
Common
Law
.
And
for
the
Statute
of
Marlbridge
the
contrary
therunto
is
manifestly
proved
,
for
the
Statute
speaks
but
of
Feoffments
made
to
Heirs
apparants
or
upon
Condition
,
or
to
the
intent
to
enffeoff
the
Heir
at
his
full
age
,
or
the
like
,
in
which
cases
the
use
alwayes
goes
with
the
Possessions
,
and
is
not
to
the
Feffor
:
And
the
Statute
of
4.
H.
7.
was
made
in
vaine
,
which
gives
the
Wardship
of
Cestuy
que
use
where
no
Will
is
declared
,
which
had
not
been
needfull
if
Feoffments
within
the
Statute
of
Marlbridge
had
been
said
to
have
been
to
Uses
.
And
without
doubt
if
those
who
made
the
Statute
of
Marlbridge
had
then
had
knowledge
of
these
Feoffments
to
Uses
which
were
so
mischievous
,
and
more
then
the
other
Feoffments
by
Collusion
,
they
then
would
have
provided
remedy
for
these
cases
of
Uses
.
Also
the
Statute
de
Religiosis
ordains
that
Nec
arte
,
nec
ingenio
,
Lands
shal
not
be
conveyed
in
Mortmain
,
and
therby
it
was
conceived
that
a
full
provision
had
been
made
against
these
Mortmains
,
and
yet
in
15
Rich.
2.
Provision
was
made
against
Uses
conveyed
in
Mortmain
to
Religious
or
other
Corporations
of
which
they
took
the
Profits
.
And
without
doubt
those
who
were
so
precise
in
the
making
of
the
Statute
of
Religiosis
against
Mortmains
,
would
also
have
made
provision
for
the
uses
if
they
had
then
been
known
.
But
to
cleer
this
point
,
without
all
controversie
the
Statute
it self
of
uses
,
27
H.
8.
makes
it
plain
,
which
saith
expresly
that
by
the
Common
Law
of
the
Realm
,
Lands
or
Tenements
ought
not
to
passe
from
one
to
another
,
without
solemn
Livery
,
matter
of
Record
,
or
writing
,
and
that
these
Feoffments
to
uses
were
Errors
used
and
accustomed
within
the
Realm
,
to
the
Subversion
of
the
ancient
Laws
;
therfore
it
stands
not
with
the
ancient
Common
Law
of
the
Realm
,
as
all
the
Parliment
took
it
,
which
is
more
to
be
regarded
then
any
Book
vouched
.
But
see
how
,
and
when
they
began
and
crept
in
at
Common
Law
,
and
it
shall
be
easily
perceived
(
as
it
hath
been
well
said
by
some
of
those
who
argued
to
this
point
at
the
beginning
)
that
they
began
by
two
means
,
to
wit
,
by
fraud
,
and
by
fear
.
And
he
said
,
that
the
first
Book
which
he
had
seen
in
all
the
Books
of
the
Law
,
which
tend
to
an
use
,
is
the
case
of
8.
Assise
,
which
makes
mention
that
the
Counsee
of
a
Fine
entred
into
the
Land
in
the
right
of
another
,
which
is
to
be
taken
to
anothers
use
.
And
in
the
Quadragessim●s
of
Edw.
3.
mention
is
made
of
the
Feoffees
of
the
Lord
Burglash
,
who
sued
to
the
King
by
petition
,
and
by
the
Statute
of
50
Ed.
3.
cap.
6.
mention
is
made
that
divers
gave
their
Lands
to
their
Friends
to
have
the
profits
.
and
afterwards
fled
to
priviledged
places
,
and
lived
there
to
the
hinderance
of
their
Creditors
;
And
therfore
it
was
provided
that
in
such
a
case
execution
shall
be
made
,
as
if
no
such
assurance
had
been
made
.
And
by
2
Rich.
2.
these
are
called
Feoffments
to
uses
,
and
made
by
craft
to
deceive
Creditors
,
and
there
is
the
first
mention
which
is
made
in
any
Statute
of
the
word
(
Use
:
)
So
fraud
hath
been
alwaies
the
chief
foundation
of
these
Vses
;
yet
in
time
they
began
to
have
some
credit
in
the
Law
.
And
this
was
when
men
saw
that
the
Court
of
Conscience
gave
remedy
in
these
cases
against
such
who
had
not
the
conscience
themselves
to
perform
the
trust
put
in
them
,
and
to
take
away
the
danger
which
hapned
to
an
infinite
number
of
good
Subjects
,
upon
the
Garboyls
which
hapned
between
the
time
of
E.
3.
and
that
of
King
H.
7.
caused
that
in
effect
,
all
the
Possessions
of
the
Realm
were
put
in
Feoffments
to
uses
.
And
the
first
case
in
the
Law
which
speaks
of
this
word
(
Use
)
which
he
ever
saw
was
(
as
he
said
)
in
5
H.
4.
And
in
the
like
case
by
Gascoign
,
7
H.
4.
no
remedy
is
given
by
the
Law
for
Cestay
que
use
,
and
afterwards
it
crept
into
the
Law
as
appeareth
,
yet
as
an
Error
of
long
time
used
:
And
if
before
the
Statute
of
27
H
8.
a
Lease
had
been
made
for
life
,
the
remainder
in
Fee
,
to
the
use
of
B.
for
life
,
the
remainder
to
the
use
of
the
first
Son
of
the
said
B.
and
so
further
as
here
:
If
the
Tenant
for
life
had
made
a
Feoffment
in
Fee
to
a
stranger
,
and
had
not
given
the
stranger
notice
of
the
Use
,
and
all
this
were
without
consideration
,
and
afterwards
he
in
the
Remainder
in
Fee
to
the
Use
had
released
all
his
Right
to
the
said
stranger
,
every
one
of
them
had
been
hereby
without
remedy
for
their
Uses
:
Were
the
Son
of
B.
born
before
or
after
this
wrong
done
:
So
if
it
were
at
Common
Law
before
this
Statute
as
hath
been
we●l
said
,
and
the
Law
being
so
before
this
Statute
,
then
he
said
it
was
to
be
seen
what
was
to
be
done
in
the
case
after
the
Statute
,
which
will
stand
altogether
upon
this
,
what
will
become
of
these
contingent
Vses
to
the
Sons
not
born
at
the
time
of
the
said
Feoffment
made
by
Sir
John
Saintleger
and
his
Co-feoffees
,
by
this
Statute
of
27
H.
8.
and
it
seems
to
him
cleerly
that
no
possession
is
executed
to
any
contingent
use
by
this
Statute
,
untill
it
comes
in
being
;
and
that
as
the
case
is
here
and
in
some
other
speciall
cases
it
shall
never
be
executed
:
And
one
cause
why
such
a
contingent
Vse
shall
not
be
executed
,
is
,
because
it
doth
not
stand
with
the
letter
of
the
Law
,
but
rather
is
against
the
letter
.
Another
cause
is
,
because
it
is
utterly
against
the
intent
of
the
Law
to
execute
it
,
as
the
case
is
here
.
It
doth
not
stand
with
the
Letter
of
the
Statute
,
for
this
is
,
Where
any
person
or
persons
stand
seised
to
the
use
of
any
other
person
or
persons
,
&c.
And
it
is
cleer
that
none
can
stand
seised
to
the
use
of
him
who
is
not
,
neither
can
he
who
is
not
in
rerum
natura
have
any
use
;
therfore
the
case
here
doth
not
stand
with
the
letter
of
the
Statute
to
be
now
executed
,
And
further
,
the
words
following
are
,
that
in
every
such
case
,
every
person
who
hath
such
an
Use
in
Fee-simples
,
Fee-tail
.
for
life
,
for
years
,
&c.
or
otherwise
in
Remainder
or
Reversion
shall
stand
hereafter
seised
and
adjudged
in
lawfull
Estate
and
Possessions
of
the
Lands
,
&c.
of
such
an
Estate
as
he
had
in
the
Use
:
The
words
then
in
the
Statute
being
so
precise
as
they
stand
,
to
wit
,
that
in
such
case
he
who
hath
such
an
Vse
shall
have
the
possession
executed
of
such
an
Estate
as
he
had
in
the
Vse
,
excludes
all
other
who
are
not
in
it
,
to
have
it
to
be
executed
untill
that
they
happen
to
be
in
the
same
case
as
of
that
which
the
Statute
speaks
,
And
if
they
had
intended
to
have
the
Possession
to
be
executed
and
transferd
from
the
Feoffees
to
these
contingent
Vses
,
they
would
have
made
some
mention
therof
as
well
as
they
did
of
Reversions
and
Remainders
,
and
they
did
not
leave
there
,
but
mention
this
again
,
to
wit
,
that
the
Estate
,
Right
,
Title
,
and
Possessions
which
was
in
such
person
or
persons
which
were
seised
to
the
use
of
any
such
person
or
persons
,
shall
be
hereafter
cleerly
adjudged
in
him
,
or
those
who
had
or
have
such
Vse
according
to
such
quality
,
manner
,
form
,
and
condition
as
he
had
before
the
use
which
was
in
them
,
by
which
it
appeareth
plainly
,
that
the
Right
and
Possession
of
the
Feoffee
shall
not
be
vested
in
or
to
any
,
untill
that
he
hath
the
use
it self
;
for
it
is
said
,
that
it
shall
be
in
him
,
therfore
they
ought
to
have
somthing
in
the
Vse
by
the
very
expresse
letter
of
the
Statute
,
before
any
thing
of
the
Possession
shall
be
executed
or
transferred
by
this
Statute
from
the
Feoffee
to
Cestay
que
use
:
And
how
can
this
be
said
to
be
within
the
letter
of
the
Statute
,
which
hath
so
many
and
so
precise
words
and
branches
against
it
.
And
therfore
it
is
cleer
,
that
if
the
Feoffee
to
use
were
seised
at
the
time
of
making
of
this
Statute
,
that
the
use
shall
not
be
executed
by
this
Statute
,
untill
there
be
a
regresse
made
by
the
Feoffee
,
or
in
his
right
to
revive
the
former
use
,
and
it
had
been
out
of
the
letter
of
the
Statute
.
But
to
this
I
say
,
that
how
precise
soever
the
letter
is
against
the
execution
of
these
contingent
uses
,
the
intent
therof
is
yet
more
strong
&
precise
against
them
,
which
I
will
prove
cleerly
by
the
Statute
it self
,
which
is
of
greater
authority
then
the
particular
opinion
or
conceit
of
any
Iudge
whomsoever
,
for
it
is
the
Iudgment
of
all
the
Iudges
,
and
all
the
Realm
also
which
ought
to
bind
all
,
and
to
which
all
ought
to
give
credit
.
And
to
take
the
intent
,
the
Statute
was
full
that
it
was
made
(
as
is
rehersed
)
for
the
Disinherison
which
before
was
to
true
Heirs
;
for
the
defect
which
before
was
in
the
assurance
of
Purchases
,
for
the
mischiefs
,
in
regard
before
men
did
not
know
(
by
reason
of
these
Vses
)
against
whom
to
bring
their
Actions
to
recover
their
Rights
.
To
avoid
perjury
that
it
should
not
be
so
common
as
it
was
,
by
reason
of
the
maintenance
and
support
of
these
secret
Vses
,
for
the
releif
of
the
King
&
other
Lords
,
as
to
their
Escheats
,
Forfeitures
,
Wardships
,
Releases
and
the
like
,
for
the
mischief
which
before
hapned
to
Tenants
by
the
Curtesie
,
and
in
Dower
,
by
reason
of
these
Estates
in
Vse
;
and
finally
for
the
great
Incoveniencies
which
hapned
by
reason
of
them
,
to
the
great
trouble
and
unquiet
of
the
People
:
These
were
the
great
mischiefs
that
were
before
the
making
of
the
Statute
,
and
these
were
the
things
for
which
the
Statute
intended
to
provide
remedy
,
and
if
the
exposition
shall
be
as
hath
been
on
the
other
side
,
these
mischiefs
shall
be
on
every
part
more
mischievous
by
much
,
then
it
was
before
the
making
of
the
Statute
,
and
that
in
such
a
a
manner
,
that
it
shall
be
impossible
to
help
any
of
them
but
by
Parliament
;
wheras
alwaies
the
good
and
true
construction
of
a
Statute
is
to
constrain
it
,
so
that
it
shall
give
remedy
to
the
mischief
which
was
before
,
and
not
to
make
it
more
mischievous
,
and
therfore
examine
it
by
parts
.
And
as
to
the
disinherison
of
two
Heirs
,
it
appears
now
that
by
such
exposition
more
incoveniences
will
arise
,
and
that
in
a
more
dangerous
degree
then
before
the
Statute
;
for
before
,
for
the
Vse
the
Heir
had
his
remedy
in
conscience
according
to
the
trust
,
and
he
might
have
made
a
disposition
of
the
Land
it self
,
by
the
Statute
of
Rich.
3.
as
an
Owner
,
for
the
advancement
of
his
Wife
,
and
his
Children
,
and
for
payment
of
his
debts
,
and
the
like
.
But
as
the
case
is
now
used
by
means
of
these
perpetuities
(
as
they
are
called
)
if
the
exposition
of
the
other
side
shall
hold
place
,
the
true
Heir
shall
not
only
be
continually
in
danger
to
loose
his
Inheritance
,
but
by
them
the
very
bowels
of
nature
it self
shall
come
to
be
divided
,
and
as
rent
in
peeces
,
for
by
reason
of
these
the
Inheritants
themselves
cannot
make
any
competent
provision
for
the
advancement
of
their
Wives
,
Daughters
,
or
youngest
Sons
,
as
every
one
according
to
the
course
of
nature
ought
to
do
,
nor
by
reason
of
this
can
he
redeem
himself
if
he
were
taken
Prisoner
:
And
this
will
make
disobedience
in
Children
to
their
Parents
,
when
they
see
that
they
shall
have
their
Patrimony
against
their
will
,
wherby
such
Children
oftentimes
become
unnaturall
and
dissoluts
,
of
which
I
in
my
time
have
seen
many
unnaturall
,
dangerous
,
and
fearfull
consequences
,
not
convenient
to
be
spoken
of
.
And
it
staies
not
there
,
but
it
causeth
mortall
debate
(
as
to
blood
)
between
Cosin
,
and
Cosin
,
Brother
,
and
Brother
,
and
not
so
only
,
but
between
the
Father
himself
and
his
Children
,
of
which
every
one
of
us
have
seen
the
experience
,
for
the
one
ought
to
be
as
a
watch
upon
the
other
,
to
see
when
any
thing
happen
to
be
done
,
to
give
him
advantage
to
disinherit
the
very
true
Owner
.
And
I
say
,
that
it
is
impossible
that
any
can
keep
his
Possessions
which
hath
them
tyed
with
these
perpetuities
,
if
the
exposition
of
the
Statute
should
hold
place
which
the
other
side
hath
made
.
And
I
affirm
precisely
,
that
there
is
not
any
one
in
England
who
hath
had
such
Possessions
so
bound
by
descent
of
Inheritance
by
five
years
of
any
value
,
but
that
he
hath
lost
all
,
or
part
of
his
said
Land
at
this
time
,
let
him
be
never
so
precise
in
making
his
Assurances
,
and
yet
he
is
not
sure
to
have
one
skilfull
in
the
Law
alwaies
at
his
elbow
when
he
is
to
meddle
with
his
Land
.
And
therfore
I
put
but
this
Case
.
One
who
hath
such
a
perpetuity
with
power
to
make
Leases
,
rendring
the
ancient
Rent
,
or
more
,
hath
two
Farms
,
either
of
them
of
the
ancient
Rent
of
20
s.
a
year
but
the
one
is
worth
60
l.
a
year
,
and
the
other
but
20
l.
these
are
in
hand
to
be
better
together
,
rendring
53
s.
4
d.
for
both
together
,
therfore
he
hath
lost
all
,
or
part
of
his
Land
,
according
to
that
of
which
the
perpetuity
is
;
so
it
is
evident
that
it
will
happen
to
be
more
mischievous
in
time
to
come
,
and
therfore
by
this
exposition
much
more
to
the
disinherison
of
the
Heir
,
then
it
was
before
the
making
of
this
Statute
.
And
which
is
more
mischievous
if
a
Feme
putein
happen
to
be
in
such
a
house
who
happen
to
have
Children
in
Adultery
,
these
Bastards
shall
have
the
Land
against
the
will
of
the
Father
,
to
the
utter
disinherison
of
the
true
Heirs
,
and
against
the
intent
of
him
who
made
the
limitation
,
by
which
we
may
see
the
just
Judgment
of
of
God
upon
these
who
attempt
by
humane
pollicy
,
to
circumvent
the
divine
providence
of
God
for
the
time
to
come
;
and
of
this
also
I
have
seen
an
example
.
And
now
to
the
mischief
,
that
men
do
not
know
against
whom
to
bring
their
Actions
to
sue
for
their
Rights
,
and
it
is
cleer
,
that
now
by
such
an
exposition
they
shall
be
now
in
much
worse
condition
then
they
were
before
▪
for
before
the
Action
was
given
against
him
who
received
the
Profits
,
which
is
now
gone
by
this
Statute
in
the
cases
of
Free-hold
,
and
therfore
if
the
other
exposition
shall
hold
place
,
it
is
cleer
that
untill
the
Statute
of
13
Eliz.
men
might
have
been
by
means
of
this
Statute
put
out
of
all
remedy
to
recover
their
rights
by
any
manner
of
Action
,
as
some
put
it
in
practice
,
as
to
make
Feoffments
to
the
use
of
the
Feoffor
,
and
his
Heirs
,
untill
any
intend
to
bring
an
Action
against
him
for
this
Land
,
and
then
over
to
others
upon
the
like
lim●tation
,
with
a
Proviso
to
make
it
void
at
his
pleasure
,
and
the
like
,
and
what
mischief
shall
then
be
for
the
time
upon
such
an
exposition
?
such
;
that
Justice
therby
cannot
be
done
to
the
Subject
;
and
what
an
absurdity
shall
it
be
to
say
,
that
such
an
Exposition
can
stand
with
the
intent
of
the
Makers
of
the
Law
.
And
to
that
which
hath
been
argued
on
the
other
side
,
and
first
to
that
which
was
said
by
Walmsley
,
That
the
Right
,
Estate
,
and
Possession
is
wholly
out
of
the
Feoffee
,
and
vested
to
the
Vses
,
which
have
their
beeing
by
the
Statute
,
and
that
upon
the
Contingents
hapning
,
their
Estates
uncouple
and
give
place
to
the
contingent
Vse
then
executed
,
and
that
the
execution
therof
shall
be
by
a
Possession
d●awn
to
it
out
of
the
Possession
which
was
before
executed
by
the
Statute
in
another
:
I
say
,
that
this
Statute
can
by
no
means
have
such
an
exposition
;
for
this
is
as
much
as
to
say
,
that
an
Vse
may
arise
upon
an
Vse
,
contrary
to
what
is
adjudged
,
36
H.
8.
That
a
Bargain
and
Sale
by
a
Deed
indented
,
and
enrolled
,
cannot
be
at
this
day
of
Land
to
one
,
to
the
Vse
of
another
.
And
if
a
man
enfeoff
another
to
the
use
of
I.
S.
and
his
Heirs
,
and
if
I.
N.
pay
such
a
summ
,
that
then
the
said
I.
S.
and
his
Heirs
shall
be
seised
of
the
same
Land
to
the
use
of
the
said
I.
N.
and
the
Heirs
of
his
body
:
I.
●
.
paies
the
money
,
yet
the
Vse
doth
not
rise
out
of
the
Possession
of
the
said
I.
S.
But
if
it
had
been
,
that
upon
the
payment
the
first
Feoffee
and
his
Heirs
shall
stand
seised
to
the
use
of
the
said
I.
N.
and
the
Heirs
of
his
body
,
it
shall
be
otherwise
;
therfore
somthing
remains
to
the
first
Feoffee
in
the
Judgment
of
the
Law
.
And
I
remember
,
that
when
I
was
a
Counsellor
at
Law
in
the
time
of
the
Lord
Dyer
,
where
a
Feoffment
was
made
to
the
Vse
of
one
for
life
,
with
Remainders
over
,
with
restraint
to
alien
,
and
with
power
given
to
Tenant
for
life
to
make
Leases
for
one
and
twenty
years
,
or
three
lives
,
it
was
much
doubted
whether
this
power
so
limited
to
him
without
words
in
the
Assurance
that
the
Feoffee
and
his
Heirs
shall
stand
seised
to
these
Vses
,
shall
be
good
to
make
such
Leases
,
or
not
?
And
therfore
suppose
that
a
man
bargains
and
sells
Land
to
one
for
his
life
by
Deed
indented
and
inrolled
,
and
make
therin
a
Proviso
,
that
the
Tenant
for
life
may
make
such
Leases
,
this
is
to
no
purpose
as
to
power
to
make
a
Lease
,
but
the
strongest
case
which
he
put
was
,
that
of
30
H.
8.
which
I
agreed
to
be
Law
,
as
it
is
there
put
,
whether
it
were
before
or
after
the
Statute
of
27
H
8.
for
it
is
not
there
put
that
the
Feoffment
was
made
upon
any
consideration
to
the
stranger
,
in
which
case
,
although
he
had
no
notice
of
the
first
Covenant
,
yet
in
such
a
case
he
shall
take
the
Possession
subject
to
the
Vse
,
to
which
it
was
bound
by
the
present
Covenant
:
But
if
you
consider
the
case
well
,
you
shall
see
that
it
was
a
case
before
the
Statute
,
for
it
followeth
presently
in
the
same
case
,
that
it
is
there
said
,
that
it
is
not
like
the
case
where
the
Feoffees
in
Vse
fell
the
Land
to
one
who
hath
no
notice
of
the
first
Vse
,
wherby
it
appeareth
that
it
was
a
case
before
the
Statute
,
for
otherwise
there
had
been
no
cause
to
have
spoken
then
of
the
Feoffees
to
an
Vse
,
and
by
the
same
it
appeareth
,
if
the
Covenantor
had
bargained
and
sold
the
Land
to
another
,
the
same
Vse
had
never
risen
upon
the
Covenant
,
and
therfore
it
is
cleer
against
the
Law
,
that
the
Possession
shall
be
bound
w●th
such
an
Vse
in
whosoevers
hand
it
comes
.
And
to
that
which
Pe●●am
said
,
in
the
case
of
these
Contingent
Vses
,
they
shall
now
by
the
Statute
be
in
the
same
degree
,
as
if
Land
it self
had
been
so
conveyed
:
and
that
now
the
Land
shall
be
in
Contingency
in
stead
of
the
Vse
,
and
that
by
such
manner
it
shall
be
executed
,
and
that
by
such
means
all
is
utterly
out
of
the
Feoffees
,
because
the
Statute
was
made
to
determine
all
●●●ter
of
trust
to
be
hereafter
reposed
in
any
Feoffee
:
this
is
well
spoken
,
but
not
well
proved
;
for
as
I
have
said
before
,
it
is
an
exposition
quite
contrary
to
the
letter
and
intention
of
the
Law
.
And
I
agree
,
as
hath
been
said
,
if
there
be
none
to
take
the
Use
at
the
time
that
it
falleth
to
be
in
possession
,
according
to
the
limitation
that
he
shall
never
take
it
afterwards
,
no
more
of
an
Use
upon
the
Statute
then
of
●n
Use
at
Common
Law
:
As
if
an
Use
be
limitted
for
life
,
the
remainder
to
the
right
Heirs
of
I.
S.
if
the
Estate
for
life
be
determined
in
the
life
of
I
:
S.
the
remainder
shall
never
vest
afterwards
in
the
right
Heirs
of
I.
S.
no
more
then
if
an
Estate
had
been
so
made
:
But
this
makes
for
me
,
to
wit
,
that
the
Estate
upon
the
Uses
executed
by
the
Statute
,
shall
be
of
the
same
condition
as
Estates
in
possession
were
at
Common
Law
,
and
that
they
being
executed
ought
also
to
be
such
,
of
which
the
Common
Law
makes
allowance
.
And
by
way
of
argument
,
I
agree
for
the
time
that
it
is
,
as
hath
been
said
by
them
who
maintain
that
an
Use
may
be
in
suspence
,
as
to
that
which
is
an
Use
in
its
proper
nature
,
for
it
is
not
properly
said
an
Use
,
untill
that
it
be
said
in
Esse
,
to
take
the
Profits
themselves
:
But
I
am
to
turn
this
Argument
against
him
who
made
it
,
for
if
it
be
so
,
the
Use
can
never
be
in
suspence
,
and
i●
so
,
it
follows
that
no
Possession
by
means
of
any
such
Use
can
be
in
suspence
,
but
staies
where
it
was
before
to
be
executed
when
the
Use
happens
to
be
in
beeing
.
But
as
to
that
,
that
a
Reversion
or
Remainder
may
be
of
that
which
we
call
an
Use
,
so
also
may
such
a
Use
be
in
suspence
in
the
same
manner
as
the
Possession
it self
,
but
not
otherwise
.
And
as
to
Cramners
Case
formerly
put
,
the
Law
is
so
,
because
nothing
appeareth
in
the
case
to
be
done
,
to
the
disturbance
of
this
contingent
Vse
in
the
interim
before
it
happen
.
But
upon
the
Case
put
of
the
Lady
Bray
,
upon
which
it
hath
been
so
strongly
relied
,
it
was
thus
.
The
Lord
Bray
made
an
assurance
of
certain
Lands
,
to
the
use
of
certain
of
his
Councell
,
untill
the
Son
of
the
said
Lord
Bray
should
come
to
the
age
of
21.
years
,
for
the
livelyhood
of
the
said
Son
,
and
of
such
a
Wife
as
he
shall
marry
with
the
assent
of
the
said
Councell
,
and
then
to
the
use
of
the
said
Son
and
of
the
said
Wife
,
and
of
the
Heirs
of
the
body
of
the
said
Son
:
The
Father
dies
,
the
Son
was
become
in
Ward
to
the
King
,
after
which
one
of
the
said
Councellors
dies
,
the
King
grants
over
the
Wardship
of
the
said
Son
,
after
which
the
said
Lord
Bray
by
the
assent
of
his
Guardian
,
and
of
the
surviving
Councellors
marries
the
Daughter
of
the
then
Earl
of
Shrewsbury
,
after
which
the
Husband
aliens
the
same
Land
to
one
Butler
,
and
dies
,
and
upon
Action
brought
by
the
said
Lady
against
the
said
Butler
for
the
same
land
,
she
was
barred
by
Judgment
,
and
upon
what
reason
?
because
she
was
not
a
person
known
when
the
Statute
was
made
,
which
must
be
in
every
case
of
a
Freehold
in
Demesne
,
as
well
in
case
of
an
Use
,
as
in
case
of
a
Possession
.
And
therfore
a
Lease
for
years
,
the
Remainder
to
the
Heirs
of
I.
S.
then
living
,
is
not
good
,
and
the
same
Law
of
an
Vse
.
And
so
it
was
agreed
by
all
the
Iustices
very
lately
in
the
case
of
the
Earl
of
Bedford
,
but
in
these
Cases
it
remaineth
to
the
Feoffor
;
and
because
it
doth
not
appear
at
the
time
of
the
assurance
who
shall
be
the
Wife
of
the
said
Son
,
so
that
there
was
not
any
to
take
the
present
Free-hold
by
name
of
the
Wife
of
the
Son
,
she
takes
nothing
by
the
assurance
,
but
this
reason
makes
for
our
side
:
to
wit
,
That
if
there
were
none
to
take
the
Free-hold
in
Demesne
from
the
Use
,
when
it
falleth
,
he
shall
never
take
it
,
The
other
reason
in
this
Case
was
,
because
she
was
not
married
by
the
consent
of
all
the
Counsellors
,
for
that
one
was
dead
,
nor
according
to
the
power
given
by
the
agreement
,
but
by
the
authority
of
the
Guardian
,
that
the
power
which
the
Father
had
upon
his
Son
was
ceased
.
And
Nota
,
That
by
a
Disseisin
the
contingent
Use
may
be
disturbed
of
his
Execution
;
but
there
by
the
regresse
of
the
Feoffee
o●
his
Heirs
when
the
Contingent
happen
it
may
be
revived
to
be
executed
:
But
by
the
release
of
the
Feoffee
or
his
Heirs
,
the
Contingent
in
such
a
case
by
Popham
i●●●●red
o●
all
possibility
at
any
time
to
be
executed
,
And
to
that
which
hath
been
said
,
that
the
generall
and
universall
Assurances
of
men
throughout
all
the
Realm
at
this
●ay
ar●
by
means
of
Vses
,
and
that
it
shall
be
a
great
deal
of
danger
and
inconvenience
to
draw
them
now
in
question
or
doubt
,
and
that
it
now
trembleth
upon
all
the
Possessions
of
the
Realm
,
and
therfore
it
shall
be
too
dangerous
to
pull
up
such
Trees
by
the
roots
,
the
Branches
wherof
are
such
and
so
long
spread
,
that
they
overshadow
the
whole
Realm
.
Popham
said
,
That
they
were
not
utterly
against
Uses
,
but
only
against
those
,
and
this
part
of
them
which
will
not
stand
with
the
publike
Weal
of
of
the
Realm
.
and
which
being
executed
shall
make
such
an
Estate
which
cannot
stand
with
Common
Law
of
the
Realm
,
or
the
true
purport
of
the
Statute
;
and
therfore
he
said
,
that
it
was
but
to
prune
and
cut
off
the
rotten
and
corrupt
branches
of
this
Tree
,
to
wit
,
that
those
which
had
not
their
substance
from
the
true
Sap
,
nor
from
the
ancient
Law
of
the
Realm
,
nor
from
the
meaning
of
the
Statute
,
and
so
to
reduce
the
Tree
to
its
beauty
and
perfection
.
The
same
reason
he
said
,
might
have
been
made
in
the
time
of
Edw.
4.
against
those
Arguments
which
were
made
to
maintain
the
common
Recoveries
to
bar
Estates-tail
.
But
if
such
a
reason
had
been
then
made
,
it
would
have
been
taken
for
a
bare
conceit
and
meer
trifle
,
and
yet
Vses
were
never
more
common
then
Estates-tail
were
between
the
Statute
of
Donis
conditionalibus
,
and
the
said
time
of
Edw
,
4.
But
the
grave
Iudges
then
saw
what
great
trouble
hapned
amongst
the
people
by
means
of
Intails
,
and
what
insecurity
happened
by
means
therof
to
true
Purchasors
,
for
whose
security
nothing
was
before
found
(
as
we
may
see
by
our
Books
)
but
collaterall
Warranty
,
or
infinite
delay
by
Voucher
;
and
thus
did
the
Iudges
of
this
time
look
most
deeply
into
it
,
wherupon
,
upon
the
very
rules
of
Law
it
was
found
that
by
common
Recovery
with
Vouchers
these
Estates-tail
might
be
barred
,
which
hath
been
great
cause
of
much
quiet
in
the
Land
untill
this
day
,
that
now
it
begins
to
be
so
much
troubled
with
the
cases
of
Vses
,
for
which
it
is
also
necessary
to
provide
a
lawfull
remedy
.
But
he
said
plainly
.
That
if
the
Exposition
made
on
the
other
side
shall
take
place
,
it
will
bring
in
with
it
so
many
mischiefs
and
inconveniencies
to
the
universall
disquiet
of
the
Realm
,
that
it
will
cast
the
whole
Common-wealth
into
a
Sea
of
troubles
,
and
endanger
it
with
utter
confusion
and
drowning
.
And
to
that
which
was
said
,
That
a
Remainder
to
the
right
Heirs
of
I.
S.
or
to
the
Heirs
of
the
body
of
I
,
S.
or
to
the
first
Son
,
as
here
are
,
so
in
the
custody
of
the
Law
that
they
cannot
be
drawn
out
,
&
that
therfore
no
forfeiture
can
be
made
by
the
Feoffment
made
by
him
who
hath
the
particular
Estate
.
To
that
he
said
,
That
a
Disseisin
made
to
the
particular
Estate
for
life
,
draws
out
such
Remainders
to
the
right
Heirs
,
as
is
proved
expresly
by
3
H.
6
where
it
is
holden
,
that
a
collaterall
Warranty
bars
such
a
Remainder
in
obeyance
after
a
disseisin
.
And
by
Gascoigne
,
7
H.
4.
If
such
a
Tenant
for
life
makes
a
Feoffment
in
Fee
,
it
is
a
Forfeiture
,
but
he
conceived
that
in
the
life
time
of
I.
S.
none
can
enter
for
it
,
but
this
is
not
Law
;
and
when
by
the
Feoffment
the
particular
Estate
is
quite
gone
in
possession
,
and
in
right
also
,
the
remainder
shall
never
take
effect
,
by
the
very
rules
of
Littleton
.
And
by
27
H.
7.
which
is
,
That
a
Remainder
cannot
be
,
unlesse
there
be
an
Estate
upon
which
it
may
have
dependency
,
which
there
it
cannot
;
but
in
the
case
of
a
Disseisin
made
to
a
particular
Estate
,
it
is
otherwise
,
because
there
the
Estate
remains
in
right
.
And
to
say
that
it
shall
not
be
a
Forfeiture
,
because
the
Feoffment
was
made
to
Christopher
,
who
then
had
the
Fee-simple
which
was
limited
to
the
right
Heirs
of
Sir
Richard
Chudleigh
,
this
is
not
so
,
for
by
41
E.
3.
The
Tenant
for
life
himself
,
who
also
had
a
Remainder
in
Fee-simple
in
himself
,
depending
upon
a
mean
Estate-tail
in
another
made
a
Feoffment
,
and
by
it
committed
a
Forfeiture
to
him
in
the
Remainder
in
tail
.
But
if
Tenant
for
life
,
Remainder
in
tail
,
Remainder
in
Fee
,
enfeoff
him
in
the
Remainder
in
tail
,
this
is
a
Surrender
of
his
Estate
for
the
immediate
Estate
which
was
in
him
;
wherupon
this
Term
,
Judgment
was
given
in
the
Kings
Bench
for
Fraine
the
Defendant
,
against
Dillon
who
was
Plaintiff
.
And
it
is
entred
,
Hill
.
31
Eliz.
Rot.
65.
Baynes
Case
.
10.
AT
the
Sessions
holden
at
Newgate
presently
after
this
Term
the
case
was
this
;
one
Baines
with
another
came
in
the
night
time
to
a
Tavern
in
London
to
drink
,
and
after
they
had
drunk
,
the
said
Baynes
stole
a
cup
in
which
they
drunk
in
a
Chamber
of
the
same
House
;
the
Owner
of
the
said
House
,
his
Wife
,
and
servants
then
being
also
in
the
House
,
and
the
cup
being
the
Owners
of
the
said
Tavern
,
wherupon
he
was
indited
and
committed
,
&
this
matter
appeared
in
the
Inditement
,
and
agreed
by
Popham
,
Anderson
,
and
Periam
with
the
Recorder
and
Serjants
at
Law
then
being
there
,
that
this
was
not
Burglary
,
and
yet
it
was
such
a
Robbery
,
whereby
he
was
ousted
of
the
benefit
of
his
Clergy
by
the
Statute
of
5.
E.
6.
Cap.
9.
and
was
●anged
.
11.
ANd
at
the
Sessions
then
next
ensuing
〈◊〉
holden
,
upon
one
who
had
stolen
a
silver
Bason
&
Ewer
of
the
then
Bishop
of
Worcester
,
&
the
sale
made
openly
in
the
day
in
a
Scriveners
shop
in
London
to
a
stranger
,
the
question
was
demanded
of
the
Court
whether
the
property
were
changed
by
this
Sale
,
so
that
the
Bishop
shall
not
have
his
Plate
againe
,
because
it
was
alledged
that
they
prescribed
that
every
one
of
their
shops
in
London
are
good
Markets
overt
through
all
London
every
day
in
the
week
but
Sunday
;
But
agreed
by
Popham
,
Egerton
,
Anderson
,
Brian
,
and
others
skilfull
in
the
Law
then
being
there
,
that
such
a
generall
custome
is
not
good
,
and
that
this
Sale
made
there
,
albeit
it
were
openly
in
the
shop
so
that
every
one
passing
by
might
see
,
it
shall
not
bind
the
property
as
it
shall
doe
in
Market
overt
;
for
a
Scriveners
&
Cutlers
Shop
or
the
like
,
is
not
proper
for
the
Sale
of
I
late
nor
a
place
to
which
men
will
go
to
seek
for
such
a
thing
lost
or
stole
;
But
a
Goldsmiths
Shop
is
the
proper
Shop
for
it
,
as
the
Drapers
Shop
is
for
Woollen
cloath
,
or
the
Mercers
Shop
for
Silk
,
and
the
like
,
and
to
such
men
will
go
to
seek
for
things
of
the
like
nature
that
are
lost
or
stolen
,
and
not
to
a
Scriveners
Shop
or
the
like
.
And
they
agreed
also
that
a
private
Sale
made
in
the
Shops
which
are
proper
to
the
nature
of
the
thing
sold
,
so
that
the
Passers
by
cannot
in
reason
see
it
in
their
passage
,
cannot
bind
,
for
reason
,
(
upon
which
the
Law
is
founded
)
will
not
admit
any
such
custome
.
Hillary
Term
,
37
Eliz.
in
the
Kings
Bench.
Westby
versus
Skinner
and
Catcher
.
1.
IN
Debt
by
Titus
Westby
Plaintiff
,
against
Thomas
Skinner
and
John
Chatcher
late
Sheriffs
of
London
,
Defendants
.
for
440
l.
upon
Nihil
debet
,
pleaded
,
and
a
special
Verdict
found
,
the
Case
appeared
to
be
this
,
See
this
case
in
Coke
3.
Report
fol
71.
6.
to
wit
,
One
Anthony
Bustard
with
others
,
were
bound
in
a
Recognizance
in
the
nature
of
a
Statute-staple
of
440
l.
to
the
Plaintif
wherupon
the
Plaintif
sued
Execution
out
of
the
Chancery
against
the
said
Anthony
and
the
other
that
were
bound
with
him
for
the
Bodies
,
Goods
,
and
Lands
of
the
said
Obligers
which
writ
of
Execution
was
delivered
to
the
said
Defendants
the
8th
day
of
the
Defendants
then
being
Sheriffes
of
London
and
the
said
Anthony
being
then
in
Newgate
in
Execution
in
the
custody
of
the
said
Defendants
for
240
l.
at
the
suit
of
one
Robert
Deighton
,
and
that
afterwards
,
to
wit
,
the
20
th
.
day
of
October
in
the
same
yeer
the
said
Defendants
were
discharged
and
removed
from
their
said
Offices
,
and
Hugh
Offeley
,
Richard
Saltonstall
were
then
made
Sheriffes
of
London
,
and
that
the
said
Anthony
being
in
Execution
for
the
one
and
the
other
debt
,
the
said
Defendant
the
said
20th
.
day
of
October
by
Indenture
delivered
the
said
Anthony
to
the
said
new
Sheriffes
in
Execution
for
the
said
debt
of
the
said
Robert
Deighton
not
giving
them
any
no●ice
of
the
said
Execution
made
for
the
Plaintiff
,
and
suffered
the
said
Anthony
to
goe
at
large
;
And
whether
the
Defendants
shall
be
charged
for
this
escape
was
the
question
.
And
the
escape
was
alledged
by
the
Declaration
to
be
suffered
by
the
said
Defendants
the
said
20.
day
of
October
,
30
Eliz.
and
it
was
moved
by
Tanfield
,
that
the
new
Sheriffs
ought
to
take
notice
of
their
Prisoners
remaining
in
the
Goal
,
at
their
coming
into
their
Office
,
at
their
perill
,
and
ought
to
enquire
and
search
for
the
causes
that
then
were
in
custody
,
and
not
to
deliver
them
of
their
own
head
without
due
course
of
Law
.
And
he
put
the
case
,
That
if
the
old
Sheriff
had
been
dead
,
in
the
mean
time
before
the
new
Sheriffs
had
been
made
,
shal
this
be
an
excuse
to
the
new
Sheriffs
that
they
had
no
notice
for
what
cause
this
Anthony
had
been
in
Prison
,
if
they
suffer
him
to
escape
?
And
he
said
that
it
shall
not
,
no
more
here
;
but
per
Curiam
the
new
Sheriff
shall
not
be
charged
with
this
Escape
,
as
to
the
440
l.
of
which
they
had
no
notice
;
for
if
this
case
which
was
private
in
the
knowledge
of
the
ancient
Sheriff
only
upon
a
Writ
directed
to
them
at
the
suite
of
any
party
,
the
new
Sheriffs
cannot
by
intendment
have
any
knowledge
,
unlesse
it
be
given
to
them
by
the
old
Sheriffs
,
to
whom
the
Writ
of
Execution
was
directed
and
delivered
.
And
the
case
of
one
Dabridgecourt
,
who
was
Sheriff
of
Warwick
,
and
had
one
in
Execution
whom
he
kept
in
a
private
Prison
by
himself
,
for
all
his
Executions
in
the
Town
of
Warwick
;
and
when
he
was
discharged
of
his
Office
,
and
a
new
Sheriff
made
,
Dabridgecourt
said
to
the
new
Sheriff
,
That
he
had
such
a
one
in
Execution
in
his
custody
,
and
offered
to
the
said
Sheriff
to
put
him
in
the
Indenture
amongst
his
other
Prisoners
delivered
to
the
new
Sheriff
,
but
would
h●ve
had
the
said
old
Sheriff
to
have
sent
for
the
said
new
Sheriff
to
have
taken
him
into
his
custody
,
but
the
new
Sheriff
refused
to
receive
him
,
unlesse
Dabridgecourt
would
deliver
him
into
the
common
Gaol
of
the
County
,
which
was
in
the
Town
of
Warwick
,
wherupon
afterwards
the
Prisoner
escaped
;
And
Dabridgecourt
was
charged
with
this
Escape
,
and
not
the
new
Sheriff
,
for
he
is
not
compellable
to
take
the
Prisoners
of
the
delivery
of
the
old
Sheriff
,
but
in
the
common
Goal
of
the
County
,
and
the
old
Sheriff
remains
chargeable
with
the
Prisoner
,
untill
he
be
lawfully
discharged
of
him
,
and
if
the
Sheriff
dies
,
the
party
shall
be
rather
at
a
prejudice
,
then
the
new
Sheriff
,
without
cause
charged
with
him
.
And
in
such
a
case
the
party
who
sued
the
execution
may
help
himself
,
to
wit
,
by
the
remaining
of
the
body
by
a
Corpus
cum
causa
,
wherby
he
may
be
brought
to
be
duly
in
execution
,
and
this
under
a
due
Officer
.
And
Anderson
,
Periam
,
and
other
Iustices
were
also
of
opinion
,
that
the
said
Skinner
and
Catcher
are
to
be
charged
with
the
escape
in
the
principall
case
,
wherupon
Iudgment
was
given
for
the
Plaintiff
,
which
was
entred
;
Hillar.
34
Eliz.
Rot.
169.
in
the
B.
R.
Fulwood
versus
Ward
.
2.
IN
a
Writ
of
Annuity
brought
in
the
Common
Pleas
by
George
Fulwood
Plaintiff
against
William
Ward
Defendant
,
the
Case
was
thus
.
The
Queen
was
seised
of
a
Barn
and
Tithes
of
Stretton
,
in
the
County
of
Stafford
,
for
the
life
of
the
Lord
Paget
,
and
being
so
seised
,
demised
it
by
Letters
Patents
,
dated
21.
June
,
29
Eliz.
to
the
said
William
Ward
for
21.
years
,
wherupon
the
said
Ward
by
Writing
dated
,
30.
Iune
,
29
Eliz.
granted
to
the
said
Plaintiff
an
Annuity
or
yearly
Rent
of
10
l.
out
of
the
said
Barn
and
Tithes
for
15.
years
then
next
ensuing
,
payable
yearly
upon
the
8.
day
of
November
,
with
clause
of
Distresse
.
The
Lord
Paget
died
the
first
day
of
March
,
32
Eliz.
and
for
the
Arrearages
after
his
death
,
the
Plaintiff
brought
this
Writ
of
Annuity
,
and
for
the
difficulty
therof
in
the
Common
Pleas
,
the
Case
came
this
Term
to
be
argued
before
all
the
Iustices
and
Barons
at
Serjeants-Inn
in
Fleetstreet
,
where
it
was
agreed
by
Walmsley
,
Fennor
,
and
Owen
,
that
the
Annuity
was
gone
by
the
determination
●●
his
Estate
in
the
Land
who
made
the
Grant
,
for
they
said
that
presently
upon
the
Grant
made
as
before
it
was
a
Rent-charge
,
for
by
such
a
Rent
granted
in
Fee
,
the
Fee
shall
be
in
his
Heirs
,
albeit
the
Grantee
dies
before
any
Election
made
;
and
such
a
Rent
is
payable
from
the
beginning
at
the
Land
,
as
appeareth
by
12
E.
4.
And
by
grant
of
Omnia
,
terras
,
tenementa
,
&
hereditamenta
,
such
●
Rent
will
passe
,
ergo
,
it
is
a
Rent-charge
and
not
an
Annuity
untill
the
Election
made
,
and
by
the
determination
therof
in
the
nature
of
a
Rent
,
the
Election
is
gone
,
as
by
Babington
and
Martin
,
9
H.
6.
by
the
recovery
of
L●nd
charged
with
such
a
Rent
by
elder
Title
,
the
Annuity
is
gone
as
it
see●s
by
their
opinion
,
and
by
them
and
by
Littleton
upon
a
Rent-charg●
〈◊〉
with
Proviso
,
that
he
shall
not
charge
the
person
of
the
Grantor
,
〈…〉
exclude
the
charge
of
the
person
,
which
proves
that
the
Land
is
char●●●
Originally
,
and
not
the
person
,
for
otherwise
the
Proviso
would
be
void
for
the
repugnancy
;
And
if
so
,
whensoever
the
Land
is
discharged
,
as
by
〈…〉
,
●●●cent
,
or
the
like
,
the
person
therby
is
also
discharged
,
and
therfore
●he
Iu●gment
here
shall
be
,
that
the
Plaintiff
shall
be
barred
.
But
by
the
chief
Iustices
,
chief
Baron
,
and
all
the
other
Iustices
and
Barons
,
the
Plaintiff
ought
to
have
Iudgment
in
this
case
to
recover
the
Annuity
,
for
the
Law
gives
him
at
the
beginning
an
Election
to
have
it
as
a
Rent
or
an
Annuity
,
which
matter
of
election
shall
not
be
taken
from
him
,
but
by
his
own
Deed
and
folly
,
as
in
case
where
he
purchase
part
of
the
land
charged
,
in
which
case
by
his
own
Act
he
hath
excluded
himself
of
his
Election
.
But
if
a
Feoffee
upon
condition
grant
a
Rent-charge
,
and
presently
break
the
Condition
,
wherupon
the
Feoffor
re-enter
,
shall
not
the
Feoffee
be
charged
by
Writ
of
Annuity
,
surely
it
shall
be
,
against
all
reason
that
he
by
his
own
act
,
without
any
folly
of
the
Grantee
,
shall
exclude
the
Grantee
of
his
Election
which
the
Law
gives
at
the
beginning
.
And
they
denied
the
opinion
of
9
H.
6.
to
be
Law
;
But
if
the
Disseisor
grant
a
Rent-charge
to
the
Disseisee
out
of
the
Land
which
he
had
by
the
Disseisen
by
his
re-entry
,
before
the
Annuity
brought
,
the
Annuity
is
gone
;
for
this
was
his
own
act
,
yet
in
effect
all
of
them
agreed
,
that
Prima
facie
,
it
shall
be
taken
as
a
Rent-charge
,
of
which
the
Wife
shall
be
endowed
,
as
hath
been
said
,
which
passe
by
grant
of
Omnia
hereditamenta
,
and
which
is
payable
at
the
Land
;
but
the
reason
is
,
because
it
is
expresly
granted
out
of
the
Land
,
and
also
for
the
presumption
of
Law
,
that
it
is
more
beneficiall
for
the
Grantee
to
have
it
in
such
a
degree
,
then
in
the
other
.
But
neither
the
presumption
of
Law
,
nor
the
expresse
Grant
therof
as
a
Rent
,
shall
not
take
away
from
the
Grantee
the
benefit
of
his
Election
,
where
no
default
was
in
him
,
but
that
upon
his
Election
he
may
make
it
to
be
otherwise
,
as
ab
initio
.
And
therfore
by
Popham
,
If
a
Rent-charge
be
granted
in
tail
,
the
Grantee
may
bring
a
Writ
of
Annuity
,
and
therby
prejudice
his
Issue
,
because
that
then
it
shall
not
be
taken
to
be
an
Intail
,
but
as
a
Fee-simple
conditionall
,
ab
initio
.
And
if
a
Termer
for
two
years
grant
a
Rent-charge
in
fee
,
this
as
to
the
Land
is
but
a
Rent
charge
for
two
years
,
and
if
he
avow
for
it
upon
the
determination
of
the
Term
,
the
Rent
is
gone
,
but
by
way
of
Annuity
it
remains
for
ever
,
if
it
be
granted
for
him
and
his
Heirs
,
and
assets
descend
from
him
who
granted
it
.
And
if
a
Rent-charge
be
granted
in
fee
,
and
doth
not
say
for
him
and
his
Heirs
,
if
the
Grantee
brings
his
Writ
of
Annuity
,
the
Heir
shall
never
be
charged
therwith
,
yet
if
he
had
taken
it
as
a
Rent-charge
,
the
Land
had
been
charged
with
it
in
perpetuity
.
And
by
him
the
cause
why
the
Proviso
that
he
shall
not
charge
the
person
of
the
Grantor
upon
the
grant
of
a
Rent-charge
is
good
,
is
,
because
the
person
is
not
expresly
charged
by
such
a
Grant
,
but
by
operation
of
Law
.
But
in
such
a
case
,
a
Proviso
that
he
shall
not
charge
his
Land
is
meerly
void
for
the
repugnancy
,
because
there
the
Land
is
expresly
charged
by
precised
words
,
and
therfore
if
it
be
expresly
comprised
in
such
a
Grant
,
that
the
Grantee
may
charge
the
Land
,
or
the
person
of
the
Grantor
,
at
his
Election
;
provided
then
afterwards
that
he
shall
charge
his
person
,
is
not
good
,
Causa
patet
.
And
all
agreed
,
that
upon
a
Rent
granted
upon
equality
of
partition
,
or
for
allowance
of
Dower
,
or
for
recompence
of
a
Title
,
an
Annuity
doth
not
lye
,
because
it
is
in
satisfaction
of
a
thing
reall
,
and
therfore
shall
not
fall
to
a
matter
personall
,
but
alwaies
remains
of
the
same
nature
as
the
thing
for
which
it
is
given
.
And
afterwards
the
same
Term
Iudgment
was
given
in
the
Common
Bench
,
that
the
Plaintiff
shall
recover
,
which
is
entred
,
&c.
And
in
the
same
case
,
Clark
vouched
that
it
was
reported
by
Benloes
in
his
Book
of
Reports
;
where
a
Rent
was
granted
out
of
a
Rectory
by
the
Parson
who
after
wards
resigned
the
Parsonage
,
that
it
was
agreed
in
the
Common
Pleas
in
his
time
,
that
yet
a
Writ
of
Annuity
lies
against
the
Grantor
upon
the
same
Grant
,
to
which
all
,
who
agreed
on
this
part
,
agreed
that
it
was
Law
.
Butler
versus
Baker
and
Delves
.
3.
IN
Trespasse
brought
by
John
Butler
against
Thomas
Baker
,
and
Thomas
See
this
case
in
Cookes
3.
Report
,
fo●
25
Delves
,
for
breaking
his
Close
,
parcell
of
the
Mannor
of
Thoby
,
in
the
County
of
Essex
,
upon
a
speciall
Verdict
,
the
Case
was
thus
.
William
Barners
the
Father
was
seised
in
his
Demesne
as
of
fee
,
of
the
Mannor
of
Hinton
in
the
County
of
Glocester
,
holden
of
the
King
by
Knights-service
in
Capite
,
and
being
so
seised
,
after
the
Marriage
had
between
William
his
Son
and
heir
apparant
,
and
Elizabeth
the
Daughter
of
Thomas
Eden
Esquire
,
in
consideration
of
the
same
Marriage
,
and
for
the
Joynture
of
the
said
Elizabeth
,
assured
the
said
Mannor
of
Hinton
,
to
the
use
of
the
said
William
the
Son
,
and
Elizabeth
his
Wife
,
and
the
Heirs
of
their
two
bodies
lawfully
begotten
,
and
died
,
by
whose
death
the
Reversion
also
of
the
said
Mannors
descended
to
the
said
William
the
Son
,
wh●rby
he
was
seised
therof
accordingly
,
and
being
so
seised
,
and
also
seised
of
the
Mannor
of
Thoby
,
in
his
Demesne
as
of
Fee
holden
also
of
the
Queen
by
Knights-servivice
in
chief
,
and
of
certain
Lands
in
Fobbing
in
the
said
County
of
Essex
,
which
Land
in
Fobbing
with
the
Mannor
of
Hinton
,
were
the
full
third
part
of
the
value
of
all
the
Land
of
the
said
William
the
Son
,
and
he
made
his
Will
in
writing
,
wherby
he
devised
to
his
said
Wife
Elizabeth
his
said
Mannor
of
Thoby
for
her
life
,
in
satisfaction
of
all
her
Joynture
and
Dower
,
upon
condition
,
that
if
she
take
to
any
other
Joynture
,
that
then
the
Devise
to
her
shall
be
void
,
and
after
her
decease
he
devised
that
the
said
Mannor
shall
remain
to
Thomas
his
Son
,
and
the
Heirs
Males
of
his
body
,
and
for
default
of
such
Issue
,
the
remainder
to
Thomas
brother
of
the
said
William
for
his
life
,
the
remainder
to
hir
first
,
second
,
and
third
Son
,
and
to
the
Heirs
Males
of
their
bodies
,
and
so
to
every
other
Issue
Male
of
his
body
,
and
for
default
of
such
Issue
,
the
remainder
to
Leonard
Barners
his
brother
,
and
to
the
Heirs
Males
of
his
body
,
the
remainder
to
Richard
Barners
,
and
the
Heirs
Males
of
his
body
,
the
remainder
to
the
right
Heirs
of
the
Devisor
:
William
the
Son
dies
,
having
Issue
Thomas
his
Son
,
and
Grisell
his
Daughter
,
Wife
to
the
said
Thomas
Baker
;
the
said
Elizabeth
by
Paroll
in
pais
moved
her
Estate
in
the
said
Mannor
of
Hinton
,
and
after
this
entred
into
the
said
Mannor
of
Thoby
,
after
which
the
said
Elizabeth
died
,
and
Thomas
the
Son
,
and
Thomas
the
Uncle
died
also
without
Issue
Male
,
after
which
the
said
Leonard
took
one
Mary
to
Wife
,
and
died
,
having
Issue
Anthony
Barners
,
after
which
the
said
Mary
took
the
said
John
Butler
to
Husband
,
and
after
this
the
said
Anthony
assigned
to
the
said
Mary
the
said
Mannors
of
Thoby
,
in
allowance
for
all
her
Dower
,
wherby
the
said
John
Butler
as
in
the
right
of
his
Wife
entred
into
the
said
Mannor
of
Thoby
,
wherby
the
said
Thomas
Delves
by
the
commandment
of
the
said
Baker
entred
into
the
said
Close
,
of
which
the
Action
is
brought
as
in
right
o●
the
said
Grisell
;
And
whether
this
entry
were
lawful
or
not
,
was
the
question
,
which
was
argued
in
the
Court
,
in
the
time
of
the
late
Lord
Wray
;
and
he
,
and
Gawdy
held
strongly
that
the
entry
of
the
said
Delves
was
lawfull
,
but
Clench
and
Fennor
held
alwaies
the
contrary
,
wherupon
it
was
adjourned
into
the
Exchequer
Chamber
.
But
they
all
agreed
,
that
the
Waiver
made
by
the
said
Elizabeth
by
parole
in
pais
,
was
a
sufficient
Waiver
of
her
Estate
in
Hinton
,
and
the
rather
,
because
of
the
Statute
of
27
H
8.
cap.
10.
the
words
of
which
are
;
That
if
the
Joynture
be
made
after
the
Marriage
,
that
then
the
Wife
surviving
her
Husband
may
after
his
death
refuse
to
take
such
Joynture
.
And
now
it
was
moved
by
Tanfield
,
that
Iudgment
ought
to
be
given
for
the
Plaintiff
,
for
by
the
Waiver
of
the
Wife
,
the
Inheritance
of
Hinton
is
now
to
be
said
wholly
in
the
Husband
ab
initio
,
and
therfore
that
with
Fobbing
being
a
whole
third
part
of
the
whole
Land
which
now
is
to
be
said
to
be
left
to
discend
to
the
Heir
of
the
Devisor
,
as
to
Thoby
;
is
good
for
the
whole
,
and
if
so
then
no
part
therof
descends
to
Grisell
,
and
therfore
the
entry
of
the
said
Delves
in
her
right
is
wrongfull
.
Coke
Attorney-general
to
the
contrary
,
for
he
said
,
That
it
is
to
no
purpose
to
consider
what
Estate
the
Devisor
had
in
the
Mannor
of
Hinton
,
by
reason
of
this
Waiver
made
by
his
Wife
,
Ex
post
facto
after
his
death
.
But
we
are
to
see
what
Estate
the
Devisor
had
in
it
in
the
view
of
the
Law
,
at
the
time
of
his
death
before
the
Waiver
,
and
according
to
it
the
Law
shall
adjudge
that
he
had
power
to
make
his
Devise
by
means
of
the
Statute
;
and
at
this
time
none
can
adjudge
another
Estate
in
him
but
joyntly
with
his
wife
,
of
which
Estate
he
had
no
power
to
make
any
disposition
,
or
to
devise
it
,
or
to
leave
it
for
the
third
part
to
his
Heir
,
for
the
Statute
which
is
an
explanatory
Law
in
this
point
)
saies
,
that
he
ought
to
be
sole
seised
in
such
a
case
.
And
further
the
Statute
of
34
H.
8.
at
the
end
,
is
,
that
the
Land
which
descends
immediatly
from
the
Devisor
shall
be
taken
for
the
third
part
,
and
this
Land
did
not
descend
immediatly
,
for
it
survived
to
the
Wife
untill
she
waived
it
,
and
therfore
this
Land
is
not
to
be
taken
for
any
third
part
,
which
the
Statute
purposed
to
have
been
left
to
the
Heir
,
and
therfore
so
much
shall
be
taken
from
Thoby
as
with
Fobbin
shall
be
a
third
part
to
descend
,
wherb●
Grisell
the
Heir
hath
good
right
yet
to
part
of
Thoby
,
and
therfore
the
entry
of
the
said
Delves
in
her
right
by
commandment
of
her
husband
not
wronfull
.
Periam
chief
Baron
,
Clench
,
Clark
,
Walmsley
,
and
Fennor
,
That
now
by
reason
of
the
Waiver
in
the
Devisor
shall
be
sole
seised
ab
initio
,
for
the
said
Elizabeth
might
have
had
Dower
therof
,
if
she
would
,
as
in
the
like
case
it
is
adjudged
in
17
E.
3.
6.
and
therfore
a
sole
Seisin
in
the
Husband
,
and
the
descent
to
the
Heir
in
such
a
case
upon
the
Waiver
,
shall
take
away
the
entry
of
him
who
hath
right
to
it
.
And
therfore
the
case
now
for
the
Mannor
of
Hinton
is
within
the
very
letter
of
the
Statute
,
as
well
for
the
sole
Seisin
which
was
in
the
Devisor
,
as
for
the
immediate
descent
which
was
from
the
Devisor
to
his
Heir
,
and
therfore
remains
to
the
Heir
for
a
good
third
part
of
the
Inheritance
of
the
Devisor
,
by
the
very
letter
of
the
Statute
,
and
if
the
Letter
had
not
helped
it
,
yet
it
shall
be
helped
by
the
purport
and
intent
of
the
Statute
,
which
ought
to
be
liberally
and
favourably
construed
for
the
benefit
of
the
Subject
,
who
before
the
Statute
of
Vses
might
have
disposed
of
his
whole
Land
by
reason
of
Vses
by
his
Will
,
and
the
Statute
of
27
H.
8.
excludes
him
therof
,
and
therfore
the
Statute
of
32.
&
34
H.
8.
are
to
be
liberally
expounded
as
to
the
Subject
for
the
two
parts
,
and
the
rather
because
it
appeareth
by
the
preamble
of
the
Statute
of
32
H.
8.
that
it
was
made
of
the
liberality
of
the
King
,
and
because
that
by
34
H.
8.
it
appeareth
that
it
was
made
,
to
the
intent
that
the
Subject
shall
take
the
advantage
and
benefit
purposed
by
the
King
in
the
former
Statute
,
by
all
which
it
appeareth
(
as
they
said
)
that
the
said
Statutes
shall
be
liberally
expounded
for
the
advantage
of
the
Subject
,
and
for
his
benefit
,
and
not
so
strictly
upon
the
letter
of
the
Law
as
hath
been
moved
;
and
so
they
concluded
that
Iudgment
ought
to
be
given
for
the
Plaintiff
.
Popham
and
Anderson
the
two
chief
Iustices
,
and
all
the
other
Iustices
and
Barons
held
the
centrary
,
and
that
Iudgment
ought
to
be
given
against
the
Plaintiff
;
and
that
by
the
very
letter
and
purport
of
the
Statutes
of
32
&
34
H.
8.
for
they
said
,
they
are
to
consider
what
Estate
the
Devisor
h●d
●●
the
Land
at
the
time
of
his
Devise
made
,
without
regard
to
that
which
might
happen
by
matter
Ex
post
facto
upon
the
Deed
of
another
:
and
if
it
had
be●n
demanded
of
any
apprised
in
the
Law
,
at
the
time
when
the
Will
w●s
made
,
what
Estate
the
Devisor
then
had
in
the
Mannor
of
Hinton
,
〈◊〉
is
so
unlearned
to
say
,
that
he
had
other
Estate
in
it
,
then
joyntly
with
his
Wife
:
And
if
so
,
it
follows
that
this
Mannor
was
then
out
of
the
letter
and
intent
of
the
Law
,
for
he
was
not
then
sole
seised
therof
,
nor
seised
in
coparcenary
,
nor
in
common
,
and
by
the
words
he
should
be
sole
seised
in
Fee-simple
,
or
seised
in
Fee-simple
in
coparcenary
,
or
in
common
:
It
appeareth
that
the
intent
of
the
Statute
was
,
that
he
shall
have
full
power
of
himself
,
without
the
means
or
aid
of
another
,
to
dispose
of
the
Land
,
of
which
he
is
by
the
Statute
to
make
disposition
,
or
to
leave
it
to
his
Heir
,
and
this
he
hath
not
for
the
Mannor
of
Hinton
here
.
And
further
the
words
of
32
H.
8.
are
,
That
the
Devisor
hath
full
power
at
his
Will
and
pleasure
to
devise
two
parts
of
his
Land
so
holden
as
here
,
and
this
is
to
be
intended
of
such
Land
of
which
he
then
had
full
power
to
make
disposition
,
●nd
this
he
could
not
then
do
for
the
Mannor
of
Hinton
.
And
further
the
words
of
34
H.
8.
are
that
the
devision
for
the
parts
shall
be
made
by
the
Devisor
or
Owner
of
the
Land
by
his
last
Will
in
writing
,
or
otherwise
in
writing
,
and
in
default
therof
by
commission
,
&c.
And
can
any
say
with
reason
,
that
it
was
the
intent
of
the
Statute
that
he
shall
make
the
Devision
of
other
Lands
then
of
those
of
which
he
then
had
full
power
to
devise
or
to
leave
to
his
heir
without
any
future
accident
to
help
him
,
or
the
mean
of
Anthony
by
matter
Ex
post
facto
;
It
is
cleer
that
reason
cannot
maintain
it
.
And
the
words
following
in
the
Act
,
which
are
,
That
the
King
shall
take
for
his
third
part
the
Land
which
descended
to
the
Heir
of
the
●state
tail
,
or
of
Fee-simple
immediatly
after
the
death
of
the
Devisor
;
much
enforce
the
opinion
on
this
side
,
for
it
cannot
be
said
upon
the
death
before
the
Waiver
that
this
Mannor
of
Hinton
was
immediatly
descended
,
ergo
,
it
ought
not
to
be
taken
for
the
third
part
.
And
further
the
words
are
,
If
the
Lands
immediatly
descended
upon
the
death
of
the
Devisor
,
&c.
do
not
amount
to
a
full
third
part
,
that
then
the
King
make
take
into
his
hands
so
much
of
the
other
Lands
of
the
Devisor
as
may
make
a
full
third
part
,
&c.
wherby
it
is
cleer
,
that
in
this
case
if
the
wife
had
not
waived
her
Estate
for
ten
years
after
the
death
of
the
Devisor
,
that
for
all
this
time
the
Queen
could
not
meddle
with
the
Mannor
of
Hinton
,
and
therfore
in
the
mean
while
she
might
well
have
so
much
of
the
Mannor
of
Thoby
,
which
might
well
have
made
a
full
third
part
to
her
,
and
for
so
much
which
she
took
the
Will
was
alwaies
void
,
which
shall
never
be
altered
nor
made
good
by
any
Waiver
Ex
post
facto
.
And
although
the
Waiver
of
the
Fame
put
the
Inheritance
entirely
in
the
Devisor
,
and
in
his
Heir
,
in
relation
to
divers
respects
,
yet
as
to
other
respects
he
sh●ll
not
be
said
in
them
with
such
relation
,
and
especially
upon
the
Statute
in
which
we
now
are
to
respect
the
power
as
it
was
in
him
at
the
time
of
his
death
,
before
this
future
Contingent
.
And
by
Popham
,
If
the
exposition
on
the
other
side
shall
hold
place
upon
the
Statute
,
perhaps
a
man
shall
not
see
by
the
space
of
six
years
,
or
more
,
after
the
death
of
a
Devisor
,
how
his
Devise
shall
work
:
As
a
Feoffment
in
Fee
is
made
to
I.
S.
and
a
Feme
Covert
,
and
their
Heirs
,
of
10
l.
Land
holden
by
Knights-service
in
Capite
,
which
I.
S.
hath
20
l.
Land
in
fee
so
holden
also
;
I.
S.
makes
a
Devise
of
his
20
l.
Land
,
the
Husband
lives
60.
years
after
;
none
will
or
can
deny
but
that
for
this
time
the
Devise
is
not
good
for
two
parts
,
now
the
Husband
dies
,
and
the
Wife
waives
the
Estate
made
to
her
,
this
puts
the
Inheritance
therof
in
the
Heir
of
I.
S.
with
relation
to
divers
respects
,
but
not
to
this
respect
to
make
the
Will
now
good
for
the
whole
20
l.
Land
,
which
therfore
was
void
for
the
third
part
therof
,
for
the
Will
which
once
was
void
by
matter
Ex
post
facto
,
after
the
death
of
the
Devisor
,
cannot
be
made
good
:
And
by
him
the
descent
in
such
a
case
is
not
such
that
it
shall
take
away
the
entry
of
him
who
hath
right
,
because
it
was
not
an
immediate
descent
in
Deed
,
but
upon
the
operation
of
Law
which
gave
Wardship
and
the
like
,
but
not
to
prejudice
any
third
person
.
And
he
said
,
that
although
the
Queen
,
or
other
Lord
upon
eviction
of
the
Land
descended
,
or
the
determination
of
the
Estate
therof
,
may
resort
to
Lands
devised
or
assured
,
and
take
a
third
part
therof
,
yet
therby
the
Devise
or
Assurance
remains
effectuall
against
the
Heir
,
but
this
is
by
a
speciall
clause
in
the
Statute
of
34
H.
8.
which
gives
it
to
them
,
but
no
such
remedy
is
given
to
the
Devisee
to
help
him
if
his
part
be
abridged
,
or
evicted
:
And
the
words
are
precise
,
to
wit
,
If
the
part
left
or
assigned
to
the
King
,
or
to
any
Lord
,
at
any
time
during
their
Interest
therin
be
evicted
,
&c.
that
they
shall
have
so
much
o●
the
two
parts
residue
,
as
shall
make
a
full
third
part
of
the
remainder
not
evicted
,
&c.
Wherby
it
appeareth
,
that
this
is
given
only
for
the
benefit
of
the
Lords
,
and
not
of
the
Heir
,
nor
of
the
Devisee
;
f●r
if
after
the
Interest
of
the
Queen
,
or
other
Lord
be
determined
,
this
which
was
left
he
evicted
from
the
Heir
,
it
shall
not
be
helped
against
the
devise
,
but
the
Devise
remains
good
to
the
Devisee
against
the
Heir
for
the
whole
Land
devised
,
wherby
it
appeareth
,
that
it
was
the
very
purport
and
intent
of
the
Statute
,
that
the
Devise
remain
as
it
was
at
the
time
of
the
death
of
the
Devisor
,
without
having
regard
to
that
which
hapneth
Ex
post
facto
,
unlesse
for
this
point
helped
by
this
speciall
clause
of
the
Statute
▪
and
this
is
for
the
Lord
and
his
Interest
only
,
and
for
no
other
:
And
by
him
also
cleerly
the
Statute
which
is
an
explanatory
Law
shall
never
be
taken
by
equity
in
the
precise
point
explained
to
impugne
the
point
of
explanation
,
as
here
the
Statute
wills
that
the
Estate
of
Inheritance
comprised
in
the
former
Statute
,
shall
be
explained
to
be
Fee-simple
,
it
cannot
now
by
any
equity
be
,
as
to
the
power
to
make
a
Devise
which
is
meerly
given
by
the
authority
of
the
Statute
,
said
to
be
of
any
other
Estate
then
Fee-simple
,
of
which
a
Devise
may
be
made
:
And
therfore
if
Land
be
given
to
another
and
his
Heirs
for
the
term
of
another
mans
life
,
a
Devise
cannot
be
made
of
this
,
because
it
is
not
an
Inheritance
in
Fee-simple
,
but
only
the
limitation
of
a
Free-hold
:
And
where
the
Statute
saith
,
having
a
sole
Estate
,
we
cannot
by
any
equity
,
that
it
shall
be
taken
of
any
joynt
Estate
,
as
to
make
any
disposition
of
that
which
she
had
in
Ioynture
,
and
therupon
the
greater
part
resolved
that
Iudgment
shall
be
given
against
the
Plaintiff
for
the
Defendants
.
Southwell
versus
Ward
.
4.
IN
a
second
deliverance
between
Richard
Southwell
Esquire
,
Plaintiff
,
and
Miles
Ward
Avowant
,
by
Demurrer
upon
the
Avowry
,
the
Case
appeared
to
be
this
.
That
Iohn
,
Prior
of
the
Church
of
Saint
Faiths
in
Horsham
in
the
County
of
Norfolk
,
was
seised
in
his
Demesne
as
of
fee
,
in
the
right
of
his
said
Priory
,
of
8.
Messuages
.
300.
acres
of
Land
,
30.
acres
of
Meadow
,
60.
acres
of
Pasture
,
and
200.
acres
of
Wood
,
with
their
Appurtenances
in
Horsham
aforesaid
:
And
so
seised
,
the
said
Prior
with
the
assent
of
his
Covent
,
by
their
Deed
indented
,
shewn
forth
,
bearing
date
the
first
day
of
Ianuary
,
13
E.
4.
and
by
licence
of
the
King
aforesaid
,
granted
to
William
then
the
Master
of
the
Hospitall
of
St.
Giles
in
Norwich
,
and
to
the
Brothers
of
the
same
Hospitall
,
and
to
their
Successors
200.
Fagots
,
and
200.
Focalls
called
Astle-wood
,
yearly
to
be
taken
of
all
the
Lands
and
Tenements
of
the
said
Prior
and
Covent
in
Horsham
aforesaid
,
by
the
Servants
of
the
said
Prior
and
Covent
,
and
their
Successors
▪
yearly
to
be
carried
to
the
said
Hospitall
,
at
the
costs
and
expences
of
the
said
Prior
and
Covent
,
and
their
Successors
,
at
the
Feast
of
St.
Michael
.
or
20
s.
of
lawfull
money
for
them
at
the
election
of
the
said
Master
and
Brethren
,
and
their
Successors
,
to
take
yearly
in
the
same
Lands
and
Tenements
in
Horsham
,
to
the
use
of
the
poor
and
infirm
persons
there
being
or
coming
:
So
that
if
it
happen
the
said
Fagots
and
Focalls
,
or
the
said
20
●
.
for
them
to
the
said
Master
and
Freres
in
form
aforesaid
,
to
be
arrear
in
al●o
:
part
.
&c.
then
they
may
distrain
in
the
said
Lands
and
Tenements
,
and
the
Distresse
detain
until
they
be
fully
satisfied
of
the
said
Fagots
and
Focals
,
or
of
the
said
20
s.
for
them
as
is
aforesaid
,
with
this
Proviso
further
,
That
if
at
any
one
or
more
times
,
the
said
Master
and
Brethren
have
chosen
to
have
the
Fagots
and
Focals
,
yet
at
any
other
time
they
make
the
20
s.
for
them
,
and
although
they
have
taken
the
20
s.
for
them
,
once
,
or
oftner
,
yet
at
any
other
time
they
may
take
the
Fagots
and
Focals
themselves
,
and
that
they
may
so
vary
t●ties
qu●ties
,
and
d●strain
for
them
accordingly
,
reasonable
notice
being
given
of
their
Election
,
in
form
aforesaid
.
And
the
said
Master
and
Brethren
granted
by
the
same
Deed
to
the
said
Prior
and
Covent
,
and
their
Successors
,
that
they
or
,
others
sufficiently
warranted
by
them
,
would
give
sufficient
notice
of
their
election
yearly
,
the
first
Sunday
of
April
,
in
the
Church
of
the
said
Hospital
,
to
some
Officer
of
the
said
Prior
and
Covent
,
and
their
Successors
,
if
they
send
any
thither
for
this
cause
.
By
force
of
which
Grant
,
the
said
Master
and
Brethren
were
seised
of
the
said
yearly
rent
of
the
said
200.
Fagots
,
and
200.
Facals
called
Astlewood
accordingly
,
and
so
being
seised
,
they
by
their
sufficient
Writing
enrolled
of
Record
in
the
Chancery
,
in
the
first
year
of
the
late
King
Ed.
6.
gave
and
granted
to
the
same
King
the
said
Hospitall
,
&
all
the
Lands
Tenements
and
Hereditaments
of
the
said
Hospitall
;
To
have
and
to
hold
to
him
,
and
his
Heirs
and
Successors
for
ever
,
wherby
the
said
King
was
therof
,
and
of
the
said
annuall
Rent
seised
accordingly
,
and
so
seised
the
7.
day
of
May
,
in
the
same
year
,
the
said
King
Edw.
by
his
Letters
Patents
,
bearing
date
the
same
day
and
year
,
granted
the
said
Hospitall
and
the
rent
of
the
said
Fagots
,
and
Focals
,
and
other
the
Premisses
,
to
the
Major
,
Sheriff
,
Citizens
,
and
Commons
of
the
City
of
Norwich
,
and
to
their
Successors
for
ever
:
and
for
1600.
Fagots
,
and
1600.
Focals
of
the
said
annuall
rent
of
200.
Fagots
,
and
200.
Focals
,
being
arrear
at
the
Feast
of
S.
Michael
the
Arch-angel
,
23
Eliz.
the
said
Ward
took
the
Distresse
,
and
made
Conusance
as
Bailiff
to
the
said
Major
,
Sheriff
,
&c.
And
it
was
moved
that
the
Avowry
was
not
good
,
first
,
because
it
being
matter
of
Election
which
was
granted
to
the
Master
and
Brethren
,
and
their
Successors
,
to
wit
,
the
Fuell
,
or
the
20
s.
it
doth
not
appear
that
they
ever
made
any
election
of
the
one
,
or
the
other
,
and
untill
it
appeareth
that
they
have
made
their
Election
to
have
the
one
or
the
other
,
it
is
not
to
be
granted
over
by
generall
words
:
But
by
the
dissolution
of
the
Hospitall
the
grant
for
want
of
Election
before
is
gone
and
determined
.
And
further
,
wheras
the
King
made
his
Grant
of
the
Hospitall
,
and
of
all
the
said
rent
of
Fagots
and
Focals
,
without
making
mention
of
20
s.
for
the
same
,
it
was
moved
that
if
it
doth
passe
to
the
King
,
yet
it
doth
not
passe
from
him
to
the
Major
,
&c.
in
as
much
as
he
granted
it
precisely
as
a
Fuell
,
wheras
it
was
in
him
as
a
Rent
of
Fuell
,
or
of
money
at
his
Election
,
and
therfore
the
King
deceived
in
his
Grant
.
And
further
,
here
he
hath
made
Conusance
for
the
Fuell
,
without
making
mention
of
their
Election
,
to
have
it
one
way
,
or
another
before
the
taking
;
but
all
the
Court
agreed
that
the
Conusance
was
good
,
and
that
the
return
shall
be
awarded
to
him
who
made
the
Conusance
:
first
,
because
that
this
case
is
quite
out
of
the
case
of
Election
,
because
the
rent
which
is
granted
is
only
out
of
the
Fagots
and
Astlewood
,
and
the
20
s.
granted
is
not
as
a
distinct
thing
,
but
granted
as
a
recompence
or
satisfaction
of
that
,
because
the
Grant
is
of
the
Fagots
,
&c.
or
of
20
s.
for
the
same
;
so
that
in
such
a
case
the
Seisin
of
the
20
s.
is
a
good
Seisin
of
the
Fagots
and
Focals
,
and
sufficeth
to
maintain
an
Assise
upon
this
Seisin
for
the
Fuell
,
but
not
for
the
20
s.
as
money
paid
for
Suit
of
Court
is
good
Seisin
of
the
Suit
:
And
the
20
s.
here
is
not
granted
in
nature
of
a
Rent
of
so
much
,
but
as
an
allowance
in
satisfaction
for
the
Fuell
.
And
Popham
conceived
,
that
he
shall
have
an
Action
of
debt
for
this
20
s.
for
the
fuell
,
after
the
Election
made
if
he
will
,
as
for
a
Nomine
poene
,
because
it
is
not
the
principall
thing
granted
of
which
the
Inheritance
is
,
but
a
casuall
Accident
in
recompence
therof
if
he
will
have
it
,
or
otherwise
he
may
distrain
for
it
,
because
it
is
so
limited
to
be
done
by
the
Grant
it self
:
But
they
shall
never
have
assurance
of
the
20
s.
as
a
thing
of
Inheritance
,
because
it
is
not
the
thing
of
which
the
Inheritance
is
granted
,
but
only
granted
in
allowance
and
satisfaction
of
it
,
and
therfore
not
to
be
resembled
to
the
cases
where
20.
quarters
of
Corn
,
or
20
s.
Rent
is
granted
to
one
and
his
Heirs
,
or
other
such
thing
which
stands
meerly
in
the
disjunctive
,
to
wit
,
to
have
,
or
take
,
the
one
,
or
the
other
.
And
therfore
suppose
the
Prior
was
to
carry
the
Fuell
yearly
to
the
Hospitall
at
the
Feast
of
S.
Michael
,
and
yet
then
the
Master
and
Brethren
might
have
refused
the
Fuell
,
and
held
themselves
to
have
the
20
s.
by
force
of
the
Grant
,
for
then
originally
the
Election
ought
to
have
been
made
there
:
But
upon
the
Covenant
which
cometh
afterwards
on
the
other
part
,
the
notice
ought
to
have
been
given
in
April
yearly
before
,
but
if
it
be
not
done
,
there
lies
but
an
Action
of
Covenant
for
the
not
doing
of
it
,
for
this
will
not
alter
the
nature
of
the
Grant
which
was
full
and
perfect
in
Law
before
.
And
here
he
needs
not
make
this
appearance
in
the
Conusance
,
that
any
Election
was
made
before
the
taking
of
the
Cattel
,
because
the
Grant
is
of
the
Fuell
it self
,
and
if
the
other
had
made
Election
before
to
have
the
20
s.
for
the
Fuell
,
this
ought
to
have
been
shewn
on
the
other
side
in
Bar
of
the
Avowry
,
to
wit
,
that
he
brought
to
them
the
Fuell
yearly
according
to
the
Grant
,
and
that
they
refused
it
,
and
required
the
20
s.
every
time
for
it
,
in
which
case
for
every
such
refusall
and
Election
to
have
the
20
s.
for
it
,
it
had
excluded
him
to
have
any
Fuell
for
this
year
so
refused
.
And
by
Popham
also
,
you
may
see
a
great
diversity
between
this
case
,
where
a
man
is
to
deliver
to
another
20.
Loads
of
Wood
,
or
20.
Loads
of
Hay
yearly
out
of
such
Land
,
and
he
does
not
tender
them
for
divers
years
,
and
where
a
man
is
to
take
so
much
Fuell
,
or
Hay
out
of
the
Land
of
another
,
and
he
takes
it
not
for
divers
years
,
for
in
the
former
case
the
party
who
is
not
satisfied
sh●ll
have
all
the
arrears
,
be
it
never
so
prejudiciall
to
the
Grantor
,
because
it
was
through
his
own
default
that
it
was
not
paid
,
but
in
the
other
case
as
appeareth
,
27
H.
6.
10.
he
shall
not
have
any
remedy
for
the
arrears
for
the
years
past
,
because
he
took
them
not
yearly
as
they
were
due
,
which
sh●ll
not
turn
the
other
party
to
prejudice
,
that
he
shall
want
Fuell
,
or
Hay
himself
,
by
reason
of
the
arrears
which
hapned
through
the
default
of
him
who
ought
to
take
it
,
and
the
Iudgment
was
given
for
him
who
made
the
Conusance
,
and
it
is
entred
in
the
Kings
Bench
,
Mich.
33.
&
34.
Eliz.
Rot.
229.
Southwells
Case
.
5.
AT
the
end
of
this
Term
,
upon
the
proceeding
against
Southwell
the
Iesuite
,
it
was
moved
by
the
Attorney-general
to
Popham
chief
Iustice
,
the
Master
of
the
Rolls
,
Periam
chief
Baron
,
Walmsley
,
and
Owen
Iustices
,
and
Ewens
one
of
the
Barons
of
the
Exchecquer
upon
the
form
of
Indictments
,
upon
the
Statute
of
27
Eliz.
for
Iesuits
,
&c
If
it
need
be
comprehended
in
the
Indictment
of
a
Iesuite
,
who
cometh
into
the
Realm
of
England
,
or
any
Dominions
of
the
Queen
,
or
shall
be
taken
therin
40.
daies
after
the
end
of
this
Session
of
Parliament
,
that
if
he
doth
not
submit
himself
within
three
daies
of
his
landing
,
if
he
cometh
in
after
the
40.
daies
according
to
the
Proviso
of
the
Statute
,
or
that
he
was
not
so
infirm
of
his
body
)
where
he
came
in
before
the
40.
daies
)
that
he
was
not
able
to
passe
out
of
the
Realm
by
the
time
prescribed
at
first
,
because
that
it
is
comprised
in
the
body
of
the
Act
,
that
it
shall
not
be
lawfull
for
any
Iesuite
,
&c.
being
born
within
this
Realm
,
or
any
other
the
Queens
Dominions
,
&
made
after
the
Feast
of
S.
John
Baptist
,
in
the
first
year
of
her
Raign
,
or
after
this
to
be
made
by
any
authority
derived
,
&c.
from
the
See
of
Rome
to
come
,
be
,
or
remain
in
any
part
of
this
Realm
,
&c.
otherwise
then
in
such
speciall
cases
,
and
upon
such
speciall
occasions
,
and
for
such
time
only
which
is
expressed
in
this
Act
,
and
if
he
does
,
that
this
offence
shall
be
adjudged
high
Treason
&c.
And
after
deliberation
taken
,
and
consideration
and
conference
amongst
themselves
had
,
they
all
resolved
that
the
better
course
was
to
omit
this
in
the
Indictment
,
notwithstanding
it
be
comprised
in
the
body
of
the
Act
in
the
same
manner
as
if
it
had
been
only
in
a
Proviso
;
in
which
case
it
is
to
the
Prisoner
to
help
him
by
means
of
such
a
Proviso
,
if
he
can
do
it
:
for
the
words
(
other
then
,
&c.
)
are
but
as
referring
to
the
provision
subsequent
in
the
Statute
,
in
which
case
this
matter
shall
be
used
but
as
the
Proviso
it self
shall
be
;
and
according
to
this
it
hath
been
commonly
put
in
practise
by
all
the
Iustices
in
all
places
after
the
Statute
untill
now
.
And
they
agreed
also
,
that
it
need
not
be
shewn
whether
he
were
made
a
Iesuit
,
or
Priest
,
&c.
either
beyond
Sea
,
or
within
the
Realm
,
because
whersoever
it
was
,
it
is
within
the
Law
if
he
were
made
by
the
pretended
authority
of
the
See
of
Rome
.
But
they
agreed
that
it
ought
to
be
comprised
in
the
Indictment
that
he
was
born
within
this
Realm
,
or
other
Dominions
of
the
Queen
,
but
need
not
to
shew
where
,
but
generally
,
Et
quod
I.
S.
natus
infra
hoc
Regnum
Angliae
,
&c.
And
the
Indictment
ought
to
comprise
that
he
was
a
Iesuite
,
or
Priest
&c.
by
authority
challenged
or
pretended
from
to
the
See
of
Rome
,
because
that
this
is
in
the
body
of
the
Act
,
without
such
reference
as
in
the
other
point
,
and
according
to
this
resolution
the
proceeding
was
against
the
said
Southwell
.
Easter
Term
,
37
Eliz.
Pigots
Case
.
1.
AFter
the
death
of
Valentine
Pigot
Esquire
,
a
Commission
was
awarded
in
nature
,
of
a
Mandamus
,
and
after
the
death
of
Thomas
Pigot
Father
of
the
said
Valentine
,
a
Commission
was
awarded
in
nature
of
a
Diem
clausit
extremum
,
and
the
said
Commissions
were
awarded
to
one
and
the
same
Commissioners
,
who
by
one
Inquest
took
but
one
Inquisition
upon
these
severall
Commissions
in
this
form
.
Inquisitio
indentata
capt●
apud
,
&c.
virtute
Commiss
.
in
natura
brevis
de
diem
clausit
extremum
eisdem
Commiss
.
direct
.
&c.
ad
inquirendum
post
mortem
Thomae
Pigot
,
Ar.
nuper
defuncti
patris
predict
.
Valentin
.
per
sacramentum
,
&c.
Qui
d●cunt
,
&c.
After
which
all
the
points
of
the
C●mmission
after
the
death
of
the
s●id
Valentine
are
enquired
of
;
but
for
the
Commissions
after
the
death
of
the
said
Thomas
Pigot
,
it
is
imperfect
in
some
points
,
as
who
is
his
Heir
,
&c.
is
not
found
.
And
by
Popham
and
Anderson
,
this
Inquisition
is
void
as
to
Valentine
as
well
as
for
Thomas
,
for
their
authorities
which
are
the
Commissions
are
by
severall
Warrants
which
cannot
be
simul
&
semel
by
one
and
the
same
Inquisition
executed
and
satisfied
,
but
ought
to
be
divided
and
severall
,
as
the
Warrant
is
severall
,
and
yet
the
same
Inquest
which
found
one
Inquisition
by
one
Warrant
,
may
also
find
another
Inquisition
by
the
other
Warrant
,
but
divided
and
severall
,
and
not
as
one
,
for
as
it
is
made
it
does
not
appear
upon
which
of
the
Commissions
the
Inquisition
as
to
Valentine
is
taken
,
for
as
it
is
made
it
may
be
as
well
upon
the
one
as
upon
the
other
,
for
it
is
said
to
be
by
vertue
of
both
the
Commissions
,
which
cannot
be
,
and
therfore
is
not
good
in
any
part
,
and
severall
Warrants
ought
to
be
severally
execused
,
and
therfore
although
the
Escheator
as
appeareth
by
9
H.
7.
8.
may
take
●●
Inquisition
Virtue
officii
,
and
at
the
same
day
another
Inquisition
,
Virtue
brevis
by
one
and
the
same
Inquest
,
yet
this
cannot
be
drawn
into
one
Inquisition
:
And
that
which
is
found
Virtue
officii
contrary
to
that
which
before
the
same
day
Virtute
libris
,
as
that
it
found
more
Land
,
is
good
for
the
King
.
And
this
their
opinion
was
certified
to
the
Court
of
Wards
.
Sir
Rowland
Haywards
Case
.
2.
THis
Case
was
also
sent
to
the
same
chief
Iustices
out
of
the
Court
of
See
this
case
in
Coke
●
.
Report
35.
Wards
:
Sir
Rowland
Hayward
being
seised
in
his
Demesne
as
of
Fee
,
of
the
Mannors
of
D.
and
A.
in
the
County
of
Salop
,
and
of
other
Lands
in
the
same
County
,
part
wherof
were
in
Lease
for
years
by
severall
Indentures
,
rendring
certain
rent
,
part
in
the
possessions
of
severall
Copyholders
,
and
part
in
Demesne
in
possession
out
of
Lease
,
by
Indenture
dated
2.
September
,
34.
Eliz.
made
mention
that
this
was
for
,
and
in
consideration
of
a
certain
sum
of
money
to
him
paid
by
Richard
Warren
Esquire
,
and
others
,
demised
,
granted
bargained
and
sold
to
the
said
Richard
Warren
and
the
others
,
the
said
Mannors
,
Lands
,
and
Tenements
,
and
the
Reversion
and
Remainder
of
them
,
and
of
every
part
of
them
,
and
the
Rents
and
Profits
reserved
upon
any
Demise
therupon
for
17.
years
,
next
ensuing
the
death
of
the
said
Sir
Rowland
,
rendring
a
Rose
at
the
Feast
of
S.
John
Baptist
yearly
,
if
it
be
demanded
,
which
Deed
was
acknowledged
to
be
enrolled
,
and
afterwards
by
another
Indenture
covenanted
and
granted
for
him
and
his
Heirs
,
hereafter
to
stand
seised
of
the
said
Mannors
,
Lands
,
and
Tenements
,
to
the
use
of
the
said
Sir
Rowland
,
and
of
the
Heirs
Males
of
his
body
,
and
afterwards
and
before
any
Attornment
to
the
said
Richard
Warren
and
his
Co-lessees
,
or
any
of
them
,
the
said
Sir
Rowland
died
seised
of
the
said
Mannors
,
Lands
,
and
Tenements
,
leaving
a
full
third
part
of
other
Lands
to
descend
to
his
Heir
.
And
it
was
moved
on
the
Queens
part
,
that
for
part
,
to
wit
,
for
that
which
was
in
possession
it
past
to
the
said
Richard
Warren
,
and
the
other
by
way
of
Demise
at
Common
Law
,
and
therfore
it
doth
not
passe
afterwards
by
way
of
Bargain
and
Sale
as
to
the
Remainder
,
and
that
therfore
for
the
Services
of
the
Mannors
,
and
for
the
Rents
reserved
upon
the
Demise
,
these
remain
to
the
Heir
who
was
in
Ward
to
the
Queen
,
and
within
age
,
and
therfore
to
the
Queen
by
reason
of
the
Tenure
which
was
in
Capite
by
Knights-service
.
But
by
Popham
and
Anderson
it
is
at
the
Election
of
the
said
Richard
Warren
and
his
Co-lessees
to
take
it
by
way
of
Demise
,
or
by
way
of
Bargain
and
Sale
,
untill
that
by
some
act
done
,
or
other
matter
,
it
may
appear
that
their
intent
is
to
take
it
another
way
,
for
the
Vse
in
this
case
may
well
passe
without
the
Inrolement
of
the
Deed
,
because
the
Statute
of
27
H.
8.
of
Inrolements
,
extends
but
to
where
a
Free-hold
is
to
passe
,
and
the
Vse
so
passing
,
this
shall
be
executed
by
the
Statute
of
27
H.
8.
of
Vses
,
and
therfore
if
the
said
Richard
Warren
and
his
Co-lessees
after
the
death
of
the
said
Sir
Rowland
Hayward
,
would
elect
to
take
it
by
way
of
Bargain
and
Sale
,
they
shall
have
all
the
Reversions
,
Remainders
,
Rents
,
and
Services
,
as
well
as
the
Land
in
possession
executed
to
them
by
the
Statute
of
Vses
:
And
of
the
same
opinion
were
all
the
Iustices
in
Trinity
Term
following
,
upon
their
meeting
at
Serjeants-Inne
for
another
great
cause
.
Trinity
Term
,
37
Eliz.
1.
VPon
an
Assembly
of
all
the
Iustices
and
Barons
of
the
Exchecquer
at
That
if
a
man
taken
for
Felony
be
examined
by
a
Justice
of
Peace
,
it
appeareth
that
the
Felon
is
not
bailable
by
the
Law
,
and
yet
the
Justices
commit
him
to
Goal
but
as
upon
suspition
of
Felony
,
not
making
mention
for
any
cause
for
which
he
is
not
bailable
,
wherby
he
is
brought
before
another
Justice
of
Peace
,
not
knowing
of
any
matter
why
he
ought
not
to
be
bailed
,
wherupon
they
bail
him
,
these
Justices
ought
to
be
fined
by
the
Statute
of
1
,
&
2.
Phil.
&
Mar.
for
they
offend
if
they
bail
him
,
who
by
the
Statute
of
Westm.
1.
is
not
bailable
,
and
therfore
they
at
their
peril
ought
so
to
inform
themselves
before
the
bail
taken
of
the
matter
,
that
they
may
be
well
satisfied
that
such
a
one
is
bailable
by
Law
,
;
and
therfore
observe
well
the
Statute
of
Westm.
1.
cap.
18.
who
is
bailable
,
and
who
not
by
the
Law
.
And
it
seems
that
no
Justice
of
Peace
could
have
bailed
any
one
for
Felony
before
the
Statute
of
1
Rich.
3.
cap.
3.
which
is
made
void
by
3
H.
7.
cap.
3.
for
before
this
he
ought
to
have
been
bailed
by
the
Sheriff
,
or
other
Keeper
of
the
Prison
where
he
was
in
Ward
,
or
by
the
Constable
,
and
by
no
other
Officer
,
unlesse
Justices
of
the
Kings
Bench
,
Justices
in
Eyre
,
or
Justices
of
Goal-delivery
.
Herbin
versus
Chard
,
and
others
.
2.
IN
Trespasse
by
William
Herbin
Plaintiff
,
against
Chard
and
others
Defendants
,
for
a
Trespasse
made
at
Pynon
Farm
in
Netherbury
and
Loder
,
in
the
County
of
Dorset
,
the
Case
upon
the
Demurrer
appeared
to
be
this
.
The
Lord
Mordant
was
seised
of
the
Farm
,
in
his
Demesne
as
of
Fee
,
and
so
seised
,
demised
it
to
Philip
Fernam
,
Elizabeth
his
wife
,
and
Iohn
Fernam
the
eldest
Son
of
the
said
Philip
,
for
term
of
their
lives
,
and
of
the
Survivor
of
them
,
and
the
said
Eliz.
died
,
after
which
the
said
Philip
his
Father
demised
his
part
of
the
Farm
by
his
Deed
indented
,
dated
13.
Mart.
32.
Eliz.
to
Philip
his
Son
,
and
Toby
Fernam
his
Son
,
for
eighty
years
,
immediatly
after
the
death
of
the
said
Philip
the
Father
,
if
the
said
Iohn
Fernam
shal
so
long
live
,
with
divers
remainders
over
for
years
,
depending
upon
the
life
of
the
said
Iohn
,
after
which
the
said
Philip
the
Father
died
,
and
Iohn
survived
him
,
and
demised
the
said
Farm
to
the
Plaintiff
,
upon
whom
the
Defendants
entred
in
right
of
the
said
Philip
and
Toby
,
and
whether
their
entry
were
congeable
,
was
the
question
:
And
it
was
moued
by
Goodridge
of
the
Middle-Temple
,
that
the
entry
of
the
Defendant
was
not
lawfull
,
because
the
said
John
was
now
in
by
the
Lessor
,
and
not
by
his
joynt
Companion
.
And
further
,
he
had
no
power
to
dispose
therof
beyond
his
own
life
;
for
suppose
that
he
makes
a
Lease
therof
for
years
,
and
afterwards
grant
over
his
Estate
to
a
stranger
,
and
dies
,
the
Lease
for
years
is
therby
determined
,
albeit
his
joynt
Companion
be
yet
living
,
and
that
his
Estate
continues
.
And
yet
he
agreed
,
that
if
had
made
a
Lease
for
years
,
to
begin
at
a
day
to
come
,
as
at
Michaelmas
following
,
or
the
like
,
that
this
had
been
good
,
for
it
is
an
Interest
in
the
Grantee
to
be
granted
over
for
the
presumption
,
that
it
might
be
executed
in
his
life
;
but
in
the
other
case
there
is
not
any
possibility
,
that
he
who
hath
not
but
for
his
life
,
can
demise
it
to
begin
after
the
Estate
made
to
him
is
determined
.
But
on
the
other
part
,
it
was
moved
that
the
Demise
remains
in
force
for
the
life
of
the
said
John
,
for
at
the
first
every
one
had
an
interest
for
the
life
of
the
other
also
,
and
therfore
if
one
Ioynt-tenant
for
life
make
a
Lease
for
years
in
possession
,
and
dies
,
the
Lease
yet
continues
.
And
Crook
the
younger
alledged
,
that
it
was
adjudged
at
last
Hartf
.
Term
,
If
a
man
possessed
of
a
Term
for
years
in
right
of
his
Wife
,
makes
a
Lease
for
years
of
the
same
Lands
to
begin
after
his
death
,
&
dies
during
the
Term
,
without
other
alteration
of
it
,
and
the
Wife
survives
him
,
that
now
the
Lease
made
by
the
Husband
,
is
good
,
and
that
the
like
case
as
this
,
by
the
opinion
of
Clench
and
Walmsley
was
decreed
to
be
good
in
the
Chancery
.
Arton
versus
Hare
3.
IN
a
second
deliverance
between
Francis
Arton
Plaintiff
,
and
Henry
Hare
Avowant
,
the
case
appeared
to
be
this
.
William
Cocksey
Esquire
,
was
seised
in
his
Demesne
as
of
Fee
,
of
the
Mannor
of
Wolverton
in
the
County
of
Worcester
,
and
so
seised
in
Octab.
Mich.
7
Eliz.
levied
a
Fine
of
the
said
Mannor
to
certain
persons
,
to
the
use
of
the
said
William
and
Alice
his
Wife
,
and
the
Heirs
of
William
,
untill
a
marriage
had
between
Martin
Croft
,
and
Anne
Wigstone
,
and
after
this
marriage
to
the
use
of
the
said
William
and
Alice
his
Wife
,
and
the
Heirs
of
the
body
of
the
said
William
,
and
for
defualt
of
such
Issue
,
to
the
use
of
the
said
Martin
Crofts
and
Anne
,
and
the
Heirs
Males
of
the
body
of
the
said
Martin
upon
the
body
of
the
said
Anne
begotten
,
untill
the
said
Martin
should
go
about
to
alien
,
sell
,
grant
,
or
give
the
said
Mannor
,
or
any
parcell
therof
,
or
to
suffer
any
Recovery
,
or
levy
any
Fine
therof
,
or
make
any
discontinuance
,
&c.
And
after
the
Estate
of
the
said
Martin
and
Anne
,
and
of
the
Heirs
Males
of
their
bodies
to
the
Premisses
,
by
any
such
attempts
determined
and
finished
,
then
to
the
use
of
the
said
Anne
for
her
life
,
and
after
,
to
the
use
of
the
Heirs
Males
of
the
body
of
the
said
Martin
upon
the
body
of
the
said
Anne
lawfully
begotten
,
and
for
default
of
such
Issue
,
to
the
use
of
the
Heirs
of
the
body
of
the
said
Martin
,
and
for
default
of
such
Issue
,
to
the
use
of
Giles
Croft
brother
of
the
said
Martin
,
and
the
Heirs
Males
of
his
body
,
untill
,
&c.
as
before
,
and
after
to
the
use
of
the
Heirs
of
the
body
of
the
said
Giles
,
and
for
default
of
such
Issue
,
to
the
use
of
Edmund
Crofts
,
the
third
brother
of
the
said
Martin
,
and
of
the
Heirs
Males
of
his
body
,
as
is
before
limited
to
the
said
Giles
,
with
remainders
over
,
afterwards
the
marriage
was
had
between
the
said
Martin
and
Alice
,
after
which
the
said
Martin
and
Giles
died
without
Issue
,
without
any
thing
done
by
the
said
Martin
to
determine
his
Estate
,
or
by
the
said
Giles
to
determine
his
Estate
,
if
any
had
been
.
And
it
was
agreed
by
all
the
Court
,
that
as
this
case
is
,
no
remainder
can
enure
over
to
the
said
Giles
,
without
an
attempt
precedent
by
the
said
Martin
to
determine
his
Estate
,
because
the
Estate
of
Giles
is
not
limited
to
begin
but
upon
such
an
attempt
precedent
.
And
in
the
same
manner
Edmund
shall
have
nothing
untill
the
Estate
of
Giles
determine
by
some
attempt
made
by
him
,
if
the
said
Giles
had
an
Estate
,
because
the
Estate
of
Edmund
depends
upon
the
attempt
made
by
Giles
precedent
to
it
,
which
not
being
done
,
the
Estate
of
Edmund
never
hapned
to
be
;
and
therfore
he
who
cometh
in
under
a
Discontinuance
made
by
the
said
William
Cocksey
,
after
the
death
of
Martin
and
Giles
without
Issue
,
notwithstanding
the
Remitter
of
the
said
Alice
in
the
case
,
is
to
have
the
Land
against
those
who
come
in
by
the
said
Edmund
,
and
upon
this
point
only
Iudgment
was
given
accordingly
in
the
Kings
Bench.
Grenningham
versus
the
Executors
of
Heydon
.
4.
IN
Debt
upon
an
Obligation
of
200.
marks
by
Richard
Grenningham
Plaintiff
,
against
the
Executors
of
one
Ralph
Heydon
Defendants
,
the
case
appeared
to
be
this
upon
Demurrer
.
The
said
Heydon
was
bound
to
the
Plaintiff
in
200.
marks
,
the
Condition
wherof
recites
,
that
wheras
the
said
Heydon
had
received
of
the
said
Grenningham
76
l.
6
s
8
d.
before
the
date
of
the
said
Obligation
of
200.
marks
in
payment
and
satisfaction
of
certain
Obligations
and
Bills
of
debt
,
remaining
in
the
hands
of
the
said
Heydon
,
and
specified
in
the
Condition
what
they
were
in
certain
,
and
the
which
said
Bills
&
Obligations
the
said
Heydon
is
to
deliver
,
or
cause
to
be
delivered
to
the
said
Grenningham
,
his
heirs
or
assigns
,
before
the
Feast
of
S.
Michael
,
next
ensuing
the
date
of
the
said
Obligation
,
or
otherwise
the
said
Heydon
,
his
Executors
,
Administrators
,
or
Assigns
,
or
some
of
them
before
the
same
Feast
,
shall
make
,
or
cause
to
be
made
and
delivered
to
the
said
Plaintiff
,
his
Heirs
and
Assigns
,
such
good
and
sufficient
Acquittances
for
the
payment
of
the
said
summs
of
money
formerly
mentioned
,
as
the
said
Plaintiff
,
his
Heirs
,
Executors
,
or
Assigns
,
shall
devise
,
or
cause
to
be
devised
by
the
Counsel
of
the
said
Plaintiff
,
his
Heirs
or
Assigns
,
before
the
Feast
,
without
fraud
or
deceit
,
that
then
the
said
Obligation
shall
be
void
,
&c.
And
before
the
Feast
the
said
Plaintiff
did
not
devise
any
acquittance
;
Whether
now
the
Obligation
be
saved
by
the
Disjunctive
,
without
delivering
the
Obligations
,
and
Bills
before
named
,
before
the
Feast
of
S.
Michael
:
Rot.
36
,
&
37.
Eton
and
Monney
versus
Laughter
.
5.
IN
Debt
upon
an
Obligation
of
400
l.
by
Thomas
Eton
,
and
Roger
See
this
Case
Coke
lib.
5.
21.
by
the
name
of
Laughters
case
.
Monney
Plaintiff
,
against
Thomas
Laughter
Defendant
,
who
was
bound
together
with
one
Richard
Rainford
to
the
said
Plaintiffs
,
the
Condition
of
which
Odligation
was
,
That
if
the
said
Richard
Rainford
after
marriage
had
between
him
and
Jane
Gilman
Widow
,
together
with
the
said
Jane
,
alienate
in
Fee
,
or
Fee-tail
,
all
that
great
Messuage
of
the
said
Jane
in
London
,
in
the
Tenure
of
William
Fitz
Williams
Esquire
,
if
then
the
said
Richard
Rainford
in
his
life
time
purchase
to
the
said
Iane
,
her
Heirs
and
Assigns
,
Lands
and
Tenements
,
of
good
Right
and
Title
,
and
of
as
good
value
as
the
money
raised
upon
the
alienanation
of
the
said
Messuage
amounts
unto
,
or
leave
to
the
said
Iane
after
his
decease
,
as
Executrix
,
or
by
Legacy
,
or
other
good
assurance
,
so
much
money
as
he
shall
receive
or
have
upon
the
said
Sale
,
that
then
the
Obligation
shall
be
void
,
after
which
the
said
Richard
Rainford
married
with
the
said
Jane
,
and
the
said
Richard
and
Jane
sold
the
said
Messuage
in
Fee
by
Fine
,
for
320
l.
received
by
the
said
Richard
Rainford
,
after
which
the
said
Iane
died
,
no
Lands
being
purchased
to
the
said
Iane
by
the
said
Richard
,
and
the
said
Richard
yet
living
.
Michaelmas
Term
,
37
,
&
38.
Eliz.
Sawyer
versus
Hardy
.
1.
IN
an
Ejectione
firmae
,
by
Christopher
Sawyer
Plaintiff
,
against
Edmund
Hardy
Defendant
,
for
a
Messuage
in
S.
Martins
,
upon
a
Demurrer
,
the
case
was
this
.
A
Lease
was
made
of
the
said
Messuage
to
one
Margaret
Sawyer
for
40.
years
,
upon
Condition
,
that
if
the
said
Margaret
should
so
long
continue
a
Widow
,
she
should
dwell
and
stay
in
the
same
Messuage
,
the
said
Margaret
continued
a
Widow
,
and
dwelt
in
the
same
house
all
her
life
,
and
died
during
the
said
Term
of
40.
years
,
making
the
Plaintiff
her
Executor
,
and
by
award
the
Plaintiff
had
Judgment
to
recover
:
For
by
Popham
,
Gawdy
,
and
Clench
,
this
now
was
no
Condition
nor
Limitation
,
for
it
hath
no
certain
conclusion
upon
the
(
that
if
)
to
wit
,
that
then
the
Term
shall
continue
,
or
that
she
shall
pay
so
much
,
or
otherwise
what
the
conclusion
shall
be
,
none
can
imagine
:
As
if
such
a
Lease
be
made
upon
condition
,
that
if
the
Lessee
does
such
a
thing
without
other
conclusion
,
it
is
a
good
Lease
for
40.
years
,
for
none
can
imagine
what
the
conclusion
shall
be
in
such
a
case
,
or
that
then
the
Lease
shal
be
void
,
or
that
he
shall
re-enter
,
or
that
the
Lessee
shall
forfeit
so
much
,
or
what
shall
happen
upon
it
,
for
which
incertainty
it
shall
be
taken
as
a
void
Clause
.
But
by
Popham
,
if
it
had
been
Sub
conditione
si
tamdiu
vixerit
,
it
had
been
good
to
determine
the
Lease
,
but
it
is
otherwise
of
the
word
(
quod
si
)
for
the
incertainty
as
before
.
And
they
all
agreed
,
that
if
the
Lease
had
been
for
40.
years
Si
tamdiu
sols
viveret
&
inhabitaret
in
eodem
Messuagio
,
that
the
Lease
had
been
determined
by
her
marriage
,
or
death
.
In
the
same
manner
,
as
if
it
had
been
Si
tam
diu
vixerit
.
And
so
in
truth
had
been
the
case
if
it
had
been
well
pleaded
,
but
by
pleading
the
advantage
therof
was
lost
,
and
the
truth
not
disclosed
.
But
by
Popham
,
If
a
Lease
be
made
for
40.
years
,
if
he
shall
dwell
in
the
same
for
his
life
,
there
it
is
good
for
40.
years
,
upon
performance
of
the
Condition
,
the
diversity
appeareth
,
to
wit
,
where
it
is
,
if
he
shall
dwell
there
during
the
Term
,
and
where
it
is
,
if
he
shall
inhabit
there
during
his
life
.
Goodale
versus
Wyat.
2.
IN
an
Ejectione
firmae
by
Cuthbert
Goodale
Plaintif
,
against
John
Wyat
See
this
Case
Coke
lib.
5.
fol.
95
,
96.
by
the
name
of
Goodales
case
.
Defendant
,
for
a
Meadow
in
Aylesbury
,
in
the
County
of
Buck.
called
Diggelmore
,
upon
a
speciall
Verdict
the
case
was
this
.
Sir
Iohn
Packington
Knight
,
enfeoffed
therof
one
Ralph
Woodliff
,
to
have
and
to
hold
to
him
and
his
Heirs
,
upon
condition
,
that
if
the
said
Sir
Iohn
within
a
year
after
the
death
of
the
said
Ralph
,
pay
to
the
Heirs
,
Executors
,
or
Administrators
of
the
said
Ralph
,
the
summ
of
a
100.
marks
of
lawfull
money
,
that
then
the
said
Feoffment
and
Seisin
made
therupon
shall
be
void
;
Ralph
Woodliff
made
a
Feoment
over
to
others
therof
,
and
died
intestate
,
and
Administration
was
committed
to
Anne
his
Wife
,
and
Drew
Woodliff
his
Son
and
Heir
,
who
gave
a
Warrant
of
Attorney
to
Thomas
Goodale
then
seised
of
the
said
Meadow
by
mean
conveyances
,
for
the
receit
of
the
said
100.
marks
,
with
Covenant
that
none
of
them
shall
do
any
act
,
or
thing
that
shall
be
pre●udiciall
or
hurtfull
to
the
said
Thomas
Goodale
,
for
the
receiving
and
enjoying
of
the
said
summ
,
after
which
it
was
certified
to
the
said
Sir
Iohn
Packington
by
the
said
Goodale
that
this
Warrant
was
made
to
him
:
After
which
it
was
agreed
between
the
said
Sir
Ioh
Packington
&
Drew
Woodale
,
that
the
said
Tho.
Drew
shall
have
but
32
l.
of
the
said
100.
marks
,
wherupon
the
said
Sir
Iohn
Packington
within
a
year
after
the
death
of
the
said
Ralph
Woodliff
paid
to
the
said
Drew
Woodliff
the
100.
marks
,
and
presently
the
said
Drew
delivered
to
the
said
Sir
John
all
the
100.
marks
but
32
l.
And
the
Verdict
stands
upon
this
point
,
whether
the
100.
marks
were
well
paid
,
or
not
.
And
by
Popham
and
Gawdy
this
was
meerly
a
fraud
which
shall
never
prejudice
a
third
person
,
for
if
it
be
agreed
between
the
Disseisee
and
I.
S.
that
a
stranger
shall
disseise
the
Tenant
of
the
Land
,
and
enfeoff
the
said
I.
S.
to
the
intent
that
the
Disseisee
shall
recover
against
him
,
this
Recovery
shall
bind
the
said
I.
S.
but
not
him
who
was
disseised
,
and
yet
he
who
recovered
had
a
good
Title
,
and
paramount
the
other
,
but
he
shall
not
come
to
that
to
which
he
had
good
cause
of
Action
and
Title
by
fraudulent
means
,
to
the
prejudice
of
a
third
person
,
not
party
to
this
fraud
.
And
it
was
said
further
,
that
to
pay
money
,
and
take
it
away
again
presently
before
that
it
is
pursed
up
by
re-delivery
,
is
not
properly
a
payment
,
but
rather
a
colour
of
payment
.
And
by
Fennor
and
Popham
,
the
force
of
a
Deed
of
Feoffment
once
effectuall
,
cannot
become
void
or
of
no
effect
,
nor
the
Livery
therupon
by
such
manner
of
words
.
And
it
is
not
like
a
Bargain
of
Goods
,
or
an
Obligation
,
or
a
Lease
for
years
,
which
by
such
words
may
be
dissolved
and
made
to
be
of
no
force
or
effect
,
because
that
as
by
the
sealing
a
bare
Contract
,
it
may
be
made
perfect
and
effectuall
without
other
circumstances
,
so
may
it
be
defeated
by
such
bare
means
without
other
circumstance
:
But
so
it
is
not
in
case
of
an
Inheritance
or
Free-hold
,
which
cannot
be
effectual
by
the
bare
delivery
of
a
Deed
,
unlesse
that
Livery
be
made
therupon
.
And
all
agreed
,
that
as
this
case
is
,
notwithstanding
the
Feoffment
made
over
by
the
Father
,
the
money
might
have
been
paid
to
the
Heir
to
perform
the
Condition
,
if
they
had
been
duly
paid
,
and
without
Covin
,
and
that
the
words
had
been
apt
to
have
defeated
the
Estate
.
But
by
Popham
and
Clench
,
If
a
Feoffment
be
made
to
one
upon
condition
(
Heir
)
is
not
named
but
in
respect
of
the
Inheritance
which
might
be
in
him
,
but
here
he
is
named
as
a
meer
stranger
to
it
.
Bartons
Case
.
3.
IN
a
Writ
of
Error
sued
in
the
Kings
Bench
by
Randall
Barton
,
upon
a
Fine
levied
at
Lancaster
,
7
Eliz.
of
Land
in
Smithall
,
and
else
where
in
the
County
of
Lancaster
,
by
Robert
Barton
Esquire
,
to
Leven
and
Browndo
,
where
this
Writ
was
brought
by
the
said
Randall
as
Heir
in
tail
to
the
said
Robert
,
to
wit
,
Son
of
Ralph
,
Brother
of
the
said
Robert
.
The
Defendant
plead
a
Recovery
in
Bar
therof
had
after
the
Fine
,
in
which
the
said
Robert
was
vouched
,
who
vouched
over
the
common
Vouchee
:
And
by
all
the
Court
this
common
Recovery
with
such
double
Voucher
(
which
is
the
common
assurance
of
Lands
)
is
a
Bar
by
reason
of
the
Voucher
,
to
every
manner
of
right
which
the
Vouchee
,
or
his
Heir
by
means
of
him
is
to
have
to
this
land
,
which
is
paramount
the
Recovery
.
And
so
it
is
of
every
manner
of
way
wherby
they
are
otherwise
to
come
to
the
Land
before
the
Recovery
.
And
if
the
recovery
be
erroneous
,
it
remains
a
good
Bar
untill
it
be
avoided
by
error
.
But
if
the
Recovery
be
void
,
or
the
Voucher
not
warranted
to
be
,
pursuing
the
appearance
of
the
Tenant
,
but
precedent
to
it
,
as
was
pretended
,
and
so
no
Tenant
to
warrant
the
Voucher
when
the
Voucher
was
made
,
the
Recovery
shall
be
no
bar
in
such
a
case
;
and
the
case
here
was
informed
to
be
this
,
for
the
Writ
of
Entry
bears
date
1.
Mart.
7
Eliz.
returnable
Die
Lunae
in
4.
septimana
quadragessimae
propter
futur
.
and
the
Voucher
was
made
in
4.
septimana
quadragessimae
,
7
Eliz.
the
said
first
day
of
March
,
being
the
first
week
of
this
Lent
,
7
Eliz.
And
upon
this
it
was
inferred
that
the
Tenant
was
not
to
appear
untill
Munday
in
the
fourth
week
of
Lent
,
8
Eliz.
which
is
a
long
time
after
that
the
Voucher
appeared
and
vouched
over
.
But
by
the
whole
Court
the
Original
Writ
shall
be
taken
as
it
is
written
,
to
be
returnable
on
Munday
,
in
the
fourth
week
of
the
same
Lent
,
7
Eliz.
for
it
shall
be
taken
as
it
is
written
shortly
,
most
beneficially
that
it
can
be
to
make
the
Recovery
good
.
And
if
it
had
been
written
Prox●me
,
it
should
refer
to
the
week
before
,
and
so
good
.
And
if
the
word
(
Futur
.
)
had
been
written
at
large
(
Futura
)
it
also
shall
refer
to
Septimana
,
and
therfore
being
written
briefly
it
shall
refer
as
it
may
best
do
to
make
the
Recovery
good
.
But
if
it
had
been
in
Quarta
septimana
proximae
quadragessimae
at
large
,
then
the
word
Proxime
shall
refer
to
Quadragessimae
because
of
the
case
:
But
if
it
had
been
Proxima
it
shall
refer
to
Septimana
,
because
also
of
the
case
;
But
here
as
the
case
is
,
it
shall
be
a
good
reference
to
make
the
words
Tunc
proxima
futur
.
to
shew
what
fourth
week
of
Lent
,
to
wit
,
that
next
ensuing
the
first
day
of
March.
As
if
a
man
be
bound
by
Obligation
,
bearing
date
the
first
day
of
March
,
to
pay
the
10.
day
of
March
then
next
ensuing
,
this
shall
be
taken
the
10.
day
of
this
March
,
because
this
is
next
ensuing
the
first
day
.
Paramor
versus
Verrald
.
4.
IN
Trespasse
of
Assault
and
false
Imprisonment
,
by
Robert
Paramor
against
John
Verrold
,
and
others
,
supposed
to
be
done
at
such
a
Parish
and
Ward
in
London
,
the
20.
day
of
May
,
35
Eliz
The
Defendants
justifie
by
reason
of
an
Erecution
upon
a
Recovery
in
the
Court
of
Sandwich
,
within
the
Cinque-Ports
,
Debt
,
and
traverse
Absque
hoc
,
in
that
they
were
guilty
in
London
,
&c.
The
Plaintiff
reply
and
maintain
the
Assault
and
Imprisonment
,
as
it
is
said
,
and
traverses
Absque
hoc
quod
habetur
aliquod
tale
Recordum
loque●ae
prout
,
the
Defendants
have
alledged
,
Et
hoc
paratus
est
verificare
per
Recordum
illud
,
and
upon
this
the
Defendants
demurred
in
Iudgment
:
And
per
Curiam
the
Defendants
plea
Prima
f●cie
was
good
,
because
it
was
a
speciall
manner
of
Iustification
,
which
cannot
be
pleaded
and
alledged
to
be
in
any
other
place
then
where
it
was
done
,
in
the
same
manner
as
if
they
had
justified
by
force
of
a
Capias
directed
to
the
Sheriff
of
another
County
,
then
where
the
occasion
brought
,
or
by
Warrant
of
a
Iustice
of
Peace
of
another
County
,
for
matter
of
the
Peace
,
and
the
like
,
which
are
not
like
to
the
case
of
Partridge
,
who
was
be●ten
in
the
County
of
Glocester
by
Sir
Henry
Pole
,
for
which
he
brought
his
Action
in
London
:
And
Sir
Hen.
Pole
would
have
justified
by
Assault
of
the
Plaintiff
in
the
County
of
Glocester
,
with
a
tr●verse
that
he
was
not
guilty
in
London
:
But
it
was
then
ruled
in
this
Court
,
that
he
could
not
do
it
to
oust
the
Plaintiff
to
sue
in
London
,
but
in
such
a
case
he
might
have
alledged
that
the
Assault
was
done
in
London
,
because
it
was
also
a
thing
transitory
,
of
which
they
shall
take
notice
there
,
and
so
help
himself
if
the
matter
had
been
true
.
But
in
the
case
at
the
Bar
,
if
the
speciall
matter
alledged
in
the
forraign
County
be
false
,
as
here
,
the
Plaintiff
may
maintain
his
Action
and
traverse
the
special
matter
alledged
by
the
Defendant
:
And
so
a
traverse
in
such
a
case
may
be
upon
a
Traverse
when
falsity
is
used
,
to
oust
the
Plaintiff
of
that
benefit
which
the
Law
gives
him
.
Hillary
Term
,
38
Eliz.
Wood
versus
Matthews
.
1.
IN
a
writ
of
Error
brought
by
Owen
Wood
,
against
Griffeth
Matthews
,
upon
a
judgment
given
in
the
common
Pleas
,
the
case
was
briefly
thus
.
The
Issue
in
the
Common
Pleas
was
,
whether
one
were
taken
by
a
Cap.
ad
satisfaciendum
,
or
not
,
and
upon
the
triall
therof
at
the
Nisi
prius
,
the
Jury
found
for
the
Plaintiff
in
this
Action
,
to
wit
,
that
the
party
was
not
taken
by
the
said
Capias
,
and
upon
the
back
of
the
Pannell
entred
dicunt
per
Quer.
but
on
the
back
of
the
Postea
the
Clark
of
the
Assises
certified
the
Pannell
thus
,
to
wit
,
That
the
Jury
say
,
that
no
Capias
was
awarded
,
which
was
otherwise
then
was
put
in
Issue
,
or
found
by
the
Jury
;
and
the
Roll
of
the
Record
was
according
to
the
Postea
,
and
upon
this
Judgment
given
for
the
said
Matthew
then
Plaintiff
,
upon
which
(
amongst
other
Errors
)
this
variance
between
the
Issue
and
Verdict
was
assigned
for
Error
,
and
after
deliberation
had
upon
this
point
,
and
this
matter
alledged
by
the
Defendant
in
the
Writ
of
Error
,
and
certified
out
of
the
Common
Pleas
,
the
Court
awarded
as
to
this
point
that
the
Record
sent
up
out
of
the
Common
Pleas
by
the
Writ
of
Error
,
shall
be
amended
,
according
to
that
which
was
endorsed
on
the
back
of
the
Pannell
,
for
the
endorsement
upon
the
Pannell
is
the
Warrant
for
the
certifying
of
the
Postea
,
a●d
so
this
Warrant
over
to
him
that
makes
the
Entry
in
the
Roll
:
And
therfore
wheras
it
was
alledged
that
the
Postea
was
amended
in
the
Common
Pleas
aft●r
the
Record
removed
,
it
was
holden
to
be
well
done
there
;
for
although
the
Record
were
removed
by
the
Writ
of
Error
,
yet
the
Nisi
prius
,
the
Postea
,
and
the
like
remain
still
there
,
as
it
is
of
the
Warrant
of
Attorney
,
and
the
like
:
And
if
the
Postea
had
not
been
amended
there
,
but
sent
up
with
that
which
was
endorsed
upon
the
Pannel
,
all
shal
be
amended
here
according
to
that
which
was
indorsed
upon
the
Pannel
,
and
according
to
this
there
was
a
Presid●nt
shewn
Tr.
35.
H.
8.
between
Whitfeild
and
Wright
,
where
the
Issue
was
,
whether
a
quantity
of
Grain
were
delivered
between
two
Feasts
,
and
endorsed
upon
the
Pannel
(
Dicunt
pro
quaer
.
)
and
yet
the
Postea
certified
(
and
the
Rolls
also
made
)
that
the
delivery
was
made
ad
festa
,
and
upon
this
matter
alledged
in
Banco
Regis
,
and
the
Error
in
this
point
assigned
and
certified
out
of
the
Common
Pleas
,
the
Record
removed
by
the
Writ
of
Error
was
by
award
of
the
Court
amended
,
and
the
word
(
Ad
)
razed
out
,
and
the
word
(
Inter
)
written
in
lieu
of
it
,
according
as
it
appeareth
it
ought
to
have
been
by
the
Note
upon
the
back
of
the
Pannel
.
And
the
like
amendment
was
made
lately
in
the
Checquer
Chamber
,
upon
Error
brought
there
upon
a
Iudgment
given
in
Banco
Regis
,
where
the
Iudorsment
upon
the
back
of
the
Writ
was
(
pro
Quer.
)
and
the
Postea
and
Roll
was
,
that
the
Plaintiff
was
guilty
,
and
there
amended
the
last
Term.
Slanings
Case
.
2.
NIcholas
Slaning
of
Bickley
was
seised
in
his
Demesn
as
of
Fee
,
of
the
Mannor
of
Bickley
,
and
of
a
Mill
in
Walkhampton
,
in
the
County
of
Devon
,
called
a
blowing
Mill
,
and
of
another
Mill
there
called
a
knocking
Mill
,
and
of
an
acre
of
Land
there
also
,
and
of
divers
other
Mannors
and
Lands
in
the
said
County
of
Devon
,
the
said
Mills
and
acres
of
Land
in
Walkhampton
,
then
being
in
the
possession
of
one
Peterfeild
,
and
Atwill
,
of
an
Estate
for
divers
years
then
to
come
,
and
being
so
seised
,
he
with
Margaret
his
Wife
levied
a
Fine
of
the
said
Mannor
of
Bickley
,
and
of
other
Lands
,
omitting
the
said
Lands
in
Walkhampton
,
to
certain
C●nuzees
,
who
rendred
the
same
back
again
to
the
said
Margaret
Slaning
for
her
life
,
with
the
remainder
over
to
the
said
Nicholas
,
and
his
Heirs
:
After
which
the
said
Nicholas
by
Indenture
daied
30.
Octob.
21
Eliz.
gave
and
enfeoffed
all
the
said
Mannors
and
Premisses
to
John
Fits
and
others
,
and
the
Heirs
of
the
said
Fits
,
to
the
Vses
,
Provisoes
▪
and
Limitations
mentioned
in
the
said
Indenture
,
which
was
to
the
use
of
himself
,
and
the
Heirs
Males
of
his
body
,
by
any
other
Wife
,
the
remainder
to
Nicholas
Slaning
of
Newton
Ferries
,
and
the
Heirs
Males
of
his
body
,
with
divers
remainders
over
,
with
this
Proviso
,
to
wit
,
Provided
,
and
it
is
the
intent
of
these
presents
,
and
of
the
parties
therunto
,
that
the
said
John
Slaning
,
and
the
Heirs
Males
of
his
body
,
or
the
said
Nicholas
Slaning
of
Newton-ferries
,
and
the
Heirs
Males
of
his
body
,
in
whomsoever
of
them
the
Inheritance
in
tail
of
all
the
Premisses
shall
happen
to
be
by
force
of
these
presents
,
shall
pay
to
Agnes
the
Daughter
of
the
said
Nicholas
Slaning
of
Bickly
,
200
l.
or
so
much
therof
as
shall
be
unpaid
at
the
time
of
the
death
of
her
said
Father
,
according
to
the
intent
of
his
last
Will
,
with
a
Letter
of
Attorney
to
it
,
by
which
he
ordains
John
Hart
and
Robert
Fort
,
joyntly
and
severally
his
Attorney
to
enter
into
the
said
Mannor
of
Bickley
,
Walkhampton
,
&c.
and
all
other
the
Lands
,
Tenements
,
and
Hereditaments
,
in
the
said
Indenture
mentioned
,
and
possession
for
him
to
take
,
and
after
such
possossion
taken
for
him
and
in
his
name
,
to
deliver
full
possession
and
seisin
of
the
Premisses
to
the
said
John
Fits
,
&c.
according
to
the
form
and
effect
of
the
said
Indenture
,
wherupon
possession
and
seisin
was
given
of
all
but
that
which
was
in
possession
of
the
said
Peterfield
and
Atwill
:
And
the
said
Pererfield
and
Atwill
,
nor
either
of
them
never
attorned
to
the
said
Grant
:
After
which
Nicholas
Slaning
of
Bickly
made
his
last
Will
,
by
which
devised
to
the
said
Agnes
his
Daughter
200
l.
to
be
paid
in
form
following
,
and
not
otherwise
,
to
wit
,
100
l.
therof
,
in
th●se
words
,
On
that
day
twelvemonth
next
after
the
day
of
his
death
,
and
the
other
100
l.
that
day
twelvemonth
next
after
,
&c.
and
made
the
said
John
Slaning
his
Executor
,
and
afterwards
,
to
wit
,
the
8.
day
of
April
,
25
Eliz
,
died
without
Issue
Male
of
his
body
,
the
said
Agnes
took
to
Husband
one
Edmund
Marley
,
and
upon
the
8.
day
of
April
,
26
Eliz.
the
said
John
Slaning
paid
the
first
100
l.
to
Agnes
then
being
living
,
and
upon
the
8.
and
9.
daies
of
April
,
27
Eliz.
Nicholas
Slaning
of
Plumpton
,
Son
and
Heir
of
the
said
John
Slaning
,
who
died
(
in
the
mean
time
)
an
hour
before
the
Sun
set
,
and
untill
the
S●n
was
set
,
came
to
the
House
where
the
said
Edmund
and
his
Wife
inhabited
in
London
,
and
tendred
the
last
100
l.
and
that
neither
the
said
Edmund
nor
Agnes
his
Wife
were
there
to
receive
it
,
but
that
the
said
Edmund
voluntarily
absented
himself
,
because
he
would
not
receiv●
the
100
l.
and
that
therupon
the
Wife
of
the
said
Edmund
died
,
having
Issu●
two
Daughters
,
the
Lands
being
holden
by
Knights-service
in
Capite
,
and
the
said
Daughters
being
yet
within
age
,
and
all
this
being
found
by
Office
,
by
the
opinions
and
resolutions
of
Popham
and
Anderson
,
and
the
rest
of
th●
Councel
of
the
Court
of
Wards
,
the
said
Heirs
now
in
Ward
shall
have
nothing
but
that
which
doth
not
passe
by
the
conveyance
to
John
Fits
and
his
joynt
Feoffees
,
which
was
only
that
which
was
in
the
possessions
of
Peterfield
and
Atwill
,
and
that
the
Livery
was
good
of
the
rest
,
albeit
the
Attorny
did
nothing
of
that
which
was
in
Lease
,
notwithstanding
the
words
of
the
Warrant
,
that
they
should
enter
into
all
,
and
then
shall
make
the
Livery
.
And
they
agreed
,
that
the
Condition
doth
not
●ind
neither
the
said
John
Slaning
nor
Nicholas
his
Son
,
because
they
had
not
all
the
Land
according
to
the
purport
of
the
Condition
,
which
was
,
that
he
who
had
all
therof
should
pay
the
200
l.
wheras
here
that
which
was
in
the
possession
of
Peterfeild
and
Atwill
did
not
passe
to
them
for
want
of
Attornment
,
for
a
Condition
ought
to
be
taken
strictly
.
And
further
the
payment
was
referred
by
the
Indenture
to
be
according
to
the
Will
,
or
by
the
Will
,
and
the
200
l.
was
devised
as
a
Legacy
,
which
ought
to
be
paid
but
upon
demand
,
and
not
at
the
peril
of
the
Executor
,
and
therfore
the
nature
of
the
payment
of
it
is
altered
by
the
intent
of
the
Will
,
and
being
not
demanded
,
there
is
no
default
in
the
said
Nicholas
Slaning
of
Plumpton
,
to
prejudice
him
of
his
Land
,
if
it
had
been
a
Condition
,
for
then
it
shall
be
but
a
Condition
to
be
paid
according
to
the
nature
of
a
Legacy
upon
demand
,
and
not
at
the
peril
of
the
party
.
And
whether
the
word
twelve-month
shall
be
taken
for
a
year
,
or
twelve
months
,
according
to
28.
daies
to
the
month
,
as
it
shall
be
of
eight
or
twelve
months
,
or
the
like
.
And
they
agreed
that
in
this
case
it
shall
be
taken
for
the
whole
year
,
according
to
the
common
and
usuall
speech
amongst
men
in
such
a
case
,
and
according
to
this
opinion
Wray
(
who
is
dead
.
)
Anderson
and
Gawdy
made
their
Certificate
to
the
late
Chancellor
Sir
Christopher
Hatton
,
in
the
same
case
then
being
in
the
Chancery
,
and
a
Decree
was
made
accordingly
.
And
many
were
of
opinion
,
that
by
his
absence
,
by
such
fraud
he
shall
not
take
advantage
of
the
Condition
,
being
a
thing
done
on
purpose
,
if
it
had
been
to
be
performed
at
his
peril
.
Kellies
Case
.
WIlliam
Kelly
and
Thomasine
his
Wife
,
were
seised
of
certain
Lands
in
S.
Eth
,
in
the
County
of
Cornwall
,
called
Karkian
,
to
them
and
to
the
Heirs
of
their
two
bodies
between
them
lawfully
begotten
,
by
the
Gift
of
one
William
Dowmand
Father
of
the
said
Thomasine
,
11
H.
8.
a
long
time
after
which
Gift
,
to
wit
25
H.
8.
A
Fine
Sur
conusance
de
droit
come
ceo
que
il
ad
per
,
was
levied
by
Peter
Dowmand
,
Son
and
Heir
of
the
said
William
Dowmand
to
William
Kelley
of
the
Mannor
of
Dowmand
,
and
of
a
100.
acres
of
Land
,
300
acres
of
Meadow
,
300.
acres
of
Pasture
,
and
a
1000.
acres
of
Furzse
and
Heath
in
Dowmand
,
S.
Eth.
Trevile
,
and
divers
other
Towns
named
in
the
Fine
,
who
rendred
the
same
back
again
to
the
said
Peter
in
tail
,
with
diverse
Remainders
over
,
and
this
Fine
was
with
proclamations
according
to
the
Statute
,
after
which
the
possession
of
Karkian
continued
with
Kelly
and
his
Heirs
,
according
to
the
first
Intail
;
and
the
Mannor
of
Dowmand
,
and
the
Remainder
of
the
Lands
in
these
Towns
,
which
were
to
the
said
Peter
Dowmand
to
him
and
his
Heirs
according
to
the
render
,
untill
nine
years
past
,
that
by
Nisi
prius
in
the
Country
upon
the
opinion
of
Manwood
late
chief
Baron
,
the
Land
called
Karkian
,
was
recovered
against
the
Heir
of
the
said
William
Kelly
,
by
virtue
of
the
said
Fine
and
Render
,
because
all
the
Land
which
the
said
Peter
Dowmand
,
and
the
said
William
Kelly
also
had
in
all
these
Towns
named
in
the
Fine
,
were
not
sufficient
to
supply
the
Contents
of
acres
comprised
in
the
said
Fine
:
And
what
the
Law
was
in
this
case
,
was
referred
to
the
chief
Iustices
,
the
Master
of
the
Rolls
,
Egerton
,
and
the
now
chief
Baron
●ut
of
the
Chancery
,
who
all
agreed
upon
all
this
matter
appearing
,
that
nothing
shall
be
said
to
be
rendred
but
that
which
indeed
was
given
by
the
Fine
,
and
Karkian
does
not
passe
to
the
said
William
Kelly
by
the
Fine
,
for
as
to
it
the
Fine
is
but
as
a
release
of
Peter
to
him
,
and
therfore
shall
not
be
said
to
be
rendred
to
the
said
Peter
by
the
Fine
,
where
no
matter
appeareth
,
wherby
it
may
appear
that
it
was
the
intent
of
the
parties
that
this
shall
be
rendred
.
And
therfore
Popham
said
,
that
by
so
many
Fines
which
have
been
levied
in
such
a
manner
,
and
to
such
who
have
Land
in
the
same
Towns
where
the
Conusance
hath
been
(
considering
that
alwaies
more
Land
is
comprised
in
Fines
by
number
of
acres
,
then
men
have
,
or
is
intended
to
passe
)
by
them
at
some
time
,
or
in
some
age
,
it
would
have
come
in
question
if
the
Law
had
been
taken
as
Manwood
took
it
,
but
in
all
such
cases
the
Possession
hath
alwaies
gone
otherwise
,
which
shews
how
the
Law
hath
been
alwaies
taken
in
such
cases
.
And
therfore
if
a
man
be
to
passe
his
Mannor
of
D.
to
another
by
Fine
Executory
,
and
he
levy
the
Fine
to
him
by
the
name
of
the
Mannor
of
D.
and
of
so
many
acres
of
Land
in
D.
and
S.
being
the
Towns
in
which
the
Mannor
lies
,
after
which
the
Conuzor
purchaseth
other
Lands
in
these
Towns
,
the
Fine
before
the
Statute
of
Vses
shall
not
be
executed
of
these
Lands
purchased
after
the
Conusance
,
and
the
Fine
shall
work
to
these
which
he
had
power
and
intent
to
passe
,
and
no
further
.
And
it
seemed
to
them
,
that
an
Vse
may
be
averred
without
Deed
upon
a
Fine
sur
Render
.
And
all
agreed
that
if
there
had
been
a
Deed
to
have
declared
the
purport
of
the
Fine
,
that
the
Fine
shall
not
be
taken
to
extend
further
then
is
comprised
in
the
Deed.
And
what
is
the
cause
therof
,
the
Deed
or
the
intent
of
the
parties
?
and
none
can
say
but
that
it
is
the
intent
of
the
parties
,
and
not
the
Deed
,
and
the
intent
may
as
well
appear
without
the
Deed
,
as
with
it
,
albeit
it
be
not
so
conclusive
by
Parole
as
by
Deed.
And
therfore
suppose
I
have
100.
acres
of
Land
in
a
Close
in
D.
and
I.
S.
hath
another
100.
acres
in
the
same
Close
and
Town
,
and
I.
S.
hath
a
100.
acres
of
Land
in
the
same
Town
out
of
this
Close
,
and
my
intent
is
to
levy
a
Fine
to
I.
S.
of
the
whole
Close
by
the
name
of
200.
acres
of
Land
,
with
a
Render
as
before
,
and
I
levy
it
accordingly
,
shall
the
Render
enure
to
the
Land
,
which
I.
S.
had
in
the
same
Town
?
It
is
cleer
that
it
shall
not
,
although
it
be
without
Deed
:
why
then
shall
the
Fine
here
be
taken
to
work
rather
to
the
Land
called
Karkian
,
then
to
any
other
Lands
which
any
other
had
in
the
same
Towns
,
when
it
appeareth
plainly
,
that
it
never
was
the
intent
of
the
parties
;
that
the
Fine
should
extend
to
these
Lands
called
Karkian
,
and
it
was
decreed
in
Chancery
accordingly
.
Hall
versus
Arrowsmith
.
4.
IN
the
case
between
Hall
and
Arrowsmith
,
it
was
agreed
by
the
whole
Court
in
the
Kings
Bench
,
That
if
a
Copyholder
for
life
hath
licence
to
make
a
Lease
for
three
years
,
if
he
shall
live
so
long
,
and
he
makes
a
Lease
for
three
years
without
such
a
Limitation
,
that
yet
this
is
no
forfeiture
of
his
Estate
,
because
the
operation
of
Law
makes
such
a
Limitation
to
the
Estate
which
he
made
,
to
wit
,
that
it
shall
not
continue
but
for
his
life
,
and
then
such
an
express
Limitation
in
the
case
where
the
Law
it self
makes
it
is
but
a
meer
trifle
;
and
yet
if
a
Lessee
for
life
makes
a
Lease
for
years
,
and
he
in
the
Reversion
confirm
it
,
it
remains
good
after
the
death
of
the
Tenant
for
life
,
but
this
then
shall
be
as
if
it
had
been
made
by
him
in
the
Reversion
himself
,
and
shall
be
his
Lease
:
But
if
the
Lease
there
had
been
made
determin●ble
upon
the
life
of
Tenant
for
life
,
the
confirmation
therof
by
him
in
the
Reversion
will
not
help
him
after
the
death
of
him
who
was
Tenant
for
life
,
Causa
patet
.
But
in
the
principall
case
,
if
the
Copyholder
had
had
an
Estate
in
Fee
by
Copy
,
it
had
been
a
forfeiture
of
his
Estate
to
make
an
absolute
Lease
,
because
in
that
case
he
does
more
then
he
was
licensed
to
do
.
And
they
agreed
that
such
a
licence
cannot
be
made
to
be
void
by
a
Condition
subsequent
to
the
execution
therof
,
to
undo
that
which
was
once
well
executed
.
But
there
may
be
a
Condition
precedent
united
to
it
,
because
in
such
a
case
it
is
no
licence
untill
the
Condition
performed
;
but
the
licence
before
mentioned
is
not
a
condition
all
Licence
,
but
a
Licence
with
a
Limitation
,
and
therfore
hath
not
been
of
force
,
if
the
Limitation
which
the
Law
makes
in
this
case
had
not
been
,
and
the
Limitation
in
Law
shall
be
preferred
before
the
Limitation
in
Deed
,
where
they
work
to
one
and
the
same
effect
,
and
not
different
.
Arthur
Johnsons
Case
.
5.
ARthur
Johnson
was
possessed
of
a
Term
for
years
,
and
so
possessed
,
assigned
this
over
to
Robert
Waterhouse
,
and
John
Waterhouse
,
being
Brothers
to
the
Wife
of
the
said
Johnson
,
to
the
use
of
the
said
Wife
;
the
said
Johnson
dies
,
and
makes
his
Wife
his
Executrix
,
after
which
the
said
Wife
takes
Robert
Witham
to
Husband
,
who
takes
the
Profits
of
the
Land
during
the
life
of
his
said
Wife
,
the
Wife
dies
Intestate
,
her
said
Brothers
being
next
of
kin
to
the
said
Wife
,
took
administration
as
well
of
the
Goods
of
the
said
Wife
,
as
of
her
first
Husband
.
And
whether
the
said
Waterhouses
,
or
the
said
Witham
shall
have
this
Lease
,
or
the
use
therof
,
was
the
question
in
the
Chancery
,
and
therupon
put
to
the
two
chief
Iustices
,
upon
which
they
and
the
chief
Baron
,
and
all
the
other
Iustices
of
Serjeants-Inne
in
Fleetstreet
,
and
Beamont
also
were
cleer
in
opinion
,
that
the
said
Administrators
had
now
as
well
the
Interest
as
the
Vse
also
of
the
said
Term
,
as
well
in
Conscience
as
in
Law
,
and
that
they
had
the
use
as
Administrators
to
the
said
Wife
,
and
that
the
said
Witham
shall
not
have
it
,
because
it
is
as
a
thing
in
Action
,
which
the
Administrators
of
the
Wife
alwaies
shall
have
and
not
the
Husband
.
As
if
an
Obligation
had
been
made
to
the
use
of
the
Wife
:
And
this
opinion
was
certified
accordingly
to
the
Lord
Keeper
of
the
great
Seal
of
England
,
and
it
was
so
decreed
.
Taunton
versus
Barrey
.
6.
IN
an
Ejectione
firmae
brought
by
Giles
Taunton
Plaintiff
,
in
the
King
Bench
,
against
Giles
Barrey
Defendant
,
the
Case
was
thus
.
Iohn
Coles
Esquire
,
made
a
Lease
of
the
Lands
in
question
to
the
Father
of
the
said
Barrey
,
for
divers
years
,
depending
upon
the
life
of
the
Lessee
,
and
of
the
said
Defendant
,
and
of
the
Survivor
of
them
,
upon
condition
that
the
said
Father
should
not
alien
without
the
consent
of
the
said
Coles
&
his
heirs
,
after
which
the
said
Father
devised
the
Term
to
the
said
Defendant
and
died
,
making
his
Executor
,
who
assented
;
And
the
question
upon
this
point
found
upon
a
speciall
Verdict
,
was
,
whether
upon
the
matter
the
Condition
were
broken
;
and
by
the
opinion
of
the
whole
Court
adjudged
that
it
was
,
for
in
such
a
case
he
ought
to
have
left
it
to
his
Executor
,
without
making
any
Devise
of
it
,
for
the
Devise
is
an
Alienation
against
him
,
and
therfore
it
was
agreed
that
the
Plaintiff
shall
recover
Term
,
37
Eliz.
Rot.
between
Roper
and
Roper
.
Michaelmas
Term
,
38
,
&
39.
Eliz.
Everets
Case
.
1.
THis
Case
was
moved
by
the
chief
Iustice
to
the
other
chief
Iustices
at
Serjeants-Inne
in
Fleetstreet
,
concerning
one
Everet
,
who
before
was
attaint
for
stealing
of
a
Horse
,
&
reprieved
after
Iudgment
,
and
Indited
again
for
stealing
another
Horse
before
this
Attainder
:
And
the
Vicar
of
Pelton
,
in
the
County
of
Somerset
was
Indited
as
accessary
before
this
Felony
,
for
the
procurement
of
it
;
And
Everet
being
again
Indited
upon
this
last
Inditement
,
did
not
plead
that
he
was
formerly
Indited
of
another
Felony
,
&c.
but
acknowledged
the
Inditement
wherby
the
Accessary
was
Arrained
,
tried
,
and
found
guilty
,
and
had
his
Iudgment
also
as
the
principall
,
but
the
Execution
of
the
Accessary
was
respited
:
And
now
moved
whether
upon
this
matter
it
shall
be
fit
to
execute
the
Accessary
,
the
principall
being
executed
.
And
it
seemed
convenient
to
all
the
Iustices
and
Barons
that
he
shall
be
executed
,
and
that
the
matter
was
cleer
in
this
case
,
because
the
principall
did
not
take
advantage
of
his
first
Attainder
by
way
of
Plea
,
but
acknowledged
the
Deed
,
in
which
case
the
Accessary
may
well
be
Arraigned
:
But
if
the
principall
had
pleaded
his
former
Attainder
,
whether
now
he
shall
be
put
to
answer
for
the
benefit
of
the
Queen
,
having
regard
to
this
Accessary
,
who
otherwise
shall
go
quit
,
because
there
was
not
any
principall
,
but
he
who
was
formerly
attainted
.
And
it
seemed
to
Popham
and
some
others
,
that
it
shall
be
in
the
same
manner
,
as
if
the
same
person
so
formerly
attainted
should
be
tried
now
for
Treason
,
made
before
his
Attainder
,
as
appeareth
by
1
H.
6.
5.
because
it
is
for
the
advantage
of
the
King
in
his
Escheat
of
the
Land
:
and
notwithstanding
,
that
it
is
moved
by
Stamford
in
his
Pleas
of
the
Crown
,
it
seemed
to
Popham
that
there
was
no
diversity
where
the
Treason
was
made
before
the
Felony
of
which
he
is
attainted
,
and
where
after
and
before
the
Attainder
;
And
by
the
same
reason
that
he
shall
be
again
tried
for
the
benefit
of
the
King
in
this
case
because
of
the
Escheat
,
by
the
same
reason
in
this
case
here
,
because
of
the
forfeiture
which
accrueth
to
the
Queen
by
the
Attainder
of
the
accessary
,
and
for
the
Iustice
which
is
to
be
done
to
a
third
person
,
who
otherwise
by
this
means
shall
escape
unpunished
.
But
he
agreed
,
that
the
party
Attaint
shall
not
be
again
Arraigned
for
any
other
Felony
done
before
the
Attainder
,
in
case
where
no
Accessary
was
touched
before
the
Statute
of
8
Eliz.
cap.
4.
he
who
is
convict
of
Felony
,
and
hath
his
Clergy
after
his
purgation
made
,
shall
be
Arraigned
for
another
Felony
done
before
the
conviction
,
if
it
be
such
for
which
he
cannot
have
his
Clergy
,
and
was
not
convicted
or
acquitted
of
the
same
Felony
before
the
Attainder
:
But
upon
this
Statute
it
appeareth
,
that
he
who
shall
have
his
Clergy
in
such
manner
,
shall
not
be
drawn
in
question
for
any
other
Felony
done
before
his
Attainder
,
for
which
he
might
have
his
Clergy
.
And
of
this
opinion
(
as
Clark
and
others
of
the
Iustices
said
)
were
all
the
Iustices
in
the
time
of
Wray
.
And
as
to
the
Statute
of
18
Eliz.
cap
7.
It
is
not
to
be
understood
but
that
he
who
hath
his
Clergy
,
and
delivered
according
to
this
Statute
,
shall
be
yet
arraigned
for
any
other
Felony
done
before
his
former
Conviction
or
Attainder
,
if
it
be
such
for
which
he
cannot
have
his
Clergy
;
for
the
words
are
,
That
he
shall
be
put
now
to
answer
,
&c.
in
the
same
manner
as
if
he
had
been
delivered
to
the
Ordinary
,
and
had
made
his
Purgation
,
any
thing
in
this
act
to
the
contrary
notwithstanding
.
Pollard
versus
Luttrell
.
2.
IN
an
Ejectione
firmae
between
Pollard
and
Luttrell
for
Lands
in
Hubury
and
Listock
,
upon
the
Title
between
the
Lord
Audeley
and
Richard
Audeley
,
it
was
agreed
by
the
chief
Iustices
,
that
if
the
Disseisor
levy
a
Fine
with
Proclamations
according
to
the
Statute
of
4
H.
7.
and
a
stranger
within
five
years
after
the
Proclamations
enter
in
the
right
of
the
Disseisee
,
without
the
privity
or
consent
of
the
Disseisee
,
that
this
shall
not
avoid
the
Bar
of
the
Fine
,
unlesse
that
he
assent
to
it
within
the
five
years
,
for
the
words
of
the
Statute
are
,
so
that
they
pursue
their
Title
,
Claim
,
or
Interest
by
way
of
Action
,
or
lawfull
Entry
within
five
years
,
&c.
and
that
which
is
done
by
another
without
their
assent
,
is
not
a
pursuing
by
them
according
to
the
intent
of
the
Statute
,
for
otherwise
by
such
means
against
the
will
of
the
Disseisee
,
every
stranger
may
avoid
such
a
Fine
,
which
was
not
the
intent
of
the
Statute
.
Mountague
versus
Jeoffreys
and
others
.
3.
IN
Trespasse
by
Edward
Mountague
Plaintiff
,
against
Richard
Jeoffreys
and
others
Defendants
,
for
a
Trespasse
done
in
certain
Lands
called
Graveland
,
in
Hailsham
in
the
County
of
Sussex
,
the
Case
upon
a
special
Verdict
was
thus
.
Sir
John
Jeoffreys
late
chief
Baron
,
bing
seised
in
his
Demesn
as
of
Fee
(
amongst
others
)
of
the
said
Land
called
Graveland
having
Issue
but
one
only
Daughter
,
by
his
Will
in
writing
devised
all
his
Land
of
which
he
was
seised
in
fee
(
except
the
said
Graveland
)
to
his
said
Daughter
for
21.
years
,
&c.
and
the
said
Land
called
Graveland
(
which
was
then
in
Lease
for
divers
years
,
to
one
Nicholas
Cobb
,
which
years
at
the
time
of
the
death
of
the
said
Sir
John
Geoffreys
continued
)
he
devised
to
the
said
Richard
Jeoffreys
his
Brother
,
and
his
Heirs
,
and
by
the
same
Will
he
disposed
divers
Legacies
of
his
Chattels
,
and
the
Remainder
he
gave
to
his
said
Daughter
,
and
made
her
Executrix
of
his
said
Will
;
after
which
the
first
Wife
of
the
said
Sir
John
Jeoffreys
being
dead
,
he
covenanted
with
Mr.
George
Goring
to
take
the
Daughter
of
the
said
George
to
Wife
,
and
covenanted
with
the
said
George
(
amongst
other
Lands
)
to
assure
the
said
Land
called
Graveland
to
the
said
George
Goring
and
Richard
Jeoffreys
,
and
their
Heirs
,
to
the
use
of
the
said
Sir
John
Jeoffreys
,
and
Mary
Goring
Daughter
of
the
said
George
,
and
the
Heirs
of
the
said
Sir
John
Jeoffreys
,
by
a
certain
day
,
before
which
day
the
marriage
being
had
,
the
said
Sir
Io:
Ieoffreys
made
a
Deed
and
sealed
it
,
and
delivered
it
,
containing
a
Feoffment
of
the
said
Land
called
Graveland
(
amongst
others
)
to
the
said
George
Goring
and
Richard
Ieoffreys
,
and
their
Heirs
,
to
the
Uses
aforesaid
,
in
performance
of
the
said
Covenants
,
with
a
Warrant
of
Attorney
to
make
Livery
accordingly
,
and
the
Attorney
made
Livery
in
other
parts
of
the
Land
,
and
not
in
Graveland
,
and
this
was
in
the
name
of
all
the
Lands
compri●●d
in
the
Deed
,
and
the
said
Nicholas
Cobb
never
attorned
to
this
Deed
;
After
which
Sir
Iohn
Ieoffreys
interlined
in
the
said
Will
,
that
the
said
Mary
then
his
Wife
should
be
joynt
Executrix
with
his
Daughter
:
And
in
the
Legacy
of
the
rest
of
his
Goods
,
&c.
he
interlin'd
the
said
Mary
his
Wife
to
be
Joynt-tenant
with
his
said
Daughter
,
without
other
publication
therof
;
and
afterward
the
sa●d
Sir
Iohn
died
,
the
said
Daughter
being
his
Heir
,
who
took
to
Husband
the
said
Edward
Mountague
.
4.
IN
Trespasse
,
the
Plaintiff
supposeth
the
Trespasse
to
be
done
in
the
breaking
of
his
House
and
Close
in
such
a
Town
,
the
Defendant
justifies
in
a
House
and
Close
in
the
same
Town
,
and
shews
which
,
to
put
the
Plaintiff
to
his
new
Assignment
,
to
which
the
Plaintiff
replied
that
the
House
and
Close
of
which
he
complains
is
such
a
House
,
and
gives
it
a
speciall
name
,
upon
which
the
Defendant
demurs
,
and
adjudged
that
the
Plaintiff
take
nothing
by
his
Writ
:
for
albeit
a
House
may
have
a
Curtilage
which
passeth
by
the
name
of
a
Messuage
with
the
Appurtenances
,
yet
this
shall
not
be
in
this
case
,
for
by
the
Bar
the
Plaintiff
is
bound
to
make
a
speciall
demonstration
in
what
Messuage
and
what
Close
he
supposeth
the
Trespasse
to
be
done
,
as
to
say
that
the
House
hath
a
Curtilage
,
the
which
he
broke
,
and
it
shall
not
be
taken
by
intendment
that
the
Messuages
had
such
a
Curtilage
to
it
,
if
it
be
not
specially
named
.
Fennors
Case
.
5.
IN
Trespasse
brought
by
Fennor
in
the
common
Bench
,
against
for
breaking
his
Close
in
,
&c.
the
Defendant
pleads
a
Bar
at
large
,
to
make
the
Plaintiff
assign
the
place
in
certain
,
where
he
supposeth
the
Trespasse
to
be
done
,
the
Plaintiff
therupon
alledgeth
that
the
place
where
he
complaineth
is
such
,
&c.
and
sheweth
in
certain
,
another
then
that
in
which
the
Defendant
justifies
,
the
Defendant
avers
that
the
one
and
the
other
are
all
one
,
and
known
by
the
one
name
and
the
other
,
and
therupon
the
Plaintiff
demurs
,
and
adjudged
there
for
the
Plaintiff
,
because
that
in
such
a
case
upon
such
a
speciall
assignment
,
it
shall
be
taken
meerly
another
then
that
in
which
the
Defendant
justifies
,
in
as
much
as
the
Plaintiff
in
such
a
case
cannot
maintain
it
upon
his
evidence
given
,
if
the
Defendant
had
pleaded
not
guilty
to
this
new
Assignment
,
that
the
Trespasse
was
done
in
the
place
in
which
the
Defendant
justifies
,
although
it
be
known
by
the
one
and
the
other
name
,
and
that
the
Plaintiff
hath
good
Title
to
it
,
because
that
by
his
speciall
Assignment
,
saying
,
that
it
is
another
then
that
in
which
the
Defendant
justifies
,
he
shall
never
after
say
,
that
it
is
the
same
in
this
Plea
,
for
it
is
meer
contrary
to
his
speciall
Assignment
:
And
upon
this
a
Writ
of
Error
was
brought
in
the
Kings
Bench
,
and
the
Iudgment
was
there
affirmed
this
Term
for
the
same
reason
,
Quod
nota
.
Scot
versus
Sir
Anthony
Mainy
.
6.
IN
Debt
upon
an
Obligation
of
200
l.
brought
by
John
Scot
Gent.
against
Sir
Anthony
Mainy
Knight
,
the
Condition
wherof
being
to
perform
the
Covenant
comprised
in
an
Indenture
of
Demise
made
by
the
said
Sir
Anthony
to
the
said
Plaintiff
,
of
his
Capitall
Messuage
in
Holden
with
the
Lands
to
it
belonging
,
&c.
amongst
which
Covenants
one
was
,
that
wheras
by
the
same
Indenture
he
had
demised
it
to
him
for
21.
years
,
that
the
said
Sir
Anthony
covenanted
with
the
said
John
Scot
,
that
the
said
Sir
Anthony
from
time
to
time
,
during
the
life
of
the
said
Sir
Anthony
,
upon
the
surrender
of
this
Demise
,
or
any
other
Demise
hereafter
to
be
made
by
the
said
Sir
Anthony
,
of
the
said
Messuages
and
Lands
,
and
to
be
made
by
the
said
John
Scot
,
his
Executors
or
Administrators
,
and
upon
a
new
Lease
to
be
made
ready
ingrossed
to
be
sealed
and
offered
by
the
said
John
Scot
his
Executors
or
Administrators
,
to
the
said
Sir
Anthony
,
for
the
like
tearm
and
number
of
years
in
the
aforesaid
Indenture
comprised
for
the
same
Rent
,
&c.
to
seal
and
deliver
to
the
said
John
Scot
,
his
Executors
and
Administrators
.
And
the
said
Sir
Anthony
as
to
this
Covenant
pleaded
,
did
not
surrender
,
nor
offer
to
surrender
to
him
the
said
Demise
,
nor
offer
to
him
any
new
Demise
of
the
Premisses
,
ready
engrossed
for
to
seal
it
for
the
like
Term
,
&c.
as
it
is
in
this
Covenant
.
And
for
the
other
Covenants
he
pleads
performance
of
all
;
To
which
the
Plaintiff
replies
,
that
the
said
Sir
Anthony
after
the
Obligation
,
and
before
the
Action
brought
,
had
rendred
the
said
Messuages
and
Lands
by
Fine
to
one
Walter
Savage
and
William
Sheldon
their
Executors
and
Assigns
for
eighty
years
,
from
the
Feast
of
Easter
next
before
the
Fine
which
was
Pasch.
36
Eliz.
wherby
he
said
,
that
the
said
Sir
Anthony
had
disabled
himself
to
renew
his
Lease
according
to
the
Covenant
,
upon
which
it
was
demurred
in
the
Commen
Bench
,
and
the
Iudgment
given
for
the
Plaintiff
,
as
appeareth
,
Trin.
37.
Eliz.
Rot.
2573.
And
upon
this
Iudgment
,
a
Writ
of
Error
was
brought
in
the
Kings
Bench
and
agreed
this
Term.
And
it
was
moved
that
the
Iudgment
given
was
erroneous
,
in
as
much
as
the
first
act
was
to
be
done
by
John
Scot
before
the
new
Lease
was
to
be
made
,
to
wit
,
the
surrender
of
the
former
Lease
,
and
the
drawing
of
the
new
one
ought
to
have
been
done
by
the
Plaintiff
,
which
not
being
done
on
his
part
,
the
said
Sir
Anthony
is
not
bound
to
make
the
new
Lease
.
And
also
it
was
moved
,
that
as
the
case
is
here
,
the
said
John
Scot
might
surrender
to
the
Defendant
,
notwithstanding
the
intervening
of
this
Lease
between
the
Lease
of
the
Plaintiff
,
and
the
Inheritance
of
the
Defendant
,
as
if
a
man
make
a
Lease
for
years
in
possession
,
and
afterwards
make
another
Lease
to
a
stranger
,
to
begin
after
the
end
of
the
former
Lease
,
this
shall
not
hinder
but
that
the
first
Lease
may
be
surrendred
to
him
who
was
the
Lessor
,
notwithstanding
the
said
Term
intervening
.
To
which
it
was
answered
by
the
Court
,
that
the
Plaintiff
here
need
not
to
make
any
offer
of
the
surrender
of
his
Term
to
the
said
Sir
Anthony
,
in
as
much
as
the
said
Sir
Anthony
hath
disabled
himself
to
take
the
Surrender
,
or
to
take
the
Lease
according
to
the
purport
of
the
Condition
,
and
by
this
disabling
of
himself
the
Obligation
is
forfeited
,
Come
per
44
E.
3.
8.
and
by
Littleton
also
,
If
a
man
make
a
Feoffment
,
upon
condition
to
re-enfeoff
him
,
this
is
not
to
be
done
untill
request
therof
be
made
by
the
Feoffor
,
yet
if
in
the
mean
time
the
Feoffee
suffer
a
fained
recovery
of
the
Land
,
grant
a
Rent
charge
,
acknowledgeth
a
Statute
,
taketh
a
Wife
,
or
the
like
,
the
Feoffor
may
re-enter
,
without
request
made
to
re-enfeoff
him
,
and
the
reason
is
,
because
that
by
any
of
these
the
Feoffee
hath
disabled
himself
to
perform
the
Condition
in
the
same
plight
,
as
he
might
have
done
at
the
time
of
the
Feoffment
,
in
the
same
manner
here
,
for
by
this
render
by
the
Fine
,
the
Reversion
passe
in
right
,
so
that
the
Termor
in
possession
attorning
to
it
,
they
shall
have
the
Rent
reserved
upon
the
first
Lease
,
and
therfore
the
Plaintiff
cannot
now
surrender
to
the
said
Sir
Anthony
,
but
to
the
Grantees
of
the
Reversion
,
and
therfore
there
shall
be
no
prejudice
to
the
Plaintiff
,
because
the
Defendant
was
the
cause
of
disabling
the
Plaintiff
to
make
the
Surrender
to
him
.
And
suppose
it
be
but
a
Term
to
begin
at
a
day
to
come
,
yet
by
this
the
Obligation
is
forfeited
,
because
the
Obligor
hath
therby
disabled
himself
to
perform
the
Condition
in
such
a
plight
as
he
might
have
done
it
when
the
Obligation
was
made
,
wherby
the
Obligation
is
presently
forfeited
,
albeit
the
Plaintiff
never
surrender
nor
offer
to
do
it
:
And
therfore
the
Iudgment
there
was
affirmed
.
Mounson
versus
West
.
7.
IN
an
Assise
brought
in
the
County
of
Lincoln
,
before
Gawdy
and
Owen
,
by
Thomas
Mounson
Esquire
,
Demandant
,
against
Robert
West
,
Tenant
for
Lands
in
Sturton
Juxta
Stu.
The
Defendant
West
pleaded
Nul
Tenant
del
Frank-tenant
named
in
the
Writ
,
and
if
that
be
not
found
,
then
Nul
tort
,
nul
Disseisin
:
And
the
Assise
found
that
the
said
Defendant
was
Tenant
of
the
Tenements
now
in
Plaint
,
and
put
in
view
to
the
Recognitors
of
the
Assise
,
in
manner
and
form
as
the
Writ
supposeth
:
And
further
that
the
said
West
therof
disseised
the
said
Mounson
,
namely
of
the
Tenements
in
the
will
of
one
Mounson
:
And
did
not
find
either
the
words
of
the
Will
,
nor
the
Will
it self
what
it
was
,
&c.
And
the
Iustices
of
Assise
upon
this
Verdict
upon
advice
with
the
other
Iustices
,
gave
Iudgment
,
that
the
Plaintiff
shall
recover
,
&c.
upon
which
a
Writ
of
Error
was
brought
in
the
Kings
Bench
,
where
it
was
moved
that
the
Iudgment
was
erroneous
:
First
,
because
the
Iury
have
not
found
that
the
Defendant
was
Tenant
of
the
Free-hold
,
agreeing
with
the
form
of
the
Plea
,
for
the
Writ
of
Assise
doth
not
suppose
him
to
be
Tenant
of
the
Free-hold
,
and
therfore
the
Verdict
in
this
point
not
fully
found
.
The
second
Error
is
,
that
the
Seisin
of
the
Plaintiff
is
not
required
of
,
according
to
the
charge
given
to
them
,
as
well
as
the
Disseisen
,
for
the
charge
was
that
they
should
enquire
of
the
Seisen
of
the
Plaintiff
,
&c.
But
to
both
these
the
Court
answered
that
the
Verdict
is
well
enough
,
notwithstanding
these
exceptions
,
for
every
Assise
brought
supposeth
that
there
is
a
Disseisor
,
and
a
Tenant
named
in
it
,
then
this
Assise
being
brought
against
a
sole
person
,
supposeth
him
to
be
a
Disseisor
and
Tenant
also
;
and
therfore
the
Verdict
saying
,
that
he
was
Tenant
as
the
Writ
supposeth
,
is
now
as
strong
in
this
case
,
as
if
they
had
found
that
he
was
Tenant
of
the
Free-hold
,
for
the
Tenant
of
the
Free-hold
ought
to
be
named
in
the
Writ
:
But
if
the
Assise
had
been
brought
against
two
,
or
more
,
such
a
Verdict
had
not
been
good
,
for
it
sufficeth
if
any
of
them
be
Tenant
of
the
Freehold
,
and
then
the
Writ
doth
not
suppose
one
to
be
Tenant
more
then
another
,
but
supposeth
one
Tenant
to
be
named
in
the
Writ
.
And
therfore
in
such
a
case
the
finding
ought
to
be
speciall
,
to
wit
,
that
such
a
one
is
Tenant
of
the
Free-hold
,
or
that
there
is
a
Tenant
of
the
Free-hold
named
in
the
Writ
.
But
where
one
only
is
named
in
the
Writ
to
be
Disseisor
and
Tenant
,
it
is
sufficient
to
find
as
here
,
for
by
this
it
is
certainly
found
that
he
is
Tenant
of
the
Free-hold
.
And
for
the
other
point
,
although
it
be
a
good
direction
for
the
Iudges
to
the
Iury
,
wherby
they
may
the
better
perceive
that
there
ought
to
be
a
Seisin
in
him
,
or
otherwise
there
cannot
be
a
Disseisen
by
the
other
,
yet
in
Deed
he
cannot
be
a
Disseised
who
was
not
then
seised
:
But
the
Assise
having
found
the
Disseisen
the
Seisen
in
Law
,
is
found
included
in
the
Disseisen
.
But
for
the
point
moved
,
that
the
Verdict
was
not
perfect
,
in
as
much
as
they
found
the
Disseisen
with
a
Nisi
,
it
seemed
to
Gawdy
that
the
Iudgment
upon
this
Verdict
was
erronious
,
as
where
a
Verdict
in
another
Action
is
imperfect
,
a
Venire
facias
de
novo
shall
be
awarded
to
try
the
Issue
again
:
And
if
Iudgment
be
given
upon
such
a
Verdict
it
is
error
;
so
here
the
Verdict
in
this
point
being
incertain
,
there
ought
to
have
been
a
Certificate
of
Assise
to
have
this
better
opened
:
But
the
three
other
Iustices
held
(
as
the
case
is
)
that
the
Verdict
in
this
point
is
certain
enough
,
for
that
which
cometh
before
the
Nisi
(
as
it
is
placed
)
is
meerly
nugator
.
as
in
the
case
of
the
Lord
Stafford
against
Sir
Rowland
Heyward
,
the
Iury
found
Non
assumpsit
,
but
if
such
Witnesses
say
true
(
as
they
believe
they
did
)
Assumpsit
,
&c.
it
was
but
a
meer
nugation
.
But
it
seemed
to
Popham
,
that
if
the
Verdict
had
been
,
if
the
words
of
the
Will
do
not
passe
the
Land
,
then
that
he
disseised
,
and
if
they
passe
,
then
that
he
did
not
disseise
;
there
if
the
words
of
the
Will
be
not
found
,
the
Verdict
had
been
all
imperfect
,
but
here
the
Verdict
is
full
and
perfect
before
the
Nisi
,
&c.
and
therfore
the
Iudgment
was
affirmed
.
Holme
versus
Gee
.
8.
A
Formedon
in
Descender
was
brought
by
Ralph
Holme
Demandant
,
against
Henry
Gee
and
Elizabeth
his
Wife
Tenants
,
and
the
Case
w●s
thus
.
Ralph
Langley
and
others
gave
two
Messuages
and
a
Garden
,
with
the
Appurtenances
in
Manchester
,
to
Ralph
Holme
the
great
Grandfather
of
the
Demandant
,
and
to
the
Heirs
of
his
body
begotten
,
after
which
the
same
great
Grand-father
by
Deed
indented
,
dated
20.
September
,
14
H.
7.
enfeoffed
Iohn
Gee
of
one
of
the
said
Messuages
,
and
of
the
said
Garden
,
rendring
yearly
to
the
said
great
Grand-father
and
his
Heirs
13
s.
4
d.
a
year
,
at
the
Feasts
of
S.
Michael
,
and
the
Annunciation
,
by
equal
portions
,
after
which
the
said
Iohn
Gee
died
seised
of
the
said
Messuages
and
Garden
,
and
it
descended
to
Henry
Gee
his
Son
and
Heir
;
after
which
the
said
great
Grand-father
by
his
Indenture
,
bearing
date
6.
Martii
,
12
H.
8.
enfeoffed
the
said
Henry
Gee
of
the
other
Messuages
,
rendring
also
to
him
and
his
Heirs
yearly
13
s.
4
d.
at
the
said
Feast
aforesaid
by
equal
portions
,
after
which
Holme
the
great
Grand-father
died
,
Stephen
Holme
being
his
Son
and
next
Heir
,
who
was
seised
of
the
Rents
aforesaid
,
and
afterwards
also
died
seised
,
Robert
Holme
being
his
Son
and
Heir
,
after
which
the
said
Henry
Gee
died
seised
of
the
said
two
Messuages
and
Garden
,
and
they
descended
to
Eliz.
his
Daughter
and
Heir
,
who
took
to
Husband
one
Richard
Shalcroft
,
and
had
Issue
the
said
Elizabeth
wife
of
the
said
Henry
Gee
,
Tenant
in
the
Formedon
,
after
which
the
said
Richard
Shalcroft
and
his
wife
died
,
after
which
and
before
the
marriage
had
between
the
said
Henry
Gee
and
Elizabeth
now
Tenants
in
the
Formedon
,
the
said
Elizabeth
enfeoffed
one
Richard
Greensearch
of
the
said
Messuages
and
Garden
,
after
which
,
to
wit
,
at
the
Feast
of
the
Annunciation
of
our
Lady
,
3
Eliz.
the
said
Henry
Gee
husband
to
the
said
Elizabeth
.
paid
13
s.
4
d.
for
the
said
Rent
reserved
as
is
aforesaid
,
to
the
said
Robert
Holme
,
after
which
,
to
wit
,
on
Munday
next
,
after
the
Assumption
of
our
Lady
at
Lancaster
,
before
the
Justices
there
,
a
Fine
was
levied
with
Proclamations
according
to
the
Statute
,
between
Thomas
Aynsworth
,
and
Thomas
Holden
then
being
seised
of
the
Tenements
aforesaid
Complainants
,
and
the
said
Henry
Gee
and
Eliz.
his
wife
,
Deforceants
of
the
Tenements
aforesaid
,
wherby
the
Conusance
was
made
to
the
said
Thomas
,
and
Thomas
who
rendred
them
to
the
said
Henry
Gee
and
Eliz.
his
wife
,
and
to
the
Heirs
of
their
bodies
,
the
Remainder
to
the
right
Heirs
of
the
said
Henry
:
the
five
years
past
after
the
Proclamations
in
the
life
of
the
said
Robert
Holme
,
after
which
the
said
Robert
died
,
and
Ralph
his
Son
and
Heir
brought
the
Formedon
upon
the
Gift
first
mentioned
,
and
the
Tenants
plead
the
said
Fine
with
Proclamations
in
Bar
,
and
the
Demandant
replyed
,
shewing
the
severall
discontinuances
made
by
the
great
Grand-father
as
aforesaid
,
and
the
acceptance
of
the
said
Rent
by
the
said
Robert
,
by
the
hands
of
the
now
Tenant
Henry
Gee
as
is
before
alledged
,
and
that
the
said
Henry
was
then
seised
of
the
said
Tenements
in
Fee
in
right
of
the
said
Eliz.
then
his
wife
,
and
although
that
he
alledge
the
said
severall
Feoffments
to
be
made
by
Deeds
indented
,
with
the
reservation
as
aforesaid
,
yet
it
is
not
mentioned
in
the
Replication
that
he
shews
forth
the
Deeds
wherby
the
reservation
was
made
;
To
which
the
Tenant
by
way
of
Rejoynder
shew
the
Feoffment
made
by
the
said
Eliz.
Shalcroft
to
the
said
William
Greenditch
,
wherby
he
was
seised
at
the
time
of
the
payment
of
the
said
Rent
at
the
said
Feast
of
the
Annunciation
of
our
Lady
,
and
traverse
Absque
hoc
,
that
the
said
Henry
Gee
was
therof
then
seised
in
right
of
his
wife
,
in
manner
and
form
,
wherupon
it
was
demurred
in
Law
,
and
adjudged
by
the
Justices
of
Assise
at
Lancaster
,
that
the
Plaintiff
should
be
barred
,
wherupon
the
Tenants
have
now
brought
their
Writ
of
Error
.
And
by
Popham
and
Clench
the
Iudgment
is
to
be
affirmed
;
First
,
because
that
the
acceptance
of
the
said
Rent
had
been
by
the
hands
of
one
who
was
to
pay
it
,
to
wit
,
the
Tenant
himself
,
yet
this
shall
not
bar
the
right
of
Intail
in
the
said
Robert
Holme
(
as
a
release
of
his
right
should
do
)
but
this
acceptance
shall
only
foreclose
him
of
his
Action
,
to
demand
the
Land
during
his
life
,
and
therfore
the
right
which
the
said
Robert
had
,
being
barred
by
the
Fine
,
the
Son
is
without
remedy
,
for
the
Son
shall
never
have
remedy
upon
the
Fine
levied
in
time
of
his
Father
,
the
five
years
after
the
Proclamations
being
passed
:
But
in
case
where
the
right
begin
first
to
be
a
right
in
the
Son
,
and
not
where
there
was
right
in
the
Father
.
And
further
,
it
seemed
to
them
,
that
the
payment
of
him
who
had
not
any
thing
in
the
Land
at
the
time
of
the
payment
,
as
here
,
shall
make
no
conclusion
to
him
who
accept
it
,
because
this
payment
is
as
none
in
Law
.
And
by
them
the
Rejoynder
of
the
Traverse
,
Absque
hoc
,
that
Henry
Gee
was
seised
at
the
time
of
the
payment
in
Fee
,
in
right
of
his
said
Wife
,
in
manner
and
form
,
as
in
the
Replication
is
ailedged
,
is
good
enough
,
for
he
traverseth
that
which
the
Demandant
hath
specially
alledged
to
destroy
the
Bar
,
and
contrary
to
that
which
is
alledged
,
it
shall
not
be
intended
that
they
had
other
particular
Estate
at
the
time
of
the
payment
,
which
may
make
the
payment
to
be
good
.
And
albeit
the
Traverse
had
been
,
Absque
hoc
,
that
the
said
Henry
was
seised
in
right
of
his
said
Wife
,
Modo
&
forma
prout
,
the
Demandant
hath
alledged
without
saying
in
Fee
,
as
it
is
pleaded
here
,
yet
the
Iury
shall
be
put
to
find
it
,
if
he
were
seised
in
Fee
,
In
jure
Uxoris
,
and
not
of
any
other
particular
Estate
,
as
in
12
E.
4.
4.
A
Feoffment
is
pleaded
by
Deed
,
the
other
makes
Title
,
and
traverseth
Absque
hoc
,
that
he
enfeoffed
Modo
&
forma
,
not
shewing
forth
the
Deed
,
yet
he
who
pleads
the
Feofment
,
by
Littleton
,
shall
give
no
other
Feoffment
in
evidence
,
then
that
which
is
pleaded
by
the
Deed.
And
by
18
E.
4.
3.
In
Trespasse
the
Defendant
justifies
the
entry
and
sowing
of
Corn
,
because
that
M.
was
seised
in
Fee
,
and
sowed
the
Land
,
and
the
Defendant
as
his
Servant
entred
and
cut
it
,
the
Plaintiff
saith
,
that
it
was
his
Free-hold
at
the
time
of
the
sowing
,
Absque
hoc
,
that
it
was
the
Free-hold
of
the
said
M.
and
per
Curiam
,
it
is
not
good
,
for
such
matter
was
not
alledged
by
the
Defendant
,
but
he
ought
to
traverse
the
Seisin
in
Fee
,
which
was
alledged
,
and
good
,
and
so
it
is
good
here
.
But
it
seems
to
Clench
,
that
the
Replication
is
not
good
,
because
he
doth
not
say
,
by
the
Writing
upon
which
the
Reservation
was
made
,
which
concludes
Robert
by
his
acceptance
,
Hic
in
Curia
prolat
.
as
by
Hill.
15.
E.
4.
15.
If
a
man
will
bar
a
woman
of
her
Action
for
her
Land
after
the
death
of
her
Husband
,
by
Feoffment
made
by
the
Baron
and
Feme
,
during
the
Coverture
by
Deed
,
rendring
Rent
,
by
reason
of
acceptance
of
the
said
Rent
after
the
death
of
the
husband
,
he
ought
to
shew
the
Deed
,
and
say
,
Hic
in
Curia
prolat
.
or
otherwise
the
Plea
is
not
good
,
because
that
in
such
a
case
albeit
it
were
a
Gift
in
Tail
,
the
wife
shall
not
be
concluded
by
her
acceptance
,
unlesse
that
the
Gift
were
by
Deed.
Popham
,
True
it
is
,
in
case
the
party
will
demur
upon
it
:
but
suppose
in
this
case
,
the
Tenants
had
expresly
acknowledged
the
said
Feoffments
,
and
then
concluded
afterwards
as
they
have
done
here
,
shall
they
afterwards
take
advantage
of
not
shewing
the
Deed
?
I
think
that
not
,
no
more
here
where
they
admit
it
,
and
plead
the
other
matter
to
avoid
the
conclusion
;
for
if
a
double
Plea
be
plea●ed
,
if
the
other
party
demur
upon
it
,
he
shall
take
the
advantage
of
the
doublenesse
:
But
if
he
passe
it
over
,
and
they
proceed
in
pleading
upon
another
point
,
the
doublenesse
is
gone
.
And
Fennor
said
,
that
the
right
which
is
intended
to
be
saved
within
the
first
branch
of
the
Statute
of
4
H.
7.
is
,
that
upon
which
the
party
may
pursue
his
Action
,
or
enter
for
his
remedy
,
the
which
the
said
Robert
could
not
do
in
,
when
the
Fine
was
levied
,
because
he
had
accepted
the
Rent
,
but
the
first
right
which
was
in
such
a
case
,
was
that
in
the
Demandant
.
Stroud
versus
Willis
.
9.
IN
Debt
upon
an
Obligation
of
40
l.
by
William
Stroud
Plaintiff
,
against
John
Willis
Defendant
,
the
Condition
wherof
was
,
If
the
said
Willis
his
Heirs
,
Executors
,
or
Assigns
,
should
pay
or
cause
to
be
paid
yearly
to
the
said
William
Stroud
,
the
Rent
,
or
summ
of
37
l.
10
s.
of
lawfull
money
,
at
the
Feasts
of
S.
Michael
,
and
the
Annuntiation
,
by
equall
portions
,
according
to
the
Tenor
,
true
intent
,
and
meaning
of
certain
Articles
of
agreement
indented
,
made
between
the
said
parties
of
the
same
date
,
that
the
Obligation
was
,
that
then
the
Obligation
shall
be
void
,
and
the
Defendant
shews
the
Articles
which
were
thus
,
to
wit
,
that
the
said
William
Stroud
had
demised
to
the
Defendants
all
such
Tenements
in
Yeatminster
,
of
,
or
in
which
the
said
William
then
had
an
Estate
for
life
by
Copy
.
Anglice
Copie
des
,
except
according
to
the
custom
of
the
Mannor
of
Yeatminster
,
from
the
Annunciation
of
our
Lady
then
last
past
,
for
forty
years
,
if
the
said
William
should
so
long
live
,
rendring
yearly
to
the
said
William
37
l.
10
s.
of
lawfull
money
,
at
the
Feasts
of
S.
Michael
,
and
our
Lady
,
by
equal
portions
,
under
the
East-gate
of
the
Castle
of
Taunton
,
in
the
County
of
Somerset
,
&c.
with
divers
things
comprised
in
the
said
Articles
.
To
which
points
the
Defendant
pleaded
,
that
at
the
time
of
the
making
of
the
said
Articles
the
Plaintiff
had
not
any
Estate
in
the
Tenements
in
Yeatminster
aforesaid
,
for
tearm
of
his
life
,
by
Copy
,
Anglice
Copie
des
,
except
according
to
any
custom
of
the
said
Mannor
of
Yeatminster
,
and
that
the
Obligation
was
made
for
the
payment
of
the
same
Rent
reserved
by
the
said
Articles
,
and
demands
Iudgment
,
&c.
wherupon
the
Plaintiff
demurred
in
the
Common
Bench
,
and
there
Iudgment
was
given
that
the
Plaintiff
should
recover
his
Debt
and
Damages
,
as
appeareth
there
,
Mich.
36
,
&
37.
Eliz.
Rot.
312.
upon
which
a
Writ
of
Error
was
brought
in
the
Kings
Bench
,
and
there
moved
that
the
Iudgment
was
erroneous
,
in
as
much
as
upon
the
matter
he
ought
to
have
been
barred
of
his
Action
?
for
if
an
Action
of
Debt
had
been
brought
upon
the
Demise
,
by
the
Articles
,
the
Defendant
might
have
pleaded
as
here
,
and
the
Plaintiff
should
be
cleerly
barred
:
As
if
a
man
be
bound
to
make
an
Estate
,
or
to
assure
to
another
all
the
Lands
which
he
hath
by
descent
from
his
Father
,
or
all
the
Lands
which
he
hath
by
purchase
from
such
a
one
,
or
the
like
.
And
of
this
opinion
Gawdy
was
,
saying
,
in
as
much
as
the
Obligation
is
,
that
he
shall
be
paid
according
to
the
true
intent
of
the
Articles
,
the
intent
of
them
is
not
that
the
Rent
shall
be
paid
if
any
Land
be
not
passed
by
them
,
for
it
should
be
paid
,
as
by
22
H.
6.
if
a
man
be
bound
to
pay
a
Rent
which
is
reserved
upon
a
Lease
made
to
him
,
he
ought
to
pay
it
at
his
peril
:
But
if
it
be
to
pay
it
accordingly
to
the
Lease
,
there
he
said
,
it
is
not
payable
but
upon
the
Bond
,
and
is
to
be
paid
as
a
Rent
.
And
if
the
Land
be
evicted
in
the
interim
before
the
day
of
payment
,
the
Obligor
shall
help
himself
by
pleading
of
it
upon
such
an
Obligation
to
discharge
the
Bond
,
so
here
:
But
it
seemed
to
Popham
,
that
the
Iudgment
was
well
given
,
and
yet
he
agreed
the
Cases
that
were
put
;
but
he
said
there
was
a
diversity
where
the
Obligation
goes
in
the
generality
,
and
where
it
tends
to
a
speciality
:
for
as
by
2
E.
4.
If
a
man
be
bound
to
be
Non-suit
in
all
Actions
which
he
hath
against
such
a
one
,
or
to
assure
to
another
all
his
Lands
in
Dale
,
he
may
say
,
that
he
hath
not
any
Suit
,
or
that
he
hath
no
Land
in
Dale
:
But
if
it
be
that
he
shall
be
Non-suit
in
a
Formedon
depending
,
or
to
enfeoff
him
of
White
acre
,
there
it
is
no
plea
,
because
he
refers
to
a
special
point
.
And
by
18
E.
4.
If
a
man
be
bound
to
another
to
pay
him
10
l.
for
which
a
stranger
is
bound
to
the
said
Obligee
,
it
is
no
plea
for
him
to
say
,
that
the
stranger
is
not
bound
to
pay
him
10
l.
for
when
the
Condition
refers
to
such
a
speciall
matter
,
this
cannot
be
denied
of
him
who
is
bound
.
And
therfore
in
this
case
the
Defendant
cannot
say
,
that
there
were
not
any
such
Articles
,
contrary
to
that
which
is
specially
comprised
in
the
Condition
,
as
by
28
H.
6.
A
man
was
bound
to
perform
the
Covenants
comprised
in
a
certain
Indenture
of
Covenants
,
he
shall
not
say
,
that
there
was
not
any
such
Indenture
,
because
it
resorts
to
a
speciall
.
So
I
think
,
if
a
man
be
bound
to
pay
the
Rent
of
10
l.
a
year
reserved
upon
an
Indenture
of
Demise
made
of
Lands
in
D.
payable
at
such
a
Feast
,
he
shall
not
say
against
it
,
that
there
was
no
such
Demise
made
,
nor
no
such
Rent
reserved
upon
the
Demise
,
but
is
estopped
of
the
one
and
the
other
.
And
in
Hill.
3.
Eliz.
A
man
was
bound
th●t
he
shall
pay
to
A.
or
the
Obligee
,
all
such
summs
of
mony
as
T.
S.
deceased
stands
bound
to
pay
by
his
Obligation
to
the
said
A.
and
of
one
R.
P.
to
the
behoof
of
the
Children
of
such
a
one
,
according
to
the
Will
of
the
said
party
;
and
in
Debt
upon
this
Obligation
he
saith
,
that
the
said
T.
S.
was
never
bound
by
any
such
Writing
Obligatory
to
the
said
A.
and
R.
P
&c.
to
pay
,
&c.
Pro
usu
filiorum
,
&c.
as
in
the
Condition
;
and
per
Curiam
adjudged
no
good
Bar
,
because
he
is
estopped
to
deny
the
speciall
matter
,
which
is
matter
of
Writing
,
and
not
a
bare
matter
in
Deed.
Kirton
versus
Hoxton
,
and
others
.
10.
IN
an
Appeal
of
Mayhem
brought
by
Kirton
Plaintiff
,
against
Rob.
Hoxton
Esq
and
divers
other
Defen
.
the
one
of
the
Defen
.
plead
Nul
tiel
in
rerum
natura
,
as
another
of
the
Appellees
,
and
if
it
be
not
found
then
as
to
the
Felony
and
Mayhem
not
guilty
:
Agreed
by
the
whole
Court
that
such
a
manner
of
pleading
is
not
to
be
suffered
in
an
Appeal
of
Mayhem
,
because
no
life
is
put
in
danger
by
the
suit
:
And
yet
it
was
objected
that
there
are
presidents
,
that
such
form
of
pleading
hath
been
admitted
in
Appeals
of
Mayhem
.
But
the
Court
had
respect
to
it
,
that
the
reason
in
all
the
Books
of
Law
in
which
it
hath
been
admitted
in
an
Appeal
of
death
,
and
the
like
,
is
,
that
it
stands
in
Favorem
vitae
,
and
therfore
it
is
admitted
to
be
good
,
or
otherwise
by
the
Books
,
it
shall
not
be
admitted
to
be
so
,
for
the
doublenesse
of
it
:
But
no
life
is
to
be
put
in
●e●pardy
in
this
case
,
and
therfore
such
a
plea
shall
not
be
admitted
,
but
the
Not
guilty
shall
stand
,
by
which
the
other
plea
is
waived
.
Hillary
Term
,
38
Eliz.
Henry
Earl
of
Pembrook
,
versus
Sir
Henry
Backley
.
IN
an
Action
upon
the
Case
,
between
Henry
Earl
of
Pembrook
Plaintiff
,
See
this
Case
Coke
lib
5.
76.
a.
and
Sir
Henry
Backley
Knight
,
Defendant
,
the
case
upon
the
pleading
appeareth
to
be
thus
.
The
said
Earl
was
seised
in
his
Demesn
as
of
Fee
,
of
the
Mannor
of
Stocktrift
,
in
the
County
of
Somerset
,
to
which
Mannor
the
Office
of
the
custody
of
the
Forest
of
Selwood
,
in
the
same
County
belongeth
,
and
also
that
there
was
before
time
of
memory
,
an
Office
within
the
same
Forest
called
the
Lievtenant-ship
,
or
Custody
of
the
said
Forest
belonging
to
the
said
Mannor
,
of
which
also
the
said
Earl
was
seised
in
his
Demesn
as
of
Fee
:
And
that
there
was
one
part
of
the
said
Forest
called
the
West
part
of
the
said
Forest
,
in
which
there
were
two
Walks
,
or
Bayliwicks
,
the
one
called
Staverdale
walk
,
and
the
other
Brewick
walk
:
And
that
the
said
Lievtenant
had
the
charge
of
the
Deer
,
and
the
disposition
and
appointment
of
the
Keepers
of
the
said
Forest
.
And
that
the
said
Earl
being
so
seised
,
by
his
Writing
,
bearing
date
5.
Novemb.
12.
Eliz.
reciting
that
his
Father
had
granted
the
Office
of
Lievtenant-ship
,
and
Deputy-ship
,
of
the
said
West
part
of
the
said
Forest
,
Cum
vadiis
,
&c.
quando
acciderit
,
and
the
Keeper-ship
of
Brewick-walk
aforesaid
,
to
the
said
Sir
Maurice
Barkley
Knight
,
and
the
Heirs
Males
of
his
body
,
and
instituted
and
ordained
him
,
and
the
Heirs
Males
of
his
body
,
Lievtenant
and
Deputy
therof
to
the
said
Earl
and
his
Heirs
,
confirmed
the
Grant
aforesaid
.
And
further
by
the
same
Deed
granted
and
confirmed
to
the
said
Sir
Maurice
,
and
to
the
Heirs
Males
of
his
body
,
the
said
Lievtenant-ship
and
Deputy-ship
of
the
said
West
part
of
the
said
Forest
,
and
also
the
Keeper-ship
of
the
said
Walk
called
Staverdale
Walk
,
together
with
the
Lodges
,
&c.
Provided
alwaies
,
and
the
said
Sir
Maurice
covenanted
and
granted
,
for
him
and
the
Heirs
Males
of
his
body
,
with
the
said
now
Earl
his
Heirs
and
Assigns
,
that
it
shall
be
lawfull
for
the
said
Earl
his
Heirs
and
Assigns
,
to
have
all
the
Preheminence
or
commandment
of
the
said
Game
and
Hunting
,
and
pleasure
there
,
as
if
this
Grant
had
not
been
made
.
Provided
also
,
and
the
said
Sir
Maurice
covenanted
,
granted
,
and
promised
for
him
,
and
the
Heirs
Males
of
his
body
,
to
,
and
with
the
said
Earl
,
his
Heirs
and
Assigns
,
that
the
said
Sir
Maurice
and
the
Heirs
Males
of
his
body
,
and
their
Assignee
,
and
Assignees
,
will
preserve
the
Games
as
fair
as
it
commonly
hath
been
used
,
and
that
neither
the
said
Maurice
,
nor
any
of
the
Heirs
Males
of
his
body
,
nor
any
of
their
Assignees
,
will
cut
any
manner
of
Wood
growing
upon
any
part
of
the
Premisses
,
unlesse
for
necessary
Brouse
,
and
such
as
they
may
lawfully
cut
of
their
own
,
and
as
was
accustomed
,
&c.
after
which
Sir
Maurice
died
,
and
Sir
Henry
Barkley
his
Son
and
Heir
Male
,
cut
four
Okes
within
the
said
Walk
called
Brewicks
,
growing
upon
the
soile
of
the
Queen
there
,
every
one
of
them
being
Timber
,
and
of
the
value
of
13
s.
4
d.
and
converted
them
to
his
own
use
.
And
whether
by
this
act
done
by
the
said
Sir
Henry
the
now
Earl
of
Pembrook
,
may
re-enter
into
the
things
granted
by
him
,
was
the
question
,
which
stands
upon
two
points
,
the
first
,
Whether
the
last
Proviso
makes
a
Condition
,
or
be
but
a
meer
Covenant
.
2.
Whether
this
Act
makes
a
Forfeiture
of
the
said
Offices
granted
as
before
by
the
course
of
the
Common
Law
.
Gaudey
,
Clench
,
Walmsley
,
and
Beamont
,
that
the
first
Proviso
is
not
a
Condition
,
either
because
he
is
not
by
this
to
do
more
then
he
may
do
by
his
superior
custody
,
in
which
case
he
ought
to
do
it
by
his
own
authority
,
as
to
take
his
fee
Deer
,
or
to
chase
and
kill
Deer
by
Warrant
,
and
the
like
;
or
otherwise
if
it
shall
be
taken
,
that
he
may
by
this
Proviso
kill
or
chase
the
Game
at
his
pleasure
,
it
is
void
,
because
as
to
it
,
he
is
to
do
that
which
he
ought
not
to
do
by
his
Office
,
to
wit
,
to
destroy
the
Game
,
which
by
his
Office
he
is
to
preserve
;
and
therfore
for
the
first
,
it
stands
meerly
upon
the
Covenant
.
Then
when
he
saith
further
in
the
second
clause
;
Provided
also
,
and
the
said
Sir
Henry
Barkley
covenants
,
this
is
to
be
intended
that
it
shall
be
as
the
other
for
the
word
also
,
and
this
is
but
a
bare
Covenant
as
the
first
was
.
And
they
said
further
,
that
this
last
Proviso
shall
be
said
entirely
the
words
of
the
Grantee
himself
,
as
the
Covenant
is
,
and
without
words
of
the
Grantor
a
Condition
cannot
be
,
for
it
is
for
him
to
condition
with
the
Estate
given
,
and
not
for
him
to
whom
the
Grant
is
made
;
And
therfore
suppose
that
it
had
been
on
the
other
part
,
to
wit
,
Provided
alwaies
,
and
the
Grantor
covenant
that
the
Grantee
shall
have
the
refuse
of
the
brouse
,
and
the
like
;
this
shall
not
be
said
to
be
any
Condition
,
but
a
meer
Covenant
:
In
like
manner
shall
it
be
on
the
other
part
.
And
further
it
is
common
for
Scriveners
and
ignorant
persons
to
make
in
effect
every
Covenant
to
begin
with
a
Proviso
in
this
manner
,
and
therfore
to
expound
such
a
manner
of
Proviso
as
a
Condition
,
it
shall
be
too
perilous
to
the
Estates
of
men
.
And
for
the
case
upon
the
Lease
made
by
Serjeant
B●●dloes
,
which
was
thus
.
Provided
alwaies
,
and
it
was
covenanted
,
granted
and
agreed
between
the
parties
,
if
the
Lessee
sell
,
or
alien
the
term
that
the
Lessor
shall
have
the
preferment
,
This
they
agreed
to
be
a
good
Condition
,
as
was
adjudged
in
the
Common
Bench
,
32
Eliz.
but
the
case
there
is
,
because
they
are
the
words
as
well
of
the
Lessor
,
who
may
add
a
Condition
to
the
Estate
,
as
of
the
Lessee
who
made
the
Covenant
,
which
is
not
here
.
But
they
said
,
that
the
case
between
Hamington
and
Pepull
which
was
17
Eliz.
in
the
Kings
Bench
,
was
more
nigh
in
resemblance
to
the
case
in
question
,
which
was
that
the
said
Pepull
made
a
Lease
for
years
to
Hamington
of
a
Farm
,
except
the
wood
,
and
covenanted
with
the
Lessee
that
he
shall
take
all
manner
of
under-wood
;
provided
alwaies
,
and
the
Lessee
covenant
that
he
will
not
cut
any
manner
of
Timber-tree
,
&
this
was
adjudged
no
Condition
.
And
as
to
the
other
point
they
said
,
that
the
cutting
of
Trees
by
him
who
had
the
custody
of
the
Forest
,
is
not
a
forfeiture
of
his
Office
by
the
Common
Law
,
as
it
is
of
him
who
hath
the
custody
of
a
Park
,
for
there
is
another
speciall
Officer
who
hath
the
charge
of
wood
in
a
Forest
,
to
wit
,
the
Verderer
and
the
Woodward
,
and
therfore
it
is
no
forfeiture
of
him
who
hath
the
custody
of
the
Forest
to
cut
Trees
,
for
he
hath
another
charge
,
to
wit
,
the
custody
of
the
Game
only
,
and
not
of
the
Wood.
And
further
the
cutting
of
one
or
two
Trees
is
no
cause
of
forfeiture
,
for
it
may
be
that
there
is
Covert-shade
and
brouse
sufficient
of
that
which
yet
remains
,
in
which
case
it
is
no
forfeiture
if
it
be
not
averred
that
these
things
are
impaired
by
it
.
But
the
chief
Iustices
,
chief
Baron
and
all
the
other
Iustices
and
Barons
were
of
a
contrary
opinion
.
And
for
the
matter
of
forfeiture
at
Common
Law
,
they
said
that
it
was
a
cause
of
forfeiture
of
an
Office
at
common
Law
to
cut
the
Trees
,
as
well
in
the
case
of
a
Forester
,
as
in
case
of
a
Park-keeper
,
for
the
Forester
hath
not
only
the
charge
of
the
Game
,
but
of
all
that
is
within
the
Forest
by
which
the
Game
is
fed
,
preserved
,
or
succoured
,
and
they
are
fed
by
the
brouse
,
and
succoured
by
the
shade
,
and
have
the
calmer
and
better
lodging
by
reason
of
the
Trees
;
and
therfore
by
their
Office
they
are
to
have
a
care
of
these
things
as
well
as
of
the
Game
,
for
without
these
the
Game
cannot
stand
:
as
to
say
,
that
there
are
others
who
have
speciall
charge
of
the
Wood
and
Pasture
,
as
the
Woodward
,
or
Agister
,
&c.
this
is
no
proof
that
the
Foresters
,
or
Keepers
are
discharged
therby
.
And
the
Foresters
and
Keepers
are
by
their
Offices
to
present
the
Misdoers
in
the
Woods
within
the
Forests
of
the
Wood-wards
,
and
therfore
they
have
to
do
with
it
.
And
by
Carta
de
foresta
,
none
may
cut
his
wood
within
his
Forest
,
Nisi
per
visum
Forestraii
,
ergo
the
Foresters
have
charge
therof
:
And
every
voluntary
act
done
by
an
Officer
contrary
to
that
which
belongs
to
his
Office
is
a
forfeiture
of
his
Office
,
as
by
voluntary
killing
of
Bucks
,
cutting
of
Trees
,
Wood
,
or
the
like
:
but
otherwise
it
is
of
things
done
or
suffered
by
his
negligence
if
it
be
not
common
or
often
.
And
albeit
the
Trees
here
were
not
many
,
or
that
it
was
not
averred
that
the
Game
was
to
be
hurt
therby
,
yet
it
cannot
be
intended
but
that
it
is
so
much
impaired
by
it
,
as
it
should
be
by
the
killing
of
a
Buck
in
the
Forest
,
by
which
the
Office
shall
be
forfeited
,
because
the
Game
is
therby
the
worse
,
and
yet
there
may
be
Game
sufficient
without
this
Buck
,
but
he
hath
voluntarily
done
a
thing
contrary
to
his
Office
,
and
therfore
it
is
a
Forfeiture
of
his
Office
,
and
so
it
shall
be
in
this
case
.
And
for
the
other
point
they
said
,
it
was
a
Condition
and
also
a
Covenant
,
and
it
was
for
good
purpose
to
have
it
to
be
so
:
For
suppose
that
the
Game
had
been
destroyed
by
the
said
Sir
Henry
,
shall
this
he
a
sufficient
recompence
or
satisfaction
to
enter
for
the
Condition
broken
?
No
,
and
therfore
the
Covenant
was
made
to
recompence
him
for
Damages
.
And
when
u●on
the
Habendum
a
Proviso
is
added
for
a
thing
to
be
done
by
Provided
alwaies
that
the
Grantee
shall
not
cut
any
Tree
,
And
the
Grantee
covenant
also
that
he
will
not
cut
any
Tree
,
this
is
plainly
a
Condition
and
also
a
Covenant
;
then
it
is
as
plain
in
the
case
in
question
,
which
is
;
Provided
also
,
and
the
Grantee
covenant
,
&c.
that
he
will
not
cut
any
manner
of
Wood
:
distinguish
the
sentence
by
his
proper
distinction
,
and
it
is
cleer
that
it
is
a
Condition
as
well
as
a
Covenant
.
And
to
say
,
that
there
is
a
diversity
between
this
case
and
the
case
upon
Serjeant
Bendloes
Lease
,
because
there
it
is
,
Provided
alwaies
,
and
it
is
covenanted
and
agreed
between
the
parties
;
In
which
case
it
is
alledged
,
that
the
agreement
which
is
the
Plaintiffs
,
goes
to
the
Proviso
to
make
it
a
Condition
for
him
,
as
well
as
it
shall
go
to
the
Grantee
to
make
it
to
be
a
Covenant
from
him
:
they
understand
no
difference
,
because
the
Proviso
as
it
is
placed
,
is
of
it self
as
spoken
by
the
Plaintiff
;
and
the
agreement
between
the
parties
that
such
a
thing
shall
be
done
by
the
Lessee
,
makes
it
a
Covenant
on
his
part
only
,
all
being
to
be
performed
by
him
,
as
plainly
as
in
the
case
in
question
.
And
to
say
,
that
the
last
Proviso
shall
not
be
a
Condition
,
because
the
first
cannot
enure
as
a
Condition
,
because
that
which
is
to
be
done
may
lawfully
be
done
with
it
,
or
without
it
,
or
because
that
the
matter
to
which
the
Proviso
is
annexed
,
is
repugnant
to
the
nature
of
the
thing
granted
,
yet
this
is
not
because
of
the
nature
of
the
word
it self
,
but
by
reason
of
that
to
which
the
Proviso
is
annexed
,
and
therfore
the
Proviso
following
hindred
in
its
operation
by
meanes
of
the
word
,
also
:
And
therefore
if
a
man
makes
a
Lease
for
yeers
,
provided
alwayes
that
the
lessor
may
enjoy
and
hold
the
Mannors
of
D.
(
which
is
other
Land
)
or
that
the
Lessee
shall
kill
I.
S.
these
are
void
of
Conditions
;
But
grant
then
that
it
is
further
provided
also
that
he
shall
not
alien
his
Terme
,
is
not
this
a
good
Condition
although
that
which
was
Precedent
was
no
Condition
?
It
is
cleer
that
is
not
;
And
they
said
for
Hamingtons
Case
that
it
was
but
of
the
nature
of
a
declaration
with
what
wood
the
Lessee
shall
meddle
,
because
it
depends
upon
the
Covenant
of
the
Lessor
,
and
it
is
generall
,
to
wit
,
that
he
may
cut
any
manner
of
underwood
,
provided
that
he
do
not
cut
any
manner
of
Timber
;
and
Popham
was
of
councell
with
Hamington
in
this
case
,
and
the
Court
at
the
beginning
insisted
much
that
it
was
a
Condition
,
and
that
for
the
reason
then
alledged
,
that
it
depended
upon
the
Covenant
of
the
Lessor
,
which
was
general
for
all
manner
of
under-wood
,
because
that
Standels
growing
between
great
Trees
,
might
be
taken
within
the
generall
words
of
all
manner
of
underwood
,
for
to
make
it
plain
it
was
well
put
in
,
that
he
shall
not
cut
any
manner
of
Timber
Trees
,
and
therfore
in
this
point
it
was
but
a
Declaration
,
with
what
wood
he
should
meddle
,
although
in
truth
it
was
of
another
thing
then
was
comprised
in
the
Covenant
before
:
And
then
the
adding
of
a
Covenant
to
such
a
Proviso
shall
not
make
the
Proviso
of
another
nature
,
then
it
was
before
the
Covenant
made
,
or
if
no
Covenant
had
been
added
to
it
,
and
upon
this
reason
the
Court
then
gave
Iudgment
for
Hamington
.
And
by
him
,
if
I
am
seised
of
the
Mannor
of
D.
in
D.
and
of
Black
acre
in
D.
and
so
seised
,
I
covenant
with
I.
S.
that
he
shall
enjoy
the
said
Mannor
for
ten
years
:
Provided
and
the
said
I.
C.
covenant
that
he
shall
not
enjoy
Black
acre
,
this
Covenant
is
not
a
Condition
,
but
a
Declaration
deduced
out
of
my
Covenant
,
to
make
a
plain
Declaration
,
that
it
is
not
my
intent
that
Black
acre
shall
passe
,
be
it
parcel
or
not
parcel
of
the
said
Mannor
;
Then
the
Covenant
following
will
not
alter
the
nature
of
the
exposition
of
the
Proviso
which
the
Law
shall
make
of
it self
,
if
it
had
stood
of
it self
without
a
Covenant
following
.
And
for
the
Proviso
here
,
he
put
this
case
,
suppose
it
had
been
;
Provided
,
and
the
Grantee
covenants
that
he
shall
not
cut
any
Trees
:
None
will
deny
but
that
this
had
been
a
Condition
and
a
Covenant
also
:
And
what
diversity
is
there
where
the
word
is
at
the
conclusion
,
and
so
couple
the
Condition
and
Covenant
together
.
And
we
are
not
to
alter
the
Law
for
the
ignorance
of
Scriveners
,
who
do
they
know
not
what
by
their
ignorance
,
shall
be
corrected
by
the
Law
.
And
they
agreed
,
that
where
a
principall
Officer
is
by
his
Office
to
make
inferior
Officers
under
him
,
and
the
inferior
Officer
commits
a
forfeiture
,
the
superior
Officer
shall
take
advantage
therof
,
and
shall
place
a
new
Officer
,
as
was
done
in
39
H.
6.
for
the
Office
of
the
Marshall
of
the
Kings
Bench
,
put
in
by
the
great
Marshall
of
Englang
.
Easter
Term
,
39.
Eliz.
Overton
versus
Sydall
.
1.
IN
Debt
between
Valentine
Overton
Clark
,
Prebendary
of
the
Prebend
of
Tervin
in
the
County
of
Chester
,
founded
in
the
Cathedrall
Church
of
Litchfeild
in
the
County
of
Stafford
,
against
Thomas
Sydall
Executor
of
William
Sydall
,
the
case
appeared
to
be
this
.
Henry
Sydall
Clark
,
Prebendary
of
the
Prebend
,
26
Maij
5.
E.
6.
with
the
assent
of
the
Dean
and
Chapter
,
and
by
Writing
indented
,
demised
the
said
Prebend
,
to
the
said
William
Sydall
for
43.
years
from
the
Feast
of
the
Annunciation
of
our
Lady
,
in
the
year
of
our
Lord
555.
at
the
yearly
rent
of
361.
William
Sydall
assigned
over
his
term
,
and
died
,
making
the
said
Thomas
his
Executor
,
Henry
Sydall
also
died
,
and
afterwards
the
Plaintiff
was
made
Prebend
,
and
for
the
rent
arrear
in
his
time
,
and
after
the
assignment
this
Action
is
brought
against
the
Executors
in
the
Debet
and
Detinet
.
And
it
was
alledged
that
in
Hillary
Term
36
Eliz.
Rot.
420.
in
the
case
between
Glover
and
Humble
,
it
was
adjudged
in
the
Kings
Bench
,
that
the
Grantee
of
the
Reversion
shall
not
maintain
an
Action
of
Debt
upon
a
Lease
for
years
against
the
Lessee
himself
,
for
any
arrears
of
Rent
incurred
,
after
that
he
had
made
an
assignment
of
his
Term
over
to
another
,
and
alledged
also
that
in
Hillary
,
29
Eliz.
in
a
case
between
it
was
adjudged
,
that
an
Action
of
Debt
lyeth
for
the
Lessor
himself
against
the
Lessee
,
for
arrearages
of
Rent
reserved
upon
the
Lease
,
and
accrued
after
the
Lessee
had
assigned
his
Term
over
;
and
both
these
cases
were
adjudged
accordingly
in
the
Kings
Bench
,
and
the
reason
in
the
first
case
was
,
because
that
by
the
Grant
of
the
Reversion
over
,
the
privity
of
contract
which
was
between
the
Lessor
and
the
Lessee
is
dissolved
,
and
the
Grantee
of
the
Reversion
as
to
it
but
a
stranger
.
But
in
the
last
case
the
privity
of
contract
is
not
dissolved
between
the
Lessor
and
the
Lessee
,
notwithstanding
the
Lessee
hath
passed
over
his
Term
,
neither
is
the
contract
therby
determined
between
the
parties
.
But
Fennor
said
,
that
in
this
case
the
privity
in
Deed
is
gone
by
the
death
of
the
Lessee
,
and
therfore
the
Executor
who
is
but
privy
in
Law
,
is
not
subject
to
this
Action
,
unlesse
in
case
where
he
hath
the
Term
;
in
which
case
he
shall
be
charged
as
he
who
hath
Quid
pro
quo
,
which
is
not
in
the
case
here
.
And
he
said
further
,
that
a
Lease
made
by
a
Prebend
is
good
no
longer
then
his
own
life
,
but
is
meerly
void
by
his
death
,
and
therfore
shall
not
be
said
to
be
a
contract
to
bind
further
then
his
life
,
and
therfore
also
he
said
,
that
the
Action
will
not
lye
in
the
said
case
for
the
Successor
.
But
Gawdy
said
,
that
here
the
Lease
is
confirmed
,
and
therfore
good
during
the
Term
,
but
it
seemed
to
him
that
the
Executor
who
is
but
in
privy
in
Law
shall
not
be
chargable
with
this
action
,
for
the
arrearages
due
after
the
assignment
over
,
and
yet
he
agreed
that
the
Heir
,
the
Successor
,
and
the
Executor
of
the
Lessor
shall
have
debt
against
the
Lessee
himself
,
for
the
arrearages
which
accrues
to
be
due
after
the
assignment
over
of
the
Lease
:
But
he
said
,
that
the
Action
of
Debt
against
the
Executor
upon
a
Lease
made
to
the
Testator
,
and
for
the
arrearages
due
in
the
time
of
the
Executor
,
ought
to
be
in
the
Debet
and
Detinet
,
and
that
for
the
occupation
of
the
Term
,
wherby
he
hath
Quid
pro
quo
,
which
is
not
in
this
case
.
Popham
said
,
that
for
the
time
that
the
contract
shall
bind
in
nature
of
a
Contract
,
there
is
not
any
difference
between
th●
Heir
the
Successor
,
and
the
Executor
of
the
Lessor
,
and
the
Executor
or
Administrator
of
the
Lessee
,
for
the
one
and
the
other
are
equally
privy
to
the
Contract
,
and
a
Contract
or
Covenant
especially
being
by
writing
,
binds
as
strongly
the
Executor
or
Administrator
,
as
the
Testator
or
the
I●testate
himself
who
made
it
,
For
these
are
privies
indeed
to
the
Contract
,
and
as
to
it
represent
the
person
of
the
Testator
or
Intestate
himself
.
And
he
agreed
,
that
the
Action
of
Debt
against
the
Executors
,
for
the
arrearages
of
Rent
of
a
Lease
which
he
occupies
as
Executor
,
and
accrued
in
their
own
time
,
shall
be
in
the
Debet
and
Detinet
:
The
reason
is
,
although
they
have
the
Land
as
Executor
,
yet
nothin●
ther
of
shall
be
●mp●●yed
to
the
Execution
of
the
Will
,
but
such
Pr●fits
as
are
above
that
which
w●s
to
make
the
Rent
,
and
therfore
so
much
of
the
Profits
as
is
to
make
,
or
answer
the
Rent
,
they
shall
take
to
their
own
use
to
answer
the
Rent
,
and
therfore
they
having
Quid
pro
quo
,
to
wit
,
so
much
of
the
Profits
for
the
Rent
,
the
action
ought
to
be
brought
against
them
in
such
cases
,
where
they
are
to
be
charged
in
Debt
for
Rent
upon
a
Lease
made
to
the
Testator
,
and
have
not
the
Profits
of
the
Lease
it self
,
nor
means
,
nor
default
in
them
to
come
to
it
,
the
action
of
Debt
ought
to
be
against
them
in
the
Detinet
only
and
this
is
the
case
here
,
and
therfore
the
action
being
in
the
Debet
and
Detmet
doth
not
lye
.
And
further
he
agreed
in
this
case
to
the
opinion
of
Fennor
,
that
the
action
here
doth
not
lye
for
the
Successor
of
the
Prevend
who
made
the
Lease
,
for
no
more
then
the
Successor
in
this
case
sh●ll
be
bound
by
the
Contract
of
his
Predecessor
,
no
more
shall
he
take
advantage
by
this
Contract
,
for
it
is
the
consideration
which
makes
him
to
be
bound
,
and
not
only
the
C●ntract
,
and
so
the
Successor
in
such
cases
is
but
privy
in
Law
,
and
not
in
D●ed
t●
the
Contract
of
his
Predecessor
.
But
otherwise
it
is
●f
the
Successor
of
a
Bishop
and
the
like
,
which
Leases
are
not
void
against
the
Successor
,
but
voidable
.
Case
of
Armes
.
2.
VPon
an
assembly
of
all
the
Iustices
and
Barons
at
Sergeants-Inne
,
this
Term
,
on
Munday
the
15.
day
of
April
,
upon
this
question
m●ved
by
Anderson
chief
Iustice
of
the
Common
Bench
:
Whether
men
may
arme
themselves
to
suppresse
Riots
,
Rebellions
,
or
to
resist
Enemies
,
and
to
endeavour
themselves
to
suppresse
or
resist
such
Disturbers
of
the
Peace
,
or
quiet
of
the
Realm
;
and
upon
good
deliberation
,
it
was
resolved
by
them
all
,
that
every
Iustice
of
Peace
,
Sheriff
,
and
other
Minister
,
or
other
Subject
of
the
King
,
where
such
accident
happen
may
do
it
:
And
to
fortifie
this
their
resolution
,
they
perused
the
Statute
of
2
E
3.
cap.
3.
which
enacts
that
none
be
so
hardy
as
to
come
with
force
,
or
bring
forc●
to
any
place
in
affray
of
the
Peace
,
nor
to
go
or
ride
armed
,
night
nor
day
,
unlesse
h●
be
Servant
to
the
King
in
his
presence
,
and
the
Ministers
of
the
King
in
the
execution
of
his
Precepts
,
or
of
their
Office
,
and
these
who
are
in
their
company
assisting
them
,
or
upon
cry
made
for
Weapons
to
keep
the
Peace
,
and
this
in
such
places
where
accident
▪
happen
upon
the
penalty
in
the
same
Statute
contained
;
wherby
it
appeareth
,
that
upon
cry
made
for
Weapons
to
keep
the
Peace
,
every
man
where
such
accidents
happen
for
breaking
the
Peace
,
may
by
the
Law
arme
himself
against
such
evill
Doers
to
keep
the
Peace
.
But
they
take
it
to
be
the
more
discreet
way
for
every
one
in
such
a
case
to
attend
and
be
assistant
to
the
Iustices
,
Sheriffs
,
or
other
Ministers
of
the
King
in
the
doing
of
it
.
3.
AT
the
same
time
it
was
also
resolved
by
them
all
(
except
Walmsley
,
Fennor
,
and
Owen
)
in
the
Case
of
one
Richard
Bradshaw
and
Robert
Burton
,
who
with
others
lately
by
word
entred
themselves
into
an
agreement
one
with
another
to
rise
and
put
themselves
into
Armes
,
and
so
to
go
from
one
Gentlemans
house
to
another
,
and
so
from
house
to
house
to
pull
down
Inclosures
generally
;
that
this
so
appearing
by
their
own
confession
,
or
by
two
Witnesses
according
to
the
Statute
,
is
high
Treason
by
the
Statute
of
13
Eliz.
cap.
1.
The
words
of
which
Statute
are
,
That
if
any
intend
to
levy
War
against
the
Queen
,
and
this
maliciously
,
advisedly
,
and
expresly
declare
or
utter
by
any
words
or
sayings
,
that
this
shall
be
high
Treason
:
For
all
agreed
that
Rebellion
of
Subjects
against
the
Queen
hath
But
Walmsley
and
the
others
with
him
said
,
that
the
Statute
of
1
Mar:
cap.
12.
10.
That
if
any
to
the
number
of
twelve
,
or
more
,
assemble
themselves
to
the
intent
to
pull
down
Inclosures
,
Pales
,
and
the
like
with
force
,
and
continuing
together
after
proclamation
,
according
to
the
Statute
,
to
go
away
by
the
space
of
an
hour
,
or
do
any
of
the
Offences
mentioned
in
the
Statute
,
that
this
is
Felony
:
So
that
if
these
Actions
had
been
Treason
at
the
Common
Law
,
it
had
been
to
no
purpose
to
have
made
it
Felony
.
And
it
seemed
to
them
that
the
resistance
ought
to
be
with
force
to
the
Queen
,
before
that
such
Acts
shall
be
said
Treason
.
But
all
the
other
Iustices
agreed
(
and
so
it
was
put
in
ure
lately
in
the
case
of
the
Prentices
of
London
)
that
if
any
assemble
themselves
with
force
to
alter
the
Laws
,
or
to
set
a
price
upon
Victualls
,
or
to
lay
violent
hands
upon
the
Magistrate
,
as
upon
the
Major
of
London
,
and
the
like
,
and
with
force
attempt
to
put
it
in
action
,
that
this
is
Rebellion
and
Treason
at
Common
Law
,
and
yet
this
Statute
of
1
Mariae
,
makes
it
in
such
a
case
but
Felony
.
And
they
put
a
diversity
between
the
cases
of
pulling
down
Inclosures
,
Pales
,
&c.
comprised
in
the
Statute
of
1
Mar.
for
those
are
to
be
understood
where
diverse
to
the
number
of
twelve
,
or
more
,
pretending
,
any
or
all
of
them
to
be
injured
in
particular
,
as
by
reason
of
their
common
,
or
other
Interest
in
the
Land
inclosed
,
and
the
like
,
and
assembling
to
pull
it
down
forcibly
,
and
not
to
the
cases
where
they
have
a
generall
dislike
to
all
manner
of
Inclosures
,
and
therfore
the
assembling
in
a
forcible
manner
,
and
with
Armes
to
pull
them
down
where
they
have
any
Interest
,
wherby
they
were
in
any
particular
to
be
annoyed
or
grieved
,
is
not
Treason
;
but
the
case
here
tending
to
a
generality
,
makes
the
act
if
it
had
been
executed
to
be
high
Treason
by
the
c●u●se
of
the
Common
Law
.
And
therfore
the
intention
appearing
as
the
case
is
here
,
it
is
Treason
by
the
St●tute
of
13.
aforesaid
.
Periam
in
some
manner
doubted
of
the
principall
case
,
but
to
intend
to
rise
with
force
to
alter
the
Laws
,
to
set
price
upon
any
Victuals
,
or
to
use
force
against
a
Magistrate
for
executing
his
Office
of
Iustice
,
and
the
like
,
he
said
that
they
were
cleerly
Treason
by
the
Statute
of
13.
aforesaid
,
if
it
may
appear
by
expresse
words
,
or
otherwise
,
as
the
said
Statute
mentions
,
for
all
these
tend
against
the
Queen
,
her
Crown
and
Dignity
,
and
therfore
shall
be
as
against
the
Queen
her self
:
And
if
it
had
been
put
in
practice
it
had
been
Treason
at
the
Common
Law
.
Here
ends
the
LORD
POPHAM'S
REPORTS
.
An
addition
of
certain
Select
CASES
in
the
time
of
KING
JAMES
,
and
KING
CHARLES
.
Trin.
15.
Jac.
In
the
Kings
Bench
,
entred
,
Hill
.
Jac.
Rot.
194.
Brooks
Case
.
IN
an
Ejectione
firmae
brough
by
one
Brook
against
Brook
,
the
Case
was
thus
.
Iohn
Wright
a
Copyholder
in
Fee
,
10
Eliz.
surrendred
his
Land
into
the
hands
of
the
Lord
by
the
hands
of
Tenants
,
according
to
the
Custom
,
&c.
without
saying
,
to
whose
use
the
Surrender
should
be
;
And
at
the
next
Court
the
said
Iohn
Wright
was
admitted
Habendum
to
him
and
his
Wife
in
Tail
,
the
remainder
to
the
right
Heirs
of
Iohn
Wright
,
and
the
Wife
of
Iohn
Wright
now
Defendant
was
seised
from
the
time
of
the
admittance
untill
this
day
:
And
it
was
objected
by
the
Counsell
of
the
Plaintiff
,
that
the
surrender
was
void
▪
because
no
use
was
limitted
,
and
therfore
by
constitution
of
Law
ought
to
be
to
the
use
of
the
Surrender
,
as
if
a
Feoffment
be
made
and
no
Use
limited
,
it
shall
be
to
the
Use
of
the
Feoffor
,
or
as
it
is
in
Sir
Edward
Cleers
Case
Coke
lib.
6.
18.
If
a
Feoffment
be
made
by
one
to
the
use
of
his
last
Will
,
he
hath
the
use
in
the
mean
time
.
2.
That
the
admittance
was
not
available
to
passe
an
Estate
to
the
Wife
,
for
she
was
not
named
in
the
Premisses
but
only
in
the
Habendum
,
and
the
Office
of
an
Habendum
is
to
limit
the
Estate
and
not
the
person
,
and
therfore
it
is
said
in
Throgmorten
and
Tracies
Case
in
Plowd
▪
com
.
That
if
one
be
named
to
take
an
Estate
in
the
Habendum
,
where
he
was
not
named
at
all
in
the
Premisses
,
this
is
not
good
.
But
it
was
resolved
by
the
whole
Court
for
the
first
point
,
that
the
subsequent
Act
sh●ll
explain
the
Surrender
,
for
,
Quando
abest
Provisio
partis
,
adest
provisio
legis
:
And
when
the
Copyholder
accepts
a
new
admittance
,
the
Law
intends
that
the
Surrender
generally
made
was
to
such
an
Vse
,
as
is
specified
in
the
admittance
,
and
the
Lord
is
only
as
an
Instrument
to
convey
the
Estate
,
and
as
it
were
put
in
trust
to
make
such
an
admittance
,
●s
he
who
surrenders
would
h●ve
him
to
make
:
And
Crook
Iustice
said
,
Fides
adhibita
fidem
obligat
.
For
the
second
point
it
was
also
agreed
by
the
Court
that
the
Wife
shall
take
by
this
admittance
,
albeit
she
were
not
named
in
the
Premisses
,
but
only
in
the
Habendum
;
and
they
agreed
,
that
in
Feoffments
and
Grants
,
the
party
that
is
not
named
in
the
Premisses
shall
not
take
by
the
Habendum
:
and
therfore
Throgmorton
and
Tracies
Case
(
as
to
this
point
)
is
good
Law
;
But
this
case
of
a
Copyhold
is
like
to
the
case
of
a
Will
,
or
to
the
case
of
Frank-marriage
,
in
which
it
is
sufficient
to
passe
an
Estate
,
albeit
the
party
be
only
named
in
the
Habendum
,
and
if
it
should
be
otherwise
the
Estates
of
many
Copyholders
would
be
subverted
:
And
so
they
resolved
that
Iudg-should
be
given
for
the
Defendant
.
The
same
Term
in
the
same
Court.
Laurking
and
Wildes
Case
.
THe
Rector
of
the
Church
of
livelled
in
the
spirituall
Court
,
for
the
Tithes
of
a
riding
Nag
,
where
the
case
was
;
That
a
man
let
his
Land
,
reserving
the
running
of
a
Horse
at
some
time
,
when
he
had
occasion
to
use
him
there
:
The
Defendant
shewed
this
matter
in
the
Court
by
his
Counsell
,
and
prayed
a
Prohibition
,
and
avers
,
that
for
the
same
Land
in
which
the
Horse
went
he
paid
Tithes
.
And
by
the
Court
,
nigh
London
,
a
man
will
take
a
100.
or
200.
Horses
to
Grasse
,
now
he
shall
pay
Tithes
for
them
,
or
otherwise
the
parson
shall
be
defeated
.
But
in
this
case
,
if
the
Defendant
alledge
and
prove
that
it
was
a
Nag
for
labour
,
and
not
for
profit
,
a
Prohibition
lies
.
The
same
Term
in
the
same
Court.
Havergall
versus
Hare
.
IN
an
Ejectione
firmae
brought
by
Havergal
against
Hare
,
the
Case
was
thus
.
Afterwards
fol
55.
A
Rent
of
20
l.
per
annum
was
granted
out
of
Green
acre
to
one
and
his
Heirs
,
to
be
paid
at
Michaelmas
,
and
the
Annunciation
of
our
Lady
,
by
equall
portions
,
and
the
Grantor
covenants
,
that
if
the
Rent
of
20
l.
be
arrear
by
the
space
of
twenty
daies
,
that
the
Grantee
may
dist●ain
,
and
that
if
there
be
not
sufficient
distresse
upon
the
Land
,
or
i●
there
be
a
Rescous
Replevin
,
or
Pound-breach
,
that
then
it
shall
be
lawfull
for
the
Grantee
and
his
Heirs
to
enter
and
retain
the
Land
to
them
and
their
Heirs
,
untill
the
20
l.
be
paid
,
10
l.
for
one
half
years
Rent
was
in
arrear
,
and
for
it
an
entry
was
made
.
Mountague
chief
Iustice
,
and
Doderidge
Iustice
,
there
can
be
no
entry
made
when
10
l.
only
is
behind
,
for
the
words
of
the
Deed
are
,
that
if
the
Rent
of
20
l.
be
behind
,
that
the
Grantee
and
his
Heirs
may
enter
,
and
if
he
shall
enter
now
he
shall
retain
the
Land
for
ever
,
for
the
20
l.
shall
never
be
paid
.
Crook
and
Haughton
Iustices
,
contrary
,
for
if
10
l.
be
arrear
,
the
Rent
of
20
l.
is
arrear
;
for
Haughton
said
,
In
an
Assise
of
Rent
of
40
l.
where
part
is
arrear
,
yet
he
ought
to
bring
his
Assise
for
the
whole
Rent
of
40
l.
for
the
Writ
ought
to
agree
with
the
Deed.
Doderidge
agreed
with
him
in
the
case
of
an
Assise
,
but
not
in
the
principall
point
.
And
for
the
second
point
it
was
agreed
by
them
all
,
that
upon
the
entry
of
the
Grantee
,
he
shall
have
a
Fee-simple
determinable
,
admitting
the
entry
for
the
10
l.
to
be
good
.
The
same
Term
in
the
same
Court
,
and
it
is
entred
,
14
Jac.
Rot.
1484.
Robinson
versus
Walter
.
RObinson
brought
an
Action
of
Trover
and
Conversion
against
Walter
,
and
upon
the
whole
matter
the
case
appeared
to
be
this
.
A
Stranger
took
the
horse
of
the
Plaintiff
,
and
sent
him
to
a
common
Inn
,
and
there
he
remained
for
the
space
of
half
a
year
,
at
which
time
the
Plaintiff
had
notice
where
his
Horse
was
,
and
therupon
he
demanded
him
of
the
Inn-keeper
,
who
answered
that
a
person
unknown
left
the
Horse
with
him
,
and
said
,
that
he
would
not
deliver
the
Ho●se
to
the
Plaintiff
unlesse
he
would
pay
for
his
meat
▪
which
came
to
3
l.
10
s.
for
all
the
time
,
and
also
would
prove
that
it
was
his
Horse
,
upon
which
the
Plaintiff
demurred
in
And
it
was
resolved
by
Mountague
chief
Iustice
,
Crook
,
and
Doderidge
,
Iustices
(
Haughton
Iustice
dissenting
)
that
the
Defendants
plea
was
good
,
for
the
Inn-keeper
was
compellable
to
keep
the
Horse
,
and
not
bound
at
his
peril
to
take
notice
of
the
Ownder
of
the
Horse
.
And
by
the
custom
of
Lond.
if
a
horse
be
brought
to
a
common
Inn
,
wher
he
hath
(
as
it
is
commonly
said
)
eaten
out
his
head
,
it
is
lawfull
for
the
Inn-keeper
to
sell
him
,
which
case
of
the
custom
implies
this
case
.
And
there
is
a
difference
where
the
Law
compels
a
man
to
do
a
thing
,
and
where
not
;
As
if
the
Lievtenant
of
the
Tower
brings
an
Action
of
debt
for
Dyet
against
one
who
was
his
Prisoner
,
in
this
case
the
Defendant
cannot
wage
his
Law
,
because
the
Law
compels
the
Lievtenant
to
give
Victuals
to
his
Prisoner
,
otherwise
if
another
man
brings
an
Action
of
debt
for
Dyet
,
and
in
the
case
at
the
Bar
the
Inn-keeper
was
compellable
.
And
Doderidge
said
,
that
if
the
Law
were
as
the
Plaintiff
would
have
it
,
it
were
a
pretty
trick
for
one
who
wants
a
keeping
for
his
Horse
.
And
Mich.
6
●ac
.
in
the
Kings
Bench
,
between
Harlo
and
Ward
,
the
like
was
resolved
as
was
cited
by
Barkesdels
of
Counsell
with
the
Defendant
.
Mich.
14.
Jac.
In
the
Kings
Bench.
Rawlinson
versus
Green
.
A
Copyholder
surrendred
out
of
Court
,
according
to
the
custom
of
the
Mannor
,
which
at
the
next
Court
was
presented
,
and
entry
therof
made
by
the
Steward
,
Scilicet
Compertum
est
per
homagium
,
&c.
but
no
admittance
;
Afterwards
Cestuy
que
use
surrenders
before
admittance
,
and
the
first
Copyholder
surrenders
to
the
Plaintiff
:
And
in
this
case
there
were
two
questions
.
1.
Whether
he
may
surrender
before
admittance
?
2.
Who
shall
have
the
Land
?
whether
the
first
Copyholder
,
or
the
Lord
?
Haughton
Iustice
held
that
he
could
not
surrender
before
admittance
,
and
the
entry
of
the
surrender
doth
not
make
an
admittance
,
for
this
being
the
Hillary
14.
Jac.
In
the
Kings
Bench.
Sir
John
Pools
Case
.
Three
Executors
brought
an
Action
of
Debt
,
and
one
only
declared
,
and
they
were
ready
for
a
triall
in
the
Country
,
and
now
it
was
moved
that
the
Declaration
might
be
amended
,
and
the
names
of
the
other
Executors
incerted
:
but
per
Curiam
this
cannot
be
without
the
assent
of
the
parties
.
Pasch.
15.
Iac.
In
the
Kings
Bench.
Cooper
versus
Smiths
.
AN
Action
upon
the
Case
was
brought
for
these
words
;
viz
Waterman
,
the
Plaintiff
)
hast
killed
thy
Masters
Cook
Innuende
,
&c.
and
I
will
bring
thee
in
question
for
thy
life
:
And
after
Verdict
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
by
the
Counsell
of
the
Defendant
,
that
the
words
were
not
actionable
for
the
incertainty
,
inasmuch
as
it
doth
not
appear
who
was
his
Master
,
nor
that
his
Master
had
a
Cook
.
Mountague
chief
Iustice
said
,
that
the
words
were
actionable
,
and
albeit
And
another
Action
was
brought
for
these
words
,
Scil.
Thou
hast
sacrificed
thy
Child
to
the
Devill
;
and
adjudged
that
the
words
were
actionable
.
Mich.
15.
Iac.
In
the
Kings
Bench.
Lee
versus
Brown
.
IN
an
Ejectione
firmae
brought
by
Lee
against
Brown
,
the
Case
was
this
.
Tenant
in
Tail
of
Copyh●ld
Land
surrendred
the
same
into
the
hands
of
the
Lord
,
to
the
use
of
I.
S.
wherupon
two
points
did
arise
.
1.
Whether
Copyhold
Land
be
within
the
Statute
of
Donis
conditionalibus
,
so
that
i●
may
be
intailed
.
2.
Whether
the
Intail
may
be
cu●
off
by
the
surrender
.
Doderidge
Iustice
said
,
as
to
the
first
point
,
that
it
hath
been
a
great
doubt
,
whether
it
may
be
intailed
,
but
the
common
and
better
opinion
was
,
that
by
the
same
Statute
co-operating
with
the
custom
it
may
be
intailed
,
and
with
this
agrees
Heydons
case
in
my
Lord
Cokes
3.
Report
,
and
so
was
the
opinion
And
for
the
second
point
,
their
opinion
also
was
,
that
it
could
not
be
cut
off
by
surrender
,
unlesse
it
were
by
speciall
custom
,
and
they
directed
the
Iury
accordingly
:
And
it
was
said
to
maintain
this
custom
,
it
ought
to
be
shewn
that
a
Formedon
had
been
brought
upon
such
a
Surrender
,
and
Iudgment
given
that
it
doth
not
lye
;
yet
it
was
agreed
that
it
was
a
strong
proof
of
the
custom
,
that
they
to
whose
use
such
Surrenders
had
been
made
,
had
enjoyed
the
Land
against
the
Issues
in
Tail
:
And
it
was
said
by
the
Counsell
of
the
Defendant
,
that
there
was
a
Verdict
for
them
before
in
the
same
case
,
which
they
could
prove
by
witnesses
,
but
the
Court
would
not
allow
such
a
proof
because
it
was
matter
of
Record
,
which
ought
to
be
shewn
forth
.
In
the
same
Term
in
the
Common
Pleas.
May
versus
Kett.
AN
Action
upon
the
Case
was
brought
for
these
words
;
viz.
Thou
hast
stoln
my
Corn
out
of
my
Barn
;
And
it
was
moved
in
Arrest
of
Iu●gment
,
because
he
had
not
said
how
much
he
had
stoln
,
and
perhaps
it
was
of
small
value
:
and
yet
it
was
adjudged
that
the
Action
would
lye
,
for
it
is
at
least
petit
Larceny
:
But
if
he
had
said
,
that
he
had
stoln
his
Corn
generally
,
it
had
not
been
actionable
,
for
it
might
have
been
growing
,
and
then
it
had
been
but
a
Trespasse
.
The
same
Term
in
the
Star
Chamber
.
Riman
versus
Bickley
,
and
others
.
IOhn
Riman
exhibited
a
Bill
in
the
Star
Chamber
,
against
Thomas
Bickley
,
and
Anne
his
Wife
,
Dr.
Thorn
,
Mr
Goulding
,
and
others
Defendants
,
the
said
Anne
was
first
married
to
Devenish
Riman
the
Plaintiffs
Son
,
and
between
them
were
many
●ars
and
dis●greem●nts
,
and
the
said
Devenish
was
much
given
to
drinking
,
and
other
Vices
,
and
divers
times
did
beat
and
abuse
his
Wife
,
and
was
also
jealous
of
the
sai●
Thomas
Bickley
,
and
his
Wife
being
at
a
certain
time
at
Supper
with
Dr.
Thorn
,
Goulding
,
and
others
,
spake
such
words
as
these
(
having
communication
th●t
her
Husband
did
beat
and
abuse
her
)
to
wit
,
That
she
heard
that
his
Father
had
that
quality
,
and
being
once
whipt
for
it
,
was
the
better
ever
after
,
and
that
if
she
thought
it
would
do
her
Husband
any
go●d
,
she
would
willingly
bestow
40
s.
on
some
body
to
give
him
a
whipping
wherupon
G●ulding
said
,
that
he
would
give
him
a
Med●cine
for
his
M●l●dy
,
and
within
two
daies
after
he
came
in
the
night
in
wom●ns
apparrell
,
with
a
Weapon
under
his
Cloak
,
and
with
a
Rod
,
and
wen●
into
the
House
and
Chamber
of
the
said
Devenish
,
and
would
have
whipped
him
,
and
in
striving
together
,
there
was
some
hurt
done
on
either
side
,
but
G●ulding
not
being
able
to
effect
his
purpose
,
fled
,
and
this
was
conceived
to
be
by
the
procurement
of
Anne
his
wife
:
And
not
long
after
Devenish
fell
sick
,
and
sent
to
his
said
wife
for
certain
necessaries
,
which
she
would
not
send
him
,
and
presently
after
Devenish
died
,
and
she
refused
to
come
to
his
buriall
.
And
although
it
were
much
disliked
that
Devenish
should
abuse
his
Wife
in
such
uncivill
manner
,
as
to
strike
and
beat
her
,
and
(
as
Coke
late
chief
Iustice
said
)
it
is
not
lawfull
by
the
Act
Military
for
one
man
to
strike
another
in
the
presence
of
Ladies
,
yet
it
was
resolved
by
the
whole
Court
,
that
it
was
a
great
misde
meanor
in
the
Wife
,
and
uncivill
and
undutifull
carriage
in
her
to
do
so
to
her
Husband
,
as
they
use
to
do
to
Children
or
fools
,
to
wit
,
to
give
them
the
Whip
,
and
so
to
disgrace
and
take
away
the
good
name
of
her
Husband
,
which
,
viz.
A
mans
good
name
and
his
Childrens
,
are
the
two
things
which
make
a
man
live
to
Posterity
;
as
was
said
by
Sir
Francis
Bacon
Lord
keeper
:
and
the
Court
fi●ed
the
Wife
500
l.
and
it
was
said
,
that
Thoma●
Bickley
her
no●
Husband
well
deserved
to
pay
this
Fine
,
because
he
was
too
familiar
with
her
in
the
time
of
his
Predecessor
,
and
as
the
Bishop
of
London
said
,
Devenish
Rimon
lay
upon
her
hands
,
and
Thomas
Bickley
upon
●e●
heart
:
And
to
aggravate
this
matter
,
a
Letter
was
shown
whi●h
Devenish
Rimon
wrote
to
his
Wife
,
in
which
he
called
her
Whoor
,
and
told
her
somwhat
roundly
of
her
faults
,
and
she
wrote
back
to
him
in
the
Marge●t
,
that
he
lyed
,
and
wished
him
to
get
a
better
Scribe
for
his
next
L●●ter
,
for
he
was
a
Fool
that
wrote
that
,
wherin
she
called
him
Fool
by
craft
:
And
Goldings
offence
was
acc●vnted
the
greater
,
because
he
was
a
Minister
,
so
that
he
was
fined
500
l.
also
:
And
Coke
said
,
that
the
course
of
this
Court
was
that
if
any
were
fined
who
is
not
able
to
pay
it
Respondeat
superior
,
he
that
is
the
principall
and
chief
agent
therin
must
answer
it
,
for
otherwise
poor
men
might
be
made
Instruments
of
great
mischief
,
who
are
not
able
to
answer
,
and
the
greater
Offenders
shall
escape
,
which
the
Lord
Keeper
confirmed
.
And
as
to
Doctor
Thorn
he
was
acquitted
by
all
:
And
the
Bishop
of
London
said
,
that
they
had
thought
to
have
troad
upon
a
Thorn
,
and
they
gat
a
Thorn
in
their
foot
:
And
by
Coke
,
if
Devenish
Rimon
had
died
upon
it
,
it
had
been
capitall
in
the
Wife
who
procured
it
,
for
it
was
an
unlawfull
Act.
The
same
Term
in
the
Kings
Bench.
Wescot
versus
Cotton
.
THe
case
was
this
.
An
Infant
Executor
upon
an
Action
brought
against
him
appeared
by
Attorney
,
where
he
ought
to
appear
by
Guardian
,
and
it
was
resolved
by
the
Court
that
this
was
Error
,
for
this
doth
much
concern
the
Infant
,
in
as
much
as
by
his
false
plea
he
shall
be
bound
to
●nswer
of
his
own
Goods
,
if
he
hath
no
Goods
of
his
Testator
,
and
therfore
in
a
11
E.
4.
1.
he
hath
remedy
against
his
Guardian
for
pleading
a
false
P●ea
.
And
by
Doderidge
,
if
he
hath
no
Guardian
,
the
Court
sh●ll
appoint
him
a
Guardian
.
And
if
an
Infant
bring
an
action
as
Executor
by
Attorney
,
and
hath
Iudgment
to
recover
,
this
is
not
erronious
,
because
it
is
for
his
benefit
;
so
per
Curiam
,
the
difference
is
where
he
is
Plaintiff
,
and
where
he
is
Defendant
:
And
there
is
another
difference
where
he
is
Executor
,
and
where
not
,
for
being
Executor
,
his
Plea
might
have
been
more
prejudiciall
to
him
,
and
Coke
lib
5.
Russels
case
was
agreed
for
good
Law
,
for
an
Infant
may
be
Executor
,
and
may
take
money
for
a
Debt
,
and
make
a
Release
and
give
an
Acquittance
,
but
not
without
a
true
consideration
and
payment
of
the
money
.
The
same
Term
in
the
same
Court.
Thomas
Middletons
Case
.
THomas
Middleton
,
alias
Strickland
was
condemned
for
a
Robbery
at
the
The
same
Term
in
the
same
Court.
Gouldwells
Case
.
IOhn
Gouldwell
seised
of
Land
in
Socage
Tenure
devised
them
to
his
Wife
for
life
,
the
Remainder
to
John
Gouldwell
his
Son
and
his
Heirs
,
upon
Condition
that
after
the
death
of
his
Wife
he
shall
grant
a
Rent-charge
to
Steven
Gouldwell
and
his
Heirs
,
and
if
John
Gouldwell
dye
with●ut
Heirs
of
his
body
,
that
the
Land
shall
remain
to
Steven
Gouldwell
in
Tail
;
the
Wife
dieth
,
John
Gouldwell
grants
the
Rent
accordingly
,
Stephen
Gouldwell
grants
the
Rent
over
:
John
Gouldwell
dies
without
Heir
of
his
body
,
and
the
second
Grantee
distrains
for
the
Rent
arrear
,
and
Stephen
Gouldwell
brings
a
Replevin
:
And
it
was
urged
by
the
Counsell
for
the
Plaintiff
that
this
Rent
shall
not
have
continuance
longer
then
the
particular
Estate
,
and
cited
11
H.
7.
21.
Edri●ks
case
,
that
if
Tenant
in
Tail
acknowledge
a
Statute
this
shall
continue
but
during
his
life
:
and
Dyer
48.
212.
But
it
was
agreed
per
Curiam
that
the
Grantee
was
in
by
the
Devisor
,
and
not
by
the
Tenant
in
Tail
,
and
therfore
the
Grant
may
endure
for
ever
.
But
for
the
second
point
,
this
being
to
him
in
Remainder
,
the
intent
of
the
Demisor
is
therby
explained
that
he
shall
have
the
Rent
only
untill
the
Remainder
come
in
possession
,
for
now
the
Rent
shall
be
drowned
in
the
Land
by
unity
of
possession
.
3.
It
was
agreed
and
resolved
,
that
by
the
granting
of
the
Kent
over
this
was
a
confirmation
.
And
Mountague
said
,
that
it
was
a
confirmation
during
the
Estate
Tail
,
and
shall
enure
as
a
new
grant
afterwards
:
And
Haughton
and
Doderidge
said
,
that
they
would
not
take
benefit
of
the
grant
over
by
way
of
confirmation
,
for
as
Haughton
said
,
this
enures
only
ought
of
the
Devisor
,
and
he
hath
power
to
charge
the
Land
in
what
manner
he
pleaseth
▪
and
it
is
like
to
an
usuall
case
,
as
if
a
man
makes
a
Feoffment
in
Fee
to
the
use
of
one
for
life
,
the
Remainder
over
,
with
power
to
make
Leases
,
and
after
he
makes
a
Lease
,
this
is
good
against
Tenant
for
life
,
and
him
in
the
Remainder
also
:
And
I
have
considered
what
the
intent
of
the
Devisor
should
be
in
granting
of
this
Rent
,
and
it
seems
to
me
,
that
in
as
much
as
the
Land
is
limited
in
Tail
,
and
the
Rent
in
Fee
,
that
by
this
the
Grantee
shall
have
power
to
grant
or
dispose
of
the
Rent
in
what
manner
he
would
:
but
if
the
Land
had
been
in
Fee
,
I
should
have
construed
his
intent
to
have
been
,
that
the
Grantee
should
have
the
Rent
only
untill
the
Remainder
fall
;
to
which
Doderidge
agreed
,
who
said
,
that
we
are
in
the
case
of
a
Will
,
and
this
construction
stands
with
the
intent
of
the
Devisor
,
and
stands
with
the
Statute
,
which
saies
,
Quod
voluntas
Donatoris
est
observanda
.
The
same
Term
in
the
same
Court.
Baskervill
versus
Brook
.
A
Man
became
Bail
for
another
upon
a
Latitat
in
the
Kings
Bench
,
and
before
Iudgment
,
the
Bail
let
his
Lands
for
valuable
consideration
:
Co.
lib.
5.
70.
where
i●
was
resolved
that
where
the
Plaintiff
releaseth
to
the
Bail
o●
the
Defendant
upon
a
Suit
in
the
Kings
Bench
before
Iudgment
,
all
Actions
,
Duties
,
and
Demands
,
that
this
Release
shall
not
bar
the
Plaintiff
,
for
there
is
not
any
ce●tain
duty
by
the
Bail
before
Iudgment
,
and
therfore
it
cannot
be
a
Release
,
and
he
cite●
the
case
of
21
E.
3.
32.
upon
an
account
,
and
said
that
it
was
like
to
a
second
Iudgment
,
in
that
which
reduceth
all
to
a
certainty
,
and
therfor
.
&c.
But
it
was
said
by
Mountague
and
Crook
,
that
the
Lessee
shall
be
bound
.
for
otherwise
many
Bailments
and
Iudgments
shall
be
defeated
,
which
will
bring
a
great
Inconvenience
:
And
Mountague
said
,
that
it
was
like
to
the
case
of
a
bargain
and
sale
of
Land
,
which
after
it
is
Inrolled
,
within
six
moneths
shall
relate
to
the
beginning
of
the
Bargain
,
so
upon
the
Iudgment
given
,
relation
is
made
from
the
time
of
the
Bailment
.
But
Haughton
being
contra
,
therfore
,
Curia
advisare
vult
.
The
same
Term
in
the
same
Court
.
The
Earl
of
Shrewsburies
Case
.
VPon
a
Verdict
,
a
rule
was
given
to
have
Iudgment
,
and
this
was
upon
the
Thursday
,
and
upon
S●●u●day
after
th●
party
that
was
Plaintiff
died
,
and
it
was
moved
to
have
a
Writ
of
Error
,
because
it
was
said
,
that
the
party
died
before
Iudgment
,
in
as
much
as
of
course
a●ter
the
Verdict
,
and
the
●ule
given
for
Iudgment
,
there
are
four
daies
given
to
speak
in
Arrest
The
same
Term
in
the
same
Court.
Rones
Case
.
IN
an
Ejectione
firmae
brought
by
the
Lessee
of
Rone
,
Incumbent
of
the
Church
of
Dallinghoe
in
Com.
Suff.
It
was
found
by
speciall
Verdict
,
that
the
King
was
the
true
Patron
,
and
that
Wingfeild
entred
a
Caveat
,
in
vita
Incumbentis
,
he
then
lying
in
Extremis
,
scilicet
,
Caveat
Episcopus
ne
quis
admittatur
,
&c.
Nisi
Convocatus
,
the
said
Wingfeild
;
the
Incumbent
dies
,
Naunton
a
stranger
presents
one
Morgan
who
is
admitted
and
instituted
,
afterwards
the
said
Wingfeild
presents
one
Glover
who
is
instituted
and
inducted
,
and
afterwards
the
said
Rone
procure
a
presentation
from
the
King
who
was
instituted
and
inducted
,
and
then
it
came
in
question
in
the
Spirituall
Court
who
had
the
best
right
,
and
there
sentence
was
given
that
the
first
institution
was
Irrita
vacua
&
inanis
,
by
reason
of
the
Caveat
,
&
then
the
Church
being
full
of
the
second
Incumbent
,
the
King
was
put
out
of
possession
,
and
so
his
presentment
void
:
But
it
was
adjudged
and
resolved
by
all
the
Court
for
Rone
,
for
1.
It
was
resolved
that
this
Caveat
was
void
,
because
it
was
in
the
life
of
the
Incumbent
.
2.
The
Church
upon
the
Institution
of
Morgan
was
full
against
all
but
the
King
,
and
so
agreed
many
times
in
the
Books
,
and
then
the
presentation
of
Glover
was
void
by
reason
of
the
super-institution
,
and
therfore
no
obstacle
in
the
way
to
hinder
the
presentation
of
Rone
,
and
therfore
Rone
had
good
right
:
And
if
the
second
institution
be
void
,
the
sentence
cannot
make
it
good
,
for
the
Spirituall
Court
ought
to
take
notice
of
the
Common
Law
,
which
saith
,
that
Ecclesia
est
plena
&
consulta
,
upon
the
institution
,
and
the
person
hath
therby
Curam
animarum
.
And
as
Doderidge
Iustice
said
,
he
hath
by
it
Officium
,
but
Beneficium
comes
by
the
Induction
:
And
although
by
the
Spirituall
Law
the
institution
may
be
disannulled
by
sentence
,
yet
as
Linwood
saith
,
Aliter
est
in
Anglia
,
who
is
an
Author
very
well
approved
of
amongst
the
Civilians
:
And
Doderidge
put
a
case
out
of
Doctor
and
Studient
,
the
second
Book
:
If
a
man
devise
a
summ
of
money
to
be
paid
to
I.
S.
when
he
cometh
to
full
age
,
and
afterwards
he
sues
for
it
in
the
Spirituall
Court
,
they
ought
to
take
notice
of
the
time
of
full
age
,
as
it
is
used
by
the
Common
Law
,
to
wit
,
21.
and
not
of
the
time
of
full
age
as
it
is
used
amongst
them
,
to
wit
,
25.
So
in
this
case
at
the
Bar
,
for
when
these
two
Laws
met
together
,
the
Common
Law
ought
to
be
preferred
:
And
when
the
Parson
hath
institution
,
the
Arch-deacon
ought
to
give
him
Induction
:
And
see
Dyer
293.
Bedingfeilds
case
cited
by
Haughton
to
accord
with
this
case
.
The
same
Term
in
the
same
Court
.
Taylors
Case
.
JOhn
Taylor
a
Citizen
and
Alderman
of
Glocester
,
was
put
out
of
his
place
by
the
Common
Counsel
of
the
City
,
for
some
misdemeanor
,
and
he
sued
out
a
Writ
of
Restitution
,
and
for
that
the
cause
of
his
displacing
was
not
sufficient
The
same
Term
in
the
same
Court.
May
and
Samuels
Case
.
AN
action
of
Debt
was
brought
upon
an
Obligation
,
the
Condition
wherof
was
to
stand
to
the
Arbitrement
of
John
S.
concerning
all
matters
between
them
to
the
time
of
the
submission
,
who
arbitrates
that
the
one
shall
pay
20
s.
and
that
the
other
shall
make
a
generall
release
to
him
of
all
matters
,
from
the
beginning
of
the
world
to
the
time
of
the
arbitrement
.
Haughton
Iustice
,
this
is
an
arbitrement
but
of
one
part
,
and
therfore
void
,
but
if
it
had
been
only
that
the
one
shall
pay
20
s.
it
may
be
good
,
for
it
shall
be
intended
that
the
other
by
reasonable
construction
shall
be
discharged
or
acquitted
,
to
which
Crook
and
Doderidge
Iustices
agreed
.
But
by
Mountague
chief
Iustice
,
it
ought
to
be
specified
;
yet
they
all
agreed
,
and
so
it
was
adjudged
that
this
was
a
void
arbitrement
,
for
it
was
of
the
one
part
only
,
to
wit
,
that
he
shall
pay
20
s.
for
the
other
part
for
the
release
to
the
time
of
the
arbitrement
was
not
within
the
submission
;
so
if
the
arbitrement
had
been
,
that
the
one
shall
make
a
release
,
or
shall
be
discharged
or
acquitted
without
speaking
of
the
other
,
this
being
on
the
one
part
only
is
a
void
arbitrement
,
vide
Co.
lib.
8.
Baspoles
case
,
and
7
H.
6.
40.
accordingly
.
The
same
Term
in
the
same
Court
.
Vaughans
Case
.
THomas
Dedham
had
to
Apprentice
one
Holland
,
who
got
his
Main
with
Child
,
and
afterwards
departed
from
his
Masters
Service
,
and
staid
a
whole
night
with
Vaughan
his
Kinsman
,
and
Dedham
procured
a
Warrant
from
S.
Stephen
Soame
a
Iustice
of
Peace
,
that
the
Constable
should
bring
the
said
Apprentice
to
order
according
to
Law
,
and
because
that
Vaughan
perswaded
him
to
withdraw
himself
,
so
that
he
should
not
be
taken
by
virtue
of
the
Warrant
he
was
indited
.
And
it
was
agreed
that
it
was
lawfull
for
Vaughan
to
lodge
and
relieve
him
,
albeit
he
knew
his
misdeeds
,
they
being
no
Treason
or
Felony
:
But
Haughton
Iustice
took
exception
to
the
Inditement
,
because
no
place
appeared
where
he
perswaded
him
to
withdraw
himself
from
the
Warrant
,
or
in
truth
that
he
did
hide
himself
from
the
Warrant
,
for
if
he
did
not
so
,
the
perswasion
was
nothing
.
And
Doderidge
took
another
exception
to
the
Warrant
,
because
the
Statute
saith
,
that
two
Iustices
,
of
which
one
of
them
shall
be
of
the
Quorum
,
shall
proceed
in
such
cases
against
the
Malefactor
,
and
that
they
shall
compell
the
party
to
allow
means
for
the
education
of
the
Infant
,
or
otherwise
the
Offendor
shall
suffer
corporall
punishment
,
and
so
this
Warrant
not
being
speciall
according
.
Pasch.
16.
Jac.
In
the
Star
Chamber
.
Wrennums
Case
.
SIr
Henry
Yelverton
Attorney-generall
,
exhibited
an
Information
in
the
Star
Chamber
,
against
one
Wrennum
,
Ore
tenus
,
because
he
had
divers
times
petitioned
the
King
against
Sir
Francis
Bacon
Lord
Chancellor
,
pretending
that
the
said
Lord
Bacon
had
done
great
Injustice
to
him
,
in
granting
an
Injunction
,
and
awarding
Possession
of
Land
against
him
,
for
which
he
had
two
decrees
in
the
time
of
the
former
Chancellor
:
And
also
he
made
a
Book
of
all
the
proceedings
in
the
said
cause
between
him
and
one
Fisher
,
and
dedicated
and
delivered
it
to
the
King
,
in
which
he
notoriously
traduced
and
scandalised
the
said
Chancellor
,
saying
,
that
for
this
unjust
decree
,
he
,
his
Wife
and
Children
were
murthered
,
and
by
the
worst
kind
of
death
by
starving
:
And
that
now
he
having
done
unjustly
,
he
must
maintain
it
by
speaking
untruths
,
and
that
he
must
use
his
authority
,
Wit
,
Art
,
and
Eloquence
,
for
the
better
maintenance
therof
,
with
other
such
like
scandalous
words
:
And
the
Attorney
cited
a
president
,
2
Jac.
Where
one
Ford
for
an
offence
in
the
like
manner
against
the
late
Chancellor
was
censured
in
this
Court
,
that
he
should
be
perpetnally
imprisoned
,
and
pay
the
fine
of
1000
l.
and
that
he
should
ride
upon
a
Horse
with
his
face
to
the
tail
,
from
the
Fleet
to
Westminster
,
with
his
fault
written
upon
his
head
,
and
that
he
should
acknowledge
his
offence
in
all
the
Courts
at
Westminster
,
and
that
he
should
stand
there
a
reasonable
time
upon
the
Pillory
,
and
that
one
of
his
ears
shall
be
cut
off
,
and
from
thence
shall
be
carried
to
Prison
again
,
and
in
the
like
manner
should
go
to
Cheapside
,
and
should
have
his
other
ear
cut
off
,
&c.
And
because
they
conceived
that
the
said
Wrennum
had
wronged
the
said
Lord
Chancellor
in
the
said
suggestion
,
they
all
agreed
in
his
censure
according
to
the
said
President
:
See
for
such
matter
,
19.
Ass.
5.
9
H.
8.
Sir
Rowland
Heywards
case
,
and
21
H.
8.
Cardinall
Wolseys
case
.
The
same
Term
in
the
Kings
Bench.
Mingies
Case
.
AWrit
of
Annuity
was
brought
by
Mingy
,
which
was
granted
,
Pro
Consilio
impenso
&
impendendo
,
the
Defendant
pleaded
in
Bar
that
he
carried
a
Bill
to
the
Plaintiff
,
to
have
him
set
his
hand
to
it
,
and
because
he
refused
The
same
Term
in
the
same
Court
.
THe
Case
was
this
:
A
Lessee
for
years
was
bound
in
a
Bond
to
give
up
the
possession
of
the
Land
demised
to
the
Lessor
,
or
his
Assigns
,
at
the
end
of
the
Term
,
the
Lessor
assigns
over
his
Interest
,
and
the
Assignee
requires
the
Lessee
to
perform
the
Condition
,
who
answers
,
that
he
knew
not
whether
he
were
the
Assignee
,
and
therupon
refuseth
:
And
the
question
was
,
whether
he
had
broken
the
Condition
,
and
it
was
adjudged
that
he
had
,
for
he
hath
taken
upon
him
so
to
do
,
and
it
is
not
like
a
Condition
annexed
to
an
Estate
,
as
Co.
lib.
5.
Mallories
case
,
or
Co.
lib.
6.
Greens
case
,
where
the
Patron
presented
his
Clark
to
a
deprivation
,
yet
the
Ordinary
ought
to
give
the
Patron
notice
of
the
deprivation
;
for
it
is
a
thing
Spirituall
,
of
which
a
Lay-man
shall
not
be
bound
to
take
notice
.
It
was
moved
,
that
a
man
riding
upon
a
Horse
through
the
water
was
The
same
Terme
in
the
same
Court.
Wooton
versus
Bye
.
THe
case
was
this
:
A
man
made
a
Lease
for
years
,
rendring
Rent
,
and
upon
payment
of
the
Rent
the
Lessor
made
an
Acquittance
,
by
a
release
of
all
Actions
,
Duties
,
and
Demands
,
from
the
beginning
of
the
World
to
the
day
of
the
date
:
And
whether
the
Rent
to
come
were
released
by
it
,
was
the
question
:
And
it
was
moved
by
Crook
at
the
Bar
,
that
it
was
not
,
for
a
Covenant
in
future
shall
not
be
released
by
such
words
,
yet
a
release
of
all
Covenants
will
be
good
in
such
a
case
,
as
the
Book
is
in
Dyer
57.
so
Hoes
case
,
Co.
lib.
5.
70.
b.
such
a
release
will
not
discharge
a
Bail
before
Iudgment
.
But
it
was
answered
and
resolved
by
the
Court
,
that
such
a
Release
will
discharge
the
Rent
,
to
come
for
this
word
(
Demand
)
is
the
most
large
and
ample
word
in
a
Release
that
may
be
,
as
Littleton
saith
,
and
in
Co.
lib.
8.
Althams
case
,
and
in
Hoes
case
,
Co.
lib.
5.
one
was
Bail
for
the
Defendant
,
the
words
wherof
are
conditionable
,
Scil.
Si
contigerit
predict
.
defendent
.
debit
&
damna
illa
prefat.
Quer.
minime
solvere
,
&c.
So
that
before
Iudment
it
is
altogether
incertain
,
and
therfore
cannot
be
released
,
but
in
the
case
at
the
Bar
he
hath
Jus
ad
rem
,
though
not
in
re
,
as
Crook
Iustice
said
.
The
same
Term
in
the
same
Court.
Bret
versus
Cumberland
.
IN
a
Writ
of
Covenant
the
case
was
thus
:
Queen
Elizabeth
by
her
Letters
Patents
made
a
Lease
of
certain
Mills
,
rendring
Rent
,
in
which
Lease
were
these
words
,
to
wit
,
That
the
said
Lessee
his
Executors
,
Administrators
,
and
Assigns
,
should
from
time
to
time
repair
the
Mills
,
and
so
leave
them
at
the
end
of
the
Term
,
the
Lessee
assigns
over
his
Term
,
the
Queen
also
grants
over
the
Reversion
,
the
first
Lessee
dies
,
and
the
Grantee
of
the
Reversion
brings
a
Writ
of
Covenant
against
his
Executors
;
In
which
case
there
were
two
points
.
1.
Whether
these
words
.
And
the
said
Lessee
his
Executors
,
Administrators
,
and
Assigns
,
shall
from
time
to
time
,
&c.
make
a
Covenant
,
or
Whether
(
as
this
case
is
)
it
will
lye
against
the
Executors
of
the
Lessee
.
As
to
the
first
point
it
was
agreed
that
it
is
a
Covenant
,
for
being
by
Indenture
it
is
the
words
of
both
parties
,
and
it
is
more
strong
being
in
the
case
of
the
Queen
.
Haughton
laid
,
that
25
H.
8.
Tit.
Covenant
.
Covenant
will
lye
against
a
Lessee
after
assignment
,
but
Debt
lyeth
not
for
Rent
after
the
Lessee
hath
accepted
the
Assignee
for
his
Tenant
,
and
therfore
it
seems
that
by
the
expresse
words
of
the
Covenant
that
the
Action
lies
.
Doderidge
Iustice
contra
,
for
between
the
Queen
and
the
Lessee
there
is
privity
of
Contract
,
and
also
of
Estate
,
so
that
the
Queen
her
Heirs
and
Successors
might
have
had
an
action
against
the
Lessee
or
his
Executors
,
upon
the
privity
of
Contract
;
and
where
the
Lessee
●ssigns
over
,
the
privity
of
Contract
remains
,
but
the
privity
of
Estate
is
gone
to
the
Assignee
,
and
now
when
the
Queen
grants
over
the
Reversion
,
the
privity
of
Contract
is
utterly
determined
,
wherby
the
Action
of
Covenant
cannot
be
maintained
against
the
first
Lessee
,
or
his
Executors
,
who
are
more
remote
:
to
which
Mountague
chief
Iustice
agreed
,
see
2
H.
4.
6.
6.
H.
4.
1.
and
Co.
lib.
3.
Walkers
case
,
and
the
Iudgments
there
cited
,
Et
adjournator
.
The
same
Term
in
the
same
Court.
Bennet
versus
Westbeck
.
THe
Case
was
thus
:
Tenant
for
life
,
Remainder
for
life
,
Reversion
in
Fee
,
he
in
Remainder
for
life
gives
his
Deed
of
Demise
(
with
the
assent
of
the
first
Tenant
for
life
)
upon
the
Land
to
a
stranger
in
the
absence
of
the
Lessor
,
and
said
,
that
he
surrendred
to
him
in
Reversion
:
And
it
was
said
,
that
this
Surrender
being
without
Deed
was
not
good
to
him
who
was
absent
,
and
to
confirm
it
,
the
case
was
put
out
of
27
H.
8.
Where
Mountague
chief
Iustice
said
,
that
if
a
Feoffment
be
made
to
four
,
and
Livery
is
made
to
one
in
the
absence
of
the
other
,
but
in
name
of
all
,
if
it
be
by
Deed
this
shall
enure
to
all
,
but
if
it
be
without
Deed
,
then
only
to
him
to
whom
the
Livery
was
made
:
So
here
this
Surrender
doth
not
enure
to
him
in
the
Reversion
,
being
absent
.
But
Non
aliocatur
,
for
the
sole
point
now
in
question
,
was
,
whether
he
in
Remainder
for
life
can
surrender
without
Deed
,
and
as
to
it
this
Rule
was
taken
;
viz.
That
that
which
cannot
commence
without
Deed
,
cannot
be
granted
without
Deed
,
as
a
Rent
,
Reversion
,
common
Advowson
,
&c.
as
19
H.
6.
33.
14
H
7.
3.
1
,
&
2.
Ph.
&
Mar.
110.
22.
Ass
Pl.
16.
But
in
this
case
this
took
effect
by
Livery
and
not
by
Deed
,
and
therfore
might
be
determined
without
Deed.
Mountague
and
Haughton
agreed
that
it
might
be
surrendred
without
Deed
,
because
it
had
its
beginning
without
Deed
,
but
it
could
not
be
granted
over
without
Deed.
Doderidge
Iustice
said
,
that
it
could
not
be
surrendred
without
Deed
,
but
he
said
,
that
Tenant
in
possession
may
,
or
Tenant
for
life
,
and
he
in
Remainder
together
may
surrender
to
him
in
the
Reversion
,
but
this
shall
innure
as
two
severall
Surrenders
,
first
of
him
in
Remainder
to
the
Tenant
for
life
,
and
then
by
the
Tenant
for
life
to
him
in
the
Reversion
.
Crook
Iustice
agreed
with
Doderidge
,
for
the
Estate
of
him
in
Possession
is
an
Estoppell
to
the
Surrender
,
so
that
it
could
not
be
surrendred
without
Deed.
The
same
Term
in
the
same
Court.
Thurman
versus
Cooper
.
IN
an
Ejectione
firmae
brought
by
John
Thurman
against
William
Cooper
,
upon
the
whole
matter
the
case
was
thus
:
Lands
were
given
to
a
man
and
woman
(
who
afterwards
inter-marry
)
and
to
their
Heirs
and
Assigns
,
Habendum
to
them
and
to
the
Heirs
of
their
two
bodies
engendered
,
the
remainder
to
them
and
the
Survivor
of
them
,
with
warranty
to
them
and
their
Heirs
and
Assigns
for
ever
.
And
the
question
was
what
Estate
this
shall
be
?
whether
an
Estate-tail
or
Fee-simple
?
or
a
Fee-tail
with
a
simple
Expectant
?
And
it
was
said
that
this
shall
be
an
Estate-tail
only
,
for
the
Habendum
qualifies
the
generall
words
precedent
,
and
with
this
agrees
Perkins
35.
b.
and
Co.
lib.
8.
154.
b.
Althams
case
:
But
it
was
answered
and
resolved
by
the
whole
Court
,
that
this
is
a
Fee-tail
with
a
Fee-simple
expectant
;
and
they
observed
these
Rules
.
1.
That
every
Deed
shall
be
taken
most
strong
against
him
that
made
it
.
2.
That
every
Deed
shall
be
construed
according
to
the
intent
of
the
maker
,
so
that
all
the
parts
may
be
effectuall
if
they
can
stand
together
with
the
Rules
of
Law
,
40
E.
3.
5
,
Percy
saith
,
that
it
is
a
Fee-simple
,
21
H.
6.
7.
that
it
is
an
Estate-tail
with
a
Fee-simple
expectant
,
Dyer
160.
and
Plow
.
Paramore
,
and
Yardleys
case
,
the
Law
shall
make
an
order
of
words
where
there
is
no
order
put
by
the
parties
;
and
the
words
after
the
Remainder
limited
,
are
Tenendum
de
Capitalibus
Dominis
feodi
,
&c.
and
therfore
it
ought
to
be
a
Fee-simple
,
for
if
it
were
a
Fee-tail
,
he
should
hold
of
the
Donor
,
as
it
is
in
Co.
lib.
6.
Sir
John
Molins
case
,
and
other
Books
:
And
although
the
Warranty
cannot
inlarge
an
Estate
,
yet
this
expresses
his
intent
to
passe
a
Fee-simple
,
and
the
Law
shall
make
a
construction
that
the
Fee-tail
shall
precede
,
upon
which
the
Fee-simple
shall
be
expectant
,
according
to
that
which
is
before
said
,
in
Paramore
and
Yardleys
case
.
Doderidge
,
If
the
Habendum
had
been
to
a
stranger
,
the
Premisses
had
been
but
a
Tail
,
as
7
H.
4.
for
otherwise
the
Habendum
shall
be
void
:
But
if
Land
be
given
to
one
and
his
Heirs
(
viz.
In
Tail
)
or
if
the
said
Donce
dye
without
Issue
of
his
body
,
this
had
been
but
an
Estate-tail
only
,
because
it
immediatly
checks
and
confirms
the
Premisses
,
to
which
Haughton
agreed
,
Et
adjournator
.
The
same
Term
in
the
same
Court.
Powels
Case
.
POwel
an
Vtter-Barister
of
the
Temple
,
and
also
Town-Clark
of
Plimoth
,
brought
an
Action
upon
the
Case
against
for
these
The
Defendant
supposing
that
the
Plaintiff
had
wronged
him
in
the
Court
of
Plimoth
,
said
,
that
he
was
a
Puritan
Knave
,
a
precise
Knave
,
a
bribing
Knave
,
a
corrupted
Knave
,
and
that
he
would
make
him
answer
for
that
which
he
had
done
in
another
place
:
And
after
Verdict
for
the
Plaintiff
,
it
was
now
moved
in
Arrest
of
Iudgment
that
the
words
were
not
actionable
,
because
he
doth
not
scandalize
him
in
his
Profession
by
which
he
acquires
his
Living
.
And
Mountague
chief
Iustice
said
,
that
this
word
Bribing
doth
not
import
that
he
took
a
Bribe
,
and
therfore
this
word
and
all
the
other
words
,
but
(
corrupted
Knave
)
are
idle
,
but
these
words
impeacheth
him
in
his
Office
,
for
it
hath
reference
to
that
,
and
therfore
is
actionable
:
And
Iudgment
was
given
accordingly
.
The
same
Term
in
the
same
Court
.
Sir
Baptist
Hickes
Case
in
the
Star
Chamber
.
SIr
Baptist
Hickes
having
done
divers
Pions
and
Charitable
Acts
,
to
wit
,
had
founded
at
Camden
in
Glocestershire
,
an
Hospitall
for
twelve
poor
and
impotent
men
and
women
,
and
had
made
in
the
same
Town
a
new
Bell
tunable
to
others
,
a
new
Pulpit
,
and
adorned
it
with
a
Cushion
and
Cloath
,
and
had
bestowed
cost
on
the
Sessions
House
in
Middlesex
,
&c.
one
Austin
Garret
a
Copyholder
of
his
Mannor
of
Camden
,
out
of
private
malice
had
framed
and
writ
a
malicious
and
invective
Letter
to
him
,
in
which
in
an
ironicall
and
deriding
manner
,
he
said
,
that
the
said
Sir
Baptist
had
done
these
charitable
works
,
as
the
proud
Pharisee
for
vain-glory
and
oftentation
,
and
to
have
popular
applause
,
and
further
in
appro●rtous
manner
taxed
him
with
divers
other
unlawfull
Acts
:
And
it
was
resolved
by
the
Court
that
for
such
private
Letters
an
Action
upon
the
case
doth
not
lye
at
Common
Law
,
for
he
cannot
prove
his
case
,
to
wit
,
the
publishing
of
it
,
but
because
But
the
Lord
Coke
said
,
that
it
was
the
opinion
of
the
Iudges
in
the
Lord
Treasurers
case
,
when
he
was
Attorney
,
that
such
a
private
Letter
was
punishable
in
this
Court
,
and
therupon
he
had
instructions
to
exhibit
an
Information
,
but
the
Lord
Treasurer
Jacens
in
extremis
was
content
to
pardon
him
;
and
so
it
was
resolved
between
Wooton
and
Edwards
:
And
Sir
Francis
Bacon
Lord
Chancellor
said
,
that
the
reason
why
such
a
private
Letter
shall
be
punished
,
is
,
because
that
it
in
a
manner
enforceth
the
party
to
whom
the
Letter
is
directed
to
publish
it
to
his
friends
to
have
their
advice
,
and
for
fear
that
the
other
party
would
publish
it
,
so
that
this
compulsary
publication
shall
be
deemed
a
publication
in
the
Delinquent
;
and
in
this
case
the
party
was
fined
at
500
l.
The
same
Term
in
the
same
Court.
Bernard
versus
Beale
.
AN
Action
upon
the
case
was
brought
for
these
words
;
viz.
That
the
Words
,
That
the
Plaintiff
had
two
Bastards
36.
yea●s
since
Plaintiff
had
two
Bastards
36.
years
ago
,
upon
the
report
wherof
he
was
in
danger
to
have
been
divorced
:
And
it
was
resolved
that
for
Defamation
there
was
no
remedy
but
in
the
Spirituall
Court
,
if
he
had
no
temporall
lesse
therby
,
and
therfore
it
is
not
sufficient
to
ground
an
Action
to
say
,
that
he
was
in
danger
to
be
diverced
,
but
th●t
he
was
De
facto
,
divorced
,
or
that
he
w●s
to
have
a
presentment
in
marriage
,
as
it
is
in
Anne
Devies
case
,
Co.
lib.
4.
The
same
Term
in
the
same
Court.
Brabin
and
Tradums
Case
.
THe
Case
was
,
That
the
Church-wardens
of
D.
had
used
time
out
of
mind
to
dispose
and
order
all
the
Seats
of
the
Church
,
wherupon
they
disposed
of
a
Seat
to
one
,
and
the
Ordinary
granted
the
same
Seat
to
another
and
his
Heirs
,
and
excommunicated
all
others
,
who
afterwards
should
sit
in
the
Seat
,
and
a
Prohibition
was
prayed
and
granted
,
for
this
grant
of
a
Seat
to
one
and
his
Heirs
is
not
good
,
for
the
Seat
doth
not
belong
to
the
person
,
but
to
the
house
,
for
otherwise
when
the
person
goes
out
of
the
Town
to
dwell
in
another
place
,
yet
he
shall
retain
the
Seat
,
which
is
no
reason
,
and
also
it
is
no
reason
to
excommunicate
all
others
that
should
sit
there
,
for
such
great
punishments
should
not
be
imposed
upon
such
small
Offenders
,
an
Excommunication
being
Traditio
diabola
.
In
the
same
Term
in
the
same
Court.
Fulcher
versus
Griffin
.
THe
Parson
of
D.
covenanted
with
one
of
his
Parishoners
that
he
should
The
custody
of
a
Copyholder
that
was
a
Lunatick
,
was
committed
to
I.
S.
and
for
Trespasse
done
upon
his
Land
,
it
was
demanded
of
the
Court
in
whose
name
J.
S.
should
bring
the
action
,
and
their
opinion
was
,
that
it
should
be
in
the
name
of
the
Lunatick
.
Trinity
16.
Jac.
In
the
Kings
Bench.
The
Earl
of
Northumberlands
Case
.
THe
Earl
of
Northumberland
being
seised
of
the
Mannor
of
Thistleworth
,
in
which
he
had
a
Leet
to
be
holden
twice
a
year
,
to
wit
,
within
a
moneth
after
Easter
,
and
a
moneth
after
Michaelmas
,
and
Henry
Devell
being
a
Free-holder
of
the
said
Mannor
erected
a
new
Dove-coat
at
Heston
within
the
Precinct
of
the
said
Leet
,
which
was
presented
at
the
Leet
for
a
common
Nusance
,
for
which
Devell
was
amerced
40
s.
and
was
commanded
to
remove
it
upon
pain
of
10
l.
for
the
which
a
Distresse
was
taken
by
Henry
Sanders
and
others
,
as
Bailiffs
to
the
said
Earl
,
wherupon
Devell
brought
a
Replevin
,
and
they
made
Avowry
and
justified
as
Bayliffs
,
and
prescribed
that
they
used
to
make
by-laws
to
redresse
common
Nusances
,
and
also
prescribed
in
the
Distresse
.
And
the
point
in
question
was
,
whether
the
new
erecting
of
a
Dove-coat
by
a
Free-holder
were
a
common
Nusance
,
&
punishable
viz.
Mountague
chief
Iustice
,
Crook
,
Doderidge
and
Haughton
Iustices
,
that
it
was
not
a
common
Nusance
,
either
punishable
or
inquirable
in
a
Leet
;
and
by
Haughton
a
man
hath
Jus
proprietatis
&
privilegii
in
the
Doves
.
1.
Propriety
in
respect
of
the
place
,
as
22
H.
6.
39.
Trespasse
lies
for
taking
a
Goshawk
in
respect
of
the
place
,
as
3
H.
6.
55.
For
Hares
,
and
Spencers
case
in
Dyer
,
and
so
of
other
things
which
are
Ferae
naturae
.
And
if
a
Deer
goes
out
of
a
Park
,
albeit
it
be
in
the
Kings
case
,
yet
it
is
lawfull
for
the
Owner
of
the
Sail
to
take
it
,
if
it
be
in
the
place
where
the
Deer
bath
chase
and
re-chase
:
And
by
the
Register
and
Fitzherbert
it
appears
that
Trespasse
lies
Quaere
columbare
fregit
,
&
Columbas
cepit
:
But
16
E.
4.
7.
Trespasse
doth
not
lye
for
killing
of
Doves
,
but
there
is
a
Quaere
of
an
action
upon
the
case
,
and
because
the
Doves
do
no
Trespasse
,
neither
is
there
any
remedy
for
the
killing
of
them
,
therfore
they
are
no
common
Nusance
;
for
by
Brook
34
H.
6.
Brooks
action
upon
the
case
,
the
common
custom
is
the
common
Law
,
and
there
is
no
authority
against
it
,
but
Co.
lib.
5.
104.
Boulstons
case
,
which
is
only
on
the
by●
,
and
is
not
agreeing
with
the
reason
of
the
principall
,
and
this
confirms
my
opinion
,
Quod
fiat
concessum
per
totam
Curiam
,
for
there
the
principall
case
was
that
a
man
made
Cony-burrows
,
and
the
Conies
strayed
into
his
Neighbors
grounds
,
and
adjudged
that
it
was
not
actionable
;
but
it
was
lawfull
for
any
man
to
kill
them
upon
his
own
ground
;
so
here
,
&c.
Doderidge
,
It
may
be
a
hurt
to
the
Common-wealth
,
but
not
a
publike
Nusance
,
for
that
ought
to
be
immediate
,
or
generall
.
1.
Immediate
it
cannot
be
,
for
the
erecting
of
a
Dove-coat
cannot
in
it self
be
a
Nusance
.
2.
It
is
not
generall
but
particular
to
the
Neighbouring
Inhabitants
:
And
it
hath
been
allowed
of
all
sides
,
that
a
man
may
have
a
Dove-coat
by
prescription
,
which
could
not
be
if
it
were
a
Nusance
;
to
which
Mountague
agreed
:
And
it
is
lawfull
for
any
man
to
kill
the
Doves
upon
his
own
Land
,
but
they
must
be
ware
that
they
do
it
not
against
any
Statute
,
for
Doves
are
preserved
by
many
Statutes
,
as
by
the
Statute
of
Wales
,
made
in
the
time
of
E.
1.
and
the
Statute
of
18
E.
2.
gives
directions
that
the
killing
of
Doves
shall
be
presented
at
the
Leet
:
And
the
Statute
of
18
Eliz.
ordains
that
Doves
shall
not
be
shot
.
3.
However
the
Replevin
lies
for
a
fault
in
the
pleading
,
for
the
harm
and
nusance
which
the
Doves
do
is
laid
to
be
Per
totam
patriam
,
wheras
it
ought
to
be
within
the
Precinct
of
the
Leet
;
to
which
Mountague
agreed
.
Crook
,
A
man
hath
property
in
the
Doves
only
by
the
Possession
,
for
being
at
large
,
they
are
Nullius
in
bonis
,
and
when
they
are
in
his
possession
,
to
wit
,
in
the
Dove-coat
,
they
do
no
harm
to
any
:
and
it
was
lately
ruled
in
this
C●u●t
,
that
a
man
cannot
lay
Loggs
in
the
Kings
high
way
,
although
there
be
sufficient
room
for
Passengers
,
because
it
is
a
wrong
to
have
the
high
way
strained
;
so
here
a
Prescription
should
not
be
good
if
it
were
a
Nusance
,
for
it
is
all
one
to
erect
a
great
Dove-coat
,
or
a
little
one
,
for
a
Nusance
Non
recipit
magis
aut
minus
:
And
Bolstons
case
rather
confirms
then
encreaseth
my
doubt
,
and
so
I
agree
with
my
Brethren
.
Mountague
,
A
man
hath
Jus
duplex
in
Doves
.
1.
Jus
proprietatis
.
2.
Jus
privilegii
,
for
they
fly
to
and
again
,
and
(
as
Bracton
saith
)
have
Animum
revertendi
,
and
so
have
not
other
things
which
are
Ferox
naturae
:
And
it
is
a
good
Argument
that
this
matter
was
never
questioned
,
for
it
is
without
question
.
Littleton
saith
in
the
case
of
Disparagement
,
21
E.
3.
4.
They
of
the
Leet
ought
to
enquire
of
such
things
as
have
been
enquirable
,
yet
the
excesse
therof
is
restrainable
by
the
Iustices
of
Assise
.
A
Precipe
lies
of
a
Dove-coat
,
as
appears
by
the
Verse
,
Mich.
Col.
and
Dower
and
Partition
lies
therof
,
which
shews
it
to
be
lawfull
,
and
by
the
The
same
Term
in
the
same
Court.
Richardson
versus
Cabell
.
RIchardson
,
being
a
Parson
,
libelled
against
Cabell
in
the
Spirituall
Court
for
Tithes
,
because
the
said
Cabell
being
an
Inn-keeper
,
took
all
the
benefit
of
his
Pasture
by
putting
in
Guest
Horses
into
his
Pasture
,
wherupon
Cabell
prayed
a
Prohibition
,
and
it
was
not
granted
,
for
it
is
Tithable
in
this
case
:
But
if
Cabell
had
taken
a
crop
of
Hay
,
and
afterwards
he
had
put
Guest
Horses
into
the
Pasture
,
in
that
case
it
had
not
been
The
same
Term
in
the
same
Court.
Southern
versus
How
.
RAlph
Southern
Plaintiff
in
an
Action
upon
the
Case
against
Robert
How
,
shews
for
his
case
,
That
the
Defendant
being
a
Goldsmith
in
London
,
and
having
Counterfeit
Iewels
,
knowing
them
to
be
counterfeit
,
sent
William
Saldock
his
Servant
with
them
to
the
Plaintiff
,
being
a
Merchant
in
Barbary
,
to
use
him
for
the
sale
of
the
Iewels
to
the
King
of
Barbary
,
and
the
Plaintiff
therupon
sold
them
to
the
King
of
Barbary
for
800
l.
and
Saldock
having
received
the
said
money
,
went
from
thence
;
And
the
Iewels
being
afterwards
discovered
to
be
counterfeit
,
the
Plaintiff
was
taken
and
enforced
by
Imprisonment
to
make
restitution
of
the
money
to
the
said
King
.
But
it
was
said
by
the
Court
,
that
the
Verdict
did
not
prove
the
case
,
for
it
was
found
that
the
Defendant
did
not
command
his
Servant
to
make
use
of
the
Plaintiff
,
nor
to
sell
to
the
King
,
but
generally
to
any
:
And
that
the
Iewels
were
of
some
worth
,
Scil.
80
l.
And
it
was
agreed
at
the
Bar
,
by
Davenport
,
that
in
this
case
the
action
well
lies
,
for
the
Master
shall
answer
for
Doctor
and
Student
137.
in
what
case
the
Master
shall
answer
for
his
Servant
.
Coventry
Solicitor
,
to
the
contrary
,
for
it
was
lawful
for
the
Plaintiff
to
command
his
Servant
to
sell
them
,
for
it
was
found
by
the
Verdict
that
the
Iewels
were
of
some
worth
and
value
,
and
he
did
not
command
him
to
sell
them
for
more
then
they
were
worth
,
and
9
H.
6.
53.
b.
If
the
Master
send
his
Servant
into
a
Fair
,
or
Market
,
to
Merchandize
for
him
,
the
Master
shall
not
be
punished
for
his
fault
.
And
in
this
case
the
command
was
not
to
deal
with
the
Plaintiff
,
or
to
sell
to
any
one
in
particular
,
and
for
it
see
9
H.
6.
aforesaid
:
And
if
the
Servant
will
exceed
the
lawfull
command
of
his
Master
,
the
Master
shall
not
be
punished
therfore
,
but
if
the
command
be
unlawfull
it
is
otherwise
,
11
E.
4.
6.
A
man
sells
cloath
of
such
a
length
,
which
proves
to
be
short
of
the
length
,
an
action
lies
not
without
a
Warranty
,
so
Fitz.
N.
B.
64.
c.
For
Wine
if
it
be
warranted
to
be
good
,
an
action
lies
if
it
be
corrupt
.
If
my
Beasts
go
into
another
mans
Soil
,
an
action
lies
against
me
,
but
if
my
Servant
drive
my
Beast
into
another
mans
Soil
,
I
shall
not
be
punished
,
for
he
doth
this
of
his
own
wrong
,
without
any
such
warrant
from
me
,
13
H.
7.
b.
And
if
when
a
man
sell
a
thing
for
more
then
it
is
worth
,
an
action
would
lye
for
it
,
we
should
never
have
an
end
of
actions
.
And
the
action
doth
not
lye
for
another
reason
,
because
it
doth
not
appear
that
the
King
of
Barbary
did
lawfully
imprison
the
Plaintiff
,
26
H.
8.
3.
If
a
man
makes
a
Lease
,
and
covenants
that
he
shall
not
be
disturbed
,
if
a
stranger
disturb
him
,
an
action
lieth
not
against
the
Covenantor
,
so
here
,
&c.
for
it
seems
it
was
Ex
regali
potestate
,
and
not
in
a
lawfull
manner
,
and
so
he
concluded
that
the
action
will
not
lye
,
and
so
it
was
resolved
by
the
whole
Court
.
Mountague
chief
Iustice
,
the
Plaintiff
is
no
party
who
shall
have
the
action
but
the
King
of
Barbary
.
2.
The
Verdictis
contrary
to
the
Declaration
,
and
Iewels
are
in
value
according
to
the
estimation
,
and
therfore
38
Eliz.
between
Simson
and
Sanders
in
the
Star
Chamber
,
it
was
resolved
that
a
man
shall
not
be
punished
for
Perjury
upon
the
valuation
of
Iewels
.
Doderidge
said
,
that
22
Eliz.
an
action
upon
the
case
was
brought
in
the
Common
Pleas
by
a
Clothier
,
that
wheras
he
had
gained
great
reputation
for
his
making
of
his
Cloath
,
by
reason
wherof
he
had
great
utterance
to
his
great
benefit
,
and
profit
,
and
that
he
used
to
set
his
mark
to
his
Cloath
,
wherby
it
should
be
known
to
be
his
Cloath
:
And
another
Clothier
perceiving
it
,
used
the
same
mark
to
his
ill-made
Cloath
on
purpose
to
deceive
him
,
and
it
was
resolved
that
the
Action
did
well
lye
.
The
same
Term
in
the
same
Court
.
VPon
an
Indictment
of
Barretry
before
the
Iustices
of
Wales
,
a
Certiorari
was
moved
for
to
remove
it
into
this
Court
:
And
it
was
said
at
the
Bar
that
it
had
not
been
seen
from
the
time
of
E.
I.
that
such
a
Writ
The
same
Term
in
the
same
Court
.
Sir
Henry
Glemhams
Case
.
IN
a
Quo
warranto
against
Sir
Henry
Glemham
for
using
certain
Liberties
,
to
which
Sir
Henry
pleaded
in
Bar
,
and
the
Kings
Attorney
replyed
,
and
so
this
matter
rested
three
years
,
and
then
the
Kings
Attorney
put
in
a
new
Replication
,
and
joyned
Issue
upon
other
points
:
And
it
was
moved
for
the
Defendant
that
he
might
put
in
a
new
Bar
,
in
regard
the
Replication
The
same
Term
in
the
same
Court
.
IN
an
Action
of
Trover
and
Conversion
between
one
Nicholas
and
William
Ward
,
it
was
agreed
that
tithe
Lamb
and
Wooll
was
included
within
small
Tithes
:
And
Mountague
said
,
that
a
Vicaridge
endowed
Fitz.
tit
.
Indicavit
,
is
that
such
a
Vicaridge
may
be
dissolved
:
An
appropriation
may
be
by
the
King
sole
where
he
is
Patron
,
but
there
is
no
Book
that
it
might
be
by
the
Patron
sole
.
Grindons
case
in
Plowden
,
and
17
E.
3.
39.
An
Appropriation
cannot
be
without
the
Kings
licence
.
The
same
Term
in
the
same
Court.
Blaxton
versus
Heath
.
IN
an
Action
of
Debt
by
Blaxton
against
Heath
,
the
case
was
this
.
A
man
possessed
of
a
term
for
twenty
years
,
in
right
of
his
Wife
,
made
a
Lease
for
ten
years
,
rendring
rent
to
him
,
his
Executors
,
and
Assigns
,
and
died
.
And
the
question
was
whether
the
Wife
shall
have
the
rent
after
his
death
,
or
his
Executors
,
and
it
was
argued
,
that
the
wife
should
n●t
have
it
,
because
she
was
in
by
a
Title
Paramount
;
as
if
there
be
two
Joynt-tenants
for
life
,
the
one
makes
a
Lease
for
years
rendring
rent
,
and
dies
,
the
other
shall
not
have
the
Rent
,
Dyer
167.
and
so
of
Joynt-tenants
in
fee
,
Co.
lib.
1.
96.
and
Perkins
accordingly
:
To
which
Mountague
chief
Iustice
agreed
,
for
he
said
,
it
was
but
an
extract
of
ten
out
of
twenty
,
the
remainder
continuing
as
before
:
And
Redditus
is
Reventus
,
a
turning
again
,
but
it
is
otherwise
of
a
Condition
,
which
is
a
new
Creature
,
of
which
the
wife
shall
take
no
advantage
.
Crook
Iustice
,
This
is
a
speciall
reservation
,
and
therfore
the
Executor
shall
have
it
,
and
not
the
wife
,
for
she
comes
in
Paramount
,
as
in
the
case
of
Ioyn-tenants
:
Haughton
agreed
therunto
,
and
said
,
that
the
Rent
shall
be
incident
to
him
who
hath
the
Reversion
under
the
Lessor
,
who
is
the
Executor
:
And
Mountague
demanded
of
Hobert
chief
Iustice
of
the
Common
Pleas
,
his
opinion
in
this
case
,
who
agreed
that
the
wife
shall
not
have
it
.
The
same
Term
in
the
same
Court.
Dennis
versus
Sir
Arthur
Mannaring
,
and
others
.
IN
the
great
case
between
Gabriel
Dennis
Plaintiff
,
in
Trespasse
against
Sir
Arthur
Mannaring
and
Brimblecomb
,
and
others
,
the
Verdict
was
found
for
the
Defendants
:
And
now
it
was
moved
in
Arrest
of
Iudgment
for
the
Plaintiff
,
because
no
Bail
was
entred
for
Brimblecomb
one
of
the
Defendants
,
Custodia
Marescalli
,
and
in
this
case
the
Venire
facias
is
awarded
to
try
the
Issue
between
the
Plaintiff
and
Defendants
,
where
one
of
the
Defendants
is
no
party
in
Court
:
And
Serjeant
More
put
the
case
of
the
Lord
Chandoys
and
Sculler
,
and
other
Defendants
,
where
the
Iudgment
in
such
a
case
was
resolved
to
be
erroneous
.
Mountague
,
we
ought
Discernere
per
legem
quid
sit
justum
,
and
here
Brimblecomb
being
no
party
in
Court
,
no
Verdict
could
be
given
.
Doderidge
,
I
have
seen
in
this
Court
,
where
upon
a
Writ
of
Error
brought
in
such
a
case
,
we
have
compelled
him
to
put
in
his
Bail
,
because
he
should
not
take
advantage
of
his
own
wrong
and
folly
:
But
because
that
here
no
fraud
appeared
to
be
in
the
Plaintiff
,
he
shall
not
be
bound
to
stand
to
the
Verdict
:
Haughton
agreed
,
but
Crook
seemed
to
the
contrary
:
But
it
was
agreed
,
that
if
Brimblecomb
had
appeared
at
the
Suit
of
any
other
,
the
same
Term
,
it
had
been
sufficient
:
And
these
Books
were
cited
to
be
in
the
point
,
32
H.
6.
2.
8
E.
4.
5.
21
H.
6.
10.
The
same
Term
in
the
same
Court
.
Hide
versus
Whistler
.
WIlliam
Hide
made
a
Lease
for
years
of
certain
Lands
to
Whistler
,
excepting
growing
,
and
being
in
the
Premisses
,
it
shall
be
intended
that
the
Soil
did
not
passe
,
for
it
is
pre-demised
:
But
it
was
resolved
that
the
Soil
it self
was
excepted
by
the
exception
of
the
Wood
and
Coppice
,
14
H.
8.
1.
The
Bishop
of
Londons
case
,
Co.
lib.
5.
Ives
case
,
and
lib.
11.
Lyfords
case
:
And
by
the
reserving
of
a
Coppice
the
Soil
it self
is
reserved
;
for
by
Mountague
,
that
which
is
reserved
is
not
demised
,
and
so
the
Distresse
well
taken
.
Crook
agreed
,
and
he
said
the
difference
was
good
between
Wood
and
Trees
,
for
by
the
excepting
of
Wood
,
the
Soil
it self
is
excepted
,
otherwise
of
Trees
:
Haughton
agreed
that
the
Soil
it self
is
excepted
in
this
case
,
and
so
it
was
adjudged
.
The
same
Term
in
the
same
Court.
Talbot
versus
Sir
Walter
Lacen
.
IN
a
Writ
of
Covenant
brought
by
Margaret
Talbot
against
Sir
Walter
Lacen
.
upon
a
Lease
made
by
the
Plaintiff
to
the
Defendant
,
of
a
Park
,
And
for
the
other
point
it
was
objected
,
that
in
Fine
termini
,
was
incertain
,
for
it
may
extend
after
the
term
,
but
Ad
finem
termini
had
been
sufficient
,
Old
book
of
Entries
,
169.
for
when
he
covenants
that
at
the
end
of
the
term
,
he
would
leave
the
Premisses
in
reparations
,
and
Ad
finem
termini
,
he
did
wast
,
this
ought
of
necessity
to
be
intended
a
breach
of
the
Covenant
,
and
therfore
it
was
adjudged
that
the
action
of
Covenant
well
lies
.
Mich
16.
Jac.
In
the
Kings
Bench.
Havergall
and
Hares
Case
.
IN
this
Case
(
which
see
before
,
fol.
1.
b.
)
four
points
were
observed
.
1.
Whether
Fisher
the
Assignee
of
the
Rent
were
such
a
person
who
Before
fol.
1.
b
shall
take
benefit
of
the
entry
?
2.
When
10
l.
is
only
in
arrear
,
whether
the
Rent
of
20
l.
shall
be
said
in
arrear
?
3.
Whether
these
advantages
which
were
first
granted
with
the
Rent
may
be
granted
over
?
4.
When
the
Vse
shall
rise
,
whether
upon
the
first
Indenture
of
the
grant
of
the
Rent
,
or
afterwards
?
For
the
case
was
,
that
the
Grantee
of
the
Rent
of
20
l.
covenanted
by
the
same
Indenture
,
that
if
the
said
rent
of
20
l.
were
in
arrear
for
the
space
of
twenty
daies
after
any
day
of
payment
,
that
the
Grantee
shall
distrain
,
and
if
there
be
not
sufficient
distresse
upon
the
Land
,
or
if
there
be
a
Rescous
,
Replevin
,
or
Pound-breach
,
that
then
it
shall
be
lawfull
for
the
Grantee
and
his
Heirs
to
enter
into
the
same
Land
,
and
to
retain
it
untill
he
be
satisfied
:
And
the
said
Rent
was
granted
,
9
Jac.
it
was
arrear
,
11
Jac.
the
Fine
for
the
better
assurance
of
the
Rent
was
levied
12
Jac.
and
13
Jac.
the
Distresse
was
taken
.
There
were
four
Causes
which
give
an
entry
,
and
upon
the
Distresse
and
Replevin
brought
the
Assignee
enters
.
As
to
the
three
first
points
,
it
was
resolved
by
the
whole
Court
,
1.
That
Fisher
was
such
an
Assignee
who
shall
take
benefit
of
the
Entry
.
2.
When
10
l.
is
only
arrear
,
the
Rent
of
20
l.
shall
be
said
arrear
,
wherupon
there
shall
be
a
Title
of
Entry
.
3.
That
these
advantages
granted
with
the
Rent
may
be
granted
over
.
And
as
to
the
fourth
point
,
it
was
holden
by
Mountague
and
Crook
,
that
the
Vse
riseth
upon
the
first
Indenture
,
and
not
upon
the
entry
after
the
Replevin
brought
,
although
the
words
are
,
that
then
it
shall
be
lawfull
for
the
Grantee
and
his
Heirs
to
enter
,
wherby
the
use
is
only
awaked
,
as
it
is
in
the
principall
point
in
Shelleys
case
,
and
although
a
Fine
is
afterwards
levied
,
yet
the
Vse
shall
be
directed
by
the
originall
Indenture
,
and
therfore
6
Rich.
2.
A
Feoffment
is
made
to
two
and
their
Heirs
,
and
afterwards
a
Fine
is
levied
upon
it
for
further
assurance
,
to
the
use
of
them
and
the
Heirs
of
one
of
them
,
yet
it
shall
go
to
the
use
of
both
,
for
it
shall
be
respected
according
to
the
original
agreement
,
where
there
are
divers
assurances
for
the
perfecting
of
one
and
the
same
thing
,
16
E.
3.
tit
.
Age.
A
Daughter
had
a
Seigniory
by
descent
,
a
Tenancy
Escheats
,
a
Son
is
born
,
he
shall
have
the
Land
,
see
Sharoes
case
in
4
Mar.
Dyer
,
and
in
Chadleighs
case
all
looks
to
the
originall
agreement
,
and
therfore
variance
of
time
shall
not
hinder
the
originall
agreement
,
as
33.
Ass.
the
Servant
in●ends
to
kill
his
Master
,
and
afterwards
the
Master
puts
him
out
of
his
Service
,
and
then
he
kills
him
,
this
shall
be
petty
Treason
in
the
Servant
,
28
H.
6.
Two
are
bound
in
a
Bond
at
severall
times
,
and
yet
he
shall
declare
against
both
,
as
upon
the
first
delivery
,
11
H.
7.
it
is
adjudged
,
that
if
a
Deed
be
delivered
by
an
Infant
,
and
afterwards
it
is
again
delivered
when
he
comes
of
full
age
:
And
see
Mallories
case
,
Finches
case
,
and
Borastons
case
,
Nunc
&
tunc
&
quando
,
are
a
demonstration
of
the
time
,
and
not
of
the
matter
,
and
so
they
concluded
that
the
Vse
shall
rise
upon
the
first
Indenture
,
and
not
upon
the
Fine
or
Replevin
brought
;
but
Doderidge
and
Haughton
Iustices
contra
.
Trin.
17.
Jac.
In
the
Kings
Bench.
Silvesters
Case
.
JOhn
Silvester
promised
to
John
B.
that
if
he
would
marry
his
Daughter
,
that
he
would
give
with
her
a
Childs
part
,
and
that
at
the
time
of
his
death
he
would
give
to
her
as
much
as
to
any
of
his
Children
,
excepting
his
eldest
Son
,
and
afterwards
he
made
his
Executors
and
died
:
I.
B.
brought
an
action
upon
the
case
against
the
Executors
upon
this
Promise
,
and
shewed
that
the
Executor
had
not
given
him
a
Childs
part
,
and
that
such
a
younger
Son
of
the
Testators
had
a
100
l.
given
him
:
And
it
was
resolved
by
the
Court
that
the
promise
of
a
Childs
part
is
altogether
incertain
,
but
being
so
much
as
any
of
his
Children
had
,
and
then
shewing
that
the
younger
Son
had
a
100
l.
this
was
certain
enough
,
and
therupon
Iudgment
was
given
for
the
Plaintiff
.
The
same
Term
in
the
same
Court.
Godfrey
and
Owen
.
COrnelius
Godfrey
was
Plaintiff
in
an
action
upon
the
case
for
He
is
a
very
Varlet
,
and
seeks
to
suppresse
his
Bro●hers
Will
,
he
makes
shew
of
Religion
,
but
he
is
a
very
Hypocrite
:
And
the
words
were
sp●ken
of
a
Merchant
,
to
one
who
gave
him
much
credite
in
his
Trade
.
Mountague
chief
Iustice
said
,
that
the
words
which
are
actionable
in
such
a
case
ought
to
touch
the
Plaintiff
in
his
Profession
,
which
these
do
not
do
,
Et
relata
ad
personam
intelligi
debent
secundum
conditionem
personae
,
for
in
the
suppressing
of
his
Brothers
Will
the
case
might
be
such
that
he
might
well
do
it
,
for
perhaps
there
may
be
an
after
Will
made
;
And
for
calling
him
Hypocrite
lies
not
in
the
conusance
of
the
Common
Law
,
for
GOD
only
can
judge
of
the
heart
of
man
,
and
therfore
these
words
do
not
touch
the
Plaintiff
as
he
is
a
Merchant
.
Doderidge
Iustice
,
Words
ought
to
tend
some
way
to
the
ruine
of
the
party
,
or
otherwise
they
are
not
actionable
;
and
Iudgment
was
given
,
Quod
quere
nil
capiat
per
billam
.
Mich.
17.
Jac.
In
the
Star
Chamber
.
Sis
John
Bingleys
Case
.
IN
Sir
John
Bingleys
case
in
the
Star
Chamber
,
it
was
resolved
by
the
two
chief
Iustices
,
Mountague
and
Hobart
,
and
agreed
by
the
Lord
Verulam
Lord
Chancellor
,
and
Sir
Edward
Coke
,
that
if
an
Information
be
exhibited
there
which
begins
with
divers
particular
misdemeanours
,
and
conclude
in
the
generall
that
,
1.
The
matter
included
in
the
generall
charge
ought
to
be
Ejusdem
generis
.
2.
They
ought
to
exceed
the
particulars
expressed
in
number
.
3.
They
ought
not
to
be
greater
or
more
capitall
;
wherupon
Mountague
cited
the
Statute
which
speaks
of
Deans
and
other
Spirituall
persons
,
upon
which
it
hath
been
resolved
that
Bishops
are
not
within
it
,
for
they
are
of
a
higher
degree
,
and
the
principall
reason
of
these
rules
was
,
because
that
a
man
cannot
possibly
make
a
defence
,
because
he
knews
not
what
will
be
objected
against
him
;
and
upon
this
Sir
John
Bingley
was
discharged
at
this
time
for
the
most
transcendent
Offence
that
was
objected
against
him
,
to
wit
,
concerning
Captain
Baugh
,
and
other
Pirates
to
whom
the
King
of
his
grace
and
bounty
had
given
200
l.
to
make
them
Loyall
Subjects
:
But
Sir
John
Bingley
,
Colore
officii
,
had
defrauded
them
of
almost
John
Bingley
made
many
protestations
of
his
innocence
in
this
m●tter
.
And
it
was
holden
also
that
one
might
be
an
Officer
of
his
own
wrong
,
as
their
might
be
an
Executor
of
his
own
wrong
:
And
this
was
Sir
John
Bingleys
case
for
somthing
in
the
information
,
for
he
committed
Extortion
,
Colore
officii
.
The
same
Term
in
the
Star
Chamber
.
THe
Attorney-generall
put
in
an
Information
against
divers
Dutch
Merchants
,
for
buying
and
transporting
of
many
great
summs
of
Gold
and
Silver
Bullion
.
And
it
was
said
by
the
Court
that
divers
Statutes
had
been
made
for
redresse
of
this
mischief
,
as
the
Statute
of
5
R.
2.
the
Offenders
wherof
ought
to
forfeit
all
they
may
:
and
by
another
Statute
in
17
E.
4.
this
Offence
was
made
Felony
to
continue
for
seven
years
:
But
the
Court
would
not
now
punish
them
upon
any
Statute
,
for
it
was
an
offence
at
common
And
Sir
Edward
Coke
said
,
that
if
any
be
to
be
punisht
upon
a
penal
Statute
,
it
ought
to
be
within
two
or
three
years
at
least
after
the
offence
committed
,
for
the
Informer
hath
but
a
year
to
sue
,
and
the
King
two
years
for
the
most
part
.
The
Statutes
of
37
E.
3.
and
5
E.
6.
Prohibite
the
buying
of
Coin
,
and
that
it
is
so
at
the
Common
Law
,
see
21
E.
3.
60.
and
Plow.
215.
and
not
only
he
that
buyes
but
he
that
sels
also
offends
in
it
,
for
it
is
a
Prerogative
only
belonging
to
the
King
,
and
it
is
his
Coin
,
and
none
can
put
a
value
upon
it
but
himself
,
which
is
a
Flower
of
his
Crown
.
Hobart
chief
Iustice
of
the
Common
Pleas
,
as
one
shall
be
punished
for
ingrossing
any
Commodity
,
a
Fortiori
,
one
shall
be
punished
for
ingrossing
and
buying
of
a
great
quantity
of
money
,
all
other
Commodities
being
thereby
ingrossed
,
for
money
is
the
Mistresse
of
commerce
:
Pecunia
est
rerum
omnium
vendendarum
mensura
,
Bracton
117.
18
E.
3.
Hollinghead
109.
50
E.
3.
Rot.
Pat.
Memb.
7.
And
for
transportation
,
17
E.
3.
&
19
E.
3.
Rot.
Pat.
24.
De
monetis
non
transportandis
,
19
R.
2.
Rot.
Pat.
The
Dutches
of
obtained
licence
to
melt
Coin
to
make
Plate
.
And
divers
of
the
Defendants
were
within
the
Kings
generall
pardon
,
but
in
as
much
as
they
pleaded
it
in
their
Rejoynder
,
and
not
in
their
answer
(
as
it
ought
to
be
)
the
Court
over-ruled
their
Plea
,
so
that
they
could
have
no
advantage
therby
.
But
in
as
much
as
they
were
strangers
,
and
not
co●usant
of
our
Laws
,
and
relyed
only
upon
their
Counsell
,
the
Court
had
consideration
therof
in
their
censure
.
Hillary
,
17
Jac.
In
the
Kings
Bench.
Serle
versus
Mander
.
SErle
brought
an
action
upon
the
case
against
Mahder
for
these
words
,
to
I
arrest
you
upon
Felony
,
and
after
Verdict
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
by
Richardson
that
the
words
were
not
actionable
,
for
he
doth
not
say
,
that
the
Plaintiff
had
committed
Felony
;
But
it
was
rescived
by
the
Court
,
and
so
adjudged
that
the
action
lieth
.
The
same
Term
in
the
same
Court
.
A
Iudgment
was
obtained
against
one
of
the
Servants
of
the
Lord
Hay
,
Viscount
Doncaster
,
when
he
was
Ambassador
in
Bohemia
,
and
attending
upon
him
there
:
And
this
matter
being
disclosed
to
the
Court
by
the
Counsell
of
the
Defendant
,
they
would
not
suffer
the
Plaintiff
to
have
execution
upon
the
said
Iudgment
,
but
ordered
the
Plaintiff
to
declare
De
novo
,
to
which
the
Defendant
should
presently
answer
.
Memorand.
It
was
said
to
be
against
the
course
of
the
Court
,
to
have
an
The
same
Term
in
the
same
Court
.
The
King
against
Briggs
.
A
Quo
warranto
was
brought
by
the
King
against
Briggs
,
for
exercising
1.
A
Court
of
Attachments
which
may
be
without
Verderors
.
2.
The
Swanimate
Court
.
3.
The
Iustice
seat
,
and
this
appeareth
in
1.
E.
3.
cap.
8.
21
E.
4.
cap.
8
:
But
by
the
Statute
of
27
H.
8.
cap.
7.
There
are
some
other
incidents
to
a
Forest
.
2.
Admits
that
a
Subject
may
have
a
Forest
,
yet
it
fails
in
this
case
,
because
he
hath
shown
the
exemplification
and
not
the
Letters
Patents
,
and
see
Co.
lib.
5.
Pains
case
,
that
neither
an
exemplification
,
or
constat
,
are
pleadable
at
Common
Law
,
and
Co.
lib.
10.
Dr.
Leyfeilds
case
.
The
same
Term
in
the
same
Court
.
Sir
William
Webb
versus
Paternoster
.
THe
case
was
this
;
Sir
William
Plummer
licensed
Sir
William
Webb
to
lay
his
Hay
upon
the
Land
of
the
said
Sir
William
Plummer
untill
he
could
conveniently
sell
it
,
and
then
Sir
William
Plummer
did
make
a
Lease
of
the
Land
to
Paternoster
,
who
put
in
his
Cattell
and
they
eat
up
the
Hay
:
And
it
was
two
years
between
the
license
and
the
putting
in
of
the
Cattell
,
and
yet
Sir
William
Webb
brought
an
action
of
Trespasse
against
Paternester
for
this
.
Mountague
chief
Iustice
:
1.
This
is
an
Interest
which
chargeth
the
Land
into
whosoever
hands
it
comes
,
and
Webb
shall
have
a
reasonable
and
convenient
time
to
sell
his
Hay
.
2.
The
Lessee
ought
to
give
notice
to
William
Webb
of
the
Lease
before
he
ought
to
put
in
his
Cattell
;
to
which
Haughton
Iustice
agreed
in
both
points
:
But
Doderidge
Iustice
said
,
that
Sir
William
Webb
had
no
certain
time
by
this
license
,
yet
he
conceived
that
he
ought
to
have
notice
:
But
it
was
resolved
that
the
Plaintiff
had
The
same
Term
in
the
same
Court
.
SIbill
Westerman
brought
an
action
upon
the
case
against
Eversall
,
and
had
The
same
Term
in
the
same
Court
.
JEne
as
Executor
of
brought
an
action
upon
the
case
against
Chester
,
George
Crook
said
,
that
the
Defendant
should
not
be
charged
,
because
it
is
not
shewn
that
the
Apparrell
was
for
the
Infant
himself
,
but
he
was
over-ruled
in
this
,
for
it
is
sufficiently
expressed
to
be
for
him
.
And
it
was
agreed
by
the
Court
,
that
it
ought
to
be
shewn
that
it
was
Pro
necessario
vestitu
,
and
it
ought
to
be
suitable
to
his
calling
,
and
(
as
Doderidge
said
)
that
there
was
a
case
adjudged
in
this
Court
between
Stone
&
Withipole
,
that
where
Withipole
had
taken
of
Stone
certain
Stuffs
for
Apparrel
,
being
within
age
,
and
afterwards
he
promised
payment
if
he
would
forbeare
him
some
time
,
and
the
Assumpsit
adjudged
not
good
,
because
he
was
not
liable
for
the
Debt
at
first
for
the
reason
aforesaid
.
Trin.
17.
Jac.
In
the
Common
Bench.
Gilbert
de
Hoptons
Case
.
AN
action
upon
the
case
was
brought
for
those
words
,
viz.
Thou
art
a
Theef
and
hast
stoln
my
Furze
:
And
after
Verdict
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
,
th●t
these
words
were
not
actionable
:
But
it
w●s
said
on
the
other
side
,
that
to
say
,
thou
art
a
Theef
,
is
actionable
,
and
the
subsequent
words
are
in
the
Copulative
,
and
enure
as
a
confirmation
of
the
precedent
words
:
But
if
it
had
been
for
,
Thou
hast
stoln
my
Furze
,
this
had
been
●n
explanation
of
the
precedent
words
,
and
therfore
in
that
case
the
action
would
not
have
been
:
And
it
was
answered
and
resolved
by
the
Court
that
the
word
(
and
)
in
some
cases
shall
be
taken
as
the
word
(
for
)
and
so
it
shall
be
in
this
case
,
and
therfore
adjudged
that
the
action
lies
.
Mich.
22.
Jac.
In
the
Star
Chamber
.
TWo
men
came
Ore
tenus
into
the
Star
Chamber
,
for
stealing
of
the
Kings
Deer
,
and
were
fined
a
100
l.
a
peece
,
and
three
years
Imprisonment
,
unlesse
it
would
please
he
King
to
release
them
sooner
,
and
before
In
the
same
Term
in
the
same
Court
.
THe
Lord
Morley
and
Sir
Richard
Mollineax
being
beyond
Sea
,
their
Sollicitor
in
their
names
exhibited
a
scandalous
Bill
in
the
Star
Chamber
against
the
Bishop
of
Chichister
,
and
after
their
return
this
continued
so
for
three
years
,
without
any
disclaiming
therof
by
them
,
and
now
the
matter
being
questioned
,
they
said
,
that
it
was
not
done
with
their
privity
:
But
because
they
had
not
disclaimed
the
Fact
before
,
they
were
fined
a
100
l.
to
the
King
,
and
a
100
l.
to
the
Bishop
for
Damages
,
and
the
Bill
was
to
be
taken
of
the
File
.
The
same
Term
in
the
same
Court.
Lewes
Plaintiff
versus
Jeoffreys
,
and
others
Defendants
.
THe
Plaintiffs
Brother
had
been
a
Suitor
to
a
woman
,
which
matter
proceeded
to
a
Contract
,
and
afterwards
the
Defendant
Jeoffreys
hapned
to
be
a
Suitor
to
her
also
,
wherupon
(
being
Rivalls
)
they
fell
out
,
and
the
Plaintiffs
Brother
called
the
Defendant
Jackanapes
,
which
was
taken
very
ill
by
the
Defendant
(
being
a
Iustice
of
Peace
in
the
County
of
Worcester
,
and
the
other
being
but
a
mean
man
in
respect
of
him
)
so
that
he
told
him
that
if
he
would
meet
him
on
Horse-back
he
would
fight
with
him
:
afterwards
one
of
the
Sons
of
the
Defendant
went
to
the
said
Brother
(
being
upon
his
own
Land
,
and
gave
him
a
mortall
wound
,
wherupon
a
friend
on
the
behalf
of
the
party
wounded
,
came
to
the
Defendant
(
being
a
Iustice
of
Peace
)
and
brought
him
a
peece
of
his
Skull
,
to
the
end
that
his
Son
should
be
forth
coming
at
the
next
Assises
,
declaring
to
him
the
danger
of
death
the
man
was
in
;
wherupon
the
Defendant
took
a
Recognisance
of
10
l.
of
his
Son
and
of
his
sureties
of
5
l.
a
peece
to
answer
this
at
the
next
Assise
:
And
in
the
mean
time
the
party
died
of
the
said
wound
,
and
the
Son
did
not
appear
at
the
Assises
,
and
the
Iudges
of
Assise
fined
the
Defendant
100
l.
for
taking
such
slender
security
for
the
appearance
of
his
Son
,
which
was
paid
,
and
yet
notwithstanding
the
Defendant
was
fined
200
l.
more
for
this
offence
and
also
200
l.
for
his
misdemeanor
in
his
challenge
,
albeit
the
Defendant
And
for
the
other
matter
it
was
said
by
the
Court
,
that
the
Defendant
being
Father
to
the
offendor
,
it
had
been
better
for
him
to
have
referred
this
matter
to
another
Iustice
of
Peace
,
or
at
least
to
have
had
the
assistance
of
another
:
And
the
party
being
in
such
great
danger
of
death
,
his
son
was
not
bailable
.
Hillary
1.
Car.
In
the
Kings
Bench.
Bowyer
versus
Rivet
.
THe
case
was
thus
;
Sir
William
Bowyer
12.
Jac.
recovered
against
Sir
Thomas
Rivet
in
an
Action
of
debt
,
Sir
William
made
his
wife
his
Exceutrix
and
died
,
the
wife
made
Bowyer
her
Executor
and
died
;
then
Sir
Thomas
Rivet
died
,
Bowyer
brought
a
Scire
facias
to
have
execution
upon
the
Iugment
against
Sir
Thomas
Rivet
the
younger
,
as
Heir
apparant
to
the
Land
to
him
descended
from
Sir
Thomas
Rivet
,
who
pleaded
Riens
per
descent
from
Sir
Thomas
Rivet
,
and
it
was
found
that
he
had
two
acres
and
a
half
of
Land
by
discent
;
and
it
was
prayed
by
Goldsmith
,
that
Iudgment
might
be
given
against
Sir
Thomas
Rivet
generally
,
for
he
said
,
that
this
false
Plea
shall
charge
him
and
his
own
Lands
,
and
cited
Plowden
440.
where
in
debt
against
an
Heir
,
upon
his
false
Plea
,
his
own
Lands
shall
become
liable
to
the
debt
,
and
Co.
lib.
3.
11.
b.
Sir
William
Herberts
case
,
where
the
case
was
upon
a
Scire
facias
against
the
Heir
,
as
it
is
in
this
case
.
But
on
the
other
part
it
was
argued
by
Richardson
the
Kings
Serjeant
,
Banks
,
and
all
the
Iustices
,
that
Execution
shall
be
awarded
in
no
other
manner
against
the
Heir
then
it
should
be
against
his
Ancestor
,
or
other
Purchasor
,
to
wit
,
of
a
Moyety
of
that
which
he
had
by
discent
,
for
as
much
as
in
this
case
he
cannot
be
to
this
purpose
charged
as
Heir
,
but
he
ought
to
be
charged
as
Ter-tenant
and
as
a
Purchasor
,
and
a
Purchasor
shall
never
hurt
himself
but
his
false
Plea
.
And
Banks
argued
,
that
the
Heir
in
this
case
is
charged
as
a
Purchasor
,
and
the
false
Plea
of
a
Purchasor
shall
never
charge
himself
,
33
E.
3.
Fitz.
Execution
,
162.
and
6
E
3.
15.
and
that
in
this
case
he
is
charged
as
Ter-tenant
appears
by
three
reasons
.
1.
Debt
will
not
lye
against
an
Heir
,
but
where
he
is
bound
as
Heir
,
but
in
this
case
Execution
is
to
be
sued
against
him
as
another
Ter-tenant
,
Dyer
271.
11
E.
3.
15.
and
in
27
H.
6.
Execution
135.
and
Co.
lib.
3.
12.
b.
That
in
Iudgment
upon
Debt
or
Recognisance
the
Heir
is
charged
and
Execution
shall
be
sued
against
him
as
Ter-tenant
.
2.
There
is
not
any
lien
as
Heir
,
for
the
Iudgment
doth
not
mention
the
Heir
,
and
therfore
he
cannot
be
charged
unlesse
he
be
expresly
bound
,
and
in
the
Record
of
the
Recovery
,
it
doth
not
appear
that
the
first
lien
shall
bind
the
Heir
,
for
he
declares
that
he
bound
himself
,
and
not
that
he
bound
himself
and
his
Heirs
.
3.
If
the
Heir
were
bound
in
the
Obligation
so
that
he
were
once
bound
as
Heir
,
yet
the
Iudgment
determines
the
specialty
,
so
that
now
he
is
not
bound
,
and
in
the
Iudgment
the
Heir
is
not
mentioned
,
as
in
10
H.
4.
21.
24.
If
an
Abbot
contract
to
the
use
of
the
house
without
consent
of
the
Covent
,
this
shall
bind
if
he
dies
,
but
if
he
takes
an
Obligation
of
the
Abbot
and
then
he
dies
,
this
shall
not
bind
the
house
,
for
the
Contract
is
determined
by
the
Obligation
,
and
this
is
the
reason
that
in
the
time
of
E.
3.
in
a
recovery
upon
debt
the
Obligation
was
cancelled
.
4.
Here
he
cannot
be
charged
as
Heir
,
for
it
appeareth
by
the
Record
And
as
to
the
objection
,
that
in
this
case
he
shall
have
his
age
,
and
therfore
shall
be
charged
as
Heir
,
Non
sequitur
,
for
if
execution
be
sued
against
the
Heir
of
a
Purchasor
,
he
shall
have
his
age
,
and
yet
he
is
not
Heir
,
neither
can
charged
as
Heir
to
the
Conusor
:
But
because
it
is
a
rule
in
Law
,
that
the
Heir
which
hath
by
discent
shall
not
answer
where
his
Inheritance
may
be
charged
during
his
Nonage
.
Whitlock
to
the
same
intent
,
because
the
Heir
is
not
charged
here
as
Heir
but
as
Ter-tenant
,
wherby
his
false
Plea
shall
not
hurt
him
,
with
which
Jones
also
agreed
,
and
said
,
that
he
here
considered
three
things
.
1.
That
the
lien
of
the
Ancestor
binds
the
Heir
.
2.
How
the
Heir
shall
behave
himself
in
pleading
.
3.
Our
point
in
question
.
For
the
first
there
are
two
things
requisite
to
bind
one
as
Heir
.
1.
A
lien
expresse
,
for
if
one
bind
himself
and
not
his
Heir
,
this
shall
not
bind
his
Heir
in
any
case
.
2.
A
discent
of
Inheritance
,
for
without
this
he
shall
not
be
bound
by
the
act
of
his
Ancestor
,
and
he
is
bound
no
longer
then
Assets
discend
,
for
he
alien
before
the
Writ
purchased
the
lien
is
gone
.
2.
He
ought
to
behave
himself
truly
and
plead
truly
,
and
confesse
the
assets
discended
to
him
,
when
debt
is
brought
against
him
as
heir
,
otherwise
his
own
Lands
shall
be
charged
with
the
debt
,
as
it
is
in
Pepys
case
in
Plow
.
Com.
But
where
it
is
said
in
Pepys
case
;
that
upon
a
Nihil
dicit
,
or
Non
sum
informatum
,
&c.
If
the
Iudgment
passe
upon
them
,
that
it
shall
be
generall
;
I
am
not
of
that
opinion
,
for
the
common
experience
of
the
Courts
is
,
that
such
a
generall
Iudgment
shall
not
be
given
against
the
Heir
;
unlesse
it
be
upon
a
false
plea
pleaded
,
with
which
agrees
Lawsons
case
,
Dyer
81.
and
Henninghams
case
,
Dyer
344.
where
the
Iudgment
passed
by
Nihil
dicit
,
so
that
the
saying
in
Plow.
440.
a.
that
what
way
soever
the
Heir
be
condemned
in
debt
,
if
he
do
not
confesse
the
Assets
,
&c.
that
it
shall
be
his
proper
debt
,
is
not
now
taken
for
Law
.
And
I
also
h●ld
,
that
if
the
Heir
plead
falsly
,
and
there
is
found
more
Assets
,
Prima
facie
the
Books
seem
to
disagree
,
but
being
well
considered
,
accord
with
excellent
harmony
.
I
have
considered
this
case
,
it
was
moved
at
Reading
Term
,
and
because
my
Notes
are
not
here
,
I
will
speak
more
briefly
,
and
will
consider
.
1.
H●w
an
Heir
shall
be
charged
upon
the
Obligation
of
his
Father
?
and
as
to
that
in
debt
against
an
Heir
,
he
is
charged
as
Heir
,
so
that
at
this
day
it
is
taken
as
his
proper
debt
,
wherby
the
Writ
is
in
the
Debet
and
Detinet
,
Plow
:
Com
:
and
so
against
the
Heirs
of
the
Heir
to
many
generations
,
albeit
of
this
Plowden
makes
a
doubt
,
and
his
plea
that
he
had
nothing
at
the
day
of
the
Writ
purchased
,
nor
ever
after
,
is
good
,
for
if
he
alien
the
Assets
he
is
discharged
of
the
debt
,
in
regard
he
is
not
to
wait
the
action
of
the
Obligee
.
2.
The
Heir
shall
be
ch●●ged
upon
or
Recognisance
,
not
as
Heir
,
but
as
Ter-tenant
,
for
he
is
not
bound
in
the
Recognisance
,
but
only
the
Conusor
grant
that
the
debt
shall
be
levied
of
all
his
Lands
and
Tenements
,
but
not
against
his
Heirs
.
And
here
he
is
not
meerly
as
Ter-tenant
,
for
he
shall
not
have
contribution
ag●●st
●her
Ter-tenants
,
but
only
against
those
who
are
Heirs
as
himself
is
,
but
to
all
other
intents
he
is
Ter-tenant
,
and
so
charged
,
3.
That
upon
a
Iudgment
(
as
our
case
is
)
the
Heir
shall
be
charged
as
Ter-tenant
and
not
otherwise
:
The
Book
which
hath
been
cited
,
viz
33
E.
3.
Execution
162.
is
expresse
in
the
point
;
the
broken
years
of
Fitzherbert
are
obs●urely
reported
,
but
by
comparing
of
cases
it
will
appear
to
be
our
case
ex●resly
.
4.
That
albeit
an
Heir
shall
be
charged
upon
the
Obligation
of
his
Ancestor
,
where
he
is
particularly
bound
,
yet
upon
his
false
plea
no
execution
shall
be
but
upon
the
assets
:
So
it
seems
to
me
that
in
the
principall
case
the
Iudgment
shall
be
speciall
,
and
it
seems
to
be
a
very
plain
case
.
Crew
chief
Iustice
agreed
,
and
in
his
argument
he
affirmed
what
Jones
said
,
that
a
generall
Iudgment
shall
not
be
given
against
the
Heir
,
if
he
do
not
plead
falsly
that
he
hath
no
Assets
,
and
not
upon
Nihil
dicit
:
And
so
Iudgment
was
given
that
the
Plaintiff
shall
have
Execution
of
the
Moyety
of
the
Lands
discended
to
the
Defendant
;
and
so
note
the
diversity
of
debt
against
the
Heir
,
and
Scire
facias
against
the
Heir
.
Dickenson
versus
Greenhow
,
Hill
.
1.
Car.
In
the
Kings
Bench
,
Intr.
Hill
.
18.
Jac.
Rot.
189.
IN
an
Attachment
upon
a
Prohibition
,
the
Plaintiff
declared
that
where
Robert
the
last
Abbot
of
Cokersham
in
Lancashire
,
was
seised
in
Fee
of
three
acres
of
Land
,
parcel
of
his
Monastery
,
and
that
the
Abbot
and
his
Com-monks
,
and
all
the
Predecessors
of
the
Abbot
were
time
out
of
mind
of
the
order
and
rule
of
Praemonstratenses
,
and
that
the
order
of
Praemonstratenses
,
and
all
Monks
therof
,
were
time
out
of
mind
discharged
of
payment
of
tithes
for
their
Lands
and
Tenements
,
Quamdiu
manibus
propriis
aut
sumptubus
excol●bant
.
And
that
the
said
Abbot
and
all
his
Predecessors
time
out
of
mind
had
holden
the
said
three
acres
discharged
of
payment
of
Tithes
,
Quamdiu
,
&c.
and
so
held
them
untill
the
dissolution
of
the
Monastery
,
and
shew
the
surrender
to
H.
8.
and
the
Statute
of
31
H.
8
by
force
wherof
H.
8.
was
seised
and
held
them
discharged
,
and
from
him
derive
them
to
E.
6.
and
from
E.
6.
to
Queen
Mary
,
and
from
her
to
Queen
Elizabeth
,
and
from
her
in
the
42.
year
of
her
Raign
to
Wagstaff
,
and
from
him
by
mean
conveyances
to
Dickenson
the
Plaintiff
,
Quorum
pretextu
he
was
seised
,
and
enjoyed
them
in
Propria
manurantia
,
and
shew
the
Statute
of
2
E.
6.
cap.
15.
wherby
it
is
enacted
that
Tithes
shall
be
paid
as
usually
they
were
,
&c.
Quorum
pretextu
,
the
Plaintiff
held
the
three
acres
discharged
of
Tithes
,
and
that
notwithstanding
;
and
against
the
Prohibition
,
the
Defendant
did
draw
him
into
Plea
for
them
in
Court
Christian
,
and
the
Iudge
therof
held
plea
,
and
the
Defendant
did
there
prosecute
,
him
to
the
disinherison
of
the
Crown
:
And
upon
this
the
Defendant
demurred
,
and
prayed
a
consultation
.
And
Sir
John
Davies
the
Kings
Serjeant
argued
for
the
Defendant
,
that
a
Consultation
should
be
granted
,
because
that
his
matter
of
discharge
is
double
.
1.
His
Priviledge
.
2.
The
prescription
,
and
if
either
of
them
will
not
help
him
,
then
he
ought
to
be
charged
:
For
the
Priviledge
,
he
took
it
that
the
Praemonstratenses
never
had
such
a
priviledge
.
It
is
a
Maxime
in
Law
,
1.
Either
by
the
Bull
of
the
Pope
,
for
he
taking
upon
himself
to
be
the
great
Dispens●r
and
Steward
of
the
Church
,
took
upon
him
to
discharge
them
,
but
this
(
as
it
is
holden
by
the
Canon
)
he
could
not
absolutely
do
,
but
might
divert
them
to
a
Clergy-man
,
or
grant
to
another
to
hold
them
by
way
of
retainer
,
and
this
ought
to
be
to
a
Clergy-man
also
.
Or
,
2.
By
a
generall
Counsell
,
for
some
orders
were
discharged
by
generall
Counsels
:
So
some
obtained
Priviledges
by
the
Popes
Bulls
,
which
are
his
Patents
,
some
by
Counsels
which
are
as
his
Statutes
,
and
Decrees
were
as
Iudgments
,
but
yet
none
of
them
had
ever
any
force
in
our
Law
,
nor
did
bind
us
in
England
more
then
voluntarily
retained
and
approved
by
usage
and
custom
,
for
as
it
is
said
in
11
H
4.
the
Pope
cannot
alter
the
Law
of
England
,
and
this
is
evident
,
for
in
all
cases
where
the
Bulls
or
Constitutions
of
the
Pope
crosse
the
Law
of
the
Land
,
they
have
alwaies
been
rejected
1
In
the
Bulls
which
are
of
four
sorts
.
1.
Of
Provision
.
2.
Of
Citation
.
3.
Of
Exemption
.
And
4.
Of
Excommunication
.
And
as
for
those
of
Excommunication
,
it
appeareth
that
it
was
Treason
at
Common
Law
,
and
that
the
Treasurer
did
kneel
to
E.
2.
for
one
who
brought
them
in
,
and
in
the
perpetuall
course
of
the
Books
afterwards
,
they
have
alwaies
been
disallowed
in
Pleas.
So
his
Bulls
of
Citation
,
before
the
Statute
of
Provision
was
a
hainous
offence
,
and
so
are
Bulls
of
Provision
and
Exemption
.
For
his
Canons
,
where
they
were
against
the
Law
they
were
neglected
.
It
appeareth
by
the
Canon
,
Quod
nullus
capiat
beneficium
a
Laico
,
and
yet
notwithstanding
continued
long
after
for
Benefices
,
and
does
yet
for
Bishopricks
,
that
the
Clergy
shall
take
them
from
the
King
and
a
lay-hand
:
And
also
there
is
a
Canon
for
exemption
of
Clarks
out
of
temporall
Iurisdiction
:
but
yet
as
Brain
saith
,
10
H.
7.
18.
it
was
never
observed
here
.
So
the
Canon
saith
,
that
the
time
of
the
Laps
shall
be
accounted
Per
septimanas
,
but
our
Law
not
regarding
this
,
saith
,
that
it
shall
be
accounted
Per
menses
in
the
Calender
,
as
it
is
expresly
adjudged
in
5
E.
3.
Rot.
100.
Rot.
claus
in
turri
:
And
there
is
a
great
reason
for
it
,
as
it
is
in
29
H.
3.
memb.
5.
in
turri
.
It
is
not
necessary
for
Bishops
of
England
to
go
to
generall
Councells
;
so
as
in
Parliament
those
that
do
not
●end
Knights
or
Burgesses
shall
not
be
bound
by
Statutes
.
And
the
Counsels
of
Lyons
,
of
Bigamis
,
&c.
are
expounded
by
Statutes
how
they
shal
be
taken
;
so
that
it
they
have
a
Priviledge
(
as
in
truth
they
have
)
by
the
Popes
Bulls
,
if
it
were
not
allowed
in
England
,
they
are
not
of
force
to
priviledge
them
against
the
Common
Law
of
the
Land
for
payment
of
Tithes
;
but
this
was
never
here
allowed
.
And
now
for
the
Prescription
this
cannot
help
them
,
for
Monks
are
not
of
Evangelicall
Priesthood
,
to
wit
capable
of
Tithes
in
the
Pernamy
,
but
meerly
Lay-men
,
and
then
as
the
Bishop
of
Winchesters
case
is
,
they
cannot
prescribe
in
non
decimando
;
And
Bede
saith
of
them
,
that
they
are
Merè
laici
,
so
that
if
their
Priviledge
were
allowed
,
their
Prescription
will
not
help
them
.
The
priviledge
of
Praemonstratenses
was
by
the
Counsell
generall
of
for
their
discharge
,
which
denies
that
all
religious
persons
should
be
discharged
of
Tithes
of
Lands
in
their
own
hands
,
Quamdiu
,
&c.
But
afterwards
Adrian
restrained
it
to
Templars
,
Hospitalars
,
and
Cistertians
,
omitting
the
Praemonstratenses
;
and
the
decree
of
Adrian
was
received
also
,
wherby
the
Law
took
notice
of
the
discharge
of
the
said
three
Orders
.
True
it
is
,
that
the
Praemonstratenses
have
a
Bull
of
Pope
Innocent
the
third
,
of
discharge
,
and
as
large
liberties
as
the
Cistertians
,
but
they
never
put
this
in
ure
:
And
it
seems
,
1.
That
there
were
of
them
29.
Abbots
&
Abbys
,
and
yet
their
priviledge
is
not
mentioned
in
all
the
Books
as
the
Cistertians
is
.
2.
They
complained
to
Gregory
the
nineth
,
that
they
were
not
suffered
to
put
it
in
ure
,
and
notwithstanding
this
complaint
and
command
of
the
Pope
to
the
Clergy
to
allow
them
this
priviledge
,
yet
24
H.
3.
Complaint
was
made
against
them
in
Parliament
for
claiming
this
priviledge
:
But
the
Statute
of
2
H.
4.
cap.
4.
put
this
cut
of
doubt
,
for
this
put
the
Cistertians
in
a
premunire
,
for
purchasing
and
putting
in
execution
Bulls
of
exemption
of
their
Lands
purchased
afterwards
.
Now
if
the
Praemonstratenses
had
the
same
priviledge
they
should
not
have
been
omitted
●ut
of
this
Statute
;
then
comes
the
Statute
of
7
H.
4.
cap.
6.
which
terrifies
all
from
putting
in
execution
Bulls
of
Exemption
of
their
Lands
not
put
in
execution
before
,
upon
which
it
is
not
to
be
presumed
that
it
was
put
in
execution
afterwards
.
But
admit
that
the
Praemonstratenses
had
this
priviledge
:
I
say
,
that
the
Plaintiff
hath
not
applied
this
priviledge
to
himself
,
for
he
hath
not
averred
in
fact
that
at
the
time
&c.
Propriis
manibus
excolebat
,
nec
ad
firman
demit●ebat
;
And
this
he
ought
to
have
done
if
he
would
take
advantage
of
the
priviledge
,
as
in
Dickensons
case
,
Novel
lib.
intr.
542.
there
it
is
expresly
alledged
in
the
like
case
,
as
ours
is
here
,
and
where
the
same
priviledge
as
here
is
claimed
,
Quod
manibus
propriis
excolebat
.
True
it
is
that
it
is
said
here
,
that
after
the
Feoffment
to
him
made
,
he
was
seised
Et
gavisus
fuit
in
propria
manutenor
,
but
he
doth
not
say
,
that
at
the
time
of
the
Tithes
due
,
gavisus
fuit
,
&c.
as
he
ought
expresly
to
have
done
,
as
appeareth
by
other
cases
.
If
one
prescribe
to
have
common
in
arable
Land
when
the
Corn
is
reaped
,
or
in
Meadow
where
the
Hay
is
carried
away
,
and
justifie
by
reason
therof
he
ought
to
aver
that
the
Corn
or
Hay
was
carried
away
when
he
put
in
his
Cattell
,
otherwise
he
hath
not
applied
the
prescription
to
himself
.
So
if
one
justifie
for
Common
Quandocunque
audia
sua
jerint
,
he
ought
to
aver
that
his
Cattell
then
went
in
the
place
where
,
&c.
as
17
Ass.
7.
So
if
the
King
pardon
all
but
those
who
adhere
to
M.
he
who
plead
it
ought
to
aver
that
he
did
not
adhere
to
M.
so
here
the
priviledge
is
Quamdiu
propriis
manibus
,
&c.
and
therfore
at
the
time
he
ought
to
aver
that
he
had
it
propriis
manibus
,
&c.
Also
where
upon
the
surrender
to
H.
8.
and
the
Statute
,
they
conclude
that
the
Queen
held
it
discharged
,
this
cannot
be
,
for
this
ought
to
be
in
such
manner
as
the
Abbot
held
it
discharged
,
but
this
was
quamdiu
,
&c.
and
the
King
cannot
be
bound
to
such
an
unbeseeming
condition
,
and
therfore
he
shall
hold
it
disch●rged
:
Like
to
the
case
where
the
Abbey
hath
the
presentation
,
and
another
the
nomination
,
the
Abbey
surrender
,
he
who
hath
the
nomination
shall
have
all
,
for
the
King
shall
not
present
for
him
,
it
being
a
thing
undecent
for
his
Majesty
,
and
so
he
concluded
for
the
Defendant
.
Banks
contra
.
1.
That
it
is
a
good
cause
of
Prohibition
.
2.
That
it
is
well
applied
to
us
.
1.
That
the
order
of
Praemonstratenses
is
discharged
of
Tithes
,
that
they
had
once
this
priviledge
,
hath
been
allowed
by
the
other
party
,
by
the
Bulls
of
the
Pope
,
and
that
it
was
allowed
and
taken
notice
of
,
he
proved
by
this
that
this
Bull
was
confirmed
by
King
John
in
the
24.
year
of
his
Raign
,
the
Charter
wherof
he
said
he
had
under
Seal
,
and
22
E.
1.
membran.
5.
there
were
26.
Abbeys
of
this
order
,
and
the
King
took
them
all
into
his
protection
with
their
Immunities
,
and
22
Rich.
2.
John
de
Gant
having
Jura
Regalia
in
Lancashire
(
where
the
Abbey
is
)
confirmed
to
them
this
Bull
,
and
also
this
hath
been
divers
times
allowed
and
decreed
to
them
in
Court
Christian
for
suit
of
Tithes
,
as
in
the
case
of
the
Abbey
of
Bigham
which
was
of
the
same
order
.
And
as
to
that
which
was
objected
,
that
if
the
Praemonstratenses
had
such
a
priviledge
as
the
Castertians
in
2
H.
4.
that
the
like
provision
would
have
been
against
them
.
As
to
this
I
answer
,
that
such
a
provision
is
not
against
the
Templars
nor
Hospitalars
,
and
yet
they
have
such
a
priviledge
.
2.
It
may
be
that
they
never
enlarged
their
priviledged
above
their
grant
.
And
for
the
Statute
of
7
H.
4.
our
Priviledge
was
not
then
new
,
and
it
was
afterwards
allowed
in
22
R.
2.
And
also
I
conceive
,
that
if
the
Abbey
were
discharged
at
the
time
of
the
dissolution
,
although
not
De
jure
,
yet
this
is
a
sufficient
discharge
within
the
Statute
of
31
H.
8.
as
it
is
taken
Co.
lib.
11.
14.
2.
I
hold
that
they
may
here
prescribe
to
be
discharged
of
Tithes
,
because
they
are
Spiritual
persons
,
and
capable
of
cure
of
Souls
,
and
capable
of
tithes
in
Pernamy
,
as
if
an
Appropriation
be
made
to
them
.
3.
It
is
not
now
to
be
argued
,
whether
they
have
such
a
priviledge
,
for
they
have
demurred
,
which
is
a
confession
of
all
matters
in
Fait
,
&c.
4.
If
there
be
a
matter
wherupon
the
Prohibition
may
be
grounded
it
will
serve
,
vide
Dyer
170
,
171.
Co.
lib.
11.
10.
And
5.
The
priviledge
is
well
applied
,
because
it
is
shewn
that
they
were
once
discharged
.
6.
He
needs
not
to
shew
how
he
is
discharged
,
22
E.
4.
4.
5
E.
4.
8.
20
E.
4.
15.
Also
the
discharges
are
temps
dont
,
&c.
and
therfore
not
pleadable
;
so
he
prayed
that
the
Prohibition
might
stand
.
Pasch.
1.
Car.
In
the
Kings
Bench.
Bowry
versus
Wallington
.
NOte
that
in
this
case
upon
the
Statute
of
50
E.
3.
4.
it
was
agreed
by
the
Court
,
that
if
there
be
a
Suit
in
the
Ecclestasticall
Court
,
and
a
Prohibition
awarded
,
and
afterwards
Consultation
granted
,
that
upon
the
same
Libell
no
Prohibition
shall
be
granted
again
,
but
if
there
be
an
Appeal
in
this
case
then
a
Prohibition
may
be
granted
,
but
with
these
differences
.
1.
If
he
who
appeals
pray
the
Prohibition
,
there
he
shall
not
have
it
;
for
then
Suits
shall
be
deferred
in
infinitum
,
in
the
Ecclesiasticall
Courts
.
2.
If
the
Prohibition
and
Consultation
were
upon
the
body
of
the
matter
and
the
substance
of
it
,
for
otherwise
he
shall
be
put
many
times
to
try
the
same
matter
,
which
is
full
of
vexation
.
And
the
case
was
moved
again
,
and
argued
by
Noy
,
which
was
thus
.
Wallington
livelled
in
the
Ecclesiasticall
Court
against
Bowry
for
tithes
of
Wool
and
Lamb
,
and
Bowry
upon
suggestion
of
a
Modus
derimandi
obtained
a
Prohibition
,
and
had
an
Attachment
,
and
declared
upon
it
,
and
are
at
Issue
upon
the
Modus
,
which
is
found
for
the
Defendant
,
and
Consultation
granted
,
wherupon
Iudgment
was
given
in
the
Ecclesiasticall
Court
against
Bowry
,
upon
which
Bowry
appealled
,
and
prayed
a
new
Prohibition
,
and
had
it
,
and
Noy
moved
for
a
Consultation
.
1.
Because
that
a
Prohibition
and
an
Attachment
upon
it
are
but
one
Suit
,
for
the
contempt
of
the
party
in
bringing
his
Suit
in
another
Court
,
and
translating
this
from
the
Kings
Court
,
and
when
it
is
once
tried
for
the
Defendant
,
the
same
thing
shall
not
be
tried
again
.
And
as
to
the
Statute
of
50
E
3.
4.
upon
the
mistake
wherof
the
mistake
is
raised
,
he
confessed
that
the
Printed
Books
,
and
also
in
the
Extract
of
the
Parliament
,
one
Roll
remaining
in
the
Tower
is
(
the
same
Iudge
)
but
the
Parliament
Roll
it self
,
and
the
Petition
is
,
Liceatque
Iudici
Ecclesiastico
sive
diocess
.
eidem
an
hujusmodi
,
and
the
answer
to
the
Petition
is
,
one
Consultation
granted
sufficeth
in
this
case
:
And
the
Parliament
Roll
it self
was
brought
into
the
Court
and
viewed
,
but
he
said
,
that
if
it
were
as
it
is
in
the
printed
Book
and
Extract
,
the
same
Iudge
shall
not
be
intended
the
same
personall
Iudge
,
but
the
same
Iudge
of
Conusance
of
the
same
Iurisdiction
or
cause
,
for
otherwise
,
if
another
Commissary
be
made
,
as
the
Bishop
may
when
he
will
,
his
Successor
may
be
newly
prohibited
,
and
also
one
thing
may
be
infinitely
tried
,
for
in
many
places
the
Suit
begins
in
the
Arch-deacons
Court
,
and
from
him
an
Appeal
may
be
brought
to
the
Bishop
.
The
same
Term
in
the
Kings
Bench.
Pack
versus
Methold
in
a
Writ
of
Error
.
IN
Mich.
Term
,
22
Jac.
Methold
brought
an
action
upon
the
case
in
the
Common
Pleas
against
Pack
,
and
declared
that
in
consideration
that
the
Plaintiff
would
pay
to
Playford
52
l.
14
s.
to
the
use
of
the
said
Pack
,
such
a
day
,
&c.
Pack
promised
to
deliver
to
him
his
Bond
(
in
which
he
was
bound
to
him
in
the
said
summ
)
when
he
should
be
therunto
requested
:
And
shews
that
he
had
paid
,
&c.
and
the
Defendant
did
not
deliver
to
him
the
Bond
,
albeit
the
same
to
do
he
was
afterwards
often
times
requested
,
and
upon
non
assumpsit
pleaded
,
it
was
found
for
the
Plaintiff
,
and
now
it
was
moved
in
Arrest
of
Iudgment
,
because
the
request
is
not
laid
specially
,
nor
the
day
nor
place
therof
expressed
.
But
the
Court
,
to
wit
,
Hobart
chief
Iustice
,
Hutton
and
Harvey
gave
Iudgment
for
the
Plaintiff
,
and
yet
they
agreed
,
that
if
he
had
demurred
upon
the
Declaration
,
it
had
not
been
good
,
and
also
that
if
it
had
been
generall
,
Licet
saepius
requisit
,
it
had
not
been
good
,
in
as
much
as
it
is
parcell
of
the
promise
,
and
therfore
ought
to
be
said
substantially
;
viz.
That
it
was
after
the
promise
and
payment
of
the
52
l.
but
the
time
is
supplied
by
these
words
Postea
,
and
there
is
no
defect
but
in
the
place
,
and
(
Postea
)
implies
that
it
was
after
the
promise
and
payment
.
And
Hobart
said
,
that
all
the
points
of
the
Declaration
which
have
matter
and
substance
are
good
,
only
there
wants
the
place
where
the
request
was
made
,
which
by
the
Issue
is
moved
,
and
the
request
is
here
well
notified
to
the
Court
,
and
the
defect
of
the
place
is
now
helped
by
the
Statute
.
Hutton
said
,
that
if
the
promise
had
been
to
pay
so
much
upon
request
at
Easter
,
there
the
day
ought
to
have
been
shewn
,
and
(
Postea
)
had
not
been
sufficient
,
but
here
the
Postea
refers
only
to
a
thing
wherby
it
is
certain
;
and
he
said
,
that
upon
this
Issue
such
a
request
shall
be
given
in
evidence
.
Harvey
said
,
that
the
request
being
here
laid
as
it
is
,
the
Court
may
well
give
Iudgment
:
And
it
seemed
to
Hobart
that
such
a
request
cannot
be
given
in
evidence
where
the
Issue
is
upon
an
Assumpsit
:
And
Iudgment
was
given
for
the
Plaintiff
;
and
afterwards
a
Writ
of
Error
,
Hill.
1.
Car.
Jones
Iustice
remembred
divers
Presidents
in
the
point
,
and
further
day
was
given
to
bring
in
Presidents
of
either
side
,
and
two
Presidents
were
produced
according
to
the
opinion
of
this
Court
,
Scil.
Pasch.
30
Eliz.
Rot.
464.
in
1.
Court
,
Old
and
Estgreens
case
,
Trin
,
16
Jac.
Rot.
268.
Wales
case
.
But
in
Debt
Licet
saepius
requisit
is
sufficient
,
for
it
is
not
materiall
nor
traversable
,
for
the
bringing
of
the
action
of
Debt
(
which
is
a
Precipe
)
is
a
sufficient
demand
in
it self
,
and
afterwards
at
another
day
the
Court
continued
of
the
same
opinion
,
and
therfore
the
Plaintiff
in
the
first
action
brought
a
new
action
,
Quod
nota
,
for
albeit
the
Defendant
had
pleaded
non
assumpsit
,
and
Issue
was
joyned
upon
it
,
yet
this
did
not
amend
the
evill
laying
of
the
request
,
according
to
the
Presidents
abovesaid
.
Pasch.
2
Car.
In
the
Kings
Bench
,
in
t
.
Hill
,
1
Car.
Rot.
135.
Constable
versus
Clobery
.
IN
an
action
of
Covenant
,
the
question
was
upon
the
Traverse
;
the
Plaintiff
declared
upon
the
Indenture
of
Covenant
,
and
the
Covenant
was
that
a
Ship
shall
go
with
the
next
fair
wind
,
and
that
the
Merchant
shall
pay
so
much
for
fraught
:
the
Defendant
saith
by
way
of
traverse
,
that
he
did
not
go
with
the
next
wind
,
and
it
was
obiected
by
Stone
of
the
Temple
,
of
Counsell
with
the
Plaintiff
,
that
the
Traverse
was
not
good
,
but
he
ought
to
have
traversed
that
the
Ship
did
not
go
at
all
,
for
that
which
is
materiall
shall
be
traversed
,
and
that
the
Ship
did
not
go
is
the
most
materiall
thing
here
,
and
this
appeareth
by
15
E.
4.
2.
where
a
Gift
in
tail
is
traversed
,
and
not
the
death
of
the
Tenant
in
tail
,
19
H.
8.
7.
36
H.
6.
16.
2
H.
5.
2.
2
H.
7.
12.
and
there
are
cases
to
this
purpose
,
Co.
lib.
7.
9.
Ughtreds
case
:
If
a
man
intitles
himself
to
Land
by
an
Estate
which
cometh
by
Condition
,
he
ought
to
shew
that
the
Condition
is
performed
:
A
Covenant
against
a
Covenant
will
not
make
an
Estoppell
,
but
he
shall
bring
his
action
,
3
H.
6.
33.
Where
he
ought
to
shew
that
he
went
to
Rome
,
because
it
is
a
precedent
Condition
:
The
principall
case
in
Ughtreds
case
prove
other
,
to
wit
,
that
which
is
materiall
is
alledgable
:
And
the
difference
upon
the
case
of
48
E.
3.
3.
4.
Where
A.
Covenant
with
B.
to
serve
him
with
three
Esquires
in
France
,
and
B.
covenant
for
it
to
pay
him
42.
marks
,
he
may
chuse
to
covenant
in
generall
or
speciall
,
as
he
will
,
for
there
was
Covenant
against
Covenant
,
and
here
there
is
a
Covenant
of
one
part
to
go
with
the
Ship
,
and
on
the
other
part
to
pay
so
much
for
the
Fraught
,
and
so
Covenant
against
Covenant
.
And
it
seemed
to
Doderidge
Iustice
,
that
the
Traverse
is
not
good
,
for
the
Traverse
here
is
by
permission
of
God
.
And
for
another
thing
where
Merchants
covenant
to
pay
joyntly
and
severally
,
according
to
the
quantity
of
the
Wares
,
there
an
action
of
Covenant
may
be
brought
against
one
alone
,
for
the
Deed
is
severall
.
And
by
Crew
chief
Iustice
,
it
cannot
be
a
good
Traverse
,
for
a
circumstance
cannot
be
traversed
,
for
wind
is
alterable
,
and
a
thing
materiall
is
only
traversable
,
and
here
the
Covenant
is
severall
for
their
severall
Fraughts
,
and
it
may
be
that
others
have
paid
him
.
Jones
Iustice
,
the
traverse
is
not
good
;
and
for
the
other
matter
he
cited
Mattheusens
case
,
Co.
lib.
5.
22.
Where
upon
a
Charter
party
if
one
seal
be
broken
all
is
gone
.
If
three
are
bound
ioyntly
,
and
an
action
is
brought
against
one
,
and
it
appeareth
that
others
have
sealed
,
the
Writ
shall
abate
:
But
in
this
case
an
action
lies
against
him
alone
,
although
the
other
be
named
in
the
Indenture
.
The
same
Term
in
the
same
Court
,
intr
.
Hill
.
22.
Jac.
Rot.
1019.
Millen
versus
Fandrye
.
AN
action
of
trespasse
was
brought
for
chasing
of
Sheep
,
the
Defendant
pleaded
that
they
were
trespassing
upon
certain
land
,
and
he
with
a
little
Dog
chased
them
out
,
and
as
soon
as
the
Sheep
were
cut
of
the
land
he
called
in
his
Dog
,
and
upon
this
the
Plaintiff
demurred
;
The
point
singly
was
but
thus
;
J
chase
the
Sheep
of
another
out
of
my
ground
,
and
the
Dog
pursues
them
into
another
mans
land
next
adjoyning
,
and
J
chide
my
Dog
,
Co.
lib.
4.
38.
b.
that
a
man
may
hunt
Cattell
out
of
his
ground
with
a
Dog
,
but
cannot
exceed
his
authority
,
and
by
him
an
authority
in
Law
which
is
abused
is
void
in
all
,
and
to
hunt
them
into
the
next
ground
is
not
justifiable
.
The
Books
differ
,
if
Cattell
stray
out
of
the
high
way
involuntarily
,
whether
Trespasse
lies
,
7
H.
7.
2.
and
H.
7.
20.
but
all
agree
,
that
they
ought
to
be
chased
out
as
hastily
as
may
be
.
Littleton
argued
for
the
Defendant
,
that
Cattell
may
be
chased
out
into
another
mans
ground
,
and
he
said
that
a
man
cannot
have
such
a
power
upon
his
Dog
as
to
recall
him
when
he
pleaseth
,
and
a
Dog
is
ignorant
of
the
bounds
of
Land
,
and
he
resembled
this
case
to
other
cases
of
the
Law
;
first
to
21
E.
4.
64.
In
Trespasse
of
Cattell
taken
in
A.
in
D.
the
Defendant
saith
,
that
he
was
seised
of
four
acres
called
C.
in
D.
and
found
the
Cattell
there
Damage
feasant
,
and
chased
them
towards
the
Pound
,
and
they
escaped
from
him
and
went
into
A.
and
he
presently
retook
them
,
which
is
the
same
Trespasse
,
and
admitted
for
a
good
plea
:
and
22
E.
4.
8.
In
trespasse
the
Defendant
justifies
by
reason
of
a
custom
that
they
which
plow
may
turn
their
Plow
upon
the
Land
of
another
,
and
that
for
necessity
,
and
it
was
allowed
for
a
good
justification
,
and
he
hath
more
government
of
his
Oxen
,
then
in
our
case
he
can
have
of
his
Dog
.
If
a
man
be
making
of
a
lawfull
Chase
,
and
cannot
do
it
without
damage
to
another
,
this
is
Damnum
absque
injuria
,
21
H.
7.
28.
And
he
cited
a
case
which
was
in
Mich.
18
Jac.
between
Jenning
and
Maystore
,
where
a
man
of
necessity
chased
Sheep
for
taking
one
of
his
own
,
in
trespasse
he
may
justifie
it
:
And
also
if
a
Dog
goes
into
the
Land
of
another
(
as
in
this
case
)
trespasse
does
not
lye
,
but
otherwise
it
is
of
Cattell
.
Crew
chief
Iustice
,
it
seems
to
me
that
he
might
drive
the
Sheep
out
with
the
Dog
,
and
he
cold
not
withdraw
his
Dog
when
he
would
in
an
instant
,
and
therfore
it
is
not
like
to
the
case
of
38
E.
3.
Where
trespasse
was
brought
for
entring
into
a
Warren
,
and
there
it
was
pleaded
that
there
was
a
Pheasant
in
his
Land
,
and
his
Hawk
flew
and
followed
it
into
the
Plaintiffs
ground
,
and
there
it
seems
that
it
is
not
a
good
justification
,
for
he
may
pursue
the
Hawk
,
but
cannot
take
the
Pheasant
,
6
E.
4.
a
man
cuts
Thorns
,
and
they
fell
into
another
mans
Land
,
and
in
tresgasse
he
justified
for
it
;
and
the
opinion
was
,
that
notwithstanding
this
justification
trespasse
lies
,
because
he
did
not
plead
that
he
did
his
best
endeavour
to
hinder
their
falling
there
,
yet
this
was
a
hard
case
;
But
this
case
is
not
like
to
these
cases
,
for
here
it
was
lawfull
to
chase
them
out
of
his
own
Land
,
and
he
did
his
best
endeavour
to
recall
the
Dog
,
and
therfore
trespasse
does
not
lye
.
Doderidge
Iustice
agreed
,
for
here
was
no
hedge
,
and
when
he
saw
them
out
of
his
own
ground
,
he
rated
the
Dog
,
12
H.
8.
this
difference
is
taken
,
if
I
see
Sheep
in
my
Land
,
I
may
chase
them
out
,
but
if
another
sees
them
and
chase
them
out
,
I
may
have
trespasse
against
him
,
because
he
hath
taken
away
A
man
is
driving
Goods
through
a
Town
,
and
one
of
them
goes
into
another
mans
house
,
and
he
follows
him
,
trespasse
doth
not
lye
for
this
,
because
it
was
involuntary
,
and
a
trespasse
ought
to
be
done
voluntarily
,
and
so
it
is
Injuria
,
and
a
hurt
to
another
,
and
so
it
is
Damnum
.
If
Deer
be
out
of
a
Forest
,
the
Owner
of
the
Land
where
they
are
may
hunt
them
,
and
if
the
Deer
flye
to
the
Forest
,
and
the
Hounds
pursue
him
,
then
he
ought
to
call
in
the
Dogs
,
and
so
I
may
justifie
,
and
trespasse
lies
not
.
In
the
time
of
chief
Iustice
Popham
,
this
case
was
adjudged
in
this
Court
.
Trespasse
was
brought
for
hunting
and
breaking
of
hedges
,
and
the
case
was
,
that
a
man
started
a
Fox
in
his
own
land
,
and
his
Hounds
pursued
him
into
another
mans
Lands
,
and
it
was
holden
that
he
may
hunt
and
pursue
him
into
any
mans
land
,
because
a
Fox
is
a
noysom
creature
to
the
Common-wealth
.
Bracton
saith
,
that
when
a
man
is
outlawed
he
hath
Caput
lupinum
,
and
he
may
be
hunted
through
all
the
County
:
And
he
agreed
the
case
of
8
E.
4.
If
a
Tree
grow
in
a
hedge
,
and
the
Fruit
fall
into
another
mans
land
,
the
Owner
may
fetch
it
in
the
other
mans
land
,
and
he
also
agreed
the
case
of
22
E.
48.
of
the
Plew
,
and
so
concluded
that
the
trespasse
doth
not
lye
.
Jones
Iustice
,
that
the
trespasse
doth
not
lye
,
vide
Co.
lib.
8.
67.
Crogates
case
,
and
lib.
4.
Terringhams
case
,
and
he
cannot
recall
his
Dog
in
an
instant
:
And
the
same
day
Iudgment
was
given
for
the
Defendant
,
Quod
quaerens
nil
capiat
per
billam
.
The
same
Term
in
the
same
Court.
Marsh
versus
Newman
.
IN
a
Replevin
the
Defendant
pleaded
that
was
seised
In
jure
Collegii
,
and
doth
not
say
,
that
he
was
in
Dominico
suo
ut
de
foedo
,
and
the
Plaintiff
demurred
upon
the
Avowry
.
And
Andrews
argued
for
the
Plaintiff
.
1.
The
Defendant
ought
to
have
alleadged
certainly
that
they
were
seised
in
Fee
;
for
Littleton
saith
,
that
in
Counts
and
pleadings
a
man
ought
to
shew
how
he
is
seised
,
8
E.
3.
55.
13
Eliz.
Dyer
.
299.
Pl.
31.
An
Inquisition
was
found
upon
an
extent
of
a
Statute-merchant
,
and
doth
not
shew
how
the
Conusor
was
seised
,
but
only
that
he
was
seised
,
and
the
Inquisition
holden
void
.
But
it
may
be
objected
,
that
if
Land
be
given
to
a
Dean
and
Chapiter
that
they
have
fee
,
11
H.
7.
12.
I
confesse
it
:
But
the
constant
use
of
pleading
hath
alwais
been
in
case
of
a
Bishop
,
Colledge
,
&c.
to
say
,
that
they
were
seised
in
Fee
,
as
appears
in
Hill
and
Granges
case
,
and
Co.
lib.
6.
the
Dean
and
Chapiter
of
Worcesters
case
,
and
Co.
lib.
11.
66.
Magdalen
Colledge
case
;
and
it
appeareth
by
20
H.
7.
in
the
Abbey
of
S.
Austins
case
,
that
an
Abbey
may
have
a
Lease
Prae
auter
vie
,
and
so
perhaps
here
the
Dean
had
a
Lease
but
Prae
auter
vie
,
and
therfore
ought
to
have
alledged
that
he
was
seised
in
Fee
,
if
the
truth
were
so
.
And
he
moved
other
exceptions
,
as
1.
That
the
Defendant
intitled
himself
to
a
Lease
as
Executor
,
and
doth
not
plead
Literas
testamentarias
.
2.
That
the
Defendant
entitles
himself
to
a
Rent
,
part
of
which
was
due
in
the
time
of
the
Testator
,
and
part
in
his
own
time
,
and
doth
not
shew
when
the
Testator
died
,
and
therfore
the
Avowry
not
good
.
Jermy
for
the
Defendant
that
the
Avowry
is
good
,
and
it
cannot
be
otherwise
intended
but
that
they
are
seised
in
Fee
,
11
H.
7.
Lands
given
to
a
Major
and
Comminalty
is
Fee-simple
,
but
otherwise
of
an
Abbot
and
Parson
,
Plow.
103.
and
Dyer
103.
A
Seisin
in
Fee
is
implied
by
Seisin
In
jure
Collegii
;
and
because
it
hath
been
objected
that
he
may
be
seised
Prae
auter
vie
,
this
is
but
a
forraign
intendment
,
for
a
Fee
is
alwaies
intended
Seisin
in
Fee-simple
.
For
the
second
objection
,
because
Non
profert
literas
testament
,
true
it
is
if
he
entitle
himself
meerly
as
Executor
,
he
ought
to
bring
in
Literas
testamentar
.
but
our
case
is
not
so
,
for
here
we
are
Defendants
,
and
we
endeavour
only
to
excuse
a
Tort
,
36
H.
6.
36.
Where
a
man
is
Plaintiff
he
ought
to
show
Literas
testamentar
.
that
so
the
Court
may
see
that
he
hath
cause
of
action
,
but
here
it
is
only
by
way
of
excuse
.
For
the
third
,
that
the
death
of
the
Testator
doth
not
appear
is
not
materiall
,
for
if
any
part
be
due
to
him
,
it
is
due
as
Executor
.
Doderidge
,
they
ought
to
have
pleaded
that
they
were
seised
in
Fee
;
true
it
is
,
that
Land
given
to
a
Major
and
Comminalty
is
Fee-simple
,
and
the
reason
is
because
they
are
perpetuall
,
and
if
the
Estate
be
not
limitted
they
shall
take
according
to
their
continuance
,
11
H.
4.
11
H.
7.
and
27
H.
8
Dockrayes
case
,
they
may
be
seised
Prae
terme
dauter
vie
,
but
if
they
had
pleaded
that
they
were
seised
to
them
and
their
Successors
,
this
pleading
is
good
,
Prima
facie
,
17
E.
3.
1.
Crew
chief
Iustice
,
all
the
authorities
are
that
ther
were
seised
in
Fee
,
Injure
Collegii
,
and
it
is
good
to
admit
a
new
way
of
pleading
.
Jones
Iustice
,
Tenant
Prae
auter
vie
makes
a
Lease
for
years
,
and
cestui
que
use
,
dies
,
he
cannot
have
an
action
of
Debt
against
Lessee
for
years
,
for
years
,
for
he
is
now
Tenant
at
sufferance
.
But
for
the
first
point
,
it
seems
to
him
that
the
pleading
is
not
good
,
for
although
in
point
of
Creation
,
they
take
a
Fee
by
a
Gift
to
Dean
and
Chapiter
,
yet
in
pleading
they
ought
to
alledge
their
Estate
specially
,
for
they
may
have
an
Estate
Prae
auter
vie
:
And
this
is
in
an
Avowry
which
shall
be
taken
strickly
.
And
by
Crew
chief
Iustice
,
the
Defendant
here
ought
to
shew
Literas
testamentar
.
for
he
is
an
especiall
Actor
in
the
Avowry
.
And
by
Doderidge
,
Longissimum
vitae
tempus
est
100.
years
,
Co.
lib.
10
50.
Lampets
case
,
and
therfore
in
pleading
,
if
the
Defendant
had
said
,
that
a
Dean
and
Chapiter
were
seised
,
and
made
a
Lease
for
200.
years
,
this
implies
a
Seisin
in
Fee
,
because
a
man
cannot
have
so
long
a
life
,
but
here
the
Lease
is
but
for
89.
years
,
and
it
is
common
to
let
for
89.
years
,
if
A.
shall
so
long
live
,
yet
this
is
but
a
slip
,
and
the
Title
is
apparant
.
The
same
Term
in
the
same
Court.
Hodges
versus
Moore
.
IN
Debt
for
marriage
money
,
the
case
was
this
:
A
man
was
bound
to
Hedges
to
pay
him
a
1000
l.
after
that
he
had
married
his
Daughter
,
and
afterwards
he
married
her
,
and
brought
Debt
upon
this
Obligation
,
and
it
was
not
averred
that
he
had
given
notice
to
him
of
the
marriage
,
but
demanded
the
money
:
And
this
was
moved
by
Noy
in
Arrest
of
Iudgment
(
but
quaere
if
request
afterwards
doth
not
implynetice
.
)
And
Doderidge
Iustice
put
this
case
,
A
man
is
bound
to
pay
a
100
l.
two
And
Serjeant
Davies
argued
for
the
Plaintiff
,
that
there
need
not
precise
notice
to
be
given
,
and
he
cited
1
H.
7.
18
E.
4.
and
Co.
lib.
8.
Where
the
Obligor
shall
take
notice
at
his
perill
,
and
so
here
because
he
takes
upon
him
●or
to
pay
it
:
And
it
was
said
,
that
one
Blackamores
case
was
adjudged
in
the
point
,
and
he
conceived
also
that
this
request
afterwards
is
a
sufficient
notice
.
But
Noy
for
the
Defendant
said
,
that
he
ought
to
give
notice
,
or
otherwise
this
mischief
would
ensue
,
that
if
he
had
not
married
her
,
and
yet
had
demanded
the
money
he
ought
to
pay
it
:
and
he
said
,
that
where
an
act
is
to
be
done
by
a
stranger
,
the
Plaintiff
or
Defendant
ought
to
take
notice
therof
at
his
perill
,
as
the
case
E.
4.
where
a
man
was
bound
to
stand
to
the
Award
of
I.
C.
he
ought
to
take
notice
of
the
Award
at
his
perill
:
but
where
it
lies
properly
in
the
Conusance
and
notice
of
the
Plaintiff
,
there
he
ought
to
give
notice
therof
to
the
Defendant
,
Co.
lib.
5.
Mallories
case
:
If
a
Reversion
be
bargained
and
sold
to
J.
S.
the
Bargainee
shall
have
the
Rent
without
Attornment
;
but
if
a
penalty
be
to
be
forfeited
,
he
ought
to
give
notice
to
the
particular
Tenant
of
the
Grant
,
or
otherwise
he
shall
not
take
advantage
therof
:
and
he
cited
a
case
which
was
in
17
Eliz.
Stephen
Gurneys
case
;
Lessee
for
years
,
the
Reversion
is
granted
over
for
years
by
way
of
future
Interest
,
to
begin
upon
the
death
,
forfeiture
,
or
determination
of
the
first
Lease
;
provided
that
if
the
Rent
upon
the
second
Lease
be
arrear
,
that
the
Lessor
may
enter
;
the
first
Lessee
surrender
,
a
Rent-day
incur
,
the
second
Lessee
doth
not
pay
the
Rent
,
the
Lessor
shall
not
enter
for
a
Forfeiture
,
because
the
first
Lease
determined
by
an
act
which
lies
properly
in
the
Conusance
of
the
Lessor
,
and
because
he
was
to
take
advantage
by
it
,
he
ought
to
have
given
notice
therof
to
the
Lessee
,
and
here
he
might
have
well
given
notice
to
the
Defendant
,
for
it
lies
properly
in
the
Conusance
of
the
Plaintiff
.
The
second
Objection
was
,
that
here
was
an
implied
notice
,
because
the
Marriage
was
at
the
instance
of
the
Defendant
,
which
implies
a
notice
.
Vnder
favour
,
this
is
no
notice
,
for
this
is
before
the
marriage
,
but
if
no
notice
be
given
after
the
marriage
,
then
there
is
no
notice
.
But
by
Serjeant
Davies
,
there
is
a
sufficient
implication
,
and
there
is
no
need
of
notice
in
our
case
;
and
see
Co.
lib.
8.
Francis
his
case
,
where
they
ought
to
take
notice
at
their
perill
,
and
a
marriage
is
an
Ecclesiasticall
Iudgment
of
which
he
ought
to
take
notice
,
and
he
was
interrupted
,
for
all
the
Iustices
went
to
the
Parliament
.
And
divers
Presidents
were
cited
,
that
there
need
no
notice
to
be
given
in
this
case
:
And
it
was
agreed
that
Iudgment
should
be
given
for
the
Plaintiff
:
And
in
Trinity
Term
next
following
,
Iudgment
was
accordingly
given
for
the
Plaintiff
.
The
same
Term
in
the
same
Court
.
Sir
George
Reynolls
Case
.
SIr
George
Reynoll
Marshall
of
the
Marshalsey
of
the
Kings
Bench
,
Doderidge
,
It
is
not
to
be
understood
by
this
Statute
that
a
Sheriff
,
Ga●ler
,
or
Marshall
shall
take
no
Bond
,
for
if
the
Marshall
hath
a
man
in
execucution
,
and
fear
that
he
will
escape
,
and
he
takes
Bond
of
him
,
this
Bond
is
good
.
Jones
,
The
intent
of
the
Statute
,
that
the
Sheriff
or
Marshall
shall
not
suffer
Prisoners
to
go
at
large
,
for
that
is
within
the
Statute
.
And
it
was
ruled
in
the
Kings
Bench
,
that
the
Marshalsey
should
be
enlarged
,
The
same
Term
in
the
same
Court
,
Sury
versus
Albon
Pigot
,
and
three
other
Defendants
,
Intr.
Hill
.
1.
Car.
Rot.
1.
24.
IN
an
action
upon
the
case
for
stopping
his
Water-course
,
the
Plaintiff
declares
that
14.
Octob.
22.
Jac.
he
was
possessed
of
the
Rectory
of
M.
in
Barkshire
,
of
which
a
Curtilage
was
parcell
,
and
that
in
this
Curtilage
is
and
hath
been
time
out
of
mind
a
watering
place
,
for
the
watering
of
the
Cattell
of
the
Plaintiff
and
others
,
and
for
other
necessary
uses
,
and
that
a
certain
Watercourse
had
time
out
of
mind
flowed
from
Mildford
stream
to
this
Curtilage
,
and
that
this
water
filled
the
said
Pond
;
and
further
that
the
Defendant
well
knowing
this
,
and
intending
to
dam
up
the
said
Watering-course
,
built
a
stone
Wall
therupon
wherby
the
Water-course
was
stopt
up
,
to
the
Plaintiffs
damage
of
20
l.
and
this
was
laid
with
a
Continuando
.
The
Defendant
plead
that
3
H.
8.
the
said
H.
8.
was
seised
of
the
Mannor
of
&c.
and
of
the
said
Rectory
in
his
Demesne
as
of
Fee
,
and
of
a
certain
peece
of
Land
called
the
Hopyard
lying
between
the
said
watering-place
and
the
said
stream
,
and
by
his
Letters
Patents
granted
this
to
Wiliam
Box
and
his
Heirs
,
by
virtue
wherof
he
was
seised
:
Francis
Searles
entred
upon
him
and
was
seised
,
and
enfeoffed
Pigot
,
20
Jac.
by
virtue
wherof
of
he
was
seised
,
&c.
and
the
three
others
justifie
as
Servants
to
Pigot
,
that
they
the
said
day
and
year
filled
up
the
said
Water-course
,
as
it
was
lawfull
for
them
to
do
;
and
And
by
Dorrell
for
the
Plaintiff
,
if
it
were
of
a
Common
,
it
is
cleer
,
that
it
is
destroyed
,
because
Common
ought
to
be
in
another
mans
Land
,
but
not
in
our
case
,
for
if
one
prescribe
to
have
Warren
,
if
he
purchase
the
Land
yet
he
shall
have
Warren
,
11
H.
7.
25.
there
are
two
houses
,
and
the
one
prescribe
that
the
other
shall
mend
the
Gutter
,
and
afterwards
they
come
to
the
hands
of
one
man
,
and
then
he
alien
one
of
them
,
this
unity
shall
destroy
the
mending
of
the
Gutter
.
Berd
for
the
Defendant
,
that
the
unity
hath
destroyed
the
custom
,
21
E.
3.
2.
A
way
is
but
an
easement
,
yet
by
the
purchase
of
the
Land
the
way
is
extinguished
,
and
also
the
watering-course
is
not
only
an
casement
but
a
profit
,
or
Prender
;
and
he
cited
Dyer
295.
in
case
of
an
Inclosure
,
that
the
Inclosure
is
extinguished
,
but
there
is
made
a
quaere
,
and
he
cited
38
Eliz.
in
C.
B.
an
opinion
,
that
by
purchase
of
a
Close
the
Inclosure
is
extinguished
;
a
fortiori
here
because
it
is
a
profit
:
And
for
the
case
of
11
H.
7.
it
is
by
the
custom
of
London
,
but
there
is
no
custom
in
our
case
,
and
the
case
of
a
Warren
is
not
like
to
our
case
,
because
a
man
may
have
Warren
in
his
own
Soil
;
And
in
Michaelmas
Term
next
the
case
was
argued
again
by
Barkesdale
for
the
Plaintiff
,
that
the
unity
of
possession
in
H.
8.
had
not
extinguished
the
Water-course
,
and
that
the
Terminus
ad
quem
,
and
the
Medium
also
being
in
one
,
had
not
distinguished
nor
destroyed
it
.
And
1
Col
lib.
4.
26.
Benedicta
est
expositio
quando
res
redimitur
a
distructione
;
The
Law
will
not
destroy
things
,
but
the
Law
will
somtimes
suffer
a
fiction
(
which
is
nothing
in
rerum
natura
)
ut
res
magis
valeat
.
I
confesse
that
profit
apprender
as
Common
,
or
Rent
is
extinguished
by
unity
of
possession
,
for
Common
it
appeareth
in
4
E.
3.
and
Co.
lib.
4.
Terringhams
case
:
And
for
Rent
it
appeareth
in
4
H.
4.
7.
and
in
21
E.
3.
2.
it
appeareth
that
a
way
is
extinguished
by
unity
of
possession
,
3
H.
6.
31.
Brook
Nusance
11.
for
it
is
repugnant
for
a
man
to
have
a
way
upon
his
own
Land
:
But
I
conceive
that
our
case
differs
from
the
case
of
a
way
,
and
that
for
this
reason
;
where
the
thing
hath
a
being
and
existence
,
notwithstanding
the
unity
there
it
is
not
destroyed
by
the
unity
,
but
the
Water-course
hath
a
being
notwithstanding
the
unity
,
ergo
,
&c.
I
will
prove
the
major
proposition
by
these
cases
,
35
H.
6.
55
,
56.
Where
a
Warren
is
not
extinct
by
a
Feoffment
of
the
Land
,
for
I
may
hawk
and
hunt
in
my
own
land
as
in
another
mans
,
so
the
Warren
hath
existence
,
notwithstanding
the
unity
,
Dyer
326.
Where
the
Queen
was
seised
of
Whaddon
Chase
,
and
the
Lord
Gray
was
Lievtenant
there
in
Fee
,
and
he
and
his
Ancestors
and
their
Keepers
had
by
prescription
used
to
hunt
wandring
Deer
in
the
Demesns
of
the
Mannor
of
S.
adjoyning
as
in
Purlieues
:
the
Mannor
of
S.
comes
into
the
Queens
hands
,
who
grants
this
to
Fortescue
in
Fee
,
with
free
Warren
within
the
Demesns
,
&c.
it
was
holden
that
the
unity
doth
not
extinguish
the
Purlieu
,
Dyer
295.
Two
Closes
adjoyn
,
the
one
by
prescription
is
bound
to
a
Fence
,
the
Owner
of
one
purchase
the
other
,
and
suffer
the
Hedges
to
decay
,
and
dies
,
leaving
two
Daughters
his
Heirs
,
who
make
partition
:
Quaere
whether
the
prescription
for
the
Inclosure
be
revived
;
true
it
is
that
it
is
made
a
quaere
,
but
he
saith
,
see
the
like
case
,
11
H.
7.
27.
of
a
Gutter
which
proves
our
case
,
as
I
will
shew
afterwards
.
For
the
Minor
proposition
that
the
watering
hath
being
,
notwithstanding
the
said
unity
,
I
will
prove
it
by
12
H.
7.
4.
A
Precipe
quod
reddat
of
Land
Aqua
Co-opert
,
Mich.
6.
Jac.
Challenor
and
Moores
case
.
An
Ejectione
firmae
,
was
brought
of
a
Watering-course
,
and
there
resolved
that
it
does
not
lye
of
it
,
because
it
is
not
firma
,
sed
currit
,
but
of
Terra
aqua
co-operta
,
it
doth
lye
.
Also
I
will
take
some
exceptions
to
the
Bar
,
there
is
no
Title
in
the
Bar
for
the
Defendant
Pigot
,
and
so
we
being
in
possession
,
albeit
in
truth
we
have
no
Title
,
yet
he
who
hath
no
Title
cannot
oust
us
,
neither
can
stop
the
said
Water-course
,
and
it
is
only
shewn
in
the
Bar
that
Searles
entred
and
enfeoffed
Pigot
,
but
for
any
thing
as
yet
appears
the
true
Owner
continued
in
possession
,
21
Jac.
C.
B.
Cook
against
Cook
in
a
Writ
of
Dower
,
the
Defendant
pleads
an
Entry
after
the
Darrein
continuance
,
and
doth
not
plead
that
he
ousted
him
,
and
upon
this
the
Plaintiff
Demurs
,
and
there
adjudged
that
it
is
no
plea
in
Bar
,
because
he
doth
not
say
,
that
the
Defendant
entred
and
ousted
the
Tenant
.
2.
Exception
,
the
action
is
brought
against
four
,
Scil.
Pigot
,
Cole
,
Branch
,
and
Elyman
;
and
Pigot
hath
conveyed
a
Title
from
Searles
,
the
three
other
Defendants
justifie
,
but
Pigot
doth
not
say
any
thing
but
that
Searles
enfeoffed
him
,
7
H.
6.
an
action
of
Wast
is
brought
against
many
,
one
answers
,
and
the
other
not
,
this
is
a
discontinuance
:
And
for
the
principall
matter
,
I
will
conclude
with
11
H.
7.
25.
Broo.
Extinguishment
60.
Two
have
Tenements
adjoyning
,
and
the
one
hath
a
Gutter
in
the
others
Land
,
and
afterwards
one
purchase
both
,
and
then
he
alien
one
to
one
,
and
another
to
another
,
the
Gutter
is
revived
notwithstanding
the
unity
,
because
it
is
very
necessary
,
and
so
he
prayed
Iudgment
for
the
Plaintiff
.
Bear
for
the
Defendant
:
I
in
a
manner
agree
all
the
cases
which
have
been
put
on
the
other
side
;
and
I
conceive
that
the
Water-course
is
not
Stagnum
but
Servitium
,
which
is
due
from
the
one
land
to
the
other
:
It
is
but
a
liberty
,
and
therfore
I
agree
Challenors
case
,
which
is
but
a
liberty
that
an
Ejectione
firmae
doth
not
lye
of
it
,
but
Ejectione
firmae
lies
De
stagno
.
For
the
first
exception
I
answer
and
confesse
,
that
to
alledge
an
Entry
after
the
Darrain
continuance
,
without
alledging
an
Ouster
of
the
Tenant
,
cannot
abate
the
Writ
,
for
the
Defendant
may
enter
to
another
intent
as
appeareth
in
the
Commentaries
,
and
with
the
assent
of
the
Tenant
;
But
here
it
was
alledged
that
a
Feoffment
was
made
and
a
Livery
which
implies
another
.
For
the
matter
in
Law
,
I
conceive
that
the
Water-course
is
extinguished
,
and
it
may
be
compared
to
21
E.
3.
2.
The
case
of
a
way
which
is
extinguished
by
unity
of
possession
,
Hill.
36.
Eliz.
Rot.
1332.
Hemdon
and
Crouches
case
.
Two
were
seised
of
two
severall
acres
of
Land
,
of
which
the
one
ought
to
inclose
against
the
other
,
one
purchase
them
both
,
and
lets
them
to
severall
men
,
and
there
the
opinion
was
,
and
adjudged
accordingly
,
that
the
Inclosure
is
not
revived
,
but
remains
extinguished
,
39
Eliz.
Harringtons
case
,
the
same
thing
resolved
,
and
albeit
in
Dyer
295.
is
a
quaere
,
yet
the
better
opinion
hath
been
taken
according
to
these
resolutions
.
H.
4.
Jac.
Jordan
and
Ayliffes
Case
,
when
one
had
a
way
from
one
acre
to
another
,
and
afterwards
he
purchased
the
acre
upon
which
he
had
the
way
,
and
afterwards
sold
it
,
and
in
that
Case
the
opinion
of
3.
Iustices
was
that
the
way
was
extinguished
;
also
11
H.
4.
50.
and
11
H.
7.
25.
prove
this
case
,
for
the
said
case
is
compared
to
the
custome
of
Gavelkind
and
Burrough
English
,
and
there
the
quaere
is
made
whether
by
the
custome
it
be
revived
,
and
if
it
be
a
custome
which
runs
with
the
Land
,
the
unity
of
possession
doth
not
extinguish
it
,
Co.
lib.
4.
Terringhams
case
,
and
24
E.
3.
2.
common
appendant
is
destroyed
by
unity
of
possession
,
and
yet
it
is
a
thing
of
common
right
,
but
a
Water-course
being
a
thing
against
common
right
,
a
fortiori
it
shall
be
extinguished
.
Now
I
will
take
some
exceptions
to
the
Declaration
.
1.
Because
he
hath
laid
a
prescription
for
a
Water-course
,
as
to
say
,
that
it
was
belonging
to
a
Rectory
,
to
which
,
&c.
and
this
is
a
good
exception
,
as
appears
by
6
E
6
Dyer
70.
Ishoms
case
,
where
exception
was
taken
,
that
before
his
prescription
he
doth
not
say
,
that
it
was
Antiquum
parcum
,
which
exception
(
as
it
is
there
said
)
was
the
principall
cause
that
Iudgment
was
given
against
him
,
and
also
as
the
case
is
here
,
it
ought
to
be
a
Rectory
impropriate
,
and
this
cannot
be
before
the
time
of
H.
8.
which
is
within
time
of
memory
,
for
before
the
said
time
no
lay
person
could
have
a
Rectory
impropriate
,
and
therfore
I
pray
Iudgment
for
the
Defendant
.
Barksedale
said
,
that
the
prescription
is
well
laid
,
and
that
he
would
prove
by
39
H
6.
32.
and
33
H.
6.
26.
and
per
curiam
the
prescription
is
good
enough
,
and
albeit
it
is
not
said
,
that
it
is
Antiquae
Rectoria
,
yet
it
is
well
enough
,
Mich.
1
Car.
at
Reading
Term
in
Broek
and
Harris
case
,
he
doth
not
say
,
that
it
was
Antiquum
Messuage
,
and
yet
resolved
good
.
Doderidge
,
the
case
of
6
E.
6.
differs
in
this
point
from
this
case
,
for
a
Rectory
shall
alwaies
be
intended
ancient
,
and
so
is
not
a
Park
,
for
this
may
be
newly
created
:
and
he
put
this
case
;
suppose
I
have
a
Mill
,
and
I
have
a
Water-course
to
this
in
my
own
land
,
and
I
sell
the
Land
,
I
cannot
stop
the
Water-course
.
Crew
chief
Iustice
seemed
of
opinion
that
the
prescription
is
gone
,
and
that
the
better
opinion
in
Dyer
13
Eliz.
hath
alwaies
been
that
the
Inclosure
is
gone
by
unity
of
possession
,
but
yet
the
Water-course
is
matter
of
necessity
.
Doderidge
and
Whitlock
,
the
way
is
matter
of
election
,
but
the
course
of
water
is
naturall
.
Jones
Iustice
,
There
is
great
difference
between
a
way
and
a
water-course
as
to
this
purpose
,
for
admit
that
this
water-course
,
after
that
it
had
been
in
the
Curtilage
of
the
Plaintiff
,
goes
further
to
the
Curtilage
of
another
,
shall
not
that
other
have
the
benefit
of
this
water-course
notwithstanding
the
unity
of
possession
?
I
think
cleerly
that
he
shall
.
Doderidge
,
my
opinion
is
,
that
the
water-course
is
not
extinguished
by
the
unity
of
possession
:
But
some
conceived
that
he
had
declared
his
opinion
in
terror
to
the
Defendant
:
And
afterwards
the
same
Term
Barksedale
for
the
Plaintiff
said
,
that
he
had
agreed
the
case
before
,
and
therfore
would
now
only
indeavour
to
answer
some
exceptions
which
had
been
taken
to
the
Declaration
.
1.
Exception
hath
been
that
no
prescription
or
custom
is
made
for
this
water-course
,
but
only
that
Currere
solebat
&
consuevit
.
But
I
conceive
tha●
the
Declaration
is
good
notwithstanding
this
,
because
the
Plaintiff
here
doth
not
claim
an
interest
in
the
Water-course
,
but
in
the
Land
in
which
,
&c.
and
therfore
it
is
good
,
and
this
appeareth
by
12
E.
4.
9.
the
Prior
of
Lantonies
case
in
a
prescription
in
a
Market
overt
generally
,
and
the
reason
there
was
,
because
he
was
a
stranger
,
as
in
our
case
he
is
,
and
this
pleading
appeareth
also
to
be
good
by
Cooks
Book
of
Entries
,
18.
Smiths
case
,
which
was
entred
9
Jac.
Rot.
366.
in
this
Court
.
2.
Exception
was
,
because
it
is
not
said
,
that
it
was
Antiqua
Rectoria
.
3.
Exception
,
because
it
doth
not
appear
that
he
was
a
spiritual
man
to
whom
the
Demise
of
the
Rectory
was
made
.
4.
Because
it
is
not
said
,
that
the
Water-course
Ad
predict
.
Rectoriam
pertinet
.
5.
Because
the
Water-course
is
alledged
to
be
for
his
customary
Tenants
of
the
said
Rectory
,
and
this
is
not
good
,
as
appeareth
by
21
Eliz.
Dyer
,
363.
Prescription
,
Pro
quolibet
customar
.
Tenente
,
is
not
good
,
but
I
conceive
that
this
case
is
not
our
case
,
for
here
is
Customarius
tenens
Rectoriae
,
and
there
it
is
agreed
that
Quilibet
customarius
tenens
Maner
.
had
been
good
:
And
the
plea
in
Bar
hath
salved
these
objections
,
and
therfore
he
prayed
judgment
for
the
Plaintiff
.
Jeremy
for
the
Defendant
;
And
first
for
the
matter
in
Law
,
it
seemed
to
him
that
by
the
unity
of
possession
the
Water-course
is
extinguished
,
and
the
Water-course
may
well
be
compared
to
the
case
of
the
way
,
for
as
a
way
is
a
passage
for
men
over
the
land
,
so
water
hath
passage
upon
the
land
,
and
a
way
is
extinguished
by
unity
,
as
appeareth
by
21
E.
3.
2.
11
H.
4
,
5.
21
Ass.
and
Davies
Reports
5.
and
in
4
Jac.
Jordan
,
and
case
it
was
the
better
opinion
that
a
way
was
extinguished
by
unity
of
possession
;
true
it
is
,
that
there
Popham
chief
Iustice
put
the
difference
,
where
the
way
is
of
necessity
and
where
not
,
for
where
the
way
is
of
necessity
there
it
shall
not
be
extinguished
:
This
case
hath
been
compared
to
the
case
of
a
Warren
in
35
H.
6.
but
I
conceive
that
the
cases
are
not
a
like
,
because
a
Warren
is
a
meer
liberty
,
8
H.
7.
5.
A
man
may
have
a
Warren
in
his
own
Land
,
and
Co.
lib.
7.
Buts
case
by
a
Feoffment
of
Land
,
a
Warren
doth
not
passe
,
but
this
Water-course
hath
its
originall
out
of
the
Land
,
and
this
case
cannot
be
compared
to
an
ancient
Water-course
running
to
a
Mill
,
for
notwithstanding
the
unity
it
shall
passe
with
the
Mill
,
for
otherwise
it
shall
not
be
Molendinum
aquatinum
,
so
that
the
water
there
is
parcell
of
the
thing
,
and
so
of
necessity
ought
to
passe
with
the
thing
,
but
here
it
doth
not
appear
that
it
is
a
Water-course
of
necessity
,
and
for
any
thing
that
appeareth
,
it
may
be
filled
with
another
Water-course
:
Also
I
conceive
that
the
Declaration
is
not
good
.
1.
Because
neither
prescription
nor
custom
is
laid
for
the
Watercourse
,
and
it
appeareth
in
Co.
Book
of
Entries
,
Holcome
and
Evans
case
,
and
the
old
Book
of
Entries
,
616
,
617.
Mich.
1.
Car.
Rot.
107.
Turner
and
Dennies
case
in
this
Court
,
in
trespasse
for
breaking
his
Close
,
&c.
the
Defendant
justified
for
a
way
,
&c.
and
that
he
was
possessed
for
years
,
and
for
him
and
his
Occupiers
had
a
way
over
the
Land
,
the
Plaintiff
demurred
,
and
resolved
that
the
prescription
is
not
good
.
2.
The
Declaration
is
insufficient
being
an
action
upno
the
case
for
the
stopping
of
a
Water-course
,
and
it
is
not
Vi
&
armis
,
nor
Contra
pacem
,
Co.
lib.
9.
50.
the
Earl
of
Shrewsburies
case
,
when
there
are
two
causes
of
an
action
upon
the
case
;
the
one
Causa
causans
,
the
other
Causa
causata
,
causa
causans
may
be
alledged
Vi
&
armis
,
for
this
is
not
the
immediate
cause
of
the
action
,
but
Causa
causata
F.
N.
B.
86.
H.
and
92.
E.
in
the
end
of
the
Writ
of
action
upon
the
case
shall
be
Contra
pacem
.
3.
Also
he
hath
prescribed
for
the
Tenants
of
the
Rectory
,
which
is
not
possible
,
for
no
Lay-man
could
be
Tenant
of
a
Rectory
,
or
of
Tithes
before
the
Statute
of
H.
8.
and
therfore
I
pray
Iudgment
for
the
Defendant
.
Whitlock
chief
Iustice
conceived
that
the
declaration
was
good
,
&
the
bar
is
naught
,
both
for
the
form
&
matter
:
the
question
here
is
of
Aqua
profluens
,
and
I
conceive
that
there
needs
no
prescription
or
custome
in
this
case
,
for
water
hath
its
naturall
course
,
and
as
is
observed
by
Brudnell
in
12
H.
8.
Natura
sua
descendit
,
it
may
be
called
Usu
captio
,
or
Vsage
,
and
he
conceived
that
the
action
upon
the
case
very
well
lies
in
this
case
,
like
to
the
case
where
a
man
bath
a
house
and
windows
in
it
,
and
another
erect
a
new
house
and
stop
the
light
,
then
I
may
have
an
action
upon
the
case
;
but
true
it
is
,
that
I
shall
not
only
count
for
the
losse
of
the
aire
,
but
also
I
ought
to
prescribe
that
time
out
of
mind
light
have
entred
by
these
windows
,
&c.
see
7
E.
3.
If
there
be
a
School-master
in
a
Town
,
and
another
erect
a
new
School
in
the
same
Town
,
an
action
upon
the
case
doth
not
lye
against
him
,
because
Schools
are
for
the
publike
benefit
,
and
every
private
man
may
have
a
School
in
his
house
.
And
for
the
exception
,
that
a
Lay
man
cannot
be
possessed
of
a
Rectory
,
I
conceive
that
the
Declaration
is
good
notwithstanding
,
for
a
Lay-man
may
have
a
Rectory
by
Demise
.
And
for
the
Plea
in
bar
,
it
is
not
good
for
the
form
,
because
that
Searles
entred
and
enfeoffed
Pigot
,
and
it
is
not
said
,
that
he
entred
,
and
Expulit
,
and
if
a
man
enter
and
make
a
Feoffment
,
the
owner
being
upon
the
Land
the
Feoffment
is
void
,
and
therfore
an
actuall
Ouster
ought
to
be
shown
:
And
for
the
matter
in
Law
,
he
conceived
that
the
Bar
was
not
good
,
for
by
the
unity
of
possession
the
water-course
is
not
extinguished
,
and
yet
I
agree
the
cases
of
a
way
and
common
upon
the
differences
of
Rights
which
are
put
in
Bracton
,
lib
4.
221.
These
are
called
Servitutes
,
as
jus
eundi
,
fodendi
,
hauriendi
,
&c.
sunt
servitutes
quas
praedia
ex
quibus
exunt
aliis
praediis
debent
,
and
are
called
Servitutes
praediales
,
and
this
began
by
private
right
,
to
wit
,
by
grant
or
prescription
.
A
way
or
common
shall
be
extinguished
,
because
they
are
part
of
the
profits
of
the
Land
,
and
the
same
Law
is
of
Fishings
also
,
but
in
our
case
the
water-course
doth
not
begin
by
the
consent
of
parties
,
nor
by
prescription
,
but
Ex
jure
naturae
,
and
therfore
shall
not
be
extinguished
by
unity
:
A
Warren
is
not
extinguished
by
unity
,
because
a
man
may
have
a
Warren
in
his
own
Land
,
and
in
the
case
of
11
H.
7.
the
Gutter
was
not
extinguished
only
by
the
unity
of
possession
,
but
there
also
appeareth
in
the
case
that
the
Pipes
were
destroyed
,
wherby
it
could
not
be
revived
,
and
although
the
Book
of
13
Eliz.
Dyer
295.
Two
Closes
adjoyn
together
,
the
one
being
by
prescription
bound
to
a
Fence
,
the
owner
of
the
one
purchase
,
the
other
dies
,
having
issue
two
Daughters
,
who
make
partition
,
it
is
a
quaere
whether
the
inclosure
be
revived
,
yet
I
conceive
cleerly
,
that
by
unity
of
the
possession
the
Inclosure
is
destroyed
,
for
fencing
is
not
naturall
,
but
comes
by
industry
of
men
,
and
therfore
by
the
unity
it
shall
be
gone
,
and
so
briefly
with
this
diversity
he
concluded
that
where
the
thing
hath
its
being
by
prescription
,
unity
will
extinguish
it
;
but
where
the
thing
hath
its
being
Ex
jure
naturae
,
it
shall
not
be
extinguished
,
and
therfore
the
Plaintiff
ought
to
have
Iudgment
.
Jones
Iustice
agreed
,
that
the
Declaration
is
good
,
and
that
the
Bar
also
is
good
in
manner
,
but
for
the
matter
in
Law
it
is
not
good
.
As
to
the
first
exception
to
the
Declaration
,
I
conceive
it
is
good
,
albeit
there
wants
a
prescription
,
and
this
is
the
ordinary
of
pleading
,
as
appears
in
Co.
lib.
4
Luttrels
case
,
and
in
all
the
presidents
before
cited
.
2.
For
the
exception
Vi
&
armis
,
he
conceived
this
difference
,
where
the
act
is
a
Trespasse
and
a
Nusance
,
there
it
may
be
laid
to
be
Vi
&
armis
,
but
if
it
be
a
Nusance
only
and
not
a
Trespasse
,
it
is
otherwise
:
as
if
I
have
a
way
over
another
mans
Land
,
if
a
stranger
dig
in
the
Land
so
a●
I
cannot
have
the
way
,
now
because
it
is
a
Trespasse
to
the
Owner
of
the
Soil
,
in
my
action
upon
the
case
against
a
stranger
,
I
may
have
Vi
&
armis
,
but
if
the
owner
stop
the
way
,
there
Vi
&
armis
shall
not
be
in
my
action
upon
the
case
.
For
the
third
exception
,
because
he
both
not
say
,
Ad
Rectoriam
spectandum
,
but
I
conceive
that
it
shall
be
intended
ad
Rectoriam
impropriat
,
and
so
it
appeareth
.
4.
Where
it
is
said
,
Watering-course
for
his
Tenants
,
I
conceive
it
is
good
enough
,
being
in
an
action
upon
the
case
where
damages
only
are
to
be
recovered
:
That
the
Bar
also
is
good
in
form
,
for
although
the
Tenant
here
be
a
Disseisor
,
yet
it
is
a
good
Bar
,
for
it
matters
not
whether
he
hath
a
Title
or
no
,
if
the
Water-course
be
extinct
by
the
unity
,
for
the
matter
in
Law
,
he
conceived
that
the
unity
of
possession
had
not
extinguished
the
Water-course
.
A
man
hath
things
out
of
another
mans
Land
,
either
by
grant
as
a
Seigniory
,
Rent
,
Common
,
&c.
and
these
are
distinguished
by
unity
,
&c.
and
the
reason
is
,
because
one
who
hath
interest
as
Owner
of
the
Land
,
cannot
have
a
particular
interest
in
the
same
Land
also
.
Or
by
prescription
,
and
those
things
are
extinguished
by
unity
of
possession
also
,
and
not
only
for
the
first
reason
because
he
is
Owner
of
the
Land
,
and
so
cannot
have
a
particular
interest
in
the
same
Land
also
,
but
also
because
that
by
the
unity
the
prescription
fail
?
And
for
the
case
in
Dyer
,
13
Eliz.
I
conceive
that
by
the
unity
the
inclosure
is
gone
,
and
so
it
was
resolved
in
37
Eliz.
for
every
one
is
not
bound
to
inclose
:
For
the
case
of
the
way
,
I
will
suspend
my
opinion
concerning
it
,
because
Clark
and
Lambs
case
is
now
depending
touching
it
in
the
same
point
.
But
now
for
our
case
,
it
differs
from
the
other
cases
,
for
the
prescription
here
is
in
another
manner
then
is
made
for
Common
,
for
it
shall
be
pleaded
either
as
appendant
,
or
appurtenant
,
but
Currere
solebat
is
only
in
this
pleading
,
for
here
no
interest
is
claimed
,
but
in
the
other
cases
an
interest
is
claimed
:
In
this
case
the
Land
remains
as
it
was
before
,
and
therfore
the
unity
will
not
extinguish
it
;
and
if
such
a
unity
by
construction
of
Law
should
extinguish
Water-courses
,
it
would
be
too
dangerous
:
for
suppose
that
a
man
hath
a
Water-course
from
Thames
to
his
house
in
Lambeth
,
if
he
purchase
a
parcell
of
Land
in
Hendley
;
now
because
that
the
Thames
come
by
the
same
Land
,
his
Water-course
shall
be
extinguished
.
Also
suppose
that
the
Water-course
after
it
hath
been
in
the
Curtilage
of
the
Plaintiff
,
goes
into
another
Curtilage
,
is
it
reason
that
by
this
unity
the
second
man
shall
lose
his
Water-course
?
without
doubt
it
is
unreasonable
.
And
the
case
of
11
H.
7.
of
the
Gutter
,
warrants
this
opinion
,
and
therfore
the
Plaintiff
ought
to
have
Iudgment
.
Doderidge
Iustice
,
I
conceive
no
great
difficulty
in
the
case
;
for
the
exceptions
to
the
Declarations
they
are
not
materiall
.
1.
That
there
wants
Prescription
or
Custom
,
I
conceive
that
it
is
good
enough
,
for
here
are
the
words
of
Currere
solebat
&
consuevit
,
and
Consuevit
is
a
good
word
for
a
Custom
.
2.
That
a
Lay-man
cannot
have
a
Parsonage
;
true
it
is
,
that
a
Lay-man
cannot
be
a
Parson
,
but
he
may
have
a
Parsonage
,
for
he
may
be
Lessee
of
it
,
which
appeareth
many
times
in
our
Books
.
3.
That
it
is
not
alledged
to
be
Vi
&
armis
,
this
is
the
most
colourable
exception
,
and
the
case
and
rule
cited
out
of
Co.
lib.
9.
the
Earl
of
Shrewsburies
case
is
good
Law
,
but
it
is
impossible
to
plead
Vi
&
armis
in
this
case
,
for
the
unity
was
in
H.
8.
and
the
wrong
is
supposed
after
the
severance
,
and
it
is
supposed
to
be
done
by
the
Owner
of
the
Land
,
and
a
man
cannot
do
a
thing
upon
his
own
Land
Vi
&
armis
.
4.
Because
it
is
not
alledged
to
be
an
ancient
Rectory
:
I
conceive
it
need
not
,
because
the
Law
presumes
all
Rectories
to
be
ancient
,
the
Patronages
wherof
are
gained
Ratione
fundi
,
fundationis
,
vel
dotationis
.
5.
Because
he
doth
not
say
,
that
Pertinet
ad
Rectoriam
:
But
he
hath
said
a
thing
which
amounts
to
as
much
;
for
it
is
said
,
that
in
the
Rectory
was
a
certain
Curtilage
in
which
there
is
a
Watering-pond
,
and
the
Curtilage
is
part
of
the
house
,
and
therfore
he
need
not
say
,
that
it
belongs
to
the
house
.
For
the
Bar
I
conceive
that
it
is
good
for
the
Mannor
:
A
man
makes
a
Feoffment
of
Land
,
the
Owner
of
the
Land
being
present
at
the
same
time
,
nothing
works
by
the
Livery
for
the
reason
before
given
by
Jones
.
For
the
matter
of
Law
he
conceived
that
the
unity
of
possession
doth
not
extinguish
the
Water-course
,
and
that
for
two
reasons
.
-
1.
For
the
necessity
of
the
thing
.
-
2.
From
the
nature
of
the
thing
being
a
Water-course
,
which
is
a
thing
running
.
1
For
the
necessity
,
and
this
is
the
reason
that
common
appendant
by
the
unity
of
possession
shall
not
be
extinguished
,
for
it
is
appendant
to
ancient
Land-hide
,
and
gain
arable
Land
,
which
is
necessary
for
the
preservation
of
the
Common-wealth
;
and
as
in
this
case
there
is
a
necessity
of
bread
,
so
in
our
case
there
is
a
necessity
of
water
:
And
for
the
case
of
a
way
Distinguendum
est
,
for
if
it
be
a
way
which
is
only
for
easement
it
is
extinguished
by
unity
of
possession
,
but
if
it
be
a
way
of
necessity
,
as
a
way
to
Market
or
Church
,
there
it
is
not
extinguished
by
unity
of
possession
,
and
accordingly
was
the
opinion
of
Popham
chief
Iustice
,
which
I
take
for
good
Law
,
and
the
case
of
11
H.
7.
25.
is
a
notable
case
,
and
there
a
reason
is
given
why
a
Gutter
is
not
extinguished
by
unity
of
possession
,
because
it
is
matter
of
necessity
.
2.
From
the
nature
of
water
,
which
naturally
descends
,
it
is
alwais
current
,
Et
aut
invenit
aut
facit
viam
,
and
shall
such
a
thing
be
extinguished
which
hath
its
being
from
the
Creation
.
Co.
lib.
4.
Luttrels
case
,
a
Mill
is
a
necessary
thing
,
and
if
I
purchase
the
Land
upon
which
the
streams
goes
which
runs
to
this
Mill
,
and
afterwards
I
alien
the
Mill
,
the
Water-course
remains
.
So
if
a
man
hath
a
Dye-house
,
and
there
is
a
water
running
to
it
,
and
afterwards
he
purchase
the
Land
upon
which
the
water
is
current
and
sell
it
,
yet
he
shall
have
the
Water-course
,
Dyer
:
Dame
Browns
case
,
and
the
principall
case
in
Luttrels
case
,
a
Fulling-mill
made
a
Water-mill
,
this
shall
not
alter
the
nature
of
the
Mill
,
but
yet
it
remains
a
Mill
,
so
the
water
hath
its
course
notwithstanding
the
unity
,
and
he
concluded
for
the
Plaintiff
.
Crew
chief
Iustice
,
I
agree
that
the
Declaration
is
good
,
and
also
that
the
Bar
is
good
for
the
manner
,
but
for
the
matter
in
Law
,
I
conceive
that
it
is
not
good
.
In
our
Law
every
case
hath
its
stand
or
fall
from
a
particular
reason
or
circumstance
:
For
a
Warren
,
and
Tithes
they
are
not
extinguished
by
unity
,
because
they
are
things
collaterall
to
the
Land
:
And
for
the
case
of
13
Eliz.
in
Dyer
,
of
an
Inclosure
;
I
conceive
that
by
the
unity
the
Inclosure
is
destroyed
,
for
the
Prescription
was
interrupted
,
and
in
Day
and
Drakes
case
,
3
Jac.
in
this
Court
it
was
adjudged
that
in
the
same
case
the
Prescription
was
gone
;
It
may
be
resembled
to
the
case
of
Homage
Ancestrell
57
E.
3.
Fitzherbert
Nusans
:
And
for
our
case
it
is
not
like
to
the
cases
of
Common
,
or
a
Way
,
because
the
Water-course
is
a
thing
naturall
and
therfore
by
unity
it
shal
not
be
discharged
;
also
there
is
a
linement
out
of
which
every
man
shall
have
a
benefit
,
and
therfore
he
concluded
that
Iudgment
should
be
given
for
the
Plaintiff
;
And
Iudgment
was
commanded
to
be
entred
for
the
Plaintiff
.
The
same
Term
in
the
same
Court.
Welden
versus
Vesey
.
AN
action
of
Debt
was
brought
by
Welden
Sheriff
of
the
City
of
Coventry
against
Vesey
,
upon
the
Statute
of
29
Eliz.
cap.
4.
and
declares
,
that
it
is
provided
by
this
Statute
that
no
Sheriff
or
Minister
,
&c.
shall
take
for
an
execution
,
if
the
summ
doth
not
exceed
100
l.
but
12
d.
for
every
20
s.
and
being
above
the
summ
of
100
l.
6
d.
for
every
20
s.
and
shews
that
wheras
the
said
Vesey
had
judgment
against
one
in
an
action
of
Debt
,
that
the
Plaintiff
by
virtue
of
a
Capias
directed
to
him
,
took
the
body
of
the
said
person
condemned
,
and
that
it
was
delivered
to
the
Plaintiff
,
and
that
he
for
levying
of
the
money
had
brought
this
action
.
The
Defendant
by
way
of
Bar
saith
,
that
it
is
provided
by
this
act
that
it
shall
not
extend
to
Executions
in
Towns
Corporate
,
and
that
this
was
within
Coventry
,
and
so
demurred
upon
the
Declaration
.
And
Whitwick
argued
for
the
Plaintiff
;
two
things
are
considerable
in
this
case
.
1.
Whether
where
the
summ
exceeds
100
l.
the
Sheriff
shall
have
12
d.
for
every
20
s.
of
the
100
l.
and
6
d.
for
that
which
is
over
,
or
6
d.
only
for
every
20
s.
for
all
the
summ
.
2.
Whether
this
Statute
extend
to
Iudgments
in
Towns
Corporate
.
For
the
first
,
the
letter
of
the
Statute
is
cleer
that
he
shall
have
12
d.
for
the
first
100
l.
and
6
d.
for
the
residue
,
for
the
Statute
is
,
that
if
it
be
above
100
l.
Whether
a
Sheriff
,
or
,
&c.
shall
have
12
d.
in
the
pound
for
the
first
100
l.
and
6
d.
for
the
rest
upon
an
Execution
.
that
he
shall
have
but
6
d.
therfore
if
it
be
under
a
100
l.
he
shall
have
12
d.
for
every
20
s.
And
the
meaning
of
the
Statute
is
plain
also
,
for
otherwise
the
Sheriff
shall
have
a
lesser
Fee
where
it
is
above
a
100
l.
(
as
where
it
is
a
199
l.
)
then
he
shall
have
for
100
l.
but
this
was
not
the
intent
of
the
Statute
,
but
the
greater
the
Execution
,
the
greater
the
Fee
:
It
was
adjudged
in
one
Gores
case
,
10
Jac.
that
an
action
of
Debt
lies
upon
this
Law
,
Pasch.
14
Jac.
Rot.
351.
Brole
and
Tumblerson
Sheriffs
of
the
City
of
London
,
brought
Dabt
against
Nathanael
Michell
for
execution
of
400
l.
for
12
l.
10
s.
scil.
5
l.
for
the
first
100
l.
and
6
d.
for
every
20
1.
after
:
But
I
confesse
that
the
principall
question
there
was
,
whether
an
action
of
Debt
lies
for
the
money
,
and
it
was
resolved
that
it
did
,
and
Iudgment
was
given
for
the
Plaintiff
.
2.
To
the
Proviso
,
that
this
doth
not
extend
to
Fees
in
a
Town
Corporate
,
whether
this
extend
to
executions
which
go
out
of
Iudgments
in
this
Court
,
or
in
the
Common
Pleas
into
Towns
Corporate
.
The
Statute
shews
that
before
that
time
the
Sheriff
had
taken
great
Fees
,
which
the
Parliament
considering
,
restrained
them
to
a
certainty
;
The
words
of
the
Proviso
are
generall
:
Provided
that
this
Act
shall
not
extend
to
any
Fees
to
be
taken
for
any
Execution
within
any
City
or
Town
Corporate
,
and
although
the
words
be
generall
,
yet
the
exposition
shall
be
according
to
reason
,
as
it
is
said
in
Fulmerston
and
Stewards
case
in
Plow
.
Expesition
,
shal
be
made
against
the
words
,
if
the
words
be
against
reason
,
5
H.
7.
7
38
H.
3.
Broo.
Livery
6.
The
King
shall
have
primer
Seisen
of
all
Lands
of
his
Tenant
which
he
holds
of
him
in
Capite
,
but
if
one
holds
of
the
King
in
Capite
,
in
Socage
,
he
shall
pay
no
primer
Seisen
to
the
King
,
and
this
Statute
shall
have
this
intendment
,
that
this
Proviso
shall
extend
only
to
Executions
upon
Iudgments
given
in
Cities
and
Towns
Corporate
,
and
not
where
Iudgment
is
given
in
this
Court
,
or
the
Common
Pleas
,
and
Executions
are
only
there
,
and
this
seems
to
be
a
reasonable
construction
;
Executions
in
Towns
corporate
,
to
wit
,
Executions
upon
Iudgments
given
in
Towns
corporate
.
If
the
Sheriff
make
execution
at
the
Town
side
he
shal
have
for
his
fees
as
the
Statute
limits
,
&
therfore
he
shall
have
it
if
within
the
Town
,
&
if
this
should
not
be
so
,
this
mischief
would
ensue
,
that
presently
when
an
Execution
issues
out
against
a
man
,
he
wil
shelter
himself
in
a
Town
corporate
,
as
in
a
Sanctuary
,
and
the
Sheriff
will
not
do
execution
there
,
because
he
shall
not
have
so
great
a
Fee
for
doing
it
as
if
it
were
in
another
place
,
and
so
execution
(
which
is
the
life
of
the
Law
)
shall
be
undone
.
Jermy
for
the
Defendant
;
and
first
,
if
the
summ
exceed
a
100
l.
he
shall
have
but
6
d.
for
every
20
s.
of
all
.
It
is
considerable
that
at
Common
Law
the
Sheriff
ought
to
do
execution
freely
without
any
recompence
.
In
Both
and
Sadlers
case
lately
in
this
place
,
an
action
upon
the
case
was
brought
by
a
Bailiff
,
that
wheras
a
Warrant
for
taking
such
a
man
was
directed
to
him
,
the
Defendant
promised
him
40
s.
for
his
pains
,
he
took
the
man
and
brought
an
action
for
the
40
s.
and
it
was
agreed
that
he
should
not
have
it
.
The
Law
abhors
that
great
Fees
shall
be
given
for
executions
,
Co.
lib.
3.
7.
in
Heydons
case
:
In
the
exposition
of
the
Statute
three
things
are
considerable
.
-
1.
What
the
Common
Law
was
before
the
making
of
it
.
-
2.
What
the
mischief
was
at
the
Common
Law
.
-
3.
The
remedy
which
the
Statute
gives
.
-
4.
The
true
reason
of
the
remedy
.
The
Common
Law
was
,
that
the
Sheriff
shall
not
take
any
Fee
for
execution
,
Ergo
now
he
shall
take
as
small
a
fee
as
may
be
,
because
this
is
nighest
to
the
common
Law
:
And
the
first
words
are
declarative
what
Fees
he
shall
take
;
and
the
subsequent
words
affirmative
what
Fees
they
may
now
take
,
to
wit
,
where
the
summ
doth
not
exceed
a
100
l.
12
d.
for
every
20
s.
14
Jac.
It
was
objected
,
that
the
Sheriff
is
not
bound
to
do
execution
before
he
hath
his
Fee
,
and
then
it
was
resolved
that
he
might
have
an
action
of
Debt
,
and
so
it
seems
that
the
party
is
not
bound
to
give
levying
money
before
that
the
execution
be
done
,
and
otherwise
,
the
party
Plaintiff
may
be
at
great
mischief
if
the
other
be
not
taken
:
And
it
hath
been
agreed
lately
in
the
Common
Pleas
,
that
if
the
summ
exceed
100
l.
he
sh●●l
have
but
6
d.
for
every
20
s.
And
as
to
the
second
point
,
he
endeavoured
to
maintain
that
the
Proviso
extends
to
executions
in
Towns
corporate
,
although
the
Iudgments
upon
which
the
executions
issue
are
given
in
other
Courts
,
and
this
is
the
constant
practise
of
the
City
of
London
.
The
Iudges
delivered
their
opinion
,
with
a
protestation
,
that
they
might
recall
them
,
if
afterwards
better
reason
appeared
.
Crew
chief
Iustice
was
of
opinion
that
he
shall
have
but
6
d.
for
every
20
s.
if
the
summ
exceed
100
l.
and
the
summ
shall
not
be
divided
,
but
if
the
summ
be
under
a
100
l.
then
12
d.
for
every
20
s.
and
this
is
the
reason
of
the
Law
.
And
for
the
second
point
,
although
the
Iudgment
be
given
in
the
superior
Court
,
yet
if
the
Sheriff
does
execution
there
,
he
shall
have
his
levying
money
,
and
this
is
within
the
intention
of
the
Proviso
.
Doderidge
,
Iustice
the
first
question
is
upon
the
exposition
of
the
Statute
,
the
second
upon
the
Proviso
;
For
the
first
two
expositions
may
be
made
as
hath
been
remembred
,
then
we
will
enquire
of
the
interpretation
:
This
Statute
was
made
for
the
benefit
of
Sheriffs
,
that
as
they
are
in
hazard
by
taking
of
men
,
because
many
times
resistance
was
made
.
2.
When
the
Sheriff
had
taken
a
man
,
and
in
the
carriage
of
him
to
prison
he
had
escaped
,
an
action
upon
the
case
did
lye
against
the
Sheriff
,
and
when
he
had
him
in
prison
,
he
ought
to
have
great
care
in
keeping
of
him
,
for
an
action
lies
against
him
if
he
escape
:
and
therfore
although
on
the
one
side
there
was
a
great
mischief
by
reason
of
great
Fees
that
the
Sheriff
took
for
execution
;
so
on
the
other
side
,
the
Law
tendred
Sheriffs
in
respect
of
the
hazard
●●d
care
which
they
had
of
men
in
execution
,
and
therfore
the
Law
in
an
indifferency
provides
that
the
Sheriff
shall
have
a
good
Fee
for
execution
,
and
also
it
provides
against
his
extortion
,
and
so
it
is
indifferent
between
the
oppression
of
the
Sheriff
and
covetousnesse
,
and
we
are
not
to
judge
according
to
the
intent
,
but
according
to
the
equity
of
the
Law
,
for
equality
to
prevent
the
covetousnesse
of
Sheriffs
and
the
oppression
of
the
people
;
then
in
this
case
if
he
shall
have
but
6
d.
for
every
20
s.
for
200
l.
he
shall
have
no
more
for
execution
of
200
l.
then
if
it
were
a
100
l.
But
I
think
this
was
not
the
intent
of
the
Act.
For
the
second
point
,
I
take
it
that
this
Statute
did
not
extend
to
Suits
within
Towns
corporate
,
and
executions
upon
them
,
for
they
are
not
at
any
great
trouble
for
doing
of
execution
within
their
Towns
,
nor
hazard
:
But
if
a
Sheriff
does
execution
in
a
Town
corporate
,
then
he
shall
have
according
to
the
Statute
,
for
it
may
be
that
the
Prison
is
far
distant
.
And
I
upon
the
suddain
conceive
that
this
Proviso
extends
only
to
Towns
corporate
,
which
are
Counties
.
Jones
Iustice
,
three
questions
have
been
made
upon
this
Statute
.
1.
For
the
nature
of
the
action
which
the
Sheriff
is
to
have
upon
this
Statute
,
and
for
that
it
hath
been
many
times
resolved
that
he
shall
have
an
action
of
Debt
,
for
when
a
remedy
is
given
by
a
Statute
,
and
no
action
is
given
by
the
same
Statute
wherby
the
penalty
shall
be
recovered
,
there
he
shall
have
an
action
of
Debt
.
2.
Who
shall
have
the
Fee
when
the
Sheriff
makes
a
Warrant
to
a
Bayliff
of
a
liberty
,
the
Bayliff
of
the
liberty
or
the
Sheriff
.
The
second
branch
of
the
second
question
is
,
tha●
when
one
Sheriff
makes
the
extent
,
and
another
Sheriff
makes
the
Liberate
,
who
shall
have
the
Fee
?
3.
The
third
question
hath
been
in
debate
in
the
Common
Pleas
,
and
there
was
some
opinion
that
if
the
summ
be
above
a
100
l.
and
under
200
l.
that
the
Sheriff
shall
have
12
d.
for
every
20
s.
of
the
first
100
l.
for
otherwise
the
Sheriff
shall
have
a
lesse
for
execution
of
199
l.
then
he
shall
have
for
100
l.
But
if
it
be
above
200
l.
he
shall
have
6
d.
ab
initio
.
My
opinion
on
the
suddain
is
,
that
for
every
20
s.
of
the
first
100
l.
he
shall
have
12
d.
and
for
the
residue
he
shall
have
6
d.
for
every
20
s.
and
the
other
shall
not
be
altered
.
And
for
the
second
point
,
I
hold
that
this
Proviso
extends
only
to
Iudgments
originally
commenced
in
Towns
corporate
,
and
not
to
executions
upon
Iudgments
given
in
superior
Courts
,
for
then
the
Sheriff
does
execution
as
an
Officer
to
these
Courts
:
And
the
Sheriff
of
the
County
is
at
as
great
pains
,
as
if
he
were
Sheriff
of
another
County
,
and
shall
not
be
bound
by
the
Proviso
.
Whitlock
Iustice
was
for
the
Plaintiff
in
both
the
points
,
to
wit
,
that
the
Sheriff
shall
have
1
s.
for
every
20
s.
of
the
first
100
l.
and
6
d.
for
every
20
s.
of
the
residue
.
And
by
him
the
Sheriff
may
refuse
to
do
execution
untill
the
levying
money
be
paid
to
him
.
And
for
the
second
point
,
the
Sheriff
of
the
County
of
the
City
is
not
within
the
Proviso
,
but
shall
have
the
Fees
by
the
Statute
provided
,
as
well
as
the
Sheriff
of
the
County
shall
have
,
for
the
words
are
generall
,
and
the
exception
goes
to
all
Towns
corporate
and
Cities
,
but
doth
not
say
Cities
which
are
Counties
,
and
therfore
this
Sheriff
is
within
the
benefit
of
this
Law
:
And
in
Michaelmas
Term
next
following
the
case
was
moved
again
by
Whitlock
for
the
Plaintiff
,
and
he
said
,
that
he
would
not
speak
to
the
second
point
,
because
the
Court
had
delivered
their
opinion
,
that
the
Proviso
in
the
Statute
,
that
this
shall
not
extend
to
executions
in
Towns
corporate
,
it
is
to
be
intended
of
executions
in
Towns
corporate
upon
Iudgments
there
given
:
But
for
executions
there
upon
Iudgments
given
in
this
Court
,
or
any
other
superior
Court
,
the
Sheriff
shall
have
such
Fees
as
are
limited
by
this
Statute
.
And
the
Court
said
to
him
that
were
agreed
of
it
.
And
as
for
the
first
point
,
he
conceived
that
the
Sheriff
shall
have
12
d.
for
levying
of
every
20
s.
of
the
first
100
l.
and
6
d.
of
every
pound
more
,
and
this
appears
cleerly
by
the
Letter
of
the
Statute
:
And
the
case
in
Mich.
19
Jac.
in
C.
B.
between
Empson
and
Bathirst
doth
not
make
against
it
,
for
the
resolution
of
the
said
case
was
upon
other
matters
:
The
case
being
,
a
man
was
bound
in
a
Statute
of
120
l.
the
Sheriff
extends
,
and
before
the
Liberate
takes
double
Bond
of
the
party
for
payment
of
his
Fees
,
and
afterwards
brought
Debt
against
the
party
,
who
pleads
the
said
matter
in
Bar
,
and
the
Statute
of
23
H.
6.
cap.
10.
And
in
the
case
were
three
points
.
1.
Whether
the
Sheriff
may
take
a
double
Bond
for
the
payment
of
his
Fees
,
and
it
was
resolved
that
the
Bond
was
void
,
for
the
Sheriff
might
have
Debt
upon
the
Statute
for
his
Fees
.
2.
Whether
the
Sheriff
shall
have
his
Fees
before
the
Liberate
,
and
resolved
that
he
shall
not
.
3.
Was
this
very
question
,
and
two
Iustices
were
against
one
,
that
where
the
summ
exceed
100
l.
he
shall
have
but
6
d.
for
levying
of
every
20
s
,
of
the
first
100
l.
But
the
Iudgment
was
given
upon
the
other
points
.
All
the
Court
seemed
to
be
of
opinion
that
he
shall
have
12
d.
for
every
20
s.
of
the
first
100
l.
and
6
d.
for
every
20
s.
of
the
residue
.
The
same
Term
in
the
same
Court.
Awdeley
versus
Joye
.
AWdeley
being
put
out
of
the
Town-Clarkship
of
Bedford
,
moved
for
a
Writ
of
Restitution
to
the
place
,
and
it
seemed
to
Doderidge
Iustice
that
the
Iustices
of
this
Court
have
power
to
grant
restitution
in
this
case
,
and
he
cited
a
case
in
16
Eliz.
in
this
Court
,
where
restitution
was
granted
in
such
a
case
,
and
43
Eliz.
by
warrant
of
Fennor
Iustice
,
a
Writ
of
Restitution
was
granted
.
One
who
was
Town
Clark
of
Boston
for
life
,
was
made
Alder-man
and
put
out
of
his
Clarkship
,
and
was
restored
.
This
Court
hath
power
not
only
in
judiciall
things
,
but
also
in
some
things
which
are
extrajudicial
.
The
Crew
chief
Iustice
,
doubted
whether
restitution
could
be
made
to
Awdeley
,
or
no
,
because
the
Office
was
granted
to
him
in
Reversion
,
when
it
was
expectant
upon
an
Estate
for
life
,
and
when
the
Officer
for
life
died
,
Joye
was
elected
,
and
he
said
,
that
all
the
said
Writs
remembred
are
,
where
he
had
once
possession
.
Whitlock
Iustice
,
in
the
case
of
one
Constable
,
10
Eliz.
It
was
resolved
that
this
Court
hath
power
to
grant
restitution
in
such
a
case
,
where
he
was
put
out
of
his
Office
:
And
by
Jones
Iustice
,
this
Court
hath
power
to
grant
Restitution
,
and
he
remembred
,
one
Mittlecots
case
:
And
Noy
being
of
Counsell
with
Awdeley
said
,
that
there
are
Presidents
to
prove
this
in
the
times
of
E.
2.
E.
3.
and
H.
6.
And
it
was
said
by
the
Iustices
that
they
are
the
chief
Conservators
of
the
Peace
within
the
Realm
,
and
therfore
have
power
for
the
preservation
of
the
Peace
in
such
factious
Towns
to
grant
restitution
.
The
same
Term
in
the
same
Court
.
Dabborne
versus
Martin
.
THomas
Dabborne
brought
an
action
upon
the
case
against
Martin
for
Thou
art
a
Knave
of
Record
,
and
a
forgering
Knave
:
And
it
was
argued
by
Jermy
for
the
Defendant
,
that
the
words
were
not
actionable
,
for
a
Knave
signifies
a
Male-child
,
so
that
it
is
no
more
then
to
say
,
Thou
art
a
Male-child
of
Record
:
And
for
forgering
Knave
,
the
action
will
not
lye
,
for
Forger
is
a
generall
word
,
and
may
be
applied
to
divers
Trades
,
as
forgering
Smith
,
forgering
Goldsmith
;
and
when
he
called
him
forgering
Knave
;
there
was
no
communication
of
his
Office
,
18
Jac.
Sir
William
Brunskill
brought
an
action
upon
the
case
,
and
declared
that
he
was
well
discended
,
and
was
a
Gentleman
of
the
Chamber
to
Prince
Henry
,
and
he
brought
an
action
for
these
words
,
Thou
art
a
Cosener
,
and
livest
by
cosenage
,
and
adjudged
not
actionable
,
Co.
lib.
4.
16.
Action
upon
the
case
doth
not
lye
for
these
words
,
Thou
art
a
corrupt
man
,
if
there
were
no
communication
touching
his
Profession
;
And
it
was
argued
for
the
Plaintiff
that
the
words
were
actionable
,
for
it
lyeth
for
these
words
,
Thou
art
an
Out-putterer
,
if
they
were
spoken
in
Northumberland
where
they
are
understood
,
but
not
here
,
because
they
have
no
signification
:
And
the
words
here
are
speciall
and
shall
have
reference
to
his
Office
,
and
shall
have
such
an
interpretation
as
is
now
used
,
and
now
Knave
hath
no
signification
of
Male-child
.
Jones
Iustice
said
,
that
if
one
saith
,
that
such
a
one
is
a
corrupt
Iudge
,
action
lies
,
or
if
one
saith
of
a
Clark
,
that
he
is
a
forging
Clark
,
action
lies
:
And
in
28
Eliz.
the
opinion
of
Iustice
Fennor
was
,
that
for
these
words
(
Thou
hast
forged
my
Fathers
Will
)
action
lies
.
Crew
said
,
that
he
did
not
understand
the
word
(
Forgering
)
but
for
calling
one
Knave
of
Record
,
action
lies
.
And
Doderidge
Iustice
said
,
that
he
never
gave
way
to
these
actions
upon
the
case
for
words
:
And
no
opinion
was
given
this
day
.
The
same
Term
in
the
same
Court.
Goodwin
versus
Willoughby
.
GOodwin
brought
an
action
upon
the
case
against
Joane
Willoughby
wife
of
Thomas
Willoughby
,
and
upon
non
Assumpsit
pleaded
,
it
being
found
for
the
Plaintiff
,
it
was
moved
in
Arrest
of
Iudgment
.
1.
That
the
Plaintiff
shews
that
Thomas
Willoughby
was
indebted
upon
account
,
and
doth
not
shew
that
Joane
Willoughby
is
Executrix
or
Administratrix
,
and
yet
that
she
promised
to
pay
,
wheras
in
truth
she
hath
no
cause
to
pay
,
for
there
is
no
consideration
,
and
so
Nudum
pactum
.
Jermy
for
the
Plaintiff
:
for
the
first
,
because
it
doth
not
appear
for
what
cause
he
accounted
;
I
answer
,
that
this
is
but
a
meer
conveyance
:
And
for
the
second
,
that
she
does
not
suppose
that
the
Feme
is
executrix
,
&c.
But
here
is
a
good
consideration
,
which
is
,
that
she
shall
not
sue
or
molest
,
and
that
he
gave
day
for
payment
,
this
is
a
sufficient
consideration
.
But
Stone
of
counsell
with
the
Defendant
said
,
that
the
first
is
the
ground
of
the
action
,
and
therfore
he
ought
to
shew
for
what
he
accounted
.
Crew
chief
Iustice
,
two
exceptions
have
been
taken
,
1.
For
the
alledging
the
manner
of
the
account
,
which
I
conceive
is
good
enough
,
and
he
need
not
shew
the
cause
of
the
account
:
And
as
to
the
second
,
because
it
doth
not
appear
that
she
is
Executrix
,
or
Administratrix
,
and
so
no
consideration
,
and
so
no
Assumpsit
:
But
here
she
assumes
to
be
Debtor
and
makes
a
promise
to
pay
,
which
is
an
acknowledgment
of
the
Debt
by
inference
,
and
therfore
he
conceived
that
the
Assumpsit
was
good
.
Doderidge
Iustice
,
for
the
first
it
is
good
enough
,
yet
Cum
indebitatus
existit
is
no
good
Assumpsit
,
but
here
he
shows
a
speciall
way
of
Debt
,
and
it
would
be
long
and
tedious
to
describe
his
account
.
For
the
second
there
is
no
cause
of
action
,
because
it
doth
not
appear
that
she
is
Executrix
or
Administratrix
,
or
Executrix
of
her
own
wrong
.
If
I
say
to
one
do
not
trouble
me
,
and
I
will
give
you
so
much
,
this
is
not
actionable
,
for
there
ought
to
be
a
lawfull
ground
,
and
for
this
cause
the
Declaration
Jones
Iustice
agreed
in
the
first
with
them
,
because
a
generall
action
upon
the
case
sufficeth
,
and
in
truth
it
is
but
an
inducement
to
the
action
;
but
for
the
other
part
he
doubted
,
and
he
cited
one
Withypools
case
,
an
Infant
within
age
,
promised
to
pay
certain
money
,
he
makes
an
Executor
and
dies
within
age
;
the
Executor
saith
to
him
to
whom
the
promise
is
made
,
forbear
and
I
will
pay
you
,
and
there
an
action
upon
the
case
did
lye
against
the
Executor
upon
this
promise
,
and
yet
it
was
a
void
Contract
,
but
there
was
colour
of
action
,
forbear
till
such
a
time
,
now
the
other
hath
lost
the
advantage
of
his
Suit
:
But
he
gave
no
opinion
.
Crew
,
It
is
a
violent
presumption
that
he
is
indebted
:
But
by
Doderidge
here
is
no
colour
to
charge
her
,
but
only
by
inference
that
she
is
Executrix
.
If
a
stranger
saith
,
forbear
such
a
Debt
of
J.
S.
and
I
will
pay
it
,
it
is
a
good
consideration
for
the
losse
to
the
Plaintiff
,
and
in
this
case
it
appears
not
that
there
is
any
cause
,
and
Broom
Secondary
said
,
that
Withypools
case
before
cited
was
reversed
in
the
Exchequer
Chamber
.
Jones
,
If
an
Infant
makes
a
promise
,
it
is
void
,
and
he
may
plead
non
Assumpsit
,
which
Doderidge
did
not
deny
:
But
upon
his
Obligation
he
cannot
plead
Non
est
factum
,
for
he
said
that
he
shall
be
bound
by
his
hands
,
but
not
by
his
mouth
.
The
same
Term
in
the
same
Court
.
Drope
versus
Theyar
.
IN
Debt
by
Drope
against
Theyar
an
Inne-keeper
upon
Issue
joyned
,
and
a
Verdict
for
the
Plaintiff
,
Bolstred
moved
in
Arrest
of
judgment
for
the
Defendant
,
and
the
matter
was
that
one
Rowly
who
was
servant
to
Drope
,
lodged
in
the
White
Heart
at
S.
Giles
,
and
there
had
certain
Goods
of
his
Masters
which
were
stoln
from
him
in
the
night
,
and
Drope
the
Master
brought
an
action
therupon
,
and
it
was
moved
by
Bolstred
that
the
Plaintiff
was
without
remedy
.
1.
Because
it
was
in
an
Inne
in
London
,
for
the
Register
105.
is
Quando
quis
depraedatus
euns
per
patriam
,
which
(
as
he
said
)
could
not
be
extended
to
an
Inne
in
London
.
2.
It
ought
to
be
an
Inne
,
as
Inne-keeper
.
3.
He
ought
to
be
as
a
Guest
lodging
,
and
this
appeareth
in
Culeys
case
,
in
5
Jac.
in
Celly
and
Clarks
case
(
which
was
entred
Pasch.
4.
Jac.
Rot.
254.
It
was
adjudged
that
where
the
Guest
give
his
Goods
to
his
Host
to
deliver
to
him
three
daies
after
,
and
the
goods
are
lost
,
that
an
action
is
not
maintainable
against
the
Inne-keeper
for
them
,
and
this
was
in
an
Inne
in
Uxbridge
:
And
in
one
Sands
case
,
where
the
Guest
came
in
the
morning
,
and
his
Goods
were
taken
before
night
,
he
shall
have
an
action
against
the
Inne-keeper
.
4.
The
Goods
ought
to
be
the
Goods
of
the
party
who
lodgeth
there
,
for
the
words
are
Ita
quod
hospitibus
damna
non
eveniunt
,
and
here
the
Master
who
brought
the
action
was
not
Guest
:
But
admit
the
Master
shall
have
the
action
,
yet
he
ought
to
alledge
a
custom
that
the
Master
shall
have
the
action
for
the
Goods
taken
from
his
Servant
,
Trin.
17
Jac.
Rot.
1535.
Bidle
,
and
the
Master
brought
an
action
for
Goods
taken
from
the
Servant
,
and
there
it
was
resolved
that
he
ought
to
conclude
that
Pro
defectu
,
&c.
and
apply
the
custom
to
him
being
Master
:
Sec
Co.
Book
of
Entries
345.
And
that
a
custom
,
that
for
other
mens
Goods
in
the
custody
of
Guests
,
the
Owner
shall
have
an
action
against
the
Inne-keeper
if
they
be
stollen
.
Ob.
This
is
the
Common
Law
,
and
therfore
ought
not
to
be
alledged
.
Answ.
Where
a
man
takes
upon
him
to
shew
a
custom
,
he
ought
to
shew
it
precisely
,
he
cited
Heydons
case
,
Co.
lib.
3.
28
H.
8.
Dyer
38.
And
it
was
said
for
the
Plaintiff
that
Goods
are
in
the
possession
of
the
Master
which
are
in
the
possession
of
his
Servant
,
and
so
here
the
Master
might
have
had
action
well
enough
,
8
E.
4.
my
Servant
makes
a
Contract
,
or
●●ies
Goods
to
my
use
,
I
am
liable
and
it
is
my
act
.
By
the
Court
an
Inne
in
London
is
an
Inne
,
and
if
a
Guest
be
robbed
in
such
an
Inne
,
he
shall
have
remedy
as
if
he
were
Enns
per
patriam
:
But
the
cheife
point
was
,
whether
the
master
shall
have
the
action
in
the
case
where
the
Servant
lost
the
goods
,
and
by
Jones
Justice
in
26
Eliz.
in
C.
B.
upon
the
Statute
of
Hue
and
Cry
it
was
resolved
that
if
the
Servant
be
robbed
the
Master
may
have
the
Action
,
and
so
by
him
shall
it
be
in
the
case
Doderidge
Justice
,
the
Servant
may
have
the
Action
also
:
If
the
Servant
be
robbed
of
wares
,
the
Master
or
Servant
may
have
an
appeale
8.
E.
2.
Tit.
Robbery
;
two
joynt
Merchants
,
one
is
Robbed
both
shall
joyne
in
the
Action
and
may
also
joyn
in
the
appeal
.
But
it
may
be
objected
(
as
Whitlock
Iustice
did
)
that
the
Master
is
not
Hospitans
,
I
say
this
is
to
no
purpose
;
A
man
put
his
Horse
in
the
Stable
,
and
before
he
goes
to
bed
or
lodging
,
the
Horse
is
gone
,
he
shall
have
an
action
although
he
did
not
lodge
there
.
For
the
word
(
transeuntes
)
although
he
be
at
the
end
of
his
Iourney
,
yet
it
is
within
the
custom
,
and
he
shall
have
action
.
And
by
Crew
,
if
I
send
cloath
to
a
Taylor
,
and
it
is
stoln
from
him
,
the
Taylor
shall
have
an
action
of
trespasse
,
or
the
Owner
.
Jones
,
the
case
of
Hue
and
Cry
is
a
more
stronger
case
then
this
is
,
for
there
the
Servant
ought
to
swear
that
he
is
robbed
,
and
yet
the
Master
shall
have
an
action
:
And
for
the
word
(
transeuntes
)
all
agreed
that
although
he
be
at
the
end
of
his
journey
,
or
at
an
Inne
in
London
,
yet
he
is
within
the
remedy
of
this
Law
:
And
if
a
man
stay
in
an
Inne
a
moneth
,
or
a
quarter
of
a
year
,
shall
not
he
have
an
action
if
he
lose
his
Goods
?
Doderidge
agreed
,
that
if
a
man
be
boarded
in
an
Inne
,
and
his
Goods
are
stoln
,
he
shall
not
have
an
action
upon
this
Law
.
And
notwithstanding
this
objection
,
judgment
was
given
for
the
Plaintiff
upon
the
Verdict
.
Trin.
Term
,
2
Car.
In
the
Kings
Bench.
Sir
William
Buttons
Case
.
SIr
William
Button
a
Iustice
of
Peace
brought
an
action
for
these
words
;
Sir
William
Buttons
men
have
stoln
Sheep
,
and
he
spake
to
me
that
I
should
not
prosecute
them
,
and
it
seems
that
the
action
did
not
lye
,
because
A.
is
a
cosening
fellow
,
and
the
greatest
Pickpurse
in
Northamptonshire
,
and
there
is
not
a
Purse
picked
within
40.
miles
of
Northampton
but
he
hath
a
hand
in
it
,
And
the
action
did
not
lye
because
he
did
not
aver
that
there
were
Purses
cut
.
Jones
Iustice
put
this
case
,
One
saith
,
that
A.
is
as
strong
a
Thief
as
any
is
in
Warwick
Gaol
,
he
ought
to
aver
that
there
is
a
Theef
in
Warwick
Gaol
,
or
otherwise
they
are
not
actionable
.
Doderidge
put
this
case
,
There
is
a
nest
of
Theeves
at
Dale
,
and
Sir
Iohn
Bridges
is
the
maintainer
of
them
,
these
are
actionable
,
because
it
implies
maintenance
.
Note
that
it
appeared
upon
a
motion
which
the
Attorney-generall
made
against
one
Lane
(
who
is
a
Recusant
in
Northamptonshire
)
that
a
Lease
for
years
made
by
a
Recusant
of
his
own
Lands
after
conviction
,
if
it
be
Bona
fide
will
bind
the
King
,
but
if
it
be
upon
fraud
and
covin
,
then
it
will
not
;
and
Whitlock
said
,
that
it
is
a
common
course
for
Recusants
to
make
Leases
after
their
Indictment
and
before
conviction
.
The
same
Term
in
the
same
Court
.
The
Case
of
the
Major
,
Bayliffs
,
and
Jurates
of
Maidstone
.
IN
a
Quo
warranto
depending
against
the
Mayor
,
Bayliffs
,
and
Iurates
of
Maidstone
in
Kent
,
Serjeant
Finch
of
Counsell
with
them
of
Maidstone
,
put
the
case
briefly
in
effect
thus
:
In
the
Quo
warranto
against
them
,
it
was
ordered
by
the
Court
that
they
should
have
day
to
plead
untill
afornight
after
Trinity
Term
,
and
the
truth
was
that
they
had
not
pleaded
accordingly
,
wherupon
Iudgment
was
entred
in
the
Roll
,
and
the
Writ
of
Seisin
awarded
,
and
execution
therupon
;
and
afterwards
by
a
private
order
in
the
Vacation
by
the
chief
Iustice
and
Iustice
Jones
,
it
was
ordered
that
the
Iudgment
should
be
staid
,
and
the
truth
was
,
that
it
was
never
entred
amongst
the
Rules
of
the
Court
,
and
therfore
he
prayed
that
the
Iudgment
might
not
be
filed
,
but
that
the
last
order
might
be
observed
,
and
that
they
might
amend
their
Plea
.
Hendon
Serjeant
on
the
other
side
said
,
that
it
could
not
be
,
for
by
the
Iudgment
given
the
King
was
intitled
to
have
the
profits
of
Franchises
which
he
shal
not
lose
;
&
he
cited
the
case
which
is
in
F.
N.
B.
21.
Error
in
B.
R.
cannot
be
reversed
the
same
Term
before
the
same
Iustices
without
a
Writ
of
Error
,
but
otherwise
it
is
in
C.
B.
and
he
said
,
that
the
same
course
was
observed
in
Eyre
,
there
can
be
no
pleading
in
Eyre
after
the
Eyre
determined
,
and
upon
this
he
cited
the
case
of
15
E.
4.
7.
before
the
Iustices
in
Eyre
,
if
the
Defendant
does
not
come
the
Franchises
shall
be
seised
into
the
Kings
hands
,
nomine
destinctionis
,
and
if
the
party
who
ought
the
Franchise
doth
not
come
during
the
Eyre
in
the
same
County
,
he
shall
forfeit
his
Franchise
for
ever
,
so
here
after
Iudgement
entred
,
there
can
be
no
plea
per
que
&c.
Finch
we
have
order
from
the
Court
for
stay
of
Iudgement
,
&
here
no
perfect
Iudgement
was
given
:
and
this
is
not
without
president
,
and
he
cited
one
Chamberlains
Case
,
where
the
Iudgement
was
nigh
to
perfection
&c.
but
he
did
not
put
the
Case
Creve
ch:
Justice
:
in
this
case
there
was
the
assent
of
the
Attorney
generall
,
who
prosecuted
the
Quo
Warranto
,
and
so
the
cases
put
by
Hendon
to
no
purpose
,
Jones
upon
F.
N.
B.
21.
J.
took
this
difference
,
true
it
is
that
the
Kings
Bench
cannot
reverse
a
Iudgement
although
it
be
in
the
same
term
without
a
Writ
of
Error
,
but
this
is
where
error
lies
in
And
for
the
Case
of
15.
E.
4.
7.
it
is
not
like
our
case
in
reason
,
for
when
memorandum
)
,
and
afterwards
there
is
an
order
that
the
Iudgement
shall
not
be
filed
,
if
the
Iudgement
upon
this
shall
be
stayd
:
and
speaks
to
it
,
and
by
him
the
Case
of
15.
E.
4.
7.
is
nothing
to
this
purpose
,
for
Iustices
in
Eyre
were
Iustices
by
commission
,
and
they
had
not
the
custody
of
their
Records
,
and
so
it
differs
from
this
case
.
And
Jones
Justice
(
which
was
not
denyed
)
if
a
Iudgement
be
pronounced
here
and
be
not
entered
,
the
Iudges
may
alter
it
the
next
Term.
It
was
said
by
Noy
in
this
case
that
all
Franchises
in
England
are
against
common
Right
,
and
execution
of
Iustice
,
and
for
the
present
purpose
,
he
cited
one
Sir
John
Wells
Case
,
where
in
a
Quo
Warranto
the
Defendant
had
day
to
plead
,
or
otherwise
that
judgement
should
be
entered
to
seise
,
and
he
failed
to
plead
at
the
day
,
and
the
Iudgement
was
not
filed
,
and
yet
he
could
not
be
relieved
:
But
it
was
sayd
by
some
of
the
Iustices
,
that
this
was
a
case
of
great
extremity
.
But
by
Hendon
it
was
affirmed
in
the
Exchequer
in
one
Sandersons
Case
,
and
in
the
principall
case
the
matter
was
adjourned
for
a
fortnight
,
and
ordered
that
the
plea
should
be
accorded
.
Mich.
Term
2.
Car.
in
the
Kings
Bench.
Sharp
versus
Rust
.
IN
an
Action
upon
the
Case
,
upon
an
Assumpsit
between
Sharp
,
Plaintiff
,
and
Walter
Rust
Defendant
,
upon
non-Assumpsit
pleaded
,
it
was
found
for
the
Plaintiff
,
and
it
was
moved
in
arrest
of
judgement
upon
these
words
in
the
Declaration
,
the
Defendant
(
being
Father
to
the
Plaintiffs
Wife
,
for
whom
the
Apparrel
was
bought
)
said
to
the
Plaintiff
,
deliver
the
Apparrel
to
my
Daughter
,
and
I
will
pay
for
them
,
and
saith
not
to
whom
the
payment
shall
be
made
:
And
it
was
argued
by
Woobrich
of
Grayes-Inne
that
this
is
no
sufficient
cause
to
stay
the
Iudgement
,
for
by
necessary
implication
and
reference
of
the
words
precedent
,
the
certainty
of
the
pers
on
appeareth
to
whom
the
payment
ought
to
be
made
.
And
he
observed
that
in
our
Law
the
time
,
the
estate
,
the
thing
,
and
the
person
not
being
sufficiently
expressed
,
Perkins
.
P.
496.
puts
the
Rule
,
if
a
condition
hath
relation
to
an
act
precedent
,
and
no
time
is
limited
when
it
shall
be
done
,
yet
if
ought
to
be
done
when
the
act
precedent
is
done
,
and
therefore
if
I.
S.
be
bound
to
me
in
20
l.
upon
condition
that
if
I
enfeoff
him
of
black
acre
,
that
then
he
wil
pay
me
10
l.
&c.
in
this
case
presently
when
I
have
enfeoffed
the
obligor
of
black
acre
he
ought
to
pay
the
10
l.
notwithstanding
there
be
no
time
limited
when
it
should
be
payd
.
2.
For
the
thing
being
put
incertainly
,
yet
the
communication
precedent
makes
this
certain
,
30.
H.
8.
Dyer
42.
in
the
Case
of
the
Executors
of
Greenliffe
,
where
it
is
agreed
,
that
albeit
it
is
not
shown
what
thing
is
granted
,
yet
it
shall
be
the
Land
of
which
the
communication
was
.
3.
For
the
Estate
,
although
it
be
incertain
,
yet
sometimes
it
is
made
certain
by
the
matter
precedent
,
as
in
the
Case
Co.
lib.
8.
A
Stewardship
was
granted
for
life
,
and
afterwards
an
Annuity
was
granted
for
the
exercise
of
that
Office
,
without
declaring
what
Estate
he
should
have
in
that
Annuity
,
and
resolved
that
he
should
have
the
Annuity
for
life
,
because
he
had
the
Office
for
life
.
4.
For
the
person
,
the
consideration
sometimes
ascertains
the
person
,
and
therefore
if
land
he
given
to
one
by
Deed
,
habendum
sibi
una
cum
filia
donatoris
,
in
frankmariage
,
this
shall
enure
to
both
,
because
the
Feme
is
Causa
donationis
,
and
by
intendment
of
law
the
Land
and
the
feme
shal
be
given
together
to
the
man
for
the
advancement
of
the
Feme
,
as
it
is
Mich.
2.
&
3.
Ph.
&
Mary
.
Dyer
126.
a
4.
E.
3.
4.
Plow
.
Com.
158.
enfeoff
him
&
another
,
and
bind
him
and
his
heirs
to
warrant
,
&
doth
not
say
to
whom
he
shall
warrant
,
yet
the
Feoffee
and
his
heirs
shall
have
advantage
of
this
warranty
,
for
it
cannot
have
any
other
intendment
:
6.
E.
2.
Voucher
.
258.
22.
E.
4.
16.
&
Kelleway
108.
&
Co.
lib.
8.
Whitlocks
Case
,
In
a
Lease
for
years
reserving
rent
,
it
is
the
surest
way
to
make
the
reservation
to
no
person
in
certain
,
but
to
leave
it
to
the
general
intendment
of
the
Law
,
15.
H.
7.
A
man
deviseth
that
his
Land
shall
be
sold
for
the
payment
of
his
debts
,
and
doth
not
say
by
whom
,
they
shall
be
sold
by
his
Executors
,
because
they
are
lyable
for
the
payment
of
his
debts
,
but
if
one
devise
that
his
land
shall
be
sold
,
&
saith
not
for
the
payment
of
his
debts
,
the
devise
is
void
,
because
the
Law
doth
not
intend
in
this
case
to
make
the
sale
40
E.
3.
5.
4.
E.
3.
Fitzherbert
Obligation
16.
Nota
,
if
a
man
be
bound
in
debt
or
Covenant
by
writing
,
and
puts
such
a
clause
in
the
writing
.
Et
ad
majorem
hujus
rei
securitatem
invenit
fidei
jussores
quorum
unusquisque
in
tot
.
&
in
solido
se
obligavit
,
that
although
none
speak
there
but
the
principall
in
the
writing
,
if
the
others
put
to
their
seals
,
they
accept
that
which
the
principal
spake
,
&
so
become
principal
:
2.
E
4.
20.
and
here
in
our
Case
it
appeareth
that
the
Deed
was
so
,
&
therefore
it
is
reason
that
the
Declaration
should
be
so
,
for
there
cannot
be
a
material
difference
between
the
Declaration
&
the
deed
,
&
especially
being
upon
an
agreement
which
is
to
be
ruled
according
to
the
intention
of
the
parties
,
as
it
is
in
Plow
:
Com.
140.
a.
In
our
Law
if
any
parties
be
agreed
upon
a
thing
,
and
words
are
expressed
or
written
to
make
the
agreement
,
although
they
be
not
apt
words
,
yet
if
they
have
substance
in
them
tending
to
the
effect
intended
,
the
Law
shall
take
The
same
Term
in
the
same
Court.
Beven
versus
Cowling
.
IN
an
Action
upon
the
Case
Littleton
mooved
in
arrest
of
Iudgment
for
the
Defendant
,
wherein
the
Case
was
this
,
the
Defendant
assumed
that
if
the
Defendant
would
defer
the
payment
of
a
bond
,
in
which
one
A.
was
bound
to
him
,
and
would
not
implead
him
upon
it
,
then
he
promised
to
pay
it
,
and
he
doth
not
say
,
that
he
deferred
the
payment
untill
such
a
day
,
and
therefore
this
is
no
valuable
consideration
,
so
that
the
action
doth
not
lye
,
for
notwithstanding
Mich
▪
12.
Jac
Kebles
Case
,
A
man
promiseth
to
pay
so
much
in
consideration
of
a
Lease
at
Will
,
and
it
was
holden
no
good
consideration
,
for
by
the
same
breath
that
he
creates
it
,
he
may
defeat
it
,
&
Pasch.
8.
Jac.
Austins
Case
:
A
man
promise
that
in
consideration
he
would
forbear
another
,
he
would
pay
it
,
and
no
time
was
limited
,
and
therefore
it
was
holden
no
good
consideration
.
Trin.
38.
Eliz.
Rot.
523.
A
man
promise
quod
non
implacitabit
,
and
avers
quod
non
implacitavit
,
and
because
of
the
uncertainty
it
was
holden
no
valuable
consideration
.
Doderidge
Justice
:
If
there
be
no
consideration
at
the
time
,
or
no
cause
of
Action
,
the
forbearance
afterwards
will
not
make
it
actionable
,
and
he
said
that
it
had
been
adjudged
in
this
Court
,
that
a
consideration
to
forbear
for
a
little
time
is
not
good
,
but
by
some
to
forbear
for
a
reasonable
time
is
good
.
But
in
the
principall
Case
upon
the
hearing
of
the
Declaration
read
,
it
appeared
,
that
it
was
,
that
he
should
never
implead
him
upon
the
said
obligation
,
so
that
if
the
Plaintiff
brings
an
Action
upon
the
obligation
,
the
Defendant
here
may
have
an
Action
upon
the
Case
against
him
.
Also
it
was
non
implacitabit
,
and
this
shall
be
taken
indefinitely
,
quod
nunquam
implacitabit
,
and
therefore
the
Iudgement
was
affirmed
,
for
otherwise
the
Plaintiff
shall
both
take
advantage
of
this
promise
and
of
the
bond
also
,
and
here
he
hath
in
a
manner
forsaken
the
benefit
of
his
bond
,
and
hath
betaken
himselfe
to
the
benefit
of
this
Assumpsit
.
By
Jones
and
Whitlock
Iustices
,
if
A.
be
bound
to
me
,
and
I
enter
into
bond
to
him
,
that
I
will
not
sue
this
Obligation
,
I
cannot
sue
him
upon
the
first
Obligation
,
without
forfeiture
of
my
bond
:
and
by
Doderidge
,
if
an
Obligation
be
forfeited
,
and
I
say
to
the
Obliger
,
do
not
sue
the
Obligor
,
or
do
not
implead
him
,
an
Action
upon
the
case
lies
against
me
.
The
same
Term
in
the
same
Court.
Arnold
versus
Dichton
.
IN
an
Action
upon
the
Case
,
and
Non-Assumpsit
pleaded
,
it
was
found
for
the
Plaintiff
,
and
Noy
mooved
in
arrest
of
Iudgement
,
that
there
was
no
consideration
to
maintain
this
Action
,
the
Case
being
thus
:
Arnold
having
married
the
Daughter
of
the
Defendents
Testator
,
the
Testator
promised
to
give
him
40
l.
and
meat
●nd
drink
for
a
year
,
and
a
Featherbed
and
Bolster
,
and
afterwards
the
Testator
in
consideration
that
the
Plaintiff
would
Tho.
P.
one
of
his
Sons
200
l.
and
that
he
left
him
at
the
time
of
his
death
,
but
30
l.
but
when
he
gave
to
Tho.
P.
the
200
l.
appeares
not
,
peradventure
it
might
be
in
his
life
time
,
and
this
promise
doth
not
extend
to
that
which
he
had
given
before
,
as
if
a
man
be
bound
to
keep
a
Goale
,
and
that
no
prisoner
shall
escape
,
this
only
extends
to
a
future
keeping
,
and
future
escapes
,
and
not
to
other
escapes
which
were
before
.
True
it
is
,
that
sometimes
the
Law
will
alter
the
sense
,
as
in
the
Case
of
32.
H.
6.
where
a
man
is
bound
that
his
Feoffees
&c.
And
at
another
day
Doderidge
said
,
that
the
first
promise
was
but
an
inducement
to
the
second
,
and
the
Defendant
hath
pleaded
Non
Assumpsit
to
the
last
promise
,
and
then
comes
the
Plaintiff
and
shews
that
he
gave
to
such
a
one
200
l.
and
doth
not
shew
when
this
was
given
,
and
this
may
be
before
the
promise
,
and
therefore
I
conceive
the
Declaration
is
not
good
:
Jones
agreed
that
the
Declaration
is
not
good
,
for
admit
that
in
this
case
he
had
given
to
all
his
children
but
one
,
great
portions
before
the
said
promise
,
and
had
given
a
small
portion
to
one
after
the
promise
,
the
Plaintiff
now
shall
have
but
according
to
the
said
promise
,
and
it
is
alledged
here
,
that
he
gave
to
such
a
one
200
l.
which
may
be
before
the
promise
,
and
therefore
the
breach
not
well
laid
.
Whitlock
contra
:
and
that
the
Plaintiff
shall
have
according
to
the
best
gift
in
this
case
,
whether
it
were
before
or
after
the
promise
,
and
that
upon
the
intention
of
the
promise
;
for
the
intention
is
,
that
the
Plaintiff
should
have
as
good
a
marriage
or
portion
with
his
Daughter
,
as
any
other
of
his
children
should
have
:
But
by
Doderidge
this
construction
cannot
be
made
without
offering
violence
to
the
words
,
for
then
daret
should
be
for
dedisset
,
and
for
any
thing
which
appeareth
he
had
a
portion
before
,
and
this
was
but
a
superaddition
.
Jones
put
this
case
:
I
am
bound
to
enfeoff
J.
S.
of
so
much
Land
as
I
will
enfeoff
J.
D.
this
extends
not
to
a
Feoffment
which
I
have
made
to
J.
D.
before
,
but
only
to
a
Feoffment
which
I
shall
make
to
him
afterwards
,
which
was
not
denied
by
Whitlock
,
and
it
was
adjourned
.
The
same
Term
,
in
the
same
Court.
Barker
versus
Ringrose
.
BArker
brought
an
Action
upon
the
Case
against
Ringrose
,
and
declared
,
that
whereas
he
was
of
good
fame
,
and
exercised
the
Trade
of
a
Wool-winder
,
the
Defendant
spake
these
scandalous
words
of
him
,
that
he
was
a
Jones
Justice
:
If
one
saith
of
a
Wool-winder
,
that
he
is
a
false
Wool-winder
,
action
upon
the
Case
lieth
;
and
it
was
demanded
by
the
Court
,
that
he
is
a
Bankrupt
,
Action
lyes
,
and
so
it
hath
been
adjudged
of
a
Shoo-maker
:
and
note
that
if
one
saith
of
any
man
(
who
by
his
Trade
may
become
a
Bankrupt
within
the
that
he
is
a
Bankrupt
,
an
Action
lies
,
as
of
a
Taylor
,
Fuller
,
&c.
And
the
Court
seemed
to
incline
,
that
in
this
case
(
being
spoken
of
a
Wool-winder
in
London
)
the
Action
lies
:
But
Mich.
3.
Car.
the
Case
being
moved
again
,
the
Court
was
of
opinion
,
that
the
Action
could
not
lye
,
and
would
not
give
Iudgement
for
the
Plaintiff
.
The
same
Term
in
the
same
Court
.
NOta
by
Doderidge
and
Jones
,
Iustices
,
that
upon
the
principall
Iudgement
reversed
,
the
outlawry
is
also
Ipso
facto
reversed
:
Also
if
an
It
was
demanded
by
the
Iustices
,
when
the
outlawry
and
Iudgement
are
affirmed
,
how
the
entry
is
?
And
it
was
answered
by
Broome
Secondary
,
that
the
entry
is
generall
,
Quod
judicium
affirmetur
in
omnibus
:
and
this
sufficeth
.
But
if
the
Iudgement
be
affirmed
,
and
the
outlawry
reversed
,
then
the
entry
is
.
Quod
judicium
affirmetur
&
Utlagario
cassetur
.
The
same
Term
in
the
same
Court
.
Calfe
,
and
others
,
versus
Nevil
and
others
.
AScire
facias
was
brought
by
Joseph
Calfe
and
Joshua
,
Executors
of
A.
against
Nevil
Davyes
and
Bingley
,
and
the
Case
was
this
:
they
became
bayle
to
one
Hall
(
who
was
condemned
in
an
Action
to
the
Testator
of
the
Plaintiff
)
that
the
said
Hall
should
either
render
his
body
to
Prison
,
or
that
he
should
satisfie
the
Iudgement
,
the
Defendents
Plead
,
that
after
the
Scire
facias
returned
,
and
presently
after
the
Iudgement
,
the
said
Hall
brought
a
Writ
of
Error
in
the
Exchequor
Chamber
,
hanging
which
,
the
said
Hall
,
reddidit
se
prisonae
in
exoneratione
manucaptorum
suor
:
and
there
dyed
;
and
the
Plaintiffe
demurred
upon
this
Plea
,
because
it
was
double
,
and
Calthorp
argued
for
the
Plaintiff
,
that
it
was
double
or
rather
treble
.
-
1.
That
Reddidit
se
prisonae
.
-
2.
That
he
was
imprisoned
.
-
3.
that
he
dyed
in
Prison
.
And
to
prove
the
Piea
double
in
this
Case
,
he
cited
13.
H.
8.
15.
16.
4.
E.
4.
4.
21.
H.
7.
10.
The
second
matter
that
he
moved
against
the
former
was
,
that
pendant
the
Writ
of
Error
reddidit
se
prisonae
,
and
doth
not
conclude
upon
the
Record
,
&
hoc
peratus
est
verificare
,
as
he
ought
to
have
done
,
and
for
this
he
cited
7.
H.
8.
Kelleway
118.
If
J.
S.
bee
bound
in
a
Recognizance
,
that
A.
shall
appeare
such
a
day
before
the
Kings
Iustices
at
Westminster
,
if
his
appearance
be
not
recorded
hee
shall
not
have
any
averment
,
by
Bricknell
,
and
Conisby
,
and
in
30.
Eliz.
It
was
one
Wicks
Case
,
which
is
ours
in
effect
in
case
of
baile
,
Dyer
27.
6.
E.
4.
1.
2.
For
the
matter
the
Plea
is
nought
,
1.
Because
by
the
Writ
of
Error
brought
,
the
Scire
facias
against
the
baile
is
not
suspended
,
because
the
Bayle
is
a
distinct
record
;
and
upon
this
he
cited
the
Case
of
the
Ambassador
of
Spain
against
Captaine
Gifford
,
which
was
,
Trin.
14.
Jac.
That
by
the
Writ
of
Error
brought
the
baile
was
not
suspended
,
and
he
said
that
it
was
so
resolved
also
in
Goldsmith
and
Goodwins
Case
.
2.
For
the
render
of
the
principall
to
prison
,
it
is
not
good
,
because
it
doth
not
appear
upon
Record
:
and
for
this
he
cited
one
Austin
and
Monkes
Case
,
which
was
in
14.
Jac.
In
Scire
facias
against
the
baile
,
it
is
pleaded
that
the
principall
had
rendered
himselfe
to
prison
,
and
upon
the
matter
it
appeared
,
that
the
render
was
upon
Candlemas
day
,
which
is
not
Dies
juridicis
;
and
so
the
Court
this
day
had
no
power
to
commit
him
to
prison
,
for
which
the
Plea
was
adjudged
voyd
.
3.
For
the
death
it
is
no
Plea
;
the
baile
by
it
is
not
discharged
,
because
he
hath
not
rendered
himselfe
in
due
time
;
and
for
this
he
cited
Justice
Williams
and
Vaughans
Case
,
which
was
Mich.
3.
Jac.
where
in
Scire
facias
against
the
baile
they
pleaded
that
the
principall
was
dead
,
and
thereupon
the
Plaintiff
demurred
,
and
in
this
Case
two
points
were
resolved
.
1.
There
was
no
Capias
mentioned
to
have
issued
against
the
principall
,
and
yet
resolved
that
a
Scire
facias
would
lye
against
the
Baile
.
2.
That
the
Plea
in
Bar
is
not
good
,
because
it
may
be
that
the
principal
dyed
after
the
Capias
awarded
,
or
after
the
return
thereof
,
because
it
appeareth
that
there
was
once
a
default
in
the
principal
,
and
so
the
baile
forfeited
,
and
no
Plea
afterwards
would
discharge
it
,
and
upon
this
he
put
this
Case
:
A
Prisoner
escape
out
of
Prison
,
the
Goaler
makes
fresh
suit
,
and
before
he
hath
taken
him
,
the
Prisoner
dies
,
this
is
the
act
of
God
,
and
yet
because
it
was
once
an
escape
,
an
Action
of
Escape
lyes
against
the
Goaler
:
Jermy
for
the
Defendent
;
and
he
remembred
a
Case
which
was
Hil
:
20.
Jac.
Cadnor
and
Hildersons
Case
,
that
by
the
Writ
of
Error
,
the
bayle
is
suspended
.
Nota
,
that
it
was
agréed
by
the
Court
in
this
case
,
that
by
the
Writ
of
Error
brought
in
,
the
bayle
was
not
discharged
,
because
it
is
incertain
whether
the
Iudgement
shall
be
reversed
or
not
:
Also
it
was
agreed
,
that
if
the
principal
dies
before
a
Capias
awarded
against
him
,
that
the
bayle
is
discharged
:
It
was
also
agreed
by
the
Court
,
that
the
Plea
was
not
double
,
for
the
first
matters
are
but
an
inducement
to
the
last
;
and
yet
by
Doderidge
,
if
severall
matters
are
pleaded
in
Bar
,
and
there
be
not
any
dependency
on
them
,
the
Jones
Justice
cited
one
Hobs
and
Tadcasters
Case
;
which
was
43.
Eliz.
in
B.
R.
where
after
a
Writ
of
Error
brought
,
a
Scire
facias
issued
against
the
Bayle
,
and
upon
Nihil
returned
,
the
Plaintiff
in
the
Scire
facias
brought
in
an
Audita
Quaerela
,
and
there
the
matter
came
in
question
,
whether
upon
the
Iudgement
the
Principall
ought
presently
render
himself
to
prison
,
or
that
he
should
stay
until
a
Capias
awarded
against
him
,
and
there
it
was
resolved
by
Popham
and
all
his
Companions
,
that
the
Principal
is
not
bound
to
render
himselfe
to
Prison
,
untill
a
Capias
be
taken
out
;
so
that
if
he
dies
after
the
Iudgement
,
and
before
the
Capias
awarded
against
him
,
the
Bayle
is
discharged
.
And
in
the
principal
Case
here
it
was
resolved
,
that
a
Scire
facias
does
not
lye
against
the
Bayle
,
until
a
Capias
be
awarded
against
the
Principal
:
&
because
no
Capias
in
this
case
was
awarded
against
the
Principal
(
which
could
not
be
by
reason
of
the
Writ
of
Error
)
before
his
death
.
And
also
the
Plaintiff
in
his
Declaration
ought
to
have
averred
,
and
shewn
that
the
Capias
was
awarded
against
the
Principal
;
for
these
reasons
Iudgement
was
given
quod
quaerens
nil
capiet
per
Billa
.
The
same
Term
in
the
same
Court.
Reynor
versus
Hallet
.
IN
an
Action
upon
the
Case
for
these
words
,
viz.
Reynor
is
a
base
Gentleman
,
he
hath
four
children
by
his
Servant
Agnes
,
and
he
hath
killed
them
all
,
or
caused
them
to
be
killed
;
and
after
a
verdict
for
the
Plaintiff
,
it
was
moved
in
arrest
of
Iudgement
by
Jermy
,
that
the
words
were
not
actionable
:
For
1.
As
to
the
first
words
,
Base
Gentleman
,
they
are
but
words
of
choller
.
2.
The
next
words
,
He
hath
four
Children
by
his
servant
Agnes
,
cannot
be
actionable
,
for
although
she
were
once
his
servant
,
yet
she
might
be
afterwards
his
Wife
.
3.
The
Plaintiff
hath
averred
in
his
Declaration
,
that
he
hath
lived
continently
,
and
then
he
cannot
have
children
by
his
servant
Agnes
,
and
then
the
words
are
not
actionable
.
And
4.
For
saying
he
hath
killed
them
is
not
actionable
,
and
upon
this
he
cited
one
Snags
Case
,
Co.
lib.
4.
who
brought
an
Action
for
these
words
,
Thou
hast
killed
thy
Wife
;
and
it
appeared
by
the
Declaration
,
that
his
Wife
was
alive
,
and
therefore
it
was
resolved
,
that
the
words
were
not
actionable
.
And
as
to
the
last
exception
,
it
was
said
by
Ashley
Serjeant
on
the
other
side
,
that
albeit
the
Plaintiff
hath
averred
in
his
Declaration
,
that
he
lived
continently
,
and
so
in
a
manner
confessed
that
he
had
no
children
,
this
is
but
for
the
aggravation
of
the
offence
of
the
Defendant
:
as
when
an
Action
is
brought
for
calling
one
Thiefe
,
he
avers
that
he
lived
honestly
,
and
yet
the
Action
will
lye
.
But
I
confesse
if
the
Plaintiff
had
averred
that
he
never
had
any
child
,
then
it
would
be
like
to
Snags
Case
,
Co.
lib.
4.
16.
a.
and
that
the
Action
would
not
lye
.
But
in
Anne
Davyes
Case
,
there
she
averred
,
that
she
was
a
Virgin
of
good
fame
,
and
frée
from
all
suspition
of
incontinency
;
and
the
Defendant
sayd
that
a
Grocer
had
got
her
with
child
:
Owen
Wards
Case
in
Cook
,
Book
of
Entries
hath
the
same
Declaration
as
this
,
and
it
was
the
President
thereof
.
But
Jermy
moved
another
exception
upon
these
words
,
he
hath
killed
them
,
and
doth
not
say
Felony
,
which
is
not
good
,
for
he
migt
kill
them
in
execution
of
Iustice
,
which
is
justifiable
,
Trin.
2.
Jac.
Willers
Case
in
the
Court
,
it
was
adjudged
,
that
for
these
words
,
Thou
hast
stollen
a
peece
,
and
I
will
charge
thee
with
Felony
,
an
Action
lies
not
,
because
a
péece
is
a
word
of
doubtfull
signification
.
And
Trin.
20.
Jac.
It
was
resolved
that
these
words
(
Agnes
Knight
is
a
Witch
)
were
not
Actinable
:
but
it
was
answered
of
the
other
side
.
that
upon
the
whole
frame
of
these
words
,
they
cannot
be
intended
but
to
be
spoken
malitiously
,
and
there
can
be
no
pretenc●
of
lawfull
killing
of
children
:
Doderidge
,
all
the
words
joyned
together
are
actionable
;
but
these
words
only
considered
,
he
hath
four
children
by
his
servant
Agnes
,
are
not
Actionable
,
and
albeit
he
doth
not
alledge
it
felony
,
yet
this
is
a
scandall
,
and
good
cause
of
Action
.
Jones
agreed
,
and
yet
he
conceived
,
that
for
saying
singly
,
that
one
hath
a
Bastard
,
an
Action
lies
not
,
albeit
the
having
of
a
Bastard
be
punishable
by
the
Statute
of
18.
Eliz.
cap.
1.
But
by
him
he
hath
killed
the
King
.
shall
be
taken
in
pejori
sensu
;
otherwise
it
is
,
if
the
words
of
themselves
be
indifferent
,
as
(
Pope
)
and
this
word
shall
not
be
the
rather
taken
in
pejori
sensu
,
having
relation
to
all
the
sentence
:
for
the
contrariety
of
the
Declaration
,
it
seems
to
me
,
that
the
Declaration
is
good
enough
,
but
if
one
saith
,
Thou
hast
killed
J.
S.
where
in
truth
,
there
never
was
such
a
man
,
it
is
not
actionable
.
But
here
the
Averment
of
the
Plaintiff
is
more
generall
,
Ubi
re
vera
,
he
is
not
guil●y
or
incontinent
,
which
is
a
general
allegation
:
but
if
he
had
averred
ubi
re
vera
,
he
never
had
any
child
,
there
peradventure
the
Action
would
not
lye
,
but
here
it
will
:
Whitlock
Justice
agreed
,
and
he
sayd
that
the
first
words
,
hath
had
four
children
by
his
Maid
Agnes
are
actionable
,
and
for
the
other
matters
they
agreed
,
whereby
Iudgement
was
given
for
the
Plaintiff
.
The
same
Term
in
the
same
Court
.
THis
Term
in
the
Common-place
,
Sargeant
Hendon
cited
this
Case
to
be
adjudged
4.
Jac.
A
Copy-holder
made
a
Lease
for
yeares
by
License
,
and
the
Lessee
dyed
,
that
this
Lease
shall
not
be
accounted
assets
in
the
hands
of
the
Excecutors
,
neither
shall
it
be
extended
:
But
the
Case
was
denyed
by
Iustice
Hutton
and
others
,
and
that
an
Ejectione
firmae
lies
of
such
a
Lease
.
But
he
said
,
that
if
a
Copy-holder
makes
a
Lease
for
yeares
by
License
of
the
Lord
,
and
dyes
without
Heire
,
the
years
not
expired
,
the
Lord
notwithstanding
this
may
enter
,
for
the
Estate
out
of
which
this
Lease
was
derived
is
determined
:
But
Yelverton
Iustice
was
contra
,
because
this
License
shall
be
taken
as
a
confirmation
of
the
Lord
,
and
therefore
the
Lease
shall
be
good
against
him
,
and
there
(
as
I
heard
)
it
was
argued
by
all
,
that
if
a
Copy-holder
makes
a
Lease
for
a
yeare
,
this
is
a
Lease
by
the
Common-Law
,
and
not
customary
,
and
shall
be
counted
assets
in
the
hands
of
the
Executors
of
the
Lessée
.
The
same
Term
,
in
the
Kings
Bench.
NOta
,
upon
evidence
to
a
Iury
between
Buffield
and
Byburo
,
the
Case
appeared
to
be
this
,
upon
a
Devise
with
these
words
,
I
will
and
devise
that
A.
and
B.
my
Feoffees
shall
stand
seised
,
and
be
seised
to
and
of
Iohn
Callis
for
life
,
the
remainder
&c.
And
the
truth
was
that
he
had
no
Feoffees
:
and
the
opinion
of
the
whole
Court
(
nullo
contradicente
)
was
,
that
this
is
a
good
Devise
to
John
Callis
,
by
reason
of
the
intention
.
38.
H.
8.
Bro.
Devis
.
48.
&
15.
Eliz.
Dyer
323.
were
urged
for
the
proofe
of
it
,
and
by
Doderidge
the
Case
of
15.
Eliz.
is
more
strong
then
our
Case
is
:
Linyen
made
a
Feoffment
to
his
own
use
,
and
afterwards
devised
that
his
Feoffees
should
be
seised
to
the
use
of
his
Daughter
A.
who
in
truth
was
a
Bastard
,
and
yet
this
is
a
good
Devise
of
the
Land
by
intention
,
for
by
no
possibility
they
can
be
seised
to
his
use
.
Mich.
2.
Car.
Lemasons
and
Dicksons
Case
in
the
Kings
Bench.
Trin.
2.
Car.
Roll.
1365.
THe
Case
was
this
,
One
Parcevall
Sherwood
was
indebted
to
Susan
Clarke
,
who
brought
an
Action
of
debt
,
by
a
Bill
of
Middlesex
,
which
is
in
nature
of
a
Writ
of
Trespas
against
him
,
and
Sherwood
upon
a
mean
Proces
was
arrested
by
the
Defendant
(
being
Bayliff
of
the
Liberty
of
White-Chappel
)
and
being
in
his
custody
,
he
suffered
him
to
escape
:
Afterwards
Susan
Clarke
made
the
Plaintiff
her
Executor
,
and
dyed
,
and
then
the
Plaintiff
brought
an
Action
upon
the
Case
against
the
Defendant
upon
the
said
escape
;
and
upon
issue
joyned
,
it
was
found
for
the
Plaintiff
.
And
Calthrop
of
Councel
with
the
Plaintiff
,
moved
,
that
the
Action
will
well
lye
,
for
the
Testator
himselfe
might
have
had
either
an
Action
of
Debt
,
or
upon
the
case
upon
the
sayd
Escape
,
and
therefore
the
Executor
may
have
the
same
remedy
,
and
that
by
the
equity
of
the
Statute
of
4.
E.
3.
cap.
7.
which
gives
an
Action
to
Executors
pro
bonis
asportatis
in
vita
Testatoris
,
And
by
14.
H.
7.
17.
this
Statute
shall
be
taken
by
equity
,
and
Administrators
,
who
are
in
the
same
mischiefe
shall
have
the
same
remedy
,
albeit
they
be
not
named
in
the
Statute
,
old
Nat.
Brevium
103.
An
Executor
shall
have
a
Quare
impedit
for
a
disturbance
made
in
vita
Testator
,
and
7.
H.
4.
6.
and
old
Nat.
Brev.
123.
b.
An
Executor
shall
have
an
Ejectione
firmae
of
an
ouster
made
to
the
Testator
,
17.
E.
3.
Executors
106.
An
Executor
shall
have
a
Replevin
of
Goods
taken
in
vita
Testatoris
,
and
it
hath
been
oftentimes
resolved
,
that
an
Executor
shal
have
a
Trover
and
Conversion
of
Goods
taken
and
converted
in
vita
Testator
.
Doderidge
,
demanded
of
him
the
reason
why
an
Action
upon
the
Case
upon
an
Escape
in
the
life
of
the
Testator
,
should
not
lye
against
an
Executor
,
to
which
he
answered
,
because
it
was
a
meer
personall
wrong
.
Doderidge
,
so
is
the
wrong
here
;
and
he
said
that
an
Executor
cannot
have
an
action
Vi
&
armis
,
for
a
trespas
done
in
vita
Testator
,
and
in
this
case
because
the
escape
was
in
vita
Testator
,
it
is
a
personall
wrong
to
him
,
for
which
the
Executor
shall
not
have
an
action
upon
the
case
.
But
it
had
been
otherwise
,
if
the
escape
had
been
after
the
death
of
the
Testator
,
and
the
Statute
of
7.
E.
3.
doth
not
extend
to
it
,
because
this
Statute
is
only
for
Goods
,
but
I
agree
to
the
case
of
Trover
and
Conversion
.
Jones
Justice
,
If
this
action
upon
the
case
will
not
lye
by
the
Executor
,
it
would
be
a
mischievous
case
,
for
as
soon
as
the
Creditor
dies
,
the
Goalor
will
and
may
suffer
the
Prisoner
to
escape
,
because
none
can
have
an
action
against
him
,
but
as
it
appeareth
by
the
Case
of
15.
Eliz.
Dyer
.
The
case
is
as
mischievous
for
the
Creditor
,
if
the
Goalor
suffers
an
escape
,
and
dyes
,
for
there
no
action
lyes
against
the
Executors
.
And
for
the
case
of
Quare
impedit
,
I
agree
to
it
,
and
so
it
was
resolved
in
Brokesbyes
Case
,
31.
Eliz.
that
an
Executor
shall
have
a
Quare
impedit
for
a
disturbance
made
in
vita
Testator
,
if
the
avoydance
be
a
Chattel
vested
,
and
therefore
within
the
equity
of
the
Statute
,
which
gives
an
action
de
bonis
Testator
,
and
he
was
commanded
to
move
it
another
time
.
And
at
another
day
in
Hillary
Term
,
next
after
,
Grigs
said
for
the
Defendant
,
that
the
Executor
cannot
have
this
action
for
an
escape
in
vita
Testator
,
because
it
is
a
meer
personall
action
given
to
the
Testator
,
&
moritur
cum
persona
,
and
cited
15.
Eliz.
Dyer
,
Whitakers
Case
,
and
that
it
is
meerly
personall
appeareth
by
10.
Eliz.
Dyer
271.
Where
an
Executor
shall
not
be
charged
with
an
ascape
in
vita
testator
,
generally
,
where
not
guilty
is
a
good
Plea
,
there
an
Action
doth
not
lye
for
it
against
Executors
.
And
this
Case
is
not
within
the
equity
of
the
Statute
of
4.
E.
7.
But
it
hath
been
objected
that
an
Ejectione
firmae
is
within
the
equity
of
this
Statute
for
the
Executors
to
have
it
7.
H.
4.
6.
but
the
reason
there
,
is
,
because
it
is
to
recover
the
Term
it selfe
;
and
not
d●mages
only
:
and
upon
the
same
reason
an
Action
of
Covenant
,
upon
a
Covenant
broken
in
the
life
of
the
Testator
,
is
maintainable
by
an
Executor
,
and
that
also
is
the
reason
of
the
Case
of
the
Qua
:
impedit
,
because
there
the
presentation
is
to
be
recorded
:
but
in
our
Case
damages
only
are
to
be
recorded
upon
the
escape
,
and
so
they
are
not
alike
.
2.
The
Arrest
here
is
upon
mean
Proces
,
and
upon
a
Bill
of
Middlesex
,
which
is
but
in
nature
of
a
Trespasse
before
Declaration
,
and
I
conceive
that
if
one
be
taken
by
a
Cap:
ad
satisfaciendum
at
the
sute
of
one
,
albeit
the
party
at
whose
Suit
he
is
taken
,
dyes
,
yet
he
shall
be
detained
in
execution
,
but
I
conceive
the
Law
to
be
otherwise
upon
a
Cap:
ad
respondend
:
and
albeit
the
Plaintiff
saith
,
that
the
Arrest
was
,
ea
intentione
,
to
declare
against
him
in
an
Action
of
Debt
,
yet
an
intent
is
a
secret
thing
,
and
albeit
the
Executor
represent
the
person
of
the
Testator
,
yet
he
cannot
follow
it
,
and
it
is
impossible
to
prove
the
intent
.
Jermy
for
the
Plaintiff
said
,
that
there
is
a
difference
,
where
an
Action
is
brought
by
,
and
where
against
Executors
,
and
this
appeareth
by
Littletons
Case
,
that
an
Action
of
account
doth
not
lye
against
Executors
for
want
of
privity
as
to
that
purpose
,
but
it
is
cleer
that
account
lies
by
Executors
,
because
this
is
a
point
of
interest
:
And
here
in
this
Case
,
the
Testator
had
interest
in
the
body
by
the
arrest
,
and
this
appeareth
in
Hichcocks
Case
,
cited
in
Hargraves
Case
in
the
Lord
Cooks
5.
Report
,
and
by
the
Arrest
the
body
of
the
party
is
as
a
Chattel
in
the
Testator
:
and
he
compared
this
to
the
case
of
7.
H.
4.
2.
&
3.
Fitzherberts
Executors
52.
An
Executor
shall
have
a
ravishment
of
ward
for
a
taking
in
the
time
of
the
Testator
.
And
7
H.
4.
6.
and
a
Case
cited
by
Hankford
,
that
if
one
enter
upon
a
Statute
Merchant
,
who
dyes
,
his
Executor
shall
have
an
assize
,
and
therefore
I
conceive
,
that
if
a
Tenant
by
Elegit
be
ousted
and
bring
an
Assize
,
if
the
Executors
be
custed
again
,
he
shall
have
a
redisseisen
upon
the
first
●uster
,
because
the
Interest
continues
in
him
which
was
in
the
first
Testator
,
and
it
is
to
be
observed
in
our
law
,
that
the
Law
inlargeth
it selfe
to
give
to
Executors
the
same
remedy
which
the
Testator
had
,
and
thereupon
he
cited
Co.
lib.
6.
80.
a.
&
3.
Eliz.
Dyer
.
301.
And
in
our
Case
the
body
of
the
party
was
in
the
Testator
,
as
a
gage
till
appearance
,
so
that
it
was
not
only
a
personall
tort
.
for
he
had
an
interest
,
and
this
appeareth
by
Co.
lib.
5.
27.
by
a
Case
put
in
Russels
Case
there
,
and
if
the
Executors
shall
not
in
this
Case
have
an
Action
,
it
would
be
very
mischievous
.
for
so
the
Goalor
shall
suffer
escapes
dispunishable
,
20.
E.
3.
Fitz.
Executors
74.
But
as
to
this
reason
it
was
answered
by
Jones
Justice
,
that
the
same
mischiefe
is
of
the
other
side
,
if
the
Goaler
suffer
an
escape
and
dies
,
and
Action
lies
not
against
his
executors
.
Calthrop
on
the
same
side
cited
F.
N.
B.
121.
a.
that
a
man
condemned
in
debt
,
and
imprisoned
,
if
the
Goalor
suffer
him
to
escape
,
the
Party
,
or
his
Executor
may
have
debt
against
the
Goalor
:
And
he
said
,
that
at
Common
Law
,
Debt
lay
against
a
Goalor
upon
an
escape
,
as
appeares
in
Fitz.
Debt
127.
38.
H.
C.
placit
36.
And
if
it
were
a
debt
in
the
Testator
,
then
Executors
may
have
an
Action
upon
it
.
But
by
Doderidge
Iustice
in
the
said
case
,
debt
lies
not
at
Common-Law
,
for
to
what
purpose
was
the
Statute
made
?
But
for
the
point
in
Question
,
his
sudden
opinion
,
was
,
the
Executor
shall
have
this
Action
,
and
that
it
is
within
the
equity
of
the
Statute
of
4.
E.
3.
for
it
is
a
wrong
,
although
it
were
upon
meane
Proces
,
and
the
tort
continues
as
to
the
Executor
,
for
every
thing
which
makes
to
the
hinderance
of
the
Execution
of
the
will
,
is
wrong
to
him
,
and
the
performance
of
Wills
is
much
favoured
,
because
it
is
the
last
desire
of
the
Partie
who
is
dead
,
and
it
is
for
the
publick-weale
,
because
by
this
means
debts
shall
be
payd
.
And
many
cases
are
within
the
equity
of
the
Statute
,
that
are
not
within
the
letter
,
as
those
Cases
which
have
been
put
,
all
which
he
agreed
:
Jones
Iustice
on
the
sudden
was
against
it
,
and
that
this
Case
is
not
within
the
equity
of
the
Statute
of
4.
E.
3.
There
are
divers
Actions
which
are
not
helped
by
this
Statute
,
as
Trespasse
for
cutting
of
Trees
,
Battery
,
and
the
like
;
for
the
Statute
is
,
de
bonis
&
Catallis
asportat
in
vita
testator
:
An
Executor
shall
have
a
Replevin
of
Goods
taken
in
vita
testator
,
for
by
this
he
recovers
the
thing
it selfe
,
and
shall
have
Detinue
,
but
shall
not
have
tre●passe
,
for
he
cannot
punish
the
wrong
done
in
the
life
of
the
Testator
.
The
Statute
of
4.
E.
3.
is
much
inlarged
by
equity
,
as
the
cases
which
have
been
put
,
and
extend
also
to
usurpation
in
the
life
time
of
the
Testator
,
as
appears
in
Russels
Case
Co.
lib
,
5.
&
32.
&
33.
Eliz.
in
C.
B.
in
the
Bishop
of
Chichesters
case
,
that
if
the
Testator
dyes
within
6
months
after
the
usurpation
,
the
Executor
shall
have
a
Quare
impedit
,
And
the
Case
of
Trover
and
Conversion
in
vita
Testator
,
was
maintained
by
Executors
,
and
it
was
so
resolved
41.
and
42.
Eliz.
in
the
Countesse
of
Rutlands
Case
in
both
the
Benches
,
because
this
is
in
nature
of
a
Writ
of
Detinue
.
Now
for
the
Case
in
question
,
I
conceive
that
it
is
not
within
the
Statute
of
4.
E.
3.
because
it
is
neither
bona
nor
catalla
.
Whitlock
Iustice
contra
,
and
that
this
Statute
is
very
much
taken
by
equity
,
&
praeter
literam
,
though
not
contra
literam
.
But
Nota
,
that
all
agreed
,
if
it
were
upon
an
escape
after
Iudgement
,
that
the
Action
would
lie
by
the
Executors
▪
according
to
the
Case
of
F.
N.
B.
121.
a.
But
the
principall
Case
was
adjourned
.
And
afterwards
Trin.
3.
Car.
It
was
argued
again
by
Jermy
for
the
Plaintiff
,
and
the
sole
point
was
,
A
man
taken
by
latitat
.
and
being
in
the
custody
of
the
Sheriff
escape
,
the
Party
at
whose
suit
he
was
arrested
dies
,
whether
his
Executor
shall
have
an
Action
upon
the
Case
upon
the
Escape
,
and
he
conceived
that
he
might
.
It
hath
been
objected
,
that
it
is
a
personall
wrong
,
and
as
an
Action
doth
not
lye
against
Executors
upon
an
Escape
,
in
vita
Testator
,
so
not
by
Execucutors
:
To
which
I
answer
,
that
it
is
not
meerly
personall
,
but
mixed
with
an
interest
.
At
the
Common-Law
,
an
Executor
could
not
have
trespas
for
Goods
taken
in
vita
Testator
,
but
yet
he
should
have
a
Replevin
,
34.
E.
3.
Fitz.
Avoury
257.
and
Executors
106.
So
at
Common-Law
,
a
Successor
should
not
have
Trespas
,
for
Goods
carried
away
in
the
life
time
of
his
Predecessor
,
but
he
shall
have
a
Replevin
,
9.
H.
6.
25
,
but
this
was
remedied
by
the
Statute
of
Marlebridge
cap.
28.
and
so
upon
the
Statute
of
4.
E.
3.
de
bonis
asportat
&c.
Trover
and
Conversion
hath
beene
adjudged
within
the
said
Statute
,
for
the
Statute
hath
alwayes
been
liberally
expounded
.
7.
H.
4.
2.
Fitz
,
Executor
52.
An
Executor
shall
have
ravishment
of
Gard
taken
away
in
vita
Testator
,
and
also
other
Statutes
which
do
not
name
Executors
,
have
beene
e●pounded
to
extend
to
them
,
as
the
Statute
of
23.
H.
8.
which
gives
attaint
.
3.
Eliz.
Dyer
201.
Co.
lib.
6.
8.
Executors
shall
take
benefit
of
the
pardon
of
Jac.
P●obe
and
Maynes
Case
,
if
the
party
escape
being
a
rested
upon
mean
Proces
,
the
Sheriffe
is
not
liable
for
the
Escape
,
otherwise
if
up●n
an
Execution
.
43.
Eliz.
and
6.
E.
6.
Bendloes
Reports
(
which
is
cited
there
)
Executors
shall
have
restitution
upon
the
Statute
of
21.
H.
8.
and
Co.
lib.
5.
31.
and
27.
Russels
Case
,
an
Executor
shall
have
Trover
upon
Goods
lost
in
vita
Testator
,
and
this
is
in
manner
and
nature
of
a
promise
to
have
the
party
in
Court
at
the
day
,
and
it
is
cleer
,
that
upon
an
expresse
Assumpsit
to
the
Testator
,
an
Executor
shal
have
an
action
upon
the
Case
,
and
it
hath
been
in
manner
agreed
by
the
Court
,
that
if
it
had
been
an
escape
of
one
in
execution
,
that
the
action
would
have
lyen
by
the
Executor
:
and
I
see
no
difference
between
that
and
our
case
.
And
it
was
adjourned
.
The
same
Term
in
the
same
Court
.
UPon
an
Information
by
Heath
the
Kings
Attorney
,
against
two
men
of
the
County
of
Huntington
in
the
name
of
all
the
County
,
that
they
ought
,
and
used
to
repaire
the
Bridge
of
S.
Eedes
in
the
County
of
Huntington
,
Issue
was
joyned
by
the
County
,
whether
they
ought
and
used
to
repaire
this
Bridge
;
and
the
Attorney
gave
no
evidence
,
but
put
it
upon
the
other
side
,
for
he
said
by
the
Statute
of
22.
H.
8.
cap.
if
it
doth
not
appeare
that
any
particular
person
,
or
Towne
ought
to
repaire
a
Bridge
,
by
reason
of
Tenure
,
or
otherwise
,
that
then
the
County
where
this
is
,
ought
to
repaire
it
.
But
Nota
,
that
the
issue
was
,
whether
they
ought
to
repaire
the
whole
Bridge
,
and
yet
upon
the
evidence
it
appeared
,
that
onely
two
Arches
and
a
halfe
of
the
Bridge
was
in
the
County
of
Huntington
,
and
two
A●●hes
and
a
halfe
in
the
County
of
Bedford
,
and
the
Iury
found
generally
,
that
onely
two
Arches
and
a
halfe
of
the
Bridge
were
in
the
County
of
Huntington
,
and
say
nothing
where
the
rest
was
,
for
they
could
not
find
a
thing
in
another
County
.
And
also
they
found
that
the
County
of
Huntington
ought
to
repaire
all
,
but
not
that
they
used
to
repaire
it
:
And
at
another
day
Hedley
Serjeant
moved
for
the
County
,
that
the
Verdict
was
not
good
,
because
the
issue
was
,
whether
they
ought
to
repaire
,
and
a
tempore
cujus
contrarium
&c.
had
repaired
&c.
And
the
Iury
hath
found
that
they
ought
to
repaire
,
which
is
but
the
halfe
of
the
issue
,
and
also
they
find
that
they
ought
to
do
it
,
which
is
a
Question
in
Law
,
and
therefore
voyd
,
8.
H.
6.
3.
4.
Secondly
,
the
issue
is
,
whether
they
ought
to
repair
the
Bridge
,
and
the
Iury
hath
found
,
that
they
ought
to
repair
two
Arches
and
a
halfe
onely
,
&c.
and
the
Bridge
is
an
entire
thing
.
The
Attorney
answered
,
that
for
the
first
exception
the
case
of
27.
Ass.
Pl.
8.
is
against
it
.
And
for
the
last
the
very
case
of
43
Ass.
Pl.
37.
is
against
it
,
and
therfore
the
Court
conceived
the
Verdict
good
,
notwithstanding
these
exceptions
,
Doderidge
Iustice
,
By
the
common
Law
before
the
Statute
of
22.
H.
8.
if
no
man
by
reason
of
tenure
or
otherwise
,
ought
to
repaire
a
Bridge
,
the
County
ought
to
do
it
;
like
to
the
case
of
8.
E.
4.
Fishers
by
the
Law
of
Nations
may
dry
their
Nets
upon
the
Land
of
any
man
.
The
same
Term
in
the
same
Court
.
DOctor
Cleland
brought
a
Writ
of
error
against
Baldock
,
upon
a
Iudgement
given
in
where
the
Plaintiff
declared
that
the
Intr.
Hill
.
22.
Iac
Rot.
59●
.
Defendant
,
in
consideration
that
he
would
do
all
his
commands
,
honestly
and
truly
for
the
space
of
a
yeare
,
assumed
to
pay
him
10
l.
and
further
declared
,
that
he
had
done
all
his
honest
and
lawfull
commands
,
and
this
promise
being
found
by
verdict
,
Iudgement
was
given
against
Doctor
Cleland
,
and
thereupon
he
brought
this
Writ
of
error
,
and
Greene
assigned
two
errors
.
1.
The
Assumpsit
is
,
that
he
shall
doe
all
his
commands
honestly
and
truly
,
and
he
hath
declared
that
he
hath
done
all
his
lawfull
and
honest
commands
,
and
he
may
honest
commands
,
and
yet
not
honestly
.
2.
It
is
said
that
Jurator
Assident
dampna
,
and
it
is
not
said
occasione
transgression
.
predict
.
and
it
is
against
all
Presidents
:
But
Nota
,
that
there
were
these
words
,
ex
hac
parte
opposita
,
and
therefore
the
exceptions
were
disallowed
by
the
Court
,
and
the
first
Iudgement
affirmed
.
The
same
Term
in
the
same
Court.
Secheverel
versus
Dale
.
THis
Case
was
sent
out
of
Chancery
to
this
Court
●o
know
the
Law
therein
,
and
in
Trespas
the
case
was
this
:
Henry
Secheverell
,
the
Father
seised
in
Fée
,
levied
a
Fine
to
A.
and
B.
in
Fee
,
to
the
use
of
himselfe
for
life
,
absque
impetitione
vasti
,
with
power
to
cut
and
carry
away
the
trees
,
and
to
make
Leases
for
21
yeares
,
or
three
lives
,
the
remainder
to
the
use
of
John
Secheverell
his
eldest
Son
for
life
,
without
impeachment
of
waste
,
with
the
same
powers
.
Henry
the
Father
made
a
Lease
to
one
(
under
whom
the
Plaintiff
claims
)
for
three
lives
,
rendring
the
ancient
Rent
,
excepting
all
the
trees
(
unlesse
those
which
shall
be
for
cropping
,
lopping
,
and
fewell
)
Henry
the
Father
dyes
,
John
the
Son
in
the
next
remainder
cut
certain
trees
Victorin
,
Secheverell
who
clayms
by
the
lease
made
by
the
Father
,
brings
trespas
,
and
two
Questions
were
moved
.
1.
Whether
Lessee
for
life
without
impeachment
of
waste
,
may
make
a
Lease
excepting
the
trees
,
and
it
was
objected
by
the
Councel
of
the
Plaintiff
,
that
he
could
not
because
this
second
Lease
ariseth
out
of
the
first
fine
,
and
out
of
the
estate
of
the
Conusor
:
But
the
Court
prima
facie
,
was
of
opinion
that
he
might
well
make
such
a
Lease
with
such
an
exception
,
See
Co.
lib.
11.
Lewys
Bowls
his
Case
,
and
Doctor
and
Student
lib.
1.
cap.
1.
and
by
Doderidge
Iustice
,
the
Lease
ariseth
out
of
both
the
estates
.
Jones
Iustice
,
suppose
the
Lessee
absque
impetitione
vasti
,
assigne
over
all
his
estate
,
might
he
cut
the
trees
?
and
it
was
conceived
that
he
might
,
for
by
Doderidge
he
hath
power
to
dispose
of
the
trees
,
as
it
was
resolved
in
Lewys
Bowls
his
case
.
Jones
,
he
hath
no
propriety
in
the
Trees
,
untill
they
be
cut
,
Crew
:
ch:
Justice
,
Admit
a
Stranger
cut
the
trees
,
who
shall
have
them
?
By
all
the
Court
the
Lessee
without
impeachment
of
waste
shall
have
them
.
2.
Point
,
Tenant
for
life
without
impeachment
of
waste
,
with
power
to
cut
and
carry
away
the
trees
,
and
make
Leases
for
21.
years
or
three
lives
,
the
remainder
for
life
to
J.
S.
without
impeachment
of
waste
,
&c.
Tenant
for
life
makes
a
Lease
for
thrée
lives
,
and
dyes
,
whether
he
in
remainder
for
life
,
without
impeachment
of
waste
,
with
power
to
cut
the
trées
,
may
cut
the
trées
,
and
take
them
during
the
Lease
for
thrée
lives
,
and
the
Court
séemed
to
be
of
opinion
that
he
might
:
And
Leving
of
Councell
with
the
Plaintiff
,
argued
,
that
when
tenant
for
life
without
impeachment
of
waste
with
power
to
cut
the
trees
,
and
to
make
Leases
for
21.
years
or
three
lives
,
makes
a
Lease
for
thrée
lives
,
excepting
the
trées
,
that
this
is
a
voyd
exception
,
because
he
hath
no
interest
,
but
a
bare
Authority
,
27.
H.
6.
Fitz.
Wast
.
8.
Statham
tit
.
Wast.
1.
makes
this
a
Quaere
(
which
Statham
was
once
the
owner
of
the
Land
in
question
.
)
A
man
makes
a
Lease
for
life
without
impeachment
of
waste
,
a
Stranger
cuts
trées
,
the
Lessée
brings
trespas
,
he
shall
recover
no
Damages
for
the
value
of
the
trees
,
because
the
propriety
belongs
to
him
in
the
reversion
,
&
he
may
dispose
of
them
,
Quaere
Dyer
284.
Daunsley
and
Southwels
Case
,
Co.
lib.
11.
Lewys
Bowles
case
,
that
such
a
Lessee
may
take
trées
which
are
blown
down
,
and
3.
H.
6.
45.
Mich
41.
and
42.
Eliz.
C.
B.
Leechford
against
Sanders
in
an
Action
of
waste
upon
a
Lease
made
to
Sanders
for
life
,
with
a
proviso
that
the
Plaintiff
might
dispose
of
the
trées
during
the
estate
,
and
resolved
that
the
Action
lies
not
,
for
notwithstanding
this
power
,
the
trées
are
demised
to
the
Lessée
also
,
so
here
when
the
trées
are
excepted
,
he
hath
no
interest
,
but
only
an
authority
.
2.
The
exception
is
voyd
for
another
reason
,
because
when
such
a
Lessée
,
makes
such
a
Lease
,
this
is
not
his
Lease
,
but
it
hath
its
operation
out
of
the
originall
fine
,
and
he
who
makes
this
hath
but
the
nomination
,
and
therefore
cannot
adde
a
condition
or
exception
to
it
.
And
if
the
second
Lease
shall
have
its
being
out
of
the
estate
of
the
Lessee
for
life
,
then
there
shall
be
an
use
upon
an
use
,
as
appears
Co.
lib.
1.
134.
and
that
the
Law
will
not
allow
.
15.
H.
7.
and
Co.
Lib.
1.
Albanyes
Case
,
If
a
man
devise
,
that
his
Executors
shall
fell
his
Land
,
they
cannot
adde
a
condition
or
exception
to
this
sale
,
as
an
attornment
upon
a
condition
subsequent
is
voyd
,
Co.
lib.
2.
Tookers
case
.
3.
This
case
may
be
resembled
to
the
case
of
Copy-holds
,
which
is
in
Co.
lib.
8.
63.
b.
in
Swaynes
Case
:
If
a
Lord
takes
a
Wife
,
and
afterwards
grants
Lands
by
Copy
,
according
to
the
custome
,
and
dyes
,
his
Wife
shall
not
be
endowed
of
this
Land
,
for
albeit
her
title
of
Dower
was
before
the
Grant
,
yet
the
title
of
Copi-hold
(
which
is
the
custome
)
is
elder
then
the
title
of
Dower
;
so
in
our
case
,
the
title
of
the
second
Lessee
is
derived
out
of
the
estate
of
the
Conuzées
,
and
therefore
shall
not
be
clogg'd
with
the
Exceptions
of
Lessee
for
life
,
without
impeachment
of
waste
.
4.
This
priviledge
to
cut
the
trées
is
annexed
to
the
estates
,
and
goes
along
with
the
estate
,
and
therefore
shall
not
begin
before
the
Stranger
be
in
possession
,
3.
E.
3.
44.
45.
Idles
case
28.
H.
8.
Dyer
10.
And
it
may
be
resembled
to
the
cases
of
16.
E.
4.
and
27.
H.
8.
Tenant
in
taile
sold
the
trées
,
if
he
dyes
before
the
Party
takes
them
,
he
shall
never
have
them
,
because
he
hath
stayd
out
his
time
.
But
it
may
be
objected
that
upon
such
a
Lease
he
may
reserve
a
rent
,
as
it
is
in
Whitlocks
case
Co.
lib.
8.
to
which
I
will
offer
this
difference
,
Lessée
for
life
,
with
power
to
make
Leases
for
thrée
lives
,
reserving
rent
makes
a
Lease
for
thrée
lives
,
reserving
rent
,
this
reservation
is
good
,
because
it
is
but
a
Declaration
of
the
Lease
,
and
of
the
rent
;
but
if
there
were
no
such
clause
of
reserving
rent
,
then
I
conceive
it
were
otherwise
.
But
admitting
all
this
were
against
me
,
yet
the
justification
of
the
Defendant
is
not
good
,
for
by
the
exception
out
of
the
exception
,
the
Lessor
cannot
take
the
benefit
of
the
bodies
of
the
trées
,
because
he
will
thereby
deprive
the
Lessée
of
the
croppings
and
loppings
&c.
as
in
28.
H
▪
8.
Dyer
Maleverell
and
Spynkes
case
.
Mylward
of
Lincolnes
Inne
for
the
Defendant
.
And
first
he
conceived
that
the
Lessée
for
life
without
impeachment
of
waste
,
might
dispose
of
the
trées
in
the
same
manner
as
Tenant
in
fée
might
doe
,
with
this
difference
,
that
the
disposall
thereof
ought
to
be
in
his
life
time
,
and
so
it
is
resolved
in
Lewys
Bowles
case
Co.
lib.
11.
46.
2.
The
second
matter
in
the
case
is
,
whether
the
Lessée
for
life
,
without
impeachment
of
waste
&c.
hath
only
an
authority
,
or
an
interest
in
the
trées
,
and
I
conceive
that
he
hath
an
interest
,
for
his
power
is
to
make
Leases
of
it
,
or
of
any
part
for
21.
years
or
3.
lives
,
and
that
the
Conuzors
shall
be
seized
to
the
use
of
such
Lessées
,
now
when
he
makes
a
Lease
excepting
the
trées
,
the
trées
are
not
demised
,
so
that
he
remains
still
tenant
for
life
,
without
impeachment
of
waste
for
the
trees
.
3.
Excepting
all
Timber-trées
,
but
for
fencing
,
cropping
,
and
lopping
;
it
hath
béene
objected
that
this
exception
hath
no
forme
:
It
is
a
generall
rule
.
that
if
a
man
makes
a
Grant
,
and
in
the
close
thereof
except
all
that
which
was
granted
before
,
the
exception
is
voyd
:
and
this
appears
by
34.
Ass.
Pl.
11.
A
Will
was
granted
salvo
stagno
molendini
:
so
here
the
last
exception
takes
away
all
that
which
was
granted
before
,
38.
H.
6.
38.
in
a
Quare
impedit
28.
H.
8.
Dyer
19.
by
Mountague
,
the
cropping
and
lopping
of
trées
belong
to
the
Lessee
,
like
to
the
Duke
of
Norfolks
case
in
12.
H.
7.
25.
and
13.
H.
7.
13.
and
18.
E.
4.
14.
and
albeit
every
grant
shall
be
taken
most
strongly
against
the
Grantor
,
yet
it
shall
have
a
reasonable
intendment
for
the
benefit
of
the
Grantor
,
and
this
appeares
by
7.
E.
4.
22.
17.
E.
3.
7.
9.
E.
4.
2.
21.
E.
3.
43.
so
here
the
Exception
shall
have
a
reasonable
intendment
,
that
he
shall
onely
have
such
loppings
and
croppings
as
shall
be
bestowed
upon
the
Park
,
and
no
other
.
Doderidge
Iustice
,
I
conceive
that
by
the
words
without
impeachment
of
waste
,
he
hath
interest
in
the
trees
as
long
as
the
estate
continues
.
2.
That
when
he
makes
a
lease
by
the
second
power
given
to
him
,
this
is
derived
out
of
the
Fine
,
and
shall
be
good
against
him
in
the
remainder
.
3.
Because
he
hath
power
to
dispose
of
the
trées
,
I
conceive
,
that
when
he
makes
a
Lease
,
excepting
the
trees
,
this
is
a
good
exception
,
24.
Eliz.
C.
B.
A
man
made
a
Lease
for
years
,
now
he
hath
the
wast
of
the
trees
,
if
he
assign
over
his
estate
excepting
the
trées
,
the
exception
is
voyd
,
but
in
our
case
the
Lessée
hath
not
parted
with
his
whole
estate
.
4.
So
the
sole
question
is
,
whether
he
in
remainder
may
cut
the
trées
during
the
estate
of
thrée
lives
made
by
Henry
Secheverell
,
and
he
conceived
that
he
might
,
and
so
concluded
for
the
Defendant
:
Jones
Iustice
agréed
,
that
the
Lessee
for
life
without
impeachment
of
wast
,
hath
interest
in
the
trées
,
but
this
interest
is
concomitant
with
his
estate
and
determinable
with
it
.
2.
I
conceive
that
the
exception
is
good
.
Such
things
which
a
man
hath
by
the
Law
he
cannot
resign
to
himselfe
upon
his
assignment
,
as
the
cropping
and
lopping
of
trées
,
as
if
tenant
in
taile
after
possibility
&c.
(
who
is
dispunishable
of
wast
by
fréedome
of
the
Law
)
assign
over
his
estate
,
reserving
the
trees
,
he
cannot
cut
the
trees
,
but
here
the
Lessee
hath
a
larger
liberty
then
the
Law
gives
to
him
,
and
he
by
vertue
of
this
may
give
away
the
trees
;
but
I
conceive
that
if
he
had
assigned
over
all
his
estate
,
then
he
could
not
have
excepted
the
trees
,
but
here
he
hath
not
granted
over
all
his
estate
,
for
he
hath
a
remainder
,
and
may
have
an
estate
in
possession
afterwards
▪
and
upon
this
Lease
for
three
lives
hee
may
reserve
a
rent
to
himselfe
.
3.
I
conceive
,
that
this
Lease
is
derived
partly
out
of
his
owne
estate
,
and
hee
hath
not
the
meere
nomination
,
and
partly
out
of
the
first
Fine
,
and
therefore
such
Lessees
shall
be
subject
to
all
charges
made
by
the
Tenant
for
life
who
made
the
Lease
,
as
Statutes
,
Recognizances
,
&c.
to
wit
,
during
the
life
of
the
first
tenant
for
life
.
4.
When
he
dyes
who
made
the
said
Lease
for
three
lifes
,
whether
he
in
remainder
may
cut
the
Trees
during
the
said
Lease
,
and
he
conceived
(
yet
not
without
some
doubt
)
that
he
had
no
power
during
the
lives
of
the
sayd
Lessees
.
Whitlock
Iustice
agreed
with
the
rest
,
so
that
it
was
agreed
by
all
:
1.
That
it
is
a
good
exception
.
2.
That
the
second
lease
is
drawn
out
of
the
Fine
:
And
the
question
now
is
,
whether
he
in
remainder
without
impeachment
of
waste
with
power
to
cut
the
trees
,
hath
power
to
cut
them
,
during
the
lives
of
the
said
three
Lessees
,
and
the
Councell
was
commanded
to
speake
to
this
point
only
upon
another
day
.
The
same
Term
in
the
same
Court.
Foster
and
Taylers
Case
.
ERror
was
brought
upon
a
Iudgement
given
in
C.
B.
and
after
the
Record
was
certified
into
this
Court
,
the
Common-pleas
amended
a
rasure
of
the
Record
which
was
there
,
and
now
Bramston
Sergeant
mov●●
for
the
Def.
that
the
Record
might
be
amended
here
:
Jones
Iustice
,
I
doubt
whether
an
inferior
Court
can
amend
after
the
Record
is
certified
here
,
for
then
it
is
but
a
piece
of
Parchment
with
them
:
Bramston
,
It
is
resolved
that
it
may
in
Blackamores
case
,
Co.
lib.
8.
Doderidge
,
the
doubt
is
,
whether
it
may
be
amended
after
error
assigned
in
the
same
Court
,
for
this
takes
away
the
benefit
of
the
Law
from
the
Plaintiff
in
the
Writ
of
error
.
Jones
,
at
another
day
said
,
that
if
in
nullo
est
erratum
had
been
pleaded
,
it
could
not
have
beene
amended
.
And
as
it
is
,
it
cannot
be
amended
,
because
now
it
is
assigned
for
error
,
and
the
Plaintiffe
was
once
intitled
to
his
Writ
of
error
,
which
shall
not
be
taken
away
from
him
afterwards
:
and
in
11.
Jac.
there
was
such
a
case
moved
by
Yelverton
the
Kings
Solicitor
,
and
agreed
that
it
could
not
be
amended
.
And
Pasch.
17.
Jac.
one
Abbingtons
case
upon
a
rasure
,
as
our
case
is
,
&
it
was
doubted
whether
it
could
be
amended
:
and
by
Broom
Secondary
in
the
said
case
,
it
was
amended
.
Doderidge
in
this
case
,
it
may
be
amended
,
albeit
it
be
after
error
brought
,
because
it
is
only
the
error
of
the
Clerk
,
and
it
is
amendable
,
although
the
error
be
assigned
in
the
same
point
,
and
so
was
the
opinion
of
the
whole
Court
,
and
therefore
it
was
amended
.
The
same
Terme
in
the
same
Court
.
WEld
of
the
Inner
Temple
moved
for
a
Prohibition
to
the
Ecclesiasticall
Court
at
Worcester
,
and
shewed
for
cause
.
1.
That
the
suit
there
was
for
money
,
which
by
the
assent
of
the
greater
part
of
the
Parishioners
of
D.
was
assessed
upon
the
Plaintiffe
for
the
reparations
of
the
Church
,
to
wit
,
for
the
recasting
of
their
Bels
,
the
truth
is
that
the
charge
was
for
the
making
of
new
Bels
,
where
there
were
four
before
,
whereby
it
appears
that
it
is
meerly
matter
of
curiosity
,
and
not
of
necessity
,
for
which
Parishioners
shall
not
he
liable
to
such
taxations
,
and
he
relied
upon
.
44.
E.
3.
19.
by
Finchden.
2
The
party
there
is
overcharged
,
of
which
the
Common
Law
shall
Judge
.
3
The
Party
hath
alledged
a
Custome
that
he
and
all
those
who
hath
an
estate
in
such
a
Tenement
,
have
used
to
pay
but
11
s.
for
any
reparation
of
the
Church
.
But
the
Prohibition
was
denied
,
and
by
Doderidge
in
the
Book
of
44
E.
3.
there
was
a
By-law
in
the
case
to
distrain
,
which
is
a
thing
meerly
temporal
,
for
which
the
Prohibition
was
granted
&
per
Curiam
,
in
this
case
the
assessment
by
the
major
part
of
the
Parishioners
binds
the
party
;
albeit
he
assented
not
to
it
:
and
the
Court
seemed
to
be
of
Opinion
that
the
Custome
was
not
reasonable
,
because
i●●aid
a
burthen
upon
the
rest
of
the
Parish
.
Littleton
of
Counsell
of
the
other
side
,
suppose
the
Church
falls
shall
he
pay
but
11
s.
Whitlock
,
If
the
Church
falls
,
the
Parishioners
are
not
bound
to
build
it
up
again
,
which
was
not
denied
by
Justice
Jones
,
The
same
Term
in
the
same
Court
.
A
Prohibition
was
prayed
,
because
a
person
had
libelled
in
the
Ecclesiasticall
Court
for
the
tenth
part
of
a
bargain
of
Sheep
,
which
had
depastured
in
the
Parish
from
Michaelmas
to
Lady
day
:
and
the
party
surmised
that
he
would
pay
the
tenth
of
the
Wooll
of
them
,
according
to
the
custome
of
the
Parish
.
But
the
Prohibition
was
denyed
,
for
as
Doderidge
Iustice
sayd
,
by
this
way
the
person
shall
bee
defrauded
of
all
,
if
he
shall
not
have
his
recompence
,
for
now
the
Sheepe
are
gone
to
another
Parish
,
and
he
cannot
have
any
Wooll
at
this
time
,
because
it
was
not
the
time
of
sheering
.
Nota
,
per
Whitlock
,
de
animalibus
,
inutilibus
,
the
Person
shall
have
the
tenth
part
of
the
bargain
for
depasturing
,
as
Horses
,
Oxen
,
&c.
but
de
Animalibus
Utilibus
,
he
shall
have
the
Tith
in
specie
,
as
Cowes
,
Sheep
,
&c.
The
same
Term
in
the
same
Court
.
UPon
an
Issue
joyned
in
an
Ejectione
firmae
,
it
was
found
for
the
Plaintiff
,
and
Lewkoor
moved
in
arrest
,
&c.
because
the
Ejectione
firmae
was
de
Messuagio
●ive
Tenemento
,
which
is
not
good
for
the
incertainty
,
and
so
it
was
resolved
12.
Jac.
in
this
Court
,
and
Ejectione
firmae
lies
not
,
De
Tenemento
Co.
lib.
11.
54.
Savils
case
,
And
it
was
resolved
in
the
Exchequor-chamber
,
that
it
lies
not
de
pecia
terrae
;
and
in
this
Court
in
Rhetorick
and
Chappels
Case
it
was
resolved
that
it
lyes
not
De
Mess.
&
Tenemento
.
The
same
Term
in
the
same
Court
.
Sir
Robert
Browne
against
Sir
Robert
Stroud
.
IN
debt
upon
an
Obligation
for
performance
of
certain
Covenants
contained
in
certain
Indentures
made
between
the
Parties
aforesaid
,
and
the
Covenant
upon
which
the
question
did
arise
was
this
:
R.
B.
being
seised
of
the
Mannor
of
Dale
,
&
S.
R.
S.
of
the
Mannor
of
Sale
,
they
exchanged
the
one
for
the
other
,
and
the
Mannor
of
R.
B.
being
more
worth
then
the
Mannor
of
R.
S.
R.
S.
covenanted
to
pay
for
the
said
Mannor
1200
l.
and
no
time
was
limited
when
the
money
should
be
payd
,
and
the
money
not
being
payd
within
a
year
after
,
R.
B.
bargained
and
sold
the
said
Mannor
by
Deed
indented
,
and
inrolled
to
J.
S.
and
his
Heirs
,
and
afterwards
brought
an
Action
of
Debt
against
the
said
R.
S.
for
the
said
1200
l.
who
pleaded
this
mater
in
Bar
,
and
Jermy
argued
for
the
Plaintiff
,
that
this
Plea
shall
not
discharge
the
Defendant
of
the
said
Covenant
,
for
it
is
a
reciprocall
covenant
,
and
he
ought
to
sue
the
other
Party
for
the
breach
of
the
covenant
;
and
it
is
a
perfect
bargain
Dyer
30.
14.
H.
8.
9.
and
here
the
Agreement
is
in
writing
,
and
it
is
good
,
albeit
there
be
no
limitation
when
the
money
shall
be
payd
,
37.
H.
6.
9.
Calthrop
for
the
Defendant
,
that
the
Action
could
not
ly●
,
for
the
contract
is
Executory
,
and
therefore
is
not
to
pay
the
money
till
he
hath
the
Mannor
,
for
the
Covenant
is
that
pro
Maner
.
&c.
he
should
pay
him
1200
l.
and
the
word
[
pro
]
implies
a
condition
and
consideration
,
and
being
excecutory
on
the
one
part
,
shall
be
also
executory
on
the
other
part
,
9.
E.
4.
20.
21.
Abridg.
in
Plowden
134.
in
Browning
and
Bestons
case
15.
E.
4.
4.
If
A.
grant
to
B.
all
the
ancient
Pale
,
and
for
them
B.
grants
,
that
he
will
make
new
Pale
for
A.
if
B.
cannot
have
the
old
Pale
,
he
shall
be
excused
from
making
the
new
Pale
,
for
he
cannot
have
the
one
without
doing
the
other
,
6.
E.
6.
Dyer
75.
The
contract
was
.
pro
20.
which
makes
a
condition
,
15.
H.
7.
10.
by
Fineaux
,
If
a
man
covenant
with
me
to
serve
me
for
a
yeare
,
and
I
covenant
to
give
him
10
l.
he
shall
have
an
Action
for
the
10
l.
although
hee
do
not
serve
me
,
otherwise
if
I
covenant
to
give
him
10
l.
for
his
service
.
Also
there
is
no
time
limited
when
the
payment
shall
be
made
:
true
it
is
,
that
in
Co.
lib.
6.
30.
when
the
act
to
be
done
is
a
transitory
act
,
and
no
time
is
limited
there
,
it
ought
to
be
done
in
convenient
time
,
but
the
Law
shall
judge
of
the
conveniency
of
this
time
,
and
the
Law
will
never
judge
the
time
of
payment
to
be
before
he
hath
the
Mannor
,
pro
quo
.
&c.
In
many
cases
when
no
time
is
limited
,
the
Law
will
appoint
a
time
,
as
appeareth
in
33.
H.
6.
48.
and
Perkins
799.
But
now
in
our
case
the
Law
will
never
appoint
that
this
money
shall
be
payd
,
because
the
other
party
hath
disabled
himselfe
to
perform
his
part
;
like
to
Sir
Anthony
Maines
case
Co.
lib.
5.
21.
Doderidge
,
The
bargain
is
not
perfect
,
because
no
day
of
payment
is
limited
,
and
the
other
shall
have
no
Action
of
Debt
for
the
money
before
he
hath
the
Mannor
.
Jones
,
If
I
covenant
to
make
a
Feoffment
to
J.
S.
and
he
covenant
in
consideration
of
that
Covenant
to
pay
me
10
l.
he
shall
have
an
Action
of
Debt
against
me
,
before
he
hath
made
the
Feoffment
.
And
at
another
day
in
Trinity
Term.
3.
Car.
Noy
argued
for
the
Plaintiff
,
and
opened
the
case
thus
:
Amongst
other
Covenants
in
certain
Indentures
between
them
it
was
agreed
,
that
wheras
Sir
R.
Brown
the
Father
was
s●ized
of
the
Mānor
of
Gadmaston
,
with
the
Advowson
appendent
,
&
Sir
R.
Stroud
of
the
Mānor
of
D.
within
the
same
Coūty
,
that
there
should
be
an
exchāge
between
them
of
the
said
Mannors
,
&
because
the
Mannor
of
Gadmaston
was
the
better
,
Stroud
covenanted
with
the
Father
and
the
Son
to
pay
1200
l.
to
the
Father
for
the
Demesnes
of
the
said
Mannor
and
Advowson
,
and
that
at
Michaelmas
next
insuing
,
there
should
be
a
mutuall
entry
into
the
said
Mannors
,
and
that
in
the
mean
time
either
of
them
should
take
the
profits
of
their
own
Mānors
,
and
that
they
should
deliver
each
to
other
their
evidences
,
and
that
Assurances
should
be
made
as
Councel
should
advise
;
the
Plaintiff
declare
,
that
they
had
performed
all
the
Covenants
which
were
to
be
performed
on
their
part
,
and
that
the
Defendant
had
not
paid
the
1200
l.
and
that
thereupon
this
action
of
Covenant
was
brought
.
The
Defendant
protestando
that
the
Plaintiff
had
performed
the
Covenants
,
and
had
not
produced
their
edidences
,
&c.
for
Plea
saith
,
that
the
Plaintiff
after
Michaelmas
bargained
and
sold
the
Mannor
of
Gadmaston
to
J.
S.
and
his
Heirs
,
upon
which
the
Plaintiff
demurs
,
and
he
conceived
that
notwithstanding
the
sale
after
Mich.
yet
an
action
of
Covenant
lies
for
the
1200
l.
but
otherwise
it
had
been
if
he
had
sold
it
before
Mich.
But
it
hath
been
objected
that
the
money
by
the
Covenant
is
to
be
payd
pro
the
Mannor
,
and
therfore
because
the
Defendant
cannot
have
the
Mannor
,
he
shall
〈◊〉
p●y
the
Money
,
and
for
this
9.
E.
4.
20.
and
24.
E.
3.
21.
have
been
cited
,
that
[
pro
]
implies
a
condition
,
as
pro
servitio
pro
maritagio
,
but
these
Cases
do
not
resemble
this
case
in
reason
,
because
the
fact
to
be
done
here
,
rests
upon
an
indiffinite
time
,
and
the
Defendant
is
to
do
the
first
Act
,
&
the
Defendant
is
bound
to
a
certain
time
for
the
doing
of
this
Act.
For
the
first
it
is
agreed
,
that
the
Defendant
shall
pay
1200
l.
and
the
Plaintiff
agrees
to
make
Assurances
for
this
Mannor
,
and
that
the
Assurances
should
be
made
as
Councel
should
devise
,
and
I
conceive
that
the
Defendant
ought
to
procure
the
Councel
to
devise
,
for
mutuall
Assurances
ought
to
be
made
,
and
either
party
ought
to
appoint
what
Assurances
he
would
have
,
and
the
one
ought
not
to
be
a
Carver
to
the
other
,
neither
can
one
know
what
councel
the
other
will
have
,
and
upon
this
reason
is
the
case
,
9.
E.
4.
3.
4.
and
Plow.
15.
b.
the
Case
of
the
Bell
,
it
shall
be
weighed
by
him
who
is
to
have
the
profit
,
peradventure
if
it
were
in
case
of
an
Obligation
to
perform
covenants
,
there
he
ought
to
procure
the
Counsel
,
for
saving
the
penalty
of
the
obligation
;
but
it
is
otherwise
here
in
case
of
a
Covenant
,
Co.
lib.
5.
22.
b.
18.
E.
3.
27.
and
4.
E.
3.
29.
If
a
man
be
bound
to
be
ready
to
levy
a
Fine
such
a
day
,
yet
the
other
ought
to
bring
the
Writ
of
Covenant
against
him
before
that
day
,
for
otherwise
he
cannot
levy
a
fine
;
But
now
the
Law
is
altered
,
for
now
fines
are
levied
,
&
Writs
of
Covenant
are
sued
out
afterwards
,
17.
E.
4.
2
per
Pigot
:
If
I
am
bound
to
you
in
20
l.
to
enfeoff
you
at
such
a
day
of
such
Land
,
if
you
please
to
take
the
Feoffment
,
you
are
bound
to
let
me
know
your
pleasure
,
and
here
the
Assurance
is
for
the
benefit
of
the
Defendant
,
and
he
cited
Co.
lib.
5.
23.
and
7.
E.
4.
13.
2.
For
the
time
,
this
Assurance
ought
to
be
devised
by
Councel
before
Mich.
or
otherwise
the
Plaintiff
shall
be
enforced
to
keep
his
Mannor
all
his
life
,
and
shall
be
hindred
of
the
sale
of
it
for
payment
of
his
debts
,
or
other
necessaries
whatsoever
.
And
17.
E.
3.
1.
liking
ought
to
be
shown
in
convenient
time
.
And
it
appears
by
the
Articles
that
the
time
intended
was
before
Michaelmas
,
for
every
thing
to
be
done
by
the
Articles
,
was
to
be
done
before
Michaelmas
,
Hill
.
37.
Eliz.
Rot.
99.
B.
R.
between
Mills
and
Parsons
:
A
man
covenanted
in
consideration
of
42
l.
rent
to
be
granted
to
him
,
payable
at
Mich.
and
Lady
day
,
yearly
,
to
levy
a
fine
of
a
Mannor
to
the
use
of
&c.
and
the
assurance
of
the
Rent
is
not
made
before
Michaelmas
,
and
it
was
resolved
that
the
Covenant
was
not
performed
,
for
the
grant
of
the
Rent
ought
to
be
before
Mich.
for
otherwise
he
could
not
have
the
benefit
intended
,
and
cited
also
Dyer
347.
and
20
Eliz.
Dyer
361.
and
in
this
case
there
could
be
no
execution
of
other
Articles
if
the
Councel
did
not
devise
them
before
Mich.
But
it
hath
been
objected
that
the
Plaintiff
have
not
fully
shown
the
performance
of
the
Covenants
of
their
part
,
but
only
by
implication
,
albeit
they
have
performed
,
and
they
have
not
averred
that
the
Defendant
hath
not
devised
.
Answ.
To
which
I
answer
,
that
this
is
good
enough
;
but
where
I
covenant
to
do
an
act
upon
a
future
contingent
act
to
be
done
by
another
,
there
I
ougt
to
show
it
particularly
,
but
otherwise
in
this
Case
,
and
this
is
for
the
benefit
of
the
Defendant
,
and
therefore
he
ought
to
shew
it
,
and
to
this
purpose
is
3.
E.
3
,
Fitz.
Det.
157.
and
18
,
E.
3.
4.
&c.
Jones
Iustice
,
Suppose
the
Defendant
had
demanded
the
assurance
after
Mich:
and
before
the
sale
what
shall
be
done
:
Noy
,
nothing
can
be
done
after
Michaelmas
:
and
it
was
adjourned
.
The
same
Term
in
the
same
Court.
Sanders
and
others
,
versus
Meryton
.
IN
an
Action
of
Covenant
the
case
was
this
,
Amongst
other
Covenants
in
a
certain
Indenture
made
between
Sanders
and
others
to
the
Lessees
,
and
his
two
Lessors
,
the
Lessors
covenant
to
discharge
them
of
all
Incumbrances
done
by
them
or
any
other
person
,
and
the
Plaintiff
assign
for
breach
,
that
one
of
the
Lessors
had
made
a
Lease
,
and
thereupon
they
brought
this
Action
.
And
Goldsmith
moved
in
arrest
of
Iudgement
,
that
the
breach
was
not
well
layd
,
because
it
is
onely
layd
to
be
done
by
one
of
them
,
and
the
Covenant
is
to
discharge
them
of
incumbrances
done
by
them
,
which
shall
be
intended
joynt
incumbrances
.
Doderidge
Iustice
,
the
Covenant
goes
aswell
to
Incumbrances
done
severally
as
joyntly
,
for
it
is
of
all
incumbrances
done
by
them
or
any
other
person
,
and
so
was
the
opinion
of
the
other
Iustices
,
and
therefore
the
exception
was
over-ruled
.
The
same
Term
in
the
same
Court.
Dickar
versus
Moland
.
IN
Replevin
,
the
case
was
thus
:
A
man
made
a
Feoffment
to
the
use
of
himselfe
for
life
,
the
remainder
to
his
Son
in
taile
,
which
remainder
over
to
the
Defendant
made
conusance
as
Bayliff
to
the
Son
for
4
s.
Rent
due
to
him
before
the
sayd
time
,
in
which
,
&c.
to
wit
,
1.
Jan.
18.
Jac.
which
time
was
before
the
death
of
the
Feoffor
,
whereupon
it
was
moved
for
the
Plaintiff
,
that
the
Avowry
could
not
be
good
,
and
Roll
argued
for
the
Defendant
,
that
it
is
good
enough
,
for
the
Ante
predictum
tempus
quo
&c.
is
good
enough
,
and
the
(
scilicet
)
is
voyd
,
for
by
this
it
appears
that
the
Rent
is
due
to
another
20.
H.
6.
15.
And
a
(
scilicet
)
is
but
an
Exposition
of
that
which
is
once
before
,
and
it
shall
not
destroy
the
precedent
matter
,
but
if
it
be
contrary
to
it
,
it
is
voyd
,
Co.
lib.
5.
Knights
case
,
A
scilicet
shall
not
make
an
alteration
of
that
which
went
before
,
15.
Jac.
B.
R.
Desmond
and
Iohnsons
Case
.
In
a
Trover
and
Conversion
the
Plaintiffe
declared
that
he
was
possessed
of
the
said
goods
.
1
Jan.
15.
Jac.
and
that
Postea
,
scil.
the
first
day
of
May
hee
in
the
yeare
aforesaid
lost
them
,
and
that
they
came
to
the
hands
of
the
Defendant
,
and
upon
issue
joyned
,
it
was
found
for
the
Plaintiffe
,
and
this
was
moved
in
arrest
of
Judgement
,
and
by
the
Court
the
(
scil.
)
was
agreed
to
be
void
,
and
the
Postea
good
;
and
the
like
case
was
17.
Jac.
in
Debt
.
The
second
Question
is
,
a
man
makes
Conusance
for
Rent
for
him
in
remainder
in
taile
,
and
does
not
alledge
the
precise
time
when
the
Lessee
for
life
died
,
but
onely
that
he
died
,
and
I
conceive
that
it
is
well
enough
.
1.
Because
an
Avowry
(
which
is
in
lieu
of
an
action
)
is
a
reall
action
,
and
in
reall
actions
no
precise
day
need
to
be
alledged
.
2.
Because
he
avows
for
4
s.
rent
due
,
and
the
arreare
to
the
remainder
,
which
implies
that
the
Lessee
for
life
is
dead
;
See
14.
Eliz.
Dyer
.
The
case
of
a
person
,
in
one
Arundalls
case
;
a
man
was
Lessee
for
ninty
years
,
if
the
Lady
Morley
should
so
long
live
,
in
an
action
brought
by
him
as
Lessee
for
years
,
in
his
Declaration
he
did
not
averre
that
the
Lady
Morley
was
alive
,
and
yet
awarded
good
,
Trin.
12.
Jac.
in
Hord
and
Paramores
case
,
the
defendant
avowed
as
Heir
of
Sir
John
Arundell
,
and
alledged
no
time
incertaine
of
the
death
of
Sir
John
Arundell
,
and
yet
awarded
good
for
the
reason
aforesaid
,
and
therefore
he
prayed
Judgment
for
the
Avowant
.
The
same
Terme
in
the
same
Court.
Jenkin
versus
Vivian
.
IN
trespas
,
Jermy
for
the
Plaintiff
took
some
exceptions
to
the
Plea
of
the
Intr.
Hill
.
1.
Car.
Rot.
331.
Defendant
:
1.
That
the
Defendant
claim
common
in
Trigemore
Moore
ratione
Vicinagii
,
and
doth
not
say
,
a
tempore
cujus
contrarium
memoria
hominum
non
existit
.
2.
The
Defendant
alledgeth
that
he
and
all
his
Occupiers
of
Down-close
had
used
to
have
common
in
the
said
Tridgemore
Moore
&c.
whereas
he
ought
to
have
shown
what
estate
they
had
in
Down-close
who
have
used
to
have
this
common
:
Rol.
there
néed
no
prescriptiōin
this
case
,
no
more
then
in
a
common
appendant
(
which
case
of
a
common
appendāt
was
agreed
by
the
whole
Court
)
for
it
is
mixt
,
6.
E.
4.
55.
Co.
lib.
Intr.
625.
tit
.
trespas
.
For
the
2.
exception
,
I
agree
that
if
it
be
by
way
of
prescription
,
then
it
is
not
good
,
as
it
is
alledged
here
,
but
if
it
be
by
way
of
custome
(
as
here
it
is
)
then
it
is
good
,
for
a
custome
goes
to
Land
,
and
a
Prescription
to
persons
,
Hill.
11.
Jac.
Higgs
brought
an
Action
upon
the
Case
for
erecting
of
a
new
Mill
,
and
alledged
a
Custome
,
that
he
and
all
the
Inhabitants
&c.
an
exception
was
taken
to
it
,
and
it
was
there
ruled
that
it
was
good
,
because
alledged
by
way
of
custome
:
Co.
lib.
6.
Gatewards
case
,
and
also
Mich.
14.
Jac.
it
way
be
alledged
by
way
of
custom
,
as
our
case
is
,
and
15.
E.
4.
when
it
is
by
way
of
discharge
,
it
may
be
alledged
in
all
Occupiers
,
Jermy
for
the
Plaintiff
,
It
cannot
be
a
custom
here
,
for
as
it
is
in
23.
Eliz.
Dyer
,
A
custom
cannot
extend
to
a
particular
place
,
and
this
was
agreed
by
the
whole
Court
:
But
there
is
another
exception
,
he
clayms
common
in
Tridgemore
Moore
for
cattle
levant
and
couchant
in
Down-close
,
and
does
not
aver
,
that
these
beasts
were
levant
and
couchant
upon
Down-close
,
and
per
totam
Curiam
,
this
ought
to
be
averred
,
and
it
was
also
agreed
that
in
this
case
he
ought
to
have
prescribed
:
But
for
the
exception
of
all
occupiers
it
was
doubted
:
but
for
the
other
exceptions
Iudgment
was
given
for
the
Plaintiff
.
The
same
Term
in
the
same
Court.
Chambers
Case
.
IT
was
said
in
this
case
,
that
in
debt
upon
a
Recognizance
acknowledged
in
Chancery
,
or
in
any
other
Court
,
the
Defendant
cannot
demand
Oyer
of
the
condition
,
for
the
Recognizance
is
not
in
Court
as
an
obligation
is
,
when
debt
is
brought
upon
it
:
But
if
Debt
be
brought
upon
a
Recognizance
acknowledged
in
this
Court
,
then
the
Defendant
may
demand
Oyer
of
the
Recognizance
.
The
same
Term
in
the
same
Court
,
Harison
versus
Errington
.
IN
Error
to
reverse
an
Inditement
of
rescous
and
Riot
,
taken
in
the
County
Palatine
of
Durham
,
Bankes
assigned
the
Errors
,
whereof
one
was
,
ther●
was
a
Warrant
to
three
conjunctim
,
&
div●sim
to
arrest
the
sayd
Harison
,
and
two
of
them
arrest
him
,
and
therefore
the
Arrest
was
not
well
done
,
for
it
ought
to
have
been
by
one
,
or
all
three
,
and
the
reason
is
,
because
it
is
a
ministeriall
act
,
otherwise
if
it
had
been
a
judiciall
act
,
14.
H.
4.
34.
2.
The
Inditement
of
Riot
was
against
three
,
and
the
Iury
found
only
one
of
them
guilty
of
the
●●●ot
,
this
is
a
voyd
verdict
,
for
one
alone
cannot
make
a
riot
,
like
to
the
case
in
11.
H.
4.
2.
Conspiracy
against
two
,
and
only
one
of
them
is
found
guilty
,
it
is
voyd
,
for
one
alone
cannot
conspire
.
And
at
another
day
in
the
same
Term
Noy
took
other
exceptions
.
1.
Because
the
Inditement
is
Jurator
,
pro
Domino
Rege
presentant
.
&c.
and
doth
not
say
,
that
12.
Iurors
presentant
,
and
peradventure
but
11.
did
present
.
2.
The
names
of
the
Iurors
ought
to
have
been
certified
,
for
peradventure
they
are
not
probe
&
legales
homines
,
but
Villains
and
Outlawes
,
15.
H.
4.
41.
3.
It
is
sound
that
Rolson
the
Sheriff
by
vertue
of
a
Writ
directed
to
him
,
came
,
&c.
and
upon
this
rescous
was
made
by
Harrison
&c.
and
it
doth
not
appear
what
manner
of
Writ
it
was
,
scilicet
,
Elegit
:
Capias
ad
satisfaciend
.
on
&c.
and
if
there
were
no
Writ
there
can
be
no
rescous
,
and
albeit
he
had
a
Writ
,
yet
if
execution
were
done
by
vertue
of
another
Writ
which
he
had
,
the
Party
may
disobey
it
,
as
if
upon
an
habere
facias
seisinam
,
the
Sheriff
makes
a
Warrant
as
upon
a
Capias
,
the
party
is
not
bound
to
obey
the
Bayliffe
,
if
hee
bee
not
a
Bayliffe
knowne
;
but
in
case
it
appeares
they
were
only
Bayliffs
pro
hac
Vice
.
Nota
,
that
an
Inditement
before
Coron●rs
,
which
found
that
the
Earl
of
B.
was
felo
de
se
,
was
quasht
,
because
it
did
not
appear
that
it
was
per
sacramentum
probor
.
&
legal
.
hominum
:
And
in
the
case
of
Sarum
,
this
Term
an
Inditement
was
quasht
for
the
same
cause
.
The
same
Term
in
the
same
Court.
Rochester
versus
Rickhouse
.
IN
a
writ
of
Error
to
reverse
a
Judgement
given
in
Ejectione
firmae
in
Newcastle
,
Banks
assigned
these
errors
.
1.
The
Plaintiffe
declares
of
a
Lease
made
de
Burg.
sine
Tent.
which
is
not
good
,
no
more
then
in
Ejectione
firmae
de
Mess
▪
sive
Tent.
2.
Because
the
Judgement
is
not
quod
capitur
as
it
ought
to
be
,
because
it
is
vi
&
armis
.
3.
The
judgement
is
Ideo
concessum
est
,
where
it
ought
to
be
consideratus
est
,
and
for
these
Errors
the
Judgement
was
reversed
:
And
the
same
day
another
Judgement
between
Bell
and
Margery
Strongury
was
reversed
for
the
same
causes
.
The
same
Term
in
the
same
Court.
Petit
versus
Robinson
.
IN
Error
to
reverse
a
Iudgment
given
in
C.
B.
in
a
Replevin
,
there
Jermy
for
the
Plaintiff
assigned
two
Errors
:
1.
It
appears
,
that
after
the
Writ
and
before
the
triall
,
it
was
coram
Justiciar
.
Dic.
Domini
Regis
,
and
there
was
not
any
speech
of
any
King
but
of
King
James
before
,
and
there
is
no
speech
of
his
demise
,
and
therefore
this
shall
be
intended
before
the
Iustices
of
King
James
,
which
cannot
be
.
2.
Because
the
Nisi
prius
is
certified
to
be
tried
before
Francisco
Harvey
,
Mill.
uno
Justiciar
.
&c.
&
the
Postea
returned
,
is
before
Francisco
Harvey
Arm.
argued
&
so
there
was
no
such
Iudge
of
Nisi
prius
as
Francis
Harvey
:
Banks
for
the
Defendant
,
I
conceive
the
first
errors
to
be
because
the
adjournment
was
per
br.
Dom.
Reg.
and
King
James
was
named
before
,
so
that
the
objection
may
be
,
that
it
shall
be
intended
the
Writ
of
Adjournment
of
King
James
,
which
cannot
be
,
but
I
conceive
the
Writ
is
generall
,
and
shall
not
be
intended
,
●hat
it
can
be
adjourned
by
the
Kings
Writ
who
was
dead
before
,
and
the
Clerk
of
the
Assises
who
certified
it
,
is
bound
to
take
notice
of
the
Kings
death
,
37.
H.
6.
28.
and
also
the
Record
is
not
per
br.
Dic.
Dom.
Regis
,
but
per
br.
Domini
Regis
,
generally
.
And
for
the
second
,
I
conceive
it
is
no
error
,
and
if
it
be
error
,
then
if
the
Certificate
be
not
according
to
the
Copy
,
out
of
which
the
Clerke
certifies
,
it
shall
be
amended
,
22.
E.
4
22.
35.
H.
6.
23.
b.
Co.
lib.
8.
136.
Blackmores
case
,
which
is
a
stronger
case
then
this
.
But
it
hath
been
objected
,
that
the
Record
is
certified
by
the
Iustices
,
and
now
there
can
be
no
averment
to
the
contrary
;
but
I
conceive
that
this
Court
may
send
to
the
Clark
of
the
Assizes
to
amend
it
,
and
those
objections
were
over-ruled
in
C.
B.
in
the
same
case
.
Doderidge
Iustice
,
I
conceive
that
notwithstanding
these
exceptions
the
Iudgement
ought
to
be
affirmed
,
for
as
to
the
first
,
the
Court
is
bound
to
take
notice
of
the
demise
of
the
King
,
and
therefore
it
shall
be
intended
the
King
that
now
is
,
and
so
the
Writ
of
ad●ournment
good
enough
,
in
Dyer
.
King
Henry
8.
made
a
Patent
,
and
it
was
E●ricus
Dei
gratia
,
&c.
where
it
should
be
Henricus
,
and
yet
the
Patent
good
;
so
in
a
Writ
to
the
Bishop
,
the
subscription
is
,
Episcop.
Norw
.
this
is
good
enough
,
for
the
Bishop
of
Norwich
is
very
well
known
.
And
for
the
other
,
I
conceive
it
is
not
well
alledged
,
because
it
is
not
showne
whether
he
were
a
Knight
at
the
time
of
the
Certificate
or
not
,
and
so
it
may
well
stand
together
,
that
he
was
a
Knight
,
for
he
might
be
an
Esquire
at
the
time
of
the
triall
,
and
before
the
Record
certified
might
be
made
Knight
,
Jones
Iustice
to
the
same
intent
,
and
that
we
ought
to
take
notice
of
the
demise
of
the
King
,
&
therefore
it
shall
be
intended
of
the
Writ
of
adjournment
of
the
King
which
now
is
,
and
therefore
it
is
no
error
,
and
yet
if
it
were
,
it
were
amendable
:
Whitlock
Iustice
agreed
,
and
therefore
the
Iudgement
was
affirmed
by
the
whole
Court
.
The
same
Term
in
the
same
Court.
Crabbe
and
his
Wife
versus
Tooker
.
IN
Covenant
betweene
Walter
Crabbe
and
Anne
his
Wife
,
against
Tooker
,
the
covenant
upon
which
the
breach
was
layd
,
was
this
,
Tooker
the
Defendant
covenanted
with
Tooker
his
Son
,
and
Anne
Slade
(
one
of
the
Plaintiffs
,
whom
he
intended
to
marry
)
to
give
them
their
meat
and
drink
in
his
house
,
and
if
any
discontent
should
happen
between
the
Father
and
Son
,
so
that
he
,
and
his
Wife
Anne
should
disagree
to
dwell
with
Tooker
the
Father
,
then
they
should
have
6.
Beasts
gates
,
&c.
Tooker
the
Son
died
,
Anne
disagree
to
dwell
with
Tooker
the
Father
,
and
marries
with
Crabbe
,
who
with
h●s
Wife
Anne
brings
this
Action
,
and
Taylor
argued
for
the
Planitiff
that
the
Action
lies
,
for
albeit
the
Covenant
be
in
the
conjunctive
(
if
they
disagree
)
yet
it
shall
have
a
disjunctive
interpretation
,
as
where
a
man
covenant
to
levy
a
fine
to
one
and
his
heirs
,
if
he
dies
the
Covenantor
may
levy
a
fine
to
his
Heirs
,
and
Hill
and
Granges
case
in
Plow
.
Two
Tenants
in
common
grant
a
rent
,
this
shall
be
taken
for
severall
Rents
,
and
Co.
lib.
5.
Slingesbyes
case
,
also
the
Wife
is
party
to
this
covenant
,
and
she
must
either
have
remedy
upon
this
covenant
,
after
the
death
of
her
Husband
,
or
not
at
all
,
for
she
cannot
disagree
in
the
life
time
of
her
Husband
per
que
,
&c.
And
it
was
agreed
on
the
other
side
,
that
there
ought
to
be
a
dislike
between
all
joyntly
,
the
Father
,
the
Son
,
and
the
Wife
:
and
now
one
of
them
being
dead
,
the
covenant
is
discharged
,
like
to
the
case
put
in
Brudenels
case
,
Co.
lib.
5.
If
Administration
be
grant
during
the
minority
of
3
if
one
of
them
dies
,
the
administration
ceaseth
,
and
31.
Eliz.
in
C.
B.
A
Lease
was
made
to
three
,
and
the
Lessor
grants
to
them
to
be
dispunishable
of
Wast
quamdiu
cohabitarent
,
one
of
them
dies
,
and
it
was
resolved
,
that
now
they
shall
be
liable
to
wast
.
Also
the
Bar
is
not
bone
,
for
it
is
pleaded
that
Discordia
orta
fuit
,
and
doth
not
shew
what
manner
of
discord
this
was
,
and
therefore
not
good
;
as
3
H
6.
In
Annuity
brought
Pro
concilio
,
&c.
he
ought
to
shew
for
what
manner
of
Councel
it
was
:
Whitlock
Justice
was
of
opinion
for
the
Plaintiff
,
and
that
this
Covenant
extends
to
the
Wife
,
and
that
upon
equall
construction
,
because
it
comes
in
place
of
the
first
Covenant
,
and
this
was
intended
for
the
benefit
of
the
Wife
,
as
well
after
the
death
of
the
Husband
as
before
:
Jones
Justice
was
of
the
contrary
opinion
,
and
that
the
second
covenant
was
a
severall
covenant
from
the
first
,
and
that
the
disagreement
is
to
be
made
by
all
three
joyntly
,
and
that
when
one
dies
the
Covenant
is
gone
,
2.
Eliz.
Dyer
,
A
man
will
that
A.
B.
and
C.
his
Feoffees
shall
sell
his
Land
,
B.
dies
,
now
the
Authority
is
determined
.
The
Lord
Gray
committed
the
custody
of
his
Son
to
four
,
one
of
them
dies
,
the
authority
is
gone
,
and
in
this
case
there
is
no
matter
of
interest
,
but
an
agreement
,
and
in
such
a
case
as
this
is
a
Feme
covert
,
hath
a
will
,
albeit
she
hath
no
legall
will
;
but
in
this
case
there
ought
to
be
a
disagreement
of
both
,
and
there
ought
to
be
a
dislike
of
the
Father
also
,
and
in
the
Declaration
it
is
also
said
,
that
she
dis-agreed
.
Doderidge
agreed
with
Jones
,
that
●he
Declaration
is
not
good
,
and
that
it
is
not
warranted
by
the
Covenant
,
and
that
the
breach
is
not
well
assigned
.
The
case
is
grounded
upon
the
second
covenant
which
consists
upon
a
contingency
which
contingency
is
,
if
there
happen
any
discord
between
the
Father
and
the
Son
,
&c.
the
words
are
joynt
,
and
all
ought
to
disagree
:
True
it
is
,
that
in
some
cases
a
conjunctive
shall
be
taken
for
a
disjunctive
,
but
this
is
according
to
the
matter
and
circumstances
of
the
fact
,
but
in
our
case
it
shall
not
be
taken
disjunctively
.
If
the
Father
,
the
Son
,
and
the
Wife
had
disagreed
,
then
it
is
cleer
that
an
Action
of
covenant
lies
,
but
this
is
casus
omissus
,
and
no
provision
for
it
.
Also
it
is
only
alledged
in
the
Declaration
,
that
she
disagreed
,
whereas
a
mutuall
disagreement
between
all
ought
to
be
alledged
,
and
therefore
Judgement
was
given
Quod
quaerens
mil.
capiat
per
bellam
.
But
all
agreed
,
that
the
Wife
might
have
boarded
with
Tooker
the
Father
,
if
she
would
,
but
her
new
Husband
could
not
.
AT
thowe
Sergeant
took
divers
exceptions
to
an
Inditement
of
forcible
entry
upon
the
Stat.
of
8.
H.
6.
against
Ployden
and
others
for
expelling
one
Syms
from
his
Copi-hold
,
and
the
principall
exception
was
,
because
(
disseisivit
)
was
not
in
the
Inditement
,
and
in
truth
it
cannot
,
for
albeit
the
Stat.
of
21.
Jac.
cap.
15.
gives
power
to
Iudges
and
Iustices
of
Peace
to
give
restitution
of
possession
to
Tenants
for
yeares
,
and
Copy-holders
,
in
which
there
shal
be
an
entry
,
or
detainer
by
force
,
yet
the
Stat.
does
not
give
an
Inditement
of
forcible
entry
of
copy-hold
.
Noy
,
a
Copy-holder
shal
now
have
an
Iditement
of
forcible
entry
,
but
(
disseisivit
)
shal
not
be
in
it
,
for
no
Iury
will
find
that
because
it
is
not
possible
,
because
a
Copy-holder
hath
no
Frée-hold
,
and
yet
a
Copy-holder
shall
have
a
Plaint
in
nature
of
an
Assize
against
a
stranger
,
but
not
against
the
Lord
:
And
at
last
the
opinion
of
the
Court
was
,
that
the
Inditement
was
good
.
UPon
a
Capias
directed
to
the
Sheriff
of
London
to
take
the
body
of
J.
S.
the
Capias
was
returnable
die
Jovis
,
which
was
the
day
of
All-souls
,
and
thereupon
the
Sheriff
took
the
party
,
but
he
returned
,
that
because
the
return
of
the
Writ
was
upon
a
day
that
was
not
Dies
Juridicus
,
he
suffered
the
party
to
go
at
large
:
And
the
return
was
holden
insufficient
,
for
by
Doderidge
the
Writ
was
good
,
and
the
taking
and
detaining
of
the
party
by
vertue
thereof
was
lawfull
,
but
yet
he
could
not
have
the
party
there
at
the
sayd
day
,
and
therefore
the
Sheriff
was
compelled
to
bring
the
party
into
Court
,
which
the
same
day
he
did
accordingly
.
The
same
Term
in
the
same
Court
.
A
Man
granted
a
Rent
charge
of
12
l.
to
one
of
his
Sons
out
of
the
Mannor
of
D.
by
Déed
,
and
died
,
the
Grantée
lost
his
Deed
,
the
Land
is
extended
to
I.
D.
by
vertue
of
a
Recognizance
acknowledged
by
the
eldest
Son
of
the
Grantor
,
the
Grantée
sue
for
his
Annuity
before
the
Councell
of
York
to
be
relieved
in
equity
,
for
that
in
respect
of
the
losse
of
the
Déed
he
could
not
have
remedy
at
the
common-Law
,
and
J.
D.
the
Conuzée
obtained
a
prohibition
out
of
this
Court
upon
this
surmize
,
that
although
the
Councel
of
York
should
make
a
Decree
,
that
he
should
pay
the
said
Annuity
,
yet
it
should
be
no
discharge
for
so
much
against
the
Conuzor
,
because
their
Decrée
was
no
legall
eviction
.
Now
came
Smith
of
the
Temple
,
and
prayed
a
Precedendo
for
the
Grantée
to
the
Councel
of
York
,
and
the
opinion
of
the
whole
Court
was
,
that
a
Decrée
,
there
being
no
legall
eviction
,
shall
not
be
a
discharge
for
so
much
against
the
Conuzor
.
Doderidge
,
the
Grantée
of
the
Rent-charge
,
having
now
lost
his
Déed
can
have
no
remedy
in
equity
,
for
in
this
case
Equitas
sequitur
legem
,
and
of
the
same
opinion
were
Jones
and
Whitlock
:
but
by
Doderidge
(
which
was
not
denied
)
if
the
Grantee
had
lost
the
Deed
by
a
casuall
losse
,
as
by
fir●
&c.
in
such
a
case
he
shall
have
remedy
in
equity
:
and
he
sayd
,
that
in
the
beginning
of
King
James
,
when
Egerton
was
Lord
Chancellor
,
there
was
such
a
Case
in
Chancery
:
A
Grantee
of
a
rent-seck
had
seisen
of
it
,
so
that
he
might
have
an
assize
,
and
he
devised
it
to
J.
S.
the
Devisée
sued
in
Chancery
to
have
his
Rent
and
seizen
of
it
,
and
he
could
have
no
remedy
for
it
in
Chancery
:
And
this
was
one
Malleryes
case
.
The
same
Term
in
the
same
Court
.
ONe
Hebborne
was
indited
for
stopping
a
way
,
&c.
and
it
was
mooved
that
the
inditement
was
insufficient
,
because
it
is
not
layd
that
it
was
communis
via
,
but
only
that
it
was
a
way
to
the
Church
,
and
per
Curiam
,
it
was
good
enough
,
and
by
Jones
Iustice
the
Inditement
is
good
enough
,
although
there
wants
vi
&
armis
,
because
he
who
is
supposed
to
stop
the
way
,
is
owner
of
the
Land
.
The
same
Term
in
the
same
Court
.
AN
Action
upon
the
Case
,
upon
a
promise
was
brought
in
the
Town
of
Northampton
,
and
the
Consideration
alledged
was
,
that
if
the
Defendant
here
in
the
Writ
of
Errour
,
would
discharge
Bagnot
of
Execution
,
&c.
that
then
the
Plaintiff
here
in
this
Writ
of
Errour
promised
to
pay
him
eleven
pounds
,
and
there
the
Defendant
pleaded
,
quod
exoneravit
illum
de
Executione
relaxavit
,
And
Bolstred
,
for
the
Plaintiffe
moved
this
for
Errours
,
that
the
Plaintiffe
in
the
inferiour
Court
did
not
shew
by
what
manner
of
release
it
was
,
nor
that
it
was
by
writing
;
for
this
being
the
Consideration
upon
which
the
Action
is
grounded
,
ought
to
be
put
in
certain
,
Mich.
15.
Iac.
Staple
and
King
,
Execution
of
a
consideration
ought
to
be
shown
▪
35
H.
6.
19.
a
discharge
ought
to
be
shown
in
certain
,
22
E.
4.
43.
the
Lord
Lisles
Case
,
and
Mich.
16.
Iac.
in
this
Court
Liverel
and
Rivets
Case
(
which
was
entred
,
Trin.
16.
Iac.
Rot.
32●
)
in
an
Action
upon
the
Case
,
upon
a
promise
upon
issue
joyned
,
it
was
found
for
the
Plaintiffe
,
and
it
was
moved
in
arrest
of
Judgement
,
because
the
Consideration
was
,
that
the
Plaintiffe
should
discharge
one
Ogle
,
and
he
declares
,
that
he
did
discharge
him
,
and
thereupon
he
brought
this
Action
,
and
because
he
declared
but
generally
,
quod
exoneravit
,
the
Judgement
for
that
very
cause
was
stayed
,
and
36
Eliz.
one
covenanted
to
make
an
assurance
,
and
pleaded
generally
that
he
had
assured
,
and
resolved
that
it
was
not
good
,
and
in
Rosse
and
Harvies
Case
this
Term
(
which
was
entred
,
Trin.
2
Car.
Rot.
1408.
)
In
Covenant
the
Defendant
covenanted
to
give
security
,
the
Defendant
pleaded
that
he
offered
security
,
and
resolved
that
it
was
not
good
,
per
que
&c.
Jermy
for
the
Defendant
,
that
the
plea
is
good
enough
▪
for
a
Release
by
Peroll
is
sufficient
,
I
will
remember
but
one
book
,
upon
which
I
will
rely
,
27.
H.
8.
24.
Jordons
Case
,
in
an
Action
upon
the
Case
,
the
Defendant
assumed
to
the
Plaintiffe
,
that
if
the
Plaintiffe
would
discharge
I.
T.
of
such
an
Execution
in
which
he
is
bound
at
the
suit
of
the
Plaintiffe
,
then
if
I.
T.
did
not
satisfie
the
Plaintiffe
by
such
a
day
,
the
Defendant
would
do
it
,
and
they
were
at
Issue
upon
an
Assumpsit
,
and
there
the
Count
is
admitted
good
,
and
he
need
not
plead
it
was
by
writing
,
because
the
Discharge
is
good
without
writing
,
but
it
hath
been
resolved
,
that
if
a
man
be
in
execution
at
my
suit
,
and
I
go
to
the
Sheriffe
and
command
him
to
discharge
the
Party
,
this
is
a
good
Discharge
,
although
it
be
by
Peroll
,
Jones
.
If
I
say
to
the
Sheriff
,
suffer
the
party
to
go
at
large
,
this
is
a
good
release
both
to
the
party
and
to
the
Sheriffe
,
and
by
him
(
relaxavit
)
implies
a
sufficient
release
,
and
therefore
the
Plaintiffe
in
the
Writ
of
Errour
shall
be
barred
.
And
if
a
man
be
bound
to
save
one
harmlesse
in
an
Action
brought
upon
this
obligation
,
he
pleads
that
he
hath
saved
him
harmlesse
,
and
shews
not
how
,
the
Plaintiffe
demurres
generally
,
he
shall
not
now
take
advantage
of
it
,
Doderidge
.
The
Cases
put
by
Bolstred
are
not
to
this
purpose
,
for
all
those
cases
are
of
things
in
certaine
,
and
he
agreed
that
a
release
by
perol
was
sufficient
,
and
the
case
of
22.
H.
8.
is
a
stronger
case
then
this
is
.
Whitlock
agreed
also
,
and
therefore
Doderidge
advised
the
Plaintiff
to
be
satisfied
,
or
otherwise
they
would
affirm
the
first
Judgement
.
Trin
2.
Car.
in
the
Kings
Bench.
Caryes
Case
.
IN
Caryes
case
of
Grayes
Inne
(
where
these
words
were
adjudged
actionable
,
You
a
Councellor
?
a
Foole
,
an
Asse
,
a
Hangman
,
a
Councellor
of
Law
,
a
Foole
in
the
Profession
)
it
was
said
by
Jones
Instice
,
it
was
not
sufficient
to
say
,
that
he
was
eruditus
in
Lege
,
but
he
ought
to
say
that
he
was
Homo
Conciliarius
:
and
he
said
that
in
maintainance
against
Boughton
,
it
came
in
question
upon
evidence
to
a
Iury
whether
one
who
is
a
Barrister
may
give
advice
,
and
it
was
ruled
that
he
could
not
,
albeit
he
had
Letters
Patents
to
inable
him
as
fully
as
if
he
had
been
called
to
the
Bar
:
and
in
Fleetwoods
case
adjudged
,
that
these
words
(
You
the
Kings
Receiver
?
you
are
his
Deceiver
,
are
you
not
?
)
were
actionable
.
The
same
Term
in
the
same
Court
.
SIr
Tho.
Savill
was
indited
for
breach
of
the
peace
within
the
Pallace
,
to
wit
,
for
assaulting
Sir
Fran
:
Wortley
,
and
he
pleaded
his
pardon
,
and
Doderidge
said
,
that
to
strike
in
the
place
was
the
losse
of
the
right
hand
by
the
Law
,
and
in
this
poynt
our
Law
agrees
with
the
Lawes
of
France
and
Spain
,
and
all
other
Nations
,
for
as
the
person
of
the
King
,
so
his
Palace
and
courts
of
Iustice
are
so
sacred
,
that
such
contempts
and
affronts
are
judged
worthy
of
such
punishments
,
and
said
that
the
Book
of
24.
E.
3.
33.
Fitzherbert
Forfeiture
,
22.
(
of
which
he
would
have
Students
to
take
notice
)
is
that
where
one
came
into
the
Palace
armed
,
and
being
brought
to
the
Barre
in
his
compleat
armor
,
the
cause
was
demanded
,
and
he
said
that
it
was
in
his
own
defence
,
being
in
fear
of
a
great
man
then
in
Court
,
and
he
was
committed
to
Prison
by
the
Court
during
the
Kings
pleasure
,
and
his
Lands
forfeited
during
his
life
.
Vide
for
the
like
matter
,
41.
E.
3.
Fitzh
.
Coron.
280.
Dyer
188.
22.
E.
3.
13.
Hillar.
2.
Car.
in
the
Kings
Bench.
ONe
Mathias
Wheelhorse
was
indited
at
the
Sessions
of
the
Peace
,
holden
in
the
Town
of
Northampton
.
quia
Noctivagus
,
and
because
he
divers
dayes
and
nights
did
frequent
the
house
of
&c.
which
was
within
the
liberties
of
Southampton
,
and
was
a
suspected
Bawdy-house
:
and
Crawley
Sergeant
moved
that
this
Inditement
was
insufficient
for
three
reasons
.
1.
Because
it
does
not
appeare
in
the
Inditement
,
that
the
party
knew
this
to
be
a
Bawdy-house
.
2.
Because
it
is
not
said
that
it
was
a
Bawdy-house
,
but
that
it
was
susspected
to
be
a
Bawdy-house
.
3.
Because
the
Inditement
is
before
Iustices
of
Peace
,
Villae
de
Northampt
.
and
the
house
is
infra
libertates
Villae
de
Northampt.
and
it
shall
not
be
intended
that
the
power
of
the
Iustices
of
Peace
extend
thither
,
and
for
it
see
Co.
lib
5.
120.
Longs
case
.
13.
H.
7.
33.
34.
22.
H.
7.
Kelleway
89.
Co.
lib.
9.
Mackaleys
case
:
And
the
Court
gave
no
opinion
concerning
the
exceptions
:
But
another
thing
was
moved
,
to
wit
,
that
one
could
not
be
indited
before
Iustices
of
peace
for
being
Noctivagus
,
but
this
is
to
be
inquired
of
in
the
Leet
,
and
in
this
the
whole
Court
was
against
him
,
for
it
is
a
misdemeanor
,
and
it
is
contrary
to
the
Statute
of
Winchester
,
and
every
one
may
arrest
him
:
And
at
another
day
he
moved
this
last
exception
again
,
and
sayd
that
the
Iustices
of
Peace
have
no
power
to
fine
men
that
are
noctivagant
,
yet
true
it
is
,
that
a
Court-Leet
hath
such
a
power
,
Rastol
.
Leet
2.
and
true
it
is
also
,
(
as
it
is
in
4.
H.
7.
1.
2.
)
that
every
one
may
arrest
a
Night-walker
,
but
there
it
is
said
that
if
he
appeareth
to
be
a
man
of
good
fame
,
the
party
who
arrests
him
ought
to
let
him
go
at
large
;
and
the
Inditement
here
is
only
that
he
was
Noctivagus
,
&
it
appears
not
that
he
is
a
suspicious
Night-walker
:
&
by
Doderidge
&
Whitlock
Iustices
(
only
present
)
by
the
Common
Law
every
man
may
arrest
him
who
is
Noctivagus
,
and
the
word
(
Noctivagus
)
implies
that
he
was
a
common
▪
Night-walker
,
and
they
sayd
that
Iustices
of
peace
by
their
Commission
have
power
to
take
such
Inditements
,
for
it
is
of
ill
behaviour
,
and
albeit
the
Inditement
were
nought
for
the
other
exceptions
,
yet
being
good
in
this
,
it
shall
not
be
quasht
,
and
therefore
Iudgement
was
given
upon
it
,
and
the
party
fined
40
s.
The
same
Term
in
the
same
Court.
Sparrow
versus
Sherwood
.
IN
Trover
and
Conversion
of
two
loads
of
Fitches
of
certain
Land
&c.
The
Defendant
justifie
by
the
command
of
Hare
,
to
whom
part
of
the
Land
belongs
;
and
to
one
Pots
,
to
whom
another
part
in
right
of
the
Lady
his
Wife
belongs
,
and
shews
that
part
of
the
Fitches
did
grow
upon
the
Land
of
one
,
and
part
upon
the
Land
of
the
other
,
and
upon
this
the
Plaintiff
demurs
:
1.
Because
he
justifies
by
the
command
of
two
generally
,
and
he
cannot
justifie
upon
the
Land
of
the
one
by
the
command
of
the
other
,
and
therefore
he
ought
to
have
alledged
severall
commands
.
2.
Because
he
does
not
shew
particularly
upon
whose
Land
the
Fitches
grew
,
but
that
part
grew
upon
the
Land
of
one
,
and
part
upon
the
Land
of
the
other
,
which
is
incertain
.
3.
Because
the
Wife
of
Pots
is
called
by
the
name
of
Lady
,
and
the
Wife
of
an
Esquire
cannot
be
a
Lady
:
Doderidge
and
Whitlock
onely
present
,
for
the
first
were
of
opinion
,
that
it
was
good
enough
;
for
although
it
were
a
joynt
command
,
yet
the
parties
commanding
having
severall
titles
,
it
shall
be
taken
as
severall
commands
,
reddendo
singula
singulis
:
and
for
the
third
it
is
good
enough
,
being
in
a
Plea
,
otherwise
,
if
it
had
been
in
a
Writ
:
But
for
the
second
Exception
,
the
bar
is
not
good
enough
,
because
incertain
,
so
that
although
upon
other
Exceptions
moved
by
the
Defendant
,
the
Replication
of
the
Plaintiff
was
not
good
,
yet
the
Defendants
Bar
being
ill
,
the
Plaintiff
shall
have
Iudgement
upon
t●e
Declaration
:
And
the
Plaintiff
had
Iudgement
accordingly
.
The
same
Term
in
the
same
Court
Risley
versus
Hains
.
IN
an
Action
upon
the
Case
,
upon
an
assumpsit
,
the
Plaintiffe
declared
upon
the
Sale
of
several
parcells
of
Tobacco
,
to
wit
,
for
one
parcell
so
much
,
for
another
parcell
so
much
,
and
so
forward
,
and
in
the
Conclusion
he
saith
,
quae
quidem
separales
summae
in
toto
se
attingunt
,
to
55.
l.
which
(
being
computed
)
is
lesse
then
the
pariculars
,
and
upon
non
assumpsit
it
was
found
for
the
Plaintiffe
,
and
now
Andrewes
moved
in
arrest
of
Judgement
,
for
that
the
particulars
,
and
the
summing
up
of
them
differs
,
and
this
being
in
a
Declaration
(
which
ought
to
contain
truth
)
it
is
not
good
,
and
so
there
appears
to
be
no
cause
of
action
,
35.
H.
8.
Dyer
55.
And
Grices
Case
,
in
the
very
point
Mich.
17.
Jac.
in
this
Court
,
but
by
Jones
and
Whitlock
Iustices
onely
present
,
the
Declaration
is
good
enough
,
for
there
is
a
particular
promise
for
every
parcell
,
and
the
summing
up
of
particulars
is
only
surplusage
and
officiousness
of
the
Clark
,
therefore
the
Iudgement
was
affirmed
:
And
nota
,
that
Jones
said
obiter
in
this
Case
,
that
upon
a
contract
,
the
Party
to
whom
payment
is
to
be
made
,
need
not
make
request
,
and
afterwards
it
was
agreed
by
the
whole
Court
,
that
it
should
be
amended
,
otherwise
it
had
been
more
.
The
same
Term
in
the
same
Court
.
A
Great
multitude
of
Welsh-men
were
Indited
for
the
death
of
a
man
,
by
an
Inquisition
taken
before
the
Coroner
in
the
County
of
Mountgomery
in
Wales
,
and
Littleton
of
Councel
with
the
Welsh-men
took
some
Exceptions
to
the
Inquisition
:
as
,
1.
That
the
Coroner
cannot
take
any
Inquest
,
unlesse
it
be
super
visum
corporis
,
and
to
this
purpose
he
cited
Britton
,
6.
Ric.
2.
Coron.
107.
21.
E.
4.
70.
2.
Ric.
3.
2.
This
also
is
the
reason
that
,
if
a
man
drown
himselfe
,
and
cannot
be
found
,
the
Coroner
cannot
enquire
of
the
death
of
this
man
:
but
for
the
King
to
have
a
forfeiture
of
his
Goods
,
an
Inquisition
ought
to
be
taken
before
the
Iustices
of
Peace
,
as
it
was
resolved
in
this
Court
,
Trin.
13.
Jac.
upon
which
the
first
exception
was
,
that
the
Inquisition
was
taken
at
D.
in
the
time
of
King
James
,
super
visum
corporis
,
in
D.
in
the
time
of
this
King
,
and
for
this
he
cited
two
presidents
out
of
Cookes
Booke
of
E●tryes
:
Another
Exception
was
,
because
the
Inquisition
was
per
Sacramentum
probor
.
&
legal
.
hominum
Com.
predict
.
whereas
by
the
Stat.
of
4.
E.
1.
this
inquest
ought
to
be
by
men
of
the
four
Towns
next
adjoyning
,
and
this
ought
to
appear
in
the
Inditement
also
Hill.
10.
Jac.
Rot.
3.
Co.
lib.
Intr.
354.
And
day
was
given
to
the
Attorney
General
,
to
maintain
this
Inquisition
:
But
afterwards
Pasch.
3.
Car.
the
Inditement
was
quashed
,
especially
for
the
first
exception
.
The
same
Term
in
the
same
Court
,
King
versus
Merrick
.
In
an
Action
upon
the
Case
for
these
words
,
I
charge
you
King
with
Felony
,
and
you
Constable
(
inuendo
Thomas
Legat
)
to
apprehend
him
:
And
a
verdict
for
the
Plaintiff
.
It
was
moved
in
arrest
of
Iudgement
by
Bacon
,
that
the
words
are
not
actionable
:
The
first
words
are
not
,
because
they
are
not
an
expresse
affirmation
,
and
for
this
he
cited
Mich.
11.
Jac.
in
this
Court
Powel
and
Bauds
case
,
where
an
action
was
brought
for
these
words
,
I
have
arrested
Powel
of
Felony
,
for
stealing
sheep
of
mine
,
and
adjudged
not
actionable
.
Also
the
Plaintiff
did
not
shew
in
his
Declaration
what
kinde
of
felony
this
was
,
and
it
may
be
such
a
felony
for
which
an
Action
will
not
lie
;
for
there
are
divers
kinds
of
felony
,
and
a
Mayhem
is
one
kind
,
as
appears
in
40.
Ass.
Pl.
4.
6.
H.
7.
1
and
in
this
case
it
shall
be
taken
in
mitiori
sensu
,
and
it
shall
not
be
intended
such
a
felony
for
which
he
may
be
hanged
:
If
one
charge
another
with
felony
,
because
he
hath
committed
a
Mayhem
,
it
is
cleer
that
an
action
will
not
lye
.
And
the
other
words
,
(
I
charge
you
Constable
to
apprehend
him
)
are
not
actionable
,
and
the
words
are
onely
spoken
to
the
Plaintiff
:
Also
the
words
are
layd
to
be
spoken
in
London
,
and
it
appears
that
the
Constable
was
of
a
Town
in
Norfolk
,
who
cannot
apprehend
any
one
in
London
.
Earle
for
the
Plaintiff
.
It
hath
been
argued
that
the
words
are
not
actionable
,
because
felony
is
a
generall
word
and
contains
in
it selfe
a
mayhem
also
;
But
I
conceive
that
in
this
case
felony
shall
be
taken
according
to
the
general
and
common
acceptation
,
which
is
such
a
Felony
for
which
a
man
may
loose
his
life
,
and
for
this
he
cited
Co.
lib.
4.
15.
b.
Yeomans
charged
Hext
,
for
my
ground
in
Allerton
Hext
seeks
my
life
,
and
if
I
could
find
Iohn
Silver
,
I
do
not
doubt
but
within
two
dayes
to
arrest
him
upon
suspition
of
Felony
:
and
it
was
adjudged
that
for
the
last
words
the
Action
lies
,
because
he
shall
be
imprisoned
for
suspition
of
felony
,
and
felony
is
there
taken
according
to
the
common
acceptation
of
the
word
.
It
hath
been
objected
that
there
is
no
expresse
affirmation
of
the
Felony
,
but
I
conceive
that
there
is
,
39.
Eliz.
Action
was
brought
for
these
words
;
I
will
call
him
in
question
for
poysoning
my
Aunt
,
and
adjudged
that
it
lyes
,
and
Mich.
37.
and
38.
Eliz.
Woodrofe
and
Vaughans
case
for
these
words
:
I
did
not
know
Mr.
Woodrofe
was
your
Brother
,
I
will
prove
him
perjured
,
or
else
I
will
bear
his
charges
:
and
adjudged
actionable
.
And
Hill.
44.
Eliz.
Rot.
351.
This
man
(
inuendo
Iohn
Latham
)
hath
cut
my
Wives
purse
,
and
his
Father
knowing
of
it
received
it
of
him
,
and
the
Money
and
Rings
theein
,
and
therefore
I
charge
him
of
flat
Felony
:
and
resolved
that
for
these
words
,
(
did
cut
my
Wife's
purse
)
no
action
lies
,
for
the
cutting
of
ones
purse
only
is
not
felony
,
unlesse
it
be
taken
from
the
person
;
and
to
receive
one
is
not
Felony
,
but
resolved
that
the
last
words
were
actionoble
,
and
then
it
was
agreed
,
that
if
one
say
,
that
I.
S.
did
see
such
a
one
that
had
committed
felony
,
and
did
suffer
him
to
slip
away
,
I
charge
him
of
Felony
,
these
words
are
not
actionable
,
and
Mich.
20.
Jac.
in
this
Court
that
these
words
(
beare
witnesse
,
I
arrest
him
of
felony
)
are
actionable
,
and
therefore
he
praye●
judgement
for
the
Plaintiff
.
Doderidge
Iustice
,
the
words
are
not
actionable
:
And
Hexts
case
comes
not
to
this
case
,
for
there
by
the
word
(
Felony
)
it
was
manifest
what
Felony
he
intended
by
the
circumstances
of
the
speech
;
to
wit
,
that
he
ment
such
felony
,
for
which
he
might
lose
his
life
;
But
the
words
here
being
generall
of
Felony
,
it
may
be
intended
as
well
of
a
Mayhem
a●
of
any
other
Felony
;
for
in
an
appeal
of
Mayhem
,
he
is
arraigned
as
Felo
Domici
Regis
40.
Ass.
and
the
other
case
of
44.
Eliz.
I
do
arrest
him
of
flat
Felony
,
is
not
consonant
with
the
reason
of
this
case
,
for
there
by
the
arrest
,
his
liberty
is
taken
away
,
but
in
this
case
there
is
no
restraint
,
and
it
is
very
hard
to
make
these
cases
agree
together
,
for
words
are
as
variable
as
the
faces
of
men
&c.
Jones
Justice
agreed
,
and
he
took
it
for
a
generall
rule
,
that
where
words
carry
a
double
sense
,
and
there
is
nothing
to
guide
the
sense
more
one
way
then
another
,
there
the
words
are
not
actionable
,
for
finis
est
legis
dirimire
lites
And
therefore
if
one
faith
of
another
,
that
he
hath
the
Pox
,
because
the
sense
is
ambiguous
,
it
sh●ll
be
interpreted
in
mitiori
sensu
,
and
therefore
the
words
are
not
actionable
,
to
if
one
sayes
of
another
,
that
he
hath
stolen
his
Apples
,
or
his
Corn
,
because
they
may
be
Apples
from
the
tree
,
or
Corn
in
the
field
,
the
taking
whereof
is
no
felony
:
but
it
was
adjudged
in
the
Common-Pleas
,
when
I
was
there
,
that
these
words
viz.
Thou
art
a
Thief
,
and
hast
stolen
my
Corn
,
are
actionable
,
by
reason
of
the
addition
of
the
word
Thiefe
.
So
that
the
speaking
of
words
of
a
double
sense
are
not
actionable
,
unlesse
ex
antecedentibus
,
or
consequentibus
,
it
can
be
collected
that
the
words
were
spoken
in
pejori
sensu
:
Then
the
words
in
this
case
(
I
charge
you
with
Felony
)
peradventure
intend
such
a
Felony
,
for
which
he
shall
recover
damages
only
,
which
is
Mayhem
,
and
therefore
no
action
will
lie
.
These
words
(
Thou
art
forsworn
)
are
not
actionable
,
because
forswearing
may
be
in
ordinary
communication
,
or
in
a
Court
of
Justice
,
and
it
shall
be
taken
in
mitiori
sensu
:
but
if
he
sayes
,
Thou
art
forsworn
in
a
Court
of
Record
,
it
is
actionable
,
and
if
in
this
case
he
had
charged
him
with
Felony
,
and
sayd
further
that
he
had
stolen
,
&c.
they
would
have
been
actionable
,
but
here
he
only
charges
him
with
Felony
,
which
is
an
ambiguous
word
;
and
also
it
is
no
direct
affirmation
,
and
therefore
not
actionable
,
and
Iudgement
was
given
Quod
quaerens
nil
capiat
per
Billam
.
The
same
Term
in
the
same
Court
.
Goods
Case
.
GOod
and
his
Wife
brought
a
Writ
of
Error
upon
a
Judgement
,
given
in
the
Court
of
the
Castle
of
Windsor
,
in
an
Action
of
Debt
there
,
which
was
entered
Trin.
Mich.
2
Car.
Rot.
119.
120.
and
two
Errors
were
assigned
.
1.
Because
the
Judgement
there
is
given
in
these
words
,
ideo
consideratum
ad
judicatum
,
&
assessum
est
,
whereas
it
ought
to
be
onely
by
the
word
consideratum
,
and
the
Judgement
being
the
act
of
the
Court
,
the
Law
is
precise
in
it
,
and
therefore
it
hath
been
resolved
,
that
a
Judgement
given
by
the
word
(
concessum
)
is
not
good
,
but
it
ought
to
be
by
the
word
(
consideratum
)
2.
The
costs
ex
incremento
,
are
not
said
to
be
given
,
ad
petitionem
quaerentis
,
a●
it
ought
to
be
,
for
beneficium
nemini
obt
ruditur
,
and
therefore
it
hath
been
resolved
in
this
Court
,
that
an
alien
born
shall
not
have
medietatem
linguae
,
if
he
does
not
request
it
,
and
as
to
this
it
was
answered
of
the
other
side
,
that
costs
ought
alwayes
to
be
ass●ssed
ex
petitione
quaerentis
,
and
albeit
here
the
request
of
the
Plaintiff
was
not
precisely
put
to
increase
of
the
costs
,
yet
at
the
beginning
of
the
Judgement
it
is
said
,
Ideo
ad
petitionem
quaerentis
cons●●eratum
.
&c.
And
that
costs
shall
be
given
ex
in
cremento
,
so
that
this
request
goes
to
all
the
Sentence
,
and
by
the
unanimous
opinion
of
all
the
Court
,
the
Judgement
was
reversed
for
both
the
Errourrs
,
for
1.
Ideo
considerat
.
adjudicat
.
&c.
is
not
good
,
the
Judgement
being
the
Act
of
the
Court
,
and
the
Law
hath
appointed
in
what
words
it
shall
be
given
,
and
if
other
words
should
be
suffered
,
great
incertainty
and
confusion
would
ensue
,
and
need●esse
verbosity
is
the
mother
of
difficulty
.
2.
The
increase
of
costs
ought
to
be
given
ad
petitionem
quaerentis
,
and
the
words
(
ad
petitionem
quaerentis
)
being
misplaced
▪
will
not
supply
this
defect
,
and
Dammages
ex
incremento
is
alwayes
given
ad
petitionem
quaerent
.
for
as
Bracton
saith
,
Omne
judicium
est
trinus
actus
trium
personarum
,
judicis
,
actoris
,
&
rei
,
and
if
in
this
case
,
the
usuall
form
should
not
be
observed
,
all
would
be
in
a
confusion
,
and
in
as
much
as
the
words
are
misplaced
,
it
is
as
if
they
had
not
been
put
in
at
all
,
and
therefore
void
,
like
to
a
case
put
in
Walsinghams
case
in
Plowden
,
where
an
averrement
misplaced
,
is
,
as
if
there
were
none
:
In
this
case
the
Judgement
was
reversed
,
and
Trin.
3
Car.
in
B.
B.
intr
.
Hill
2
Car.
Rot
849.
a
judgement
was
reversed
,
because
it
was
Ideo
concessum
&
consideratum
est
.
FINIS
.