Easter
Term.
19.
Jac.
IT
was
said
by
Warberton
Iustice
,
that
in
the
time
when
Anderson
was
chief
Justice
of
this
Court
,
that
it
was
adjudged
,
that
where
a
Coppiholder
alleadged
a
custom
within
a
Mannor
to
be
,
that
every
Coppiholder
may
cut
trees
at
his
pleasure
,
that
this
custome
is
against
common
Law
,
and
also
his
opinion
was
,
that
where
a
custome
was
alleadged
to
be
,
that
if
a
Tenant
in
antient
Demesne
devise
his
land
to
another
without
other
words
expressing
his
intent
,
that
the
devisee
shall
have
the
fee
simple
:
&
Hobert
inclined
to
this
opinion
,
and
by
Hutton
and
Winch
he
shall
have
fee
by
the
custome
,
and
accordingly
it
was
adjudged
.
Norton
against
Lakins
Ent.
Hill
.
Jac.
NOrton
against
Lakins
Ent.
Hill.
18.
Jac.
in
debt
upon
an
obligation
,
the
condition
was
to
stand
to
the
arbitrement
of
J.
S.
and
the
Defendant
pleaded
that
he
made
no
arbitrement
,
the
Plantiff
shewed
the
award
and
the
breach
.
And
the
case
in
effect
was
,
that
the
Plantiff
and
the
Defendant
put
themselves
upon
the
arbitrement
of
J.
S.
of
all
matters
between
them
till
the
first
of
March
18.
Iac.
and
he
made
an
award
that
each
shall
release
to
the
other
matters
and
differences
between
them
till
the
ninth
day
of
March
18.
Jac.
and
it
was
argued
by
Serjeant
Henden
that
the
award
is
void
,
for
by
their
release
the
obligation
upon
which
this
action
is
brought
is
discharged
:
but
it
was
ruled
to
be
a
good
award
,
for
though
it
shall
be
void
for
that
part
of
the
award
,
yet
it
shall
be
good
for
the
rest
;
but
Winch
doubted
of
the
case
.
Reynolds
against
Poole
;
Ent.
Hill.
18.
Jac.
Rot.
641.
REynolds
against
Pool
Ent.
Hill
.
18.
Iac.
Rot.
641.
Reynolds
libelled
in
the
spiritual
Court
against
Pool
,
for
the
Tithes
of
a
Park
,
and
Pool
prayed
to
have
a
prohibition
,
and
he
shewed
that
he
,
and
all
those
whose
estate
he
had
in
the
Park
,
had
held
this
as
a
Park
till
the
11.
of
Eliz.
at
which
time
it
was
disparked
,
and
that
time
beyond
memory
&c.
the
occupiers
had
used
to
pay
to
the
vicar
of
the
parish
a
Buck
in
Summer
,
and
a
doe
in
winter
in
lieu
and
satisfaction
of
all
Tithes
due
to
the
Vicar
.
And
it
was
argued
by
Serjeant
Henden
,
that
this
is
not
a
sufficient
cause
to
grant
a
prohibition
,
because
that
now
the
Park
is
destroyed
and
sowed
,
and
so
the
prescription
fails
,
for
it
was
annexed
to
the
Park
:
secondly
the
question
is
for
the
Tithes
of
corn
and
those
do
appertain
to
the
Parson
and
not
to
the
Vicar
,
and
he
cited
a
case
between
Hawk
and
Collins
in
this
Court
;
there
the
prescription
was
,
that
he
and
all
those
,
whose
estate
he
had
,
had
used
to
pay
to
the
Vicar
a
certain
thing
in
leāu
and
satisfaction
of
all
Tithes
due
to
the
Parson
,
and
for
this
a
prohibition
was
denyed
.
Sherley
:
he
had
preserved
that
he
had
used
to
pay
this
to
the
Vicar
,
and
this
shall
be
intended
for
Tithes
due
to
the
Vicar
,
and
not
to
the
Parson
:
Serjeant
Ashley
to
the
contrary
,
and
that
the
prescription
is
good
for
this
extends
to
the
soyle
and
not
to
the
Park
;
Hobert
said
,
that
Tithes
of
corn
are
sometime
payable
to
the
Vicar
,
and
not
alwayes
to
the
Parson
;
for
put
the
case
that
at
the
time
of
the
derivation
of
the
Vicarage
out
of
the
Parsonage
the
composition
was
that
the
Vicar
shall
have
the
Tithes
of
that
Park
,
in
thās
case
by
reason
of
such
general
terms
,
he
shall
have
the
Tithe
of
hay
,
corn
,
deer
,
or
any
other
thing
which
grows
in
that
.
And
the
composition
being
made
before
time
of
memory
,
no
man
can
say
but
that
it
was
made
in
such
manner
,
and
the
case
of
Okenden
Cowper
in
this
Court
,
in
which
the
Court
was
divided
,
differed
from
this
case
,
for
there
the
prescription
was
to
pay
a
Buck
arising
and
coming
out
of
the
Park
,
and
there
was
no
deer
left
in
the
Park
:
and
Hutton
agreed
,
for
there
he
destroyed
his
own
prescription
,
and
he
agreed
with
Bracies
case
put
after
,
for
there
was
a
contrariety
in
the
prescription
.
Warberton
;
the
case
of
Bracie
in
this
Court
was
,
that
the
Parson
libelled
against
him
for
the
Tithe
of
corn
,
where
this
was
due
to
the
Vicar
and
not
to
the
Parson
and
denyed
him
for
that
reason
,
for
he
may
not
plead
the
title
of
another
man
;
and
the
Parson
and
the
Vicar
ought
to
agree
among
themselves
;
but
in
our
case
no
Tithes
are
to
be
set
out
,
and
for
that
reason
he
may
plead
this
,
but
it
seems
to
me
that
the
prescription
shall
go
to
the
soyle
,
and
not
to
the
Park
&
when
it
is
destroyed
,
he
shall
pay
Tithes
in
kind
as
a
garden
or
an
orchard
,
so
long
as
it
is
used
as
a
garden
or
an
orchard
,
that
the
occupier
of
that
shall
pay
a
peny
:
now
if
this
be
ploughed
and
converted
to
other
use
,
he
shall
pay
Tithes
in
kinde
:
and
Hobert
agreed
to
the
case
of
the
garden
or
orchard
,
for
the
penny
is
paid
for
the
herbs
or
fruite
.
Winch
was
absent
:
and
Hutton
said
,
that
the
prescription
shall
go
to
the
soyle
,
and
the
Vicar
by
prescription
may
have
the
herbs
of
the
glbe
of
the
Parson
:
Hobert
,
the
Park
is
only
an
appellation
or
name
of
land
,
and
this
name
or
appellation
may
not
pay
Tithes
,
but
the
land
it self
:
and
put
the
case
that
a
man
had
al-wayes
paid
10.
s.
for
the
Tithes
of
a
meadow
,
and
after
he
sowed
that
with
corn
,
here
for
the
payment
of
this
10.
s.
he
is
discharged
:
Warberton
,
I
deny
the
case
of
the
meadow
;
and
so
it
was
adjorned
.
Bartlet
against
Bartlet
,
Trin
Jac.
Rot.
1784.
TR.
18.
Iac.
Rot.
1784.
Richard
Bartlet
brought
an
action
upon
the
case
against
Thomas
Bartlet
,
and
he
declared
upon
an
accompt
,
and
shewed
that
the
Defendant
was
found
in
arrerages
in
20.
l.
which
he
promised
to
pay
when
he
should
be
requested
,
and
now
the
Plantiff
had
not
laid
any
day
or
place
of
request
in
his
declaration
,
and
Ashley
moved
in
arrest
of
Iudgement
,
that
the
declaration
is
not
good
,
for
the
request
is
also
parcel
of
the
promise
:
but
Hobbert
chief
Iustice
said
,
that
when
a
man
brings
an
action
upon
the
case
for
a
thing
which
was
originally
a
debt
,
the
Plantiff
need
not
lay
any
time
or
place
of
the
request
,
but
when
the
action
is
brought
for
a
Collateral
thing
,
there
he
ought
to
lay
a
day
and
place
of
the
request
,
and
so
it
was
adjudged
according
in
the
same
case
.
King
against
Bowen
,
Ent.
Trin.
Jac.
Rot.
1755.
KIng
againk
Bowen
entered
Tr.
18.
Iac.
Rot.
1755.
William
King
brought
an
action
upon
the
case
against
Iohn
Bowen
for
these
slanderous
words
spoken
of
him
,
King
is
a
false
foresworn
knave
and
took
a
false
oath
against
me
at
a
commission
at
Witham
,
and
the
Defendant
Iustified
the
words
,
and
it
was
found
for
the
Plantiff
,
and
Henden
said
,
that
it
had
been
alleadged
in
arrest
of
Iudgement
that
the
words
are
not
actionable
,
and
he
said
that
he
agreed
if
one
say
of
another
that
he
was
foresworn
in
a
Court
which
is
not
a
Court
of
record
,
that
none
action
will
lye
,
because
the
party
is
not
punishable
for
that
in
perjury
,
but
in
our
case
the
commission
issued
out
of
the
high
Commission
Court
,
which
Court
to
the
examination
of
witnesses
is
in
nature
of
a
temporal
Court
,
and
had
been
confirmed
by
act
of
Parliment
:
and
Serjeant
Harvey
argued
to
the
contrary
,
that
the
first
words
are
not
actionable
,
and
then
the
subsequent
words
are
uncertain
,
and
yet
if
one
say
of
another
,
that
he
was
foresworn
at
the
Common
Pleas
barre
,
the
words
are
actionable
,
for
it
shall
be
intended
that
this
was
upon
examination
in
the
execution
of
Iustice
:
Hobert
,
if
a
man
is
foresworn
in
a
Court
Baron
before
the
Steward
,
this
is
perjury
,
but
in
our
case
the
words
are
altogether
uncertain
,
for
it
doth
not
appear
what
authority
the
Commissioners
had
,
nor
yet
in
what
manner
he
was
forsworn
;
and
Iustice
Hutton
said
,
if
one
man
say
of
another
he
was
foresworn
before
the
Bishope
of
S.
this
is
not
actionable
,
but
if
one
say
of
another
,
that
he
was
forsworn
before
the
Bishop
of
S.
upon
examination
by
him
by
vertue
of
a
Commission
issuing
out
of
the
Chancery
,
this
is
actionable
,
and
Hutton
agreed
to
the
case
of
the
Court
Baron
,
&
the
same
Law
by
him
if
that
be
in
a
Court
Leete
,
but
in
the
principal
case
Iudgement
was
arrested
.
Wase
against
Pretty
Ent.
Hill.
16.
Jac.
Rot.
1716.
WAse
against
Pretty
Ent.
Hill
.
16.
Iac.
Rot.
1716.
in
an
ejectione
firme
,
the
case
was
,
that
one
joynt
Coppiholder
did
release
to
his
companion
,
and
the
question
was
,
whether
this
is
good
without
surrender
and
admittance
,
for
it
was
objected
,
if
this
shall
be
good
,
then
a
Coppihold
shall
pass
without
the
assent
of
the
Lord
,
but
it
was
resolved
by
Hobert
,
Warberton
and
Winch
(
Hutton
being
absent
)
that
the
release
is
good
,
and
Warberton
said
,
that
by
Littleton
,
if
3.
Ioyntenants
are
,
and
one
of
them
release
to
another
,
he
to
whom
the
release
is
made
is
in
by
the
releasor
,
but
if
there
are
but
two
,
then
he
is
in
by
the
Lord
or
from
the
first
conveyance
;
Winch
,
if
two
Ioyntenants
are
in
capite
,
and
one
release
,
to
the
other
,
the
King
shall
not
have
a
fine
for
this
Alienation
;
but
Hobert
said
,
that
the
practice
is
otherwise
at
this
day
,
but
he
said
,
that
when
one
joynt
Tenant
releases
to
another
,
he
is
in
by
the
first
conveyance
,
and
in
the
case
in
question
the
release
shall
be
good
without
surrender
and
admittance
,
for
the
first
admittance
is
of
them
and
of
every
of
them
,
and
the
ability
to
release
was
from
the
first
conveyance
and
admittance
;
it
seems
if
a
Tenant
in
Capite
alien
upon
condition
,
and
afterwards
he
enters
for
the
condition
broken
,
he
shall
not
pay
a
fine
for
such
an
alienation
:
Hitcham
Serjeant
said
,
that
if
land
be
given
to
two
upon
condition
that
they
shall
not
alien
,
and
one
releaseth
to
the
other
,
this
is
no
breach
of
the
condition
;
Hobert
,
if
the
King
grant
you
his
demeasnes
,
you
shall
not
have
his
Copihold
.
Winch
said
,
that
it
was
adjudged
in
this
Court
,
that
where
one
erected
a
house
so
high
in
Finsbury
fields
by
the
wind
mills
that
the
wind
was
stopped
from
them
,
that
it
was
adjudged
in
this
case
that
the
house
shall
be
broken
down
.
Goddard
against
Gilbert
.
GOddard
brought
an
action
upon
the
case
against
Gilbert
for
these
words
,
thou
art
a
thiefe
,
and
hast
stolen
20
loads
of
my
furzes
,
and
upon
not
guilty
pleaded
it
was
found
for
the
Plantiff
,
and
it
was
moved
in
arrest
of
judgement
by
Hitcham
,
that
these
words
are
not
actionable
,
for
though
the
first
words
of
themselves
had
been
actionable
,
yet
when
those
words
are
coupled
with
other
words
which
do
extenuate
them
,
it
is
then
otherwayes
,
for
if
a
man
say
thou
art
a
thiefe
and
hast
stollen
my
apples
or
my
wood
,
it
shall
be
intended
that
the
apples
and
the
wood
were
growing
,
and
he
said
there
is
no
difference
to
say
in
this
case
you
are
a
thiefe
and
have
stollen
20
loads
of
my
furzes
,
but
it
was
said
by
Iustice
Warberton
,
that
the
furzes
shall
be
intended
to
be
cut
,
for
that
is
the
most
natural
and
proper
signification
of
the
words
;
and
Hobert
chiefe
Iustice
said
,
that
it
is
true
that
it
is
the
most
proper
signification
of
the
words
,
but
yet
they
are
furzes
when
they
are
growing
as
well
as
when
they
are
cut
down
;
and
Hobert
chief
Iustice
said
,
if
a
man
say
of
another
,
thou
art
a
thief
,
and
hast
stollen
my
corn
;
in
this
case
the
words
shall
be
taken
in
the
better
sence
,
and
judgement
in
the
principal
case
ought
to
be
arrested
,
and
it
was
the
opinion
of
him
and
of
Winch
,
that
there
is
no
difference
where
a
man
said
thou
art
a
thief
and
hast
&c.
and
thou
art
a
thief
,
for
&c.
ut
supra
;
but
it
was
adjourned
.
Winch
Iustice
said
,
I
was
of
counsel
in
the
Kings
Bench
in
a
case
where
a
man
had
a
window
in
the
backside
of
his
house
,
and
another
man
erected
a
wall
within
a
yard
and
half
of
that
in
his
own
ground
,
and
adjudged
in
an
action
upon
the
case
that
the
wall
shall
be
broken
down
;
Warberton
,
certainly
this
was
an
antient
house
,
but
Winch
said
that
made
no
difference
.
It
was
ruled
,
that
after
imparlance
in
debt
,
upon
an
obligation
the
Defendant
shall
be
received
to
plead
that
he
was
alwayes
ready
to
pay
,
notwithstanding
it
was
strongly
urged
13.
Eliz.
Dyer
306.
is
to
the
contrary
.
Gilbert
Lewings
against
Nicholas
March.
GIlbert
Lewings
brought
an
action
of
covenant
against
Nicholas
March
,
and
deālared
,
that
Charles
Cornwallis
had
granted
the
next
avoydance
to
the
Church
of
D.
to
Thomas
March
,
and
that
Nicholas
March
was
his
Executor
,
and
that
Nicholas
March
assigned
this
to
Gilbert
Lewings
his
executors
and
assignes
,
to
present
to
the
same
Church
when
that
shall
become
void
,
and
covenanted
that
the
same
person
,
who
shall
be
so
presented
by
him
,
shall
have
and
enjoy
that
without
the
let
or
disturbance
of
the
said
Charles
Cornwallis
or
Nicholas
March
,
or
any
of
them
,
or
any
by
their
procurement
;
and
after
Gilbert
Lewings
presents
I.
S.
and
after
I.
W.
presented
an
other
claiming
the
first
and
next
avoydance
,
by
the
procurement
of
Charles
Cornwallis
,
and
ruled
that
the
declaration
was
not
good
,
for
it
ought
to
say
that
Charles
Cornwallis
granted
to
I.
w.
the
next
avoydance
and
procured
him
to
disturbe
,
and
that
by
his
procurement
he
was
disturbed
;
Athow
,
It
seems
to
me
to
be
but
little
difference
to
say
,
he
disseised
me
by
the
procurement
of
I.
S.
and
he
commanded
I.
S.
to
disseise
me
,
and
he
did
that
accordingly
at
his
command
.
Sir
Edward
Sackvil
against
Earnsby
.
VPon
a
motion
made
by
Sir
Randal
Crew
in
the
behalf
of
Sir
Edward
Sackvil
against
Earnsby
,
the
case
was
,
that
two
brothers
were
seised
of
land
,
to
the
eldest
for
life
,
the
remainder
to
the
youngest
in
tail
,
and
they
covenanted
with
Sir
Edward
Sackvil
to
levy
a
fine
to
him
of
that
land
,
&
before
the
fine
acknowledged
the
eldest
brother
dyed
,
and
the
question
was
whether
the
youngest
shall
be
compelled
to
levy
the
fine
,
and
presidents
were
commanded
to
be
searched
concerning
that
matter
.
Note
,
that
it
was
said
,
that
where
a
commission
issued
out
of
the
Court
of
wards
to
4
persons
or
to
any
2
of
them
,
and
one
of
them
refuse
to
be
a
Commissioner
,
and
the
other
3
sit
as
Commissioners
,
and
he
who
refused
was
sworn
and
examined
by
them
as
a
witness
,
and
ruled
that
this
is
good
,
for
though
he
refused
to
be
a
Commissioner
,
yet
he
is
not
excluded
to
be
sworn
as
a
witness
.
In
evidence
to
the
Iury
the
case
was
,
that
Tenant
in
taile
bargained
and
sold
his
land
to
I.
S.
and
his
heires
,
and
I.
S.
sold
to
the
heire
of
the
Tenant
in
taile
being
of
full
age
,
and
Tenant
in
taile
died
,
and
the
heire
in
taile
claimed
to
hold
his
estate
,
and
the
doubt
was
,
whether
he
was
remitted
or
no
?
Hobert
was
of
opinion
,
that
after
the
death
of
the
Tenant
in
taile
that
the
heire
is
remitted
,
for
if
Tenant
in
taile
bargain
and
sell
his
land
,
the
issue
in
taile
may
enter
,
and
where
his
entrie
is
lawful
,
there
if
he
happā
the
possession
,
he
shall
be
remitted
;
Hutton
and
Warberton
Iustices
contrary
.
For
at
the
first
by
the
bargain
and
sale
the
son
had
fee
,
and
then
the
estate
of
the
son
may
not
be
changed
by
the
death
of
the
father
,
he
being
of
full
age
when
he
took
this
estate
,
and
this
was
in
an
Ejectione
firme
of
land
which
concerns
Sir
Henry
Compton
and
the
Lord
Morley
and
Mounteagle
.
White
against
Williams
.
WHite
brought
an
action
of
accompt
against
Williams
as
his
Bayliff
to
his
damages
100.
l.
the
Defendant
pleaded
he
never
was
his
Bayliff
,
and
it
was
found
against
him
,
and
the
Iudgement
was
given
that
he
should
render
an
accompt
,
and
at
the
day
the
Defendant
made
default
;
Ideo
consideratum
est
per
Curiam
quod
Querens
recuperet
versus
predict
.
Defendent
.
42.
l.
10.
s.
and
upon
that
the
Defendant
brought
a
writ
of
error
,
and
assigned
for
error
,
that
the
Court
gave
Iudgement
of
the
value
without
inquiring
of
the
value
,
and
it
was
holden
by
Gaudy
and
Fenner
only
present
,
that
the
Iudgement
ought
to
be
given
which
the
Plantiff
had
counted
of
.
Baron
Altham
contrarie
,
for
the
Court
may
in
discretion
give
a
lesser
summe
Hill.
43.
Eliz.
B.
R.
vide
14.
E
3.
Accompt
109.
20.
E.
3.
17.
Sir
George
Topping
against
King
.
WA
st
was
assigned
in
the
cutting
of
Elmes
and
other
Trees
to
such
a
price
,
and
Iudgement
was
given
for
the
Plantiff
by
nihil
dicit
,
and
a
writ
of
inquiry
of
dammages
issued
upon
that
,
and
the
Iury
found
to
the
dammages
of
8.
s.
and
upon
this
Davies
the
Kings
Serjeant
moved
to
have
a
new
writ
of
inquiry
,
and
that
the
old
writ
shall
not
be
returned
,
for
the
dammages
are
too
litle
;
Winch
said
,
all
is
confessed
by
the
nihil
dicit
.
Hobert
,
The
Iury
here
have
found
the
value
,
and
presidents
were
commanded
to
be
searched
,
and
Hobert
said
,
that
if
an
information
is
for
ingrossing
of
1000
quarters
of
corn
,
and
Iudgement
is
given
by
nihil
dicit
,
and
a
writ
of
enquiry
issues
which
findes
him
guilty
of
100.
yet
this
is
good
.
And
not
,
that
at
another
day
the
case
was
moved
again
,
&
it
was
between
Sir
George
Topping
and
King
,
and
it
was
said
,
if
a
man
recover
in
waste
by
nihil
dicit
,
and
a
writ
of
inquiry
issues
,
the
Iury
in
this
case
may
inquire
of
the
dammages
but
not
of
the
place
wasted
,
for
this
is
confessed
and
so
are
the
presidents
according
;
and
Hobert
said
,
if
the
Defendant
is
bound
by
the
nihil
dicit
as
to
the
place
wasted
,
for
what
cause
shall
not
he
be
bound
as
to
the
dammages
,
and
by
all
the
Court
if
the
jury
finde
dammages
only
to
8.
s.
the
Plantiff
shall
not
have
Iudgement
,
for
it
ought
to
be
above
40.
s.
Hob.
this
is
in
the
discretion
of
the
Court
in
this
case
,
and
it
was
also
said
in
this
case
,
that
upon
the
grant
of
all
the
trees
,
and
after
the
grantee
cut
them
,
and
new
ones
grow
upon
the
slumps
which
in
time
will
be
trees
,
that
in
this
case
the
grantee
shall
have
them
also
by
Hobert
.
Wetherly
against
Wells
in
an
action
for
words
.
WEtherly
against
Wells
in
an
action
upon
the
case
for
these
words
,
thou
hast
stollen
hay
from
Mr.
Bells
racks
,
and
upon
not
guilty
pleaded
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
Iudgement
,
because
he
had
not
shewed
what
quantity
was
of
that
,
and
perchance
it
may
be
of
so
little
a
value
that
it
is
not
fellony
,
and
the
rather
because
it
is
hay
from
the
Racks
;
but
Hobert
contrary
,
that
Iudgement
shall
be
given
against
the
Defendant
for
the
Plantiff
,
for
it
hath
been
adjudged
lately
in
this
Court
,
that
where
a
man
was
charged
with
petty
Larceny
to
steal
under
the
value
of
12.
d.
that
an
action
of
the
case
will
lie
,
for
the
discredit
is
not
in
the
value
,
but
the
taking
of
that
with
a
fellonious
intent
,
and
yet
it
had
been
adjudged
in
this
Court
,
that
where
one
said
of
another
,
thou
art
a
thief
,
and
hast
stolen
my
trees
,
that
in
this
case
an
action
will
not
lie
,
but
this
is
by
reason
of
the
subsequent
words
trees
,
for
it
is
said
Arbor
dum
crescit
,
lignum
dum
crescere
nescit
.
And
Winch
said
,
that
it
had
been
adjudged
actionable
to
say
,
thou
art
a
thief
and
hast
stolen
my
corn
,
and
yet
perchance
not
exceed
2.
or
3.
grains
,
and
Warberton
said
,
that
it
had
been
adjudged
in
the
Kings
Bench
,
that
where
one
said
thou
art
a
thief
and
stollest
the
corn
out
of
my
field
,
that
no
action
will
lie
.
The
Earl
of
Northumberland
and
the
Earl
of
Devon
.
NOte
,
that
in
the
case
of
the
Earle
of
Northumberland
and
the
Earle
of
Devon
.
execution
issued
out
for
dammages
recovered
,
against
the
Bayliff
of
the
Earle
of
Northumberland
by
the
name
of
I.
S.
of
D.
and
there
was
I.
S.
the
father
and
I.
S.
the
son
,
and
the
father
being
dead
the
son
issued
his
writ
of
Idemptitate
nominis
,
and
he
prayed
to
have
a
supersedeas
;
and
Warberton
demanded
of
Brownlow
if
he
had
any
such
president
to
award
a
supersedeas
in
such
case
,
who
answered
,
no
,
and
Warberton
and
Hutton
being
only
present
said
,
that
they
will
advise
of
that
.
Sir
George
Sparke
Prescription
.
IN
a
Replevin
for
the
taking
of
a
horse
in
5.
acres
of
land
in
such
a
place
,
and
the
Defendant
avowed
as
Bayliff
to
Sir
George
Spark
,
and
shewed
that
Sir
George
Spark
,
and
all
those
whose
estate
he
had
in
the
land
,
had
used
time
beyond
the
memory
of
man
to
have
herbage
and
pasturage
in
all
the
5.
acres
when
that
was
not
sowen
,
and
upon
this
plea
the
Plantiff
demurred
;
Ashley
argued
for
the
Plantiff
,
that
the
prescription
is
void
,
and
this
is
not
like
to
the
case
of
a
common
,
for
a
man
may
prescribe
to
have
common
in
another
mans
land
,
for
this
is
but
a
reception
of
the
profits
with
the
mouthes
of
his
cattle
,
but
in
our
case
it
is
all
one
as
to
prescribe
to
have
the
land
it self
,
and
I
may
not
prescribe
to
have
land
it self
,
for
I
may
not
say
that
I
and
my
ancestors
had
used
to
have
such
land
,
for
such
a
prescription
is
void
:
to
which
Hobert
chief
Iustice
and
all
the
Court
agreed
as
to
that
point
,
and
then
to
prove
that
this
is
all
one
as
to
prescribe
to
have
the
land
it self
,
he
said
that
if
a
man
lets
the
profits
,
and
the
herbage
of
land
for
years
,
this
is
a
lease
of
the
land
it self
,
as
was
lately
adjudged
in
this
Court
;
which
was
also
granted
by
the
Court
,
also
he
said
that
this
appears
by
the
27.
of
H.
8.
12.
that
a
man
shall
have
a
praecipe
quod
reddat
of
pasturage
or
herbage
,
but
not
of
common
,
and
a
formedon
lyes
of
pasturage
4.
E.
4.
2.
&
the
Regist.
fo.
177.
Ejectione
firme
lyes
of
pasturage
;
and
so
he
concluded
that
upon
the
matter
he
prescribed
to
have
the
land
it self
;
but
Hobert
chief
Iustice
and
all
the
Court
to
the
contrary
,
that
the
prescription
is
good
,
for
that
may
have
a
good
beginning
by
grant
,
for
a
man
may
lawfully
grant
the
pasturage
and
the
feeding
of
his
land
when
that
is
not
sowed
,
and
by
consequence
,
if
that
may
be
good
by
grant
,
it
may
be
good
by
prescription
;
and
judgement
was
commanded
to
be
entered
for
the
Defendant
.
See
prescription
51.
and
52.
In
trespass
the
Defendant
pleaded
in
barre
,
that
such
a
one
was
seised
of
land
in
the
right
of
his
wife
,
and
that
his
wife
died
seised
,
and
that
he
was
heire
to
her
,
entered
and
gave
Colour
to
the
Plantiff
,
the
Plantiff
replied
that
the
husband
and
wife
were
joyntly
seised
,
and
that
the
wife
died
,
after
whose
death
the
husband
was
seised
by
Survivor-shipp
,
absque
hoc
that
the
wife
died
seised
;
and
Warberton
and
Hutton
being
only
present
,
the
traverse
is
not
good
,
that
the
wife
did
not
die
seised
,
but
it
ought
to
be
that
she
did
not
die
sole
seised
.
In
trespass
for
the
taking
of
goods
in
a
place
in
yorkshire
,
and
the
Defendant
justified
as
servant
to
the
Bishop
of
Durham
,
and
he
shewed
that
the
Bishop
of
Durham
had
a
Faire
,
and
that
time
beyond
memory
he
and
his
predecessors
had
used
to
seise
the
cattle
that
were
sold
,
if
he
who
bought
them
refused
to
pay
toll
,
and
if
the
thing
taken
was
not
redeemed
within
such
a
time
,
he
might
sell
the
same
.
And
he
justified
in
a
place
in
Durham
,
absque
hoc
that
he
was
guilty
in
Yorkshire
;
and
by
Warberton
and
Hutton
this
is
a
good
traverse
,
to
the
place
,
for
it
is
local
.
If
a
Capias
issued
,
here
to
have
the
body
of
such
a
one
at
Westminster
such
a
day
,
and
the
Sheriff
bring
the
body
,
or
return
the
writ
before
the
day
,
this
is
good
by
Iustice
Warberton
.
Tutter
against
Fryer
.
TUtter
against
Fryer
;
a
rent
charge
was
granted
for
years
with
a
nomine
poenae
,
&
a
clause
of
distress
if
that
was
not
paid
at
the
day
,
and
the
rent
was
behinde
,
&
the
years
incurred
,
and
it
was
moved
by
Athowe
,
that
though
the
years
are
incurred
,
that
he
may
distrain
for
the
nomine
poenae
,
but
the
Court
was
of
a
contrary
opinion
,
for
that
depends
upon
the
rent
,
and
the
distress
is
gone
as
to
both
of
them
.
Duncombe
&c.
against
the
Bishop
of
Winchester
,
&c.
DUncombe
and
others
against
the
Bishop
of
Winchester
,
and
others
Defendants
,
in
a
Qu
Imp.
and
the
case
was
,
that
Sir
Richard
Weston
was
seised
of
the
said
Church
in
fee
,
in
grosse
,
and
was
convicted
of
recusancy
,
and
a
Commission
issued
to
certain
Commissioners
,
to
seise
two
parts
of
his
lands
and
goods
,
and
they
seised
this
advowson
inter
alia
,
into
the
hands
of
the
King
,
and
the
King
granted
the
advowson
to
the
Plantiff
,
and
the
Church
became
void
,
and
whether
the
King
,
or
the
university
of
Oxford
shall
have
that
,
was
now
the
question
,
and
it
was
appointed
to
be
argued
the
next
Term.
Potter
against
Turner
.
IN
the
Kings
Bench
,
Pasch.
19
Iac.
the
case
between
Potter
and
Turner
,
was
as
I
conceived
to
this
effect
;
A.
was
indebted
to
B.
in
20.
l.
and
C.
was
indebted
to
A.
in
30.
l.
and
A.
in
satisfaction
of
the
debt
,
which
he
owed
to
B.
assigned
the
debt
of
30.
l.
which
C.
owed
to
him
,
and
made
a
letter
of
attorney
to
sue
in
his
name
;
A.
and
B.
acquainted
C.
with
this
agreement
,
and
C.
promised
to
B.
in
consideration
that
he
will
forbear
till
such
a
day
that
he
will
pay
him
the
money
;
and
upon
this
promise
he
brought
the
action
against
C.
and
he
pleadded
non
assumpsit
,
and
it
was
found
for
the
Plantiff
.
And
it
moved
in
arrest
of
Iudgement
,
that
the
consideration
was
not
sufficient
,
according
to
Banes
case
Coke
.
9.
If
executors
who
had
not
assets
promise
to
pay
a
debt
of
the
Testator
,
this
shall
not
binde
them
,
because
they
who
made
the
promise
were
not
chargeable
,
but
on
the
other
side
,
it
was
said
by
Whitwick
of
our
house
,
that
this
was
a
good
consideration
,
for
the
assignement
of
that
debt
was
lawful
,
and
no
maintenance
at
all
,
as
appears
by
15.
H.
7.
6.
and
a
recovery
by
B.
against
C.
is
a
good
plea
in
barre
,
in
an
action
brought
by
A.
against
C.
but
Dodderidge
Houghton
and
Chamberlin
only
present
to
the
contrary
,
for
B.
here
had
only
an
authority
to
sue
,
and
this
is
at
all
times
Countermandable
by
A.
As
if
I
deliver
goods
to
my
servant
to
deliver
over
to
I.
S.
and
I.
S.
promise
my
servant
that
in
consideration
that
he
will
deliver
them
to
him
,
he
will
give
him
so
much
money
,
this
is
no
consideration
,
except
that
they
are
delivered
accordingly
,
for
this
is
only
an
authority
to
deliver
goods
which
is
alwayes
countermandable
by
me
.
And
Iudgement
was
entered
for
the
Defendant
.
vide
4.
E.
4.
14.
Ewer
and
Vaughan
.
IT
was
said
by
Dodderidge
and
A.
in
the
argument
of
the
case
,
between
Ewer
and
Vaughan
,
that
it
had
been
adjudged
by
all
the
Iustices
,
in
one
Trewmans
case
,
that
no
writ
of
error
lyes
of
a
judgement
,
given
in
the
Stanneryes
in
Cornwal
.
A
Prohibition
to
the
Admiralty
.
MAny
poor
Marriners
sued
one
Iones
the
Master
of
a
ship
,
for
wages
in
the
Admiral
Court
,
and
judgement
was
given
against
Iones
,
and
now
he
prayed
to
have
a
prohibition
,
and
he
suggested
that
the
contract
was
made
,
at
London
in
England
,
and
so
the
suit
was
not
maintainable
,
in
the
Admiral
Court
,
but
the
prohibition
was
denyed
,
because
he
had
not
sued
his
prohibition
,
in
due
time
,
viz.
before
a
judgement
given
in
the
Admiral
Court
,
which
in
point
of
discretion
they
disallowed
;
and
also
these
are
poor
Marriners
,
and
may
not
be
delayed
of
their
wages
so
long
,
and
besides
they
may
all
joyn
,
in
a
Libel
in
the
Admiral
Court
,
but
if
they
sue
here
,
they
must
bring
their
actions
several
,
for
they
may
not
joyn
here
in
an
action
,
and
therefore
it
is
good
discretion
in
the
Court
,
to
deny
the
prohibition
.
Pastons
case
,
it
was
said
by
Hobert
,
that
a
Coppiholder
may
hedge
,
and
inclose
,
but
not
where
it
was
never
inclosed
before
,
and
agreed
by
him
,
and
Warberton
,
that
a
Coppiholder
may
dig
,
for
Marle
without
any
danger
of
forfeiture
,
but
he
ought
to
lay
the
said
Marle
upon
the
same
Coppihold
land
,
and
not
upon
other
land
,
and
this
was
upon
the
motion
of
Hendon
Serjeant
.
In
a
case
which
concerned
,
the
Lady
Mollineux
and
Fulgam
,
the
case
was
in
an
Ejectione
firme
,
that
the
Iury
found
the
defendant
guilty
,
of
10.
acres
,
and
the
judgement
was
entered
of
20.
acres
,
and
upon
that
the
defendant
brought
a
writ
of
error
,
in
B.
R.
and
now
the
Plantiff
prayed
that
this
might
be
amended
:
and
Finch
argued
,
that
this
ought
to
be
amended
,
and
he
cited
a
case
.
Pasch.
8.
Iac.
Rot.
525.
Iohn
Chilley
was
Plantiff
in
debt
,
and
recovered
,
and
the
judgement
was
,
that
the
aforesaid
,
Henry
Chilley
should
recover
&c.
and
upon
that
error
,
was
brought
in
the
exchequer
chamber
,
and
that
was
assigned
for
error
,
and
yet
after
Pasch.
the
9th
.
Iac.
this
judgement
was
amended
in
the
Kings
Bench
,
and
Iohn
inserted
for
Henry
,
and
diminution
was
alleadged
,
and
the
first
judgement
was
affirmed
in
the
exchequer
chamber
,
and
he
cited
a
case
,
M.
8.
Iac.
Rot.
1823.
in
C.
B.
dower
,
was
brought
of
4.
Gardens
,
and
judgement
was
given
,
to
recover
in
3.
and
upon
this
error
was
brought
,
and
yet
this
judgement
was
afterwards
amended
,
and
he
cited
a
case
,
Pasch.
17.
Iac.
between
Sherley
and
Underhil
in
a
Qu.
Impedit
,
where
it
was
amended
after
error
brought
,
and
he
vouched
one
Masons
case
12.
Iac.
in
an
action
upon
the
case
,
against
the
husband
,
and
the
wife
,
for
words
which
were
spoke
by
the
wife
,
and
judgement
was
given
against
them
,
and
that
the
wife
capiatur
,
where
it
should
be
husband
and
wife
Capiantur
,
and
yet
this
was
afterwards
amended
:
Hendon
contrary
,
after
error
is
assigned
,
it
may
not
be
amended
,
in
point
of
substance
,
and
the
case
of
Chilley
may
be
good
Law
,
for
the
misnaming
only
et
praedictus
Henricus
,
where
was
no
Henricus
before
,
could
not
have
other
signification
,
or
intendment
then
Iohn
who
was
named
before
in
the
record
;
Warberton
and
Hutton
,
the
misnameing
Henry
for
Iohn
,
is
matter
of
substance
cleerly
,
and
then
Hendon
said
,
that
now
the
judgement
shall
not
be
amended
,
because
the
prayer
of
the
Plantiff
,
to
have
that
amended
came
too
late
,
because
it
is
after
error
brought
,
and
diminution
alleadged
;
and
the
record
certified
,
and
then
both
the
parties
are
concluded
,
but
if
only
,
a
writ
of
error
was
brought
,
and
no
diminution
was
alleadged
,
that
then
the
judgement
may
be
amended
,
and
he
said
,
that
he
had
not
found
in
any
book
,
where
any
amendment
was
after
diminution
alleadged
,
as
here
,
and
he
cited
22.
E.
3.
46.
in
dower
,
it
was
assigned
for
error
,
that
no
warrant
of
Atturney
was
entered
for
the
Defendant
,
and
ruled
that
this
may
not
be
assigned
for
error
,
aāter
a
scire
facias
sued
;
see
4.
E.
4.
32.
but
Hobert
chief
Iustice
said
,
that
it
shall
be
a
brave
case
,
that
our
judgements
shall
be
made
good
,
or
bad
,
at
the
pleasure
of
Clarks
,
and
we
shall
not
be
able
to
amend
them
,
to
which
Warberton
also
agreed
.
And
day
was
given
over
to
speak
to
that
again
,
and
after
,
in
the
same
Term
this
judgement
was
amended
,
per
Curiam
.
Action
of
debt
upon
a
bond
,
and
the
Condition
was
to
save
the
obligee
harmless
,
of
a
nomine
poenae
,
against
Mary
Moore
,
and
he
pleaded
that
he
had
saved
him
harmless
,
and
per
Curiam
this
is
not
good
,
for
if
he
will
plead
in
the
affirmative
as
here
,
he
ought
to
shew
how
he
had
saved
harmeless
,
but
if
he
had
pleaded
in
the
Negative
,
as
he
might
well
,
then
non
damnificatus
is
a
good
plea
generally
.
Harrington
against
Harrington
in
accompt
.
HArrington
brought
an
action
of
accompt
against
Harrington
,
and
declared
of
the
receipt
of
moneys
,
by
the
hands
of
a
stranger
,
and
the
Defendant
pleaded
in
barre
a
gift
of
the
same
money
,
afterwards
by
the
Plantiff
to
him
;
and
it
was
argued
by
Towse
,
that
this
was
no
plea
in
barre
of
an
accompt
,
but
it
is
a
good
discharge
before
Auditoās
,
and
he
cited
28.
H.
6.
7.
Hendon
to
the
contrary
,
and
said
the
opinion
of
Brian
chief
Iustice
21.
E.
4.
is
that
he
may
plead
that
in
barre
of
accompt
;
and
Warberton
Iustice
being
only
present
agreed
,
for
by
the
gift
it
is
his
own
moneyes
,
and
herefore
he
may
plead
that
in
barre
.
It
was
said
by
Warberton
,
that
if
an
Advowson
is
holden
of
the
King
,
and
the
Tenant
alien
without
licence
,
that
the
King
may
not
seise
that
without
office
,
which
was
granted
by
Hobert
,
and
by
Winch
only
present
,
and
in
the
same
case
by
Warberton
,
that
a
scire
facias
,
issuing
against
the
Alienee
will
not
intitle
the
King
,
but
ought
to
be
an
office
found
,
and
it
was
also
said
in
the
same
case
,
by
Serjeant
Iones
,
that
the
ordinary
shall
have
28.
dayes
to
examine
the
ability
of
one
who
is
presented
by
the
canon
Law
;
and
the
same
Canon
Law
is
,
that
the
Patron
shall
not
present
another
during
the
28.
dayes
.
Goddard
against
Gilbert
.
GOddard
brought
an
action
upon
the
case
,
against
Gilbert
thou
art
a
thief
,
and
hast
stolen
20.
load
of
my
furzes
,
and
upon
non
culpabilis
pleaded
,
it
was
found
for
the
Plantiff
;
and
now
it
was
moved
in
arrest
of
judgement
,
by
Hitcham
,
for
where
words
may
be
taken
in
a
double
sense
,
one
actionable
,
and
another
not
actionable
,
they
shall
all
times
be
taken
in
the
better
sense
,
and
in
our
case
,
to
take
furzes
may
be
fellony
,
and
it
may
be
not
fellony
,
for
if
they
are
growing
they
are
not
fellony
,
and
it
shall
be
intended
that
they
were
growing
,
rather
then
cut
down
,
and
no
man
will
presume
,
that
any
will
take
20.
loads
of
furzes
,
with
a
fellonius
intent
,
because
the
carriadge
of
them
is
visible
to
all
the
world
,
for
it
shall
not
be
intended
,
that
he
carried
those
in
the
night
,
and
so
he
prayed
that
the
Plantiff
may
be
barred
.
Attoe
Serjeant
contrary
;
words
which
implies
a
double
signification
,
shall
be
taken
in
the
worser
sense
,
which
tends
most
to
the
disgrace
of
the
party
,
for
they
shall
be
supposed
,
to
be
spoken
in
malice
,
and
so
with
a
purpose
to
defame
the
party
,
and
he
cited
a
case
,
Trin.
2.
Iac.
B.
R.
Rot.
663.
Kellam
against
Monest
,
thou
art
a
thief
and
hast
stolen
my
corn
,
and
adjudge
to
be
actionable
.
Hobert
,
Warberton
,
and
Winch
contrary
,
for
words
shall
be
taken
in
the
better
sense
,
and
not
in
a
strained
sense
to
punish
the
party
which
spake
them
,
as
if
one
say
to
another
,
I
wonder
you
will
eat
,
or
drink
with
him
,
for
he
hath
the
pox
,
now
every
one
that
heareth
,
that
will
suppose
,
that
he
means
the
french
pox
,
and
yet
in
a
legal
signification
it
shall
not
be
taken
,
but
in
the
better
sense
,
for
the
small
pox
:
but
Warberton
said
,
that
if
one
say
of
another
,
that
he
is
laid
of
the
pox
,
an
action
lyes
,
for
it
is
intended
the
french
pox
;
and
Winch
said
,
that
those
actions
of
slander
,
were
known
to
law
but
of
late
times
,
and
for
that
26.
H.
8.
it
was
thought
that
an
action
would
not
lye
,
for
calling
another
thief
,
and
in
the
principal
case
,
judgement
was
commanded
to
be
entered
,
quod
Querens
capiat
nihil
per
brevem
suum
,
and
note
,
that
I
saw
Hobert
shew
presidents
to
Winch
,
in
a
paper
which
were
delivered
to
him
by
the
Plantiff
,
and
drawn
by
his
Councel
,
and
he
said
to
Winch
,
that
by
those
it
seemed
,
that
in
the
Kings
Bench
they
made
a
difference
between
,
(
for
)
and
(
and
)
as
had
been
said
before
;
and
he
marvailed
much
at
that
.
In
a
Capias
Ulagatum
before
judgement
,
the
Sherif
returned
that
I.
S.
and
I.
N.
rescoused
the
party
&c.
and
Attoe
moved
,
that
the
retorn
was
not
good
,
for
there
ought
to
be
additions
,
by
which
they
may
be
sued
to
the
outlawry
,
but
Hobert
and
the
Court
hold
this
to
be
good
without
addition
,
for
no
statute
,
nor
book
will
compel
the
Sheriff
to
give
additions
in
this
case
.
And
it
was
said
,
that
if
the
Sheriff
in
this
case
,
retorn
that
the
party
himself
,
simul
cum
I.
S.
and
I.
N.
made
the
rescouse
,
that
this
is
not
good
,
but
in
the
principal
case
,
it
was
ruled
that
the
return
was
good
,
and
the
rescousers
which
were
present
,
were
committed
to
the
fleet
,
Homan
and
Hull
were
rescousers
.
Vpon
the
reading
of
the
record
the
case
was
,
that
an
executor
brought
an
action
against
one
upon
a
promise
made
to
the
Testator
:
in
which
the
executor
was
nonsuite
;
and
3.
l.
costs
given
against
him
:
and
the
Defendant
bruught
an
action
of
debt
upon
that
recovery
,
against
the
executors
:
and
upon
this
it
was
demurred
in
law
,
and
Serjeant
Towse
said
,
that
there
are
two
causes
of
the
demurrer
,
first
,
whether
the
Defendant
shall
be
charged
as
executor
,
and
is
not
named
executor
,
and
secondly
,
whether
upon
the
nonsuite
of
an
executor
,
the
Defendant
shall
have
costs
by
the
statute
,
of
the
23.
H.
8.
Hobert
chief
Iustice
,
said
to
him
you
say
well
.
Note
that
it
was
said
,
by
Hobert
chief
Iustice
,
that
if
a
man
dies
intestate
,
and
he
to
whom
the
Administration
appertaines
,
is
sued
by
others
which
pretend
to
be
Administrators
,
and
sentence
is
given
against
the
right
Administrator
,
and
costs
given
against
him
,
the
costs
shall
not
be
of
the
proper
goods
of
the
Administrator
,
but
of
the
goods
of
the
intestate
;
as
the
costs
which
are
spent
in
the
spiritual
Court
,
for
the
provate
of
a
Testament
,
shall
be
only
of
the
goods
of
the
Testator
;
Hutton
if
the
Legatee
sue
in
the
spiritual
Court
,
for
a
Legacy
,
and
recovers
the
costs
,
which
he
shall
recover
,
shall
not
be
of
his
own
goods
,
but
of
the
goods
of
the
Testator
,
and
no
prohibition
shall
be
granted
,
for
any
such
sentence
given
in
the
spiritual
Court
:
Hobert
to
the
contrary
;
for
if
by
such
means
the
goods
of
the
Testator
are
so
wasted
,
that
the
debts
,
and
legacies
of
the
Testator
,
may
not
be
discharged
,
a
prohibition
shall
be
granted
,
and
in
every
case
,
where
the
sentence
in
the
spiritual
Court
,
crosseth
the
common
law
,
a
prohibition
lyes
,
and
he
said
that
in
the
case
of
one
Barrow
in
this
Court
,
it
was
his
opinion
,
and
the
opinion
of
the
rest
of
the
judges
,
that
if
Administration
be
committed
by
force
of
21.
H.
8.
and
the
Administrator
pay
all
the
debts
and
Legacies
,
that
in
this
case
,
the
ordinary
had
not
power
to
dispose
of
the
rest
of
the
goods
,
to
the
children
of
the
intestate
,
but
they
shall
remain
to
the
Administrator
,
and
that
by
the
very
intention
of
the
Statute
of
21.
H.
8.
but
Hendon
said
,
that
he
could
shew
a
president
of
that
,
and
the
Court
desired
that
they
might
see
,
that
if
any
such
president
were
.
LLewellings
case
.
VPon
the
reading
of
a
Record
,
in
the
case
of
LLewelling
,
the
condition
of
the
obligation
was
,
that
the
obligor
should
surrender
his
Copihold
land
,
to
the
use
of
the
obligee
,
and
he
pleaded
that
he
had
surrendered
that
,
and
upon
that
plea
,
the
Plantiff
demurred
,
and
it
was
adjudged
upon
the
opening
of
the
case
,
by
Warberton
and
Hutton
,
being
only
present
in
the
Court
,
that
judgement
shall
be
given
for
the
Plantiff
,
for
the
plea
in
barre
is
not
good
,
because
the
Defendant
had
not
shewed
when
the
Court
of
the
Lord
was
holden
.
Duncombe
against
the
Vniversity
of
Oxford
.
In
a
Qu.
Impedit
,
in
which
Duncombe
and
others
were
Plantiffs
,
who
were
grantees
of
the
King
,
against
the
University
of
Oxford
:
and
the
case
was
,
Sir
Richard
weston
was
seised
of
an
advowson
in
grosse
,
inter
alia
and
was
convict
of
recusancy
,
and
a
Commission
issued
,
to
seise
two
parts
of
his
land
,
and
goods
,
and
they
seised
this
advowson
,
inter
alia
,
and
the
King
granted
the
advowson
to
the
Plantiffs
,
and
the
Church
became
void
,
and
they
presented
,
and
were
disturbed
by
the
University
of
Oxford
,
and
their
Clark
,
upon
which
they
brought
a
Qu.
Impedit
,
upon
which
a
demurrer
was
joyned
:
and
Serjeant
Iones
argued
for
the
Plantiff
,
and
there
was
two
points
in
the
case
,
first
,
whether
an
advowson
in
grosse
,
is
given
to
the
King
by
the
Statute
of
the
28.
of
Eliz.
and
the
Statute
is
,
that
the
King
shall
seise
the
lands
,
tenements
,
&
hereditaments
,
of
such
a
recusant
convict
,
and
whether
by
the
same
statute
an
advowson
in
grosse
,
shall
be
seised
,
and
he
held
that
it
shall
,
for
though
perchance
the
word
lands
,
and
Tenements
,
will
not
carry
that
,
being
an
advowson
in
grosse
,
yet
this
word
hereditament
,
will
carry
it
to
the
King
by
force
of
the
Satute
,
for
it
appears
by
dyer
350.
that
if
the
King
grant
an
advowson
,
by
the
name
of
an
hereditament
,
that
in
this
case
this
will
pass
the
advowson
,
and
for
that
Coke
10.
Whistlers
case
,
the
King
by
the
grant
an
of
hereditament
,
grants
an
advowson
,
by
such
words
to
a
common
person
then
by
the
same
reason
a
common
person
may
grant
,
that
to
the
King
by
the
same
words
:
but
it
may
be
objected
,
that
because
an
advowson
in
grosse
;
is
not
valuable
,
therefore
it
is
not
given
to
the
King
;
and
upon
this
doubt
upon
the
Statute
of
Wills
,
ā
.
H.
8.
the
question
was
,
whether
an
advowson
was
devisable
;
by
the
name
de
bonis
et
Cattallis
fellon
.
Butler
,
and
Bakers
case
,
that
they
are
not
devisable
,
for
it
is
not
valuable
,
but
the
4th
Iac.
between
Taverner
and
Gooch
,
which
case
may
be
seen
in
the
new
book
of
entries
,
that
an
advowson
was
devisable
:
before
the
Statute
5.
H.
7.
37.
it
shall
be
assets
,
9.
H.
6.
55.
recovery
in
value
lyes
of
that
;
but
admit
that
this
is
only
a
thing
of
pleasure
,
for
the
advancement
of
a
friend
,
yet
that
shall
be
given
by
the
Statute
to
the
King
.
But
the
second
objection
is
,
that
though
it
is
given
to
the
King
,
yet
it
is
not
extendable
upon
the
Statute
by
the
Commissioners
,
for
answer
to
that
,
see
Sir
Christopher
Hattons
case
,
third
of
Iaco.
then
was
by
the
28.
Eliz.
for
by
the
28.
of
Eliz.
the
King
may
not
seise
the
land
,
but
upon
default
of
payment
,
of
20.
l.
by
the
month
,
but
by
the
Statute
of
the
third
Iaco.
he
may
seise
presently
,
and
no
election
is
given
to
the
party
:
secondly
,
by
the
Statute
28.
Eliz.
the
seisure
of
the
King
,
was
only
in
the
nature
of
distress
,
for
the
payment
of
money
,
but
by
the
Statute
of
3.
Iac.
the
King
had
election
to
seise
;
to
satisfie
himself
,
and
he
may
refuse
to
be
satisfied
at
his
pleasure
,
and
so
the
Statute
which
gives
this
to
the
Vniversity
,
doth
not
take
away
the
title
of
the
King
,
and
upon
that
he
concluded
,
and
prayed
judgement
for
the
Plantiffs
:
Harris
Serjeant
to
the
contrary
;
the
Statute
of
3.
Iaco.
is
the
only
subject
of
the
doubt
,
and
the
first
branch
disables
the
recusant
to
present
,
secondly
,
it
makes
the
present
action
void
,
thirdly
,
after
conviction
the
Vniversity
shall
present
,
and
this
in
verity
,
is
that
upon
which
the
doubt
is
founded
,
and
upon
that
branch
he
conceived
that
the
King
had
concluded
himself
,
to
present
to
the
church
of
the
recusant
,
for
he
being
party
himself
to
that
act
of
Parliament
,
he
had
dismissed
himself
of
all
right
,
and
Fortescue
in
laudibus
legum
Angliae
non
sunt
ad
voluntatem
principis
,
sed
ad
voluntatem
totius
Regni
,
id
est
,
the
Statutes
of
England
,
are
not
at
the
will
and
pleasure
of
the
King
,
but
at
the
will
of
the
whole
Kingdome
,
Doctor
and
Stud.
agreed
,
and
14.
H.
8.
Fo.
7.
E.
6.
Mounson
;
and
the
case
of
Alton
woods
,
if
the
saving
of
an
act
of
Parliament
be
repugnant
,
it
is
void
,
and
so
upon
those
cases
,
he
inferred
that
the
King
being
party
to
every
act
of
Parliament
,
he
is
bound
by
that
,
and
had
dispossessed
himself
of
the
advowson
,
by
the
Statute
of
the
3.
of
Iaco.
which
had
given
that
to
the
Vniversity
,
and
had
abrogated
the
power
of
the
King
,
to
seise
the
advowson
,
by
vertue
of
the
act
of
28.
of
Eliz.
for
otherwise
,
this
Statute
which
gives
that
to
the
Vniversity
,
shall
bee
meerly
void
,
and
Statutes
which
are
repugnant
to
former
lawes
take
them
away
,
and
do
not
confirme
them
,
and
though
the
Statute
of
the
3.
of
Iaco.
is
in
the
affirmative
,
yet
that
hath
taken
away
the
force
of
the
Statute
,
of
the
28.
Eliz.
but
it
may
be
objected
,
that
before
the
recusant
is
convict
,
the
King
had
but
a
possibility
,
and
then
by
the
Statute
of
the
3.
Iac.
the
King
had
not
dismissed
himself
,
of
that
which
in
judgement
of
the
law
is
but
a
meer
possibility
,
and
by
consequence
,
because
he
had
nothing
at
the
time
of
the
making
of
the
Statute
,
but
a
possibility
,
he
had
not
given
that
over
,
by
the
same
Statute
to
the
Vniversity
;
to
this
he
answered
,
that
the
King
may
well
give
a
possibility
,
and
a
future
thing
,
as
9.
H.
6.
62.
24.
E.
3.
24.
30.
E.
Eliz.
Treshams
case
,
and
so
he
concluded
,
because
that
this
is
given
to
the
Vniversity
by
act
of
Parliament
,
the
King
being
party
,
he
had
dismissed
himself
;
and
the
3.
Iaco.
ā
repeals
28.
Eliz.
as
to
that
purpose
,
and
so
he
prayed
judgement
upon
the
whole
matter
for
the
Defendants
.
And
it
was
said
by
Hobert
chief
Iustice
that
this
is
indeed
a
case
,
of
great
weight
and
importance
,
and
the
Court
agreed
that
the
Statute
,
of
the
3.
Iacobi
gave
only
a
power
to
the
Vniversity
of
Oxford
,
and
not
an
interest
,
but
day
was
given
over
to
argue
this
again
the
next
Term.
Sir
George
Savil
against
Thornton
.
SIr
George
Savil
declared
,
that
he
was
seised
in
fee
,
and
in
gross
,
of
such
a
Church
,
and
that
he
presented
I.
S.
his
Clark
who
died
,
and
that
he
presented
another
,
and
was
disturbed
by
Thornton
the
incumbent
āŖ
the
Defendant
pleaded
,
that
a
long
time
before
the
Plantiff
had
any
thing
in
that
,
the
Pryor
of
D.
was
seised
of
the
advowson
,
and
he
being
seised
such
a
day
granted
the
next
avoydance
,
to
one
Golding
,
and
that
the
advowson
and
the
Priory
,
came
to
the
hands
of
H.
8.
by
the
Statute
of
31.
H.
8.
by
force
of
which
H.
8.
was
seised
,
and
afterwards
the
church
became
void
,
and
the
executor
of
Golding
who
was
grantee
of
the
next
avoidance
,
presented
his
Clark
who
was
admitted
accordingly
;
and
afterwards
he
died
,
that
H.
8.
died
seised
of
the
advowson
,
which
discended
to
E.
6.
and
so
to
Queen
Mary
,
and
from
her
to
Queen
Eliz.
who
was
seised
in
the
right
of
the
Crown
,
and
she
being
so
seised
granted
the
next
avoidance
,
to
one
Buckley
her
Clark
,
who
was
admitted
,
instituted
,
and
inducted
;
after
which
Queen
Eliz.
died
,
and
the
advowson
discended
to
King
Iames
;
and
in
the
7th
.
year
of
his
raign
the
Church
became
void
,
and
he
presented
the
Defendant
,
the
Plantiff
by
way
of
protestation
,
said
that
Queen
Mary
was
never
seised
,
nor
died
seised
,
and
by
protestation
that
Queen
Eliz.
was
never
seised
,
so
that
this
might
discend
to
King
Iames
,
and
for
plea
said
that
well
and
true
it
is
,
that
H.
8.
was
seised
,
and
died
seised
,
so
that
this
discended
to
E.
6.
and
that
E.
6.
such
a
year
of
his
raigne
,
granted
that
to
Wyat
and
his
wife
in
fee
,
who
granted
that
to
the
Plantiff
,
and
that
Queen
Eliz.
presented
L.
only
,
absque
hoc
that
E.
6.
died
seised
,
upon
that
it
was
demurred
in
law
;
and
he
shewed
the
cause
of
his
demurrer
,
first
because
the
protestations
which
he
had
taken
in
his
replication
are
not
good
,
secondly
the
traverse
is
not
good
.
And
it
was
argued
for
the
Defendant
,
by
Bawtry
Serjeant
that
the
replication
is
not
good
,
because
he
had
taken
that
by
protestation
which
is
traversable
,
see
the
principal
case
of
Gresbrook
and
Fox
,
and
see
the
22.
H.
6.
and
then
for
the
traverse
he
held
that
to
be
naught
;
First
because
he
had
traversed
that
which
was
but
a
mean
conveyance
.
Secondly
he
had
traversed
that
which
he
had
confessed
,
and
avoided
;
and
thirdly
he
had
not
traversed
that
which
he
ought
not
to
have
traversed
,
and
for
the
first
it
is
put
regularly
in
our
books
that
a
mean
conveyance
shall
not
be
traversed
,
and
the
descent
here
from
E.
6.
is
but
a
mean
conveyance
,
and
the
substance
is
the
presentation
of
Queen
Eliz.
and
that
ought
to
be
traversed
,
17.
H.
7.
2.
the
Prior
of
Tower
Hills
case
,
there
it
said
,
if
in
Assise
the
Tenant
plead
,
that
the
Plantiff
was
seised
,
who
infeoffed
one
B.
who
infeoffed
C.
who
enfeoffed
the
Tenant
,
that
it
is
no
plea
for
the
Plantiff
to
say
,
that
he
was
seised
till
the
Defendant
disseised
him
,
absque
hoc
that
C.
enfeoffed
him
,
and
for
that
reason
,
he
ought
to
traverse
the
feofment
,
made
by
B.
for
the
other
was
but
a
mean
conveyance
:
see
Dyer
107.
in
Trespass
the
Defendant
conveyed
to
the
donee
,
by
5.
or
6.
discents
by
dying
seised
,
of
the
estate
taile
in
every
of
them
,
the
Plantiff
confessed
the
intaile
,
and
conveyed
to
him
by
feofment
made
by
the
heir
of
the
donee
which
was
a
discontinuance
,
and
took
traverse
to
the
dying
seised
of
the
same
feoffor
,
and
ruled
to
bee
evil
,
for
he
ought
to
traverse
the
most
antient
discent
:
43.
H.
3.
7.
Secondly
it
is
evil
,
because
he
had
confessed
the
seisin
of
E.
6.
and
the
grant
by
the
same
King
to
Wyat
,
and
so
had
confessed
and
avoyded
the
seisin
of
the
same
King
,
and
then
the
Law
will
not
suppose
that
E.
6.
purchased
that
again
,
and
for
that
the
traverse
of
his
dying
seised
is
evil
,
when
he
had
sufficiently
confessed
and
avoided
that
before
,
as
Dyer
336.
in
Vernons
case
,
a
discent
was
pleaded
to
the
heire
from
his
ancestor
,
the
other
party
said
,
that
the
ancestor
devised
that
to
him
,
absque
hoc
that
this
discended
to
him
as
son
and
heire
,
and
ruled
to
be
evil
,
for
a
traverse
needs
not
when
he
had
confessed
,
and
avoyded
that
before
:
Vide
14.
H.
8.
Sir
William
Meerings
case
,
26.
H.
8.
4.
by
Fithzherbert
,
but
Brook
in
the
abridgement
of
the
same
case
,
said
that
if
the
traverse
is
evil
then
he
had
waved
the
plea
before
,
and
all
was
evil
:
7.
E.
4.
by
Littleton
,
for
hereby
the
representation
of
Queen
Eliz.
she
had
gained
the
inheritance
to
the
Crown
,
and
then
the
traverse
being
evil
,
he
had
waved
the
former
plea
which
was
good
without
traverse
,
and
this
seisin
in
the
Crown
is
not
answered
,
but
by
way
of
argument
as
here
14.
H
6.
17.
he
ought
to
traverse
absque
hoc
that
he
died
in
his
homage
.
20.
E.
4.
5.
35.
H.
6.
32.
Serjeant
Iones
to
the
contrary
,
and
as
to
that
which
hath
been
said
,
that
the
presentment
is
alleaged
to
be
in
jure
coronae
,
and
the
confessing
the
presentment
is
a
plea
by
way
of
argument
,
to
which
he
answered
that
the
record
is
not
so
,
but
the
seisin
of
the
advowson
is
alleadged
by
discent
,
to
Elizabeth
Queen
,
by
force
of
which
she
was
seised
in
jure
coronae
,
and
Iones
argued
that
the
traverse
is
good
,
for
every
plea
in
barre
ought
either
to
be
traversed
,
and
denied
,
or
confessed
and
avoided
,
and
here
that
ought
to
be
traversed
Dyer
208.
312.
in
avowry
for
a
rent
charge
,
and
seisin
was
alleadged
in
the
grantor
,
of
the
land
in
fee
,
and
the
Plantiff
said
he
was
seised
in
taile
,
he
ought
to
traverse
that
he
was
seised
in
fee
,
and
a
good
traverse
Hill.
2.
Iac.
in
C.
B.
Rot.
1921.
Edwards
against
D.
it
was
pleaded
that
such
a
man
was
seised
in
fee
of
a
rent
charge
,
and
the
other
confessed
that
he
was
seised
in
fee
,
and
that
a
long
time
before
he
enfeoffed
one
I.
S.
there
he
ought
to
traverse
,
that
he
was
seised
at
the
time
of
the
grant
:
see
the
new
book
of
Entryes
Tavener
and
Gooches
case
,
in
a
Qu.
Impedit
.
And
a
note
by
the
Lord
Cooke
:
also
he
said
,
that
after
the
grant
there
may
be
an
usurpation
,
and
so
the
dying
seised
in
the
case
of
an
advowson
in
gross
ought
to
be
traversed
,
āe
21.
E.
4.
1.
20.
E.
4.
14.
and
as
to
that
which
hath
been
said
,
against
the
protestations
;
he
answered
it
ought
to
be
traversed
,
and
for
that
the
rest
ought
to
be
taken
by
protestation
:
and
in
some
cases
the
conveyance
is
traversable
;
see
Cromwels
and
Andrews
case
.
And
so
he
concluded
and
prayed
judgement
for
the
Plantiff
Note
that
he
said
,
that
it
was
adjudged
in
that
Court
2.
Iac.
in
the
case
of
the
Bishop
of
Winchester
,
that
two
usurpations
gaine
the
advowson
from
the
King
.
And
the
reason
was
,
because
the
King
by
an
usurpation
may
gaine
an
advowson
,
in
him
out
of
a
Common
person
,
and
if
the
King
Vsurpe
,
and
the
right
patron
present
,
he
is
remitted
:
Hobert
by
such
usurpation
,
the
possession
is
gained
from
the
King
,
but
not
the
right
,
and
note
that
upon
the
argument
in
the
principal
case
,
by
Bawtry
and
Iones
,
it
was
ruled
by
Hobert
,
Warberton
,
and
Hutton
,
that
if
the
Defendant
do
not
shew
better
cause
by
such
a
day
,
judgement
shall
be
given
against
him
;
and
Hutton
said
,
that
he
had
studied
the
case
,
and
found
no
doubt
but
that
the
traverse
is
good
,
Winch
was
absent
in
the
Chancery
.
M.
19.
Iac.
C.
P.
IT
was
moved
for
a
prohibition
by
Harris
Serjeant
,
to
the
Court
of
Audience
,
because
that
the
Plantiff
was
sued
there
for
saying
to
one
thou
art
a
Common
Quean
,
and
a
base
Quean
,
and
Harris
said
,
that
a
prohibition
had
been
granted
in
this
Court
,
for
saying
to
one
that
she
was
a
piperly
Queen
,
and
it
was
the
case
of
Man
against
Hucksler
;
and
Finch
said
,
though
the
words
are
not
actionable
in
our
Law
,
they
are
punishable
in
the
spiritual
Court
,
for
the
word
Quean
in
their
Law
,
implies
as
much
as
whore
,
but
Hobert
said
,
that
this
word
Quean
is
not
a
word
of
any
certain
sense
,
and
is
to
all
intents
,
and
purposes
,
and
individuum
Vagum
,
and
so
in
certain
;
see
more
after
.
Note
that
it
was
said
by
Justice
Warberton
,
that
it
was
adjudged
in
the
case
of
one
Ablaine
of
Lincolns
Inne
,
that
if
a
man
made
a
lease
for
years
rendering
rent
,
and
the
lessee
or
a
stranger
promise
upon
good
consideration
to
pay
the
rent
;
that
in
this
case
no
action
upon
the
case
will
lye
,
for
it
is
a
rent
,
and
is
a
real
thing
;
and
Hutton
Justice
being
only
present
agreed
,
this
was
upon
the
motion
of
Finch
Serjeant
,
&
Mic.
43.
Eliz.
in
the
Kings
Bench
in
an
action
upon
the
case
,
&
he
declared
how
he
let
certain
land
to
the
Defendant
for
years
,
in
consideration
of
which
the
Defendant
promised
to
pay
him
for
the
farm
aforesaid
,
20.
l.
and
Hitcham
moved
that
the
action
will
not
lye
,
because
it
appears
to
be
for
a
rent
,
for
which
an
action
of
debt
lyes
,
but
by
Gaudy
,
Fenner
and
Clench
it
is
not
a
rent
,
but
a
summe
in
gross
,
and
for
that
reason
,
because
he
promised
to
pay
that
in
the
consideration
of
a
lease
,
cleerly
an
action
upon
the
case
lyes
,
but
Sir
John
Walter
replyed
,
that
a
writ
of
error
was
brought
of
this
case
of
Simcocks
in
the
exchequer
chamber
,
and
the
matter
in
law
was
assigned
for
error
,
and
it
was
ruled
that
no
action
upon
the
case
will
lye
,
for
Walmsley
said
this
was
a
rent
,
for
of
necessity
there
ought
to
be
supposed
a
commutation
between
the
lessor
and
lessee
,
and
that
the
lessor
demanded
of
the
lessee
,
how
much
he
would
give
for
that
,
and
then
he
answered
20.
l.
this
made
an
entire
contract
,
and
for
that
reason
an
action
of
debt
lyes
,
and
not
an
action
upon
the
case
,
and
Savil
and
Kingsmil
agreed
to
this
.
In
evidence
to
the
Iury
,
in
a
replevin
brought
by
I.
S.
against
one
Bennet
,
for
the
taking
of
beasts
,
and
the
Defendant
made
Conusance
,
and
he
said
that
Mr.
Potts
was
seised
of
6.
acres
of
land
,
and
granted
a
rent
charge
out
of
that
to
one
William
Pots
his
son
in
taile
,
and
for
rent
behinde
he
avowed
,
and
the
issue
was
,
that
the
rent
did
not
pass
by
the
grant
;
and
Hobert
said
,
that
in
this
case
the
avowant
ought
to
prove
that
the
grantor
was
seised
of
6.
acres
,
or
more
,
and
not
of
4.
or
5.
acres
,
if
he
will
maintain
his
issue
in
this
case
.
Action
upon
the
case
for
words
he
innuendo
the
Plantiff
stole
the
Tobacco
out
of
his
Mrs.
shop
.
Finch
moved
the
declaration
was
not
good
,
because
he
had
not
averred
that
there
was
a
communication
concerning
him
before
,
and
where
the
person
is
incertaine
there
the
innuendo
is
void
,
Hobert
and
Winch
held
that
to
be
good
,
but
then
Hobert
moved
that
the
declaration
was
not
good
,
because
he
said
the
Tobacco
in
his
Mrs.
shop
,
and
had
not
averred
that
there
was
Tobacco
there
,
to
which
also
Winch
agreed
,
but
if
he
had
said
that
he
had
stolen
Tobacco
out
of
his
Mrs.
shop
;
such
declaration
without
any
averment
is
good
;
but
here
the
words
(
the
)
had
altered
the
sense
,
and
so
there
ought
to
be
an
averment
;
and
Winch
said
,
that
if
he
had
said
,
that
he
had
stole
2
or
3
pound
of
Tobacco
out
of
his
Mrs.
house
,
this
had
been
good
without
any
averment
,
for
the
certainty
appears
;
and
it
was
adjourned
.
Trin.
20.
Jac.
C.
P.
Whitgift
aganist
Sir
Francis
Barrington
.
IN
Replevin
the
Defendant
avowed
as
Baliff
to
Sir
Francis
Barrington
,
and
that
Whitgift
the
Plantiff
held
certaine
land
of
Sir
Francis
Barrington
,
by
escuage
et
quendam
reditum
,
and
that
the
said
Sir
Francis
was
seised
by
the
hands
of
Whitgift
his
very
Tenant
,
and
for
homage
he
avowed
;
and
upon
this
the
Plaintiff
demurred
;
first
,
because
he
had
avowed
for
homage
,
and
had
not
shewed
how
nor
in
what
manner
the
homage
is
due
,
whether
in
respect
that
the
tenancy
come
to
him
by
discent
,
or
by
purchase
,
and
for
that
this
general
allegation
is
naught
,
for
by
Hendon
Serjeant
all
the
presidents
in
such
avowryes
made
mention
of
the
title
to
the
homage
,
as
4.
E.
4.
in
avowry
for
homage
,
the
tenure
is
shewed
,
and
a
discent
alleadged
,
or
a
purchase
of
the
land
,
and
in
no
book
or
in
any
president
that
he
ever
yet
saw
,
did
he
see
such
a
general
allegation
in
avowry
for
homage
,
but
he
agreeth
the
book
of
the
44.
E.
3.
42.
if
the
avowry
is
upon
tenant
by
the
curtesie
,
this
general
allegation
is
good
,
but
otherwise
of
a
tenant
in
fee
simple
;
and
for
that
he
alledged
the
second
E.
3.
avowry
in
a
replevin
,
the
Bishop
avowed
for
homage
due
by
the
Plantiff
,
and
exception
was
taken
,
because
it
was
not
shewed
in
whose
time
the
death
of
the
ancestor
was
,
whether
in
his
own
time
,
or
the
time
of
his
predecessor
,
and
ruled
to
be
evill
,
for
his
avowry
being
his
title
he
ought
to
shew
that
in
certaine
,
and
so
in
our
case
.
Hobert
this
case
doth
not
prove
our
case
,
for
in
our
case
prima
facie
it
is
certain
to
all
intents
and
purposes
,
and
I
cannot
see
how
an
avowry
may
be
better
made
;
and
Finch
at
the
barre
vouched
a
president
in
the
book
of
entries
title
horse
de
son
fee
:
secondly
,
where
such
a
avowry
as
in
our
case
is
made
,
and
then
Hendon
moved
that
the
avowrie
is
not
good
,
for
he
had
shewed
the
tenure
by
homage
,
and
by
escuage
,
and
rent
de
quo
quidem
redditu
,
he
was
seised
&c.
and
this
is
also
repugnant
;
for
when
he
said
that
he
was
seised
of
the
rent
by
the
hands
of
the
Plaintiff
,
this
is
a
seisin
of
the
homage
as
Bevils
case
is
,
and
then
by
his
own
shewing
,
because
the
seisin
of
the
rent
is
a
seisin
of
the
homage
,
he
shall
not
have
the
homage
of
the
Plantiff
.
Thirdly
,
admitting
this
point
against
him
,
and
that
the
seisin
of
the
rent
is
not
seisin
of
the
homage
,
yet
the
pleading
is
not
good
,
for
when
he
expresly
alleadged
seisin
of
the
rent
in
this
manner
de
quo
quidem
redditu
he
was
seised
,
this
excluded
the
seisin
of
any
other
services
,
but
only
of
the
rent
which
is
expresly
alleadged
:
and
therefore
in
our
case
he
ought
to
have
alleadged
generally
de
quibus
serviciis
he
was
seised
,
and
to
leave
this
to
the
construction
of
the
Law
;
and
he
vouched
13.
H.
7.
31.
Serjeant
Harvy
to
the
same
intent
,
for
though
perchance
no
good
reason
may
be
given
wherefore
the
pleading
shall
be
such
,
and
that
the
seisin
of
the
homage
ought
to
be
expressed
,
yet
because
all
the
presidents
are
so
,
the
course
of
pleading
shall
not
be
altered
:
and
all
the
presidents
shew
a
seisin
of
the
homage
;
see
the
book
of
entries
597.
and
598.
Serjeant
āowse
to
the
contrary
,
the
book
of
the
19.
E.
2.
Recovery
224.
is
,
that
the
alleadging
of
the
seisin
or
escuage
,
as
in
our
case
of
tent
,
is
a
sufficient
avowry
for
homage
;
and
29.
H.
3.
such
an
allegation
of
the
seisin
of
rent
was
made
in
avowry
for
fealty
,
and
good
.
Hutton
,
if
the
book
of
the
19.
E.
12.
be
as
Towse
had
alleadged
,
it
is
all
one
with
our
case
,
Hobert
seems
the
avoury
is
good
,
notwithstanding
this
last
exception
,
for
perchance
he
was
not
actually
seised
of
the
homage
by
the
hands
of
the
Tenant
himself
,
and
then
by
his
own
,
shewing
his
avowry
shall
abate
,
and
he
demanded
of
Brownlow
,
if
there
were
any
such
president
of
an
avowry
,
who
answered
no.
Hobert
,
if
the
continual
pleading
be
as
my
brother
Harvy
had
alleadged
,
we
will
not
alter
the
course
of
pleading
,
but
in
my
opinion
,
in
reason
none
may
plead
in
better
manner
or
form
,
and
Hutton
being
only
present
agreed
,
and
then
Hobert
commanded
the
presidents
to
be
searched
concerning
that
matter
,
and
Finch
at
the
barre
being
of
Councel
with
the
avowant
said
,
that
till
the
resolution
in
Bevils
case
,
it
was
a
great
question
whether
the
seisin
of
the
rent
was
the
seisin
of
the
homage
,
and
therefore
perchance
it
will
be
hard
to
finde
my
antient
president
:
they
adjourned
,
and
at
another
day
Hutton
and
Winch
being
only
present
,
judgement
was
given
for
the
avowant
against
Whitgift
,
and
Hutton
said
,
that
he
had
spoke
with
the
other
Iustices
,
and
they
agreed
.
Vpon
a
motion
made
by
Towse
,
the
case
was
this
,
a
man
made
a
lease
for
one
year
,
and
so
from
year
to
year
during
the
Will
of
the
lessor
,
and
lessee
,
rendring
rent
,
and
the
lessee
died
,
and
the
rent
was
behinde
,
and
by
Winch
being
only
present
,
if
the
rent
is
behinde
in
the
time
of
the
lessee
and
he
dies
,
an
action
of
debt
is
maintainable
against
his
Executor
in
the
detināt
only
;
and
so
I
conceive
,
if
that
was
behinde
after
his
death
,
he
may
have
an
action
in
the
debt
and
the
detinet
,
or
in
the
detinet
only
;
to
which
Brownlow
agreed
;
Secondly
Winch
said
,
that
when
a
man
made
a
lease
for
a
year
,
and
so
from
year
to
year
at
the
pleasure
of
the
parties
,
that
this
is
a
lease
for
3.
years
,
and
not
for
two
.
Thirdly
,
he
doubted
if
the
lessee
hold
over
his
term
so
that
he
is
tenant
at
sufferance
,
what
remedy
the
lessor
had
for
his
rent
.
Vpon
the
reading
of
a
record
the
case
was
,
that
a
Scire
facias
issued
against
the
land
,
Tenant
to
have
execution
of
a
judgement
given
against
Ferdinando
Earl
of
Darby
in
the
15.
Eliz.
and
the
Defendant
pleaded
,
that
a
long
time
before
the
said
Ferdinando
any
thing
had
in
the
land
,
one
Edward
Earl
of
Darby
was
seised
of
the
land
,
and
being
so
seised
3.
Mar.
infeoffed
I.
S.
to
the
use
of
the
Lord
Strange
and
his
wife
in
tail
,
the
remainder
over
to
the
said
Ferdinando
,
and
made
the
said
Ferdinando
heire
to
the
estate
taāle
,
and
pretended
that
by
this
meanes
the
land
should
not
be
liable
to
this
judgement
,
because
it
was
intailed
to
Ferdinando
;
and
of
such
estate
he
died
seised
;
the
Plantiff
traversed
the
feofment
made
by
Edw.
Earl
of
Darby
,
and
the
jury
found
that
the
feofment
was
made
by
Edward
Earl
of
Darby
to
the
same
persons
as
the
Defendant
had
pleaded
,
but
this
was
to
the
use
of
the
feoffor
for
life
,
the
remainder
over
to
the
Lord
Strange
and
his
wife
,
the
remainder
as
before
;
and
whether
this
shall
be
intended
the
same
Feofment
which
the
Defendant
had
pleaded
was
the
question
,
because
the
estate
for
life
was
omitted
;
and
upon
the
special
verdict
that
was
the
question
,
and
Attoe
said
,
that
if
the
jury
had
found
this
feofment
made
to
other
feoffees
,
though
the
estate
had
agreed
this
should
be
found
against
the
Defendant
;
and
Winch
Iustice
said
,
that
there
was
such
estate
found
as
had
taken
away
the
execution
or
extent
,
and
the
estate
for
life
is
not
material
;
but
it
was
adjourned
till
another
day
.
A
man
Covenanted
to
make
such
assurance
as
shall
be
devised
by
the
counsel
of
the
Plantiff
,
so
the
same
assurance
be
made
within
the
county
of
Norff.
or
the
Citty
of
Norwich
,
and
the
Plantiff
assigned
the
breach
,
and
shewed
that
in
this
case
his
Councel
devised
,
that
a
fine
should
be
leavied
of
the
same
land
which
was
not
done
;
and
it
was
moved
by
Serjeant
Attoe
,
that
in
this
case
the
breach
was
not
well
laid
,
because
he
had
not
shewed
where
his
councel
devised
that
the
fine
should
be
leavied
.
In
the
case
of
a
prohibition
,
in
case
of
a
libel
in
the
Ecclesiastical
Court
for
the
tithes
of
Cattles
,
the
Plantiff
alleadged
that
those
Cattle
,
of
which
Tithes
were
demanded
,
are
for
his
Dairy
,
and
for
the
plough
;
and
Winch
being
only
present
said
,
that
the
parson
shall
not
have
Tithes
of
such
Cattle
,
but
if
he
bred
up
Cattle
to
sell
,
it
is
otherwise
;
secondly
,
the
Plantiff
in
the
prohibition
alleadged
that
time
beyond
memory
the
parishoners
had
paid
a
half
peny
for
the
Tithe
of
a
Calf
,
and
a
penny
for
a
Cow
;
and
that
upon
a
day
limitted
they
use
to
bring
this
to
the
Church
,
and
to
pay
this
to
the
Vicar
,
and
now
the
Vicar
had
libelled
in
the
spiritual
Court
,
against
them
to
compel
them
to
bring
it
home
to
his
house
;
and
Winch
said
that
this
is
no
occasion
of
a
prohibition
,
for
they
agree
in
the
modus
,
but
vary
in
the
place
of
payment
,
and
this
is
not
matter
of
substance
,
and
for
that
reason
no
prohibition
will
lie
.
Vpon
the
reading
of
a
record
the
case
was
,
that
the
father
made
a
feofment
to
the
use
of
himself
for
life
,
the
remainder
to
his
son
and
his
wife
,
and
to
the
heires
of
the
body
of
the
son
,
and
this
was
for
a
joynture
for
his
wife
,
and
the
father
died
,
and
the
son
also
died
,
and
whether
this
was
a
good
joynture
was
the
question
,
for
all
this
matter
was
pleaded
in
barre
of
dower
brought
by
the
wife
,
and
it
was
ruled
to
be
no
good
joynture
for
the
feme
,
notwithstanding
that
the
father
died
in
the
life
of
his
son
,
and
Hutton
said
,
if
a
man
made
a
feofment
to
the
use
of
himself
for
life
,
the
remainder
to
his
Executors
for
years
,
the
remainder
to
his
wife
for
a
joynture
,
this
will
be
no
good
joynture
within
the
Statute
of
joyntures
,
though
the
feme
here
had
the
immediate
franktenement
.
In
an
action
of
debt
,
against
an
Administrator
who
pleads
outlawry
in
the
Testator
;
and
it
was
moved
that
this
was
no
plea
,
for
he
had
taken
the
Administration
upon
him
.
Winch
,
a
man
who
is
outlawed
may
not
make
an
executor
,
for
if
he
meet
with
his
goods
,
he
shall
answer
for
them
to
the
King
;
and
for
that
reason
it
seems
to
be
a
good
plea
,
3.
H.
6.
32.
and
Brownlow
chief
Prothonotary
,
said
that
he
could
shew
a
president
27.
Eliz.
where
this
is
adjudged
to
be
no
plea
,
and
Iustice
Winch
said
to
him
,
shew
that
president
if
any
such
be
;
and
upon
Tuesday
after
he
shewed
that
,
and
then
Winch
agreed
.
Auditor
Curle
for
words
.
AUditor
Curle
brought
an
action
upon
the
case
,
and
in
his
declaration
he
set
forth
the
Statute
of
32.
H.
8.
for
the
erection
of
the
Court
of
Wards
,
and
that
the
same
Statute
appointed
the
Auditor
of
the
same
Court
,
and
shewed
that
the
Plantiff
was
an
Auditor
of
the
same
Court
:
and
that
the
Defendant
such
a
day
,
and
at
such
a
place
,
said
of
him
you
have
taken
money
for
ingrossing
of
feodaries
innuendo
accompts
,
and
tunc
et
ibidem
you
are
a
Cozner
and
live
by
Cozning
,
and
I
will
prove
that
to
be
Coznage
;
and
upon
not
guilty
pleaded
,
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
by
Finch
Serjeant
of
the
King
,
that
the
Plantiff
shall
not
have
judgement
upon
this
verdict
,
for
the
first
words
are
not
actionable
,
for
the
taking
of
money
for
the
ingrossing
of
feodaries
are
insensible
,
and
then
the
inuendo
will
not
help
nor
aid
that
,
also
the
words
in
the
second
place
are
not
actionable
,
because
he
had
not
said
that
he
was
a
Cozning
officer
,
and
so
he
had
not
expresly
applied
that
to
his
office
,
and
the
words
are
found
generally
,
but
yet
admitting
that
the
last
words
are
actionable
,
yet
the
Plantiff
shall
not
have
judgement
,
for
the
damages
are
intirely
given
,
and
for
that
reason
void
;
see
more
and
Bedles
case
cited
in
Osborns
case
,
Cook
10.
Harris
Serjeant
to
the
contrary
,
for
an
Auditor
is
an
officer
of
trust
,
and
he
took
an
oath
when
he
entered
into
his
office
,
and
his
receiving
fees
which
are
not
due
,
are
also
extortion
;
and
the
words
of
Cousāāage
shall
have
also
relation
to
the
office
,
as
in
Barkleys
case
,
you
are
a
corrupt
man
,
an
action
lyes
,
and
Haywel
and
Stakleys
case
,
of
a
Iustice
of
the
peace
,
and
Sir
Miles
Fleetwoods
case
,
he
being
receiver
of
the
Court
of
wards
,
one
called
him
Mr.
deceiver
and
ruled
,
action
lies
,
and
tunc
et
ibidem
shall
have
relation
to
the
same
time
,
in
which
the
said
words
were
spoken
;
and
so
he
prayed
judgement
for
the
Plantiff
:
and
it
was
adjourned
till
another
time
.
See
after
.
Good
against
Bawtry
.
GOod
brought
an
Ejectione
firme
against
Bawtry
,
for
ejecting
him
of
certain
lands
in
Creeting
St.
Maries
,
in
Creeting
St.
Olaves
,
and
in
Creeting
omnium
sanctorum
,
and
a
Venire
facias
issued
,
to
try
the
issue
,
to
Summon
12.
men
de
vicineto
de
Creeting
St.
Mary
,
Creeting
St.
Olaves
,
and
Creeting
omnium
omitting
Sanctorum
;
and
it
was
now
moved
in
arrest
of
judgement
,
by
Attoe
Serjeant
,
that
the
Venire
facias
was
not
good
,
for
it
ought
to
be
of
all
the
Creetings
,
and
the
Court
blamed
the
Clark
very
much
for
his
negligence
,
but
it
was
adjourned
till
another
time
.
A
man
lett
an
advowson
for
40.
years
,
and
the
lessee
covenanted
that
he
would
not
alien
without
the
assent
of
the
lessor
,
and
he
shewed
all
the
matter
,
because
he
had
aliened
to
I.
S.
without
his
assent
,
and
the
Defendant
pleaded
,
that
he
had
not
aliened
without
his
assent
,
and
upon
that
they
were
at
issue
,
and
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
,
because
he
had
not
laid
,
that
the
alienation
was
by
deed
,
for
an
advowson
may
not
pass
without
deed
,
and
Hobert
said
,
if
a
man
will
declare
in
an
ejectione
firme
of
a
lease
made
by
the
husband
and
the
wife
without
deed
,
this
is
not
the
lease
of
the
wife
without
deed
,
or
yet
if
the
Defendant
will
plead
,
not
guilty
,
or
non
dimisit
,
and
this
is
found
for
the
Plantiff
,
the
Plantiff
shall
have
judgement
,
for
this
shall
be
intended
to
be
by
deed
,
which
was
granted
by
Winch
Iustice
being
only
present
,
that
the
breach
was
well
laid
,
and
he
alleadged
a
president
43.
Eliz.
a
man
avowed
,
and
had
not
shewed
that
this
was
by
deed
;
and
the
Defendant
pleaded
non
concessit
,
and
found
for
the
avowant
,
and
he
had
judgement
,
but
Hobert
denyed
this
case
,
but
afterwards
in
the
principal
case
,
it
was
adjudged
that
the
breach
was
well
laid
,
and
the
Plantiff
had
judgement
.
In
a
formedon
in
reverter
the
Tenant
was
essoyned
,
and
the
vouchee
also
appeared
,
the
case
was
essoyned
,
and
he
had
day
over
till
octabis
Michaelis
.
And
then
the
Attorney
of
the
Defendant
would
have
been
essoyned
,
and
it
was
argued
by
Hendon
Serjeant
,
that
he
shall
not
be
essoyned
,
and
yet
he
agreed
if
the
vouchee
had
not
appeared
,
the
Tenant
might
have
been
essoyned
againe
,
13.
E.
3
essoyne
the
8.
and
the
same
Law
of
the
vouchee
be
returned
tarde
,
but
if
the
vouchee
appeare
,
and
is
essoyned
,
there
the
Tenant
shall
not
be
essoyned
againe
,
and
so
is
the
express
āook
of
the
3.
H.
7.
17.
9.
E.
3.
39.
and
the
reason
is
,
because
by
the
appearance
of
the
vouchee
the
Tenant
is
out
of
the
Court
&c.
and
it
was
adjourned
till
another
day
:
and
at
that
day
it
was
resolved
by
the
Court
,
that
the
Attorney
shall
be
essoāned
,
and
this
was
upon
the
view
of
a
like
judgement
,
in
the
case
of
the
Earl
of
Clanrickard
;
and
Hobert
said
,
that
in
that
case
the
Roll
of
the
3.
H.
7.
was
searched
for
,
and
could
not
be
found
;
and
Towse
urged
22.
H.
6.
and
13.
E.
3.
essoyne
8.
Sir
Henry
L.
Warden
of
the
Fleet.
RIchardson
Serjeant
moued
for
the
warden
of
the
Fleet
Sir
Henry
L.
and
his
motion
was
that
whereas
one
I.
S.
was
in
execution
,
in
the
Custody
of
the
Warden
of
the
Fleet
,
for
300.
l.
and
he
made
an
escape
,
and
he
at
whose
suite
he
was
in
execution
,
brought
an
action
upon
this
escape
against
the
Warden
of
the
Fleet
,
and
he
shewed
that
the
Warden
upon
fresh
suit
had
taken
him
again
,
and
he
prayed
that
the
Plantiff
may
not
proceed
in
his
action
,
for
though
the
Warden
of
the
Fleet
may
plead
this
,
though
the
action
was
brought
before
the
retaking
of
the
party
,
yet
he
prayed
for
the
saving
of
charges
,
that
the
action
may
be
stayed
,
and
he
said
,
that
there
was
such
a
case
in
this
Court
,
against
Harris
deputy
Warden
to
Sir
Henry
.
L.
upon
such
an
escape
,
and
he
pleaded
to
the
issue
;
and
after
he
retook
the
prisoner
:
and
in
this
case
the
Court
had
also
relieved
Harris
if
the
issue
had
not
been
joyned
,
but
Hobert
,
let
the
Plantiff
be
brought
here
present
in
Court
,
and
then
we
will
speak
to
that
point
.
Gell
against
White
.
Gell
against
White
and
others
,
and
he
declared
in
action
of
Trespass
,
but
the
writ
was
general
,
but
the
declaration
was
quare
vi
et
armis
bona
et
catalla
sua
ceperunt
,
et
asportaverunt
viz.
tertiam
partem
unius
dishei
plumbei
,
Anglice
,
the
third
part
of
a
dish
of
lead
Ore
:
and
it
was
moved
that
the
Plantiff
shall
not
have
judgement
for
the
variance
between
the
writ
,
and
the
declaration
;
and
though
it
is
objected
,
that
here
is
nor
any
original
writ
at
all
,
for
in
verity
there
was
not
any
,
yet
the
declaration
is
contrary
to
it self
;
for
if
in
a
replevin
the
Plantiffs
writ
is
,
de
bonis
et
Catallis
;
and
his
declaration
is
of
a
taking
of
a
horse
,
this
is
not
good
,
and
so
here
bona
viz.
tertiam
partem
&c.
for
this
particular
thing
may
not
be
said
to
be
goods
and
Chattels
:
and
Harris
Serjeant
moved
,
that
the
Attorney
might
be
banished
the
Court
,
for
declaring
without
a
writ
according
to
the
express
book
,
20.
H.
6.
Hobert
,
good
reason
;
adjourned
till
another
time
.
Anne
Buckley
against
Simonds
Mich.
18.
Jac.
Rot.
2120.
ENtered
Mich.
18.
Jac.
Rot.
2120.
Anne
Buckley
was
Plantiff
in
a
Quare
Imp.
against
Simonds
,
and
the
case
in
effect
was
,
that
Andrew
Buckley
,
Grandfather
of
the
husband
of
the
Plantiff
,
did
Covenant
by
indenture
with
Preston
,
that
before
such
a
day
his
Son
should
marry
the
daughter
of
Preston
.
And
Covenanted
to
convey
6.
l.
13.
s.
per
Annum
of
rent
issuing
out
of
land
,
to
hold
to
them
during
the
life
of
the
Covenanted
and
his
wife
,
and
after
this
he
Covenanted
for
him
,
his
hetres
,
and
assignes
,
that
after
the
death
of
the
Covenantor
,
and
his
wife
the
land
to
which
the
advowson
in
question
is
appendant
shall
remain
,
come
,
and
be
unto
the
said
son
and
his
wife
,
and
upon
a
demurrer
the
question
was
,
whether
this
Covenant
did
raise
a
present
use
to
the
Son
,
and
to
his
wife
,
or
whether
this
only
rests
in
Covenant
,
and
Harris
Serjeant
argued
,
that
no
present
use
will
arise
by
this
Covenant
,
for
first
,
all
other
Covenants
in
the
indenture
are
in
the
future
,
for
the
words
are
,
that
the
lands
shall
remain
and
come
&c.
and
therefore
till
the
death
of
the
Covenantor
the
fee
simple
is
in
him
,
and
no
use
will
arise
,
for
it
shall
be
in
the
election
of
the
Covenantor
,
what
estate
he
will
make
to
his
Son
,
for
he
himself
shall
interpret
his
intent
,
and
the
difference
in
our
books
is
,
when
the
words
are
in
the
present
tense
,
and
when
in
the
future
,
and
for
this
he
cited
22.
H.
7.
by
Iustice
Rede
,
if
a
man
Covenant
that
land
shall
discend
,
remain
,
or
revert
,
he
said
this
did
not
give
any
present
interest
,
because
the
wors
are
in
the
future
,
and
it
is
in
the
election
of
the
Covenantor
,
how
,
and
in
what
manner
the
land
shall
pass
;
and
there
he
put
the
case
,
that
if
I
give
my
horse
,
or
my
Cow
to
I.
S.
there
the
Donee
had
election
to
take
at
his
pleasure
the
one
or
the
other
,
because
the
words
are
in
the
present
tense
,
but
if
the
words
are
,
that
I
will
give
a
horse
,
or
a
Cow
,
there
the
Donor
had
election
which
he
shall
have
,
because
the
words
are
in
the
future
:
the
Lord
Borroughs
Covenanted
34.
H.
8.
Dyer
55.
with
another
in
frank
marriage
with
his
son
,
that
immediately
after
his
death
,
his
son
shall
enjoy
the
use
of
his
land
of
inheritance
,
according
to
the
course
as
then
they
stood
;
and
the
question
was
,
whether
the
see
simple
was
presently
out
of
the
Covenantor
;
and
the
opinion
was
that
it
was
not
,
because
it
was
but
a
Covenant
,
and
did
not
change
the
fee
simple
,
and
so
is
Dyer
96.
Sir
Thomas
Seymor
promised
,
and
Covenanted
by
indenture
in
consideration
,
that
the
Covenantee
had
granted
land
to
him
,
that
he
would
leavy
a
fine
to
Wimbish
and
Pennoy
of
other
lands
,
which
fine
should
be
to
Sir
Thomas
Seymor
for
life
,
the
remainder
to
the
Covenantee
in
taile
,
and
no
fine
was
levied
,
and
the
question
was
,
whether
any
use
was
raised
by
this
Covenant
to
the
Covenantee
,
and
the
opinion
of
the
book
is
,
that
not
,
because
it
is
in
the
future
,
and
he
cited
the
20.
H.
7.
10.
the
Duke
of
Buckingham
in
consideration
,
that
the
Lord
Henry
his
brother
was
to
marry
the
Lady
Wiltshire
,
he
Covenanted
with
Bray
,
and
with
others
,
that
the
Mannors
of
D.
and
of
S.
shall
be
to
the
Lady
and
to
her
heirs
of
her
body
begotten
by
the
said
Lord
,
and
after
the
Duke
granted
to
the
Lord
Henry
and
his
wife
for
their
lives
:
and
it
was
argued
whether
this
second
grant
is
good
or
no
,
for
if
it
is
,
then
the
first
Covenant
will
not
work
to
raise
an
use
to
the
feme
,
and
the
book
left
that
as
a
quere
;
and
if
it
be
,
then
he
argued
that
in
the
principal
case
no
present
use
is
raised
,
but
that
this
rests
meerly
in
Covenant
,
and
so
he
prayed
judgement
for
the
Plantiff
.
Serjeant
Hendon
to
the
contrary
,
for
he
thought
this
will
raise
a
present
use
,
and
that
this
was
the
intent
of
the
parties
,
that
this
should
raise
a
present
use
,
for
the
intent
was
to
advance
them
first
,
during
their
lives
with
the
rent
,
and
after
the
death
of
the
Covenantor
and
his
wife
with
the
land
it self
,
and
therefore
of
necessity
this
will
raise
a
present
use
,
for
a
bare
action
of
Covenant
may
not
be
any
advancement
at
all
;
and
the
rather
here
,
because
they
who
take
benefit
of
this
are
strangers
to
the
Covenant
,
and
not
Preston
himself
,
for
as
it
appears
by
3.
H.
7.
a
stranger
shall
not
take
benefit
by
a
Covenant
;
and
therefore
he
said
the
intentions
of
the
parties
was
to
raise
an
use
,
for
otherwise
there
shall
be
no
advancement
at
all
.
And
further
the
words
in
the
indenture
are
Covenant
and
grant
,
and
if
no
use
is
raised
,
then
this
word
grant
is
idle
,
and
every
word
shall
be
so
expounded
that
they
may
take
effect
,
and
the
word
Covenant
is
insufficient
of
it self
to
pass
an
estate
in
land
,
or
to
have
any
estate
in
signification
other
then
to
a
meer
Covenant
,
and
to
be
obligatory
:
as
is
put
Co.
2.
Cromwels
case
,
Tirrels
case
,
there
vouched
,
a
lease
for
years
provided
,
and
it
is
Covenanāed
,
and
agreed
,
there
the
Covenant
is
a
condition
,
and
also
a
Covenant
,
and
8.
Ass.
1.
12.
it
is
agreed
,
that
if
I
Covenant
that
an
other
shall
have
my
land
for
7.
years
,
this
a
good
lease
of
the
land
it self
,
and
it
was
adjudged
here
Tr.
2.
Jac.
Rot.
1696.
accordingly
;
and
in
our
case
this
word
Covenant
and
grant
,
is
also
sufficient
to
raise
an
use
,
and
to
give
an
interest
in
the
land
it self
:
and
yet
he
agreed
that
if
there
was
an
other
act
to
be
made
by
the
Covenantor
or
the
Covenantee
,
that
then
no
use
will
arise
,
but
it
shall
rest
only
in
Covenant
,
Dyer
162.
there
are
Covenants
between
the
Lady
Vere
and
Sir
Anthony
Wingfield
her
son
,
that
the
said
Lady
would
convey
to
her
son
by
a
recovery
;
and
that
after
6.
moneths
the
said
Sir
Anthony
shall
make
an
estate
to
his
Mother
for
life
,
and
there
it
is
doubted
whether
the
use
is
changed
within
the
6.
moneths
,
and
it
was
holden
that
it
was
not
,
Mich.
20.
Jac.
C.P.
for
then
it
is
impossible
that
the
Covenants
should
be
performed
,
and
in
that
case
it
is
in
the
power
of
the
Covenantor
,
to
make
an
act
that
the
Covenants
shall
not
be
performed
,
and
therefore
Covenants
will
not
raise
an
use
;
but
in
our
case
no
act
of
the
Covenantor
may
hinder
that
this
use
shall
arise
,
and
therefore
good
,
and
for
that
the
difference
is
,
Dyer
296.
which
is
entered
11.
Eliz.
the
Roll
of
which
I
have
seen
,
the
father
upon
the
marriage
of
his
son
,
promised
to
the
friends
of
his
wife
,
that
after
his
death
his
son
shall
have
his
land
,
to
him
and
his
heirs
,
and
the
book
is
ruled
that
this
did
not
change
the
use
,
and
the
reason
was
,
this
Covenant
was
by
words
,
and
not
in
writing
,
but
it
was
not
doubted
,
if
this
Covenant
had
been
by
writing
,
but
that
the
Covenant
will
raise
an
use
,
which
is
all
one
with
our
case
,
and
so
was
Callard
and
Callards
case
37.
Eliz.
stand
forth
Eustace
,
reserving
to
my
wife
and
my self
,
I
give
to
thee
and
thy
heires
,
and
there
it
was
doubted
,
whether
any
use
will
arise
to
the
son
,
and
ruled
that
not
,
because
this
was
by
words
only
,
but
it
was
also
agreed
,
that
if
these
words
had
been
by
writing
,
they
had
been
sufficient
to
raise
an
use
to
the
son
,
and
he
cited
Dyer
232.
before
the
Statute
of
the
27.
H.
8.
A
Covenanted
and
agreed
with
B.
that
upon
the
marriage
of
his
son
,
with
the
daughter
of
the
other
,
that
he
would
retain
his
land
for
life
,
and
that
after
his
death
it
shall
remain
to
his
son
and
his
wife
in
fee
,
and
the
book
is
that
this
Covenant
will
raise
an
use
,
also
if
this
Covenant
and
agreement
will
not
amount
to
raise
an
use
,
then
it
is
not
to
any
use
or
purpose
at
all
,
and
by
consequence
the
consideration
of
the
marriage
is
void
also
,
and
an
action
of
Covenant
will
very
well
lye
,
without
any
such
consideration
of
marriage
;
and
so
he
concluded
,
and
prayed
judgement
for
the
Defendant
,
adjourned
.
Mich.
20.
Jac.
C.
P.
Johnson
against
Norway
.
IOhnson
brought
an
action
of
Trespass
against
Norway
of
Trespass
made
in
a
piece
of
ground
,
and
the
Defendant
pleaded
,
that
14.
H.
7.
Roger
Le
Strange
and
Anne
his
wife
,
were
seised
of
the
Mannor
of
D.
and
one
Giles
Sherington
Abbot
of
C.
was
seised
of
an
acre
of
land
in
fee
,
and
held
this
of
the
said
Roger
Le-Strange
as
of
the
Mannor
of
D.
aforesaid
,
and
that
the
22.
H.
7.
the
Abbot
,
and
all
the
Monks
died
,
by
which
the
said
land
escheated
to
Roger
&c.
and
the
Mannor
discended
to
his
son
and
heire
after
his
death
;
who
conveyed
the
Mannor
of
which
the
acre
is
parcel
after
the
escheat
by
mean
conveyance
to
Hobert
in
fee
,
and
that
Hobert
12.
Eliz.
infeoffed
one
Wright
of
the
Mannor
,
of
which
the
said
acre
is
parcel
,
and
so
justified
by
a
conveyance
from
Wright
to
the
Defendant
:
the
Plantiff
replied
by
protestation
that
the
Abbot
was
not
eligible
,
and
for
plea
he
said
,
that
the
aforesaid
Hobert
10.
Eliz.
infeoffed
I.
S.
of
the
said
acre
of
land
absque
hoc
that
he
infeoffed
Wright
of
the
sad
Mannor
of
which
the
said
acre
is
parcel
;
and
upon
this
the
Defendant
demurred
generally
.
And
Serjeant
Attoe
argued
for
the
Plantiff
,
that
the
Plea
of
the
Defendant
is
evil
,
and
then
though
the
replication
of
the
Plantiff
is
not
good
,
yet
the
Plantiff
shall
have
judgement
,
and
he
cited
Turners
case
;
Hobert
it
is
true
,
Deane
of
Norwiches
case
Coo.
3.
agreed
,
that
by
the
death
of
the
Abbot
and
his
Covent
the
corporation
is
dissolved
,
and
then
the
possession
shall
go
to
the
founders
,
and
shall
not
escheat
to
the
Lord
of
the
Mannor
of
which
the
Land
was
holden
,
and
he
said
that
this
point
is
proved
cleerly
by
the
Statute
,
of
the
27.
H.
8.
and
31.
H.
8.
of
Monasteries
,
in
which
Statutes
there
is
an
express
saving
to
all
persons
,
except
to
the
donors
and
to
their
heires
;
and
no
mention
is
made
of
the
saving
of
the
right
of
those
of
whom
the
land
was
holden
;
and
that
proves
cleerly
,
that
if
the
makers
of
the
Statute
had
thought
that
the
land
had
escheated
to
the
Lords
,
they
would
have
excepted
them
in
the
saving
of
the
act
,
as
they
had
excepted
the
Donors
and
Founders
,
for
if
otherwise
the
lands
,
and
possessions
shall
escheat
to
the
Lords
of
which
the
land
was
holden
,
they
are
within
the
saving
of
the
Statute
:
and
then
it
will
follow
that
after
the
death
of
all
the
Monks
,
as
at
this
day
,
that
the
Lords
shall
have
the
land
by
escheat
,
which
the
Sages
of
the
Law
never
dreamt
of
who
made
that
Statute
,
that
any
thing
may
accrew
to
the
Lord
,
and
therefore
they
provided
only
for
the
title
of
the
Donors
and
Founders
,
which
is
an
argument
that
they
thought
,
that
upon
the
dissolution
of
the
Monesteries
,
that
the
lands
shall
go
to
the
Founders
,
and
the
same
he
thought
concerning
a
corporation
at
this
day
,
as
of
Suttons
Hospital
&c.
and
so
he
concluded
that
,
because
in
the
barre
of
the
Defendant
he
claimed
to
hold
from
the
Lord
,
to
whom
he
supposed
the
land
to
escheat
,
and
did
not
claim
&c.
by
his
own
shewing
the
barre
is
not
good
:
and
though
our
replication
,
and
traverse
is
not
good
,
yet
the
Plantiff
shall
have
judgement
.
But
admitting
that
the
barre
is
good
,
yet
the
replication
and
traverse
is
good
,
and
then
judgement
shall
be
given
for
the
Plantiff
:
and
the
case
is
,
the
Defendant
pleaded
a
feofment
of
the
Man
.
12.
Eliz.
to
Wright
after
that
he
had
shewed
the
escheat
of
an
acre
,
the
Plantiff
replied
that
the
10th
.
Eliz.
the
Feofor
infeoffed
C.
of
the
acre
of
land
,
absque
hoc
that
he
was
infeoffed
of
the
Mannor
of
which
the
acre
is
parcel
,
and
Attoe
argued
,
that
the
traverse
is
good
,
and
he
alleadged
38.
H.
6.
49.
the
same
traverse
,
and
here
when
the
Defendant
had
pleaded
that
the
acre
escheated
,
and
had
alleadged
a
Feofment
of
the
Mannor
,
and
had
not
expresly
alleadged
a
Feofment
of
the
acre
,
the
Plantiff
may
traverse
that
which
is
not
expresly
alleadged
,
because
this
destroyes
the
very
title
of
the
Defendant
;
and
he
cited
for
that
34.
H.
6.
15.
a
writ
of
priviledge
in
trespass
,
as
a
Servant
to
an
auditor
of
the
exchequer
,
the
Plantiff
replied
that
he
was
servant
to
him
in
husbandry
,
absque
hoc
that
he
was
his
servant
to
waite
and
attend
upon
him
in
his
office
,
and
it
was
holden
a
good
traverse
,
and
yet
that
was
not
expresly
alleadged
by
the
Defendant
.
Hobert
chief
Iustice
said
,
that
the
traverse
is
not
good
,
for
by
the
Feofment
which
was
made
the
12th
.
Eliz.
he
had
confessed
and
avoyded
the
Feofment
which
was
made
10th
.
Eliz.
and
so
there
needed
no
traverse
,
and
therefore
he
said
,
the
great
doubt
of
the
case
will
be
upon
the
barre
of
the
Defendant
,
whether
by
the
death
of
the
Abbot
and
the
Monks
,
the
land
escheat
to
the
Lords
of
whom
that
was
holden
,
or
whether
that
shall
go
to
the
Donors
,
and
to
the
Founders
,
and
he
thought
that
the
land
shall
escheat
,
to
which
Winch
seemed
to
agree
;
and
Hobert
said
,
that
the
writ
of
contra
formam
donationis
was
given
to
the
Founder
or
Donor
by
the
Statute
,
and
not
by
the
Common
Law
;
but
in
the
principal
case
,
the
judges
said
they
would
advise
of
that
,
and
gave
day
over
to
argue
that
again
.
Auditor
Curles
case
before
.
ANd
now
at
this
day
the
case
of
Auditor
Curle
was
moved
again
in
arrest
of
judgement
,
by
Hendon
,
and
he
said
Auditor
Curle
brought
an
action
upon
the
case
against
Tuck
,
and
he
shewed
in
his
declaration
the
erection
of
the
Court
of
Wards
,
by
the
Statute
of
32.
H.
8.
and
that
it
was
ordained
by
the
same
Statute
,
that
those
persons
which
shall
be
ordained
Auditors
of
the
same
Court
,
shall
be
sworn
and
take
an
oath
,
and
that
such
a
time
the
Plantiff
was
sworn
an
Auditor
,
and
that
to
the
office
was
2.
s.
due
to
be
paid
for
the
ingrossing
of
Feodaries
,
and
that
the
said
Plantiff
exercised
the
said
office
honestly
,
and
justly
,
and
with
the
fees
and
the
profits
of
the
same
he
maintained
his
family
,
and
that
the
Defendant
such
a
day
,
and
at
such
a
place
having
Communication
with
the
Plantiff
concerning
his
behaviour
in
his
office
,
said
to
him
,
you
have
received
money
for
the
engrossing
of
Feodaries
,
and
I
will
prove
that
to
be
Cousenage
,
and
tunc
et
ibidem
said
you
are
a
Couzner
,
and
live
by
Couzning
;
and
Hendon
after
verdict
,
for
the
Plantiff
moved
in
arrest
of
judgement
,
first
,
he
said
the
office
appertains
to
2.
Auditors
,
as
appears
by
the
Statute
of
32.
H.
8.
and
by
Auditor
Curles
case
,
and
if
that
appertain
to
2.
then
this
doth
not
appertain
to
the
Plantiff
alone
,
and
secondly
,
the
Plantiff
had
expresly
laid
in
his
declaration
what
fees
are
due
to
the
office
for
the
engrossing
of
Feodaries
,
and
then
when
it
appears
by
his
own
shewing
that
the
fees
were
due
,
and
that
the
Defendant
said
of
him
,
that
he
took
money
for
the
engrossing
of
Feodaries
,
this
may
not
be
any
scandall
to
him
,
and
he
cited
Suaggs
case
,
Coo.
4.
where
the
Plantiff
shewed
that
his
wife
was
living
,
and
that
the
Defendant
said
of
him
,
that
he
had
killed
his
wife
,
here
in
this
wise
no
action
lies
,
for
it
appears
by
his
own
shewing
,
that
the
wife
was
alive
,
and
so
no
scandal
,
and
so
in
our
case
,
when
he
had
shewed
that
such
fees
were
due
for
the
engrossing
of
Feodaries
,
it
was
no
scandal
to
him
,
for
the
Defendant
to
say
,
that
he
took
money
for
the
ingrossing
of
them
,
and
thereby
the
words
are
general
of
Couznage
,
and
they
may
have
other
interpretation
as
the
Couzning
at
the
Cock
pits
,
or
the
like
,
and
then
those
general
words
shall
not
be
applied
to
his
office
,
and
not
left
to
such
an
exposition
as
is
equivocal
,
and
he
vouched
Serjeant
Heales
case
,
Mr.
Heales
Warrants
have
undone
many
a
man
,
and
adjudged
that
an
actition
lies
,
because
it
had
relation
to
his
profession
,
but
he
said
that
this
was
afterwards
reversed
in
the
Exchequer
chamber
,
because
the
word
Warrants
is
general
,
and
may
be
applied
to
other
things
:
but
Winch
interrupted
him
,
and
said
that
it
was
not
reversed
for
error
,
&
then
Hendon
alleadged
Yardleyes
case
11.
Jac.
in
C.
B.
where
one
said
to
another
,
is
Yardly
your
Attoāney
,
your
Attorney
is
a
briving
knave
,
and
took
20.
l.
of
you
to
Cozen
me
,
and
the
opinion
was
,
that
an
action
will
not
lie
,
and
Winch
interrupted
him
again
,
and
said
it
was
adjudged
the
contrary
,
and
after
Hendon
alleadged
Eliots
case
against
Brown
Hill
.
17.
Jac.
B.
R.
thou
hast
made
false
writings
between
I.
S.
and
his
brother
,
and
adjudged
that
an
action
lies
,
and
he
cited
Mallard
against
Wise
for
these
words
,
10.
Jac.
Mallard
is
a
knave
,
and
forged
my
husbands
Will
against
his
minde
,
and
ruled
that
no
action
lies
,
and
so
13.
Jac.
Harvey
against
Boking
,
and
he
applied
all
those
cases
,
that
the
words
ought
to
scandalize
him
in
his
office
and
profession
,
for
if
words
by
any
intendment
may
have
relation
to
any
thing
else
,
they
shall
not
be
interpreted
to
have
relation
to
his
office
,
and
therefore
here
the
words
are
too
general
,
also
he
shewed
that
when
the
Plantiff
had
said
,
that
the
Defendant
such
a
day
having
communication
concerning
him
in
his
office
,
said
you
have
received
money
for
the
engrossing
of
Feodaries
which
is
Coznage
,
and
tunc
et
ibidem
said
you
are
a
Cozner
,
and
live
by
Cozning
,
these
words
tunc
et
ibidem
shall
not
have
relation
to
all
:
but
only
to
the
last
words
,
and
cited
5.
H.
7.
8.
to
that
purpose
:
and
so
he
concluded
against
the
Plantiff
.
Attoe
Serjeant
to
the
same
purpose
,
but
his
only
argument
was
,
because
the
Plantiff
had
alleadged
that
the
fees
were
due
to
him
,
and
so
no
scandal
according
to
Snags
case
.
But
it
was
resolved
by
Hobert
and
Winch
being
only
present
,
for
Hutton
was
in
the
Chancery
,
and
Iones
was
not
yet
returned
from
Ireland
;
that
the
Plantiff
shall
have
judgement
,
and
first
it
was
agreed
by
them
and
by
Hutton
the
day
before
,
that
tunc
et
ibidem
shall
have
relation
to
the
same
time
that
the
first
words
were
spoken
,
and
secondly
,
by
Hobert
and
Winch
though
the
office
appertaines
to
2.
yet
this
is
a
scandal
to
him
,
for
the
scandal
is
to
the
person
,
and
not
to
the
office
,
and
the
persons
are
distinct
and
several
,
though
the
office
is
joynt
,
and
they
may
not
joyn
in
an
action
,
for
of
the
other
no
words
are
spoken
,
and
so
they
agreed
that
this
objection
is
of
no
force
,
and
as
to
the
other
objection
which
was
made
by
Hendon
,
and
by
Attoe
,
Hobert
said
that
true
it
is
as
had
been
cited
,
but
he
said
for
his
part
he
never
was
,
nor
yet
is
satisfied
in
the
Law
of
that
case
,
for
be
she
in
life
or
not
,
yet
the
scandal
is
the
same
to
the
standers
by
,
who
perchance
did
not
know
that
she
was
living
,
and
so
the
scandal
never
the
less
:
but
admitting
the
case
to
be
good
Law
,
yet
our
case
differs
from
the
reason
of
that
,
for
in
our
case
he
had
shewed
that
2.
s.
fees
were
due
to
him
for
the
ingrossing
of
Feodaries
,
and
the
Defendant
said
,
that
he
took
money
for
the
ingrossing
of
Feodaries
which
is
Couzning
,
and
so
shall
be
intended
that
he
took
more
then
was
due
,
and
this
is
extortion
;
and
as
to
Eliots
and
Browns
case
he
agreed
,
that
to
say
he
had
made
false
writings
no
action
will
lie
,
for
it
is
no
scandal
to
him
in
his
profession
,
for
it
doth
not
appertaine
to
an
Attorney
,
to
make
writings
,
no
more
then
it
appertaines
to
an
Appothecary
to
give
Physick
,
and
so
it
is
no
scandal
to
him
in
his
profession
:
and
he
agreed
the
case
of
Mallard
against
Wise
,
he
forged
my
husbands
Will
,
no
action
will
lie
,
for
the
words
are
repugnant
and
contrary
,
for
if
it
be
forged
,
it
is
not
the
Will
of
her
husband
,
but
in
our
case
the
words
had
a
plaine
sence
to
common
understanding
,
and
shall
be
intended
to
refer
to
his
office
,
for
if
he
had
said
that
he
took
money
for
ingrossing
of
Feodaries
,
which
is
desceit
without
question
,
that
had
been
actionable
,
but
there
may
not
be
Couzning
without
desceit
.
And
he
cited
Boxes
case
,
where
one
said
of
an
Attorney
,
that
he
was
a
maintainer
of
suits
,
and
a
Champerter
,
action
lies
,
for
it
shall
be
taken
to
be
a
scandal
to
him
in
his
profession
,
for
though
an
Attorney
may
maintain
suites
,
yet
he
ought
not
to
be
a
Champerter
,
and
he
further
said
,
that
he
who
will
maintain
an
action
for
words
ought
to
be
scandalized
in
his
publick
profession
,
and
he
cited
a
case
which
was
in
the
Kings
Bench
,
Brad
against
Hay
,
and
the
Plantiff
declared
,
that
he
was
Bailiff
to
such
a
one
,
and
that
he
had
the
buying
and
the
selling
of
his
Corn
,
and
that
the
Defendant
said
of
him
,
that
he
sold
by
false
measures
,
and
adjudged
that
no
action
lies
,
for
it
is
not
a
scandal
to
him
in
his
publick
profession
,
and
so
36.
Eliz.
one
said
of
a
Merchant
that
he
kept
a
false
debt
book
,
and
because
he
may
be
a
Merchant
without
a
debt
book
,
it
was
ruled
that
an
action
doth
not
lie
,
but
if
he
had
said
of
him
that
he
deceived
men
by
buying
and
selling
,
these
words
had
been
actionable
,
and
he
said
that
two
things
are
required
to
every
publick
profession
,
science
,
and
fidelity
,
and
when
a
man
who
hath
a
publick
profession
is
scandalized
,
in
either
of
those
an
action
of
the
case
lies
,
and
cited
Palmers
case
of
Lincolns
Inne
,
he
being
a
Lawyer
't
was
said
to
him
by
one
,
that
he
had
as
much
Law
as
a
Iackan-apes
,
and
adjudged
to
be
actionable
,
for
it
is
a
scandal
to
him
in
his
profession
,
and
so
Sir
Miles
Fleetwoods
case
,
where
he
who
is
Plantiff
in
this
action
was
Defendant
in
that
,
he
being
receiver
of
the
Court
of
Wards
,
one
said
to
him
,
Mr.
deceiver
hath
Couzned
the
King
,
and
hath
dealt
falsly
with
him
,
and
adjudged
that
an
action
upon
the
case
lies
,
and
yet
he
did
not
shew
,
wherein
he
had
Couzned
him
or
dealt
deceitfully
with
him
,
but
yet
because
it
appears
to
the
Court
that
he
might
deal
deceitfully
,
and
Couzen
the
King
,
therefore
actionable
,
and
he
cited
Birchleys
case
,
you
have
dealt
corruptly
,
an
action
lies
,
and
yet
he
did
not
shew
wherein
he
had
dealt
corruptly
,
and
here
he
had
said
he
was
a
Couzner
by
the
receipt
of
money
,
which
is
an
express
scandal
to
him
in
his
office
.
Winch
accordingly
to
every
office
of
trust
is
a
condition
in
Law
annexed
,
that
he
deal
honestly
and
justly
,
and
he
cited
Wingates
case
in
the
Kings
Bench
,
one
said
to
another
,
is
Wingate
your
Attorney
,
and
the
other
said
that
he
was
,
and
the
other
replied
,
take
heed
and
follow
him
well
,
for
else
he
will
make
you
throw
your
purse
over
your
bosome
;
and
it
was
adjudged
that
an
action
lies
,
for
it
is
a
scandal
to
him
in
his
profession
,
and
it
shall
be
taken
as
much
as
if
he
had
said
,
he
will
make
you
spend
all
the
money
in
your
purse
,
if
you
look
not
the
better
to
him
,
and
so
applied
this
to
the
principal
case
:
and
in
this
case
judgement
was
commanded
to
be
entered
for
the
Plantiff
in
the
action
,
if
no
other
cause
be
shewed
before
such
a
day
.
An
action
upon
the
case
was
brought
for
these
words
,
the
Plantiff
did
load
a
ship
of
my
Fathers
with
Barley
,
and
did
steal
,
and
Couzned
7.
quarters
thereof
in
measure
,
and
upon
not
guilty
pleaded
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
,
that
the
word
Cozned
being
joyned
with
the
word
stole
,
had
taken
away
the
force
of
that
,
and
made
it
but
Cozning
,
but
Hutton
contrary
,
and
that
it
shall
be
understood
,
that
he
stole
7.
quarters
in
measure
,
and
quantity
,
and
Winch
seemed
to
agree
,
and
it
was
adjourned
:
and
an
other
day
awarded
that
an
action
lies
.
Godfrey
Wade
Alias
Mack-Williams
case
.
GOdfrey
Wade
and
others
in
an
ejectione
firme
,
and
the
case
upon
a
special
verdict
was
to
this
effect
,
Henry
Mack-Williams
the
father
was
seised
of
land
,
and
being
so
seised
he
conveyed
that
to
the
use
of
himself
for
life
,
the
remainder
to
his
wife
for
life
,
the
remainder
to
the
heires
of
their
two
bodies
engendred
,
the
remainder
to
the
heires
of
the
bodie
of
Mack-Williams
the
Feoffor
,
and
the
remainder
to
his
right
heirs
in
fee
,
and
he
had
a
son
by
his
wife
named
Henry
,
and
5.
daughters
,
and
he
died
,
and
afterwards
the
son
in
the
life
of
his
Mother
by
deed
indented
,
leased
to
White-Head
for
31.
years
rendring
rent
,
and
afterwards
he
leavies
a
fine
to
the
use
of
himself
,
and
his
heirs
in
fee
,
and
died
,
and
after
whose
death
the
Mother
suffered
a
recovery
within
six
moneths
,
in
which
4.
of
their
husbands
were
vouched
,
and
the
recovery
was
to
the
use
of
the
feme
for
life
,
the
remainder
to
every
one
of
the
daughters
in
fee
,
and
the
sole
doubt
was
,
whether
the
lease
made
by
Henry
the
son
is
defeated
by
this
recovery
,
and
it
was
argued
by
Harvey
Serjeant
,
that
the
lease
shall
stand
good
,
notwithstanding
this
recovery
suffered
by
the
Mother
,
for
he
said
,
that
Henry
Mark-Williams
being
issue
in
tail
,
and
also
being
heire
to
the
remainder
in
fee
,
who
made
this
lease
by
indenture
,
in
this
case
this
lease
issues
as
well
out
of
the
estate
taile
,
as
out
of
the
reversion
in
fee
,
and
the
fine
leavied
in
the
life
of
his
Mother
,
binds
and
bars
the
estate
taile
at
the
time
of
the
fine
,
and
then
the
lease
being
drawn
out
of
the
reversion
in
fee
,
which
discended
to
the
daughters
after
the
death
of
their
brother
,
this
reversion
shall
be
charged
with
the
lease
,
and
the
recovery
had
not
destroyed
that
:
and
this
case
will
differ
from
Capels
case
,
for
it
is
agreed
,
if
tenant
in
tail
bee
,
the
remainder
in
fee
,
and
he
in
remainder
in
fee
granted
a
rent
charge
,
and
after
Tenant
in
tail
suffer
a
recovery
,
by
this
the
rent
is
destroyed
,
for
there
he
who
suffered
the
recovery
was
Tenant
in
tail
in
possession
,
but
in
our
case
when
the
son
had
leavied
a
fine
in
the
life
of
his
Mother
,
by
this
fine
the
tail
is
destroyed
,
and
the
Mother
is
become
Tenant
in
tail
after
possibility
of
issue
extinct
,
which
is
only
an
estate
for
life
in
quantity
,
and
then
though
she
suffers
a
recovery
,
yet
this
doth
not
destroy
the
lease
made
by
Tenant
in
tail
,
when
there
was
also
a
fine
leavied
to
confirm
that
.
Secondly
,
he
argued
,
that
when
the
issue
in
tail
in
the
life
of
his
Mother
made
a
lease
for
yeares
by
indenture
,
and
then
leavied
a
fine
,
and
died
,
and
then
the
Mother
being
Tenant
in
tail
,
and
joyntress
within
the
Statute
of
11.
H.
7.
as
in
our
case
she
is
,
and
she
suffers
a
recovery
,
and
vouches
the
daughters
in
reversion
,
and
lessee
for
years
enters
after
the
death
of
the
feme
,
by
force
of
11.
H.
7.
for
lessee
for
years
is
a
person
who
may
enter
within
the
express
words
of
that
Statute
,
which
gives
entrie
to
any
person
who
hath
an
interest
,
and
see
for
that
Coo.
3.
Lincoln
Colledge
case
,
and
Dyer
148.
Thirdly
,
he
held
that
though
it
should
be
so
,
that
lessee
for
years
may
not
enter
by
force
of
the
Statute
,
of
the
11.
H.
7.
yet
he
may
falsifie
a
recovery
by
the
Statute
,
of
the
21.
H.
8.
which
enables
lessee
for
years
to
falsifie
as
well
as
lessee
for
life
,
and
it
appears
by
the
verdict
,
that
the
sole
intent
of
this
recovery
,
was
to
defeat
the
lease
for
years
,
for
this
was
suffered
within
6.
moneths
after
the
death
of
Henry
Mark-Williams
the
son
,
and
also
the
recovery
was
to
the
very
same
uses
which
they
were
before
,
and
therefore
the
lessee
may
falsifie
the
recovery
,
it
is
true
in
Capels
case
,
the
lessee
of
him
in
remainder
may
not
falsifie
a
recovery
suffered
by
Tenant
in
tail
,
though
it
was
suffered
of
purpose
to
defeat
the
lease
for
years
,
but
in
our
case
the
lease
for
years
doth
not
enure
by
vertue
of
the
estate
tail
,
for
that
is
bound
by
the
fine
,
but
this
issues
out
of
the
reversion
in
fee
,
and
for
that
reason
the
lessee
shall
falsifie
this
recovery
,
in
an
ejectione
firme
,
or
in
an
avowry
,
and
he
cited
Kings
case
,
Hill
37.
Eliz.
B.
R.
Rot.
293.
Tenant
in
tail
infeoffed
his
son
,
and
after
he
disseāsed
him
,
and
afterward
leavied
a
fine
of
that
with
Proclamations
,
the
son
entered
upon
the
Conusee
,
and
made
a
feofment
,
and
the
Proclamations
passed
,
and
the
feoffee
of
the
son
let
for
years
,
and
then
the
father
and
the
son
died
,
and
the
issue
in
tail
brought
a
formedon
,
and
recovered
,
and
it
was
agreed
,
that
lessee
for
years
may
falsifie
this
recovery
,
and
he
said
that
he
had
seen
a
Note
in
Iustice
Manwoods
Study
,
that
it
was
agreed
in
his
Circuit
,
that
lessee
for
years
to
begin
at
a
day
to
come
may
falsifie
a
recovery
,
and
so
be
concluded
his
argument
.
Hendon
Serjeant
to
the
contrary
,
and
he
divided
the
case
in
three
points
.
First
,
when
Tenant
in
tail
had
issue
a
son
,
and
a
daughter
or
two
sons
,
and
the
eldest
son
in
the
life
of
his
father
,
who
is
Tenant
in
tail
levies
a
fine
,
and
dies
without
issue
,
whether
this
shall
binde
the
youngest
son
,
and
he
thought
that
it
should
not
,
and
yet
he
agreed
,
that
an
estate
tail
may
be
barred
by
a
fine
,
though
he
who
leauied
the
fine
was
not
seised
at
the
time
of
the
estate
tail
,
and
this
by
the
very
words
of
the
Statute
,
of
the
32.
H.
8.
see
the
case
of
fines
Coo.
3
,
and
Grants
case
vouched
,
Lampets
case
,
and
so
is
the
case
of
Hunt
and
King
37.
Eliz.
cited
by
my
brother
Harvey
,
and
so
he
agreed
cleerly
,
if
the
son
who
leavies
the
fine
,
survives
the
father
who
was
Tenant
in
tail
,
that
then
in
this
case
this
binds
the
estate
tail
for
ever
:
and
the
reason
is
upon
the
very
words
of
the
Statute
,
of
32.
H.
8.
or
any
was
intailed
to
the
Ancestor
of
the
issue
in
tail
,
and
in
this
case
,
when
the
issue
doth
survive
the
Ancestor
,
and
dies
,
this
shall
binde
the
issue
,
because
it
was
intailed
to
him
who
leavied
the
fine
who
was
his
Ancestor
,
for
he
may
not
make
any
Conveyance
to
the
estate
tail
,
except
he
make
mention
of
him
,
who
leavied
the
fine
,
because
that
he
survived
the
father
who
was
Tenant
in
tail
,
but
when
he
who
leavies
the
fine
dies
in
the
life
of
his
father
,
viz.
the
eldest
son
,
then
the
youngest
son
may
convey
an
estate
taile
to
him
without
making
mention
of
his
eldest
brother
:
and
this
appears
by
the
46.
E.
3.
9.
4.
H.
6.
10.
11.
H.
7.
6.
see
the
case
of
Buckner
Coo.
8.
from
which
cases
he
inferred
,
that
if
the
youngest
brother
may
have
an
action
at
the
Common
Law
,
without
making
mention
of
his
eldest
brother
,
then
such
a
construction
shall
be
made
of
this
word
Ancestor
,
in
the
Statute
of
32.
H.
8.
that
it
shall
be
taken
for
such
an
Ancestor
,
by
whom
the
issue
in
tail
claimes
,
and
for
no
other
Ancestor
,
and
for
this
he
put
the
case
,
if
land
be
given
to
a
man
and
to
his
heirs
,
females
begotten
of
his
body
,
and
he
had
issue
a
son
,
and
a
daughter
,
and
the
son
leavied
a
fine
,
and
died
,
this
shall
barre
the
estate
tail
for
the
cause
aforesaid
,
and
for
authorities
in
this
kinde
he
cited
the
reports
of
Dallison
of
ā
Eliz.
printed
at
the
end
of
Ashles
Tables
in
Stamfords
case
in
the
end
of
the
same
case
,
where
the
very
difference
is
agreed
,
Mich.
29.
Jac.
C.
P.
where
the
eldest
son
dies
in
the
life
of
the
father
,
and
where
not
:
and
Hobert
demanded
of
him
by
what
warrant
those
reports
of
Dallison
came
in
print
.
And
then
Hendon
cited
the
opinion
of
some
of
the
judges
,
in
the
case
of
Zouch
and
Banfield
:
and
see
Coo.
3.
the
case
of
fines
according
to
this
difference
:
and
he
said
,
that
Sir
George
Browns
case
will
warrant
that
in
the
very
letter
of
it
,
for
there
it
is
said
,
that
no
issue
inheritable
by
force
of
the
tail
may
enter
after
the
fine
,
by
which
he
inferred
,
that
if
he
is
such
an
issue
that
is
not
inheritable
,
he
is
out
of
the
Statute
,
and
so
he
concluded
the
first
point
,
that
the
fine
being
leavied
by
the
eldest
son
,
in
the
life
of
his
Mother
,
that
shall
not
barre
the
estate
tail
.
Secondly
,
he
argued
that
as
this
case
is
,
the
feme
is
not
within
the
Statute
,
of
the
11
H.
7.
because
that
at
the
time
when
she
suffered
a
recovery
,
she
was
seised
of
an
estate
,
in
general
tail
by
force
of
the
remainder
which
was
limitted
to
her
and
her
husband
,
and
to
the
heirs
of
their
two
bodies
ingendred
,
which
took
effect
in
the
feme
,
at
the
time
of
the
death
of
the
husband
;
and
this
being
an
estate
in
tail
of
the
purchase
of
the
huband
which
took
effect
in
remainder
,
this
may
not
be
a
joynture
within
the
Statute
of
of
the
27.
H.
8.
and
then
if
she
be
not
a
joynteress
within
that
Statute
though
this
estate
was
of
the
purchase
,
and
of
the
acquisition
of
her
husband
,
yet
this
is
out
of
the
danger
of
the
Statute
,
of
the
11.
H.
7.
for
the
words
are
,
any
woman
who
had
any
estate
in
dower
,
or
in
tail
joynt
with
her
husband
of
the
purchase
,
and
of
the
acquisition
of
the
husband
:
which
words
of
the
purchase
of
the
husband
had
relation
to
Tenant
in
dower
,
or
to
a
woman
who
was
a
joyntress
,
and
was
not
the
intent
of
the
Statute
,
to
make
such
a
remainder
to
be
within
the
danger
of
the
Statute
,
when
the
husband
himself
in
his
life
may
dock
this
by
a
recovery
,
and
therefore
it
is
not
within
the
Statute
.
And
as
to
the
Third
point
he
argued
,
that
admitting
that
she
was
a
joyntress
,
within
the
Statute
of
the
27.
H.
8.
yet
when
the
feme
suffers
a
recovery
with
the
assent
of
him
in
remainder
in
fee
,
this
recovery
is
out
of
the
body
of
the
Statute
,
of
11.
H.
7.
any
which
shall
discontinue
,
or
release
with
warranty
,
and
that
all
such
recoveryes
shall
be
void
,
and
shall
be
taken
for
fained
recoveries
,
and
this
may
not
be
imagined
a
fained
recovery
,
where
he
in
remainder
in
tail
is
vouched
by
him
who
is
Tenant
for
life
,
Jennings
case
Coo.
10.
and
such
recovery
,
as
is
there
resolved
,
is
out
of
the
Statute
of
the
14.
Eliz.
and
is
good
by
the
Common
Law
,
and
so
in
our
case
,
but
admitting
this
to
be
within
the
Statute
of
the
11.
of
H.
7.
yet
the
proviso
of
the
same
Statute
had
made
that
good
,
for
there
is
an
express
proviso
,
that
a
recovery
with
the
assent
of
the
heir
inheritable
,
if
this
appear
upon
Record
this
shall
not
be
within
the
Statute
,
and
in
our
case
,
this
is
with
the
assent
of
the
heir
inheritable
,
and
also
this
appears
to
be
of
record
,
and
so
the
recovery
is
out
of
the
danger
of
the
Statute
,
of
the
11.
H.
7.
See
Doctor
and
Student
,
a
book
which
was
written
but
a
litle
time
after
the
making
of
this
Statute
,
and
Dyer
89.
Vernons
case
,
and
he
said
that
the
intent
of
the
same
Statute
,
and
of
the
proviso
of
the
same
Statute
was
to
have
issues
and
heirs
,
and
not
termors
,
who
had
only
a
future
interest
to
falsifie
recoveries
,
and
so
he
concluded
that
the
recovery
is
out
of
the
same
Statute
,
and
that
the
proviso
of
the
same
Statute
had
made
that
good
,
by
the
assent
of
the
heir
,
but
admitting
,
this
should
be
against
him
,
that
this
recovery
shall
be
within
the
Statute
,
yet
the
lessee
in
our
case
shall
not
falsifie
,
nor
take
advantage
of
the
forfeiture
by
force
of
the
same
Statute
,
but
it
hath
been
objected
by
Harvy
,
that
the
wife
in
this
case
had
only
an
estate
for
life
,
or
Tenant
in
tail
after
possibility
of
issue
extinct
,
and
he
answered
that
the
resolution
in
Beamounts
case
Coo.
119.
is
contrary
,
for
it
is
there
expresly
agreed
,
that
she
was
Tenant
in
tail
after
the
fine
leavied
by
the
issue
,
and
so
was
it
also
resolved
in
Pophams
case
9.
Eliz.
but
there
it
was
doubted
whether
she
was
Tenant
in
tail
,
within
the
32.
H.
8.
who
might
make
a
lease
,
but
all
agreed
that
she
was
Tenant
in
tail
,
who
may
suffer
a
recovery
,
and
binde
the
remainder
:
and
then
when
the
feme
suffers
such
a
recovery
as
in
our
case
,
that
recovery
shall
take
away
a
term
for
years
which
was
made
by
the
issue
in
tail
,
Mich.
20.
Jac.
C.
P.
in
the
life
of
his
mother
,
notwithstanding
she
was
a
joynteress
within
the
11.
H.
7.
also
he
said
,
that
this
lease
for
years
being
made
by
Henry
Mark-Williams
,
the
son
who
was
heir
to
the
estate
in
tail
,
and
also
to
the
reversion
in
fee
,
being
made
by
deed
indented
rendring
rent
,
this
shall
be
a
lease
which
issued
out
of
the
estate
in
fee
simple
,
and
not
out
of
the
estate
tail
,
and
this
shall
be
out
of
the
estate
tail
by
estoppel
,
being
by
deed
indented
,
for
an
estate
shall
not
enure
partly
by
way
of
interest
,
and
this
lease
to
begin
after
the
death
of
the
feme
,
he
may
not
take
advantage
of
the
forfeiture
,
for
though
the
words
of
the
Statute
are
,
that
all
such
recoveries
shall
be
void
,
yet
this
shall
not
be
void
without
entry
,
and
he
who
will
have
benefit
,
by
this
ought
to
be
mabled
to
enter
presently
,
so
soon
as
the
recovery
is
suffered
,
for
as
there
ought
to
be
a
person
,
in
esse
,
who
shall
take
benefit
of
the
same
Statute
,
as
appears
by
Coo.
3.
Lincoln
Colledge
case
,
so
there
ought
to
be
a
present
estate
in
esse
at
the
time
of
the
recovery
,
for
the
words
of
the
Statute
are
to
whom
the
interest
shall
appertain
,
but
in
our
case
the
interest
doth
not
appertain
to
the
lessee
,
who
had
only
a
future
term
,
and
therefore
he
shall
not
take
the
benefit
by
any
forfeiture
,
within
the
Statute
of
11.
H.
7.
and
the
rather
in
our
case
,
because
there
is
a
rent
reserved
;
also
all
this
matter
is
found
by
special
verdict
what
estate
the
son
haā
&
when
he
made
the
lease
by
indenture
,
Dyer
244.
Coo.
155.
and
Bredons
case
,
in
Treports
case
lessee
for
life
,
and
he
in
reversion
by
indenture
let
for
years
,
this
is
no
estoppel
,
and
it
shall
be
said
to
be
the
lease
of
one
,
and
the
confirmation
of
the
other
:
and
here
the
lease
shall
be
said
to
issue
out
of
the
reversion
in
fee
,
and
not
out
of
the
estate
tail
,
and
he
vouched
a
case
adjudged
10.
Jac.
when
Flemming
was
chief
Iustice
of
the
Kings
Bench
between
Errington
and
Errington
,
and
the
case
was
,
that
a
man
conveyed
land
to
the
use
of
himself
,
and
his
wife
in
tail
,
the
remainder
to
his
right
heirs
,
and
had
issue
a
son
and
a
daughter
,
and
he
died
,
and
the
son
let
for
years
to
begin
after
the
death
of
his
Mother
,
and
he
died
without
issue
,
and
the
daughter
leavied
a
fine
,
and
the
wife
who
was
Tenant
in
tail
died
,
and
the
question
was
,
whether
this
lease
for
years
issued
out
of
the
estate
tail
by
way
of
estoppel
,
for
then
the
Conusee
shall
not
avoid
this
,
but
it
was
adjudged
this
lease
was
drawn
out
of
the
reversion
in
fee
,
and
the
Conusee
of
the
daughter
shall
avoid
that
,
which
is
all
one
with
our
case
;
but
admit
that
this
lease
is
good
by
estoppel
out
of
the
estate
taile
,
yet
he
shall
not
take
benefit
of
the
forfeiture
,
within
11.
H.
7.
and
this
differs
from
Sir
George
Browns
case
,
for
there
the
Conuser
entered
by
vertue
of
a
remainder
,
and
not
by
the
estate
tail
which
passed
to
him
by
estoppel
:
and
upon
that
he
concluded
,
that
if
this
is
an
estate
meerly
by
estoppel
,
he
shall
not
have
benefit
by
that
.
Pope
and
Reynolds
before
.
NOw
the
case
between
Pope
and
Reynolds
(
which
see
before
)
was
moved
again
by
Ashley
for
the
Plantiff
in
the
prohibition
,
and
the
case
was
,
that
he
was
owner
of
a
Park
,
and
the
Park
had
been
time
beyond
memory
,
replenished
with
deer
till
the
10th
.
of
Eliz.
at
which
time
that
was
disparked
,
and
that
the
owners
had
used
before
the
disparking
to
pay
a
Buck
in
Summer
,
and
a
Doe
in
winter
,
in
full
satisfaction
of
all
Tithes
due
to
the
Vicar
;
and
the
Parson
had
libelled
in
the
Ecclesiastical
Court
for
Tithes
in
kinde
,
and
also
traversed
the
prescription
,
and
it
was
found
for
the
Plantiff
in
the
prohibition
,
and
it
had
been
moved
in
arrest
of
judgement
,
that
notwithstanding
this
prescription
is
found
for
the
Plantiff
,
yet
he
shall
not
have
judgement
for
two
causes
.
First
,
because
gross
Tithes
belong
to
the
Parson
;
and
not
to
the
Vicar
,
for
the
Vicaridge
is
derived
out
of
the
Parsonage
;
to
this
he
answered
,
that
for
the
most
part
every
Vicaridge
is
derived
out
of
the
Parsonage
,
but
it
is
a
meer
non
sequitur
that
this
doth
,
for
the
Vicarage
,
and
the
Parsonage
may
have
several
patrons
,
Fitzh
45.
also
a
Vicarage
may
be
time
beyond
memory
,
as
in
our
case
40.
E.
3.
2.
7.
and
Fitz.
juris
utrum
.
a
Vicar
may
have
a
juris
utrum
.
and
also
he
said
,
that
in
some
parts
the
Vicar
shall
have
Tithe
Corn
,
and
hay
,
and
not
the
Parson
,
and
so
he
concluded
this
to
be
a
good
prescription
by
the
Common
Law
;
and
then
for
the
second
point
,
he
argued
that
though
the
Park
is
disparked
,
yet
the
modus
decimandi
continued
,
and
he
vouched
Beddingfields
,
and
Fields
case
P.
38.
Eliz.
B.
R.
prescribed
to
pay
10.
s.
for
a
Park
,
this
modus
had
a
continuance
notwithstanding
the
disparking
:
and
18.
Iac.
upon
a
motion
a
prohibition
was
granted
in
such
a
case
.
Hendon
to
the
contrary
;
and
yet
for
the
first
point
he
agreed
,
that
a
prescription
to
pay
Tithes
to
the
Vicar
was
good
,
for
here
it
appeares
,
that
the
Vicarage
is
as
antient
as
the
Parsonage
,
both
being
time
beyond
memory
;
and
it
was
the
opinion
of
all
this
Court
when
the
case
was
first
opened
,
and
so
he
said
,
he
would
not
insist
upon
that
,
but
agree
the
Law
to
be
against
him
,
but
then
for
the
second
point
,
he
held
the
modus
to
be
gone
by
the
disparking
,
for
the
prescription
is
annexed
to
the
Park
,
and
not
to
the
land
,
for
the
prescription
is
to
pay
a
Buck
and
a
Doe
for
all
manner
of
Tiths
of
that
Park
,
and
then
the
prescription
is
in
some
sort
annexed
to
that
meerly
as
land
,
but
quatenus
a
Park
,
and
for
this
he
held
,
if
a
man
will
prescribe
to
pay
10.
s.
for
the
Tithes
of
such
land
,
and
it
is
given
in
evidence
to
be
a
Park
,
this
will
not
maintain
the
issue
,
for
a
Park
is
deceivable
one
way
or
other
,
and
so
are
of
several
natures
,
and
so
Coo.
4.
Lutterels
case
,
a
tenure
to
cover
the
hall
of
the
Lord
,
if
the
hall
is
thrown
down
the
tenure
is
gone
,
and
here
when
the
Park
is
destroyed
,
the
modus
is
also
destroyed
,
but
it
hath
been
objected
here
,
that
the
prescription
is
general
,
and
therefore
though
the
Park
was
disparked
,
yet
the
modus
had
continued
,
to
this
he
answered
,
that
this
prescription
shall
have
such
construction
as
a
grant
shall
have
,
and
though
it
is
general
,
yet
it
is
sub
modo
subject
to
this
limitation
,
that
this
alwayes
continue
and
remain
a
Park
,
and
it
was
resolved
43.
Eliz.
that
the
Commoner
may
not
grant
over
his
Common
,
except
he
grant
over
his
Tenement
,
for
they
may
not
be
severed
,
and
so
indeed
is
Nevils
case
in
the
Commentaries
:
a
man
prescribed
to
have
estovers
to
burn
in
his
house
,
if
the
owner
destroy
the
house
the
estovers
are
gone
,
for
the
prescription
is
annexed
to
the
house
,
and
so
in
our
case
the
prescription
is
annexed
to
the
Park
,
and
not
to
the
land
,
for
18.
H.
6.
21.
a
Park
may
not
be
without
the
grant
of
the
King
,
and
the
Common
Law
saith
,
if
a
man
prescribe
to
have
Tithes
in
a
Vineyard
,
if
the
Vineyard
be
converted
to
another
use
,
the
Tithes
are
gone
,
for
it
is
said
tantum
est
prescriptio
,
quantum
est
possessio
,
and
vouched
Coneys
case
,
14.
Caro.
who
prescribed
to
be
discharged
of
paying
Tithes
for
a
meadow
,
and
afterwards
this
was
converted
to
arrable
,
and
the
opinion
of
the
Court
was
,
that
the
prescription
is
gone
,
and
the
rather
in
our
case
,
because
it
is
by
the
act
of
the
party
himself
that
the
Park
is
destroyed
,
&
yet
he
agreed
the
principal
case
in
Lutterels
case
,
Coo.
4.
for
there
a
new
will
is
only
a
translation
of
the
old
,
and
no
destruction
of
the
thing
which
was
before
:
but
in
our
case
the
Park
it self
is
destroyed
by
the
act
of
the
party
himself
,
and
therefore
the
prescription
which
was
annexed
to
this
is
gone
forever
.
Also
this
prescription
is
against
Common
right
,
and
therefore
shall
be
taken
strictly
,
as
Teringhams
case
Coo.
4.
a
man
had
Common
appurtenant
in
another
mans
land
;
and
he
purchased
parcel
of
the
same
land
,
the
Common
is
gone
,
because
this
Common
is
against
Common
right
,
but
otherwise
of
a
Common
appendant
,
and
he
cited
Wilds
case
Coo.
8.
according
to
our
case
,
that
a
prescription
to
pay
a
Buck
,
and
a
Doe
for
the
Tithes
of
a
Park
is
against
Common
right
,
for
though
Tithes
are
not
due
Iure
divino
;
yet
they
are
due
jure
humano
&
Communi
;
and
therefore
the
prescription
is
not
founded
in
Law
,
and
it
shall
not
be
intended
to
the
Park
,
when
that
is
destroyed
and
converted
to
arrable
,
as
if
a
man
made
a
feofment
of
land
with
warranty
,
and
afterwards
the
land
is
improved
and
made
of
greater
value
,
then
that
was
at
the
time
of
the
feofment
;
if
in
this
case
the
feoffee
is
evicted
and
lease
that
,
and
recovery
in
value
upon
the
warranty
,
he
shall
recover
in
this
case
,
only
the
value
that
this
was
at
the
time
of
the
feofment
made
,
and
not
according
to
the
value
,
that
the
land
is
of
at
this
day
by
the
improvement
,
32.
E.
3.
Entry
81.
and
in
our
case
it
shall
be
intended
,
that
by
composition
at
the
first
this
prescription
had
beginning
,
and
the
composition
only
extended
to
the
Park
,
and
not
to
a
new
thing
,
and
for
that
reason
the
prescription
is
gone
in
this
case
,
and
he
cited
a
case
in
this
Court
,
M.
10.
Iac.
Rot.
1223.
in
a
prohibition
between
Roux
C.
D.
the
Plantiff
suggested
,
that
such
land
was
parcel
of
a
Park
as
in
our
case
,
and
that
the
owner
had
used
to
pay
the
shoulder
of
every
Doe
which
was
killed
,
and
2.
s.
annually
for
all
Tithes
,
the
Defendant
pleaded
that
this
was
disparked
,
and
the
first
opinion
of
the
Court
was
,
that
the
Defendant
ought
to
plead
in
certain
how
that
was
disparked
,
secondly
,
this
was
doubted
whether
the
modus
as
to
the
2.
s.
was
gone
in
regard
,
that
the
shoulder
of
the
Doe
is
gone
by
the
disparking
,
out
of
which
he
collected
that
the
modus
is
annexed
to
the
Park
,
and
not
to
the
land
,
and
so
he
concluded
,
and
prayed
a
consultation
.
Winch
said
to
him
the
prescription
is
found
against
you
,
and
therefore
you
ought
to
have
demurred
;
Hendon
,
if
the
prescription
is
gone
,
the
Plantiff
shall
not
have
a
prohibition
;
and
at
another
day
judgement
was
commanded
to
be
entered
for
the
Plantiff
,
The
Bishop
of
Glocester
against
Wood.
IN
a
Trover
and
conversion
brought
by
the
Bishop
of
Glocester
against
Wood
,
upon
a
special
verdict
,
the
case
in
effect
was
,
that
the
predecessor
of
the
now
Bishop
was
seised
of
the
Mannor
,
of
D.
and
he
let
20.
acres
of
that
to
A.
and
B.
during
the
lives
of
3.
of
their
Children
rendring
27.
s.
renā
per
annum
,
and
also
paying
and
delivering
to
the
Bishop
and
to
his
successors
,
two
of
the
best
beasts
upon
the
death
of
every
one
of
the
Cestuy
que
vies
,
and
over
the
jury
found
,
that
after
the
lease
of
the
20.
acres
,
the
same
predecessor
let
all
the
Mannor
,
rendring
the
antient
rent
to
Wood
the
Defendant
,
and
after
one
of
the
Cestui
que
vies
died
,
and
he
seised
two
of
the
Cattle
for
a
herriot
,
and
whether
this
appertained
to
Wood
the
lessee
of
the
Mannor
,
or
to
the
Bishop
was
the
question
,
and
it
was
argued
by
Serjeant
Hendon
,
that
this
appertaines
to
the
Plantiff
,
and
not
to
Wood
:
and
as
to
that
the
single
point
,
is
a
Bishop
:
is
seised
of
a
Mannor
in
the
right
of
his
Bishoprick
,
and
lets
parcel
of
that
for
life
,
whether
the
reversion
of
this
parcel
be
alwayes
parcel
of
the
Mannor
notwithstanding
this
lease
,
and
he
argued
that
it
was
not
,
and
yet
he
agreed
,
that
if
another
let
,
as
aforesaid
,
the
reversion
continues
alwayes
parcel
of
a
thing
in
possession
,
and
that
in
the
case
of
the
King
himself
,
as
appears
by
Dyer
230.
if
the
King
lets
parcel
of
a
Mannor
for
life
,
the
reversion
of
this
parcel
passeth
to
the
King
,
for
the
reversion
had
all
times
continuance
in
the
same
capacity
,
and
no
alteration
is
made
of
this
by
force
of
the
lease
,
but
where
the
lease
for
life
is
a
discontinuance
,
there
he
gaines
a
new
reversion
,
and
this
shall
not
be
parcel
of
the
Mannor
,
and
for
that
if
a
man
is
seised
of
a
Mannor
in
the
right
of
his
wife
,
and
he
lets
parcel
for
life
,
this
is
a
discontinuance
,
and
he
had
gained
the
reversion
in
his
own
right
,
and
for
that
reason
the
reversion
may
not
be
parcel
of
the
Mannor
,
as
appears
by
18.
Assises
:
and
also
he
held
if
Tenant
in
taile
lets
parcel
of
a
Mannor
for
life
,
that
were
the
reversion
of
this
parcel
,
is
not
parcel
of
the
Mannor
for
the
cause
aforesaid
;
and
so
in
our
case
,
when
the
Bishop
granted
parcel
which
is
not
grantable
by
the
Statute
,
now
he
had
discontinued
the
reversion
,
and
had
gained
a
new
fee
simple
which
may
not
be
parcel
of
the
Mannor
,
so
long
as
this
new
fee
simple
had
a
continuance
,
and
this
was
his
first
reason
.
And
secondly
,
he
argued
from
the
intent
of
the
parties
,
because
the
intent
was
,
that
the
lease
to
Wood
shall
be
good
,
and
if
the
reversion
of
the
20.
acres
pass
to
Wood
,
this
will
make
all
the
lease
void
,
for
no
rent
may
be
reserved
out
of
the
reversion
,
but
out
of
the
land
it self
,
3.
Assise
Placito
ultimo
,
a
Bishop
let
land
,
and
a
hundred
,
rendring
rent
,
the
rent
issues
out
of
the
land
,
and
not
out
of
the
hundred
,
and
so
here
it
issues
out
of
the
land
,
and
not
out
of
the
reversion
,
which
made
the
lease
all
void
;
and
so
he
concluded
the
first
point
,
that
the
reversion
of
the
20.
acres
did
not
pass
to
Wood
the
lessee
of
the
Mannors
.
Secondly
,
when
the
Bishop
lets
20.
acres
of
ground
rendring
rent
,
and
this
is
not
confirmed
by
the
Dean
and
Chapter
as
it
ought
,
and
after
he
lets
the
Mannor
,
and
the
successor
accepts
the
rent
of
the
Mannor
,
this
acceptance
shall
not
make
the
lease
of
the
20.
acres
to
be
good
,
admitting
that
the
reversion
do
pass
;
and
when
the
Bishop
had
made
a
lease
for
3.
lives
he
may
not
contract
for
the
reversion
,
and
when
a
lease
is
meerly
void
in
the
creation
,
there
no
acceptance
afterwards
may
make
that
good
;
but
admitting
this
to
be
against
him
,
yet
the
lessee
shall
not
have
the
Herriot
,
for
they
are
not
appendant
to
the
reversion
,
but
due
only
by
way
of
Covenant
;
and
the
words
are
yielding
&c.
and
this
being
a
Collateral
thing
,
it
shall
not
go
with
the
reversion
;
and
the
Herriot
here
may
not
be
had
without
it
be
delivered
by
the
lessee
for
life
.
Secondly
,
it
is
paid
only
in
the
name
of
a
Herriot
,
and
this
is
not
Herriot
service
.
Thirdly
,
it
is
to
be
paid
upon
the
death
of
a
stranger
,
and
not
upon
the
death
of
the
lessee
,
and
all
this
proves
this
Herriot
to
be
collateral
;
and
he
cited
Rawlins
case
,
a
lease
for
years
paying
for
a
fine
20.
l.
this
is
a
summe
in
gross
,
and
shall
not
pass
with
the
reversion
;
and
so
he
prayed
judgement
for
the
Plantiff
.
Attoe
contrary
;
and
yet
he
agreed
the
case
of
the
husband
and
wife
,
and
of
the
Tenant
in
tail
,
for
here
the
lessor
gaines
a
new
fee
simple
,
but
in
our
case
,
when
the
Bishop
lets
for
life
,
this
is
not
any
wrong
,
for
the
successor
may
enter
,
and
he
shall
have
this
lease
not
in
his
natural
capacity
,
but
alwayes
in
his
politique
capacity
,
and
for
that
there
is
an
apparent
difference
between
the
cases
;
and
for
that
reason
,
he
held
that
the
reversion
was
parcel
of
the
Mannor
,
and
so
passed
to
the
lessee
,
and
as
to
that
which
had
been
said
,
that
the
intent
of
the
parties
was
only
,
that
the
Mannor
in
possession
,
and
not
the
parcel
in
reversion
should
pass
to
the
lessee
,
for
that
is
most
beneficial
to
the
lessor
,
to
this
he
answered
that
by
express
words
this
is
granted
,
and
no
construction
shall
be
made
contrary
to
the
very
express
words
of
the
grant
,
and
here
though
the
Defendant
had
not
any
title
at
all
to
the
Herriot
,
yet
the
Plantiff
shall
not
have
a
trover
and
conversion
for
this
,
because
that
he
himself
had
not
right
to
this
,
and
for
that
reason
judgement
shall
be
given
for
the
Defendant
;
and
he
also
argued
,
that
the
lease
of
the
reversion
is
not
meerly
void
,
but
voidable
,
and
then
the
acceptance
extends
to
this
:
see
37.
H.
6.
the
lease
of
a
Priār
2.
E.
6.
Bā
.
Abbots
case
.
Vpon
which
authorities
,
he
said
cleerly
by
the
Common
Law
this
lease
of
the
reversion
is
not
meerly
void
but
voidable
,
and
for
that
the
confirmation
of
the
Dean
and
Chapter
,
after
the
Statute
of
the
first
of
Eliz.
had
not
altered
that
;
and
for
that
a
lease
after
the
Statute
shall
not
be
meerly
void
,
and
see
Lincolns
Colledge
case
,
Coo.
3.
and
in
our
case
there
is
a
possibility
,
that
the
lessee
of
the
Mannor
may
survive
the
cestui
que
vies
of
the
20.
acres
,
and
that
possibility
is
sufficient
to
make
this
good
out
of
the
reversion
,
for
then
the
lessor
may
distrain
for
his
rent
,
but
where
no
possibility
of
a
distress
is
,
there
no
rent
may
be
reserved
;
as
in
Iewels
case
,
the
lease
was
void
,
for
there
was
no
possibility
that
the
lessor
shall
ever
distrain
,
but
in
our
case
the
lease
for
years
is
good
,
for
the
lessor
is
not
without
his
remedy
,
for
he
may
have
an
action
of
debt
upon
this
reservation
;
1.
H.
4.
2.
there
a
measnalty
in
gross
was
let
rendring
rent
,
and
good
,
for
by
possibility
the
Tenant
may
die
without
heires
,
and
yet
this
is
a
remote
possibility
;
12.
E.
3.
execution
112.
a
reversion
granted
by
fine
in
tail
rendring
rent
,
is
good
;
and
Coo.
5.
Elmers
case
,
that
a
reversion
being
let
for
life
rendring
rent
,
is
a
good
reservation
at
the
Common
Law
;
and
he
held
without
question
,
that
where
a
Bishop
is
seised
of
a
Mannor
which
consists
part
of
freeholders
,
and
part
of
Copiholders
,
that
a
lease
of
the
Mannor
rendring
rent
is
good
;
and
in
our
case
the
reservation
of
the
rent
is
intire
,
and
shall
bind
the
successor
:
and
as
to
that
which
had
been
said
,
that
the
Herriot
is
Collateral
,
and
shall
not
go
with
the
reversion
,
to
this
he
answered
,
that
if
it
is
meerly
Collateral
,
then
it
shall
not
go
to
the
successor
of
the
Bishop
but
to
his
executors
,
as
if
the
lessee
had
covenanted
or
obliged
himself
to
pay
this
Herriot
to
the
successor
,
he
may
not
have
benefit
of
this
obligation
,
but
the
executor
of
the
Bishop
who
was
lessor
shall
have
that
,
and
so
he
said
,
that
the
argument
made
by
Hendon
is
against
him
,
for
if
it
be
meerly
Collateral
,
then
this
shall
not
go
to
the
successor
,
and
though
the
lessee
of
the
Mannor
may
not
have
it
,
the
Plantiff
shall
not
have
a
Trover
and
Conversion
as
he
said
before
:
but
he
held
this
good
by
way
of
reservation
,
for
modus
&
conventio
vincunt
legem
,
and
as
to
that
which
hath
been
said
,
that
the
Herriot
is
to
be
paid
upon
the
death
of
a
stranger
,
and
not
upon
the
death
of
the
lessee
himself
,
to
this
he
answered
,
that
this
is
nothing
,
for
the
payment
shall
be
out
of
the
beasts
of
the
lessee
,
and
not
out
of
the
beasts
of
a
stranger
,
and
so
he
concluded
and
prayed
judgement
for
the
Defendant
.
Rives
case
.
SAlmon
avowed
for
a
rent
charge
,
and
he
shewed
that
Sir
Robert
Rives
had
a
rent
charge
granted
to
him
,
and
he
further
shewed
a
discent
of
that
to
the
son
and
heir
of
Sir
Robert
;
and
shewed
that
the
rent
was
behinde
unpaid
to
him
viz.
to
his
son
and
heir
,
and
he
avowed
as
Bailiff
to
the
son
,
and
exception
was
taken
to
the
avowry
,
because
it
is
not
expresly
alleadged
in
whose
time
the
rent
was
due
,
whether
in
the
time
of
the
father
,
or
in
the
time
of
the
son
,
for
if
it
is
behinde
in
the
time
of
the
father
,
the
son
may
not
distrain
for
that
:
but
it
was
resolved
that
the
avowry
was
very
good
,
for
in
asmuch
that
he
had
shewed
,
that
the
rent
was
not
paid
to
the
son
,
this
implied
the
rent
was
due
to
the
son
,
and
not
to
the
father
.
An
Executor
brought
a
Scire
Facias
upon
a
judgement
given
for
the
Testator
in
debt
by
him
,
and
the
Defendant
would
have
pleaded
the
death
of
the
Testator
between
the
verdict
and
the
judgement
,
&
per
Curiam
he
was
not
suffered
,
for
he
may
not
plead
this
in
a
Scire
Facias
,
but
the
Defendant
is
put
to
his
writ
of
error
.
In
Trespass
for
beasts
taken
in
London
,
and
the
Defendant
justified
to
taking
as
a
distress
upon
a
lease
of
land
in
Kent
,
and
the
Plantiff
replied
that
the
Defendant
sold
the
beasts
in
London
,
and
so
not
a
good
plea
to
bring
the
Trial
out
of
Kent
,
and
to
have
that
tried
in
London
,
which
note
.
Batterseys
case
.
AN
action
upon
the
case
was
brought
against
one
Hordecre
upon
an
assumpsit
,
and
he
declared
that
the
Defendant
had
arrested
one
Battersey
,
by
vertue
of
a
Commission
of
Rebellion
out
of
the
Cinque
ports
,
and
that
the
Plantiff
keeping
a
Common
Inne
,
the
Defendant
brought
the
said
Battersey
to
his
Inne
,
and
requested
the
Plantiff
to
keep
him
a
day
and
a
night
,
and
promised
in
consideration
there
upon
that
he
would
save
him
harmless
;
and
he
shewed
that
he
kept
the
prisoner
accordingly
;
and
that
the
said
Battersey
brought
an
action
of
false
imprisonment
against
him
,
and
recovered
against
him
,
upon
which
the
action
accrewed
:
and
upon
non
assumpsit
pleaded
,
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
,
because
he
had
not
shewed
that
the
said
Battersey
was
lawfully
arrested
and
imprisoned
,
and
then
if
a
man
will
without
cause
arrest
a
man
,
and
promise
in
this
case
,
no
action
will
lie
,
for
it
is
no
consideration
because
that
the
imprisonment
is
unlawful
,
but
Hobert
chief
Iustice
,
Hutton
and
Winch
contrary
:
for
be
the
imprisonment
lawful
,
or
not
lawful
,
he
might
not
take
notice
of
that
:
as
if
I
request
another
man
to
enter
into
another
mans
ground
,
and
in
my
name
to
drive
out
the
beasts
,
and
impound
them
,
and
promise
to
save
him
harmless
,
this
is
a
good
assumpsit
,
and
yet
the
act
is
Tortious
,
but
by
Hutton
,
where
the
act
appears
in
it self
to
be
unlawful
,
there
it
is
otherwise
,
as
if
I
request
you
to
beat
another
,
and
promise
to
save
you
harmless
,
this
assumpsit
is
not
good
,
for
the
act
appears
in
it self
to
be
unlawful
,
but
otherwise
it
is
as
in
our
case
,
when
the
act
stands
indifferent
,
but
Hobert
said
,
it
may
be
there
is
a
difference
between
a
publick
officer
,
and
a
private
man
,
for
if
the
Sheriff
arrest
a
man
unlawfully
,
and
promise
as
before
,
this
is
a
good
assumpsit
,
but
perchance
otherwise
of
a
private
man
as
here
,
but
in
the
principal
case
,
the
Defendant
had
pleaded
non
assumpsit
,
and
this
implies
a
Lawful
imprisonment
,
for
otherwise
the
Defendant
might
have
given
the
unlawful
imprisonment
in
evidence
,
and
judgement
was
commanded
to
be
entered
for
the
Plantiff
.
Claworthy
against
Mitchel
.
CLaworthy
against
Mitchel
in
a
replevin
,
the
Defendant
avowed
for
a
rent
,
and
shewed
that
his
father
was
seised
,
and
let
for
years
rendring
rent
,
and
he
died
,
and
that
the
reversion
descended
to
him
,
and
for
rent
behinde
he
avowed
;
in
barre
of
which
avowry
the
Plantiff
said
,
that
the
father
devised
the
reversion
to
another
,
and
the
other
maintained
his
avowry
,
and
traversed
the
devise
;
and
it
was
found
that
the
devise
was
only
of
two
parties
,
and
not
of
the
third
part
,
for
in
very
truth
,
the
land
was
holden
by
Knights
service
,
and
all
this
was
found
by
special
verdict
,
and
for
whom
the
jury
had
found
was
the
question
;
and
it
was
argued
by
Hendon
,
that
this
verdict
is
found
for
the
avowant
,
and
he
vouched
32.
H.
8.
Brook
issue
8.
in
a
precipe
quod
reddat
,
if
the
issue
be
whether
A.
and
B.
infeoffed
the
Tenant
,
and
it
is
found
that
A.
infeoffed
him
,
but
not
that
A.
and
B.
infeoffed
him
,
the
issue
is
found
against
the
Tenant
,
see
14.
E.
4.
and
Dyer
260.
in
debt
upon
a
lease
for
years
of
divers
parcels
of
land
,
and
upon
non
demisit
pleaded
,
it
is
found
quod
demisit
all
except
one
parcel
,
this
is
found
for
the
Plantiff
,
and
ārin
.
15.
Iac.
Rot.
2022.
Allen
against
Soper
in
a
replevin
for
a
horse
,
and
avowed
for
damage
fesant
,
and
the
Defendant
claimed
Common
for
his
beasts
Levant
and
Couchant
upon
his
land
,
and
some
in
this
case
were
found
Levant
and
Couchant
,
and
others
not
,
and
it
was
found
against
the
Plantiff
,
and
he
said
in
this
case
,
when
the
Defendant
had
alleadged
a
devise
of
all
the
land
,
and
upon
this
issue
is
joyned
,
and
it
is
found
that
part
is
devised
and
not
all
,
this
is
found
against
the
Plantiff
,
because
the
issue
is
joyned
upon
a
particular
and
a
special
point
,
whether
all
was
devised
or
no
,
and
yet
he
agreed
that
upon
a
general
issue
as
in
trespass
in
20.
acres
of
land
,
and
the
Defendant
is
found
guilty
but
only
in
one
,
yet
the
Plantiff
shall
have
judgement
,
but
not
where
the
issue
is
joyned
upon
a
particular
point
as
here
,
but
admitting
that
the
Plantiff
shall
have
judgement
,
yet
the
avowant
shall
have
return
for
the
third
part
;
as
in
debt
upon
a
lease
for
years
,
and
it
is
found
that
he
had
not
cause
to
demand
all
the
rent
,
but
that
tāis
ought
to
be
apportioned
,
yet
he
shall
have
judgement
for
the
residue
,
and
so
here
:
Ashley
Serjeant
to
the
contrary
;
the
jury
have
found
for
the
Plantiff
,
for
the
avowant
had
avowed
for
all
,
and
he
alleadged
26.
Assise
,
where
in
an
assise
the
seisin
and
the
diseisin
was
found
,
and
yet
because
there
was
no
Tenant
found
of
the
Frank-tenement
,
the
Plantiff
shall
have
judgement
,
and
as
to
that
that
had
been
said
,
that
the
avowant
shall
have
retorn
for
part
,
he
denied
that
,
for
now
it
appeared
by
the
special
verdict
,
that
the
avowant
and
the
devisee
are
Tenants
in
Common
,
and
Tenants
in
Common
ought
to
joyn
in
avowry
:
and
for
that
reason
the
avowant
shall
not
have
return
for
any
part
,
but
he
ought
to
replead
,
Dyer
177.
see
the
book
;
Hobert
said
,
that
without
question
in
this
case
,
if
the
jury
had
given
a
general
verdict
,
this
had
been
against
the
Plantiff
,
for
it
was
not
devised
,
if
all
was
not
devised
according
to
the
issue
:
and
then
if
it
would
have
been
against
the
Plantiff
in
this
case
of
a
general
verdict
,
the
special
verdict
shall
be
construed
to
be
of
the
same
nature
in
law
,
and
it
shall
be
adjudged
by
us
against
the
Plantiff
,
for
generally
where
the
general
issue
shall
be
against
any
of
the
parties
,
there
the
special
verdict
shall
be
of
the
same
degree
,
and
Winch
and
Hutton
agreed
,
and
by
Winch
who
pleads
in
the
affirmative
,
ought
to
prove
all
to
be
true
,
as
in
the
case
of
Soper
,
which
had
been
remembred
by
my
brother
Hendon
,
and
by
Hutton
,
every
issue
which
is
taken
upon
absque
hoc
ought
to
be
precisely
found
;
and
as
to
the
second
point
,
he
held
that
the
avowant
shall
have
return
for
part
,
for
here
the
jury
haue
found
the
third
part
of
the
reversion
in
him
,
and
by
that
there
appears
a
sufficient
certainty
to
the
Court
to
make
an
apportionment
,
&
then
if
the
Court
may
make
an
apportionment
,
the
avowant
shall
have
return
for
so
much
as
is
due
to
him
,
but
if
the
apportionment
is
to
be
made
by
the
jury
,
and
not
by
the
Court
,
there
the
avowant
shall
not
have
return
for
the
third
part
,
but
if
it
was
in
debt
for
40.
l.
and
the
jury
finde
20.
l.
the
Plantiff
shall
have
judgement
of
that
part
to
be
apportioned
by
the
jury
:
and
so
in
Trespass
,
if
part
be
found
for
the
Plantiff
,
he
shall
have
judgement
,
for
the
demand
is
by
writ
,
but
in
our
case
it
is
an
avowry
,
and
it
is
a
certain
issue
,
and
for
that
reason
the
avowant
shall
not
have
return
for
the
third
part
,
adjourned
;
Hutton
alledged
28.
H.
8.
32.
and
at
another
day
judgement
was
commanded
to
be
entered
for
the
avow
an
t
,
Hobert
,
and
Winch
being
only
present
.
Note
,
that
if
a
man
make
a
lease
of
several
parcels
of
land
in
a
Town
,
and
this
is
for
the
trial
of
a
title
in
an
ejectione
firme
,
he
ought
to
enter
into
every
part
of
those
several
,
and
to
leave
a
servant
,
or
other
to
keep
the
possession
till
he
had
entered
into
every
parcel
:
and
then
to
deliver
the
lease
of
all
,
and
this
is
good
.
Empson
and
Bathrust
before
.
THe
case
of
Empson
against
Bathrust
was
moved
again
by
Harris
,
and
he
praied
judgement
for
the
Plantiff
,
and
it
had
been
said
,
that
this
obligation
is
void
by
the
Statute
of
the
23
H.
6.
but
he
held
that
this
Statute
did
not
extend
to
this
obligation
,
for
it
is
only
where
a
sheriff
takes
a
bond
of
any
person
which
is
in
his
ward
,
and
yet
he
said
,
he
never
found
in
any
book
the
Sheriff
might
exact
any
fee
of
any
person
,
for
he
is
an
officer
of
the
King
,
but
21.
H.
7.
he
may
prescribe
to
have
a
bare
fee
,
but
the
Statute
of
23.
H.
6.
appoints
little
fees
in
some
cases
.
Secondly
,
he
argued
in
this
case
,
that
the
Sheriff
may
take
a
bond
for
by
29.
of
Eliz.
this
is
a
due
debt
to
the
Sheriff
;
and
then
if
the
Sheriff
give
the
partie
day
till
another
day
,
it
is
good
reason
he
shall
have
a
bond
for
that
for
his
security
.
Thirdly
,
he
held
that
the
Sheriff
may
take
this
bond
of
the
party
after
the
extent
,
and
before
the
liberate
by
the
Statute
of
the
29.
Eliz.
for
otherwise
perchance
when
the
Sheriff
had
made
the
extent
,
perchance
the
Conusee
will
not
sue
out
the
liberate
,
and
so
the
Sheriff
shall
be
defeated
of
all
his
labour
and
travel
taken
in
the
extent
:
and
in
the
last
place
he
said
,
that
in
case
the
summe
exceeded
a
100.
l.
the
Sheriff
shall
have
6.
d.
in
the
pound
for
that
which
exceeds
,
and
12.
d.
for
the
first
hundred
pound
:
but
it
was
resolved
by
Hobert
,
Winch
,
and
Hutton
,
that
judgement
shall
be
given
against
the
Plantiff
,
and
first
they
agreed
this
obligation
not
to
be
within
23.
H.
6.
for
the
partie
was
not
in
the
ward
of
the
Sheriff
,
and
so
was
resolved
in
Bewfages
case
.
Secondly
,
it
was
agreed
by
the
said
3.
Iustices
,
that
the
Sheriff
may
not
take
his
salary
appointed
by
the
Statute
,
till
a
compleat
execution
,
viz.
till
the
liberate
,
for
the
words
of
the
Statute
are
in
the
negative
,
and
doth
not
establish
the
fees
,
but
only
tolerates
them
,
and
Hobert
said
,
if
the
Sheriff
made
an
extent
,
and
before
the
liberate
a
new
Sheriff
is
chosen
,
then
in
this
case
the
new
Sheriff
shall
have
the
fees
appointed
by
the
Statute
,
and
not
the
antient
Sheriff
:
and
by
Hobert
,
if
the
Conusee
sue
an
extent
,
and
then
refuse
to
sue
the
liberate
to
the
intent
to
defraud
the
Sheriff
of
his
fees
,
the
Sheriff
shall
have
his
remedy
by
his
action
upon
the
case
;
and
by
Hutton
,
if
the
Sheriff
return
upon
the
extent
,
that
he
is
ready
to
deliver
that
to
the
Conusee
,
this
is
sufficient
to
intitle
him
to
his
action
upon
the
case
,
and
thirdly
,
it
was
holden
by
Hobert
,
and
by
Winch
,
that
the
Sheriff
shall
have
but
6.
d.
in
the
pound
for
all
,
if
it
exceed
100.
l.
for
so
was
the
intent
of
the
Statute
,
but
Hutton
said
,
that
the
Common
practise
is
otherwise
,
and
Hobert
said
,
that
he
did
not
value
that
,
for
he
knew
well
enough
that
the
Sheriff
will
rather
take
more
then
less
then
their
fees
,
and
though
it
had
been
said
,
that
if
such
a
Construction
shall
be
made
,
then
the
Sheriff
shall
have
as
much
for
executing
100.
l.
as
200.
l.
to
this
he
said
,
the
Sheriff
ought
to
take
this
subject
to
this
casually
,
for
it
is
the
very
words
of
the
Statute
:
and
lastly
,
it
was
resolved
by
Hobert
and
Winch
,
that
the
obligation
was
void
by
the
Common
law
,
and
extortion
,
and
a
taking
by
the
Colour
of
his
office
,
see
Dive
and
Manninghams
case
,
and
Hobert
said
,
that
every
bond
that
is
taken
for
any
thing
which
is
malum
in
se
is
void
by
the
Common
law
,
and
this
extortion
is
malum
in
se
;
and
so
void
by
the
very
Common
Law
,
see
Ouleys
case
19.
Eliz.
in
Dyer
;
but
Hutton
doubted
whether
this
bond
is
void
by
the
Common
Law
,
because
the
Statute
of
the
23.
H.
6.
inflicts
so
great
specialty
upon
the
Sheriffs
for
extortion
:
and
after
judgement
was
Commanded
to
be
entred
for
the
Defendant
in
the
action
,
if
no
other
matter
be
shewed
to
the
contrary
before
such
a
day
.
In
trespas
quare
vi
et
armis
one
such
being
his
servant
cepit
et
adduxit
at
D.
in
Essex
,
the
Defendant
pleaded
that
he
was
a
vagrant
in
the
same
Countie
,
and
he
not
having
notice
that
he
was
servant
to
another
,
he
retained
him
;
and
it
was
moved
by
Finch
,
if
I
retain
the
servant
of
another
man
in
the
same
Countie
where
I
and
his
Mr.
inhabit
,
this
is
not
justifiable
,
though
in
veritie
I
had
not
notice
of
that
,
and
this
according
to
the
express
book
of
the
19.
Ed.
3.
47.
Hobert
,
the
book
may
not
be
law
,
for
it
is
a
hard
matter
to
make
me
take
notice
of
every
servant
,
which
is
retained
in
the
same
Countie
,
and
yet
perchance
if
this
retainer
be
upon
the
Statute
of
labourers
,
at
the
Sessions
this
is
notorious
,
and
I
ought
to
take
notice
of
that
at
my
peril
,
but
it
is
otherwise
of
a
private
retainer
;
for
though
it
is
within
the
same
Countie
,
yet
being
a
private
matter
in
fact
,
the
Law
will
not
compel
me
to
take
notice
of
that
at
my
peril
,
otherwise
if
this
be
matter
of
record
,
2.
H.
4.
64.
and
Hobert
and
Winch
seemed
to
agree
,
and
then
Finch
moved
that
the
Plantiff
had
charged
the
Defendant
with
his
servant
by
cepit
et
adduxit
,
and
the
Defendant
excused
himself
,
and
never
traversed
cepit
et
adduxit
,
see
11.
H.
4.
Hutton
and
Hobert
,
the
receiving
and
the
entertaining
of
a
servant
may
not
be
said
to
be
vi
et
armis
.
Mr.
Spencers
case
.
HArvy
Serjeant
came
to
the
barre
,
and
demanded
this
question
of
the
Court
,
in
the
behalf
of
Mr.
Spencer
,
a
man
was
seised
of
land
in
fee
;
and
sowed
the
land
,
and
devised
that
to
I.
S.
and
before
severance
he
died
,
and
whether
the
devisee
shall
have
the
Corn
,
or
the
executor
of
the
devisor
was
the
question
:
and
by
Hobert
,
Winch
,
and
Hutton
,
the
devisee
shall
have
that
,
and
not
the
executor
of
the
devisor
:
and
Harris
said
18.
Elizabeth
Allens
case
,
that
it
was
adjudged
,
that
where
a
man
devised
land
which
was
sowed
for
life
,
the
remainder
in
fee
,
and
the
devisor
died
,
and
the
devisee
for
life
also
died
before
the
severance
,
and
it
was
adjudged
that
the
executor
of
the
Tenant
for
life
shall
not
have
that
,
but
he
in
remainder
:
and
Winch
Iustice
said
that
it
had
been
adjudged
,
that
if
a
man
devise
land
,
and
after
sowe
that
,
and
after
he
dies
,
that
in
this
case
the
devisee
shall
have
the
Corn
,
and
not
the
executor
of
the
devisor
,
nota
bene
.
Dodderidge
against
Anthony
,
Entred
Mich.
19.
Jac.
Rot.
1791.
ENt.
Mich.
19.
Jac.
Rot.
1791.
Peter
Dodderidge
brought
an
action
of
accompt
against
one
Anthony
,
and
he
declared
that
he
deāivered
to
the
Defendant
so
many
pieces
of
cloath
,
called
Bridge-water
red
to
be
sold
at
Bilbo
in
Spain
,
and
the
Defendant
said
,
that
he
sold
the
same
cloath
at
Bilbo
in
Spain
for
40.
l.
18.
s.
English
,
to
be
paid
in
May
next
insuing
,
the
sale
which
was
in
November
before
,
and
over
he
alledged
the
Custome
of
Merchants
to
be
,
that
if
any
Merchant
had
goods
in
the
same
Kingdome
to
be
sold
to
another
Merchant
,
and
he
sell
the
goods
to
be
paid
at
a
day
to
come
,
and
this
is
done
before
a
publick
Notary
,
and
thereby
a
Bill
signed
and
acknowledged
to
him
&
in
his
name
who
sold
the
goods
,
and
that
if
the
Merchant
who
so
sold
the
goods
,
delivered
the
Merchant
who
was
owner
of
the
goods
,
this
Bill
so
taken
in
his
name
,
this
shall
be
a
discharge
to
him
of
the
goods
:
and
he
averred
that
he
sold
them
to
a
Spanish
Merchant
,
and
that
he
took
a
Bill
accordingly
,
and
at
London
offered
that
Bill
to
the
Plantiff
,
who
refused
that
,
and
upon
this
plea
the
Plantiff
demurred
.
Attoe
argued
that
the
plea
is
not
good
,
because
he
had
not
alledged
that
the
partie
who
takes
such
a
Bill
may
plead
that
,
and
the
Custome
is
also
alledged
with
an
(
if
)
if
the
party
sell
,
and
if
he
take
the
Bill
,
and
not
with
positive
averment
,
that
he
may
so
sell
and
may
so
take
the
Bill
,
which
being
delivered
to
the
owner
of
the
goods
,
shall
be
a
discharge
to
the
factor
who
sold
the
goods
:
and
here
this
custome
is
not
good
by
the
Common
Law
,
for
if
I
deliver
goods
to
another
to
sell
,
and
he
sell
them
to
be
paid
the
money
at
a
day
to
come
,
this
is
not
good
,
for
he
ought
by
his
sale
to
make
a
compleat
contract
:
and
if
I
sell
my
horse
for
10.
l.
I
may
retain
the
horse
till
the
money
is
paid
,
for
till
then
the
contract
is
not
compleat
;
and
so
in
this
case
,
and
here
the
Plantiff
shall
have
an
action
of
accompt
upon
this
delivery
,
and
if
he
sell
them
otherwise
,
or
do
not
sell
them
for
ready
money
,
he
had
gone
beyond
his
Commission
,
and
this
Custome
is
unreasonable
,
that
the
Bill
shall
be
taken
in
his
name
who
sold
the
goods
,
but
perchance
if
the
custome
had
been
alleadged
,
to
take
the
Bill
in
the
name
of
the
owner
of
the
goods
,
this
had
been
good
;
but
in
our
case
the
owner
of
the
goods
may
not
sue
,
nor
have
any
remedy
for
his
goods
,
except
the
factor
will
go
into
Spain
and
sue
the
said
Bill
,
and
it
is
unreasonable
to
leave
this
to
the
pleasure
of
my
factor
,
whether
I
shall
have
any
remedy
for
my
goods
sold
,
and
it
is
very
unreasonable
that
I
shall
be
paid
with
a
Bill
which
may
not
be
sued
,
and
here
the
Plantiff
is
a
stranger
to
the
Custome
of
Spain
,
and
shall
not
be
bound
by
that
.
Serjeant
Harris
to
the
contrary
:
the
Custome
which
is
alledged
is
good
among
Merchants
,
though
it
is
not
good
according
to
our
Common
Law
,
and
so
if
two
Merchants
trade
joyntly
,
and
one
of
them
dies
before
severance
of
the
goods
,
yet
his
executor
shall
have
his
part
,
and
not
the
Survivor
,
and
so
by
the
law
of
Merchants
a
man
cannot
wage
his
law
in
debt
upon
a
simple
contract
;
by
which
it
is
apparant
that
the
laws
of
Merchants
differ
from
our
laws
,
and
indeed
the
laws
of
Merchants
are
National
laws
:
and
that
this
is
the
Custome
in
Spain
is
confessed
by
the
demurrer
,
and
then
we
may
not
examine
that
by
the
reason
of
our
laws
,
and
the
laws
of
Merchants
ought
to
be
favoured
for
trading
sake
,
which
is
the
life
of
every
Kingdome
;
and
by
the
law
of
Merchants
a
Bill
without
seal
is
good
,
and
yet
by
our
law
it
is
but
an
escrowl
:
and
so
I
pray
judgement
for
the
Defendant
.
Hobert
chief
Iustice
,
when
the
Merchant
had
delivered
goods
to
the
factor
to
sell
,
he
had
made
the
factor
negotiator
gestorum
:
and
for
that
reason
the
factor
may
sell
the
goods
without
ready
money
,
and
this
is
good
reason
,
for
perchance
the
goods
are
of
that
nature
that
they
will
not
keep
without
perishing
,
by
which
clearly
it
appears
,
that
if
I
deliver
goods
to
another
to
Merchandise
,
and
to
sell
,
he
may
sell
them
without
ready
money
,
but
if
my
factor
or
Bailiff
will
sell
them
to
one
which
he
knows
wāll
prove
a
Bankrupt
without
ready
money
,
this
is
not
good
:
but
secondly
,
he
held
the
custome
,
as
it
is
here
alledged
,
not
to
be
good
,
for
then
the
partie
shall
have
no
remedy
for
his
money
,
except
the
factor
will
go
into
Spain
and
sue
the
Bill
,
and
the
laws
of
Merchants
are
special
laws
for
their
benefit
,
and
not
for
their
prejudice
:
and
this
custome
as
it
is
alledged
is
too
large
:
but
if
he
had
alledged
that
such
Bill
taken
by
the
factor
shall
be
as
good
and
effectual
to
the
Mr.
as
if
it
had
been
taken
in
his
own
name
,
this
had
been
good
,
besides
the
custome
is
not
good
,
for
it
is
alledged
to
be
that
when
the
factor
had
delivered
the
Bill
to
the
owner
of
the
goods
,
this
shall
be
a
discharge
to
him
who
was
the
factor
,
and
here
is
no
time
set
within
which
this
may
be
delivered
,
and
so
for
ought
is
shewed
it
may
be
delivered
10.
years
after
,
which
may
be
good
;
and
to
that
which
had
been
said
,
that
the
laws
of
Merchants
are
national
laws
,
he
denied
that
,
for
every
Kingdome
had
its
proper
and
peculiar
laws
,
and
though
this
is
the
law
of
Spain
,
and
national
to
them
,
yet
this
ought
to
be
reasonable
,
or
else
it
shall
not
binde
:
and
judgement
was
commanded
to
be
entered
for
the
Plantiff
,
Hobert
and
Winch
being
only
present
.
It
was
ruled
that
he
who
had
land
in
a
parish
who
did
not
inhabit
there
,
shall
be
chargable
to
the
reparation
of
the
Church
,
but
not
to
the
buying
of
ornaments
of
the
Church
,
for
that
shall
be
levied
of
the
goods
of
the
parishioners
,
and
not
of
their
lands
,
by
Sir
Henry
Yelverton
,
and
said
to
be
so
formerly
adjudged
.
In
trespas
the
Defendant
pleads
,
that
one
such
was
possessed
of
a
term
for
years
,
and
bring
so
possessed
by
his
last
will
and
Testament
devised
that
to
the
Defendant
,
and
died
,
after
whose
death
the
Defendant
entered
,
and
was
possessed
by
vertue
of
the
devisee
,
upon
which
plea
the
Plantiff
demurred
generally
:
and
Hutton
thought
this
plea
prima
facie
to
be
good
,
though
the
Defendant
had
not
expresly
alledged
that
the
devisee
died
possessed
,
but
his
plea
implies
that
,
for
he
had
said
,
that
he
entered
by
vertue
of
the
devisee
and
was
possessed
,
and
this
only
matter
of
form
,
and
not
matter
of
substance
,
and
no
cause
of
general
demurrer
,
which
Winch
also
granted
that
this
was
also
matter
of
form
,
and
not
matter
of
substance
.
Gage
against
Johnson
for
his
fees
.
GAge
brought
an
action
against
Iohnson
as
his
servant
and
Solicitor
to
the
Defendant
in
a
suit
in
the
Kings
Bench
taking
for
every
Term
3.
s.
4
d.
for
his
fees
,
and
for
this
he
brought
his
action
of
debt
:
and
Serjeant
Hitcham
moved
in
arrest
of
judgement
,
and
he
urged
the
case
of
Samuel
Leech
,
an
Attourney
of
this
Court
,
in
an
action
upon
the
case
brought
by
him
,
upon
a
promise
to
pay
so
much
for
the
solliciting
of
a
cause
of
the
Defendant
,
and
the
opinion
was
,
that
the
action
will
not
lie
,
for
it
is
in
nature
of
maintenance
,
for
a
Solicitor
may
not
lay
out
money
for
his
Clyent
:
and
if
an
action
upon
the
case
will
not
lie
,
then
much
less
an
action
of
debt
:
and
Hobert
said
,
that
a
Councellor
may
take
fees
of
his
Clyent
,
but
he
may
not
lay
out
or
expend
money
for
him
,
and
the
same
law
of
an
Attourney
,
for
if
he
did
disburse
money
for
him
,
he
doubted
much
what
remedy
he
should
have
:
and
he
further
said
,
a
servant
may
follow
business
for
his
Mr.
and
may
take
money
for
his
labour
,
for
if
I
retain
my
servant
generally
,
he
is
not
bound
to
follow
my
suits
at
law
,
except
at
his
pleasure
,
for
that
is
an
extraordinary
service
:
and
for
that
if
I
will
say
to
my
servant
,
that
if
he
will
follow
my
business
at
Westminster
,
I
will
give
him
so
much
for
his
pains
,
my
servant
in
this
case
is
not
without
his
remedy
:
but
if
his
service
is
coupled
with
Soliciting
to
take
money
for
his
pains
,
his
opinion
was
that
no
action
will
lie
,
to
which
the
other
justices
also
agreed
,
and
they
arose
.
Wright
against
Black
before
.
NOw
the
case
of
Wright
and
of
Black
was
moved
again
,
and
the
case
was
,
that
Wright
had
brought
an
action
upon
the
case
against
Black
and
Black
,
for
that
the
Defendants
intending
to
make
away
his
good
name
,
and
to
cause
him
to
lose
his
goods
,
did
maliciously
and
without
cause
at
Norwich
in
the
County
of
Norfolk
,
prefer
a
Bill
of
indictment
at
the
Sessions
of
peace
,
containing
that
the
Plantiff
stole
two
bundles
of
fetches
,
and
also
did
cause
and
entice
one
I.
S.
to
give
in
evidence
that
the
indictment
was
good
and
true
,
by
reason
of
which
he
was
bound
to
Answer
that
at
the
next
Assiles
,
and
there
he
was
accquitted
:
and
whether
the
action
was
maintainable
was
the
question
,
and
Attoe
argued
that
the
action
is
maintainable
,
though
it
is
not
shewed
that
the
Bill
of
indictment
was
found
:
and
he
vouched
a
case
,
which
was
Hill.
10.
Iac.
B.
R.
Rot.
921.
between
Whorewood
and
Cordery
and
his
wife
Defendants
,
which
case
and
judgement
was
after
affirmed
in
the
Exchequer
Chamber
upon
a
writ
of
error
,
and
the
case
was
,
that
the
Plantiff
declared
that
the
Defendants
intending
to
take
away
his
good
name
,
did
charge
him
to
have
ravished
Dorothie
Coxe
,
and
maliciously
exhibited
a
Bill
of
indictment
,
containing
that
the
Plantiff
did
felloniously
ravish
the
said
Dorothie
their
daughter
,
and
did
give
this
in
evidence
to
the
Grand
jury
who
found
Ignoramus
:
and
yet
it
was
adjudged
that
an
action
lies
,
and
he
cited
a
case
the
19.
Iac.
in
B.
R.
Deney
against
Ridgy
,
where
was
ā
only
an
indictment
preferred
concerning
the
stealing
of
a
horse
,
and
no
more
,
and
yet
an
action
lies
.
Hobert
chief
Iustice
said
,
that
if
seemed
to
him
that
it
is
actionable
,
for
this
is
as
great
a
scandal
to
give
this
in
evidence
to
the
Grand
jury
,
as
to
publish
this
upon
an
Alebench
:
and
as
the
course
of
Iustice
ought
not
to
be
stopped
,
so
neither
ought
the
good
,
name
of
man
in
things
which
concern
his
life
be
taken
away
without
good
cause
,
and
I
have
heard
that
judgement
was
given
another
Term
for
the
Plantiff
,
but
quere
better
of
that
.
Hoes
case
.
HOes
seised
of
land
in
fee
,
he
devised
that
to
his
wife
for
life
,
the
remainder
of
one
parcel
of
that
to
Thomas
his
eldest
son
,
the
remainder
of
the
other
parcel
to
his
youngest
son
in
fee
,
and
this
devised
was
with
proviso
that
the
feme
shall
pay
his
legacies
,
and
also
his
will
was
,
that
in
case
his
wife
died
before
the
payment
of
his
debts
and
legacies
,
that
then
his
two
sons
shall
pay
them
,
and
if
it
happen
that
either
of
them
die
before
his
debts
and
legacies
paid
,
or
before
either
of
them
do
enter
into
his
part
,
that
thou
the
other
shall
have
all
the
land
in
fee
,
and
after
the
devisor
died
,
and
in
the
life
of
the
mother
the
eldest
son
released
to
the
youngest
all
his
right
,
title
,
Claim
,
and
demand
to
the
land
which
was
devised
to
him
by
his
father
,
and
after
the
wife
died
,
and
two
points
came
in
question
in
this
case
.
First
,
whether
this
limitation
is
good
.
Secondly
,
whether
the
release
is
good
,
and
it
was
argued
by
Richardson
Serjeant
,
that
this
limitation
of
the
Statute
by
way
of
devisee
is
good
,
and
he
vouched
Dyer
330.
Clarks
case
,
and
4.
Eliz.
Goldley
and
Buckleys
case
,
a
man
devised
to
his
son
and
his
heirs
,
provided
that
if
his
personal
estate
did
not
suffice
to
pay
his
debts
and
legacies
,
that
then
his
lands
shall
be
to
another
,
and
he
vouched
Brown
and
Pells
case
,
which
was
adjudged
in
Banco
Regis
,
the
case
was
,
that
a
man
had
two
sons
,
William
the
eldest
,
and
Thomas
the
youngest
,
and
he
devised
his
lands
to
Thomas
his
son
and
his
heirs
,
provided
that
if
Thomas
died
without
issue
living
,
that
then
William
shall
have
the
land
,
and
it
was
resolved
that
this
was
good
to
William
by
way
of
executory
devise
,
and
in
that
case
doubt
was
moved
whether
if
Thomas
suffer
a
recovery
,
whether
this
shall
take
away
the
estate
of
William
;
and
it
was
holden
by
all
the
Court
,
except
Doderidg
,
that
it
shall
not
,
but
all
agreed
that
this
devise
upon
the
future
contingency
is
good
,
and
so
he
concluded
,
that
if
the
youngest
son
die
in
the
life
of
the
Mother
,
and
before
the
legacies
are
paid
,
the
land
shall
remain
to
the
Plantiff
,
according
to
the
intent
of
the
devisor
:
but
the
other
doubt
is
,
when
the
Plantiff
did
release
all
his
right
,
and
claim
to
the
other
,
whether
this
release
will
extinguish
this
future
possibility
;
and
he
held
that
it
will
not
:
and
he
said
that
he
had
seen
the
case
of
Lampet
Coo.
10.
and
there
the
release
of
a
possibility
is
penned
as
in
our
case
,
and
if
any
word
discharge
this
possibility
,
it
is
this
word
right
,
but
if
the
resolution
of
that
book
had
not
been
against
him
,
he
would
have
argued
that
this
right
was
not
sufficient
to
extinguish
this
future
possibility
,
but
that
there
ought
to
be
a
more
apt
and
proper
word
,
but
he
said
he
would
not
argue
against
books
:
but
he
said
that
which
he
would
insist
upon
was
the
distinguishing
of
possibilities
,
for
there
are
two
manner
of
possibilities
,
the
one
is
Common
and
ordinary
,
the
other
is
more
remote
and
forreigne
.
And
first
,
there
is
a
possibility
which
is
Common
and
necessary
,
and
this
depends
upon
an
ordinary
casualty
,
as
a
lease
for
life
,
the
remainder
to
the
right
heirs
of
I.
S.
for
it
is
apparant
that
the
right
heirs
of
I.
S.
may
take
by
this
,
and
such
a
possibility
may
be
released
:
and
a
possibility
which
is
remote
and
forreigne
is
,
as
if
a
lease
be
made
for
life
,
the
remainder
to
another
during
the
life
of
the
lessee
for
life
,
or
a
lease
for
life
,
the
remainder
to
the
Corporation
of
B.
those
remainders
are
void
:
but
yet
by
possibility
they
may
be
good
,
for
in
the
first
case
the
Tenant
for
life
may
enter
into
religion
:
and
in
the
latter
case
the
King
may
make
Corporations
,
and
yet
because
such
possibilities
are
not
usual
,
the
remainders
are
void
:
see
Coo.
2.
Chamleys
case
,
where
such
a
remote
possibility
may
not
be
released
,
if
a
man
give
land
to
one
which
is
married
,
and
to
another
woman
which
is
married
,
and
to
the
heirs
of
their
two
bodies
ingendred
,
this
is
a
good
estate
tail
,
for
there
is
a
common
possibility
that
they
may
intermarry
,
but
if
the
gift
be
to
a
man
and
to
two
women
who
are
married
,
and
to
the
heirs
of
their
bodies
ingendred
,
they
shall
not
have
an
estate
tail
executed
,
for
it
is
a
remote
and
forreigne
possibility
,
and
an
imbrodery
of
estates
which
the
law
will
not
allow
,
nor
respect
:
see
the
Rector
of
Chedingtons
case
,
that
such
a
possibility
as
in
our
case
may
not
be
released
,
for
first
here
the
mother
ought
to
be
dead
before
the
Plantiff
shall
have
land
.
Secondly
,
legacies
ought
to
be
paid
.
Thirdly
,
Thomas
ought
to
be
dead
,
and
till
all
these
possibilities
hap
,
the
Plantiff
shall
have
nothing
in
the
land
,
and
for
that
it
is
a
remote
possibility
which
is
not
gone
by
the
release
,
for
as
it
is
said
,
when
a
possibility
shall
be
gone
by
a
release
,
there
ought
to
be
a
good
foundation
upon
which
the
release
may
operate
:
secondly
,
the
possibility
which
is
released
ought
to
be
necessary
and
Common
,
but
in
our
case
it
is
not
necessary
that
the
son
shall
enjoy
it
in
the
life
of
his
mother
:
and
also
the
mother
may
in
a
short
time
pay
the
legacies
,
and
then
neither
of
the
sons
shall
have
the
land
:
by
which
circumstances
it
is
apparant
,
that
this
is
not
a
Common
or
an
ordinary
possibility
,
but
is
a
remote
and
forraigne
expectancy
,
which
shall
not
be
gone
by
this
release
,
and
this
differs
from
Lampets
case
,
for
there
was
a
possibility
of
a
Chattel
,
which
as
it
may
easily
be
created
,
so
it
may
easily
be
destroyed
,
but
in
our
case
it
is
a
franktenement
,
which
as
that
requires
a
greater
ceremony
in
the
creation
,
and
for
that
it
will
require
a
greater
matter
to
destroy
,
and
to
extinguish
that
;
and
it
is
said
in
Woods
case
cited
in
Shelleys
case
Coo.
1.
that
if
a
man
covenant
with
A.
that
if
I.
S.
infeoffed
him
of
the
Mannor
of
D.
that
then
he
will
stand
seised
to
the
use
of
him
and
his
heirs
of
the
Mannor
of
B.
and
the
Covenantee
died
,
and
the
said
I.
S.
infeoffed
the
Covenantor
,
in
such
case
the
heir
shall
be
inward
,
and
yet
it
is
only
a
possibility
which
descends
,
which
possibility
of
an
use
may
not
be
discharged
,
or
released
,
and
yet
in
that
case
there
was
a
possibility
which
is
more
Common
,
and
ordinary
then
in
our
case
;
for
there
was
a
possibility
that
I.
S.
should
make
the
feofment
,
and
so
say
a
good
foundation
upon
which
the
release
may
operate
:
and
he
put
the
case
that
I.
shall
let
for
so
many
years
as
I.
S.
shall
name
,
if
I.
S.
name
it
is
good
,
and
yet
he
held
if
I.
S.
release
before
the
nomination
that
this
release
is
meerly
void
,
because
he
had
only
a
possibility
:
and
as
to
Digs
case
Coo.
1.
there
a
power
of
Revocation
may
be
released
,
and
good
reason
,
for
the
Covenantor
who
released
had
the
bird
in
his
own
hand
,
and
for
that
it
was
no
remote
possibility
:
but
there
it
is
said
,
that
if
the
power
be
limited
to
an
estranger
,
there
the
stranger
may
not
release
:
and
he
also
agreed
Albanies
case
,
for
there
the
power
to
release
was
upon
the
death
of
a
man
only
,
but
in
our
case
it
is
upon
death
,
and
other
contingencies
by
which
these
remote
possibilities
shall
not
be
released
.
Hoes
case
Coo.
5.
there
a
release
of
all
actions
,
and
demands
to
the
Bailee
made
this
void
;
and
in
the
case
of
Brown
and
Pell
which
was
remembred
before
,
it
was
the
opinion
of
all
the
Court
against
Judge
Doderidge
,
that
where
the
devise
was
to
the
son
in
fee
,
and
if
he
died
without
issue
living
,
that
then
his
eldest
brother
shall
have
that
,
if
in
this
case
the
second
son
suffer
a
recovery
,
yet
this
had
not
destroyed
the
possibility
which
the
eldest
brother
had
to
have
the
land
,
and
if
a
common
recovery
which
is
matter
of
record
,
and
the
common
assurance
of
the
realm
will
not
take
away
this
possibility
,
a
fortiori
a
release
which
is
but
matter
of
fact
,
and
so
he
concluded
and
prayed
judgement
for
the
Plantiff
.
Bawtry
to
the
contrary
,
and
he
said
,
that
if
this
remainder
shall
be
good
,
then
the
inconvenience
which
the
judges
had
alwayes
endeavoured
to
take
way
shall
be
on
foot
again
,
as
in
the
case
of
Chamley
,
and
Corbets
of
springing
uses
,
for
if
it
shall
be
lawful
for
a
man
to
limit
a
fee
upon
a
Collateral
condition
or
limitation
,
then
there
shall
be
a
perpetuitie
,
and
for
this
if
any
litteral
construction
shall
be
made
upon
such
conveyances
,
this
will
introduce
dangerous
events
to
inheritances
,
and
for
that
he
held
that
limitation
to
the
Plantiff
to
be
meerly
void
,
for
when
the
land
is
devised
in
fee
,
this
devisee
by
this
had
an
absolute
estate
in
fee
,
and
it
shall
be
strange
to
give
this
to
another
though
this
be
by
way
of
devise
,
for
though
the
will
of
every
man
shall
be
supplied
by
the
intent
of
the
devisor
,
yet
his
intent
ought
to
stand
with
the
rules
of
the
law
,
and
otherwise
his
intent
shall
revert
,
and
for
that
he
cited
29.
H.
8.
a
man
made
two
executors
,
provided
that
one
of
them
shall
not
administer
,
here
the
intent
did
plainly
appear
,
and
yet
because
the
intent
is
contrary
to
the
power
which
the
law
gives
to
every
executor
,
therefore
it
is
void
:
and
it
is
put
for
a
bare
rule
in
Corbets
case
,
that
such
a
conveyance
which
a
man
may
not
make
in
his
life
time
,
by
act
executed
,
he
may
not
make
by
his
Will
,
but
a
man
may
not
make
such
a
conveyance
by
act
executed
in
his
life
time
,
for
as
it
is
said
in
Colthirsts
case
,
if
a
man
let
for
life
,
the
remainder
for
life
,
upon
condition
that
if
the
first
lessee
do
such
a
thing
,
that
then
the
land
shall
remain
over
to
a
stranger
,
this
remainder
is
void
:
for
when
the
land
is
given
before
,
this
second
limitation
is
meerly
void
:
and
also
the
case
is
put
,
that
if
a
man
give
lands
in
fee
upon
condition
,
the
remainder
over
this
remainder
is
void
;
for
the
other
had
an
estate
in
fee
before
,
by
which
it
is
apparant
,
that
when
an
estate
is
one
time
lawfully
vested
in
any
certain
person
,
there
no
limitation
may
give
that
to
a
stranger
,
by
any
act
executed
in
his
life
at
the
common
law
,
and
then
it
shall
not
be
good
by
way
of
devise
28.
H.
8.
Dyer
,
a
term
was
devised
for
years
,
the
remainder
over
:
and
it
was
adjudged
by
Baldwin
,
and
by
Shelley
,
that
the
remainder
in
that
case
is
void
,
for
when
the
devisor
had
given
his
term
,
he
may
not
limit
this
remainder
over
,
though
this
be
by
way
of
devise
:
and
this
may
be
good
law
notwithstanding
Lampets
case
,
for
there
the
lease
was
devised
and
not
the
land
,
and
for
that
reason
may
be
a
difference
:
and
he
vouched
the
case
which
was
remembred
by
Richardson
29.
H.
8.
33.
and
then
as
to
the
second
point
,
he
held
that
the
release
was
good
,
admitting
the
first
point
to
be
against
him
,
for
if
the
eldest
son
had
any
right
by
this
release
,
then
this
word
right
in
the
release
will
destroy
and
extinguish
that
,
and
this
possibility
is
not
remote
and
forraigne
,
for
the
condition
or
limitation
is
annexed
to
the
estate
,
and
is
not
a
subsequent
condition
which
creates
an
estate
,
and
this
depends
upon
an
ordinary
casualty
which
is
common
to
all
men
,
and
the
payment
of
debts
and
of
legacies
,
is
incident
and
common
to
every
executor
;
and
as
for
Albanies
case
Coo.
1.
the
case
was
,
that
a
man
had
a
power
to
revoke
uses
upon
the
death
of
a
stranger
without
issue
,
and
resolved
that
this
power
may
be
released
,
and
yet
his
power
depended
upon
two
contingencies
,
death
,
and
death
without
issue
,
and
the
case
is
also
there
put
,
if
A.
infeoffe
B.
upon
condition
,
that
if
B.
Survive
C.
and
then
if
A.
and
his
heirs
pay
to
B.
10.
l.
that
then
he
shall
enter
,
in
this
case
there
are
many
contingencies
involved
in
one
conveyance
,
and
yet
it
is
there
said
,
that
these
contingencies
may
be
released
;
and
in
Lampets
case
Coo.
10.
there
are
six
reasons
,
wherefore
such
a
contingencie
may
be
released
,
and
our
case
is
within
all
the
reasons
which
are
there
mentioned
,
for
the
words
in
the
release
as
have
been
remembred
by
my
brother
Richardson
,
are
all
one
with
our
case
,
and
the
first
reason
is
,
because
this
is
a
Chattel
,
which
as
it
may
be
easily
created
,
so
it
may
be
easily
destroyed
,
to
this
he
gave
answer
,
that
this
remainder
of
a
Term
was
an
interest
to
him
who
released
:
and
so
in
our
it
is
an
interest
of
a
remainder
to
the
Plantiff
,
and
for
that
the
release
is
good
.
Secondly
,
it
is
a
maxime
in
Law
,
that
every
land
may
be
charged
one
wayes
or
another
,
and
we
are
within
this
reason
also
,
for
if
this
estate
be
in
the
Plantiff
,
then
this
may
be
released
.
Thirdly
,
the
foundation
of
every
act
ought
to
be
regarded
,
for
Grants
case
there
vouched
destroyes
the
possibility
with
a
fine
by
reason
of
the
original
act
,
the
fourth
reason
there
remembred
is
,
because
that
if
the
devisee
had
been
dead
,
his
Executor
shall
have
the
interest
,
the
same
reason
in
our
case
,
if
the
Plantiff
had
been
dead
before
the
remainder
or
the
contingencie
hap
,
yet
his
heir
shall
have
that
.
See
Shelleys
case
;
the
fifth
reason
is
,
the
legacie
was
in
present
,
though
this
was
to
take
effect
in
futuro
,
and
so
in
our
case
the
Will
is
in
present
,
though
the
state
is
to
take
effect
in
futuro
,
and
sixthly
,
it
shall
be
against
reason
to
establish
such
a
perpetuity
of
a
Chattel
,
and
so
in
our
case
it
shall
be
against
reason
to
establish
a
perpetuity
of
a
franktenement
:
and
the
release
is
very
well
penued
,
for
it
is
of
all
his
title
,
right
and
claim
to
the
reversion
,
and
remainder
which
the
father
devised
to
the
Plantiff
,
and
so
the
release
is
not
general
,
but
this
is
a
particular
,
and
special
release
of
that
which
was
devised
to
him
by
his
father
,
and
Hoes
case
Coo.
5.
is
not
like
to
our
case
,
for
first
there
the
duty
was
altogether
incertain
,
and
secondly
,
the
condition
there
did
precede
the
duty
:
but
in
our
case
the
condition
is
annexed
to
the
estate
,
and
so
he
concluded
and
prayed
judgement
in
the
case
for
the
Defendant
.
Finis
M.
20.
Jac.
The
Bishop
of
Glocester
against
Wood
before
.
NOw
the
case
between
the
Bishop
of
Glocester
and
Wood
was
adjudged
,
Hobert
and
Winch
being
only
present
:
and
first
it
was
resolved
by
them
,
that
when
the
Bishop
let
parcel
,
as
20.
acres
for
life
,
and
after
he
lets
the
Mannor
it self
to
another
rendring
rent
,
in
this
case
the
rent
issues
out
of
the
intire
Mannor
,
for
if
in
debt
for
the
rent
,
the
lessor
do
declare
upon
a
demise
of
the
Mannor
omitting
the
reversion
of
this
parcel
,
the
declaration
is
evill
:
and
upon
non
dimisit
pleaded
it
shall
be
found
against
him
.
Secondly
,
this
they
held
,
that
the
Herriot
reserved
shall
go
with
the
reversion
:
and
if
this
do
not
go
with
the
reversion
to
the
lessee
of
the
Mannor
,
yet
the
Plantiff
shall
not
have
the
Herriot
,
and
then
though
the
Defendant
had
not
good
title
to
the
Herriot
,
yet
if
the
property
of
the
Herriot
do
not
appertain
to
the
Plantiff
,
he
shall
not
have
a
trover
and
conversion
,
for
the
Defendant
had
the
first
possession
:
and
judgement
was
commanded
to
be
entred
for
the
Defendant
,
if
no
other
cause
was
shewed
before
next
thursday
.
Hill.
20.
Jac.
C.
P.
Bulloigne
against
William
Gervase
Administrator
.
BUlloigne
brought
an
action
of
debt
upon
an
obligation
of
12.
l.
against
William
Gervase
Administrator
to
I.
S.
and
the
Defendant
pleaded
,
that
the
intestate
died
outlawed
,
and
that
the
outlawrie
alwayes
continued
in
force
,
and
upon
this
the
Plantiff
did
demur
generally
,
and
it
was
argued
by
Attoe
for
the
Plantiff
,
for
the
plea
is
not
good
,
for
this
is
a
plea
only
by
way
of
argument
,
that
he
shall
not
be
charged
for
this
debt
,
because
he
had
not
assets
:
and
in
this
case
,
this
outlawrie
ought
to
be
given
in
evidence
,
upon
nothing
in
his
hands
being
pleaded
;
and
it
ought
not
to
be
pleaded
in
barre
,
for
by
possibility
the
outlawrie
may
be
reversed
,
and
then
the
Administrator
shall
be
charged
if
he
had
any
goods
,
and
he
vouched
a
case
in
this
Court
,
Trin.
27.
Eliz.
Rot.
2954.
Worley
against
Bradwel
and
Dame
Manners
his
wife
,
Administratrix
to
Sir
Thomas
Manners
,
and
the
feme
pleaded
outlawrie
in
the
intestate
,
and
the
Plantiff
demurred
generally
,
and
it
was
adjudged
to
be
no
plea
;
and
note
,
that
the
record
was
brought
into
the
Court
,
and
read
accordingly
.
Hitcham
Serjeant
to
the
contrary
,
the
record
in
Manners
case
was
not
well
pleaded
,
for
the
Defendant
only
shewed
,
that
a
Capias
ad
satisfaciendum
issued
against
the
Testator
,
and
did
not
shew
any
recovery
,
or
judgement
against
him
,
and
that
was
the
reason
of
the
judgement
in
that
case
,
and
the
Plantiff
here
ought
to
have
demurred
specially
,
as
the
case
of
27.
of
Eliz.
for
otherwise
he
shall
not
have
advantage
of
this
plea
:
and
the
plea
is
only
evil
for
the
manner
,
for
it
is
apparant
that
by
the
outlawrie
of
the
Testator
all
his
goods
are
forfeit
,
and
this
is
the
reason
of
the
book
of
16.
E.
4.
4.
it
is
a
good
plea
in
an
action
of
debt
to
plead
an
outlawrie
in
the
Plantiff
,
and
to
demand
judgement
of
the
action
,
and
not
judgement
of
the
writ
,
for
the
debt
is
forfeit
to
the
King
by
the
outlawrie
;
Hobert
,
Hutton
,
and
Winch
,
the
president
shewed
by
Attoe
is
not
answered
,
for
though
the
pleading
of
the
outlawrie
is
without
shewing
of
a
recovery
,
and
judgement
,
yet
the
outlawrie
is
good
till
it
is
reversed
;
and
Hutton
said
,
that
in
some
cases
an
Executor
or
Administrator
had
goods
,
though
the
Testator
died
outlawed
,
as
if
the
Testator
let
for
life
rendring
rent
,
and
the
rent
is
behinde
,
and
after
the
Testator
is
outlawed
,
and
dies
,
this
shall
not
be
forfeit
,
but
his
Executors
shall
have
the
rent
,
and
if
a
man
make
a
feofment
upon
condition
,
that
the
feoffor
pay
100.
l.
to
the
feoffee
,
and
his
heirs
,
or
Executors
,
and
the
feoffee
is
outlawed
,
and
the
feoffor
pay
the
money
to
his
Executors
as
he
may
well
,
the
Executors
,
and
not
the
King
shall
have
that
,
also
if
the
Testator
is
outlawed
,
and
he
devise
his
land
to
his
Executors
to
be
sold
,
these
moneys
shall
not
be
forfeit
,
and
they
shall
agree
that
the
plea
was
not
good
notwithstanding
the
general
demurrer
,
for
he
who
will
barre
another
by
an
argumentative
plea
,
his
plea
ought
to
be
infallible
to
all
intents
and
purposes
,
and
so
it
is
not
here
,
for
the
Executors
and
the
Administrators
may
be
charged
by
the
having
of
goods
,
though
the
Testator
was
outlawed
,
and
for
that
the
plea
of
the
Defendant
is
not
good
in
substance
;
and
the
general
demurrer
is
good
,
by
Hobert
,
and
by
him
if
we
suffer
this
plea
,
then
the
Defendant
will
keep
the
goods
,
and
not
reverse
the
outlawrie
,
nor
yet
satisfie
the
King
;
also
if
he
had
not
goods
,
the
Defendant
may
plead
plene
Administravit
,
or
nothing
in
his
hands
,
and
give
this
outlawrie
in
evidence
.
See
8.
E.
4.
6.
3.
H.
6.
32.
39.
H.
6.
37.
by
the
opinion
of
Prisot
,
and
also
see
the
case
in
E.
4.
5.
a
case
to
this
purpose
;
and
also
note
well
that
it
was
said
concerning
the
case
of
Manners
,
that
a
writ
of
error
was
brought
of
that
afterwards
;
and
that
the
case
remains
till
this
day
undetermined
.
Buckley
against
Simonds
Ent.
18.
Jac.
Rot.
2120.
NOw
at
this
day
the
case
of
Buckley
and
Simonds
was
argued
by
Iustice
Hutton
,
and
by
Winch
;
and
the
case
was
briefly
this
,
Anne
Buckley
Administrator
to
Andrew
Buckley
her
Husband
was
Plantiff
in
a
quare
Imp.
against
John
Simonds
,
John
Prior
,
and
Robert
Pierce
,
Alias
Price
for
disturbing
her
to
present
to
the
Church
of
D.
and
shewed
that
Andrew
Buckley
Grandfather
of
the
Husband
of
the
Plantiff
,
was
seised
of
the
said
advowson
in
gross
,
and
presented
one
I.
S.
and
he
died
,
after
whose
death
the
advowson
discended
to
Richard
Buckley
,
and
that
the
Church
became
void
,
and
that
one
Richard
Williams
usurped
upon
the
said
Richard
Buckley
then
being
within
age
,
and
that
Richard
Buckley
also
died
,
and
by
his
death
the
said
advowson
discended
to
Andrew
Buckley
as
brother
and
as
heir
to
Richard
,
and
that
the
Church
became
void
,
and
before
the
presentment
by
Andrew
,
and
within
6.
moneths
Andrew
died
,
and
that
the
Administration
of
the
goods
of
Andrew
were
committed
to
the
Plantiff
,
and
that
she
presented
within
6.
moneths
,
and
the
Defendants
disturbed
her
,
and
the
Defendants
pleaded
in
barre
,
and
confessed
the
seisin
of
the
Grandfather
as
is
alledged
in
the
declaration
,
and
they
said
,
that
the
said
Andrew
Buckley
14.
Eliz.
by
his
Indenture
made
between
the
said
Andrew
Buckley
on
the
one
part
,
and
John
Preston
of
the
other
part
,
by
which
the
said
Andrew
Buckley
by
the
same
Indenture
covenanted
with
Preston
in
consideration
of
a
marriage
to
be
had
between
John
Buckley
and
Elizabeth
Preston
,
daughter
of
John
Preston
,
he
covenanted
with
him
and
his
heirs
,
that
immediately
after
he
death
of
him
and
of
his
wife
,
the
said
advowson
(
inter
alia
)
shall
be
to
the
said
John
Buckley
his
son
,
and
to
Elizabeth
Preston
,
and
to
the
heirs
of
John
,
and
so
the
Defendant
claimed
by
vertue
of
a
lease
for
1000.
years
made
by
Iohn
Buckley
,
and
the
Plantiff
demanded
Dyer
of
the
Indenture
which
was
read
to
this
effect
,
that
Andrew
Buckley
by
the
said
Indenture
covenanted
with
Preston
,
that
in
consideration
of
a
marriage
between
his
son
and
the
daughter
of
Preston
,
that
he
will
grant
a
rent
charge
of
6.
l.
13.
s.
out
of
his
land
at
Weymouth
,
and
at
Melcombe
Regis
payable
at
4.
usual
feasts
;
and
he
Covenanted
for
him
and
his
heirs
,
that
he
would
convey
the
land
in
Melcombe
Regis
and
Wike
Regis
to
such
persons
as
Preston
should
appoint
,
provided
that
the
said
Andrew
Buckley
and
his
wife
may
injoy
that
during
their
lives
without
impeachment
of
waste
,
and
covenanted
that
immediately
after
their
deaths
,
the
lands
shall
immediately
remain
,
come
,
and
be
to
the
said
Iohn
Buckley
,
and
Elizabeth
his
wife
:
and
that
the
advowson
of
Bradway
shall
remain
,
come
,
and
be
to
the
said
Iohn
Buckley
and
Elizabeth
his
wife
,
and
upon
all
the
matter
the
question
was
,
whether
by
this
last
covenant
,
an
use
will
arise
of
the
advowson
in
Bradway
to
Iohn
Buckley
,
for
if
an
use
is
raised
to
him
,
then
this
lease
made
by
him
is
good
,
and
by
consequence
the
title
of
the
Defendants
is
good
to
present
to
this
advowson
,
and
if
not
,
then
the
fee
alwayes
remained
in
Andrew
Buckley
,
the
Grandfather
,
and
by
devise
discends
did
come
to
Andrew
Buckley
the
Husband
of
the
Plantiff
,
and
thān
the
quare
Impedit
is
maintainable
.
And
Hutton
began
his
argument
,
he
argued
that
no
use
will
arise
to
Iohn
Buckley
by
this
Indenture
,
for
when
a
man
will
raise
an
use
by
way
of
covenant
,
there
are
4.
necessary
things
which
ought
to
concur
.
First
is
a
sufficient
consideration
as
of
blood
,
or
marriage
,
or
other
Collateral
considerations
,
as
if
I
covenant
with
you
,
that
when
you
infeoffe
me
of
certain
land
,
I
will
stand
seised
to
the
use
of
you
and
your
heirs
,
this
is
good
,
but
if
the
consideration
be
for
money
,
then
this
ought
to
be
inrolled
,
or
otherwise
no
use
will
arise
,
the
second
point
is
,
there
ought
to
be
a
deed
to
testifie
this
agreement
,
for
otherwise
no
use
will
arise
,
as
was
resolved
38.
Eliz.
in
Collard
and
Collards
case
.
Thirdly
,
he
who
covenants
ought
to
be
seised
of
the
laād
at
the
time
of
the
covenant
,
as
was
resolved
37.
Eliz.
in
Yelvertons
case
;
a
man
covenanted
to
stand
seised
to
the
use
of
his
son
of
such
lands
as
he
should
afterwards
purchase
,
and
it
was
holden
void
,
because
he
was
not
seised
at
the
time
of
the
covenant
:
and
lastly
,
the
uses
must
agree
with
the
rules
of
the
Common
law
,
Chudleys
case
,
a
man
covenanted
to
stand
seised
to
the
use
of
one
for
years
,
the
remainder
to
the
right
heirs
of
I.
S.
this
remainder
is
void
,
though
this
is
by
way
of
covenant
,
and
use
,
for
the
free-hold
may
not
be
in
abeyance
:
and
so
if
I
will
at
this
day
bargain
and
sell
my
lands
in
fee
,
they
shall
not
pass
without
the
word
heirs
,
for
it
was
not
the
intention
of
the
said
Statute
,
to
raise
uses
in
such
mannor
contrary
to
the
rules
of
the
Common
law
or
uses
which
are
uncertain
,
and
in
our
case
the
intent
was
,
that
no
present
use
shall
arise
,
for
out
of
the
same
land
is
granted
a
rent
charge
to
Iohn
Buckley
and
Eliz.
his
wife
,
by
which
it
appears
plainly
,
that
it
was
not
their
intent
that
any
present
use
should
arise
by
the
delivery
of
the
indenture
:
and
if
the
use
do
not
arise
presently
upon
the
delivery
of
the
Indenture
,
it
shall
never
arise
at
all
;
also
the
intent
appears
,
for
it
is
,
that
the
land
shall
remain
free
from
incumberances
,
and
this
sounds
only
in
covenant
,
and
for
this
reason
the
covenants
shall
be
of
the
same
nature
,
and
lastly
the
covenant
is
,
that
the
land
shall
remain
and
be
,
and
this
is
altogether
incertaine
,
and
for
this
no
use
will
arise
,
because
this
failes
of
words
,
as
if
I
covenant
to
leave
my
lanā
to
my
son
after
my
death
,
this
will
not
raise
an
use
to
my
son
,
no
more
then
if
I
covenant
with
the
friends
of
my
wife
,
that
after
my
death
she
shall
have
my
goods
,
this
will
not
make
my
wife
to
be
Executor
:
and
he
vouched
21
H.
7.
17.
34.
H.
8.
59.
the
Lord
Borroughs
case
Dyer
355.
166.
324.
and
so
be
concluded
,
that
judgement
ought
to
be
given
for
the
Plantiff
.
Iustice
Winch
argued
to
the
same
purpose
,
and
he
said
the
first
part
of
the
covenant
contains
,
that
there
shall
be
a
marriage
before
such
a
day
if
the
parties
shall
agree
,
and
the
second
part
is
a
covenant
,
that
the
feme
shall
have
6.
l.
13.
s.
for
her
joynture
,
and
if
this
covenant
executed
an
use
of
the
land
presently
,
then
this
destroyes
the
joynture
,
which
was
not
the
intention
of
the
parties
.
Thirdly
,
there
is
another
covenant
to
convey
Coppihold
land
,
and
if
this
covenant
do
raise
an
use
,
then
it
will
follow
that
Iohn
Buckley
shall
have
the
land
,
though
the
marriage
do
take
effect
,
and
besides
the
covenant
doth
create
an
use
presently
,
or
not
at
all
,
and
then
when
this
use
is
to
be
raised
by
this
covenant
which
contains
in
that
nothing
but
future
and
Executory
matter
,
this
will
not
create
a
present
use
:
and
he
cited
the
books
which
were
vouched
at
the
barre
,
and
by
Hutton
,
and
so
he
concluded
,
that
this
covenant
will
not
raise
an
use
presently
to
Iohn
Buckley
,
and
that
judgement
ought
to
be
given
for
the
Plantiff
.
And
at
another
day
the
case
was
argued
by
Hobert
chief
Iustice
for
the
Plantiff
,
and
that
no
use
will
arise
by
this
covenant
,
and
he
said
,
if
I
will
covenant
to
make
assurance
of
my
land
to
my
son
,
or
to
a
stranger
,
this
covenant
is
meerly
nugatorie
,
and
will
not
raise
an
use
,
but
on
the
contrary
,
if
I
will
covenant
to
stand
seised
to
the
use
of
my
son
,
though
there
is
also
a
covenant
to
make
further
assurance
,
yet
this
will
raise
a
present
use
,
for
the
covenant
is
declaratory
,
and
not
obligatory
,
and
so
is
Dyer
235.
and
there
was
no
word
to
assure
the
land
,
or
to
stand
seised
to
uses
,
but
only
that
the
land
shall
come
,
remain
,
and
be
in
tail
,
or
in
fee
,
and
there
was
no
word
to
assure
the
land
:
and
this
case
is
agreeable
to
the
case
of
21.
H.
7.
18.
by
Rede
,
that
no
use
will
arise
;
and
the
reason
is
plain
,
because
the
covenantor
had
election
,
in
which
manner
he
shall
have
that
,
whether
by
discent
,
or
in
any
other
manner
,
for
if
I
covenant
that
my
land
shall
descend
to
my
son
after
my
death
,
no
use
will
arise
by
this
covenant
,
and
he
put
the
case
in
Chudleys
case
,
that
if
a
man
covenant
that
after
his
death
his
son
shall
have
his
land
in
tall
,
it
is
said
that
the
son
shall
have
an
estate
executed
by
the
Statute
of
27.
H.
8.
and
the
covenantor
shall
have
an
estate
for
life
,
and
so
the
law
makes
in
that
case
fractions
of
estates
,
as
the
case
of
the
Lord
Seymor
Dyer
96.
seems
to
accord
with
this
,
and
besides
those
two
books
he
said
he
could
not
finde
any
book
which
will
warrant
that
,
and
for
that
reason
he
held
those
two
books
to
be
no
law
,
for
if
I
Covenant
,
that
my
son
shall
have
my
land
after
my
death
,
this
will
not
raise
an
estate
to
me
by
implication
for
life
,
and
an
estate
to
my
son
,
and
so
by
such
means
to
change
my
estate
in
fee
,
for
an
estate
for
life
without
more
words
,
for
the
word
covenant
in
his
proper
and
native
signification
is
only
obligatorie
,
and
yet
it
had
been
alwayes
conceived
sufficient
to
raise
an
use
to
him
who
is
not
partie
to
that
,
as
if
I
covenant
with
a
stranger
,
that
I
will
stand
seised
of
my
land
to
the
use
of
my
son
,
this
will
raise
an
use
to
my
son
,
and
yet
neither
my
son
,
nor
the
covenantee
may
have
an
action
of
covenant
,
but
an
use
will
very
well
arise
to
my
son
,
as
if
a
man
bargain
,
and
sell
his
land
in
consideration
of
100.
l.
paid
by
I.
S.
though
in
this
case
the
consideration
ariseth
from
a
stronger
;
yet
that
will
pass
the
use
to
the
bargainee
:
and
in
case
of
covenant
,
it
is
not
this
word
covenant
only
which
creats
the
use
,
but
it
is
rather
the
agreement
of
the
parties
which
is
testified
by
the
covenant
,
for
if
sufficient
agreement
appears
,
there
will
not
need
this
word
covenant
,
as
if
I
will
agree
and
declare
to
stand
seised
to
the
use
of
my
son
,
by
which
it
appears
that
the
word
covenant
is
onely
declarative
of
the
intentions
of
the
parties
;
and
then
in
the
principal
case
the
covenant
is
,
not
that
the
son
shall
have
the
land
,
but
that
the
land
shall
come
,
remain
,
and
be
to
him
:
and
those
words
are
incertain
as
21.
H.
7.
redert
,
come
,
or
discent
:
and
for
that
reason
it
is
all
one
with
the
law
of
the
same
case
,
and
then
void
to
raise
any
use
for
the
incertainly
:
and
then
when
Andrew
Buckley
covenants
,
that
his
son
shall
have
his
lands
and
no
words
to
inforce
his
intention
:
and
for
that
reason
the
intention
shall
be
lyable
to
an
action
of
covenant
,
and
not
to
change
his
estate
which
he
had
in
fee
,
for
an
estate
for
life
by
this
covenant
,
but
if
he
had
expresly
covenanted
that
in
consideration
of
marriage
of
his
son
,
that
he
would
hold
his
land
for
life
,
and
after
this
should
be
to
his
son
,
this
will
change
the
estate
which
was
in
fee
,
for
an
estate
for
life
,
but
in
our
case
the
covenant
being
general
and
left
to
the
indifferent
construction
of
the
law
,
the
word
covenant
shall
be
taken
in
his
proper
and
native
signification
,
and
this
is
obligatorie
:
and
so
he
concluded
,
that
this
covenant
being
at
the
first
to
grant
a
rent
,
and
was
executory
,
and
the
last
part
of
that
is
executory
for
assurance
:
and
the
limitation
of
the
estate
to
the
son
being
intangled
between
these
two
Covenants
,
this
shall
be
of
the
same
nature
;
and
by
consequence
the
covenant
is
obligatorie
only
,
and
will
raise
no
use
to
the
son
:
and
so
he
concluded
,
that
judgement
shall
be
given
for
the
Plantiff
,
and
it
was
commanded
to
be
entered
accordingly
.
Sparrow
against
Sowgate
.
IN
debt
by
Sparrow
against
Sowgate
,
who
declared
that
the
Defendant
became
Bail
for
one
Richard
Sowgate
in
Banco
Regis
,
against
whom
the
Plantiff
had
brought
a
Bill
of
debt
of
77.
l.
and
now
the
Defendant
bound
himself
in
a
Recognizance
of
77.
l.
upon
which
the
action
is
now
brought
,
that
in
case
judgement
should
be
given
against
the
said
Richard
Sowgate
,
that
he
shall
satisfie
the
said
judgement
,
or
render
his
bodie
to
prison
,
for
in
this
case
no
part
was
impossible
,
for
after
the
judgement
the
principal
may
render
himself
,
in
B.
R.
to
the
Marshal
for
the
redemption
of
his
suretie
,
and
that
is
the
Common
course
there
as
he
said
,
but
he
agreed
the
case
to
be
otherwise
,
if
a
scire
facias
issue
out
of
the
Kings
Bench
against
the
Bail
,
for
there
the
death
of
the
principal
is
a
good
plea
:
for
a
scire
facias
doth
not
lie
there
till
default
is
assigned
in
the
principal
,
in
his
not
comming
upon
the
capias
ad
satisfaciendum
,
which
may
not
be
when
he
is
dead
.
Note
that
,
but
yet
before
any
capias
,
it
is
clear
he
may
have
an
action
of
debt
.
Sir
Robert
Hitcham
Serjeant
of
the
King
to
the
contrary
,
and
he
alledged
this
to
be
the
constant
course
in
the
Kings
Bench
,
that
the
Bail
is
never
chargable
till
there
is
default
assigned
in
the
principal
upon
the
recorn
of
the
Capias
ad
satisfaciendum
,
which
may
not
be
here
,
for
the
principal
is
dead
;
and
he
agreed
the
case
of
the
other
side
,
that
when
a
man
is
to
do
two
things
though
the
one
is
become
impossible
,
yet
he
ought
to
perform
the
other
:
but
when
it
is
in
the
election
of
one
to
make
either
the
one
or
the
other
,
then
it
is
otherwise
;
see
Dyer
262.
and
so
he
concluded
for
the
Defendant
.
Hobert
chief
Iustice
said
,
that
it
is
inconvenient
that
the
Plantiff
shall
be
forced
to
sue
his
Capias
ad
satisfaciendum
against
the
partie
,
before
he
have
execution
against
the
Bail
,
for
perchance
he
will
sue
a
fieri
facias
or
an
elegit
against
him
,
and
that
the
Corps
of
the
partie
will
not
satisfie
him
:
and
Browlow
Prothonotary
said
,
that
it
had
been
adjudged
in
this
Court
,
that
such
plea
is
not
good
:
Winch
,
the
course
of
the
Kings
Bench
is
,
that
default
shall
be
assigned
upon
the
retorn
of
the
principal
before
the
Bail
shall
be
charged
:
and
though
the
Plantiff
refuse
to
take
his
bodie
after
he
had
made
his
election
to
take
his
fieri
facias
or
elegit
,
he
shall
never
more
resort
to
the
Bail
,
which
was
granted
by
Hobert
and
Hutton
,
as
to
that
last
point
:
and
it
was
holden
by
all
the
Court
,
that
if
the
principal
render
his
bodie
,
though
the
Plantiff
refuse
to
take
that
,
yet
that
is
a
discharge
of
the
Bail
,
and
also
it
was
agreed
by
Hutton
,
Hobert
,
and
by
Winch
;
that
if
the
course
of
the
Kings
Bench
be
such
,
that
the
Bail
shall
not
be
forfeit
till
there
is
a
default
assigned
in
the
principal
,
the
same
course
also
shall
be
followed
here
:
and
per
Curiam
if
the
course
of
the
Kings
Bench
be
such
,
that
such
Capias
is
necessary
to
be
awarded
,
that
then
a
convenient
time
shall
be
allowed
for
the
principal
to
render
his
bodie
gratis
,
and
if
the
principal
do
die
before
such
time
the
Bail
is
discharged
;
but
it
was
said
by
Winch
,
if
he
die
before
convenient
time
,
and
the
Capias
is
awarded
,
that
such
death
shall
not
discharge
the
Bail
,
note
that
Iones
Iustice
said
,
that
he
thought
in
this
case
,
that
it
is
necessary
that
the
principal
render
himself
gratis
,
for
when
he
is
let
to
Bail
,
the
law
supposeth
him
to
be
alwayes
in
custodie
,
and
to
be
forth
comming
:
and
for
that
reason
he
ought
to
appear
within
a
convenient
time
when
the
Plantiff
demands
him
,
which
Hobert
also
granted
,
but
he
said
that
there
needs
not
any
demand
,
if
the
course
of
the
Kings
Bench
is
contrary
:
and
Iones
Iustice
said
,
that
he
had
a
judgement
given
in
the
Kings
Bench
,
that
the
bail
is
forfeit
after
default
is
assigned
in
the
principal
,
and
Winch
said
,
that
the
course
of
the
Kings
Bench
is
,
that
default
ought
to
be
assigned
in
the
principal
,
upon
the
return
of
the
Capias
before
the
Bail
shall
be
charged
:
and
it
was
agreed
,
if
that
course
be
there
,
it
shall
be
observed
here
also
;
but
it
was
said
by
Hutton
,
that
there
ought
to
be
a
scire
facias
awarded
,
and
returned
against
the
Bail
,
before
the
Bail
is
forfeit
;
and
it
was
adjourned
until
another
time
that
they
might
see
presidents
.
Cyprian
Web
against
Barlow
.
CYprian
Web
brought
a
replevin
against
Barlow
,
and
the
Defendant
avowed
as
lessee
for
life
of
the
Mannor
of
Froston
,
to
which
the
Plantiff
is
a
Copiholder
of
a
Copihold
of
the
same
Mannor
;
and
that
15.
Iaco.
in
mense
May
he
girdled
and
cut
a
tree
in
the
middle
upon
his
Copihold
,
and
that
the
steward
Anno
Supradicto
charged
the
homage
to
finde
this
,
by
which
he
had
forfeit
his
Copihold
,
and
the
Defendant
being
Lord
of
the
Mannor
distrained
his
beasts
damage
feasant
,
and
the
Plantiff
said
,
that
the
custome
of
the
Mannor
is
,
that
every
Copiholder
may
lap
and
girdle
absque
hoc
that
he
cut
the
tree
,
and
upon
that
the
Defendant
demurred
,
and
Attoe
argued
for
the
Plantiff
in
the
replevin
,
that
this
is
no
cause
to
forfeit
the
Coppihold
,
for
though
the
steward
did
charge
the
homage
to
finde
that
,
yet
it
doth
not
appear
,
that
he
gave
any
proof
of
that
.
And
secondly
,
the
forfeiture
is
alledged
to
be
in
May
;
and
the
Court
was
holden
in
April
before
,
which
was
impossible
,
which
the
Court
granted
as
to
that
last
point
,
and
for
that
the
Plantiff
had
judgement
.
East
.
22.
Jac.
C.
P.
Easter
Term
in
the
22.
year
of
King
James
in
the
Common
Pleas.
VPon
Wednesday
being
the
25th
.
day
of
April
,
and
the
first
day
of
this
Easter
Term
,
which
was
the
first
day
which
I
came
to
Report
;
and
it
was
agreed
by
the
Court
the
same
day
:
that
if
one
come
to
the
Bar
to
make
his
law
in
debt
,
brought
against
him
upon
a
simple
contract
,
that
the
Plantiff
shall
be
demanded
,
and
if
he
will
be
nonsuit
he
may
,
and
then
the
Defendant
shall
not
recover
costs
against
him
;
but
as
I
have
heard
that
this
was
to
have
been
intended
where
the
Plantiff
was
an
executor
,
or
Administrator
,
and
not
of
any
other
.
Leonard
Barley
against
Foster
.
BEtween
Leonard
Barley
Plantiff
,
and
Foster
Defendant
,
it
was
agreed
without
scruple
by
Winch
and
Hutton
Iustices
only
present
in
the
Court
,
that
if
a
man
infeoff
another
to
the
use
of
A.
for
life
,
and
after
his
death
to
the
use
of
his
daughter
,
till
B.
pay
her
a
100.
l.
and
then
to
other
uses
&c.
to
the
use
of
B.
I.
in
this
case
the
daughter
had
not
any
remedy
for
the
100.
l.
if
B.
will
not
pay
that
,
except
he
make
a
new
promise
,
and
then
upon
that
she
shall
have
an
action
upon
the
case
,
upon
which
if
shee
recover
,
and
have
satisfaction
,
the
use
will
arise
to
B.
but
otherwise
not
,
though
she
have
judgement
to
recover
that
,
and
whether
this
same
is
discharged
,
is
triable
by
the
record
of
the
recovery
.
John
Theaker's
case
.
NOte
that
one
Iohn
Theaker
was
seised
of
certain
lands
,
and
died
in
Ianuary
last
,
and
his
wife
was
married
to
one
Duncombe
within
a
week
after
,
and
one
Alphonsus
Theaker
entered
into
the
land
,
as
Cozen
and
heir
to
Iohn
Theaker
deceased
,
and
the
wife
of
Iohn
Theaker
who
was
dead
gave
out
words
,
that
she
was
with
child
,
by
her
first
husband
,
and
upon
that
Alphonsus
Theaker
had
a
writ
de
ventre
inspiciendo
,
directed
to
the
Sheriff
of
London
,
to
inquire
by
21.
Knights
and
12
women
in
the
presence
of
the
Knights
,
whether
she
was
with
child
or
no
,
and
the
Sheriff
executed
that
,
and
returned
that
they
thought
that
she
should
be
brought
to
bed
within
20.
weeks
,
and
upon
that
it
was
prayed
,
that
the
Court
would
award
according
to
Bracton
,
that
she
may
be
taken
into
custody
,
and
that
she
may
have
divers
women
of
fashion
which
may
attend
her
daily
,
till
she
is
delivered
,
that
no
deceit
may
be
contrived
against
Alphonsus
to
deceive
him
,
but
the
Court
would
not
agree
to
that
,
though
there
was
a
president
urged
,
Hill.
39.
Eliz.
Rot.
1200.
Sir
Percival
Willoughby
and
the
Lady
Willoughby
his
brothers
wife
in
this
Court
:
but
the
Court
awarded
,
that
she
should
not
be
taken
and
detained
from
her
husband
,
but
that
a
writ
should
issue
to
the
Sheriff
of
Surrey
,
whither
the
woman
was
now
removed
to
return
divers
sufficient
women
which
may
resort
to
her
daily
,
till
she
is
delivered
,
which
was
done
accordingly
.
Fosters
case
.
FOster
brought
an
action
of
debt
of
300.
l.
against
C.
upon
2.
obligations
,
dated
20.
December
to
pay
him
150.
l.
&c.
and
averred
he
had
not
paid
that
,
and
did
not
say
,
nor
any
part
of
that
:
and
Bing
took
exception
to
that
in
arrest
of
judgement
,
because
he
had
not
averred
,
that
he
had
not
paid
any
part
of
that
,
and
perchance
he
had
paid
part
,
but
not
all
;
but
Hutton
said
,
that
it
is
very
good
,
though
this
be
upon
several
bonds
,
and
it
any
be
paid
,
it
ought
to
come
of
the
other
part
to
shew
that
.
Woolsey
was
outlawed
at
the
suit
of
Iones
,
in
an
action
of
debt
upon
an
obligation
,
and
the
Capias
ut
legatum
was
taken
out
of
the
Court
of
the
common
pleas
,
where
he
was
outlawed
in
Trinity
Term
21.
Iac.
and
in
December
following
,
Woolsey
was
warned
to
be
at
the
Town
of
Shrewsbury
to
chuse
Burgesses
:
and
before
the
day
a
binding
process
,
did
issue
out
of
the
Marshes
of
Wales
against
Woolsey
,
after
Iones
had
delivered
the
Capias
ut
lagatum
to
the
Sheriff
to
take
Woolsey
,
and
the
same
morning
that
the
election
was
,
Woolsey
was
taken
upon
the
Capias
ut
lagatum
,
but
he
was
suffered
to
go
and
to
give
his
voice
in
the
election
,
and
then
the
Baileys
of
the
Marches
of
Wales
arrested
him
upon
the
process
;
and
because
the
Bailiffs
of
the
Sheriff
,
would
not
suffer
the
Bailiffs
of
the
Marches
to
take
him
away
from
them
,
there
was
gathered
a
great
riotous
companie
on
both
sides
,
but
the
Bailiffs
of
the
Sheriff
took
him
away
,
and
they
and
all
them
,
who
took
their
parts
were
sued
in
the
Marches
,
for
the
withstanding
their
Bailiffs
,
and
upon
this
Harris
moved
for
a
Prohibition
,
and
the
Court
&c.
Winch
and
Iones
said
,
that
if
he
is
outlawed
bona
fide
it
shall
be
granted
,
for
the
Bailiffs
of
the
Sheriff
had
lawfully
arrested
him
,
and
it
is
lawful
for
them
to
keep
him
,
and
for
others
to
assist
them
;
and
Winch
said
,
that
if
the
persons
which
stood
by
,
had
refused
to
help
them
,
this
had
been
also
sinable
,
and
it
was
said
,
that
the
suffering
him
to
go
to
the
election
,
was
not
any
signe
of
a
fraudulent
arrest
;
nay
,
if
the
partie
himself
,
had
consented
to
a
fraudulent
arrest
upon
a
Capias
ut
lagatum
,
this
had
not
been
punishable
,
though
they
had
known
that
there
had
been
binding
Process
out
against
him
,
because
the
arrest
&
the
detainer
was
lawful
,
and
agreed
in
the
principal
case
,
that
a
Prohibition
shall
be
granted
;
and
it
was
said
,
that
the
other
side
are
punishable
,
because
they
did
not
aide
the
Sheriff
,
for
the
officers
of
the
other
side
were
the
cause
of
the
Riot
.
Sir
Michael
Wharton
,
and
Sir
Edward
Hide
.
IT
was
agreed
without
scruple
,
between
Sir
Michael
Wharton
and
Sir
Edward
Hide
,
that
if
a
man
in
an
avoury
convey
a
good
estate
for
years
to
two
,
and
one
release
to
another
,
that
is
not
good
,
without
the
shewing
of
a
deed
in
that
case
.
Michael
Bone
,
and
the
Bishop
of
Norwich
.
IT
was
agreed
between
Michael
Bone
,
and
the
Bishop
of
Norwich
in
trespas
,
that
by
the
lease
of
a
Grange
,
and
all
houses
and
buildings
thereupon
,
and
belonging
or
let
heretofore
to
one
Edward
Garrard
;
that
in
this
case
,
if
it
may
not
be
proved
,
that
the
Tithes
were
not
let
to
Garrard
,
then
they
will
not
pass
by
this
lease
,
for
it
is
not
possible
that
Tithes
shall
pass
as
appurtenances
to
a
grange
,
because
that
they
are
of
several
natures
:
except
as
Winch
said
,
that
the
Grange
is
the
Gleab
;
for
if
it
is
,
then
the
Rectory
may
pass
by
this
name
.
William
Trist
,
and
Cawtrel
,
at
the
suit
of
Heath
.
WIlliam
Trist
and
Cawtrel
,
were
bound
in
an
obligation
of
40.
l.
to
one
Heath
,
who
brought
an
action
of
debt
upon
that
,
and
recovered
at
the
assizes
,
and
now
it
was
moved
in
arrest
of
judgement
,
that
this
was
a
mistrial
,
for
the
venire
facias
was
between
Heath
and
Iohn
Trist
,
and
the
Sheriff
returned
,
that
to
be
between
Heath
and
William
Trist
;
and
for
this
variance
he
shall
not
have
judgement
in
the
Case
.
Hutton
said
,
in
the
case
between
Mankleton
and
Allen.
MAnkleton
and
Allen
,
that
is
a
man
had
goods
taken
from
him
,
which
taking
he
supposeth
to
be
fellony
,
but
it
is
not
,
and
he
complains
to
a
Iustice
of
peace
of
that
,
who
commits
the
offender
,
and
bindes
the
other
to
prosecute
:
and
he
accordingly
preferred
a
Bill
at
the
Sessions
,
and
the
other
is
acquitted
;
and
the
opinion
of
Hutton
in
this
case
was
,
that
this
is
not
punishable
,
by
an
action
upon
the
case
in
the
prosecuter
,
for
that
shall
never
be
maintained
without
apparant
malice
in
the
prosecutor
.
Blunt
and
his
wife
against
Hutchinson
.
BLunt
and
his
wife
brought
a
quare
Impedit
against
Hutchinson
,
and
made
title
to
present
to
the
Church
in
the
right
of
his
wife
,
and
after
the
issue
joyned
,
and
before
the
venire
facias
the
wife
died
,
and
the
Plantiff
shewed
,
that
himself
had
took
out
a
venire
facias
in
his
own
name
,
and
upon
that
Harris
demurred
in
law
,
because
he
supposed
that
the
writ
was
abated
;
but
Winch
was
of
opinion
,
that
the
writ
was
not
abated
,
because
this
was
a
Chattel
vested
in
the
husband
during
the
life
of
the
wife
.
Ferrers
against
English
.
IN
an
action
upon
the
case
,
upon
a
promise
between
Ferrers
and
English
,
and
upon
non
assumpsit
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
,
that
the
venire
facias
was
not
well
awarded
,
for
it
was
proecipimus
quod
tibi
venire
facias
Duodecim
.
liberos
et
Legales
homines
Coram
Henrico
Hobert
apud
Westmonasterium
,
where
that
ought
to
be
Coram
Iusticiariis
nostris
,
and
therefore
the
writ
being
insufficient
it
is
not
amendable
,
and
for
that
he
cited
the
case
where
the
venire
facias
was
awarded
to
th
Coroner
,
and
that
ought
to
be
awarded
to
the
Sheriff
,
and
this
adjudged
to
be
erroneous
,
this
case
was
answered
,
that
this
was
the
custome
,
and
there
was
a
case
alledged
to
be
adjudged
30.
Eliz.
between
Cesor
and
Story
,
where
a
Capias
did
issue
out
of
this
Court
,
in
this
form
,
Ita
quod
habeas
Corpus
ejus
Coram
Iusticiariis
omitting
apud
Westmonasterium
;
and
this
was
reversed
for
error
;
but
this
was
answered
to
be
in
an
original
,
which
ought
to
be
precise
,
in
every
point
;
but
Serjeant
Crook
said
,
that
because
this
was
but
judicial
process
,
and
the
trial
is
taken
upon
the
habeas
corpus
that
it
is
amendable
,
for
in
all
cases
where
the
roll
is
right
,
though
there
be
an
error
in
the
venire
facias
;
yet
this
is
amendable
.
Sir
Robert
Nappers
case
.
A
Rent
was
granted
to
Sir
Robert
Napper
,
and
if
it
happen
that
this
annual
rent
to
be
behinde
,
that
then
the
land
shall
at
all
times
be
open
,
and
subject
to
distress
of
the
Grantee
,
according
to
the
true
form
and
effect
of
the
said
indenture
;
and
upon
all
the
pleading
a
demurrer
was
joyned
,
and
the
sole
doubt
was
,
whether
the
last
words
were
a
distinct
covenant
by
themselves
,
for
if
they
are
,
then
the
obligation
is
forfeit
,
for
the
lands
are
not
open
to
distress
,
because
that
the
mother
of
Sir
Robert
held
that
till
the
age
of
24.
years
,
or
whether
they
are
part
of
the
former
covenant
,
and
then
the
former
worde
will
qualifie
that
,
because
there
was
not
any
act
made
by
him
to
the
contrary
,
and
it
was
argued
by
Bawtrie
,
that
they
are
all
one
covenant
,
for
they
charge
the
land
with
the
Annuitie
,
and
he
covenants
that
this
shall
be
open
to
distress
,
and
it
is
all
one
matter
and
thing
,
and
is
therefore
a
covenant
;
and
where
one
covenant
doth
depend
upon
another
,
there
one
expounds
the
other
,
so
Dyer
in
Throgmortons
case
151.
and
he
urged
many
cases
which
are
cited
there
,
and
he
cited
the
Lord
Cromwels
case
,
where
words
of
proviso
are
placed
between
words
of
covenants
,
yet
they
will
work
according
to
the
intent
of
the
persons
,
and
there
it
is
said
,
that
ex
antecedentibus
et
consequentibus
fiat
relatio
:
and
so
it
appears
to
him
,
that
this
referred
to
the
estate
which
Sir
Thomas
had
from
his
father
,
and
that
he
made
nothing
to
impeach
or
to
alter
that
and
he
cited
the
case
of
Sir
Moile
Finch
,
though
by
the
fine
the
Mannor
of
Beamstone
was
destroyed
;
yet
in
the
said
indenture
,
free
egress
and
regress
was
reserved
to
the
Courts
for
the
Lady
Finch
:
&
afterwards
an
other
fine
was
levied
of
all
the
lands
and
Tenements
,
except
the
Mannor
of
Beamstone
,
where
in
verity
that
was
destroyed
before
,
and
yet
the
judges
did
construe
this
to
be
a
good
exception
,
because
this
was
in
verity
the
intent
of
the
parties
,
and
there
they
made
a
construction
upon
the
covenants
,
which
did
lead
the
fine
,
and
upon
the
latter
indenture
which
did
direct
the
others
,
and
so
the
principal
case
,
in
Althams
case
the
judges
did
not
only
adjudge
upon
the
first
words
of
the
lease
,
but
upon
altogether
,
and
he
cited
the
case
of
Hickmote
where
the
exception
extends
to
all
the
parties
of
the
precedent
deed
:
and
Hendon
argued
to
the
contrary
,
that
they
were
several
covenants
,
and
yet
he
granted
,
all
the
cases
cited
by
Bawtrie
,
but
said
,
they
all
stood
upon
this
difference
,
where
it
is
a
joynt
thing
,
and
where
it
is
a
several
thing
as
here
,
and
for
that
reason
,
that
ought
not
to
be
applies
to
that
,
for
they
are
distinct
sentences
,
and
not
joynt
,
as
is
expressed
in
Sir
Henry
Finches
case
,
Coo.
6.
and
they
ought
to
be
construed
as
distinct
covenants
,
for
otherwise
they
shall
not
take
effect
at
all
,
for
then
he
had
not
any
remedy
,
for
the
rent
which
is
expresly
against
the
intentions
of
the
parties
,
and
Crawley
Serjeant
said
,
that
if
the
two
first
covenants
were
according
to
the
title
,
and
the
last
was
only
conditional
,
if
the
rent
was
behinde
,
that
then
it
should
be
open
to
distress
,
and
the
Court
seemed
that
they
were
several
covenants
,
but
judgement
was
respited
for
that
time
;
and
the
same
Term
,
the
case
was
moved
again
by
Hendon
,
that
they
were
distinct
covenants
,
and
that
this
was
the
scope
of
the
indenture
,
and
the
intention
of
the
parties
,
that
this
should
begin
presently
,
and
secondly
,
the
two
covenants
are
of
several
natures
,
and
if
the
third
covenant
be
not
several
,
then
it
is
idle
,
for
all
is
implied
in
the
first
,
and
day
was
further
given
to
advise
of
that
,
but
the
opinion
of
the
Court
seemed
to
be
for
the
Plantiff
.
See
after
Trin.
22.
Iac.
Westlie
against
King
.
WEstly
against
King
in
debt
the
bond
did
bear
date
the
11th
.
of
February
18.
Iac.
and
this
was
to
perform
an
award
,
Ita
quod
the
ward
be
made
before
Easter
,
of
all
controversies
depending
between
them
in
the
Star
chamber
,
and
the
Defendant
pleaded
,
that
there
was
no
award
made
in
the
mean
time
,
and
the
other
shewed
the
award
,
and
assigned
the
breach
,
and
the
Defendant
replied
,
that
before
the
award
was
made
&c.
upon
the
16th
.
of
March
;
they
discharged
the
Arbitrators
,
and
so
concluded
as
at
the
first
they
made
no
award
;
and
now
Serjeant
Davenport
moved
,
that
he
had
not
maintained
his
bar
,
quod
non
fecerit
tale
arbitrium
,
and
have
given
the
discharge
in
evidence
,
for
now
it
appears
,
that
the
bond
is
forfeit
;
but
Hutton
said
,
that
the
Plantiff
ought
to
have
shewed
this
discharge
,
and
so
he
had
shewed
the
forfeiture
,
and
he
said
further
,
that
the
rejoynder
is
an
affirmation
of
the
bar
,
if
they
were
discharged
then
they
made
no
award
,
and
this
notwithstanding
shewed
a
forfeiture
of
the
bond
,
but
not
upon
the
point
which
the
Plantiff
had
alledged
:
and
Winch
said
,
though
this
is
is
so
;
yet
it
appears
,
that
the
Plantiff
had
cause
of
action
by
all
the
record
before
,
and
day
was
given
over
in
the
case
;
and
at
that
day
the
Court
was
of
opinion
,
that
judgement
shall
be
given
for
the
Plantiff
,
for
by
the
rejoynder
the
Defendant
had
shewed
,
that
he
had
forfeited
the
bond
,
though
that
be
another
matter
then
is
in
the
replication
:
and
so
he
shall
have
judgement
,
super
totam
materiam
according
to
the
judgement
in
Francis
Case
Coo.
8.
for
their
the
declaration
stood
good
,
though
the
Plantiff
had
not
cause
of
action
in
the
same
manner
,
yet
because
it
appeared
,
he
had
cause
of
action
he
shall
have
judgement
.
Weaver
against
Best
.
WEaver
against
Best
,
in
debt
for
48.
s.
in
the
debet
and
detinet
,
and
for
2.
shirts
in
the
detinet
only
,
and
he
declared
,
that
the
Defendant
such
a
year
retained
the
Plantiff
to
be
his
servant
in
husbandry
,
giving
him
48.
s.
and
a
shirt
by
the
year
,
and
he
shewed
that
he
retained
him
for
the
next
year
,
and
he
averred
that
he
served
him
,
and
they
were
at
issue
upon
nihil
debet
,
and
the
Plantiff
had
a
verdict
for
him
,
and
it
was
now
moved
in
arrest
of
judgement
by
Serjeant
Brigman
,
because
he
had
not
shewed
that
his
retainer
was
according
to
the
Statute
of
the
5th
.
of
Eliz.
which
Statute
limitteth
the
form
of
there
retainer
,
and
their
wages
,
and
other
things
,
and
he
had
not
shewed
the
place
where
service
was
,
and
also
he
had
joyned
two
debts
in
one
action
,
one
in
the
debet
,
and
detinet
,
the
other
in
the
detinet
only
;
and
Winch
Iustice
said
,
that
the
Statute
of
the
5.
Eliz.
extends
to
such
as
are
retained
in
husbandry
,
and
therefore
other
retainers
are
left
as
they
were
before
the
Statute
at
the
Common
law
,
and
this
shall
be
intended
to
be
a
retainer
according
to
the
Statute
,
if
the
contrary
be
not
shewed
by
the
other
partie
,
for
his
retainer
was
for
a
year
,
and
therefore
it
shall
be
intended
,
that
the
wages
was
appointed
by
the
Iustices
,
and
it
was
also
said
by
the
Court
,
that
if
the
justices
of
the
peace
in
this
kinde
,
do
neglect
to
set
down
the
wages
,
yet
a
servant
may
bring
an
Action
upon
his
own
contract
;
also
it
was
said
,
that
he
needs
not
to
shew
the
place
where
he
served
,
for
if
he
did
no
service
;
yet
if
he
did
not
depart
it
is
very
good
;
and
for
the
other
matter
it
was
clear
,
that
he
may
bring
his
Action
,
so
by
several
precipes
in
one
writ
.
Thornes
case
.
IT
was
agreed
clearly
between
Thorn
and
C.
that
where
an
obligation
is
made
,
and
the
obligor
,
and
the
obligee
,
conferred
about
it
,
and
the
obligor
said
to
the
obligee
,
that
he
had
forged
this
,
this
is
actionable
,
for
here
it
refers
to
a
certainty
,
but
if
he
had
said
to
the
other
thus
,
he
was
a
forger
,
and
had
forged
falsā
writings
no
action
will
lie
,
for
the
words
are
to
general
in
that
case
,
also
it
was
agreed
clearly
by
the
Court
,
the
Sheriff
may
not
arrest
a
man
upon
a
Capias
after
the
time
of
the
return
of
the
writ
.
Grasier
against
Wheeler
.
Grasier
as
Executor
brought
an
action
of
Covenant
against
Wheeler
,
upon
a
lease
made
by
the
Testator
rendring
rent
,
and
this
was
made
by
I.
S.
and
the
Defendant
covenanted
,
that
the
lessee
should
pay
the
rent
,
and
the
Plantiff
assigned
the
breach
in
non-payment
of
30.
l.
to
the
Testator
such
a
day
when
it
was
due
,
and
for
10.
l.
due
in
his
own
time
,
and
the
attorney
of
the
Defendants
as
to
the
10.
l.
pleaded
non
sum
informatus
,
and
as
to
the
other
he
pleaded
,
that
the
Defendant
paid
to
the
Testator
7.
l.
in
money
,
and
a
horse
in
full
satisfaction
of
all
the
said
30.
l
,
and
that
the
Testator
accepted
that
in
full
satisfaction
,
and
the
Plantiff
said
,
that
this
was
paid
to
the
Testator
for
another
debt
absque
hoc
,
that
he
received
that
in
satisfaction
of
the
30.
l.
and
now
Devenport
argued
,
that
the
issue
was
misjoyned
,
for
the
issue
ought
to
have
been
taken
upon
the
payment
,
and
not
upon
the
acceptance
;
and
he
cited
Pinnels
case
Coo.
5.
where
the
payment
in
full
satisfaction
ought
to
be
pleaded
precisely
;
and
he
said
,
that
he
agreed
to
the
case
of
Nichols
Coo.
5.
where
the
issue
was
joyned
upon
payment
upon
a
single
Bill
,
and
found
that
this
was
not
paid
,
and
the
Plantiff
had
judgement
;
but
if
the
issue
had
been
found
for
the
Defendant
,
that
had
not
been
aided
by
the
Statute
,
for
though
it
had
been
paid
;
yet
that
was
no
bar
.
Bridgman
contrary
:
and
he
said
the
difference
is
,
where
the
issue
is
joyned
upon
a
matter
alledged
by
the
adverse
partie
,
and
they
are
at
issue
upon
a
point
which
is
not
material
,
that
is
aided
by
the
Statute
of
the
18.
Eliz.
and
where
no
issue
at
all
is
joyned
there
is
not
any
help
.
Winch
Iustice
said
,
that
this
is
an
issue
which
will
make
an
end
of
the
matter
,
And
at
another
day
this
Tearm
,
Serjeant
Harvey
moved
the
case
again
in
arrest
of
judgement
,
because
the
issue
is
joyned
upon
the
acceptance
,
which
is
not
material
;
and
he
cited
Fowkes
case
depending
in
this
Court
,
debt
upon
an
obligation
,
and
the
Defendant
pleaded
the
acceptance
of
another
obligation
in
satisfaction
which
in
verity
is
no
bar
,
and
issue
was
taken
upon
that
,
and
it
was
doubted
whether
this
being
insufficient
,
be
aided
by
the
Statute
or
not
.
Bridgman
Serjeant
said
to
the
contrary
,
and
he
said
as
before
,
that
because
the
issue
is
taken
upon
the
allegation
of
the
Defendant
if
it
is
not
good
;
yet
it
is
aided
by
the
Statute
of
32.
H.
8.
and
Hutton
said
this
is
a
full
issue
,
and
as
to
the
traverse
said
,
it
is
a
material
issue
,
for
he
pleaded
,
that
he
accepted
them
for
another
thing
absque
hoc
;
that
he
accepted
them
in
satisfaction
of
the
30.
l.
which
is
the
most
proper
issue
,
for
he
said
it
is
clear
,
that
he
may
say
that
he
accepted
them
for
part
&c.
and
good
,
and
so
here
.
The
Countess
of
Barkshire
,
and
Sir
Peter
Vanlore
in
Dower
.
IT
was
agreed
clearly
in
Dower
,
between
the
Countess
of
Barkshire
and
Sir
Peter
Vanlore
,
that
if
the
Tenant
plead
never
seised
to
have
Dower
,
and
in
verity
the
husband
of
the
demandant
had
an
estate
,
but
that
was
by
disseisin
,
which
is
avouched
by
the
entrie
of
the
deseissee
,
who
had
a
title
paramont
this
is
no
title
,
by
which
she
may
have
Dower
,
though
they
are
at
issue
upon
this
plea
,
and
also
it
was
agreed
,
that
if
a
man
had
a
good
estate
by
bargain
and
sale
from
him
who
had
right
to
alien
that
,
and
yet
after
he
accepts
a
fine
upon
conusance
of
right
as
that
&c.
from
the
other
partie
,
though
in
this
case
this
be
a
conclusion
to
the
parties
between
whom
the
fine
was
,
to
denie
that
the
land
was
of
the
gift
of
the
Conusor
,
and
so
that
he
was
seised
;
yet
it
is
not
any
conclusion
to
the
jurors
to
finde
the
verity
of
the
matter
in
fact
,
and
that
he
had
nothing
of
the
gift
of
the
Conusor
;
also
it
was
agreed
in
that
case
,
if
a
man
held
lands
in
capite
,
and
others
in
Soccage
,
and
he
made
a
devise
of
all
his
fee
simple
lands
,
and
left
only
his
lands
in
tail
to
descend
to
the
heir
which
doth
not
amount
to
a
full
third
part
,
this
is
a
good
devise
of
all
the
fee
simple
lands
:
and
this
case
was
also
admitted
,
that
where
the
Lord
Norrice
gave
land
to
Sir
Edward
Norrice
his
youngest
son
,
and
to
the
heirs
of
the
bodie
of
the
father
,
and
then
the
Lord
Norrice
died
,
and
after
Sir
Edward
died
without
issue
,
that
the
son
of
the
eldest
Brother
who
was
then
dead
,
shall
take
that
as
heir
in
tail
,
and
that
he
in
this
case
had
that
by
a
descent
from
Sir
Edward
Norrice
his
Vncle
,
which
also
doth
clearly
prove
,
that
in
this
Sir
Edward
Norrice
son
of
the
Lord
Norrice
was
in
this
case
Tenant
in
tail
.
The
residue
of
Easter
Term
in
the
two
and
twenty
year
of
King
James
.
Stephens
and
Randal
.
IN
replevin
between
Stephens
and
Randal
,
who
made
Conusance
as
Bailiff
to
the
Earl
of
Bath
,
and
he
shewed
that
such
land
was
parcel
of
such
a
Chantrey
,
which
came
to
King
Edward
6.
by
the
Statute
of
1.
Edward
6.
and
also
he
pleaded
the
saving
of
the
said
Statute
,
by
which
the
right
of
others
was
saved
,
and
pleaded
all
incertain
,
and
shewed
that
so
much
rent
was
behinde
,
upon
which
he
made
Conusance
as
&c.
to
which
the
Plantiff
replied
,
that
the
land
is
out
of
the
fee
and
signiorie
of
the
Earl
of
Bath
&c.
and
this
was
ruled
to
be
no
plea
,
for
he
confessed
so
much
in
his
avoury
,
and
this
avoury
is
not
for
rent
service
,
for
the
signiorie
is
extinct
by
act
of
Parliament
;
but
this
is
for
rent
reserved
by
the
saving
of
the
act
of
Parliament
,
and
this
is
a
rent
seek
,
and
yet
is
destrainable
for
the
priviledge
which
was
before
,
but
he
may
traverse
the
tenure
,
that
at
the
time
of
the
making
of
the
Statute
,
nor
never
after
this
was
holden
of
the
said
Earl
of
Bath
.
Priest
and
King
.
Priest
and
King
in
an
action
of
ā
which
was
entered
between
them
Trin.
21
Iac.
Rot.
3595.
and
this
was
debated
between
the
Iudges
and
the
Prothonotaries
,
and
the
case
was
,
that
two
were
bound
for
the
appearance
of
an
other
,
and
judgement
was
given
against
the
debtor
,
now
if
upon
the
capias
he
come
and
offer
his
bodie
,
and
the
Plantiff
refuse
that
,
yet
that
discharges
the
sureties
;
but
the
Prothonotaries
said
,
that
notwithstanding
this
refusal
he
may
take
a
Capias
against
him
within
the
year
,
because
that
at
the
first
he
might
have
had
a
fierie
facias
,
or
an
elegit
quere
of
that
;
but
Winch
thought
that
in
this
case
,
he
ought
to
have
a
fierie
facias
,
but
if
he
had
come
upon
the
Capias
,
and
had
no
suerātes
and
he
refuse
to
take
him
,
and
this
is
so
entred
now
quere
,
if
he
had
not
discharged
him
.
Hendon
moved
the
Court
for
a
prohibition
to
the
spiritual
Court
,
and
suggested
that
one
had
libeld
in
the
spiritual
Court
for
a
legacie
,
and
the
Executor
shewed
that
he
had
not
assets
to
discharge
the
debts
of
the
Testator
,
and
that
Court
would
not
allow
this
allegation
,
and
upon
this
he
prayed
to
have
a
prohibition
:
and
it
was
the
opinion
of
the
Court
,
that
no
prohibition
shall
be
granted
,
for
the
legacie
is
a
thing
meerly
which
is
determinable
in
the
spiritual
Court
,
and
no
other
Court
may
have
Conusance
of
that
,
and
this
is
also
a
thing
which
doth
consist
meerly
in
the
discretion
of
the
Court
;
and
resolved
that
in
a
thing
which
meerly
doth
rest
in
discretion
of
the
Court
,
in
this
case
no
prohibition
shall
be
granted
.
Henry
Good
against
Thomas
Good
.
IT
was
agreed
in
the
case
by
the
Court
,
between
Henry
Good
and
Thomas
Good
,
that
if
the
devisee
of
500.
l.
sue
in
the
Marches
of
Wales
for
this
legacie
,
that
a
prohibition
is
grantable
,
for
though
the
Court
of
the
Common
pleas
had
no
power
to
hold
plea
of
that
,
yet
because
that
the
thing
is
only
triable
in
the
Ecclesiastical
Court
,
a
prohibition
may
be
granted
to
reduce
that
to
its
proper
Court
:
and
though
the
instruction
of
the
Court
of
the
Marches
be
to
hold
plea
of
all
such
things
,
wheresoever
there
is
no
remedie
at
the
Common
Law
,
yet
this
is
to
be
understood
of
matters
of
equitie
,
and
not
to
take
the
jurisdiction
from
the
spiritual
Court
,
for
in
verity
the
King
may
not
do
that
by
his
Letters
pattents
;
but
yet
the
Court
agreed
,
that
if
the
Executor
do
suffer
a
decree
against
him
in
the
Court
of
the
Marches
,
and
not
come
to
them
at
the
first
to
be
releived
,
it
is
now
meerly
in
the
descretion
of
the
Court
whether
they
will
grant
that
or
no
,
for
that
is
a
means
to
lengthen
suits
,
and
to
make
the
more
delay
,
before
he
do
recover
his
legacie
.
If
a
Capias
ut
legatum
issueth
to
the
Sheriff
to
take
the
partie
,
and
to
enquire
what
lands
and
Tenements
he
had
,
and
the
Sheriff
findes
by
inquisition
that
he
is
seised
of
many
lands
,
and
continues
possession
in
them
,
and
the
Sheriff
do
out
me
,
I
shall
have
an
action
of
trespass
.
John
Marriots
case
.
SErjeant
Crawley
moved
this
case
in
arrest
of
judgement
in
the
case
of
Iohn
Marriot
,
and
he
declared
upon
a
contract
,
to
table
with
the
Plantiff
at
Ashton
in
Northamptonshire
,
&
ad
tunc
&
ibidem
superse
assumpsit
to
pay
4.
s.
by
the
week
for
his
diet
;
and
Crawley
moved
,
that
this
ought
to
have
bin
tried
in
Northamptonshire
,
for
these
words
ad
tunc
et
ibident
refer
to
Northamptonshire
which
was
next
before
,
and
not
to
London
:
Hutton
said
,
that
it
ought
to
refer
to
London
,
otherwise
it
was
idle
,
and
it
is
to
be
intended
of
the
time
and
the
place
where
the
promise
was
made
,
but
it
was
said
if
the
issue
had
been
,
whether
he
was
tabled
or
no
this
shall
be
tried
there
.
Giles
Bray
against
Sir
Paul
Tracie
.
GIles
Bray
brought
an
action
of
waste
against
Sir
Paul
Tracie
,
and
in
his
declaration
he
conveyed
a
good
tearm
to
the
Defendant
,
and
a
reversion
to
himself
;
and
upon
a
general
issue
a
special
verdict
was
found
to
this
effect
:
that
Sir
Edmund
Bray
was
seised
of
this
land
in
his
demeasne
as
of
fee
,
and
he
being
so
seised
16.
Eliz.
made
this
lease
for
divers
years
to
I.
S.
and
he
being
so
seised
of
the
reversion
conveyed
that
to
the
use
of
himself
for
life
without
impeachment
of
waste
,
and
then
to
the
use
of
Edward
Bray
his
eldest
son
,
and
to
Dorothie
his
wife
,
and
to
the
heirs
males
of
the
said
Edward
,
upon
the
said
Dorothie
to
be
ingendred
,
and
then
Edward
died
having
issue
in
tail
the
Plantiff
,
and
then
this
lease
was
assigned
to
Tracie
,
and
then
Dorothie
died
,
and
then
the
waste
was
committed
,
and
then
Edmund
the
Grandfather
died
,
and
the
question
was
,
whether
in
this
case
an
action
of
waste
will
lie
or
no.
The
argument
of
Serjeant
Harris
.
HArris
argued
,
that
the
waste
doth
lie
,
for
the
priviledge
or
despensation
,
which
was
annexed
to
the
reversion
,
for
life
of
the
Grandfather
is
no
dispensation
to
the
estate
of
the
lessee
,
for
though
the
action
was
suspended
during
his
life
;
yet
now
it
is
on
foot
again
,
and
in
many
cases
an
estate
may
be
dispunishable
of
waste
,
and
yet
by
matter
ex
post
facto
this
shall
be
punishable
,
viz.
where
the
first
privitie
of
the
estate
was
determined
,
as
in
case
a
lease
for
years
be
without
impeachment
of
waste
,
and
then
the
lessor
releases
to
the
lessee
&c.
the
first
privity
is
gone
,
and
he
is
now
punishable
in
an
action
of
waste
,
and
here
in
our
case
there
was
no
absolute
dispensation
,
but
only
for
the
time
,
and
yet
perchance
though
the
estate
is
subject
to
waste
in
the
creation
,
yet
if
the
lessor
will
afterwards
,
by
his
deed
grant
that
this
shall
be
dispunishable
,
this
may
priviledge
him
,
but
here
is
no
such
matter
in
the
case
at
the
bar
,
and
of
this
opinion
was
the
Court
,
and
Winch
said
,
that
there
was
no
difference
where
the
Franke
tenement
is
intercedent
;
for
if
this
be
not
punishable
,
yet
the
particular
estate
shall
not
participate
of
that
priviledge
of
him
in
the
remainder
:
and
Iones
Iustice
said
,
if
the
particular
estate
had
been
extracted
,
and
drawn
out
of
that
estate
for
life
,
in
that
case
that
had
been
dispunishable
;
but
it
was
agreed
by
Hendon
Serjeant
,
that
the
Plantiff
in
his
declaration
had
declared
of
a
waste
after
the
estate
for
life
was
determined
,
and
they
found
that
this
was
made
in
the
time
of
him
in
reversion
for
life
,
and
so
differed
,
but
the
Court
was
of
opinion
,
that
this
was
nothing
to
the
purpose
,
for
it
is
only
a
variance
from
the
time
,
and
not
from
the
matter
,
for
it
is
not
material
whether
this
was
before
his
death
or
after
his
death
,
because
in
both
cases
this
is
punishable
,
but
day
was
given
over
to
shew
other
causes
.
Portington
and
Beamount
.
IT
was
argued
clearly
in
the
case
,
between
Portington
and
Beamount
,
that
if
the
Court
of
the
Councel
of
York
,
which
is
a
Court
of
equitie
,
do
decree
against
a
maxime
in
law
,
as
against
a
joynt
Tenant
who
had
that
by
Survivorship
,
that
the
heir
of
his
companion
shall
have
the
Moietie
,
that
in
this
case
a
prohibition
shall
be
granted
,
except
that
during
the
lives
of
the
parties
,
it
was
agreed
that
there
shall
not
be
any
Survivorship
,
and
then
they
hold
plea
upon
that
equitie
,
and
then
good
.
In
Dower
it
was
agreed
clearly
,
that
if
the
Tenant
shew
,
that
before
the
husband
any
thing
had
in
the
land
,
A.
was
seised
of
the
same
land
in
fee
,
and
leā
that
for
years
rendring
rent
,
and
granted
the
reversion
to
the
husband
of
the
Plantiff
,
who
died
seised
of
the
said
reversion
,
and
so
demanded
judgement
,
if
the
demandant
shall
have
Dower
&c.
this
is
no
plea
in
bar
of
Dower
,
but
proves
she
had
title
of
Dower
,
but
this
saves
the
lease
for
years
,
and
she
shall
have
judgement
only
of
the
reversion
,
and
of
the
rent
:
and
also
she
doth
save
to
the
Tenant
damages
,
and
the
demandant
shall
be
indowed
of
the
reversion
.
Summers
against
Dugs
.
SUmmers
brought
an
action
upon
the
case
upon
a
promise
against
Dugs
,
and
he
shewed
in
his
declaration
,
that
the
Defendant
was
rector
of
the
Rectorie
of
D.
and
that
he
and
all
his
predecessors
had
used
to
have
all
manner
of
Tithes
,
and
said
that
he
the
Plantiff
occupied
100.
acres
of
land
in
the
same
parish
,
and
shewed
that
the
Defendant
promised
to
the
Plantiff
,
that
in
consideration
that
he
would
plant
his
lands
with
Hops
,
and
so
make
the
Tithes
to
be
the
better
,
the
Defendant
promised
to
the
Plantiff
to
allow
him
towards
every
acre
,
which
he
shall
so
plant
40.
s.
towards
the
charge
in
planting
them
:
and
he
shewed
that
he
planted
an
acre
at
the
request
of
the
Defendant
,
and
so
upon
the
promise
brought
the
action
,
and
now
it
was
moved
whether
this
was
a
good
consideration
to
ground
an
action
,
because
the
Tithes
are
not
bettered
by
the
planting
of
that
with
Hops
,
but
by
the
growing
of
them
,
and
the
increase
of
them
;
and
he
had
not
averred
,
that
the
Tithes
were
of
better
value
then
they
were
before
:
and
it
was
also
moved
,
that
he
may
not
have
an
action
for
the
Rood
&c.
but
this
afterwards
was
referred
to
Arbitrement
;
but
the
Court
said
,
if
the
Plantiff
had
shewed
in
his
declaration
,
that
he
might
have
made
more
benefit
of
that
by
other
means
,
then
that
by
the
planting
of
it
with
Hops
,
the
Tithes
also
being
bettered
,
then
it
had
been
more
cleare
.
Philip
Holman
against
Tuke
.
PHillip
Holman
was
executor
of
George
Holman
,
and
he
brought
an
action
of
debt
against
George
Tuke
,
and
declared
upon
a
lease
made
by
himself
by
the
name
of
Philip
Holman
executor
of
the
Testament
of
George
Holman
deceased
of
such
land
,
and
the
said
land
was
delivered
to
him
in
execution
of
a
Statute
by
extent
,
which
Statute
was
made
to
this
Testator
,
and
this
lease
was
for
years
,
if
the
Plantiff
should
so
long
continue
seised
by
force
of
the
Statute
,
and
it
was
rendring
100.
l.
per
annum
and
for
3.
years
rent
behinde
,
he
brought
his
action
in
the
debet
and
in
the
detinet
,
and
also
in
the
declaration
he
averred
,
that
he
did
continue
seised
so
long
by
vertue
of
the
extent
,
and
Serjeant
Bing
demurred
in
law
,
because
he
said
the
action
ought
to
be
brought
in
the
detinet
only
;
because
he
had
brought
the
action
as
executor
;
but
Hendon
and
the
Court
&c.
Iones
and
Hutton
to
the
contrary
,
because
the
lease
was
made
by
himself
,
and
Hutton
said
in
the
case
there
is
difference
between
a
personal
contract
,
and
real
,
and
it
was
said
,
that
an
executor
shall
never
be
forced
to
bring
his
action
in
the
detinet
only
,
where
he
need
not
name
himself
to
be
an
executor
:
which
note
well
.
It
was
agreed
in
a
case
by
Hobert
,
that
where
a
man
brought
an
action
de
parco
facto
and
declared
upon
the
breach
of
a
pound
,
and
also
of
the
taking
out
of
beasts
;
and
the
Defendant
as
to
the
taking
out
of
the
beasts
,
pleaded
not
guilty
,
and
as
to
the
breaking
of
the
pound
,
he
said
that
he
was
Lord
of
the
Soil
,
upon
which
the
pound
stood
,
and
thaā
he
brake
of
the
Lock
,
and
put
a
lock
of
his
own
;
and
Hobert
said
in
this
case
,
that
he
ought
to
plead
the
general
issue
,
for
in
verity
this
is
not
any
broach
of
the
pound
,
except
the
beast
come
out
of
it
:
and
Iones
Iustice
was
of
an
opinion
,
that
if
he
put
out
the
beasts
he
may
not
have
this
action
,
because
the
freehold
was
in
him
,
but
he
ought
to
have
a
special
action
upon
the
case
.
Entred
in
Easter
Term
in
the
19th
.
year
of
King
James
Rot.
1672.
Ellen
Goldingham
against
Sir
John
Saunds
.
ELlen
Goldingham
brought
an
action
of
Dower
against
Sir
Iohn
Saunds
,
to
be
indowed
of
the
third
part
of
the
Mannor
of
Goldingham
,
and
he
vouched
the
son
to
warranty
,
as
son
and
heir
to
Christopher
Goldingham
,
husband
of
the
demandant
,
who
appeared
,
and
entred
into
warranty
freely
,
and
he
pleaded
that
he
had
nothing
by
descent
from
Christopher
Goldingham
his
father
,
upon
which
plea
the
Tenant
and
the
vouchee
were
at
issue
,
and
the
demandant
had
judgement
against
the
Tenant
to
recover
,
but
cesset
executio
until
the
voucher
is
determined
:
and
after
that
,
and
before
the
day
of
the
nisi
prius
Edward
Goldingham
died
,
and
then
at
the
day
the
Tenant
lost
by
default
,
so
is
the
Record
,
and
now
upon
the
prayer
of
the
demandant
to
have
a
writ
of
seisin
,
these
cases
were
moved
.
First
,
by
Serjeant
Hendon
,
that
the
writ
of
seisin
may
be
stayed
,
because
as
he
said
,
the
Tenant
may
revouch
the
heir
of
the
heir
,
for
it
is
not
possible
,
that
the
vouchee
should
lose
by
default
,
because
that
he
was
dead
,
and
therefore
you
may
see
,
that
he
conceived
,
that
where
it
is
said
in
the
Record
viz.
on
the
back
of
the
postea
,
that
the
Tenant
lost
by
default
,
he
conceived
that
to
be
meant
of
the
vouchee
,
and
not
of
the
Tenant
in
the
writ
of
Dower
:
but
Hutton
was
of
opinion
,
that
admitting
that
it
should
be
so
intended
,
yet
he
may
revouch
,
for
there
was
a
judgement
given
against
him
with
a
cesset
executio
till
the
voucher
is
determined
;
and
that
is
now
determined
by
his
death
,
and
when
judgement
is
once
given
he
had
not
day
in
Court
;
but
if
the
vouchee
had
died
after
the
warranty
,
then
he
may
revouch
,
but
here
the
Court
rather
intended
,
that
the
record
shall
be
meant
that
the
Tenant
in
the
writ
of
Dower
made
default
,
and
then
it
is
not
possible
,
that
ever
he
shall
revouch
,
but
they
said
,
it
had
been
more
question
if
the
Tenant
had
appeared
at
the
day
of
the
nisi
prius
,
and
had
pleaded
the
death
of
the
vouchee
after
the
last
continuance
,
and
had
prayed
the
advantage
of
his
warranty
:
and
at
another
day
Hendon
moved
,
that
the
judgement
given
against
the
Tenant
was
not
good
,
for
it
was
absolute
with
a
cesset
executio
,
where
that
ought
to
be
a
conditional
judgement
&c.
against
the
Tenant
if
the
vouchee
had
not
assets
,
and
if
he
had
,
then
judgement
against
him
according
to
the
Lord
Dyer
202.
Mich.
3.
Ma.
Rot.
508.
for
otherwise
the
Tenant
shall
lose
the
benefit
of
his
warrantie
against
the
voucher
,
and
so
if
the
heir
do
confess
the
assets
,
yet
the
judgement
shall
be
conditional
,
for
otherwise
if
he
had
not
assets
according
to
his
confession
,
the
demandant
shall
have
a
new
judgement
against
the
Tenant
,
and
of
this
opinion
was
Iones
Iustice
.
But
Hutton
said
,
that
this
was
very
well
,
and
that
the
judgement
may
be
either
wayes
conditional
,
or
absolute
,
and
he
said
,
that
this
is
no
prejudice
to
the
warranty
,
for
the
Tenant
may
have
a
scire
facias
against
the
vouchee
;
but
in
this
case
day
was
given
over
till
the
next
Term
;
and
the
Prothonotaries
were
commanded
to
search
the
presidents
concerning
that
.
See
more
after
.
Mary
Over
and
her
second
husband
against
Tucker
.
MAry
Over
and
her
second
husband
brought
an
action
of
Dower
against
one
Tucker
,
and
demanded
Dower
of
the
indowment
,
of
one
Paul
her
fiāst
husband
,
and
it
was
agreed
,
that
this
trial
ought
to
be
by
witnesses
according
to
Dyer
155.
and
it
was
awarded
by
the
Court
,
that
the
the
Councel
of
either
side
should
draw
up
Interrogatories
,
and
put
their
neams
to
them
,
and
then
they
should
be
delivered
to
Master
Waller
the
Prothonotary
,
in
whose
office
the
cause
is
entred
,
and
he
shall
have
the
examination
of
the
witnesses
of
both
sides
,
and
then
seal
up
the
Interrogatories
again
,
and
so
remain
till
they
were
delivered
over
to
the
Court
,
and
then
qui
melius
probat
melius
habet
.
The
residue
of
Easter
Term
in
the
two
and
twentieth
year
of
King
James
in
C.
P.
AN
action
of
debt
was
was
brought
against
an
Executor
,
who
pleaded
plene
Administravit
,
and
the
other
replied
and
shewed
that
before
this
action
brought
,
he
brought
another
action
against
the
Defendant
in
which
he
was
outlawed
,
and
that
after
the
reversal
of
the
outlawrie
he
took
out
this
writ
&c.
and
that
he
had
assets
at
the
first
bringing
of
the
first
writ
,
and
issue
was
taken
upon
that
,
and
it
was
found
for
the
Plantiff
,
and
it
was
resolved
that
the
Plantiff
shall
have
judgement
,
for
this
is
in
nature
of
Journeys
accompts
according
as
it
was
in
Aldridges
case
upon
the
same
matter
,
which
was
long
debated
by
the
Court
,
and
it
was
also
affirmed
to
be
good
law
,
in
a
writ
of
error
brought
of
that
in
the
Kings
Bench
,
for
otherwise
if
it
should
not
be
so
,
the
Defendant
himself
should
take
an
advantage
of
his
own
evil
plea
,
which
the
law
will
not
allow
by
any
means
to
be
suffered
,
but
then
it
was
said
by
the
Court
,
that
in
this
case
,
the
Plantiff
in
the
action
ought
to
bring
his
second
writ
immediately
after
the
reversal
of
the
first
judgement
in
the
outlawry
,
if
he
will
take
any
advantage
of
that
.
Trin.
22.
Jac.
C.
P.
Trinity
Term
in
the
two
and
twentieth
year
of
King
James
in
the
Common
Pleas.
HIckford
brought
an
audita
querela
against
Machin
,
and
the
case
in
effect
was
this
,
Richard
Davis
43.
Eliz.
acknowledged
a
Statute
Merchant
of
500.
l.
before
the
Maior
and
Clark
of
Gloucester
to
Machin
,
and
all
the
circumstances
of
the
Statute
de
mercatoribus
were
well
observed
,
saving
only
that
no
day
of
payment
was
mentioned
,
and
after
the
said
Machin
took
a
lease
for
years
of
part
of
the
land
,
of
which
the
Conusor
was
seised
,
and
after
the
Conusor
died
intestate
,
and
Hickford
took
out
letters
of
Administration
,
and
Machin
sued
execution
against
the
said
Hickford
who
brought
an
audita
querela
:
and
the
single
point
was
,
whether
this
Statute
be
good
,
in
regard
that
no
day
of
payment
is
appointed
,
and
after
divers
arguments
by
the
Serjeants
in
other
Terms
,
this
Term
it
was
argued
by
all
the
Court
,
and
the
effect
of
their
several
arguments
were
in
this
manner
.
Iones
Iustice
began
and
said
,
it
seems
to
me
that
the
Statute
is
good
,
and
that
no
audita
querela
will
lie
,
and
he
said
here
had
been
3.
objections
made
against
this
Statute
;
first
,
that
every
Act
of
Parliament
which
gives
directions
for
the
doing
of
a
thing
,
ought
to
be
precisely
pursued
,
and
shall
not
have
an
explanation
upon
an
explanation
,
and
he
said
,
that
notwithstanding
this
objection
,
he
thought
the
Statute
to
be
good
,
for
in
every
Act
of
Parliament
there
is
substance
,
and
there
is
form
,
and
if
the
substance
be
observed
,
though
not
every
circumstance
,
yet
that
is
very
good
,
and
so
is
the
case
concerning
conditions
,
which
are
as
strictly
to
be
observed
as
any
thing
,
yet
if
the
substance
be
observed
,
though
not
the
very
letter
,
yet
this
is
very
good
;
as
the
case
of
Scroop
,
Acton
Burnel
saith
,
that
the
debtor
shall
come
before
the
Maior
to
acknowledge
that
,
now
this
is
but
a
circumstance
of
the
Statute
,
for
if
the
Maior
come
before
him
,
this
is
very
good
,
for
the
substance
is
,
that
the
Statute
must
be
acknowledged
before
the
Maior
in
proper
person
,
and
not
by
Attorney
,
and
also
the
Statute
saith
,
that
the
recognizance
be
entred
into
the
Roll
with
the
hand
of
the
Clark
,
here
the
inrolment
is
the
substance
,
and
not
the
writing
,
and
so
the
Statute
de
mercatoribus
is
,
that
he
ought
to
come
before
the
chief
Officer
of
the
Citie
&c.
and
yet
it
hath
been
ruled
here
,
that
if
the
Citie
be
governed
by
2.
chief
officers
,
he
ought
to
come
before
them
both
,
for
to
this
purpose
they
are
but
one
:
nay
,
the
Statute
is
,
that
he
shall
be
a
Merchant
who
shall
acknowledge
that
,
and
yet
if
he
be
not
a
Merchant
,
he
is
within
the
compass
of
the
Statute
to
be
a
Conusor
;
but
now
to
the
point
,
whether
this
is
substance
or
circumstance
,
and
I
am
of
opinion
,
that
though
the
day
of
payment
is
not
expressed
,
yet
it
is
very
well
,
for
a
day
may
be
in
that
,
and
yet
not
be
good
,
as
if
it
be
at
Michaelmas
after
I.
S.
shall
come
to
Pauls
,
now
in
this
case
,
because
it
may
not
appear
to
the
Maior
Iudicially
when
to
award
execution
,
therefore
it
is
not
good
;
but
if
this
be
to
pay
the
first
return
of
Michaelmas
Term
,
this
is
very
good
,
for
there
he
may
know
immediately
when
to
award
execution
,
and
the
same
law
if
it
be
to
pay
before
Michaelmas
next
,
or
to
pay
presently
,
as
an
obligation
,
and
so
the
Maior
is
bound
to
take
notice
,
that
this
is
to
be
paid
presently
.
Another
objection
that
it
shall
be
frivolous
,
that
his
bodie
shall
be
taken
so
soon
as
it
is
acknowledged
,
but
I
answer
,
that
this
may
be
very
well
,
for
this
is
for
the
securitie
of
the
Merchant
who
is
the
Conusee
,
and
Merchants
shall
not
be
supposed
to
know
when
tendring
may
be
,
in
regard
,
that
they
are
supposed
to
be
men
of
forreigne
imploment
,
and
so
upon
the
Statute
of
Bankrupts
,
for
the
words
of
the
Statute
are
,
to
every
creditor
a
portion
is
allotted
to
him
;
by
your
construction
the
sale
shall
be
void
,
because
it
is
not
according
to
the
words
of
the
Statute
,
but
you
see
that
this
is
ruled
to
be
against
you
.
The
third
objection
is
explanatorie
to
the
Statute
of
Acton
Burnel
;
and
for
that
it
ought
to
be
precisely
perused
and
not
to
varie
from
that
,
but
I
answer
to
that
,
that
the
Statute
de
mercatoribus
it self
had
not
been
observed
in
every
point
and
circumstance
,
for
the
words
of
the
Statute
are
,
that
if
the
debtor
do
not
pay
at
the
day
,
that
then
the
debtee
may
come
before
the
Maior
and
sue
executtor
,
and
yet
it
was
resolved
Coo.
2.
48.
that
the
executors
of
the
Merchant
may
come
;
and
besides
the
words
of
the
Statute
are
,
that
the
extent
shall
be
of
all
his
lands
,
which
were
in
the
hands
of
the
debtor
at
the
time
of
the
Statute
acknowledged
,
and
yet
if
he
who
is
the
Conusor
purchase
lands
afterwards
;
yet
they
shall
be
liable
to
be
extended
by
force
of
the
same
Statute
,
though
not
made
mention
of
,
and
so
it
is
out
of
the
words
of
the
same
Statute
;
and
so
I
am
of
opinion
,
that
the
Statute
is
good
,
and
that
in
this
case
no
audita
querela
lies
.
The
argument
of
Justice
Hutton
HUtton
contrary
,
I
am
of
opinion
,
that
this
Statute
is
void
,
and
that
the
audita
querela
well
lies
in
this
case
,
and
all
my
argument
shall
be
upon
the
Statute
Acton
,
Burnel
,
for
this
is
the
fundamental
Statute
,
and
I
conceive
that
the
intent
of
the
law
is
,
to
contain
a
certainty
when
the
money
shall
be
paid
;
and
the
conclusion
of
the
Statute
de
mercatoribus
goes
over
,
and
further
then
the
Statute
of
Acton
Burnel
,
for
this
doth
extend
to
all
the
subjects
of
the
Kings
,
(
Iews
only
excepted
)
and
there
is
a
reservation
,
that
this
shall
not
destroy
the
action
of
debt
,
and
also
there
is
a
reservation
to
the
Iudges
,
that
they
may
take
a
recognizance
as
before
,
and
this
Statute
of
Acton
Burnel
was
made
the
11th
.
Edw.
1.
and
there
are
in
that
Statute
several
essential
points
,
And
the
first
part
of
the
Statute
is
,
that
the
debt
and
the
day
of
payment
be
entred
in
the
roll
,
that
so
it
may
appear
whether
the
day
be
past
nor
no
,
and
that
may
not
appear
by
the
judgement
of
the
law
,
but
upon
the
face
of
the
Statute
,
and
there
is
also
one
clause
in
the
Statute
,
that
if
the
debtor
will
say
,
that
his
goods
were
delivered
,
or
sold
for
less
then
they
were
worth
the
partie
had
no
remedy
,
for
when
the
Sheriff
had
sold
them
,
the
debtor
may
accompt
it
his
follie
,
that
he
sold
them
not
before
the
day
of
the
suit
;
but
if
in
our
case
,
the
money
is
payable
presently
,
he
had
then
no
time
to
sell
them
,
for
certainly
the
meaning
of
the
Statute
was
,
in
this
to
give
time
to
the
Conusor
to
allien
,
and
to
sell
his
goods
;
and
so
of
a
recognisance
taken
before
the
chief
Iustice
,
upon
the
Statute
of
the
23.
H.
8.
without
question
a
day
ought
to
be
limitted
when
that
shall
be
paid
,
and
there
ought
to
be
the
seal
of
the
partie
,
and
the
seal
of
the
King
,
and
the
day
of
the
payment
specified
,
and
my
first
reason
wherefore
this
Statute
is
void
,
is
because
when
an
act
of
Parliament
limits
jurisdiction
or
power
to
any
inferiour
man
,
he
ought
to
pusue
his
limitted
jurisdiction
precisely
in
all
the
substantial
points
:
as
the
Statute
of
Magna
Charta
limits
,
that
he
shall
hold
his
turn
viz.
the
Sheriff
within
one
moneth
after
Michaelmas
or
Easter
,
now
if
he
hold
that
but
2.
dayes
after
it
is
void
.
And
the
reason
is
,
he
ought
to
pusue
this
limitted
jurisdiction
,
and
then
what
difference
is
between
those
several
jurisdictions
,
and
I
cannot
compare
that
to
a
better
case
,
Neufages
case
upon
the
Statute
of
the
23.
H.
6.
if
the
Sheriff
do
take
an
obligation
for
an
appearance
,
if
it
do
not
appear
in
the
condition
,
when
the
day
of
appearance
is
,
then
this
obligation
is
void
,
for
the
day
of
appearance
ought
to
appear
expresly
;
and
not
to
leave
this
to
the
construction
of
the
law
,
and
then
what
difference
is
there
between
our
case
:
indeed
contracts
may
be
many
times
made
good
by
reference
,
but
so
may
not
a
Recognizance
;
and
yet
17.
Edw.
4.
a
man
made
a
contract
to
give
so
much
for
Corn
when
he
saw
that
,
and
the
contract
by
the
Iustices
was
awarded
void
,
because
that
no
day
was
set
when
that
should
be
paid
,
and
see
the
book
which
is
,
I
conceive
that
if
the
contract
had
been
to
pay
,
when
he
took
the
Corn
it
had
been
good
,
and
so
here
if
a
man
had
such
a
jurisdiction
,
he
ought
to
pursue
that
precisely
;
and
for
that
the
day
in
all
those
cases
ought
to
be
observed
,
and
a
fortiori
in
our
case
:
and
an
other
reason
is
out
of
the
presidents
in
all
times
,
and
though
there
may
be
some
few
which
doth
pass
,
sub
silentio
yet
I
do
not
value
them
according
to
Slades
case
:
Acton
Burnel
,
are
but
declarations
,
and
additions
to
this
Statute
,
and
as
Grants
case
upon
the
Statute
of
32.
H.
8.
nay
that
is
not
only
a
Statute
of
explanation
,
but
is
also
an
original
Statute
,
but
the
Statute
of
34.
H.
8.
of
Wills
is
meerly
a
Statute
of
explanation
,
and
for
that
reason
in
Buckler
and
Bakers
case
is
,
de
mercatoribus
the
form
of
the
writ
is
set
down
,
which
doth
expresly
mention
a
day
,
and
so
I
think
there
is
not
any
doubt
,
but
that
if
it
were
a
Recognisance
upon
the
Statute
of
of
23.
H.
8.
for
default
of
day
it
shall
be
void
:
and
so
in
our
case
,
and
so
he
said
the
audita
querela
lies
well
.
The
argument
of
Justice
Winch.
WInch
to
the
contrary
,
and
because
the
effect
of
his
argument
was
to
the
same
purpose
,
with
that
of
justice
Iones
,
and
of
the
Lord
Hobert
,
I
will
report
that
but
briefly
:
and
he
said
,
that
he
held
this
to
be
within
the
Maiors
jurisdiction
,
for
the
purpose
and
the
entent
of
this
Statute
is
,
to
give
securitie
to
the
Merchant
creditor
,
and
for
that
reason
the
day
is
not
material
;
but
I
will
insist
upon
two
things
veritatem
facti
,
and
considerationem
legis
,
here
is
a
good
contract
,
and
for
that
it
ought
to
be
paid
presently
,
and
if
there
had
been
no
other
matter
but
this
,
that
it
had
been
payable
at
a
day
past
this
had
been
good
,
for
the
mistake
of
the
Clark
must
not
make
any
Statute
to
be
void
:
but
yet
I
grant
,
if
this
were
part
of
the
jurisdiction
,
this
ought
to
be
pursued
precisely
as
the
law
doth
prescribe
,
but
a
pettie
addition
or
omission
,
so
that
be
not
in
point
of
substance
will
not
hurt
that
:
and
this
is
not
part
of
the
jurisdiction
,
but
it
is
to
the
Statute
according
to
the
intentions
of
the
parties
,
and
the
day
is
only
part
of
their
agreement
;
but
it
hath
been
said
,
that
this
had
been
idle
,
for
the
Statute
shall
not
be
taken
so
to
pay
presently
,
but
I
say
the
contrary
,
for
though
he
had
not
his
money
in
his
hand
,
yet
he
will
not
trust
him
but
will
have
his
securitie
,
and
yet
I
agree
to
the
difference
before
,
that
there
ought
to
be
a
time
certain
,
and
not
to
be
proved
after
by
averment
;
and
here
when
no
time
is
fixed
,
this
is
payable
presently
;
but
there
shall
need
to
be
a
request
,
then
I
hold
it
is
out
of
the
Statute
,
and
when
Satutes
are
obscure
,
they
ought
to
be
interpreted
according
to
the
rules
of
the
common
Law
,
and
as
to
the
case
of
an
obligation
,
it
is
payable
presently
,
and
we
ought
to
intend
that
the
Maior
takes
notice
,
that
this
ought
to
be
paid
presently
,
for
ignorance
of
the
law
is
not
supposed
of
any
;
besides
,
if
this
Statute
be
absolutely
void
,
then
the
partie
is
without
remedy
,
and
in
such
a
case
we
ought
to
bā
favourable
in
our
expression
:
and
so
I
conclude
against
the
audita
querela
.
The
argument
of
the
Lord
chief
Justice
Hobert
.
HObert
chief
Iustice
to
the
same
intent
:
I
hold
that
the
Statute
is
good
,
and
we
ought
to
beware
how
we
destroy
assurances
,
except
it
be
upon
good
and
sure
grounds
:
and
it
is
a
perilous
case
,
to
make
an
ignorant
man
to
lose
his
right
by
a
slip
,
and
we
ought
to
be
the
more
warie
,
because
this
is
for
Merchants
,
and
the
Statute
was
made
for
their
securitie
,
and
by
intendment
they
are
men
of
forraign
imployment
,
and
so
have
the
less
occasion
to
know
the
Law
,
and
these
Statutes
of
traffick
are
to
be
cherished
and
not
be
pared
to
the
verie
quick
,
and
we
all
agree
that
every
substantial
matter
ought
to
be
pursued
,
but
not
circumstances
,
and
then
the
question
is
,
whether
this
be
substance
or
circumstance
,
and
we
also
agreed
that
there
ought
to
be
a
time
certain
when
the
money
shall
be
paid
,
and
that
is
either
an
actual
time
or
a
legal
time
,
and
for
the
material
points
,
that
ought
to
be
acknowledged
before
an
officer
,
and
in
the
Statute
of
Acton
Burnel
this
word
Maior
is
in
that
,
and
no
other
principal
officer
,
and
yet
there
is
no
doubt
but
that
this
may
be
taken
before
another
,
who
is
a
principal
officer
of
a
corporation
,
though
he
be
not
a
Maior
.
Secondly
,
this
ought
to
be
also
before
the
Clark
.
Thirdly
,
it
ought
to
contain
words
obligatorie
.
Fourthly
,
there
ought
to
be
a
person
bound
.
Fifthly
,
this
ought
to
contain
a
summe
,
but
it
may
be
a
doubt
if
an
action
of
debt
will
lie
for
that
.
Sixthly
,
it
ought
to
be
under
the
seal
of
the
partie
.
Seventhly
,
it
ought
to
be
under
the
seal
of
the
King
.
Eightly
,
the
inrolments
is
also
necessarie
,
and
this
Statute
is
such
a
remedy
as
the
Common
Law
never
gave
to
the
King
himself
,
so
all
assurances
in
this
kind
are
to
be
made
to
the
Merchants
,
and
certainly
in
our
case
the
day
is
not
so
material
;
but
the
time
which
the
law
will
take
notice
of
,
for
the
ignorance
of
the
Maior
must
not
make
any
Statute
void
,
and
I
do
not
grant
the
case
,
that
if
this
was
to
pay
10.
l.
after
the
death
of
S.
P.
this
will
not
make
that
void
,
but
if
the
Statute
be
to
pay
at
several
dayes
,
then
then
it
is
a
quere
in
law
,
whether
it
be
payable
till
all
the
dayes
of
payment
be
past
as
of
a
bond
;
and
for
the
writ
,
it
is
but
to
proportion
our
actions
according
,
and
to
do
after
this
way
,
or
manner
;
and
so
upon
the
whole
matter
I
conclude
that
the
Statute
is
good
,
and
that
the
audita
querela
doth
not
lie
;
and
judgement
per
Curiam
was
commanded
to
be
entered
against
the
Plantiff
.
The
case
of
Giles
Bray
was
moved
again
in
arrest
of
judgement
,
and
Hendon
said
,
that
the
Plantiff
had
declared
of
a
waste
made
after
the
death
of
the
said
Edmund
Bray
the
Grandfather
,
which
was
to
his
disinheritance
&c.
and
the
Iury
did
finde
the
original
lease
and
assignment
,
and
they
found
that
the
waste
was
made
before
such
a
day
,
which
was
before
the
death
of
the
Grandfather
,
and
now
he
said
,
that
because
it
is
found
generally
,
that
before
the
death
of
the
Grandfather
the
waste
was
made
,
and
this
was
found
precisely
,
and
it
is
not
found
precisely
,
that
at
the
time
of
the
waste
made
he
was
termor
in
possession
,
and
that
is
not
good
,
for
it
may
be
that
he
made
that
before
the
assignment
,
and
then
it
is
not
punishable
of
waste
,
and
if
the
waste
was
made
in
the
life
of
the
Grandfather
,
he
ought
so
to
have
declared
,
for
otherwise
it
was
not
immediately
to
his
disinheritance
;
nay
,
the
Grandfather
might
have
during
his
life
released
or
confirmed
to
the
Tenant
,
and
so
have
determined
the
waste
,
and
then
he
in
reversion
shall
not
recover
:
like
to
the
case
where
an
Abbot
declares
of
the
waste
against
the
lessee
of
his
predecessor
,
and
declares
of
waste
generally
,
this
is
not
good
,
for
if
this
was
made
in
the
time
of
his
predecessor
,
then
he
may
not
punish
that
,
and
so
in
our
case
,
perchance
the
Grandfather
had
released
,
and
then
he
in
reversion
may
not
recover
,
but
as
to
the
first
exception
the
Court
seemed
,
that
because
the
Plantiff
shewed
expresly
that
he
was
possessed
by
vertue
of
the
lease
,
and
he
being
so
possessed
made
waste
,
the
finding
of
the
jury
shall
be
agreeable
to
that
:
and
so
this
exception
was
over
ruled
,
and
for
the
other
,
the
rule
of
the
Court
was
,
that
whether
this
waste
was
committed
in
the
time
of
the
Grandfather
,
or
after
his
death
,
this
waste
was
to
his
disinheritance
,
and
the
Grandfather
by
his
release
might
not
by
any
means
discharge
that
waste
,
for
he
may
not
transfer
that
priviledge
,
and
so
the
judgement
was
given
for
the
Plantiff
.
The
residue
of
Trinity
Term
22.
Jac.
C.
P.
NOw
the
case
of
Sir
Robert
Napper
and
Sir
Thomas
Earsefield
,
was
moved
again
in
which
the
Plantiff
assigned
the
breach
,
because
that
after
Sir
Thomas
and
his
wife
did
live
asunder
,
the
land
was
not
open
nor
subject
to
distress
of
Sir
Robert
Napper
,
and
upon
the
opening
of
this
to
the
Court
,
the
Court
conceived
that
this
rent
was
granted
to
be
paid
immediately
,
and
to
distrain
for
that
,
but
afterwards
there
is
a
clause
,
that
it
shall
not
begin
in
point
of
payment
,
till
Sir
Thomas
and
his
wife
did
live
asunder
,
and
then
it
shall
be
paid
the
first
day
which
was
limited
after
:
and
Crawley
Serjeant
said
,
that
the
intent
was
,
that
it
should
begin
presently
,
and
that
it
should
be
subject
to
distress
,
and
therefore
to
make
that
an
entire
covenant
,
is
against
the
very
intentions
of
the
parties
,
for
covenants
in
nature
are
several
,
also
if
they
shall
be
construed
,
otherwise
the
partie
shall
be
without
the
remedy
which
was
intended
(
S.
)
a
distress
,
but
the
Lord
Hobert
and
Winch
were
of
opinion
,
that
if
Sir
Thomas
Earsefield
had
received
his
estate
truly
,
that
he
had
but
a
reversion
expectant
upon
a
term
for
years
,
and
then
had
made
such
a
grant
and
such
covenants
,
then
in
this
case
the
covenant
had
not
been
broken
,
and
then
the
meaning
would
be
,
that
he
should
not
have
any
rent
till
he
had
one
to
grant
,
but
it
doth
not
appear
here
,
and
therefore
is
a
difference
,
and
the
covenant
is
broken
,
and
Winch
said
,
that
the
intent
was
,
that
the
wife
shall
have
that
,
for
her
maintenance
when
they
did
live
asunder
,
so
that
then
it
shall
be
paid
to
the
use
of
his
wife
,
for
this
was
in
trust
for
her
,
and
for
that
reason
they
ought
to
be
several
covenants
of
necessitie
,
for
the
state
of
the
Mother
of
Sir
Thomas
Earsfield
did
not
appear
in
those
indentures
,
and
then
he
ought
to
take
that
as
it
is
at
this
time
,
and
the
appearing
of
that
now
is
not
material
:
and
if
any
other
construction
shall
be
made
,
then
the
parties
to
the
indentures
shall
be
deframed
:
Hutton
of
the
same
opinion
,
that
they
are
several
covenants
in
the
intent
and
meaning
of
the
parties
,
and
they
are
of
several
natures
,
for
the
first
covenant
is
in
the
affirmative
,
the
second
is
in
the
Negative
,
and
the
third
is
in
the
affirmative
,
and
it
is
all
one
,
as
if
the
word
covenant
had
been
to
every
clause
in
express
words
,
for
he
did
not
say
,
that
this
should
be
alwayes
open
,
and
lyable
to
distress
according
to
this
estate
,
for
then
it
had
been
but
one
covenant
,
and
it
had
been
otherwise
,
for
if
no
estate
had
appeared
,
he
shall
not
be
chargable
in
law
,
nor
perchance
he
would
not
deal
with
him
,
and
we
ought
not
to
take
notice
of
any
thing
,
but
that
which
is
upon
record
;
nay
,
his
own
plea
proves
that
they
are
several
covenants
,
for
to
the
negative
covenant
he
pleads
negatively
,
and
to
the
other
he
pleads
in
the
affirmative
,
and
so
the
very
intent
proves
them
to
be
several
covenants
,
and
Hobert
of
the
same
opinion
,
that
it
shall
be
taken
as
a
present
grant
to
charge
the
present
possession
,
and
so
judgement
was
commanded
to
be
entred
for
the
Plan.
Entred
Easter
Term
18.
Jac.
C.
P.
THe
case
of
Goldingham
and
of
Saunds
,
was
new
moved
again
by
Serjeant
Winch
,
and
he
prayed
a
writ
of
seisin
against
Saunds
,
and
the
doubt
was
,
whether
the
first
judgement
being
absolute
with
a
cestat
executio
was
good
,
or
whether
this
ought
to
be
conditional
;
and
I
conceive
that
in
our
books
there
are
those
differences
in
this
point
,
if
the
Tenant
do
vouch
in
a
forraign
Countie
,
then
without
any
more
the
demandant
shall
have
judgement
against
the
Tenant
presently
:
17.
Ed.
3.
50.
13.
H.
4.
judgement
224.
because
the
demandant
shall
not
recover
,
Anne
Beddingfields
case
,
because
the
original
may
not
extend
to
another
Countie
;
but
if
the
voucher
be
in
the
same
Countie
,
then
in
some
cases
it
shall
be
against
the
vouchee
,
and
in
some
cases
it
shall
be
against
the
Tenant
,
and
if
the
vouchee
will
come
and
render
Dower
,
then
the
judgement
shall
be
conditional
against
him
&c.
if
he
had
in
value
,
and
if
he
had
not
,
then
against
the
Tenant
,
and
the
other
against
the
vouchee
,
and
so
is
Dyer
fo.
202.
and
Grayes
case
was
a
conditional
judgement
against
the
vouchee
,
and
so
is
the
case
18.
Ed.
3.
fo.
56.
out
of
which
books
I
note
that
in
some
cases
,
the
vouchee
shall
have
judgement
against
him
,
and
the
judgement
in
that
case
shall
be
conditional
,
and
so
if
the
vouchee
make
default
,
then
the
judgement
shall
be
conditional
against
him
4.
Ed.
3.
35.
the
old
print
:
2.
H.
4.
7.
but
if
the
case
be
,
that
the
demandant
is
delayed
in
his
execution
by
the
vouchee
,
then
he
shall
recover
against
the
Tenant
,
as
if
vouchee
be
in
the
ward
of
the
King
Dyer
326.
and
so
in
the
case
of
a
Common
person
,
as
is
17.
Ed.
3.
by
the
Reporter
,
who
also
cites
a
judgement
given
in
the
time
of
the
same
King
,
though
the
opinion
of
the
book
is
against
that
;
but
then
it
hath
been
said
,
that
this
is
mischievous
,
for
then
the
Tenant
shall
loose
his
warranty
:
I
answer
no
more
then
when
he
is
vouched
in
the
ward
of
a
Common
person
,
and
over
this
the
Law
doth
provide
a
remedie
for
him
,
Eliz.
Marie
Ashburnham
brought
a
writ
of
Dower
against
Skinner
,
who
vouched
the
heir
of
the
husband
,
as
in
this
case
,
and
they
were
at
issue
upon
assets
in
the
same
Countie
,
and
the
same
judgement
as
here
,
and
it
was
found
by
verdict
for
the
vouchee
,
and
after
the
judgement
and
before
the
voucher
was
determined
,
a
writ
of
error
was
brought
,
and
affirmed
,
and
our
case
here
is
as
strong
as
this
,
and
so
I
pray
a
writ
of
seisin
for
the
demandant
.
Serjeant
Hendon
to
the
contrary
,
the
question
is
,
whether
this
ought
to
be
a
conditional
judgement
,
or
whether
this
may
be
absolute
with
a
cesset
executio
as
the
case
was
here
,
and
I
shall
lay
this
foundation
,
that
it
is
in
the
election
of
the
feme
when
the
heir
is
vouched
in
the
same
Countie
,
whether
she
will
have
the
same
against
the
Tenant
,
or
vouchee
;
but
for
the
case
of
17.
Ed.
3.
that
is
but
a
quere
of
the
Reporter
which
I
do
not
value
,
for
the
book
it self
was
otherwise
,
that
it
ought
to
be
conditional
,
because
it
is
in
the
election
of
the
feme
to
have
that
against
either
:
and
for
Dyer
202.
there
the
question
is
,
whether
the
judgement
shall
be
presently
or
stay
and
expect
till
the
issue
is
tried
between
the
vouchee
and
the
Tenant
,
but
no
question
whether
this
shall
be
conditional
or
no
:
and
the
reason
is
,
when
he
is
vouched
in
the
same
Countie
if
he
had
assets
,
then
she
had
not
election
,
for
there
it
shall
be
onely
against
the
vouchee
,
if
that
be
found
by
verdict
,
or
confessal
,
and
this
is
for
the
benefit
of
the
purchasor
,
and
also
for
the
benefit
of
the
demandant
:
in
Dower
for
the
warranty
in
the
antient
time
was
the
Common
assurance
of
the
realm
;
and
for
that
reason
,
if
the
judgement
may
be
against
the
heir
,
it
shall
never
be
against
the
Purchasor
,
and
also
it
is
for
the
benefit
of
the
feme
,
who
is
demandant
in
Dower
,
for
if
she
be
indowed
against
the
Tenant
,
and
afterwards
she
be
evicted
she
shall
not
have
a
scire
facias
,
but
if
it
was
against
the
heir
,
then
she
shall
have
a
scire
facias
to
have
in
recompence
:
and
so
is
16.
Ed.
3.
Iudgement
3.
that
if
in
Dower
the
heir
is
vouched
and
made
default
the
judgement
shall
be
against
him
;
out
of
which
I
do
conclude
,
that
the
judgement
ought
of
necessitie
to
be
conditional
,
for
by
this
the
State
of
the
feme
,
and
of
the
Tenant
is
preserved
,
for
if
the
feme
shall
have
that
against
the
heir
,
then
she
saves
her
warranty
in
Law
,
and
therefore
if
the
judgement
at
the
first
may
be
absolute
,
then
you
take
away
all
advantages
from
the
feme
and
the
purchaser
,
if
it
hap
that
it
shall
be
against
vouchee
,
and
for
that
reason
it
is
not
good
,
for
it
is
unalterable
,
and
it
is
a
principle
in
out
Law
,
that
the
feme
shall
recover
against
the
heir
,
if
he
be
vouched
in
the
same
Countie
if
he
had
assets
,
and
not
against
the
Tenant
6.
H.
3.
Dower
16.
the
demandant
shall
recover
immediately
against
the
vouchee
,
when
he
was
vouched
as
heir
,
and
so
is
18.
Ed.
3.
recovery
in
value
16.
et
31.
Ed.
3.
vouch
.
30.
there
the
judgement
was
against
the
vouchee
,
though
he
had
nothing
by
descent
at
the
day
of
the
writ
purchased
;
&
there
is
a
writ
in
the
register
,
which
recites
such
a
recovery
voucher
and
judgement
conditional
,
and
so
is
the
34.
H.
6.
expresly
:
and
for
that
to
say
,
that
the
judgement
may
be
absolute
,
is
to
make
all
those
books
erroneous
,
and
the
case
of
Dower
differs
from
all
other
cases
of
vouchers
;
for
if
land
discend
in
tail
,
it
is
sufficient
assets
for
the
feme
to
have
Dower
,
because
the
feme
is
dowable
of
them
,
for
this
sufficeth
to
say
,
that
he
had
assets
generally
7.
Ed.
2.
Dower
184.
out
of
which
I
conclude
,
that
this
voucher
is
not
like
to
other
vouchers
,
but
this
is
onely
to
secure
the
estate
of
the
Purchasers
;
and
then
as
to
the
president
,
I
answer
first
,
it
was
found
there
,
that
the
vouchee
had
nothing
:
and
also
it
was
never
debated
,
for
a
writ
of
error
was
brought
of
that
and
nothing
done
,
for
this
was
referred
to
Arbitrement
,
and
so
I
pray
that
no
writ
of
seisin
may
be
awarded
:
and
the
Court
semed
to
be
of
opinion
,
that
the
judgement
may
be
conditional
,
chiefly
Hobert
and
Iones
vehemently
,
but
now
they
said
because
that
judgement
is
once
given
,
they
are
not
to
reverse
their
own
judgements
,
and
to
give
another
judgement
,
and
now
it
is
as
if
he
had
no
assets
,
but
yet
that
doth
not
aide
an
erroneous
judgement
given
before
,
and
therefore
if
the
Tenant
will
be
relieved
,
he
ought
to
bring
his
writ
of
error
,
but
it
was
said
,
that
if
this
judgement
was
to
be
given
again
,
this
was
as
it
should
be
,
because
that
is
all
one
now
as
if
he
had
not
assets
,
and
the
judgement
stood
as
it
was
.
Potter
against
Brown
.
NOw
the
case
of
Potter
and
Brown
was
moved
again
,
and
Hendon
took
two
exceptions
as
before
,
first
for
default
of
averment
;
and
secondly
,
the
words
are
not
actionable
,
for
it
was
adjudged
in
Lanes
case
,
if
one
say
of
another
that
he
is
as
arrant
a
Thief
ās
any
is
in
the
Goal
of
Warwick
,
this
is
not
good
without
averment
,
that
there
are
Thieves
in
Warwick
Goal
,
and
here
it
shall
be
so
,
for
the
law
doth
not
suppose
,
that
there
are
Thieves
in
England
,
and
besides
here
in
this
case
the
subsequent
words
do
qualifie
the
other
,
for
the
words
under
the
(
for
)
ought
to
be
of
such
a
thing
as
is
Theft
,
and
that
is
not
so
in
our
case
:
Serjeant
Richardson
to
the
contrary
:
the
last
words
do
not
qualifie
but
rather
aggravate
them
,
for
he
gives
a
reason
of
his
speach
,
and
this
taking
is
to
be
understood
with
a
fellonious
intent
,
for
the
first
words
do
charge
him
to
be
a
Thief
,
and
therefore
the
last
words
shall
be
intended
,
that
he
took
them
with
a
fellonious
intent
,
for
he
did
not
only
charge
him
in
the
general
but
in
particular
;
but
the
Court
&c.
Hobert
,
Hutton
,
and
Winch
said
,
that
the
Plantiff
shall
not
have
judgement
;
because
he
failes
of
averment
,
for
he
did
not
say
expresly
,
that
he
is
a
Thief
,
but
as
arrant
a
Thief
as
any
is
in
England
,
and
we
are
not
to
enquire
after
words
,
except
they
are
plain
,
for
if
one
say
he
was
in
Warwick
Goal
for
stealing
of
a
Horse
adjudged
not
to
be
actionable
,
and
we
may
not
presume
,
that
there
are
Thiefes
in
England
,
and
so
judgement
was
arrested
.
Adams
against
Ward
.
INtra
.
Trin.
21.
Iac.
Rot.
1845.
note
that
it
was
said
,
in
an
action
upon
the
case
between
one
Adams
,
and
Ward
an
Attorney
,
that
whereas
one
Hennings
sued
Adams
in
an
action
of
debt
,
and
Adams
retained
Ward
to
be
his
Attorney
,
and
gave
him
warrant
to
plead
the
general
issue
,
and
Ward
suffered
the
judgement
by
nihil
dicit
,
that
this
was
not
any
cause
of
an
action
,
except
it
was
by
Covin
,
and
for
that
if
Adams
had
not
laid
in
his
declaration
,
that
this
was
by
Covin
,
he
should
not
have
recovered
,
and
at
another
day
it
was
agreed
,
that
the
Covin
was
not
traversable
by
Plea
,
but
only
in
evidence
at
the
Bar.
Cook
against
Cook
in
Dower
.
IN
a
writ
of
Dower
between
Cook
and
Cook
they
were
at
issue
,
and
at
the
day
of
nisi
prius
the
Defendant
pleaded
,
that
the
demandant
had
entred
,
and
was
seised
,
and
yet
is
seised
since
the
last
contrivance
&c.
Octabis
Sancti
Hillarii
ultimo
quo
die
continetur
usque
ad
hunc
diem
&c.
vicesimum
diem
Februariā
which
in
verity
was
the
day
of
the
nisi
prius
,
and
it
was
demurred
upon
this
Plea
for
two
causes
:
the
first
was
,
because
he
had
not
shewed
that
the
Tenant
was
disseised
,
for
otherwise
it
shall
not
abate
the
action
,
and
to
say
that
the
demandant
was
seised
was
not
sufficient
,
for
though
this
implies
so
much
that
the
other
was
disseised
,
yet
here
it
ought
to
be
expresly
alledged
,
but
the
Court
spake
nothing
to
this
;
but
Winch
thought
this
to
be
very
good
according
to
Dyer
76.
there
the
entrie
is
pleaded
only
,
and
yet
good
:
but
they
resolved
that
the
pleading
of
the
continuance
is
not
good
,
for
it
is
from
one
Term
to
another
nisi
prius
justiciarii
Venerint
,
&c.
and
he
ought
to
have
precisely
shewed
that
:
but
the
question
now
was
,
whether
the
demandant
shall
have
judgement
to
have
seisin
,
or
have
apetite
Cape
only
:
and
Iustice
Hutton
said
,
that
it
was
adjudged
in
Sir
Henry
Browns
case
,
that
if
a
man
pleaded
an
insufficient
Plea
after
the
last
continuance
,
there
the
Plantiff
shall
have
judgement
,
as
if
the
first
issue
had
been
tried
for
him
:
and
for
this
he
cited
the
new
book
of
entries
fo
57ā
,
and
this
may
not
be
a
judgement
by
default
,
for
they
both
appeared
,
and
therefore
he
shall
have
the
same
judgement
,
as
if
the
first
issue
had
been
tried
for
him
;
and
it
was
said
in
this
case
,
though
the
Defendant
did
demur
generally
,
yet
this
is
very
good
.
The
residue
of
Trinity
Term
in
the
22.
year
of
King
James
.
GOdsel
an
Attorney
,
brought
an
action
upon
the
case
for
words
,
and
he
laid
in
his
declaration
,
that
the
Defendant
spoke
those
words
among
other
.
Master
Godsel
is
a
knave
,
for
he
forged
false
deeds
for
which
he
was
imprisoned
at
York
,
and
should
have
lost
his
ears
,
and
the
jury
found
only
these
words
,
Godsel
is
a
forger
of
writings
,
and
deserves
to
lose
his
ears
,
and
Hendon
moved
in
arrest
of
judgement
,
that
the
words
which
are
found
are
not
the
words
in
the
declaration
,
for
the
words
were
there
that
he
forged
deeds
,
and
it
is
only
found
to
be
writings
,
and
it
was
adjudged
in
this
Court
,
between
Brown
and
Ellis
,
that
for
saying
an
Attorney
had
forged
writings
,
no
Action
will
lie
,
for
they
are
too
general
,
and
besides
it
doth
not
at
all
appertain
to
him
to
make
writings
,
and
so
for
Nowels
Case
,
he
is
Cooped
up
for
forging
of
writings
,
and
it
was
adjudged
not
to
be
actionable
,
and
so
to
say
he
is
a
forger
of
writings
,
by
which
he
had
cozned
fatherless
Children
,
the
words
are
not
actionable
,
because
he
did
not
say
Deeds
,
and
upon
this
motion
and
reason
the
judgement
in
this
case
was
arrested
.
This
case
is
Entred
Hillarie
the
21.
Jac.
Roll.
550.
Sir
George
Trenchard
against
Peter
Hoskins
TRenchard
brought
an
Action
of
Covenant
against
Peter
Hoskins
,
and
declared
upon
an
indenture
bearing
date
the
19th
.
of
September
44.
of
Eliz.
made
between
Iohn
Hoskins
father
of
the
Defendant
,
and
the
Defendant
on
the
one
part
,
and
the
Plantiff
on
the
other
parte
,
by
which
they
bargained
and
sold
certain
lands
to
the
Plantiff
in
Hammond
which
indenture
rehearseth
,
that
King
Henry
the
eight
was
seised
of
this
land
in
his
demeasne
,
as
of
fee
in
the
right
of
his
Crown
,
&
from
him
conveyed
that
to
Ed.
6.
who
in
the
7.
year
of
his
Raign
by
his
letters
patents
bearing
date
at
Westminster
,
he
granted
that
to
one
Fitz
Williams
,
&
to
Hilton
in
fee
,
as
by
his
letters
patents
may
appear
,
&
they
being
so
seised
by
indenture
which
bore
date
&c
bargained
and
sold
that
to
Henry
Hoskins
and
to
Proud
,
&
also
recited
that
Proud
releaseth
to
the
said
Hoskins
all
his
right
,
as
by
the
said
release
may
appear
:
and
conveyed
that
to
Iohn
by
discent
:
and
so
the
said
Iohn
being
seised
he
and
his
son
Peter
made
this
conveyance
to
the
Plantiff
upon
a
good
consideration
,
in
which
they
did
covenant
with
the
Plantiff
in
this
manner
,
and
the
said
Iohn
and
Peter
for
them
and
there
heirs
do
Covenant
and
grant
to
,
and
with
the
Plantiff
&c.
that
they
the
said
Peter
and
Iohn
Hoskins
according
to
the
true
meanāāing
of
the
said
indenture
,
were
seised
of
a
good
estate
in
fee
simple
,
and
that
the
said
Iohn
and
Peter
or
one
of
them
,
have
good
Authoritie
to
sell
that
according
to
the
intent
of
the
said
indenture
,
and
that
there
was
no
reversion
,
or
remainder
in
the
King
by
any
Act
or
Acts
thing
or
things
,
done
by
him
or
them
:
and
the
Plantiff
laid
the
breach
that
neither
Iohn
nor
Peter
had
a
lawful
power
to
āāll
,
the
Defendant
pleaded
that
Iohn
had
a
good
power
to
sell
that
,
according
to
the
intent
of
the
said
indenture
,
notwithstanding
any
Act
or
Acts
made
by
him
or
his
faāher
,
or
by
any
claiming
under
them
,
and
upon
that
the
Plantiff
demurred
;
and
the
case
was
now
argued
by
the
Court
,
and
Iones
Iustice
began
,
and
said
that
his
opinion
was
,
that
the
Plantiff
shall
be
barred
,
the
case
being
upon
construction
of
covenants
:
and
the
sole
question
is
,
whether
they
are
several
covenants
,
or
only
one
covenant
,
and
I
held
that
they
are
all
one
covenant
,
and
those
words
for
any
Act
or
Acts
do
relate
to
the
two
other
precedent
sentences
,
and
so
it
is
all
but
one
covenant
,
though
this
stand
upon
several
parts
,
for
if
these
words
were
placed
in
the
fore-front
there
had
been
no
question
,
but
that
this
had
been
but
one
covenant
,
and
this
made
no
difference
when
it
is
set
before
,
and
when
it
is
set
after
,
and
the
repeating
of
that
had
been
toutalogie
,
for
if
I
covenant
I
will
build
a
house
at
Dale
,
Sale
,
and
a
vale
of
Brick
,
here
Brick
shall
refer
to
them
all
,
because
it
is
tied
in
one
entire
sentence
and
covenant
;
and
so
if
I
covenant
with
you
,
that
I
will
goe
with
you
to
Canterbury
,
to
Salisbury
,
and
Coventrie
here
the
word
goes
relates
to
all
3.
as
in
the
case
of
Sir
Henry
Finch
,
the
rent
was
granted
out
of
the
Mannor
of
Eastwel
,
and
not
of
the
Messuage
lands
,
and
Tenements
lying
and
being
in
the
Parish
of
Eastwel
,
or
else
where
in
the
same
Countie
belonging
thereto
,
and
resolved
that
land
which
is
not
parcel
of
the
Mannor
is
not
charged
with
the
rent
,
because
it
is
all
but
one
sentence
and
one
grant
;
and
cited
the
case
of
Althams
case
,
and
Hickmots
case
,
where
special
words
will
qualifie
general
words
,
where
they
are
all
in
one
sentence
,
and
so
I
conceive
they
are
but
one
covenant
,
Cheineys
case
and
Baldewins
case
,
a
habendum
will
destroy
an
implied
premisses
,
Nokes
case
,
an
express
particular
covenant
qualifies
the
generalty
of
the
implyed
covenant
:
like
to
the
case
which
was
32.
Eliz.
in
the
Court
of
Wards
,
between
Carter
and
Ringstead
,
Fitz
Williams
,
and
to
Proud
,
and
Hoskins
by
the
name
of
all
his
lands
and
Tenements
which
were
in
the
tenure
of
Anne
Parker
,
and
did
not
aver
that
these
lands
for
which
the
Covenant
was
made
,
were
in
her
hands
;
and
for
that
it
is
not
good
,
and
for
these
reasons
I
conceive
the
Plantiff
shall
be
barred
.
The
argument
of
Hutton
Justice
.
HUtton
to
the
contrary
,
I
hold
that
they
are
3.
several
Covenants
;
and
yet
I
agree
the
cases
afore
cited
,
and
the
reason
is
,
they
are
all
included
in
one
sentence
,
for
it
is
the
care
of
the
Purchasor
,
that
he
had
an
owner
of
the
land
before
he
purchase
,
for
that
which
is
the
ground
of
assurances
,
that
he
is
seised
in
fee
,
and
hereafter
that
the
Covents
that
this
is
free
from
incumberances
made
by
him
,
and
that
he
had
good
title
to
alien
which
strikes
at
the
very
root
of
assurances
,
and
my
first
reason
is
,
because
here
are
several
parties
,
and
they
covenant
that
one
of
them
is
seised
of
a
good
estate
,
and
that
they
or
one
of
them
had
power
to
alien
that
,
for
it
may
not
stand
with
the
intents
of
the
indentures
,
to
buy
of
him
who
had
no
title
,
and
might
not
sell
,
and
also
the
last
Covenant
is
meerly
in
the
negative
,
that
they
have
made
no
Act
or
Acts
by
which
the
reversion
shall
be
in
the
King
;
and
that
is
all
one
,
as
if
the
word
Covenant
had
been
added
in
every
clause
of
the
sentence
,
and
Covenants
in
law
may
be
qualified
by
express
Covenants
,
but
if
a
man
made
a
lease
for
years
upon
condition
to
pay
20.
l.
in
this
case
an
entrie
by
the
law
is
implyed
for
default
of
payment
;
but
yet
if
it
added
that
,
if
it
be
behinde
he
may
enter
and
retain
till
he
is
satisfied
of
the
20.
l.
now
in
this
case
this
had
taken
away
the
implyed
Covenant
and
condition
,
but
every
express
Covenant
must
be
taken
most
beneficially
for
the
Covenantee
,
and
in
Nokes
case
it
is
said
,
that
an
express
Covenant
controuls
an
implied
one
,
but
he
may
use
either
of
them
at
his
pleasure
and
election
:
and
I
grant
Henry
Finches
case
to
be
good
law
,
for
there
is
not
any
clause
or
sentence
till
after
the
Alibie
;
but
yet
in
Dyer
207.
they
are
distinct
sentences
,
and
shall
receive
several
constructions
,
and
so
here
the
matter
being
several
they
shall
receive
divers
constructions
,
and
he
Covenanted
that
he
was
seised
in
fee
,
and
that
he
had
power
to
alien
that
,
and
this
was
to
encourage
the
Purchasers
:
and
for
the
form
he
needs
not
aver
,
that
this
was
in
the
hands
of
Anne
Parker
,
for
he
had
confessed
that
in
the
bar
,
that
he
came
lawfully
to
that
,
and
besides
the
Covenant
is
broken
,
though
he
never
was
seised
,
and
so
I
conceive
that
the
Plantiff
shall
have
judgement
.
Winch
to
the
same
intent
,
it
is
true
if
it
had
been
all
but
one
Covenant
,
then
if
it
had
been
no
question
this
had
not
been
broken
;
but
I
think
they
are
several
Covenants
,
like
to
the
case
of
Sir
Robert
Napper
lately
adjudged
;
also
the
first
two
Covenants
are
in
the
affirmative
,
and
the
other
in
the
Negative
,
and
for
that
they
ought
to
be
answered
with
several
pleas
,
and
these
kinde
of
assurances
are
the
Common
assurances
,
and
therefore
they
ought
to
be
interpreted
favourably
for
the
Purchasers
,
and
Iohn
was
not
deceived
in
these
Covenants
,
for
they
brought
down
upon
the
deed
an
estate
in
fee
,
and
it
is
also
agreed
if
the
word
Covenant
and
grant
had
been
divers
times
added
to
the
several
clauses
,
then
they
had
been
several
Covenants
,
and
now
it
is
all
one
word
,
and
made
those
to
be
several
Covenants
;
and
words
of
relation
never
will
controul
that
which
is
certainly
put
down
before
;
and
so
he
concluded
in
this
case
the
Plantiff
shall
have
judgement
to
recover
.
Hobert
chief
Iustice
to
the
contrary
,
every
deed
ought
to
be
construed
according
to
the
intention
of
the
parties
,
and
the
intents
ought
to
be
adjudged
of
the
several
parts
of
the
deed
,
as
a
general
issue
out
of
the
evidence
,
and
intent
ought
to
be
picked
out
of
every
part
,
and
not
out
of
one
Word
only
:
and
here
Peter
joyned
with
his
father
to
strengthen
the
assurance
,
and
Iohn
had
not
only
his
own
estate
,
but
the
estate
of
Proud
;
and
it
is
plain
he
never
meant
to
intangle
himself
with
other
Conveyances
,
then
those
which
he
and
Proud
had
made
,
and
I
hold
this
to
be
no
independent
Covenant
,
and
it
is
all
bound
with
one
clause
(
S.
)
for
any
Act
or
Acts
made
by
them
&c.
and
it
is
confessed
if
these
words
had
been
placed
in
the
forefront
,
that
then
they
should
relate
to
all
,
and
it
is
as
clear
as
if
they
were
:
and
the
first
reson
is
,
that
the
intent
appears
only
to
undertake
for
himself
,
because
he
should
but
have
part
of
the
land
,
and
for
that
he
was
to
warrant
his
evidence
,
and
to
that
end
he
was
to
deliver
to
him
his
title
at
large
in
the
said
indenture
:
and
here
he
had
made
the
Plantiff
privie
to
every
several
conveyance
of
that
to
inform
the
Purchaser
of
it
:
and
will
you
also
intangle
him
with
a
covenant
,
you
might
have
taken
notice
of
his
title
;
and
it
appears
to
be
the
very
intents
of
the
parties
,
that
you
should
take
notice
of
the
title
,
and
inform
your selves
concerning
the
same
.
Secondly
,
this
is
a
sentence
which
may
be
taken
both
wayes
:
and
I
say
it
is
agreed
that
if
it
had
begun
with
these
words
notwithstanding
any
Act
or
Acts
&c.
that
then
it
shall
be
all
construed
by
this
,
and
I
never
saw
any
difference
:
I
grant
they
are
several
Covenants
in
point
of
fact
,
but
not
in
point
of
obligation
,
for
there
are
not
several
words
of
binding
;
nay
I
say
if
he
had
released
this
last
he
had
released
all
,
but
it
hath
been
said
,
that
one
is
in
the
negative
,
and
the
other
is
in
the
affirmative
:
but
I
do
not
value
that
;
and
it
hath
been
said
,
that
this
is
the
Common
assurance
of
the
Realm
,
and
if
other
construction
shall
be
made
,
then
no
man
shall
be
sure
of
his
own
,
we
had
given
him
leave
to
say
that
no
reversion
nor
remainder
is
in
the
King
by
any
Act
by
him
made
,
and
the
King
may
not
have
any
reversion
,
and
he
seised
in
fee
,
also
this
clause
standing
indifferent
,
whether
this
shall
be
referred
to
all
or
not
,
and
then
the
question
is
,
how
the
Court
will
adjudge
of
that
,
for
my
part
I
take
it
that
this
may
stand
with
the
intent
of
all
the
parties
of
the
deed
;
but
take
that
as
you
take
it
,
that
this
destroyes
all
,
for
if
he
is
absolutely
seised
in
fee
,
what
matter
is
where
the
reversion
is
,
and
yet
if
the
reversion
was
in
the
Crown
,
and
not
by
his
Act
you
confess
that
may
not
charge
him
,
which
is
expresly
against
the
first
Covenant
,
if
this
be
distinct
by
it self
,
but
take
that
indifferently
,
and
all
the
parties
will
stand
together
:
Nappers
case
hath
no
affinity
with
this
,
for
questionless
there
were
several
Covenants
,
for
in
that
indenture
it
did
not
appear
what
estate
Sir
Thomas
Eearsfield
had
,
and
for
that
reason
nothing
might
be
collected
out
of
that
,
but
he
had
a
present
estate
;
but
in
our
case
all
is
contained
in
the
bodie
of
the
indenture
,
and
Nokes
case
is
a
strong
case
,
and
stronger
then
the
case
at
the
bar
is
,
for
thereupon
construction
of
all
the
parties
of
the
deeds
,
the
special
warrantie
controuls
the
general
warranty
:
and
the
reason
is
no
man
will
take
an
express
special
warranty
when
the
intent
is
,
that
he
shall
have
a
general
warranty
:
&
there
was
a
case
lately
ajudged
between
the
Earl
of
Clanrickard
and
his
wife
against
the
Countess
of
Leicester
,
where
the
Lady
pleaded
that
she
was
Tenant
in
Dower
,
where
in
veritie
she
had
the
revesion
in
fee
expectant
upon
a
Term
for
life
,
and
they
conveyed
all
the
estate
the
Lady
had
in
Dower
;
and
then
they
covenanted
,
that
they
would
convey
all
their
estate
to
the
Lord
of
Leicester
and
his
heirs
,
during
the
life
of
his
wife
,
and
then
Covenanted
that
they
would
convey
all
their
estate
to
the
Earl
of
Leicester
and
his
heirs
for
ever
in
the
aforesaid
land
:
and
it
was
resolved
,
that
though
such
Covenant
will
raise
an
use
to
the
partie
who
ought
to
have
that
,
and
so
the
reversion
will
pass
if
there
had
been
no
more
words
:
now
it
was
but
during
the
life
of
the
Lady
for
that
third
part
,
for
the
Covenant
was
but
to
strengthen
an
estate
,
and
not
to
convey
it
,
and
so
he
concluded
that
the
Plantiff
should
be
hard
,
and
after
it
was
said
by
the
Court
,
that
this
case
was
not
of
weight
to
be
brought
into
the
Exchequer
Chamber
,
and
therefore
the
Court
advised
that
the
parties
would
agree
;
quere
,
for
the
residue
in
the
Exchequer
Chamber
concerning
that
.
Entred
Hill.
18.
Jac
the
case
of
Comendams
.
Richard
Woodley
against
the
Bishop
of
Exeter
,
and
Mannering
.
RIchard
Woodley
brought
a
quare
Impedit
against
the
Bishop
of
Exeter
,
and
Mannering
who
was
Parson
of
the
said
Church
,
and
he
declared
that
Arthur
Basset
was
seised
of
an
acre
of
land
,
to
which
the
said
Advowson
was
appendant
in
his
demeasne
as
of
fee
,
and
that
he
the
13.
Octobris
13.
Eliz.
granted
the
next
advowson
to
one
William
Manwood
,
who
was
then
incumbent
in
the
said
Church
,
who
by
his
will
20.
November
made
one
Harcourt
his
executor
and
died
,
by
whose
death
the
Church
became
void
,
the
which
was
the
first
and
the
next
avoydance
after
the
grant
,
and
Harcourt
presented
Cardon
,
and
that
the
said
Arthur
Basset
so
being
seised
in
fee
18.
Octobris
17.
Eliz.
by
his
will
in
writing
devised
to
Iohn
Basset
his
son
the
first
and
next
avoydance
of
the
Church
aforesaid
,
which
first
and
next
avoydance
hapned
after
the
death
of
the
said
Arthur
Basset
,
and
that
the
said
Iohn
Basset
was
possessed
of
the
said
next
avoydance
,
and
the
said
Chardon
being
incumbent
29.
of
September
37.
Eliz.
he
was
elected
Bishop
of
Down
in
Ireland
,
and
he
being
so
Elect
,
the
Queen
by
her
letters
37.
of
her
Raign
considering
the
smalness
of
the
said
Bishoprick
;
that
it
was
not
able
to
maintain
him
in
his
episcopal
dignitie
,
ex
gratia
sua
speciali
concessit
Lycensavit
et
potestatem
dedit
to
the
said
Chardon
Bishop
elect
,
that
he
with
the
said
Bishoprick
the
rectory
of
Tedbome
in
comendum
ad
huc
recepire
et
fructus
de
&c.
in
usus
suos
convertere
disponere
et
applicare
valeat
et
possit
,
habendum
that
in
Comendam
for
6.
years
,
and
within
the
6.
years
he
was
consecrated
,
and
after
the
Term
of
the
6.
years
the
Church
became
void
,
per
legis
Anglie
,
and
that
the
Queen
by
her
prerogative
presented
one
Bee
who
was
admitted
,
instituted
and
inducted
,
and
the
Plantiff
conveyed
from
Iohn
Basset
his
title
by
his
grant
of
the
next
avoydance
,
and
shewed
that
the
said
Church
became
void
by
the
death
of
Gee
,
and
that
the
vacation
by
the
death
of
Gee
is
the
next
avoydance
after
the
death
of
Arthur
Basset
,
by
reason
whereof
the
Plantiff
presented
,
and
was
disturbed
,
and
upon
his
decla
,
ration
Edwards
the
patron
demurred
,
and
the
Bishop
claimed
nothing
but
as
ordinary
,
and
Manering
pleaded
and
confessed
the
seisin
of
Arthur
Basset
,
and
the
grant
to
Manwood
,
and
the
presentation
by
Harcourt
of
Chardon
,
and
the
devise
to
Iohn
Basset
,
but
he
shewed
that
after
the
death
of
Arthur
Basset
the
Acre
to
which
the
advowson
is
appendant
,
descended
to
Thomas
Basset
as
&c.
and
he
being
so
seised
the
Church
became
void
by
the
death
of
Chardon
,
who
had
the
next
avoydance
after
the
death
of
Arthur
Basset
,
and
that
this
remained
void
,
by
2.
years
after
his
death
,
by
which
the
Queen
presented
by
Lapse
the
said
Gee
,
who
was
admitted
&c.
and
Thomas
Basset
conveyed
that
to
Edwards
,
and
that
became
void
by
the
death
of
Gee
,
and
that
he
presented
the
said
Mannering
&c.
absque
hoc
quod
praedicta
vacatio
Ecclesiae
praedictae
post
Mortem
de
Gee
was
the
first
and
next
avoydance
after
the
death
of
Arthur
Basset
,
as
the
Plantiff
had
alleadged
,
and
upon
this
bar
the
Plantiff
demurred
:
and
it
was
argued
by
the
Councel
of
both
sides
on
several
dayes
,
and
in
Michaelmas
Term
ensuing
,
it
was
argued
by
the
Court
,
but
because
that
Harvey
was
newly
made
Iustice
he
did
not
argue
the
case
;
but
Iustice
Hutton
began
.
The
argument
of
Justice
Hutton
.
ANd
Iustice
Hutton
after
a
recital
of
the
case
said
,
that
his
opinion
was
,
that
the
Plantiff
should
be
barred
,
and
in
the
first
place
it
is
to
be
considered
whether
the
King
had
any
title
at
all
to
present
by
the
Creation
of
Chardon
to
be
Bishop
.
Secondly
,
admit
that
he
had
title
whether
he
had
dispensed
with
that
,
and
by
his
dispensation
he
had
satisfied
his
prerogative
.
Thirdly
,
admit
that
the
King
had
title
,
and
that
this
was
not
satisfied
with
the
Commendam
,
whether
the
grantee
had
lost
his
turn
;
and
as
to
the
first
point
it
ought
to
be
agreed
,
that
when
a
parson
is
made
a
Bishop
,
that
he
is
discharged
of
the
Church
by
the
Common
Law
,
and
so
is
the
45.
Edw.
3.
5.
and
Dyer
159.
petit
.
Broo.
116.
and
this
is
an
avoydance
by
Cession
,
and
for
any
thing
that
I
see
in
our
books
the
King
had
not
any
title
to
present
,
except
that
he
himself
was
patāon
,
but
because
that
did
not
happen
fully
in
question
here
:
I
will
not
deliver
any
opinion
:
but
I
will
say
what
our
antient
books
do
lay
41.
Edw.
35.
adjudged
that
the
King
shall
not
present
to
a
prebendary
where
the
prebend
was
made
Bishop
,
and
the
tithe
which
the
King
had
to
present
,
was
by
reason
that
the
temporalities
of
the
Bishoprick
,
of
which
he
was
prebend
was
in
his
hands
,
and
see
the
7.
H.
4.
25.
a
good
case
11.
H.
4.
37.
Dyer
228.
and
for
Brooks
presentation
61.
that
is
but
the
report
of
the
Chancellor
,
who
had
that
in
presentation
;
but
our
Common
Law
doth
not
warrant
any
such
thing
,
and
then
for
the
second
point
,
whether
the
King
had
dispenced
with
his
prerogative
;
and
in
the
first
place
we
are
to
know
that
these
Commendams
were
at
the
first
,
but
to
see
the
cure
served
,
and
by
the
opinion
of
Pollard
,
the
ordinary
is
to
see
the
cure
served
,
though
that
be
charged
with
such
rents
,
that
none
would
have
it
,
and
for
that
Commendams
were
at
the
first
good
,
but
now
if
the
King
had
title
,
then
that
began
per
the
consecration
,
otherwise
he
shall
never
have
it
:
and
so
is
41.
Edw.
3.
5.
if
consecration
doth
not
give
that
he
shall
never
have
it
:
and
hereby
his
grant
to
hold
that
in
Commendam
he
had
dispenced
with
this
prerogative
,
and
if
this
had
been
granted
to
him
for
his
life
none
will
deny
,
but
that
he
had
dispenced
with
his
prerogative
,
and
shall
never
take
advantage
of
that
again
afterwards
,
and
no
more
in
this
case
,
for
he
is
incumbent
to
all
intents
and
purposes
,
for
Fitz
N
B.
36.
he
may
have
a
Spoliation
,
and
yet
in
this
case
he
is
parson
and
Bishop
,
and
now
that
the
King
may
dispence
with
that
it
is
not
to
be
doubted
;
and
I
will
compare
that
with
the
like
cases
A.
6.
Eliz.
Dyer
252.
where
the
King
granted
the
Custody
of
the
land
,
and
heir
of
his
Tenant
if
he
died
his
heir
being
within
age
,
and
this
grant
was
to
Cantrel
,
and
it
was
agreed
to
be
good
,
and
Wardship
is
as
Royal
an
antient
perrogative
as
any
appertains
to
the
Crown
:
and
3.
H.
6.
title
grant
61.
the
King
may
grant
the
temporalities
of
the
Bishoprick
before
it
is
void
,
which
in
my
opinion
is
Cosen
German
to
our
case
:
out
of
which
book
I
conclude
the
King
may
dispence
,
and
by
the
dispensation
he
is
full
parson
,
and
this
is
for
his
life
,
for
the
King
may
not
make
him
incumbent
,
except
it
be
for
life
,
like
to
the
case
of
Dyer
fo.
52.
where
the
patron
and
the
ordinary
made
a
confirmation
of
a
lease
for
part
of
the
time
which
was
made
by
the
parson
,
and
agreed
that
this
shall
stretch
to
the
whole
time
,
and
no
better
case
may
be
put
then
the
case
of
Packhurst
,
in
Dyer
22.
8.
where
Packhurst
was
incumbent
of
the
Church
of
Cleave
and
was
made
Bishop
of
Norwich
,
but
before
he
was
created
Bishop
,
he
had
a
dispensation
from
the
Arch-Bishop
to
retain
that
in
Commendam
for
3.
years
,
notwithstanding
his
advancement
;
and
he
resigned
during
the
3.
years
and
issue
there
taken
upon
the
resignation
;
and
this
case
proves
all
the
partes
of
our
case
,
first
that
the
King
may
dispence
,
and
that
by
his
dispensation
he
is
compleat
person
to
resign
:
and
if
he
do
resigne
during
the
years
,
the
King
shall
not
have
the
prerogative
to
present
again
,
for
that
was
satisfied
with
the
dispensation
:
and
also
when
the
King
came
to
his
prerogative
by
subjects
means
,
he
ought
to
take
that
as
it
falls
,
for
otherwise
he
loses
that
quite
,
vide
Bastervils
case
Coo.
7.
and
another
reason
is
,
if
it
be
not
satisfied
,
then
the
King
shall
have
another
which
is
mischievous
,
and
this
being
a
new
case
such
president
is
not
to
have
more
favour
then
the
necessitie
of
the
Law
will
require
:
and
so
my
opinion
is
,
that
it
is
all
one
as
if
it
had
for
life
:
and
there
is
a
good
case
9.
Ed.
3.
20.
where
the
King
had
2.
presentments
,
vide
the
case
;
but
it
was
upon
another
reason
,
but
the
case
of
21.
H.
7.
8.
Frowike
:
where
the
grantee
of
the
next
avoydance
had
judgement
to
recover
,
and
the
incumbent
resigned
,
so
that
it
is
the
second
presentment
,
yet
the
Plantiff
shall
have
the
effect
of
his
judgement
,
and
he
had
a
writ
to
the
Bishop
;
quere
the
application
,
for
I
did
not
well
heare
that
,
but
in
our
case
,
if
the
prerogative
of
the
King
was
not
satisfied
;
yet
it
ought
to
appear
that
when
he
presented
Gee
.
he
had
no
title
,
but
that
was
an
usurpation
:
and
if
the
King
was
not
satisfied
,
then
the
Plantiff
shall
not
have
judgement
,
for
then
Gee
was
an
usurper
:
and
upon
that
declaration
the
Plantiff
shall
be
barred
;
but
now
for
the
last
point
,
admit
that
the
King
was
satisfied
of
his
prerogative
by
his
presentation
of
Gee
,
whether
the
Plantiff
had
lost
his
course
,
&
I
think
he
had
,
&
in
the
first
place
the
words
of
the
devise
are
the
first
,
&
the
next
avoydance
which
shall
hap
after
the
death
of
Athur
Basset
,
now
it
hath
been
objected
,
that
the
King
had
the
first
by
his
prerogative
,
and
therefore
he
shall
have
the
second
,
&
I
think
in
this
case
Brook
presentation
52.
is
a
strong
case
,
where
a
presentation
was
granted
to
one
,
and
after
to
another
,
when
the
first
is
void
,
and
ruled
that
the
second
grantee
shall
not
have
the
second
,
and
so
Dyer
35.
it
ought
to
be
taken
according
to
the
words
,
for
otherwise
he
shall
not
have
any
,
for
modus
et
Conventio
uniunt
Legem
,
and
the
case
of
quare
Impedit
152.
proves
something
to
this
purpose
,
for
a
man
had
4.
advowsons
,
and
granted
the
next
which
should
hap
of
them
to
I.
S.
and
he
died
,
and
the
heir
assigned
the
wife
for
her
Dower
one
Mannor
to
which
the
advowson
was
appendant
,
which
first
became
void
,
and
ruled
that
the
Grantee
shall
not
have
that
against
the
feme
,
and
then
it
was
moved
by
Thorpe
,
that
he
shall
have
the
second
,
but
Shard
said
certainly
never
,
which
proves
that
,
if
the
turn
of
the
Grantee
was
taken
from
him
by
the
indowment
of
the
feme
he
had
lost
that
for
ever
:
the
like
case
is
the
15.
H.
7.
7.
14.
H.
7.
22.
moved
by
Mordant
,
that
the
Grantee
of
the
third
shall
have
the
fourth
,
when
the
wife
is
indowed
of
the
third
,
which
case
is
brought
to
prove
a
case
,
which
without
question
is
not
law
,
and
that
is
that
the
King
being
Gardian
of
the
Grantee
of
the
next
avoydance
,
and
he
grant
that
,
in
this
case
the
heir
shall
have
that
at
his
full
age
,
which
without
question
is
now
law
,
for
by
the
same
reason
his
course
may
be
the
20.
but
there
are
two
rules
from
this
,
which
seem
to
cross
this
opinion
:
one
rule
is
that
the
words
of
the
grantor
shall
be
taken
most
strong
against
himself
,
and
the
other
that
the
Grantor
shall
not
be
received
to
avoid
his
own
grant
,
as
it
is
said
in
Davenports
case
Coo.
8.
but
yet
these
rules
are
to
be
intended
where
the
words
are
compleat
,
for
as
the
case
is
the
13.
Ed.
3.
Grant
65.
that
where
the
husband
and
his
wife
are
joynt
Tenants
for
life
,
and
he
in
reversion
grant
the
lands
only
which
the
husband
held
,
in
this
case
nothing
passeth
,
for
the
reversion
was
expectant
upon
a
lease
which
the
husband
and
wife
held
:
nay
,
I
will
cite
one
case
,
where
a
man
by
his
own
Act
shall
avoid
his
own
grant
:
in
a
quare
Impedit
Elmes
against
Taylor
,
where
a
man
was
seised
of
the
Mannor
,
to
which
the
advowson
was
appendant
,
and
he
granted
the
third
next
avoydance
,
and
after
against
his
own
grant
he
usurped
,
and
it
was
adjudged
,
that
by
this
usurpation
he
had
gained
the
advowson
,
to
be
appendant
to
his
Mannor
again
,
and
that
the
Grantee
had
lost
his
course
,
and
so
the
case
in
Dyer
283.
where
the
Church
was
void
,
and
the
patron
granted
the
next
avoidance
tunc
vacant
.
to
another
,
and
this
pro
hac
unica
vice
tantum
:
and
there
resolved
,
that
the
grant
was
not
good
,
and
that
it
should
not
extend
to
another
:
and
so
in
our
case
it
shall
not
extend
to
a
second
:
another
reason
is
,
if
the
King
had
a
prerogative
he
is
bound
,
and
every
derivative
estate
under
him
,
for
he
shall
not
be
in
better
case
,
then
the
grantee
,
for
he
was
bound
by
the
law
of
the
land
:
and
for
that
it
is
equitie
,
and
it
is
Iustice
that
the
estate
of
the
grantee
should
be
bound
,
and
so
in
this
case
,
like
to
the
case
in
Plowden
207.
and
Dyer
231.
where
by
Act
of
Parliament
the
possessions
of
an
Abbot
were
bound
,
now
if
afterwards
the
Abbot
made
a
lease
for
years
,
or
granted
the
next
avoydance
,
and
then
after
they
came
to
the
King
,
he
shall
avoid
the
grant
,
for
the
interest
of
the
Grantor
was
bound
by
Act
of
Parliament
,
and
see
the
case
of
the
universitie
of
Oxford
Coo.
10.
where
a
man
before
he
was
a
recusant
convict
,
he
granted
the
next
avoydance
,
and
after
he
became
a
recusant
convict
,
and
then
the
Church
became
void
,
now
the
grantee
shall
not
present
,
for
his
interest
was
bound
by
Act
of
Parliament
,
and
so
he
must
take
it
,
and
here
it
behoves
him
to
take
that
,
as
it
is
bound
with
the
prerogative
of
the
King
:
and
so
upon
all
the
matter
he
hath
lost
his
title
,
and
he
concluded
that
the
Plantiff
shall
be
barred
.
The
argument
of
Justice
Winch.
WInch
Iustice
of
the
same
opinion
,
but
because
his
argument
was
much
to
the
purpose
of
that
with
Hutton
,
and
the
Lord
Hobert
;
therefore
I
will
not
Report
that
verbatim
;
and
Winch
said
,
I
will
speak
to
the
last
point
which
was
moved
by
my
brother
Hutton
,
and
I
hold
that
where
he
had
the
first
granted
to
him
,
now
he
shall
have
none
at
all
,
for
it
is
punctually
expressed
that
he
shall
have
the
first
,
and
that
shall
not
extend
to
the
next
which
may
be
granted
:
but
I
grant
if
two
coparceners
had
an
advowson
,
and
the
eldest
presented
,
and
then
she
granted
the
next
avoydance
,
that
in
this
case
the
grantee
shall
have
the
next
which
may
be
granted
,
and
the
reason
is
,
because
she
may
not
dispose
of
the
estate
of
another
;
but
if
in
this
case
the
course
be
evict
,
by
title
Paramount
of
the
King
,
then
the
grantee
had
lost
that
,
and
he
cited
the
case
of
Brook
presentation
52.
and
Gilbie
and
Iuxtons
case
,
which
was
directly
adjudged
with
the
case
of
Brook
,
in
which
he
was
in
councel
as
he
said
:
and
he
said
that
the
book
of
15.
H.
7.
is
not
to
be
relied
upon
for
Law
:
and
he
cited
,
quare
Impedit
154.
and
said
,
that
the
King
in
this
case
shall
not
have
the
presentation
against
the
devisee
,
for
he
had
a
title
setled
before
the
title
of
the
King
,
for
though
the
prerogative
of
the
King
is
more
antient
,
yet
his
title
is
subsequent
,
and
he
cited
divers
cases
,
where
the
title
of
the
subject
was
before
the
title
of
the
Kāng
,
and
so
the
case
of
the
15.
H.
7.
was
adjudged
,
that
he
may
not
out
the
grantee
of
the
next
avoydance
,
and
I
think
there
is
much
difference
between
a
patron
of
inheritance
,
and
he
who
had
only
a
turn
to
present
,
for
there
if
the
prerogative
shall
hold
place
,
he
had
lost
all
the
fruite
of
his
title
,
and
he
said
our
antient
books
are
,
that
the
King
shall
not
have
any
prerogative
,
except
he
himself
be
patron
,
but
admit
he
had
,
then
he
had
dispenced
with
that
,
for
the
Commendam
may
not
be
for
years
;
and
the
Commendam
did
not
make
any
alteration
;
but
only
a
dispensation
,
and
the
case
in
Dyer
shews
that
he
remained
parson
to
resign
,
and
shews
plainly
that
the
King
had
lost
it
:
true
it
is
there
are
some
few
precedents
of
these
Commendams
:
but
there
are
none
in
our
books
,
and
for
the
assumption
of
the
Bishoprick
,
it
is
all
one
with
England
,
for
the
17.
Ed.
the
third
,
the
Bishopricks
are
donatives
,
and
Fitz
N.
B.
169.
14.
Ed.
3.
26.
Plowden
44.
and
the
books
are
the
Common
Law
that
we
have
,
and
he
shewed
some
precedents
of
these
Commendams
to
the
Court
,
and
shewed
the
case
of
the
Earl
of
Kildare
,
where
the
incumbent
had
a
Church
with
cure
in
England
,
and
an
other
in
Ireland
,
and
void
for
the
Pluralitie
;
and
16.
Eliz.
Thorn-Borrow
Parsonage
was
void
,
when
the
incumbent
was
made
Bishop
of
Ireland
,
and
Bancrofts
case
who
was
Deau
in
Ireland
,
and
then
was
made
Bishop
of
London
,
and
it
waā
holden
,
his
Deanry
was
void
,
and
4.
Iac.
Dod
was
made
Bishop
of
N.
and
the
Chancellor
here
in
the
right
of
the
King
presented
to
the
living
:
and
if
a
beneficed
man
do
take
a
Bishoprick
,
by
the
very
taking
of
that
his
benefice
is
void
,
by
the
consecration
clearly
by
the
Lawes
of
the
land
,
for
they
are
two
incompatible
benefices
,
and
may
not
by
any
means
stand
together
,
and
so
upon
the
whole
matter
,
in
regard
that
by
the
assumption
of
the
Bishoprick
,
the
benefice
was
void
by
the
very
consecration
,
and
if
the
King
had
any
title
,
this
was
satisfied
by
his
Licence
,
and
dispensation
to
hold
that
in
Commendam
,
and
so
he
held
the
Plantiff
shall
be
barred
.
The
argument
of
the
Lord
chief
Justice
Hobert
.
HObert
chief
Iustice
of
the
same
opinion
,
and
after
a
Brief
Recital
of
the
case
,
said
that
his
opinion
was
,
that
the
Plantiff
shall
be
barred
,
upon
the
most
of
his
case
(
S.
)
admitting
that
Clardon
did
live
above
the
6.
years
,
so
that
the
King
did
present
Gee
in
point
of
prerogative
,
yet
the
Plantiff
had
not
title
upon
the
most
of
his
matter
,
much
less
upon
the
viciousness
of
his
pleading
,
and
first
we
are
to
deal
,
with
the
avoidance
of
benefices
,
with
their
compatibles
,
and
then
with
the
Commendams
of
the
King
:
and
first
I
hold
if
a
beneficed
man
take
a
Bishoprick
he
hath
clearly
lost
his
benefice
by
his
consecration
,
by
the
lawes
of
the
Land
,
for
they
are
two
incompatible
benefices
,
and
they
māy
not
stand
together
,
but
in
this
we
must
distinguish
,
in
this
manner
,
first
a
benefice
may
be
void
by
subordination
,
as
where
one
is
made
Bishop
of
the
same
Diocess
in
which
his
Parsonage
is
,
&
this
is
the
very
reason
of
Dyer
158.
and
8.
Ed.
3.
9.
where
a
Prebend
of
the
same
Church
is
made
a
Dean
,
but
otherwise
if
he
be
made
Dean
of
another
Church
,
and
so
my
opinion
is
,
if
a
Bishop
be
made
an
Arch-Bishop
of
the
same
province
,
where
his
Bishoprick
is
;
nay
,
if
there
is
Parson
and
Vicar
of
the
same
Parish
with
cure
,
and
the
Vicar
accept
the
Parsonage
,
the
Vicaridge
is
void
,
for
the
Vicaridge
was
derived
out
of
the
Parsonage
,
&
our
books
say
,
it
was
a
long
time
before
they
would
give
the
Vicar
any
estate
,
and
the
reason
was
,
because
here
was
a
Corporation
erected
without
Lawful
Authoritie
,
chiefly
by
the
ordinary
with
the
consent
of
the
Patron
:
and
this
case
hath
not
his
fellow
in
the
Law
,
and
it
is
de
novo
that
it
is
made
,
for
ab
nitio
non
suit
sic
:
and
that
also
had
inabled
him
to
bring
an
action
against
the
Parson
;
and
also
it
gave
to
him
a
freehold
,
but
the
chief
reason
was
he
eased
the
Parson
in
his
dutie
,
and
therefore
good
reason
he
should
have
part
in
the
profit
,
but
in
our
case
the
reason
of
the
subordination
doth
fail
,
for
he
is
Bishop
of
another
Diocess
(
S.
)
in
Ireland
,
and
therefore
we
ought
to
search
for
another
reason
,
and
without
doubt
the
Law
is
all
one
in
that
also
,
and
this
is
ratione
eminentiae
by
reason
of
the
dignitie
of
a
Bishop
,
and
so
is
Packhursts
case
in
Dyer
ruled
without
any
exception
;
and
the
case
of
the
44.
Ed.
3.
where
one
who
had
been
prebend
in
England
was
made
Bishop
in
Ireland
,
and
ruled
the
prebendary
to
be
void
,
and
because
the
office
of
a
Bishop
and
a
Parson
,
do
differ
in
the
eminencie
,
therefore
a
Bishop
may
not
be
a
Parson
,
and
now
for
the
other
point
,
whether
the
King
had
a
prerogative
or
no
,
I
spare
to
speak
,
because
there
is
no
necessitie
to
draw
that
into
question
,
for
the
Plantiff
had
admitted
that
,
and
the
Defendant
had
not
denied
it
:
but
for
the
Commendam
I
do
not
make
question
but
the
King
may
make
one
,
and
so
may
the
Arch
Bishop
,
but
the
power
of
the
Arch-Bishop
is
potestas
limitata
,
but
the
King
had
a
double
power
,
one
by
antitient
title
before
any
claim
made
by
the
Pope
,
and
the
other
by
the
Statute
;
but
now
for
the
other
point
,
I
think
it
is
a
Commendam
for
years
,
and
first
I
hold
if
the
case
had
been
that
he
should
hold
that
in
Commendam
with
his
Bishoprick
in
pristino
Statu
,
that
had
taken
away
the
power
of
the
King
to
present
afterwards
,
and
the
reason
is
plain
,
for
the
prerogative
is
to
present
to
that
which
is
void
by
the
assumption
of
the
Bishoprick
,
which
doth
never
hap
,
for
by
the
Commendam
he
had
that
still
as
before
,
but
here
the
Commendam
is
for
years
,
and
if
he
do
also
resign
during
the
years
,
then
this
is
void
by
resignation
,
and
so
is
the
case
of
Packhurst
,
that
when
he
resignes
during
the
years
of
the
Commendam
,
the
Patron
shall
have
that
,
and
not
the
King
:
and
so
also
my
opinion
is
clear
,
that
if
he
had
died
within
the
6.
years
limitted
by
the
Commendam
,
that
the
King
shall
not
have
that
,
for
then
it
is
void
by
death
,
and
not
by
the
assumption
of
the
Bishoprick
,
which
book
proves
directly
,
that
a
Commendam
may
be
aswel
for
years
,
as
for
life
;
but
yet
I
do
not
hold
that
upon
those
temporary
Commendams
,
if
the
Bishop
continued
Parson
during
the
years
,
and
made
no
Act
to
impeach
,
that
then
is
a
void
cause
(
S.
)
the
assumption
of
the
Bishoprick
,
and
then
when
that
is
determined
the
supension
is
determined
,
and
it
is
void
by
the
original
cause
(
S.
)
by
the
assumption
of
the
Bishoprick
:
and
this
Commendam
doth
not
turn
the
second
or
first
Patron
to
any
prejudice
,
for
the
incumbent
is
still
in
by
the
presentation
of
the
Patron
,
and
the
determination
of
the
Commendam
is
not
any
cause
of
the
avoidance
of
the
benefice
;
but
this
is
quasi
non
causa
,
which
is
causa
stolida
,
as
the
Logicians
do
term
it
:
but
in
this
case
the
assumption
is
the
cause
of
the
Cession
,
and
it
is
like
to
the
case
of
25.
Ed.
3.
47.
where
the
King
brought
a
quare
Impedit
against
the
Arch-Bishop
of
York
for
a
Prebendary
;
vide
the
case
:
and
ruled
in
that
case
,
that
the
confirmation
of
the
King
had
not
taken
away
his
title
to
present
,
and
the
reason
was
,
because
the
confirmation
had
not
filled
the
Church
,
but
continued
that
full
which
was
full
before
,
and
here
this
temporarie
Commendam
may
not
restrain
the
King
to
present
afterwards
,
for
this
is
not
a
presentation
,
and
therefore
may
not
take
away
the
title
of
the
King
:
and
here
the
Plantiff
hath
not
well
expressed
it
,
for
he
hath
not
shewed
in
this
Court
,
that
the
presentation
of
the
King
was
lawful
,
neither
that
Chardon
held
that
by
vertue
of
the
Commendam
for
all
the
6.
years
,
but
only
that
the
Church
became
void
,
by
the
Laws
of
England
,
and
that
is
not
sufficient
:
and
then
if
all
before
were
for
the
Plantiff
,
yet
the
question
is
,
whether
he
hath
lost
his
turn
:
and
I
think
that
he
hath
,
omnis
argumentatio
est
Ć
notoribus
,
and
the
first
is
better
known
,
then
the
second
,
and
the
second
may
not
be
the
first
,
and
there
when
the
devise
gave
him
the
first
,
it
is
idle
to
say
,
that
he
shall
have
the
second
,
for
that
departs
from
the
meaning
of
the
words
,
and
in
every
grant
the
law
implies
quantum
in
se
est
,
and
no
man
may
say
,
that
the
devisor
did
intend
to
warrant
that
from
antient
Titles
;
and
so
the
Lord
Hobert
concluded
his
argument
,
and
said
his
opinion
was
,
that
the
Plantiff
shall
be
barred
,
and
judgement
was
commanded
to
be
entred
accordingly
.
Mich.
22.
Jac.
C.P.
Michaelmas
Term
in
the
two
and
twentieth
year
of
King
James
in
the
Common
Pleas.
DAvenport
moved
for
the
amendment
of
a
Record
,
where
a
recovery
was
suffered
of
lands
,
in
Sutton
in
the
Countie
of
York
,
and
the
indenture
of
bargain
and
sale
was
by
the
right
name
,
and
the
indenture
of
uses
by
the
right
name
,
but
the
writ
of
entrie
was
of
the
Mannor
of
Sulton
,
and
upon
the
examination
of
the
parties
to
be
recovery
,
that
the
recovery
,
was
to
no
other
uses
then
is
expressed
,
and
mentioned
in
the
said
indenture
,
this
was
to
be
amended
.
Sheis
against
Sir
Francis
Glover
.
SHeis
brought
an
action
upon
the
case
against
Sir
Francis
Glover
,
and
shewed
for
the
ground
of
his
action
,
that
where
one
Harcourt
was
bound
to
the
Plantiff
,
in
a
Recognizance
&c.
upon
which
the
Plantiff
took
forth
an
elegit
,
and
the
Defendant
being
the
Sheriff
of
the
Countie
,
took
an
inquisition
upon
that
upon
which
it
was
extended
;
but
he
refused
to
deliver
this
to
the
Plantiff
,
but
yet
he
returned
,
that
he
had
delivered
that
,
and
upon
that
he
brought
his
Action
,
and
upon
not
guiltie
pleaded
,
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
by
Serjeant
Hendon
,
and
the
reason
he
shewed
was
,
because
he
laid
his
action
in
an
improper
Countie
,
for
though
the
return
was
in
Middlesex
where
the
Action
was
brought
;
yet
because
the
land
lies
in
Oxfordshire
,
where
the
seisin
ought
to
be
delivered
the
place
is
Local
,
and
for
that
the
Action
ought
to
be
brought
there
,
and
now
Serjeant
Breamston
argued
that
the
Action
was
well
brought
in
Middlesex
,
for
this
being
but
a
personal
thing
,
he
may
bring
that
in
either
of
the
Counties
,
as
14.
Ed.
4.
13.
Ed.
4.
19.
expresly
in
the
point
,
and
to
the
second
objection
that
had
been
made
,
that
an
Averment
may
not
be
against
the
return
of
the
Sheriff
,
to
that
Breamston
answered
,
that
in
an
other
Action
an
Averment
may
be
against
the
return
of
the
Sheriff
,
though
not
in
the
same
Action
,
as
5.
Ed.
4.
but
it
was
agreed
to
have
a
new
trial
by
the
preservation
of
the
Iustices
,
for
otherwise
it
seemed
the
opinion
of
the
Court
was
,
that
the
Plantiff
shall
have
judgement
upon
the
reasons
urged
by
Serjeant
Breamston
.
Mary
Baker
against
Robert
Baker
an
Infant
in
Dower
.
MAry
Baker
brought
a
writ
of
Dower
against
Robert
Baker
an
Infant
,
who
did
appear
by
his
Gardian
,
and
he
pleaded
that
his
father
who
was
husband
of
the
demandant
,
was
seised
of
a
Messuage
and
of
land
in
Socage
,
and
devised
that
to
the
demandant
for
her
joynture
in
full
satisfaction
of
all
Dower
,
and
he
shewed
that
after
the
death
of
his
father
,
the
demandant
did
enter
into
the
said
Messuage
,
and
land
,
and
was
seised
of
that
by
vertue
of
the
devise
,
and
to
that
the
demandant
did
replie
by
protestation
,
that
he
did
not
devise
,
and
for
plea
confessed
the
seisin
of
the
husband
and
her
own
entrie
,
but
she
further
shewed
that
the
Infant
,
who
was
then
Tenant
,
was
but
of
the
age
of
14.
years
,
and
that
she
entred
as
Gardian
in
Socage
to
the
Infant
,
and
disagreed
to
accept
of
that
by
vertue
of
the
devise
,
and
traversed
the
entire
,
and
the
agreement
:
and
it
was
said
by
the
Court
,
that
his
bar
is
good
,
though
it
had
been
more
pregnant
to
have
alledged
,
that
she
entred
virtute
legationis
praedictae
,
and
so
was
seised
,
and
after
it
was
said
,
that
the
Replication
was
very
good
without
the
traverse
,
for
this
was
not
expresly
set
down
,
but
that
was
but
meerly
the
consequence
of
the
plea
,
which
in
veritie
was
not
traversable
.
Hickman
against
Sir
William
Fish
.
HIckman
had
judgement
for
600.
l.
and
10.
l.
damages
against
Sir
William
Fish
,
and
he
acknowledged
satisfaction
for
410.
l.
of
the
said
debt
,
and
damages
;
and
after
there
was
an
agreement
between
them
,
that
if
Sir
William
did
not
pay
the
residue
by
such
a
day
,
that
then
it
should
be
lawful
for
Hickman
to
take
out
execution
against
the
said
Fish
,
without
suing
of
any
scire
facias
,
though
it
was
after
the
year
;
and
afterwards
the
money
not
being
paid
,
Hickman
sued
forth
a
Capias
ad
satisfaciendum
against
Sir
William
Fish
,
directed
to
the
Sheriff
of
Bedfordshire
for
210.
l.
and
now
upon
a
habeas
Corpus
,
Sir
William
Fish
was
brought
to
the
bar
,
and
Serjeant
Crawley
moved
for
a
supersedeas
for
him
,
because
the
writ
emanavit
improvide
&c.
and
by
the
Court
it
is
a
cause
to
discharge
him
of
the
execution
,
for
the
Capias
ought
to
have
issued
for
200.
l.
only
,
and
he
ought
to
have
sued
a
scire
facias
,
though
this
was
after
the
year
,
because
the
Proces
was
not
continued
,
but
they
said
withall
,
it
was
in
their
discretion
,
whether
they
will
grant
a
supersedeas
,
for
they
may
put
the
Defendant
to
his
writ
of
error
.
It
was
ruled
,
that
if
an
action
of
debt
was
brought
,
and
the
venire
facias
to
trie
the
issue
is
in
placito
debiti
,
and
so
is
the
habeas
Corpus
,
and
the
Pannel
;
but
in
the
Iury
Roll
of
the
nisi
prius
,
at
the
latter
end
of
the
jurata
there
it
is
placito
transgressionis
;
and
agreed
in
this
case
this
is
amendable
,
or
in
this
case
it
is
good
without
amendment
.
Wen
against
Moore
.
THomas
Crew
Serjeant
did
move
in
arrest
of
judgement
,
where
one
Wen
brought
an
Action
upon
the
case
against
Moore
,
and
upon
non
assumpsit
,
it
was
found
for
the
Plantiff
,
and
he
said
that
the
Colloquium
was
laid
to
be
at
Bourn
in
the
Countie
of
Lincoln
,
and
the
venire
facias
was
de
Vicineto
de
Born
,
without
the
letter
(
u.
)
and
for
that
reason
,
that
they
are
several
Towns
,
therefore
error
,
for
if
the
entire
Town
is
omitted
:
the
trial
is
insufficient
;
but
the
Court
held
this
to
be
very
good
without
amendment
,
and
shall
be
intended
to
be
the
same
Town
.
It
was
moved
in
arrest
of
judgement
by
Serjeant
Finch
,
that
where
one
had
brought
an
Action
upon
the
case
against
one
,
and
shewed
that
the
Defendant
in
consideration
of
12.
d.
given
to
him
by
the
Plantiff
,
he
assumed
and
promised
,
that
if
the
Plantiff
may
prove
that
he
cut
quandam
arborem
,
upon
the
land
of
Sir
Francis
Vain
tunc
crescent
,
that
he
would
give
to
him
10.
l.
and
this
being
proved
by
the
Plantiff
,
it
was
now
moved
in
arrest
of
judgement
,
that
quandam
arborem
is
an
individual
tree
,
and
it
ought
to
be
aliquam
arborem
,
and
another
cause
was
alledged
,
because
it
was
not
shewed
,
that
this
was
upon
the
land
of
Sir
Francis
Vain
,
then
growing
,
but
only
he
had
said
growing
,
and
that
may
be
,
for
perchance
he
purchased
the
land
afterwards
,
and
before
the
Action
brought
,
and
so
it
might
be
growing
,
though
not
tunc
crescent
.
at
the
time
of
the
promise
,
but
the
Court
&c.
Winch
,
Hutton
,
and
Harvey
,
seemed
that
the
declaration
was
good
,
for
they
said
there
is
no
question
if
quandam
had
been
out
,
this
had
been
good
,
for
it
is
the
singular
number
,
and
he
that
certain
,
or
be
that
incertain
,
yet
by
the
verdict
it
is
made
certain
,
that
this
is
a
tree
,
and
also
those
words
tunc
crescent
.
do
refer
to
the
time
when
the
tree
was
feld
,
and
not
to
the
promise
.
Holman
against
Sir
Thomas
Pope
and
Elizabeth
his
wife
.
SErjeant
Hendon
moved
in
a
case
,
where
an
Action
was
brought
by
one
Holman
against
Sir
Thomas
Pope
and
Elizabeth
his
wife
as
daughter
and
heir
to
Sir
Thomas
Watson
,
and
pending
the
writ
,
Pope
died
,
and
he
moved
that
the
writ
ought
not
to
abate
,
because
it
is
brought
against
her
as
daughter
and
heir
,
where
the
land
is
assets
,
in
which
the
husband
had
nothing
:
like
to
the
case
of
an
Executrix
,
who
brings
her
action
in
her
own
name
,
and
the
name
of
her
husband
,
and
pending
the
writ
,
the
husband
dies
,
the
writ
shall
not
abate
,
but
Justice
Harvey
said
,
this
case
of
Executors
was
adjudged
against
him
,
and
Hobert
chief
Justice
was
of
opinion
,
that
the
writ
shall
not
abate
,
but
day
was
given
over
in
that
case
.
Sir
Thomas
Holbeach
,
against
Sambeach
.
IN
the
case
between
Sir
Thomas
Holbeach
,
and
Sambeach
in
a
replevin
where
a
demurrer
was
joyned
,
the
case
was
this
,
one
being
Tenant
for
life
,
and
he
in
remainder
in
tail
,
joyned
in
a
grant
of
a
rent
in
fee
out
of
that
,
and
then
they
joyned
in
the
levying
of
a
fine
to
a
stranger
and
his
heirs
,
and
in
this
case
it
was
said
,
that
the
estate
of
the
grantee
of
the
rent
which
before
was
determinable
,
is
now
made
absolute
,
and
a
judgement
was
also
cited
to
be
in
that
case
lately
adjudged
:
to
which
the
Court
seemed
to
agree
,
and
they
said
,
if
this
be
the
point
,
they
will
give
judgement
presently
.
Crompton
against
Philpot.
HEndon
Serjeant
moved
in
arrest
of
judgement
,
in
a
case
for
Philpot
a
crier
of
this
Court
,
where
one
Crompton
had
recovered
40.
l.
damages
against
him
,
in
an
action
upon
the
case
,
for
words
spoken
against
Crompton
,
&c.
he
innuendo
the
Plantiff
stole
a
ring
,
and
had
been
hanged
for
that
but
for
me
,
and
it
was
said
in
the
first
place
,
that
it
doth
not
expresly
appear
,
that
the
words
were
spoken
of
the
Plantiff
himself
,
neither
is
this
introduced
by
any
precedent
Colloquium
as
it
ought
,
for
otherwise
the
innuendo
will
not
aide
it
:
but
in
veritie
the
declaration
was
,
that
the
words
were
spoken
de
eodem
Richardo
innuendo
&c.
and
also
he
said
,
that
the
words
are
not
actionable
,
because
that
no
value
is
exprest
,
but
it
was
ruled
,
if
that
were
but
petie
Larcenie
,
the
action
lies
,
but
the
Court
gave
no
absolute
opinion
in
the
case
,
for
they
were
willing
to
compound
for
the
poor
man
.
The
residue
of
Michaelmas
Term
in
the
two
and
twentieth
year
of
King
James
.
Brown
and
Ware
against
Barker
.
BRown
and
Ware
brought
an
action
agaist
Barker
,
and
they
declared
,
that
whereas
there
was
a
suit
depending
between
the
Plantiffs
and
other
Coppiholders
,
of
such
a
mannor
in
the
Chancery
against
Brook
their
Lord
,
and
that
one
Woolsey
was
there
Clark
,
and
that
he
for
his
fees
,
and
for
the
procuring
of
a
decree
had
disbursed
14.
l.
and
that
there
being
a
Communication
between
the
Plantiff
,
and
the
Defendant
concerning
the
same
,
he
being
a
Coppiholder
of
the
same
Mannor
,
that
in
consideration
,
that
they
would
pay
to
Woolsey
14.
l.
he
would
pay
to
the
Plantiffs
40.
s.
upon
request
,
and
the
Plantiff
shewed
,
that
they
had
paid
the
14.
l.
and
that
the
Defendant
had
not
paid
the
40.
s.
Licet
postea
saepius
requisitus
fuisset
,
and
upon
non
assumpsit
pleaded
,
it
was
found
for
the
Plantiffs
,
and
now
it
was
moved
in
arrest
of
judgement
,
by
Crook
Serjeant
.
First
because
he
is
a
stranger
to
the
suit
,
for
he
had
not
alledged
,
that
the
Defendant
was
a
partie
,
and
then
it
is
no
consideration
,
but
this
was
over-ruled
,
because
they
paid
the
14.
l.
upon
his
request
;
the
second
exception
was
,
that
this
postea
saepius
requisitus
,
was
not
sufficient
in
this
case
,
because
that
he
ought
to
express
the
certaintie
when
,
and
the
place
where
the
request
was
made
after
the
promise
,
and
the
14.
l.
paid
,
and
he
said
,
there
is
a
difference
where
a
thing
is
a
present
dutie
,
and
where
it
is
a
dutie
upon
request
,
or
upon
any
Collateral
Act
,
there
the
request
is
traversable
,
otherwise
when
it
is
a
dutie
upon
a
contract
,
or
upon
an
obligation
,
there
Licet
saepius
&c.
is
sufficient
,
and
according
to
this
it
was
adjudged
Hill
18.
Iac.
Rot.
1894.
debt
upon
an
arbitrement
between
one
Prideaux
,
and
Walcot
for
the
payment
of
340.
l.
upon
request
,
and
it
was
alledged
there
,
that
he
had
not
paid
that
Licet
saepius
requisitus
,
and
it
was
adjudged
,
that
in
this
case
it
was
not
sufficient
,
because
it
was
not
a
dutie
presently
,
but
upon
the
request
,
and
the
place
where
the
request
was
made
,
ought
to
be
put
in
certain
,
and
he
cited
another
case
H.
16.
Iac.
between
Hill
and
Moor
,
adjudged
in
this
point
of
assumpsit
,
as
in
our
case
,
for
where
it
becomes
to
be
a
debt
payable
upon
request
,
there
ought
to
be
alledged
a
time
and
place
of
the
request
:
and
so
H.
30.
Eliz.
one
Welborns
case
,
where
a
man
promised
to
pay
so
much
money
for
costs
of
a
suit
,
when
he
should
be
requested
to
pay
that
,
and
there
after
verdict
,
judgement
was
arrested
:
and
Hobert
said
,
that
the
request
is
part
of
the
cause
of
the
Action
,
and
for
that
it
ought
to
be
set
down
precisely
,
and
there
ought
to
be
a
promise
broken
,
and
such
a
promise
upon
which
an
issue
may
be
taken
.
Bubles
case
.
IT
was
argued
in
the
case
of
Buble
,
who
was
Administrator
during
the
minoritie
of
an
Infant
,
that
the
Court
of
the
Marches
of
Wales
have
no
Authoritie
to
force
such
an
Administrator
to
accompt
before
them
,
but
only
the
Ecclesiastical
Court
:
and
if
they
intermeddle
in
any
such
thing
,
this
Court
may
grant
a
Prohibition
.
The
great
case
of
Cooper
,
and
of
Edgar
in
Ejectione
firme
.
I
In
Ejectione
firme
between
Cooper
and
Edgar
for
diverse
lands
in
Norfolk
,
upon
a
lease
made
by
Downey
and
his
wife
for
5.
years
,
and
upon
the
general
issue
the
jury
gave
a
special
verdict
to
this
effect
;
that
one
Henry
Foyne
was
seised
ofland
in
his
demeasne
as
of
fee
,
and
9.
April
34.
Eliz.
infeoffed
Iustice
Windham
and
others
,
to
the
use
of
Anne
his
wife
for
life
,
the
remainder
to
him
and
his
right
heirs
in
fee
,
and
then
Henry
died
,
and
that
the
reversion
discended
to
Robert
Foyne
as
son
and
heir
to
Henry
,
and
he
being
so
seised
of
the
reversion
11.
Iun.
10.
Iac.
by
indenture
made
between
Robert
and
Anne
his
Mother
,
who
was
Tenant
for
life
,
it
was
agreed
that
Robert
should
levie
a
fine
of
that
in
Trinity
Term
,
and
this
fine
was
to
be
to
the
use
of
Anne
and
her
heirs
for
ever
,
if
Robert
did
not
pay
or
cause
to
be
paid
to
Anne
10.
l.
upon
the
first
of
September
next
,
and
if
he
pay
then
it
shall
be
to
other
uses
(
S.
)
to
the
use
of
the
same
Anne
for
life
,
of
that
part
of
which
she
was
seised
,
and
of
the
residue
to
the
use
of
Robert
and
his
heirs
;
and
they
found
over
that
the
fine
was
levied
to
the
same
uses
the
same
term
;
and
they
found
over
,
that
Robert
died
at
the
age
of
20.
years
,
and
a
11.
moneths
,
and
this
was
before
the
first
of
September
,
and
it
was
found
,
that
one
Anne
,
and
Elizabeth
under
whom
the
Plantiff
did
claim
were
sisters
and
heirs
to
Robert
:
and
that
they
had
not
any
notice
of
the
use
,
nor
of
the
indenture
,
and
that
they
did
not
pay
the
money
upon
the
first
of
September
,
but
that
afterwards
they
entred
,
and
made
the
lease
&c.
and
the
Defendant
claimed
under
Anne
,
who
is
now
the
Lady
Cesar
,
and
now
if
upon
all
the
matter
the
Defendant
be
guilty
was
the
question
.
And
Crawley
Serjeant
argued
for
the
Plantiff
,
and
the
substance
of
his
argument
was
in
this
mannor
,
and
first
he
said
,
that
he
conceived
the
points
to
be
upon
the
special
verdict
,
either
to
concern
the
antient
estate
,
or
the
new
estate
of
the
Lady
Cesar
,
and
here
we
are
also
to
consider
,
whether
the
uses
are
well
created
and
stand
good
,
by
the
indenture
,
and
by
the
fine
without
the
help
of
the
special
verdict
,
and
first
I
will
not
dispute
,
when
an
Infant
levies
a
fine
,
and
dies
before
the
reversal
of
that
,
whether
his
heir
may
avoid
that
,
and
this
is
ruled
in
Cooks
Reports
10.
H.
7.
16.
that
this
may
not
be
,
because
that
this
trial
ought
to
be
by
inspection
,
which
now
may
not
be
,
when
he
is
deed
,
but
that
which
I
will
insist
upon
in
the
first
place
is
this
,
when
an
infant
made
an
indenture
to
declare
the
uses
of
a
subseqent
fine
,
and
he
doth
after
that
at
another
time
levie
a
fine
generally
without
expressing
of
any
use
in
the
fine
,
whether
he
may
any
wise
enter
,
and
avoid
the
uses
of
the
same
fine
,
or
whether
the
law
of
necessity
doth
adjudge
the
fine
to
be
to
the
same
uses
,
without
the
help
of
any
Averment
,
and
I
hold
that
he
may
avoid
those
uses
,
which
do
stand
upon
this
difference
,
that
it
is
incongruous
to
reason
,
that
if
the
law
admits
a
man
to
be
of
abilitie
to
levie
a
fine
,
then
at
the
same
instant
,
or
after
he
may
declare
the
uses
,
because
it
it
is
intended
,
that
he
is
of
full
age
,
and
if
this
had
been
a
fine
with
grant
,
and
render
in
which
there
is
alwayes
an
use
expressed
,
as
26.
H.
8.
2
,
that
the
grant
of
an
Infant
is
absolutely
void
:
but
I
do
agree
the
case
in
Beckwiths
case
of
a
feme
Covert
.
dum
fuit
infra
aetatem
,
which
seems
to
infer
,
that
the
grant
of
an
infant
is
not
absoluely
void
;
I
answer
that
is
but
the
admission
of
the
Court
,
and
15.
7.
4.
if
an
infant
made
a
deed
,
and
at
full
age
he
inrolled
that
,
this
is
a
conclusion
for
him
to
denie
that
,
for
this
inrolment
is
an
affirmance
of
that
,
and
the
reason
of
that
is
,
because
this
is
an
affirmance
of
the
same
thing
:
but
here
the
fine
and
the
uses
are
distinct
,
and
for
that
they
are
voidable
,
and
for
the
other
point
the
derdict
had
found
,
that
the
fine
was
levied
to
the
uses
aforesaid
,
whether
that
had
established
the
uses
,
and
made
them
unavoidable
so
long
as
the
fine
is
in
force
,
and
I
hold
that
it
had
not
,
for
it
is
no
more
then
ad
usus
supra
dictos
,
and
it
had
not
bettered
the
uses
,
for
they
had
no
reference
to
aide
the
uses
:
like
to
the
case
of
the
Earl
of
Leicester
in
Plowdon
,
and
the
5.
Ed.
4.
41.
and
yet
I
grant
that
an
Act
of
Parliament
may
make
a
thing
void
which
was
good
,
but
so
may
not
a
fine
,
and
so
held
the
verdict
had
not
aided
that
.
The
residue
of
Michaelmas
Term
in
the
two
and
twentieth
year
of
King
James
.
ANd
now
he
argued
to
the
third
point
,
which
is
the
great
point
,
whether
those
words
if
Robert
do
not
pay
,
make
a
subsequent
or
a
precedent
condition
;
and
I
hold
that
it
is
a
precedent
condition
,
and
this
interpretation
stands
best
with
the
intentions
of
the
parties
,
for
before
Ann
had
an
estate
for
life
,
and
Robert
in
fee
,
and
if
a
present
use
will
arise
,
then
Ann
shall
have
all
presently
,
and
leave
nothing
to
Robert
,
but
if
the
uses
do
forbear
setling
till
the
first
of
September
,
and
arise
according
to
payment
,
and
all
the
doubt
stands
upon
this
word
(
if
)
which
is
some
time
taken
as
a
limitation
,
as
if
a
man
gives
land
to
another
,
and
to
the
heirs
of
his
body
,
and
if
he
die
without
issue
,
then
to
another
there
(
if
)
is
a
limitation
,
as
it
is
in
Bestons
case
:
but
here
this
refers
to
a
contingencie
:
and
therefore
it
is
a
condition
,
and
saving
the
opinion
of
Hide
and
of
Mountague
in
Colthursts
case
:
I
hold
that
(
if
)
there
was
a
condition
,
and
regularly
(
if
)
is
a
note
of
a
precedent
condition
:
and
I
will
first
prove
,
that
by
Logick
,
for
the
word
are
an
intire
Hypothetical
proposition
,
(
S.
)
the
use
shall
be
to
An
if
&c.
and
in
this
is
a
Histeron
proteron
invertio
ordinis
partium
,
that
the
consequent
should
be
before
the
Antecedent
:
in
this
manner
if
Robert
do
not
pay
10.
l.
to
Anne
the
first
of
September
,
then
it
shall
be
to
the
use
of
Anne
,
and
so
quelibet
pars
in
Loco
proprio
redigenda
est
,
and
then
if
it
is
so
,
it
is
no
doubt
but
this
is
a
precedent
condition
,
and
he
cited
Wheelers
case
14.
H.
8.
a
man
granted
his
Term
,
if
he
could
procure
the
good
will
of
his
Lessor
.
and
this
was
adjudged
to
be
a
precedent
condition
,
and
so
is
Bracton
Lib.
2.
cap.
6.
if
the
condition
is
in
futuris
,
then
it
is
alwayes
precedent
as
to
do
talem
rem
si
dederis
mihi
10.
s.
there
it
is
said
,
valet
donatio
sed
suspenditur
tanquam
&c.
and
if
we
observe
quite
thorough
Wheelers
case
this
is
alwayes
a
note
of
a
precedent
condition
,
and
yet
I
grant
that
in
some
case
it
may
be
a
note
of
a
subsequent
condition
,
but
that
is
quando
impediatur
&c.
as
in
the
principal
case
in
Colthirst
si
vellet
inhabitare
there
of
necessitie
this
ought
to
be
a
subsequent
condition
.
Now
the
next
point
is
,
whether
the
condition
is
discharged
by
the
the
death
of
Robert
before
the
first
of
September
;
and
I
hold
that
it
is
,
for
If
distinguisheth
as
if
the
word
had
been
,
that
if
Robert
do
not
pay
;
yet
if
he
die
before
the
day
,
he
is
discharged
of
the
payment
,
for
there
was
not
any
default
in
him
,
for
all
Humane
contracts
must
give
way
to
this
Statute
of
mortalitie
,
Statutum
est
omnibus
mori
,
and
there
was
not
any
default
in
the
heir
of
Robert
,
for
he
was
not
bound
to
pay
,
and
therefore
he
needs
not
to
do
that
being
to
his
prejudice
,
but
my
chief
reason
is
upon
the
general
rule
of
all
conveyances
,
for
our
law
in
its
institution
was
a
Law
of
mercy
,
and
will
indeavour
to
iustifie
Acts
made
in
obedience
to
that
,
and
to
excuse
defaults
of
disobedience
:
and
this
is
the
reason
of
Master
Littletons
case
,
if
a
feofment
is
made
upon
condition
,
that
if
the
feoffor
pay
10.
l.
such
a
day
&c.
now
that
being
to
reduce
an
estate
is
not
taken
litterally
,
but
if
the
heir
or
executor
pay
that
,
this
is
sufficient
to
reduce
the
estate
,
and
so
it
may
be
paid
at
other
places
,
and
to
other
Parsons
,
and
so
if
the
condition
is
to
be
performed
of
the
part
of
the
feoffee
,
there
his
feoffee
may
pay
that
.
The
next
point
is
,
whether
any
notice
is
requisite
,
and
he
held
that
there
ought
to
be
notice
,
because
the
heirs
are
ignorant
of
that
;
and
in
some
case
where
a
man
is
bound
to
take
notice
of
that
;
yet
by
the
Act
of
Law
,
that
shall
be
discharged
,
as
in
Sir
Andrew
Corbets
case
:
but
now
for
that
last
point
,
Lillingstons
case
,
The
argument
of
Serjeant
Finch
Recorder
of
London
.
LEinuage
Finch
Serjeant
,
and
Recorder
of
London
contrary
:
and
after
a
Recital
of
the
case
said
,
that
I
think
judgement
ought
to
be
given
for
the
Defendant
,
it
is
usually
said
,
finis
finem
imponet
Litibus
,
but
here
our
fine
had
not
that
sence
,
for
that
had
been
questioned
in
all
the
Courts
of
Westminster
,
and
now
it
is
come
to
this
Court
,
where
we
ought
to
have
begun
,
for
this
is
the
proper
Court
to
determine
the
right
of
inheritances
,
ergo
spero
sumus
in
Loco
proprio
;
and
therefore
shall
be
at
rest
:
and
the
case
upon
this
special
verdict
stands
upon
two
points
.
First
,
whether
by
the
indenture
and
fine
,
the
Lady
Cesar
had
gained
the
inheritance
.
Secondly
,
if
she
had
not
gained
the
inheritance
,
whether
she
had
kept
her
first
estate
,
and
for
the
first
there
are
three
pertinent
points
moved
by
my
brother
Crawley
,
to
which
I
will
add
a
fourth
.
First
,
whether
the
words
make
a
precedent
or
subsequent
condition
.
Secondly
,
whether
the
death
of
Robert
had
discharged
that
,
and
that
is
become
impossible
.
Thirdly
,
admit
that
this
is
become
impossible
,
whether
the
use
will
arise
to
the
Lady
Cesar
,
and
I
hold
that
it
will
arise
to
the
Lady
Cesar
.
Fourthly
,
whether
any
notice
is
requisite
:
and
here
first
by
the
way
,
whether
an
infant
may
limit
the
uses
of
a
fine
,
I
will
not
argue
that
,
for
so
it
is
resolved
in
Beckwiths
case
;
and
so
is
it
cited
in
Mary
Portingtons
case
to
be
adjudged
,
and
there
was
one
Lewes
case
26.
Eliz.
before
Wray
and
Anderson
,
and
the
reason
is
apparant
,
that
when
the
law
had
adjudged
by
inspection
,
him
to
be
at
full
age
when
he
levies
a
fine
,
he
shall
never
come
after
the
fine
is
levied
,
and
said
that
he
was
within
age
at
the
time
of
the
limitation
of
the
uses
;
nay
,
I
will
cite
one
case
to
shew
how
cautelous
and
warie
the
law
is
in
adjudging
by
inspection
:
Poynts
case
,
where
an
infant
brought
a
writ
of
error
to
reverse
a
fine
,
and
day
was
given
till
Octabis
Mich.
to
be
adjudged
by
inspection
,
and
before
the
day
the
Term
was
adjourned
till
Mense
Michael
.
but
between
Octabis
Mich.
and
Mense
Mich.
he
came
of
full
age
,
and
yet
upon
Octabis
Mich.
upon
the
Essoyne
day
Justice
Crook
took
his
inspection
de
bene
esse
,
and
it
was
ruled
,
that
now
he
may
not
avoid
the
fine
,
but
he
was
forced
to
compound
for
the
Land
,
and
so
the
6.
Iac.
was
one
Randals
case
,
who
reversed
a
Statute
by
reason
of
his
minoritie
by
audita
querela
,
and
the
last
judgement
,
for
some
error
in
that
was
reversed
,
and
then
he
brought
a
new
audita
querela
,
when
he
was
of
full
age
,
and
he
cited
all
the
proceedings
upon
the
first
,
and
adjudged
that
the
audita
querela
doth
lie
,
and
so
here
,
when
the
law
inables
him
to
levie
a
fine
,
the
same
inables
him
to
declare
the
uses
;
and
now
for
the
first
point
,
whether
this
be
a
precedent
or
a
subsequent
condition
,
for
that
is
the
fair
Helena
for
which
we
fight
,
and
yet
I
agree
with
my
Brother
Crawley
,
that
in
some
Cases
there
shall
be
a
transposition
of
Terms
,
and
the
parts
in
the
proposition
,
in
some
cases
(
if
)
is
a
note
of
a
subsequent
condition
,
and
for
this
the
judgement
of
the
case
in
Colthirsts
case
,
where
a
remainder
was
limited
si
ipse
inhabitare
vellet
,
and
to
be
a
subsequent
condition
:
and
so
I
will
not
denie
,
but
that
if
a
man
make
a
feofment
in
fee
,
upon
condition
that
if
the
feoffee
pay
20.
s.
then
he
shall
hold
to
him
and
his
heirs
,
it
is
no
question
but
the
fee
simple
passeth
;
and
it
is
a
subsequent
condition
to
reduce
that
;
but
secondly
,
this
doth
better
agree
with
the
intents
of
the
parties
,
and
for
the
first
,
the
fine
is
levied
to
the
use
of
the
Conusee
,
and
the
Conusee
is
now
in
by
the
Common
Law
;
but
defeasable
upon
condition
afterwards
.
Secondly
,
the
intents
of
the
parties
plainly
do
appear
,
that
he
shall
have
the
land
to
the
use
of
her
and
her
heirs
,
if
Robert
do
not
pay
10.
l.
and
if
he
doth
,
then
to
other
uses
,
now
if
no
former
use
had
been
expressed
by
which
this
will
result
,
those
last
words
will
,
and
I
say
no
mean
use
will
result
;
but
it
shall
be
to
the
use
of
the
Conusee
,
and
those
words
for
ever
,
though
they
adde
nothing
to
the
estate
of
Anne
,
yet
they
serve
to
shew
the
intentions
of
the
parties
,
that
if
he
do
not
pay
,
then
it
shall
be
to
the
use
of
Anne
and
her
heirs
,
and
if
he
paid
,
then
that
she
should
have
that
for
life
;
but
it
is
absolutely
against
the
intents
of
the
parties
,
that
she
shall
have
neither
,
and
for
that
of
necessitie
to
supplie
the
intents
of
the
parties
,
this
shall
be
a
subsequent
condition
;
like
to
the
case
where
a
man
levies
a
fine
to
the
intent
,
that
the
Conusee
suffer
a
recovery
against
him
,
now
of
necessitie
to
have
the
intents
of
the
parties
fulfilled
,
the
fine
shall
be
to
the
use
of
the
Conusee
for
this
time
,
though
none
is
expressed
,
for
otherwise
it
would
result
,
and
so
in
this
case
,
that
the
intentions
of
the
parties
may
be
performed
,
this
shall
be
a
subsequent
condition
.
The
residue
of
the
argument
of
Serjeant
Finch
.
NOw
for
the
second
point
admit
,
that
this
is
a
precedent
condition
,
whether
by
the
death
of
Robert
before
the
first
of
September
,
the
condition
is
become
impossible
to
be
performed
,
because
that
the
letter
of
the
condition
is
,
that
if
Robert
Foyn
pay
to
the
said
Anne
&c.
and
I
hold
others
are
inabled
in
Law
to
perform
that
,
and
that
Robert
his
heirs
or
Executors
may
pay
that
:
and
a
thing
which
is
implied
or
supplied
by
the
Law
is
aswell
,
as
if
it
had
been
expressed
,
as
between
Corbet
and
Cottow
39.
Eliz.
a
bond
to
appear
such
a
return
of
the
Term
at
Westminster
,
and
the
Term
is
adjourned
before
the
day
to
Hartford
,
and
ruled
that
he
ought
to
appear
where
the
Term
is
,
and
so
in
many
cases
where
the
words
are
short
and
curtailed
,
the
law
will
supplie
that
:
41.
Ed.
3.
17.
a
feofment
to
two
to
infeof
another
,
if
one
die
,
the
survivor
may
make
that
,
and
yet
it
was
not
said
that
the
Survivor
may
,
and
so
is
Brook
joyntenants
62.
and
conditions
290.
words
in
the
Copulative
may
be
taken
in
the
disjunctive
,
and
there
cannot
be
a
more
apt
case
,
then
Littleton
fo.
76.
where
though
there
are
the
words
of
the
feoffor
,
and
the
feoffee
only
;
yet
the
heirs
of
the
feoffor
,
or
the
feoffee
of
the
feofee
,
may
perform
that
,
for
the
words
being
so
,
the
Law
supplies
them
;
and
if
there
is
any
difference
between
our
case
and
Littletons
,
then
our
case
is
the
strongest
,
for
Littletons
case
are
to
defeat
an
estate
which
shall
be
taken
strictly
,
and
if
his
case
be
taken
so
favourably
,
then
much
more
in
our
case
:
and
we
see
the
words
taken
strictly
,
when
they
are
to
defeat
an
estate
,
as
that
3.
of
Eliz.
a
lease
was
made
for
years
upon
condition
,
that
if
lessee
do
not
pay
,
then
that
the
lessor
or
his
Assignes
may
enter
,
and
afterwards
the
lessor
granted
the
Reversion
,
and
now
adjudged
that
the
grantee
may
not
enter
,
because
it
failes
of
the
word
heirs
in
the
reservation
of
the
condition
,
and
for
that
reason
the
lessor
had
but
an
estate
for
life
in
the
condition
,
which
he
may
not
transfer
to
another
,
because
he
had
not
fee
in
the
condition
;
and
there
was
a
case
adjudged
Pasch.
41.
Eliz.
where
a
man
was
bound
to
infeof
the
obligee
and
his
heirs
,
and
in
this
case
the
obligee
died
,
and
the
Executors
sued
the
obligation
,
and
adjudged
that
they
shall
be
barred
,
because
he
made
an
estate
to
the
heirs
of
the
obligee
,
and
so
is
the
principal
case
of
the
10.
H.
7.
and
Dyer
14.
where
a
man
covenanted
,
that
he
will
build
a
house
,
his
Executors
may
make
that
,
and
so
here
it
may
be
performed
by
his
heirs
,
and
therefore
it
is
not
discharged
:
and
now
for
the
third
point
,
admit
,
that
it
is
become
impossible
whether
the
use
will
arise
:
and
I
hold
that
it
will
arise
,
and
in
that
I
take
this
difference
between
a
fine
or
feofment
,
and
an
obligation
upon
condition
to
make
such
Acts
,
for
the
condition
of
the
obligation
is
taken
onely
for
the
benefit
of
the
obligors
,
and
therefore
if
that
do
become
impossible
by
the
Act
of
the
law
the
obligation
is
saved
,
but
here
the
limitation
of
the
uses
,
are
the
words
of
the
Conusor
,
and
therefore
shall
be
taken
more
strongly
against
him
;
in
which
I
put
this
case
,
if
a
man
had
two
sons
,
and
he
do
Covenant
in
consideration
of
natural
affection
,
that
if
the
eldest
return
from
Rome
by
such
a
day
,
that
then
he
will
stand
seised
to
his
use
,
and
if
he
do
not
return
,
then
he
will
stand
seised
to
the
use
of
the
youngest
son
;
now
if
in
this
case
the
eldest
die
before
the
day
,
so
that
it
is
become
impossible
that
he
should
return
,
yet
that
will
not
hinder
the
raising
of
the
use
to
the
youngest
son
;
and
so
in
Dyer
331.
the
limitter
may
not
have
any
estate
against
his
own
limitation
of
his
uses
,
for
this
is
his
own
fact
,
and
so
in
our
case
it
is
his
own
default
to
make
such
a
limitation
:
and
now
for
the
fourth
point
,
whether
any
notice
is
requisite
to
the
heirs
,
and
first
I
agree
that
in
many
cases
,
a
man
shall
not
lose
a
thing
except
he
had
notice
;
but
there
are
two
exceptions
from
this
rule
,
upon
which
I
will
put
some
cases
,
and
then
I
will
applie
them
,
and
first
the
ordinary
may
present
by
laps
,
and
he
needs
not
to
give
notice
,
for
it
s
supposed
in
law
,
that
the
ordinary
will
in
6.
moneths
see
whether
the
cure
is
served
or
no
;
nay
,
if
the
patron
was
a
Purchasor
,
and
a
stranger
present
,
he
had
lost
his
inheritance
,
and
yet
no
notice
ought
to
be
given
:
and
the
12.
H.
7.
if
the
Tenant
of
the
Lord
do
die
without
heir
,
and
a
stranger
do
enter
,
and
Abates
and
dies
seised
,
now
the
Lord
had
lost
the
benefit
of
the
escheat
,
and
yet
perchance
he
had
no
notice
of
that
,
and
so
was
the
opinion
of
Dyer
and
Welch
4.
Eliz.
that
if
two
Copartners
make
partition
,
in
this
case
,
the
Lord
ought
to
take
notice
at
his
peril
;
and
secondly
,
when
one
is
bound
to
take
notice
at
his
peril
as
in
Westby's
case
;
Trin.
22.
Jac.
C.
P.
that
the
other
will
with
draw
his
suit
which
he
had
in
the
Exchequer
;
that
then
he
will
give
to
him
so
much
when
he
came
into
Somersetshire
,
and
adjudged
that
the
partie
ought
to
give
notice
when
he
came
in
to
Somersetshire
;
but
in
our
case
every
thing
is
certain
at
the
time
of
the
making
of
the
deed
38.
Assises
7.
if
a
feofment
is
made
upon
condition
to
regrant
to
the
feoffor
and
his
heirs
,
if
in
this
case
the
feoffor
do
die
,
he
is
not
bound
to
regrant
to
his
heirs
without
a
request
;
another
reason
is
,
who
shall
give
notice
to
the
Lady
that
Foyn
is
dead
,
she
is
bound
to
take
notice
of
that
at
her
peril
,
and
also
if
the
Lady
had
died
,
who
shall
give
notice
to
the
Executors
,
that
they
may
attend
to
receive
the
money
,
for
if
they
do
not
attend
,
this
is
a
peremptory
refusal
;
and
for
that
reason
it
is
equitie
,
that
if
no
notice
is
to
be
given
of
one
side
,
then
there
shall
be
none
given
of
the
other
side
;
and
so
I
conceive
,
that
there
doth
not
need
any
notice
;
and
now
for
the
last
point
&c.
of
the
estate
for
life
,
whether
if
no
fee
do
arise
,
whether
she
had
lost
her
estate
for
life
,
and
first
this
is
no
Forfeiture
,
for
here
he
in
reversion
is
partie
;
but
it
is
said
,
that
this
is
extinct
,
but
let
us
examine
,
if
this
had
been
before
the
Statute
of
uses
,
no
more
use
will
result
then
was
before
,
and
for
the
estate
for
life
that
is
saved
,
and
it
was
resolved
Trin.
5.
Iac.
that
if
Tenant
for
life
grant
his
estate
by
fine
to
another
,
and
yet
he
doth
express
no
use
,
that
it
shall
be
to
the
use
of
the
partie
,
because
that
the
Law
intends
that
by
this
it
is
disburthened
of
the
danger
of
waste
:
but
in
our
case
,
the
estate
of
the
Conusee
is
saved
by
the
Statute
of
the
27.
H.
8.
for
this
saves
all
rights
,
titles
,
possessions
&c.
of
those
who
shall
be
seised
to
any
use
,
and
so
was
it
adjudged
in
Cheny
and
Oxenbridge
his
case
,
that
the
Term
for
years
was
saved
,
but
the
doubt
in
that
case
,
was
not
whether
a
Term
was
saved
which
he
had
to
his
own
use
,
but
that
which
he
had
to
the
use
of
his
wife
,
and
adjudged
that
this
was
saved
;
and
32.
Eliz.
it
was
ruled
in
the
Chancery
,
between
Tates
and
Willers
,
that
if
he
in
reversion
do
infeof
lessee
for
years
and
two
others
,
there
it
was
ruled
that
the
Term
was
saved
,
and
so
it
was
adjudged
Trin.
17.
Iac.
Rot.
246.
Francis
Priors
case
,
that
where
the
lessee
for
years
is
,
and
he
in
reversion
levies
a
fine
to
the
lessee
,
to
the
intent
that
he
suffer
a
recovery
,
here
the
Term
is
saved
,
and
yet
for
the
time
the
lessee
was
seised
to
his
own
use
:
but
because
that
the
fine
was
Preparatory
to
inable
him
to
suffer
the
recovery
;
now
in
this
case
after
the
recovery
suffered
,
that
will
look
back
to
the
first
agreement
of
the
parties
,
and
so
the
Statute
hath
saved
the
Term
:
and
for
that
reason
,
if
the
Statute
do
save
a
Term
which
is
of
small
account
,
much
more
a
freehold
,
and
so
he
prayed
judgement
for
the
defendant
,
see
more
after
.
The
case
of
Hilliard
and
of
Sanders
entred
Mich.
20.
Jac.
Rot.
1791.
HIlliard
brought
a
replevin
against
Michael
Sanders
for
the
taking
of
Beasts
in
a
place
called
Kingsbury
,
and
the
Defendant
avowed
,
and
shewed
,
that
Sir
Ambrose
Cave
was
seised
in
his
demeasne
as
of
fee
of
Kingsbury
,
where
the
place
in
which
&c.
is
parcel
:
and
14.
Feb.
16.
Eliz.
granted
a
rent
charge
of
42.
l.
8.
s.
4.
d.
to
one
Thomas
Bracebridg
,
and
to
the
heirs
of
Thomas
upon
Alice
to
be
ingendred
,
the
remainder
to
the
right
heirs
of
Thomas
,
and
Thomas
had
issue
John
,
and
Thomas
died
,
and
then
Iohn
his
son
died
,
having
issue
,
Anne
the
wife
of
the
Avowant
,
in
whose
right
he
avowed
for
the
rent
of
half
a
year
&c.
21.
l.
4.
s.
2.
d.
due
at
W.
in
Bar
of
which
avowrie
the
Plantiff
pleaded
that
true
it
is
,
that
Sir
Ambrose
Cave
was
seised
of
the
Mannor
&c.
and
he
made
the
grant
according
,
and
that
Sir
Ambrose
Cave
died
seised
,
and
that
the
said
Mannor
descended
to
Mary
his
daughter
,
as
daughter
and
heir
to
him
,
who
was
married
to
one
Mr.
Henry
Knowles
,
and
shewed
that
he
was
seised
,
and
then
shewed
that
the
12.
Iac.
it
was
agreed
between
the
said
Sir
Thomas
Bracebridg
and
Alice
his
wife
,
Mich.
22.
Jac.
C.
P.
and
the
said
Henry
Knowles
and
mary
his
wife
,
that
for
the
extinguishment
and
final
determination
of
the
said
rent
,
that
Thomas
and
Alice
should
levie
a
fine
to
Henry
and
Mary
of
the
said
lands
and
Tenements
aforesaid
,
by
the
name
of
the
Maniior
of
Kingsbury
,
300.
Acres
of
land
,
and
of
divers
other
things
,
but
no
mention
was
made
of
the
rent
,
and
this
fine
was
upon
Conusance
of
right
,
as
that
which
they
had
&c.
and
also
they
released
all
the
right
which
they
had
in
the
land
to
Henry
and
to
Mary
,
and
then
shewed
that
after
the
death
of
Mary
,
this
land
descended
to
two
daughters
,
one
being
now
married
to
the
Lord
Willoughby
,
the
other
to
the
Lord
Paget
,
under
whom
the
Plantiff
claimed
,
to
which
the
avowant
said
by
protestation
,
that
there
was
no
such
agreement
,
and
for
plea
that
the
rent
was
not
comprised
,
and
upon
that
it
was
demurred
in
Law
:
and
now
Serjeant
Attoe
this
Term
argued
for
the
Plantiff
,
and
the
substance
of
his
argument
was
in
this
manner
:
Attoe
said
the
case
was
,
Tenant
in
tail
of
a
rent
charge
,
agreed
with
the
Tenant
of
the
land
to
extinguish
that
,
and
that
he
would
levie
a
fine
of
the
land
to
the
land
Tenant
,
which
is
upon
Conusance
of
right
,
and
upon
release
,
which
fine
is
levied
accordingly
:
whether
this
cuts
off
the
tail
of
the
rent
,
and
I
hold
that
it
will
;
and
I
do
not
finde
any
opinion
in
all
the
Law
against
this
,
but
only
the
opinion
of
Thornton
in
Smith
,
and
in
Stapletons
case
in
Plowden
:
which
I
do
not
esteem
to
be
a
binding
authoritie
:
and
the
case
is
,
Tenant
in
tail
of
a
rent
disseised
the
land
Tenant
,
and
levied
a
fine
with
proclamation
of
the
same
fine
to
a
stranger
,
now
said
Thornton
,
this
shall
not
bar
the
issue
in
tail
of
the
rent
,
because
the
fine
was
only
levied
of
the
land
,
and
he
cited
this
to
prove
another
case
,
which
is
Tenant
in
tail
of
land
accepted
a
fine
of
a
stranger
,
as
that
which
he
had
&c.
and
he
rendered
to
him
a
rent
,
and
he
said
that
his
issue
may
avoid
that
rent
,
and
this
case
I
grant
,
because
the
rent
was
not
intailed
,
but
for
the
other
case
I
openly
denie
that
,
and
there
is
much
difference
between
those
two
cases
,
for
a
fine
levied
of
the
land
may
include
the
rent
as
well
as
the
land
,
but
it
is
impossible
that
a
fine
of
rent
should
include
the
land
,
and
our
case
here
is
pleaded
to
be
of
the
land
,
and
of
the
rent
,
and
a
fine
of
the
land
may
carry
the
rent
inclusively
,
because
it
is
a
fine
of
a
thing
intailed
;
yea
,
it
is
not
a
new
thing
,
that
rent
should
be
carried
inclusively
,
by
way
of
extinguishment
in
the
case
of
a
feofment
,
and
then
Ć”
fortiori
in
a
fine
which
is
a
feofment
upon
Record
,
and
especially
when
it
is
levied
on
purpose
to
extinguish
the
rent
,
and
the
Statute
of
fines
is
more
strong
,
for
that
is
of
any
lands
,
Tenements
,
and
hereditaments
any
wayes
intailed
to
any
person
&c.
but
this
rent
is
an
hereditament
intailed
to
the
person
who
levied
the
fine
,
and
this
which
is
carried
inclusively
is
within
the
Statute
;
nay
,
if
a
man
had
nothing
in
the
land
,
yet
if
it
was
intailed
to
him
who
levied
the
fine
,
this
shall
bar
the
estate
tail
for
ever
,
as
if
Tenant
in
tail
made
a
feofment
to
G.
S.
and
after
that
he
did
levie
a
fine
to
a
stranger
of
the
same
land
,
that
in
this
case
the
issue
shall
never
avoid
this
,
and
yet
neither
the
Conusor
,
nor
the
Conusee
had
any
thing
in
the
land
,
and
see
for
Archers
case
,
Henry
Mark-williams
was
heir
apparant
to
his
Mother
who
was
Tenant
in
tail
,
and
he
levied
a
fine
in
the
life
of
his
Mother
,
and
died
without
issue
,
and
then
his
Mother
died
,
and
it
was
ruled
,
that
this
did
not
bar
the
sister
heirs
,
because
she
may
have
that
,
and
never
make
mention
of
her
brother
,
but
in
our
case
,
if
the
rent
had
been
granted
in
fee
,
it
had
been
no
question
,
but
that
a
meer
release
will
extinguish
that
,
and
I
think
a
fine
with
proclamation
is
as
forcible
to
extinguish
a
rent
which
is
intailed
as
a
release
is
,
for
a
rent
in
fee
:
another
reason
is
this
,
is
a
fine
directly
of
the
rent
,
though
this
is
by
the
name
of
land
,
and
also
this
is
upon
Conusance
of
right
&c.
and
also
in
that
he
released
,
and
remised
to
the
Conusees
all
his
right
in
the
said
land
,
but
a
case
out
of
Bendloes
Reports
may
be
objected
,
Tenant
in
tail
accepted
a
fine
of
the
land
,
and
rendred
that
for
life
,
ruled
the
issue
is
not
barred
:
but
first
I
do
not
allow
this
case
to
be
good
law
,
but
if
it
be
good
law
,
the
reason
is
,
because
he
accepted
only
a
fine
of
the
land
,
and
for
that
it
only
extends
to
that
and
not
to
the
rent
,
as
if
a
man
is
seised
of
3.
acres
,
and
he
accepts
a
rent
of
two
of
them
,
which
render
of
them
all
,
this
is
void
for
one
acre
;
and
lastly
,
by
a
feofment
of
land
by
warranty
a
rent
is
discharged
,
21.
H.
7.
and
here
I
conceive
,
that
the
replication
to
the
bar
of
the
avowrie
is
not
good
,
for
his
plea
is
,
that
the
rent
in
this
case
is
not
comprised
,
and
that
is
a
point
in
law
,
whether
it
is
comprised
or
no
;
for
if
we
do
take
issue
upon
that
,
we
shall
draw
the
trial
here
from
the
Court
to
the
jury
in
the
Countie
,
which
is
not
good
,
and
so
upon
all
the
matter
I
pray
judgement
for
the
Plantiff
in
the
replication
.
The
argument
of
Davenport
Serjeant
.
DAvenport
Serjeant
to
the
contrary
,
and
he
said
,
the
case
is
as
hath
been
recited
,
and
the
question
is
,
whether
the
rent
so
granted
in
tail
is
by
this
agreement
of
the
parties
,
and
by
the
fine
of
the
land
,
whether
it
hath
extinguished
the
rent
:
and
I
hold
this
conveyance
which
only
passeth
the
rent
by
implication
,
is
no
bar
to
the
issue
in
tail
within
the
Statute
of
fines
,
for
where
it
is
said
,
that
a
fine
was
levied
of
the
rent
by
the
name
of
the
land
,
and
made
no
mention
of
the
rent
,
this
will
not
carry
the
rent
,
and
yet
I
agree
this
fine
to
be
a
feofment
upon
record
,
and
to
be
a
bar
against
the
parties
who
levied
that
,
but
not
against
the
issue
;
if
this
had
been
before
the
Statute
of
fines
,
it
is
no
question
,
this
had
been
no
bar
against
the
issue
,
for
it
is
the
express
book
13.
Ed.
3.
avowrie
12.
and
26.
H.
7.
4.
Tenant
in
tail
of
a
rent
made
a
feofment
in
fee
of
the
rent
with
warrantie
,
and
there
it
is
said
,
that
the
warrantie
did
not
extend
to
issue
quoad
the
rent
,
but
now
our
case
is
upon
the
Statute
of
32.
H.
8.
which
saith
that
a
fine
shall
be
a
bar
of
my
lands
,
Tenements
,
and
hereditaments
any
way
intailed
,
but
yet
I
conceive
that
this
requires
that
the
fine
be
levied
expresly
of
that
,
and
not
by
way
of
conveyance
,
and
so
the
case
of
Smith
and
Stapleton
by
Thornton
,
who
said
that
this
was
granted
to
him
to
be
law
,
which
must
needs
be
meant
it
was
granted
by
the
Court
,
or
by
the
Councel
of
the
other
side
,
and
the
reason
of
that
is
,
because
it
ought
to
be
levied
of
that
expresly
,
and
there
it
is
said
,
if
Tenant
intail
of
an
advowson
,
do
levie
a
fine
of
the
nomination
,
that
shall
not
bar
the
issue
,
and
yet
in
effect
that
is
the
advowson
,
and
because
it
is
not
levied
of
that
expresly
,
it
is
not
good
,
and
then
for
the
precedent
agreement
that
is
indeed
,
that
the
fine
shall
be
for
the
extinguishment
of
the
rent
,
and
what
then
will
that
prove
,
that
the
fine
was
levied
of
the
rent
,
and
here
the
writ
of
Covenant
was
not
brought
of
the
rent
,
and
yet
I
agree
that
agreements
which
do
lead
uses
of
fines
,
will
qualifie
them
against
the
very
nature
of
the
fine
,
as
the
case
of
the
Lord
Cromwel
and
Puttenham
in
Dyer
:
but
I
do
not
hold
the
agreement
will
extend
over
the
nature
of
the
fine
,
and
therefore
this
being
a
rent
in
gross
,
it
may
pass
by
the
name
of
land
,
and
the
averment
here
is
contrary
to
that
which
doth
appear
upon
the
Record
,
and
then
not
comprised
is
a
good
plea
;
but
this
shall
not
be
tried
by
the
Countrie
,
but
by
the
Record
;
as
12.
H.
7.
16.
for
it
is
only
to
inform
the
Court
,
that
the
partie
had
mistaken
the
Law
,
and
shall
be
tried
by
the
Court
,
and
not
by
a
jury
in
the
Countrie
,
as
Attoe
said
,
and
so
upon
the
whole
matter
of
the
case
I
conclude
my
argument
,
and
pray
judgement
for
the
Avowant
:
see
after
Hill.
22.
Iac.
The
residue
of
Michaelmas
Term
in
the
two
and
twentieth
year
of
King
James
.
Ralph
Holt
and
Rand
against
Robert
Holt.
RAlph
Holt
and
Rand
were
joyntly
,
and
severally
bound
in
an
Obligation
to
Robert
Holt
,
and
he
took
out
Proces
against
them
by
several
Praecipes
,
and
he
had
two
several
judgements
,
and
took
out
two
several
Executions
against
them
of
one
Test
,
(
S.
)
a
fieri
facias
against
Rand
,
and
a
Capias
ad
satisfaciendum
against
Holt
,
and
the
question
was
,
whether
the
writs
were
well
awarded
,
and
whether
when
one
is
Executed
the
other
is
discharged
,
and
Serjeant
Crew
urged
15.
H.
7.
15.
if
after
a
Capias
executed
,
Gilbert
Dabenhams
case
.
he
may
not
have
a
scire
facias
against
the
same
partie
,
and
he
cited
a
case
to
be
adjudged
in
the
13.
year
of
King
James
,
between
Crawley
and
one
Lidcat
,
where
two
joynt
obligors
,
and
the
obligee
did
sue
them
,
and
had
two
several
judgements
against
them
,
and
he
took
an
elegit
against
one
,
and
a
Capias
against
the
other
,
and
he
who
was
taken
upon
the
Capias
brought
his
audita
querela
by
which
he
was
discharged
of
the
execution
,
for
in
so
much
that
he
had
taken
an
elegit
against
one
,
he
is
concluded
to
take
any
Process
against
the
other
as
well
as
against
him
,
who
had
the
elegit
sued
against
him
,
and
so
is
Cook
1.
31.
and
yet
some
books
are
,
if
the
fieri
facias
is
served
for
part
,
he
may
have
a
Capias
for
the
residue
,
and
so
is
the
18.
Ed.
4.
and
ā0
Ed
4.
3.
but
here
the
fieri
facias
was
executed
for
all
,
and
for
that
no
Capias
ad
satisfaciendum
shall
issue
in
this
case
:
but
Waller
one
of
the
Prothonotaries
cāāed
a
case
in
this
manner
,
that
if
a
noble
man
and
another
be
bound
in
an
obligation
as
before
,
and
the
obligee
had
such
a
judgement
,
as
here
in
this
case
,
he
may
have
an
elegit
against
the
noble
man
,
because
that
the
first
Process
against
him
is
by
summons
and
distress
,
and
he
may
have
a
Capias
against
the
other
,
or
a
fieri
facias
;
but
Hutton
denied
this
case
,
and
said
,
that
he
shall
have
the
same
execution
against
both
;
for
as
this
ought
to
be
one
satisfaction
quo
ad
ec
.
sati
factionem
,
so
this
ought
to
be
one
for
the
manner
also
,
and
though
in
this
case
,
that
the
Capias
was
not
well
awarded
;
and
Harvey
Iustice
agreed
to
that
.
Methol
against
Peck
.
MEthol
brought
an
action
upon
the
case
against
Peck
upon
an
assumption
,
and
he
declared
that
in
consideratāon
,
that
the
Plantiff
would
pay
unto
one
Plaford
52.
l.
to
the
use
of
Peck
such
a
day
&c.
Peck
promised
to
redeliver
his
bond
in
which
he
was
bound
in
the
said
summe
,
when
he
should
be
requested
to
that
;
and
he
said
that
he
paid
the
52.
l.
to
the
use
of
Peck
,
and
that
the
said
Defendant
had
not
delivered
the
said
obligation
licet
saepius
postea
requisitus
(
fuisset
,
)
and
upon
the
issue
of
non
assumpsit
,
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
,
because
he
had
not
shewed
the
day
,
and
the
place
of
the
request
,
but
the
Court
&c.
Hobert
,
Hutton
,
and
Harvey
were
of
opinion
,
that
judgement
shall
be
given
for
the
Plantiff
;
and
yet
they
agreed
he
might
have
demurred
upon
the
declaration
,
and
that
was
good
,
and
also
they
held
,
if
that
had
been
generally
saepius
requisitus
&c.
it
had
not
been
good
;
because
the
request
is
parcel
of
the
promise
,
and
therefore
ought
to
be
precisely
set
down
to
be
after
the
promise
,
and
the
payment
of
the
52.
l.
but
here
they
said
,
for
the
time
it
is
very
well
expressed
by
this
word
postea
,
and
there
is
not
any
defect
but
only
in
the
place
,
for
postea
implies
,
that
this
was
after
the
promise
,
and
payment
of
the
money
;
and
Hobert
said
,
that
all
the
points
of
the
declaration
quoad
the
substance
are
good
,
only
it
fails
in
the
place
where
the
request
was
made
,
and
this
varied
by
the
issue
,
and
all
the
rest
is
sufficiently
alledged
to
ascertain
the
Court
,
that
the
promise
is
broken
;
and
Hutton
said
,
that
in
his
opinion
such
a
request
ought
to
be
given
in
evidence
;
but
Harvey
said
,
that
though
the
request
is
parcel
of
the
promise
,
and
that
ought
to
be
sufficiently
alledged
,
and
so
it
was
here
,
so
that
the
Court
may
give
judgement
of
that
,
and
he
said
,
that
postea
requisitus
had
relation
to
the
time
of
the
promise
,
and
the
payment
of
the
money
:
and
judgement
was
given
accordingly
for
the
Plantiff
,
in
the
said
case
.
Sir
John
Davis
priviledge
denied
.
NOte
that
this
day
being
the
26.
of
November
,
Davis
who
was
the
Kings
first
and
chief
Serjeant
came
to
the
Bar
,
and
he
offered
to
move
the
Court
,
and
they
refused
to
heare
him
,
because
his
course
was
gone
in
his
absence
,
and
he
claimed
his
priviledge
,
that
the
Kings
Serjeant
might
move
at
any
time
:
but
Iustice
Hutton
answered
that
20.
years
agoe
,
when
he
was
made
Serjeant
,
there
was
no
such
custome
,
or
priviledge
,
except
they
moved
for
the
King
;
and
so
said
Iustice
Winch
also
,
and
he
said
,
that
though
of
late
time
such
favour
had
been
given
to
them
;
yet
that
was
ex
gratia
Curiae
,
and
this
was
an
evil
custome
,
especially
now
when
the
King
had
five
Serjeants
,
and
he
used
to
have
but
two
,
and
so
they
told
him
they
would
not
allow
of
any
such
priviledge
,
or
prerogative
,
neither
would
they
hear
him
upon
any
such
account
,
and
they
said
perchance
of
favour
they
might
hear
him
.
Austin
against
Beadle
.
AUstin
brought
an
ejectione
firme
of
lands
against
Beadle
,
and
declared
of
a
lease
made
at
Haylesham
,
and
the
Defendant
pleaded
,
that
Haylesham
praedict.
ubi
tenementa
jacent
,
is
within
the
five
Ports
,
where
the
writ
of
the
King
rans
not
,
and
so
he
pleaded
to
the
jurisdiction
of
the
Court
,
and
the
other
replied
,
that
the
Town
of
Haylesham
was
within
the
Countie
of
Sussex
absque
hoc
,
that
it
was
within
the
five
Ports
,
and
upon
that
the
Defendant
demurred
,
and
it
was
argued
by
Finch
,
that
the
traverse
was
not
good
;
and
he
said
,
that
he
ought
to
have
traversed
,
absque
hoc
quod
villa
de
Haylesham
ubi
tenementa
jacent
is
within
the
five
Ports
,
for
the
veritie
was
that
it
was
part
in
the
five
Ports
,
and
part
in
the
Countie
of
Suffex
,
and
the
land
lies
in
that
part
which
is
in
the
five
Ports
;
and
for
that
he
may
not
take
issue
upon
that
traverse
,
for
then
it
will
be
found
against
him
,
and
so
he
said
it
was
held
50.
Ed.
3.
5.
that
the
Plantiff
in
trespass
there
in
his
declaration
and
replication
he
distinguished
the
part
,
and
so
the
Plantiff
ought
here
,
but
it
was
answered
by
the
Councel
of
the
other
side
,
and
resolved
also
by
the
Court
,
that
the
traverse
is
good
,
and
that
the
Bar
is
naught
,
and
if
the
Plantiff
may
not
traverse
in
other
manner
,
and
that
the
Defendant
in
his
Bar
,
he
ought
to
have
made
his
distinction
,
and
every
plea
which
goes
to
the
jurisdiction
of
the
Court
,
shall
be
taken
most
strong
against
him
who
pleads
that
,
and
the
traverse
here
ought
to
be
to
the
Town
,
and
not
to
ubi
which
was
idle
,
for
the
law
said
as
much
,
and
we
do
not
imagine
any
fractions
of
Towns
,
and
so
I
conclude
the
Plantiff
ought
to
have
judgement
.
Ashley
against
Collins
.
IN
a
case
between
Ashley
and
Collins
,
it
was
agreed
clearly
by
the
Court
,
that
if
an
infant
made
an
obligation
,
and
after
he
being
sued
upon
that
,
an
Attorney
without
warrant
suffers
a
judgement
by
non
sum
informatus
,
that
this
was
no
cause
to
grant
an
audita
querela
,
and
upon
the
opinion
of
the
Court
,
the
audita
querela
was
quasht
,
for
it
was
said
,
he
shall
have
a
writ
of
error
if
he
were
within
age
,
and
if
he
was
not
then
he
shall
have
his
writ
of
disceit
against
the
Attorney
.
Anthony
Gibson
against
Edward
Ferrers
.
ANthony
Gibson
brought
an
Action
of
debt
of
1000.
l.
upon
an
obligation
made
the
11th
.
of
December
21.
Iac.
and
the
Defendant
came
and
demanded
Oyer
of
the
condition
,
and
the
condition
recited
that
,
whereas
there
were
differences
between
the
said
parties
,
concerning
some
accompts
,
now
they
had
for
the
final
determination
,
of
them
they
had
put
themselves
upon
the
award
,
and
arbitrement
of
Gerrard
de
Malines
to
be
made
before
the
last
day
of
December
next
,
if
therefore
the
said
Edward
Ferrers
his
Executors
&c.
shall
and
do
for
his
and
their
parts
perform
,
stand
to
and
keep
the
said
Arbitrement
of
the
said
Gerrard
de
malines
,
that
then
&c.
quibus
lectis
et
auditis
idem
Edwardus
dicit
quod
praedictus
Antonius
Actionem
suam
versus
cum
habere
non
debet
;
because
he
said
,
that
the
said
Gerrard
de
malines
did
not
make
any
Arbitrement
:
and
the
other
replied
and
shewed
an
Arbitrement
,
which
he
did
award
to
Gibson
interested
to
be
paid
for
money
among
divers
other
things
,
and
upon
that
the
Defendant
did
demur
in
law
,
and
it
was
argued
by
Bridgman
Serjeant
for
the
Defendant
;
that
Arbitrement
is
void
,
for
it
is
for
the
payment
of
interest
;
and
I
hold
that
Arbitrators
who
are
judges
indifferently
chosen
,
may
not
award
interest
to
be
paid
,
for
that
is
an
unlawful
thing
,
for
all
the
Statutes
which
have
been
made
concerning
usury
,
have
branded
that
to
be
unlawful
,
and
those
differences
which
are
submitted
,
ought
to
be
intended
to
be
lawful
differences
,
and
he
cited
a
case
in
the
Kings
Bench
,
where
an
action
upon
the
case
was
brought
,
upon
a
promise
made
upon
consideration
,
that
if
the
Defendant
will
forbear
the
principal
together
with
the
interest
,
that
he
will
pay
that
at
a
certain
day
;
and
it
was
adjudged
,
that
the
action
lies
,
because
there
was
no
certain
interest
set
down
;
for
he
said
,
if
the
certaintie
of
the
interest
had
been
set
down
the
consideration
had
not
been
good
;
and
then
if
this
thing
be
so
unlawful
that
a
man
may
not
binde
himself
by
his
promise
,
then
Ć”
fortiori
Arbitrators
may
not
award
that
;
and
for
another
reason
it
is
void
,
because
that
interest
is
awarded
,
for
the
time
after
the
submission
was
made
,
and
so
I
pray
that
the
Plantiff
may
be
barred
.
Hendon
contrary
,
I
hold
the
award
to
be
good
;
for
though
that
shall
be
void
for
the
interest
,
yet
it
shall
be
good
for
the
residue
,
and
then
the
non
payment
is
a
breach
of
the
condition
,
for
where
an
award
is
made
for
a
thing
against
the
law
,
and
for
another
which
doth
stand
with
the
law
,
this
is
good
for
one
,
and
void
for
the
others
,
so
here
.
Secondly
,
this
award
is
not
for
interest
,
but
rather
for
the
damage
for
the
forbearance
of
the
money
;
but
admit
that
this
were
for
direct
usury
,
yet
that
is
not
void
;
my
brother
Bridgman
had
cited
a
case
where
an
assumpsit
for
usury
was
void
,
I
know
well
what
the
judgement
was
;
for
I
was
of
Councel
in
the
case
,
and
much
was
said
in
that
against
usury
,
and
Glanvil
was
cited
Lib.
9.
cap.
14.
which
said
,
that
an
usurer
did
forfeit
his
goods
;
but
that
is
to
be
intended
of
such
,
who
live
by
the
common
oppression
of
the
people
;
and
there
was
not
any
precedent
found
where
a
contract
for
usury
was
void
:
Noy
,
the
26.
Ed.
3.
24.
debt
is
brought
for
money
given
for
usury
,
and
admitted
,
and
the
Statute
of
the
13.
Eliz.
and
37.
H.
8.
which
were
made
against
usury
,
shall
be
frivolous
,
if
such
contract
shall
be
meerly
void
;
for
they
made
only
such
contracts
to
be
void
,
as
were
made
for
above
10.
in
the
100.
and
so
I
pray
judgement
for
the
Plantiff
.
An
action
upon
the
case
was
brought
for
calling
one
thief
,
and
the
other
did
justifie
the
words
,
and
said
that
he
was
possessed
of
a
Heifer
which
was
privately
taken
from
him
;
and
that
upon
search
he
found
that
in
the
possession
of
the
Plantiff
with
his
ears
cut
off
,
and
marked
with
the
Mark
of
the
Plantiff
,
and
it
was
ruled
,
that
this
was
not
a
good
justification
,
for
the
matter
is
not
sufficient
;
but
he
ought
to
have
expresly
averred
that
the
Heifer
was
stole
from
him
,
and
accordingly
it
was
adjudged
.
Hill.
22.
Jac.
C.
P.
Hillary
Term
in
the
two
and
twentieth
year
of
King
James
in
the
Common
Pleas.
THe
residue
of
the
case
between
Cooper
and
Edgar
,
and
now
this
Term
Serjeant
Crook
argued
the
case
for
the
Plantiff
,
and
after
a
recital
of
the
case
,
he
said
that
the
general
question
is
,
whether
the
Lady
Cesar
had
any
estate
by
this
fine
,
or
whether
the
old
estate
for
life
remains
;
for
if
she
had
the
one
or
the
other
,
then
it
shall
be
against
the
Plantiff
,
and
he
said
the
points
which
I
will
insist
upon
are
four
.
First
,
whether
these
words
do
make
a
precedent
,
or
a
subsequent
condition
;
for
if
the
uses
do
not
arise
till
there
be
a
failing
of
the
payment
,
then
it
is
on
my
side
,
but
if
the
uses
do
arise
before
,
then
indeed
it
is
against
me
,
and
I
hold
that
no
use
will
arise
till
there
is
a
default
in
payment
;
in
which
I
will
observe
,
that
the
words
are
all
in
one
period
,
and
one
sentence
,
and
till
the
first
of
September
the
use
wil
remain
in
Robert
Foyne
;
for
here
the
same
is
voluntarie
,
and
it
is
without
any
consideration
,
and
then
what
doth
the
Law
say
till
the
condition
was
performed
,
the
use
was
in
him
and
his
heirs
;
the
grand
doubt
is
,
whether
(
si
)
here
made
a
precedent
or
a
subsequent
condition
,
and
I
hold
that
(
si
)
is
alwayes
a
note
of
a
precedent
condition
,
if
it
may
stand
with
the
law
,
and
with
the
intentions
of
the
parties
,
but
if
it
doth
cross
either
of
those
,
then
that
is
a
subsequent
condition
,
and
yet
I
agree
if
(
si
)
is
annexed
to
an
estate
which
passeth
by
liverie
,
then
this
is
a
subsequent
condition
,
and
the
same
if
it
be
annexed
to
a
grant
which
is
executed
,
but
if
it
is
annexed
to
a
grant
which
is
executory
,
then
that
is
a
note
of
a
precedent
condition
,
and
so
is
Bracton
lib.
2.
fol.
190.
where
there
is
an
example
,
and
the
placing
that
first
or
last
is
not
material
;
and
in
the
case
of
an
use
which
is
executory
as
this
is
,
there
till
the
(
if
)
is
performed
nothing
will
pass
;
Plowden
172.
nay
,
the
case
of
14.
H.
8.
by
Brooks
and
by
Brundwel
,
if
I
covenant
that
another
shall
have
my
land
when
he
marries
my
daughter
,
no
use
will
arise
till
he
marrie
her
,
and
the
case
of
Colthirst
proves
my
difference
both
the
wayes
,
for
the
lease
was
made
to
Henry
and
his
wife
for
life
,
the
remainder
to
William
si
ipse
inhabitaret
&c.
and
if
he
die
in
the
life
of
Henry
or
his
wife
,
that
then
it
shall
remain
to
Peter
,
there
the
first
(
si
)
is
a
precedent
condition
,
for
if
he
do
not
die
in
the
life
of
them
,
then
Peter
shall
take
nothing
by
that
,
and
to
this
purpose
there
is
a
notable
case
13.
H.
6.
7.
where
a
man
made
two
his
executors
,
and
if
they
did
refuse
to
administer
,
then
he
made
two
others
within
3.
moneths
after
his
death
,
and
ruled
that
in
the
mean
time
they
are
not
executors
;
and
yet
(
si
)
was
placed
in
the
subsequent
place
there
,
and
there
was
a
case
H.
33.
Eliz.
between
Iennings
and
Cawman
,
where
a
man
made
his
will
,
and
devised
his
lands
to
his
son
for
3.
years
;
and
afterwards
appointed
,
that
if
his
wife
whom
he
made
Executrix
did
not
suffer
him
to
injoy
that
for
3.
years
,
that
the
son
shall
be
executor
,
and
the
question
was
,
whether
the
feme
was
executor
in
the
mean
time
,
and
there
Anderson
said
,
that
this
was
a
precedent
condition
;
but
the
other
Iustices
were
against
him
,
because
it
was
a
thing
of
continuance
,
and
there
they
agreed
the
case
of
Colthirst
,
that
the
word
si
ipse
inhabitaret
are
a
subsequent
condition
,
because
it
is
a
thing
of
continuance
which
may
be
infringed
and
broken
every
year
;
and
there
was
a
case
in
this
Court
29.
Eliz.
Rot.
854.
between
Iohnson
and
Castle
,
where
a
man
devised
his
term
to
his
youngest
son
,
if
he
lived
to
the
age
of
25.
years
,
and
did
pay
to
his
eldest
brother
so
much
money
,
and
agreed
no
estate
passeth
till
the
age
of
25.
years
,
and
payment
of
the
money
,
and
the
reason
was
,
that
a
devise
executory
may
depend
upon
a
precedent
condition
,
and
so
here
the
use
is
executory
,
and
nothing
passeth
till
there
is
a
failing
of
the
payment
:
like
to
the
case
of
the
15.
H.
7.
where
a
grant
is
made
upon
condition
,
that
if
the
Grantee
perform
such
a
thing
he
shall
have
such
an
Annuitie
,
there
nothing
doth
pass
presently
,
and
so
21.
Ed.
3.
29.
where
a
man
was
bound
in
an
obligation
,
not
to
infeoff
when
he
came
to
the
house
of
Ancestor
&c.
vide
the
case
,
and
here
in
our
case
,
because
the
condition
is
,
that
if
he
do
not
pay
that
,
then
she
shall
have
it
to
her
and
her
heirs
;
therefore
it
is
a
precedent
condition
,
and
if
the
use
had
been
limited
to
him
if
he
marrie
his
daughter
such
a
day
,
in
the
mean
time
no
use
will
arise
,
because
the
limitation
is
to
him
upon
a
thing
not
executed
,
and
this
being
all
in
one
sentence
,
no
use
will
arise
in
the
mean
time
;
the
second
point
is
,
whether
the
heir
of
Robert
Foyne
may
pay
that
,
or
is
bound
to
perform
,
that
then
the
law
dispenceth
with
that
;
for
it
is
limited
if
Robert
do
not
pay
,
and
so
it
is
personall
to
him
,
like
to
the
case
in
Plowden
,
when
a
thing
is
reserved
to
be
made
by
the
person
of
a
man
,
no
other
man
may
perform
that
,
neither
the
heir
nor
yet
the
Executor
:
as
in
Dyer
66.
8.
H.
4.
19.
21.
Ed.
3.
29.
where
the
heir
is
not
named
,
he
is
not
charged
,
and
10.
Ed.
4
12.
11.
Ed.
3.
16.
and
so
in
this
case
,
because
it
is
personally
limited
to
Robert
Foyn
:
and
ergo
if
he
do
die
,
there
the
law
will
not
compel
the
heir
,
and
that
is
the
reason
of
Littletons
case
,
fol.
76.
for
there
though
the
father
Morgaged
,
and
the
son
is
not
named
in
the
condition
;
yet
because
he
had
an
interest
in
the
condition
,
he
may
perform
that
,
and
so
the
case
fol.
77.
the
feoffee
of
the
feoffee
may
perform
that
,
though
it
is
annexed
to
the
first
feoffee
only
,
and
this
is
for
the
salvation
and
safety
of
his
estate
,
and
in
the
first
case
being
in
A.
Morgage
the
law
said
,
that
the
heir
shall
not
be
prejudiced
:
but
when
it
is
a
voluntarie
Act
,
and
in
point
of
discretion
to
the
father
,
there
the
son
may
not
perform
that
,
and
here
the
law
had
prevented
the
father
in
the
point
of
election
,
ergo
it
is
discharged
,
and
it
is
like
to
the
case
of
the
Countess
of
Arundel
,
where
a
thing
is
annexed
to
the
person
of
a
man
,
no
other
may
perform
it
,
and
so
here
the
heir
may
not
perform
that
,
for
it
is
discharged
by
the
death
of
Robert
.
Thirdly
,
admit
that
he
may
perform
that
,
then
the
question
is
,
whether
default
of
notice
may
not
excuse
,
and
here
the
Lady
was
a
partie
to
this
condition
in
the
indenture
,
and
here
the
ignorance
of
the
fact
may
excuse
,
and
when
the
law
doth
put
a
man
upon
a
necessitie
,
there
it
will
excuse
him
as
44.
Ed.
3.
61.
and
50.
Ed.
3.
39.
and
so
the
Law
will
not
impose
a
necessitie
of
notice
upon
him
.
The
residue
of
the
case
of
Cooper
and
Edgar
by
Serjeant
Crook
.
BVt
Crook
said
,
that
he
being
heir
is
bound
to
take
notice
;
but
for
answer
to
that
I
will
cite
you
one
express
case
,
Francis
case
Cook
8.
for
there
the
heir
was
not
bound
to
take
notice
of
the
proviso
in
the
feofment
without
notice
given
to
him
of
it
:
Winch
,
that
case
directly
complies
with
our
case
,
and
so
Farmers
case
Cook
3.
lessee
for
years
in
possession
levies
a
fine
,
that
doth
not
bar
the
reversioner
,
because
he
continued
in
possession
at
the
same
time
,
and
he
had
not
notice
of
that
,
and
here
if
the
Ancestor
had
not
died
seised
,
there
had
been
some
colour
that
he
might
have
had
notice
;
and
this
differs
from
Littletons
case
,
where
the
heir
may
pay
the
Morgage
,
that
in
that
case
he
ought
to
take
notice
at
his
peril
,
because
he
did
not
die
seised
:
Farmers
case
,
where
such
a
lessee
for
years
took
a
feofment
with
an
intent
to
suffer
a
recovery
;
but
he
continued
in
possession
two
terms
after
,
before
he
suffered
the
recovery
;
and
yet
it
was
adjudged
the
Term
for
years
was
saved
:
but
here
he
being
Tenant
of
the
freehold
,
this
may
not
stand
with
the
limitation
of
the
uses
:
and
so
I
pray
judgement
for
the
Plantiff
.
The
argument
of
Davenport
Serjeant
.
DAvenport
to
the
contrary
,
after
a
Recital
of
the
case
said
,
that
he
thought
this
to
be
a
subsequent
condition
,
for
here
are
two
uses
limited
,
and
so
there
is
two
conditions
for
the
first
(
if
)
if
he
do
not
pay
this
is
subsequent
,
and
the
estate
doth
proceed
;
but
the
other
is
precedent
,
and
the
estate
is
subsequent
,
and
the
sole
difference
when
(
if
)
makes
a
precedent
,
and
when
a
subsequent
condition
is
upon
the
words
,
for
in
this
case
words
make
the
case
,
and
if
the
estate
is
limited
first
,
and
then
the
condition
seems
annexed
in
words
to
determine
that
,
in
that
case
it
is
a
subsequent
;
but
if
the
Act
is
first
appointed
to
be
made
,
and
then
the
estate
is
limited
by
express
words
,
there
the
estate
will
not
begin
till
the
tunc
is
performed
;
and
so
is
the
very
difference
14.
H.
8.
22.
and
there
the
principal
case
is
adjudged
to
be
subsequent
,
and
upon
that
difference
is
15.
H.
7.
and
Coo.
7.
where
the
estate
is
first
limited
,
and
then
the
condition
is
after
that
,
and
the
meaning
of
the
parties
was
,
that
the
Lady
shall
have
the
fee
if
the
other
will
not
redeem
that
;
and
I
desired
to
be
tried
by
no
other
cases
,
then
those
which
my
brother
Crook
had
cited
;
Mary
Portingtons
case
(
si
)
is
a
proper
word
to
determine
an
estate
,
and
then
the
estate
ought
to
be
before
;
and
for
the
difference
between
things
executed
,
and
things
Executory
under
favour
that
is
no
difference
,
but
that
is
as
the
words
are
placed
;
and
I
denie
the
case
of
Executors
put
by
my
brother
Crook
,
and
so
I
say
it
is
a
present
estate
,
but
it
is
defeasable
after
by
payment
:
but
now
for
the
second
point
,
whether
it
was
discharged
by
the
death
of
Robert
,
or
whether
the
heir
may
pay
that
,
and
I
think
that
its
impossible
to
avoid
;
Mr.
Littleton
and
my
brothers
difference
of
Morgage
is
no
difference
;
and
Littleton
saith
,
that
the
heir
may
perform
that
,
because
he
hath
an
interest
in
the
condition
;
and
the
reason
is
not
,
because
he
is
charged
,
and
so
the
case
of
the
feoffee
may
perform
that
,
and
yet
in
both
cases
it
is
annexed
as
personally
as
it
may
be
;
and
Sect.
337.
no
mention
is
made
of
the
Morgage
;
but
it
s
in
this
case
,
if
the
condition
had
been
that
a
stranger
should
pay
that
,
then
this
is
meerly
personal
:
and
so
is
Hill.
28.
Eliz.
between
Waltham
and
Ashworth
,
if
an
heir
is
bound
to
perform
a
condition
,
then
a
stranger
may
not
perform
that
,
but
any
who
had
an
interest
as
Gardian
in
Soccage
,
or
Chivalry
;
and
here
by
reason
of
the
interest
of
the
heir
,
by
the
non-payment
he
had
broken
the
condition
,
for
this
is
an
hereditarie
condition
or
limitation
,
by
which
the
heir
had
an
interest
:
now
for
the
third
point
,
whether
he
is
bound
not
having
notice
;
and
I
do
conceive
that
,
because
the
notice
is
ancestrel
,
and
he
was
partie
to
that
,
and
so
there
was
an
original
notice
upon
the
agreement
which
is
also
hereditarie
,
and
discends
to
the
heir
;
and
that
shall
force
him
to
take
notice
of
that
at
his
perill
;
but
if
it
had
been
collateral
to
the
father
,
there
I
grant
that
will
not
binde
the
son
without
express
notice
,
as
in
Francis
case
:
for
there
was
not
any
Act
by
which
the
father
was
bound
to
take
notice
,
and
I
desire
no
better
case
,
then
Sir
Andrew
Corbets
case
.
Fourthly
,
the
estate
for
life
is
not
drowned
by
the
common
law
,
neither
by
the
Statute
,
for
it
is
grounded
upon
the
Condition
,
and
so
there
is
not
any
Surrender
in
the
case
,
and
when
an
agreement
is
,
that
such
a
fine
shall
be
levied
,
now
that
shall
be
understood
to
be
meant
only
of
the
reversion
,
and
he
cited
Sharingtons
case
,
where
Tenant
for
life
levied
a
fine
upon
conusance
of
right
,
to
him
in
reversion
to
the
use
of
others
,
there
because
it
might
not
appear
to
be
otherwise
,
the
estate
of
the
Conusee
was
saved
:
and
Farmers
case
where
a
lease
was
made
to
Farmer
for
years
rendring
rent
,
and
after
he
bargained
and
sold
the
reversion
for
41.
years
,
and
then
made
an
indenture
between
the
lessor
,
and
the
lessee
,
and
one
of
the
bargainees
,
that
the
recovery
shall
be
suffered
to
the
use
of
them
and
their
heirs
,
and
adjudged
the
reversion
for
years
was
saved
:
and
so
I
pray
judgement
for
the
Defendant
.
The
argument
of
Serjeant
Finch
Pasch
.
1.
Carol.
ANd
the
following
Term
the
case
was
argued
by
Henage
Finch
Serjeant
of
the
King
for
the
Plantiff
,
and
he
said
,
the
first
point
is
,
whether
this
made
a
precedent
or
a
subsequent
condition
,
in
which
there
had
been
much
Logick
used
,
and
it
had
been
said
,
that
it
is
a
rule
in
law
,
that
when
a
state
is
first
limited
,
and
there
are
words
of
condition
to
devest
,
that
in
that
case
there
is
a
subsequent
condition
which
ground
I
will
not
denie
;
but
I
denie
that
here
the
estate
is
first
limited
,
for
though
that
seems
to
be
in
words
,
yet
it
is
not
in
the
intents
of
the
parties
,
but
here
first
I
will
note
an
ordinary
difference
in
our
books
,
that
proviso
and
sub
conditione
are
notes
of
a
subsequent
condition
,
(
si
)
of
a
precedent
condition
,
as
appears
by
Mr.
Littleton
;
and
the
reason
of
this
difference
is
,
because
proviso
and
sub
conditione
make
a
full
proposition
,
and
so
doth
not
the
word
(
si
;
)
and
I
compare
that
with
Henry
Finches
case
,
where
aut
and
alibi
never
begin
a
sentence
,
and
so
(
si
)
never
made
an
entire
proposition
:
but
the
proposition
is
,
that
the
fine
shall
be
to
the
use
of
the
Lady
,
if
Robert
do
not
pay
,
which
is
an
Hypothetical
proposition
knit
with
a
copulative
conjunction
,
and
then
the
antecedent
ought
to
be
(
si
,
)
for
all
doth
depend
upon
that
,
but
it
hath
been
objected
,
that
this
is
not
an
antecedent
,
for
it
is
put
in
the
last
place
,
but
I
say
put
that
where
you
will
(
si
)
will
rule
the
sentence
,
and
will
have
a
construction
in
the
first
place
;
(
S.
)
if
Foyn
do
not
pay
10.
s.
the
first
of
September
,
then
that
shall
be
to
the
use
of
the
Lady
,
and
her
heirs
,
and
there
are
many
cases
,
where
(
si
)
being
so
transposed
will
make
a
precedent
condition
1.
H.
4.
4.
where
the
Iudges
will
receive
the
Attorney
of
the
vouchee
if
his
Master
will
consent
,
there
he
is
no
Attorney
till
he
do
assent
3.
H.
6.
71.
per
Martin
a
man
made
another
his
Executor
,
if
he
will
be
bound
to
I.
S.
in
that
case
before
he
is
bound
to
I.
S.
he
may
not
maintain
an
action
as
an
Executor
;
and
so
by
those
authorities
7.
Ed.
3.
41.
14.
H.
8.
Whistlers
case
,
and
Dyer
159.
now
for
the
second
point
,
whether
by
the
death
of
Foyn
the
condition
is
discharged
;
and
I
hold
that
it
hath
discharged
that
,
and
I
hold
Littletons
case
,
where
a
day
is
limited
,
and
where
not
will
aid
me
:
and
I
conceive
that
in
many
cases
,
where
Acts
are
not
judicially
annexed
to
the
person
of
a
man
,
yet
they
may
be
discharged
by
the
death
of
the
parties
,
if
they
are
Colateral
Acts
;
and
put
the
case
,
that
the
use
had
been
so
limited
,
that
if
I.
S.
do
not
pay
so
much
money
before
&c.
now
if
I.
S.
do
die
before
the
day
,
it
is
no
question
but
that
the
condition
is
discharged
;
and
also
if
it
had
been
limitted
in
this
manner
if
Foyn
do
not
pay
this
to
a
stranger
,
ther
by
death
also
it
is
discharged
,
and
the
difference
I
conceive
is
,
when
the
money
is
to
be
paid
as
a
duty
,
and
where
as
a
penaltie
,
and
this
difference
I
learn
of
Mr.
Plowden
in
the
argument
of
Sir
Thomas
Treshams
case
reported
by
the
Lord
Cook
,
and
also
by
the
Lord
Dyer
,
and
by
Dyer
it
is
said
,
that
such
a
summe
of
money
to
be
paid
to
the
feoffes
is
not
my
duty
,
and
therefore
I
say
this
Colateral
Act
is
meerly
discharged
by
the
death
of
Foyn
:
and
Littleton
seems
to
implie
so
much
,
for
in
all
the
cases
of
Morgages
,
he
saith
,
that
the
Executor
or
heir
may
pay
that
,
but
when
he
comes
to
such
a
feofment
made
to
the
feoffee
to
pay
money
on
his
part
,
he
said
,
that
if
he
alien
the
land
the
partie
himself
or
the
vendee
may
pay
that
,
but
not
the
heirs
,
nor
Executors
of
the
feoffees
;
and
there
was
a
case
18th
.
Eliz.
in
this
Court
,
A.
levied
a
fine
to
B.
and
his
heirs
upon
condition
,
that
if
he
pay
so
much
to
the
son
of
A.
when
he
comes
to
the
age
of
18.
years
,
then
to
the
use
of
B.
and
if
not
,
to
A.
and
his
heirs
,
and
the
son
died
before
the
day
,
and
the
opinion
was
,
that
B.
shall
have
that
:
now
for
the
last
point
,
whether
the
estate
for
life
is
gone
,
and
I
hold
that
it
is
,
and
here
he
agreement
of
the
parties
hinders
the
operation
of
the
law
,
and
that
law
will
not
provide
for
him
,
that
provides
not
for
himself
,
and
the
Lady
her self
was
partie
to
the
limiting
of
the
uses
,
and
she
covenanted
that
she
will
be
seised
by
vertue
of
the
fine
,
and
under
the
condition
in
the
indenture
,
and
so
it
is
a
plain
Surrender
of
her
former
estate
,
and
so
I
pray
judgement
for
the
Plantiff
.
The
argument
of
Serjeant
Hendon
to
the
contrary
.
HEndon
contrary
,
there
are
3.
points
.
First
whether
this
be
a
precedent
or
a
subsequent
condition
,
and
I
conceive
it
is
subsequent
,
and
here
the
indentures
being
but
to
declare
the
uses
of
the
fine
,
and
not
to
create
any
use
,
ergo
it
shall
be
guided
by
the
intents
of
the
parties
appearing
in
them
,
and
so
is
the
Earl
of
Rutlands
case
Cook
5.
and
Dyer
357.
and
Shelleys
case
,
and
the
meaning
of
the
parties
was
not
to
raise
any
use
to
Robert
,
but
only
a
possibilitie
to
reduce
that
by
the
performance
of
the
condition
,
and
first
it
is
here
said
,
that
the
Conusee
shall
be
seised
to
the
uses
hereafter
expressed
,
and
under
the
conditions
,
and
then
the
use
ought
to
preceed
the
condition
,
for
no
man
may
stand
seised
under
the
condition
,
except
the
condition
is
subsequent
to
the
use
to
arise
.
Secondly
,
when
is
the
use
to
arise
to
Robert
,
surely
when
he
payes
10.
s.
and
then
in
the
mean
time
the
use
is
to
the
Lady
and
her
heirs
,
for
tunc
had
here
relation
to
,
when
as
it
is
said
in
Boles
case
Cook
3.
and
in
Grants
case
cited
in
Loves
case
Cook
10.
and
17.
Ed.
3.
1.
all
which
cases
prove
that
tāen
had
relation
to
when
,
and
before
this
when
he
had
nothing
,
and
this
doth
appear
to
be
the
agreement
of
the
parties
;
and
now
for
the
words
themselves
,
I
take
it
that
they
make
a
subsequent
condition
,
and
so
it
is
here
limited
in
intention
,
and
for
that
in
matter
also
;
and
it
is
said
in
Colthirsts
case
in
Plowden
,
that
if
the
estate
doth
first
pass
reducible
upon
condition
,
then
it
is
subsequent
,
and
here
it
is
limited
to
the
Conusee
and
his
heirs
,
if
the
Conusor
do
not
pay
:
but
here
it
hath
been
said
is
inversio
verborum
,
and
the
consequent
is
placed
before
the
Antecedent
,
and
this
hath
been
proved
by
Logick
:
I
never
knew
cases
in
law
to
be
expounded
by
Logical
and
Grammatical
learning
,
but
by
the
intentions
of
the
parties
,
and
here
I
conceive
that
the
estate
is
vāsted
in
the
Conusee
by
the
fine
,
and
so
the
condition
is
subsequent
:
but
admit
it
is
Executory
,
and
I
say
concerning
that
there
are
these
differences
;
that
if
the
state
of
the
thing
granted
is
executory
,
and
that
the
condition
of
the
thing
granted
is
Executory
,
and
the
condition
is
to
remain
with
the
estate
,
so
long
as
the
estate
doth
remain
,
the
condition
is
precedent
:
28.
E.
3.
2
4.
3.
1.
H.
6.
32.
but
if
the
condition
be
but
one
time
to
be
executed
,
and
that
not
contained
with
the
estate
,
then
it
is
subsequent
10.
Eliz.
Dyer
Calthorps
case
:
but
here
our
estate
is
executed
,
for
it
is
expresly
limited
to
the
Lady
Cesar
and
her
heirs
,
which
takes
away
all
implied
uses
,
so
that
no
implied
use
shall
result
in
the
mean
time
,
and
so
75.
Assises
land
given
to
a
man
and
to
his
heirs
,
if
he
have
heirs
of
his
body
,
now
this
(
if
)
is
subsequent
,
and
so
I
conceive
that
it
is
not
a
condition
simply
,
but
a
conditional
limitation
,
for
it
appears
by
Mr.
Littleton
,
because
it
is
no
otherwise
expressed
,
and
another
reason
is
,
because
the
condition
is
annexed
to
the
future
time
,
ergo
that
is
subsequent
,
and
yet
I
grant
there
is
a
difference
betwixt
such
an
estate
conditional
annexed
to
an
interest
,
and
where
it
is
is
annexed
to
an
authoritie
,
it
may
be
precedent
,
but
for
an
interest
it
is
subsequent
,
as
is
the
case
of
Bracton
lib.
2.
fo.
3.
and
now
for
the
second
point
,
whether
the
heir
may
and
ought
to
perform
that
,
and
I
do
conceive
that
he
is
,
and
it
is
not
annexed
to
the
person
,
because
it
is
real
,
and
doth
arise
with
the
land
.
Secondly
,
yet
the
law
doth
expect
who
ought
to
have
performed
that
,
but
it
is
the
performance
it self
which
the
law
doth
respect
:
4.
E.
3.
2.
such
condition
real
which
doth
arise
with
the
land
,
and
in
such
a
case
no
notice
is
in
that
case
requisite
:
and
the
last
point
is
,
whether
the
estate
for
life
is
gone
,
and
I
hold
that
it
is
saved
by
the
common
law
of
England
,
for
the
fine
only
is
as
the
grant
of
the
reversion
by
the
explanation
of
the
indenture
,
and
then
there
is
no
surrender
in
the
case
;
but
when
the
condition
is
performed
,
the
estate
for
life
doth
remain
,
and
so
was
it
resolved
in
Mr.
Mansors
case
;
and
yet
I
agree
that
a
litle
matter
will
make
a
surrender
;
and
Mr.
Ruds
case
where
lessee
for
years
of
an
advowson
,
was
presented
by
the
Patron
,
that
was
a
surrender
:
but
the
Statute
of
the
27th
.
of
H.
the
Eighth
at
the
end
saved
that
,
though
it
is
to
her
own
use
,
for
the
words
of
the
saving
are
to
every
person
,
and
their
heirs
which
hereafter
shall
be
seised
to
any
use
all
such
former
rights
,
&c.
possession
&c.
as
they
might
have
had
to
their
own
use
,
in
any
lands
whereof
they
be
seised
to
any
other
use
whatsoever
:
and
so
upon
the
whole
matter
I
do
conceive
,
that
judgement
ought
to
be
given
for
the
Defendant
.
The
residue
of
the
case
of
Gibson
and
Ferrers
.
NOw
the
case
of
Gibson
and
Ferrers
,
which
see
before
,
was
argued
again
by
Serjeant
Bridgman
;
and
he
said
,
as
before
,
the
award
is
not
good
for
the
interest
,
and
yet
he
now
agreed
that
covenants
,
bonds
,
and
contracts
for
usury
,
are
good
in
law
,
but
yet
it
may
not
be
awarded
17.
Ed.
4.
5.
if
a
man
do
submit
to
Arbitrators
,
they
may
not
award
that
he
and
his
wife
shall
levie
a
fine
,
but
if
the
partie
himself
do
promise
that
,
this
is
good
,
and
shall
binde
the
wife
to
perform
that
;
and
besides
he
said
,
that
here
is
an
award
made
only
of
one
side
,
and
nothing
is
allowed
to
Ferrers
,
and
so
not
good
:
9.
Ed.
4.
29.
29.
H.
6.
22.
and
I
pray
that
the
Plantiff
may
be
barred
:
Hendon
to
the
contrary
:
and
he
argued
,
if
an
award
be
good
in
any
part
,
though
it
be
not
in
that
which
is
assigned
for
breach
,
yet
it
is
good
upon
such
plea
of
nullum
fecerit
arbitrium
;
and
the
other
shews
an
award
,
and
assignes
the
breach
,
in
this
case
the
breach
is
not
traversable
,
for
it
is
of
the
form
,
and
not
of
the
substance
of
the
action
:
but
to
that
the
Court
did
presently
answer
,
that
the
cause
of
the
action
is
the
breach
of
the
award
,
and
this
he
ought
to
make
apparent
to
the
Court
,
for
otherwise
he
shall
not
have
any
action
,
and
though
the
breach
is
not
traversable
,
yet
it
is
of
the
substance
of
the
action
,
for
upon
such
plea
pleaded
,
he
not
only
ought
to
maintain
the
award
,
but
to
shew
the
breach
,
for
it
shall
be
otherwise
if
it
be
found
against
him
;
and
then
Hendon
answered
to
the
other
exception
,
that
this
is
not
for
direct
usury
,
but
is
rather
for
the
damage
,
which
he
sustained
by
the
forbearance
of
the
money
,
and
yet
if
it
were
for
interest
it
is
good
,
and
then
as
to
that
which
now
had
been
agreed
by
my
brother
Bridgman
,
that
contracts
and
obligations
for
usury
are
good
:
I
say
then
by
the
same
reason
an
award
for
that
is
good
,
for
whatsoever
a
man
may
contract
for
,
the
same
thing
may
be
awarded
;
if
the
contract
will
bear
that
,
and
usury
is
not
malum
in
se
,
but
only
malum
prohibitum
,
and
is
good
by
our
law
,
and
here
in
this
case
,
though
the
Arbitrator
was
deceived
in
the
summe
,
yet
after
the
award
made
it
is
altogether
certain
,
and
an
implied
recompence
is
sufficient
in
this
case
:
but
the
Court
said
,
that
the
casting
up
of
the
accompts
did
not
make
an
award
,
for
it
is
not
a
good
Calculation
,
but
the
ending
of
the
controversies
that
doth
make
the
award
,
but
yet
the
opinion
of
the
Court
in
this
case
was
,
that
the
award
was
good
,
for
an
Arbitrement
shall
not
be
taken
absolutely
upon
the
bare
words
,
and
the
Court
did
command
the
parties
to
come
before
them
upon
the
morrow
in
the
Treasury
,
and
as
it
seems
this
was
for
mediation
to
make
an
agreement
,
for
the
opinion
seemed
to
be
for
the
Plantiff
.
The
case
of
Hilliard
and
Sanders
argued
by
the
Court.
IUstice
Harvey
this
Term
did
argue
the
case
of
Hilliard
and
Sanders
,
which
see
before
;
and
after
a
brief
recital
of
the
case
,
he
said
that
his
opinion
was
,
that
the
avowant
shall
not
have
return
,
because
that
by
the
fine
of
the
lands
the
rent
is
extract
,
and
I
am
induced
to
be
of
this
opinion
by
two
things
,
the
first
is
the
agreement
,
and
tāe
other
is
the
favourable
exposition
of
the
Statute
of
fines
,
to
settle
repose
and
quiet
,
and
I
will
first
shew
the
efficacie
of
fines
at
the
common
law
;
21.
Ed.
4.
the
Pryor
of
Binghams
case
,
it
is
laid
for
a
ground
and
rule
in
law
,
if
a
thing
be
contained
in
a
fine
either
expresly
,
or
implicitly
,
this
is
very
good
:
and
so
is
44.
Ed.
3.
22.
37.
H.
6.
5.
for
a
fine
is
no
more
then
an
agreement
,
and
therefore
it
is
called
in
latin
Concordia
,
and
then
see
if
by
any
words
you
may
pass
this
rent
by
the
fine
,
and
though
the
word
rent
is
not
there
,
yet
if
it
be
so
infolded
in
the
lands
,
that
is
good
with
that
,
it
is
very
good
,
and
for
that
3.
H.
7.
16.
17.
21.
H.
7.
proves
that
by
a
feofment
of
the
land
the
rent
doth
pass
,
and
wherefore
not
by
fine
then
,
and
this
shall
be
within
the
Statute
of
4.
H.
7.
and
32.
H.
8.
and
a
case
may
be
out
of
the
Statute
of
32.
H.
8.
and
yet
be
within
the
Statute
of
the
4.
H.
7.
as
the
2.
Ed.
3.
in
Dyer
though
the
feme
after
the
death
of
the
husband
she
may
enter
upon
the
discontinues
of
the
husband
,
yet
if
she
do
not
within
5
years
she
shall
be
barred
,
and
now
you
see
that
the
construction
of
these
Statutes
was
alwayes
to
settle
repose
and
quietness
,
for
if
such
a
construction
should
be
made
according
to
the
opinion
of
Chornton
in
Smith
and
Stapletons
case
,
then
it
will
be
mischievous
,
and
for
his
opinion
it
was
only
in
the
way
of
arguing
,
and
yet
I
conceive
he
had
the
good
opinion
of
the
Reporter
,
and
without
all
question
it
is
a
case
of
as
hard
a
construction
as
that
is
of
Archers
case
,
where
the
heir
who
nothing
had
in
the
land
in
the
life
of
his
father
,
did
levie
a
fine
,
this
is
a
bar
for
ever
,
and
the
reason
is
,
because
it
is
of
a
thing
which
is
intailed
,
and
he
cited
a
case
in
Bendloes
Reports
,
where
a
discontinuee
was
disseised
by
Tenant
in
tail
who
levied
a
fine
,
and
the
discontinuee
entred
,
and
then
proclamations
passed
,
that
in
this
case
the
issue
was
barred
;
truly
I
do
agree
the
case
of
36.
H.
8.
that
that
a
fine
levied
of
land
did
not
bar
him
who
had
title
of
Common
,
or
a
way
,
the
reason
is
,
because
there
is
no
privitie
,
but
in
our
case
there
is
a
privitie
,
and
by
Margaret
Podgers
case
a
Coppiholder
is
within
this
Statute
,
and
in
our
case
the
rent
passeth
especially
in
regard
of
the
agreement
,
as
in
the
Lord
Cromwels
case
,
and
he
cited
a
case
primo
Jacobi
,
between
Gage
and
Selby
in
an
ejectione
firme
,
where
Gage
was
Tenant
in
tail
,
and
he
levied
a
fine
to
I.
S.
in
fee
,
and
after
he
levied
another
fine
to
the
use
of
himself
for
life
,
the
remainder
over
,
and
his
brother
brought
a
writ
of
error
to
reverse
the
first
fine
,
and
ruled
that
he
may
not
,
for
the
second
fine
had
barred
him
of
any
writ
of
error
,
and
so
I
conclude
the
fine
had
extinguished
the
rent
.
The
argument
of
Justice
Hutton
to
the
contrary
.
HUtton
contrary
,
the
fine
had
not
barred
the
rent
,
in
which
I
will
consider
the
nature
of
fines
at
the
Common
Law
,
and
they
were
of
mightie
and
great
esteem
,
and
force
,
as
appears
by
the
great
solemnitie
which
is
used
in
them
,
as
is
prescribed
in
the
Statute
of
fines
18.
Ed.
1.
de
modo
Levandi
fines
,
and
he
agreed
that
such
a
fine
by
Tenant
in
fee
simple
will
pass
that
inclusively
,
for
by
the
release
of
all
his
right
in
the
land
a
Signiorie
is
gone
.
I
agree
also
that
a
fine
is
but
an
agreement
;
but
yet
it
must
work
according
to
the
nature
of
the
thing
,
as
upon
a
writ
of
Measne
,
or
of
right
of
advowson
,
a
fine
may
be
levied
,
and
yet
it
is
not
levied
of
the
lands
,
but
of
the
advowson
,
or
Signiorie
,
and
so
if
the
writ
of
covenant
be
one
thing
,
and
the
agreement
of
another
thing
,
then
it
is
not
good
,
and
first
I
will
prove
,
that
at
the
Common
law
fines
have
been
rejected
when
the
writ
of
covenant
did
not
contain
the
thing
of
which
the
fine
is
to
be
be
levied
,
and
if
at
the
Common
law
a
fine
was
levied
of
rent
,
there
ought
to
be
a
writ
of
covenant
of
that
18.
Ed.
2.
fines
123.
and
there
the
rule
is
given
,
that
it
is
against
reason
to
hold
covenant
of
that
which
never
was
,
and
the
rent
there
never
was
before
,
but
ought
to
begin
then
,
and
yet
it
is
clear
a
man
may
create
a
rent
by
fine
;
but
he
shall
not
have
a
writ
of
covenant
of
that
when
it
was
not
in
esse
before
,
and
because
the
concord
may
not
varie
from
that
,
therefore
it
was
not
received
38.
Ed.
3.
17.
Knevet
put
the
rule
,
that
a
fine
may
not
be
of
more
then
is
in
the
writ
of
covenant
,
and
when
a
fine
is
properly
levied
of
that
,
it
is
by
way
of
release
:
Fitz.
fine
100.
and
so
I
conceive
here
the
rent
doth
not
pass
.
Secondly
,
here
no
man
may
plead
that
any
fine
is
levied
of
this
rent
,
for
this
is
forced
in
by
the
name
of
land
,
which
is
absurd
,
and
contrary
:
and
here
is
not
any
fine
levied
directly
of
the
rent
,
nor
any
Silver
of
the
King
paid
for
that
,
but
only
by
the
judgement
of
consequence
:
and
now
for
the
Statutes
of
fines
,
whether
it
is
a
fine
within
these
Statutes
,
and
I
hold
that
it
is
not
:
and
I
am
of
opinion
that
if
the
rent
had
been
behinde
before
all
the
dayes
of
proclamation
pass
,
and
the
issue
had
accepted
,
that
he
is
remitted
:
and
the
same
law
is
,
if
Tenant
in
taile
of
such
a
rent
,
and
he
acknowledge
such
a
fine
with
proclamations
,
and
the
proclamations
pass
,
now
if
his
issue
had
accepted
the
rent
before
the
proclamations
passed
,
he
is
remitted
:
and
now
for
the
Statute
of
32.
H.
8.
that
is
not
taken
by
equitie
,
because
it
is
a
Statute
of
explanation
,
which
regularly
may
not
be
inlarged
:
and
so
appears
in
Butler
and
Bakers
case
;
and
now
for
the
agreement
it self
that
is
not
any
thing
,
for
this
is
by
a
contrary
name
which
may
not
be
good
:
like
to
the
case
of
the
Lord
Cromwel
,
for
there
was
an
agreement
to
raise
a
rent
by
fine
,
but
here
is
an
agreement
to
pass
a
rent
by
another
name
,
and
will
any
man
say
that
if
a
man
agree
to
levie
a
fine
of
rent
by
the
name
of
an
advowson
,
that
this
will
pass
the
rent
;
and
I
think
that
the
case
of
Thornton
is
good
law
,
and
so
is
also
the
case
which
is
put
after
that
of
the
advowson
:
and
yet
I
agree
if
Tenant
in
tail
do
accept
a
fine
with
render
to
another
for
years
,
that
shall
bar
him
,
because
that
doth
not
work
a
discontinuance
,
but
otherwise
where
it
is
for
life
,
and
so
in
my
opinion
the
rent
remains
,
and
the
avowant
shall
have
judgement
.
The
argument
of
the
Lord
chief
Justice
Hobert
.
HObert
to
the
contrary
,
the
short
question
is
,
whether
the
rent
is
extinct
by
the
fine
of
the
land
,
and
I
hold
that
it
is
,
and
it
is
agreed
it
is
a
bar
against
the
parties
themselves
,
though
not
against
the
issue
,
and
that
being
granted
I
see
no
second
reason
wherefore
the
issue
shall
not
be
barred
,
and
first
I
am
of
opinion
,
that
this
plea
of
not
comprised
,
it
is
not
good
;
because
this
fine
doth
work
by
way
of
release
,
but
it
was
said
at
the
bar
,
that
things
ought
to
pass
litterally
in
a
fine
,
which
I
denie
,
and
also
every
informalitie
of
a
fine
which
is
cause
to
reject
that
,
is
not
a
cause
to
frustrate
that
when
that
is
levied
,
and
the
words
of
the
Statute
are
of
any
lands
,
Tenements
,
or
hereditaments
any
wise
intailed
,
and
if
there
be
any
word
in
the
conveyance
which
will
carry
that
,
it
is
sufficient
,
and
it
shall
be
put
upon
the
construction
of
the
law
,
and
as
to
that
,
that
the
fine
shall
be
according
to
the
writ
of
covenant
;
but
I
say
if
there
be
no
writ
of
covenant
,
then
there
is
no
departure
:
but
it
was
said
,
that
the
Silver
of
the
King
was
not
paid
,
which
I
also
denie
,
for
it
was
paid
inclusively
,
and
the
words
of
the
Statute
are
of
any
thing
any
wise
intailed
,
and
Tenant
in
taile
had
as
great
power
to
pass
that
by
fine
,
as
Tenant
in
fee
simple
:
and
for
the
case
of
Thornton
,
I
know
he
was
a
learned
man
,
but
let
it
suffice
that
he
was
so
esteemed
;
but
for
his
opinion
I
do
utterly
denie
that
,
and
I
do
denie
the
case
put
by
my
brother
Hutton
of
the
Piscary
,
for
I
hold
if
a
man
had
a
Piscary
in
another
mans
land
,
and
levies
a
fine
of
that
by
the
name
of
land
,
this
will
pass
the
Piscary
clearly
,
and
so
the
same
if
a
man
have
an
office
appertaining
to
land
intailed
,
and
a
fine
is
levied
of
that
by
the
name
of
the
land
,
this
shall
bar
the
issue
;
and
I
denie
that
Statutes
of
explanation
shall
alwayes
be
taken
litterally
,
for
it
is
impossible
that
an
Act
of
Parlāament
should
provide
for
every
inconvenience
which
happens
,
and
so
the
case
of
Godfrey
and
Wade
adjudged
,
that
the
fine
of
the
youngest
son
may
not
bar
the
eldest
,
and
yet
within
the
words
the
eldest
was
heir
to
him
,
but
this
word
heir
shall
be
expounded
as
his
heir
,
and
so
we
use
to
expound
the
Statute
of
4.
H.
7.
which
is
an
original
Statute
,
and
bindes
parties
,
and
privies
,
and
here
the
eldest
brother
is
not
privie
,
for
he
claimes
before
him
:
and
so
I
conclude
that
the
rent
is
gone
:
and
judgement
was
given
accordingly
.
Sir
Robert
Hitcham
against
Brooks
.
SIr
Robert
Hitcham
Serjeant
of
the
King
,
brought
an
action
upon
the
case
against
Brooks
,
and
set
forth
in
his
declaration
,
that
he
was
one
of
his
Majesties
Serjeants
at
law
,
and
that
the
Defendant
spoke
these
words
of
him
,
I
doubt
not
but
to
prove
,
he
,
innuendo
Sir
Robert
Hitcham
,
hath
spoken
treason
,
and
upon
not
guiltie
pleaded
,
it
was
found
for
the
Plantiff
,
and
now
it
was
moved
in
arrest
of
judgement
by
Hendon
;
first
,
because
it
is
not
a
direct
affirmation
,
that
he
spake
treason
but
he
doubts
not
but
to
prove
that
,
like
to
Penticosts
case
which
was
adjudged
here
,
where
one
Baker
said
of
him
,
I
will
prove
that
Penticost
was
perjured
,
and
no
action
will
lie
,
because
he
did
not
directly
affirm
that
he
was
perjured
.
Secondly
,
because
he
had
not
shewed
when
he
spoke
those
words
,
and
perchance
it
was
in
his
infancie
,
or
lunacie
,
or
before
the
general
pardons
.
Thirdly
,
here
is
not
any
allegation
of
any
conference
had
of
the
King
before
,
and
the
speach
of
Treason
is
not
Treason
,
but
when
there
is
an
intent
to
commit
that
,
and
words
shall
be
taken
in
the
best
sence
,
as
the
case
of
Stanhop
Cook
4.
and
so
in
the
case
between
the
Earl
of
Shrewsbury
,
and
Sir
Thomas
Stanhop
,
one
laid
to
Sir
Thomas
Stanhop
,
that
the
Earl
is
a
subject
;
nay
,
said
Sir
Thomas
that
is
his
grief
,
and
adjudged
those
words
are
not
actionable
,
and
yet
the
words
might
be
taken
as
if
he
had
repined
to
have
a
Soveraign
,
but
the
words
were
taken
in
the
best
sence
:
Finch
to
the
contrary
;
this
is
more
then
a
bare
affirmation
,
for
he
said
he
doubted
not
but
to
prove
that
,
asmuch
as
if
he
had
said
,
I
am
sure
of
that
,
and
Mich.
16.
Iac.
Sidnams
case
,
where
one
said
,
I
think
in
my
conscience
that
if
Sir
Iohn
Sidnam
might
have
his
will
he
would
kill
the
King
,
and
all
his
good
subjects
,
and
adjudged
upon
a
writ
of
error
brought
of
that
,
the
words
are
actionable
:
and
so
in
Whorewoods
case
,
so
sure
as
you
beleeve
that
God
rules
the
world
,
and
that
the
King
rules
the
Kingdome
,
so
sure
did
Whoorwood
steal
such
goods
,
and
adjudged
to
be
actionable
;
and
yet
perchance
the
partie
to
whom
he
spake
,
did
not
beleeve
either
of
them
,
and
so
Woods
case
18.
Iac.
I
will
call
him
in
question
for
killing
of
a
man
,
I
will
pawn
my
shirt
but
I
will
hang
him
,
and
so
here
,
and
prayed
judgement
for
the
Plantiff
.
Ashley
Serjeant
contray
;
words
which
may
be
taken
in
a
double
sence
shall
be
taken
in
the
best
sence
,
and
it
shall
be
intended
he
spoke
Treason
in
putting
of
a
case
,
or
in
speaking
that
after
another
,
and
yet
he
offended
not
;
and
so
if
he
had
said
,
that
he
had
written
,
or
printed
Treason
,
for
so
do
the
printers
of
the
King
,
and
the
Clark
of
the
Crown
;
and
so
I
conceive
that
the
Plantiff
shall
not
have
judgement
.
Easter
1.
Carol.
ANd
Serjeant
Bawtrey
,
the
Term
following
argued
for
Serjeant
Hitcham
,
that
it
was
plain
,
that
the
Defendant
spoke
the
words
with
a
full
intent
to
take
away
his
life
,
and
to
speak
Treason
is
to
speak
ex
corde
suo
,
and
not
that
which
another
spake
,
and
now
in
Easter
Term
1.
Carol.
judgement
was
given
for
the
Plantiff
by
Hobert
,
Hutton
,
Harvey
,
and
Crook
with
one
accord
:
and
they
said
the
limitation
of
the
time
is
not
material
,
for
if
it
was
spoke
in
his
infancie
&c.
Brook
ought
to
have
shewed
that
:
and
Crook
cited
Walgraves
case
32.
Eliz.
in
B.
R.
one
said
of
him
that
he
was
not
a
good
subject
,
and
adjudged
,
because
he
spoke
them
maliciously
,
and
he
being
one
of
the
privie
chamber
,
that
the
action
will
lie
,
and
so
5.
Iac.
Blanchflower
and
Alwood
thou
haste
spoke
Treason
,
and
shall
be
hanged
for
that
,
adjudged
to
be
actionable
,
and
the
7.
Iac.
Barford
against
Prowse
,
thou
haste
spoken
Treason
,
and
I
will
prove
that
,
adjudged
to
be
actionable
;
and
judgement
was
given
for
the
Plantiff
according
.
Pleadal
against
Gosmore
.
PLeadal
brought
an
action
against
Gosmore
for
the
taking
of
his
Colt
,
and
fettering
him
by
which
the
Colt
was
much
the
worse
,
and
the
Defendant
justified
,
and
shewed
that
the
Colt
was
taken
within
such
a
Mannor
which
was
the
Counteses
of
Hartfords
,
and
that
she
had
estrayes
within
the
same
Mannor
,
and
he
justified
the
taking
as
Bailiff
to
her
;
and
shewed
that
he
fettered
him
to
the
end
to
keep
him
from
doing
harm
,
because
he
was
wild
:
and
Serjeant
Attoe
demurred
in
law
,
and
he
said
that
a
man
may
not
fetter
an
estray
,
because
he
shall
be
paid
for
his
keeping
,
and
for
the
hurt
that
he
did
;
and
he
cited
a
judgement
8.
Iac.
in
this
Court
Rot.
1749
between
Harvey
and
Blacklock
,
for
the
taking
of
his
horse
,
and
the
fettering
him
by
reason
of
which
he
fell
into
a
ditch
and
was
drowned
,
and
the
other
justified
the
taking
as
an
estray
,
and
he
fetred
him
to
one
of
his
own
horses
,
because
he
was
wild
,
and
they
both
fell
into
a
ditch
,
and
were
drowned
&c.
and
adjudged
to
be
no
Plea
,
and
the
reason
which
the
Lord
Cook
gave
was
,
because
he
shall
be
paid
for
the
keeping
of
him
,
and
for
his
damage
,
and
of
this
opinion
was
Hobert
in
the
case
at
the
bar
:
but
Winch
,
Hutton
,
and
Harvey
contrary
:
that
he
may
fetter
him
as
he
may
his
own
horse
,
and
for
the
case
which
was
alledged
,
they
said
that
there
was
no
proclamation
pleaded
,
and
so
the
justification
was
not
good
,
and
judgement
was
entred
for
the
Defendant
:
and
this
was
the
last
case
that
ever
Iustice
Winch
spake
to
in
the
Court
;
for
he
being
a
man
not
more
admired
for
his
profound
learning
,
then
he
was
reverenced
for
his
pietie
and
integritie
died
upon
Friday
following
,
being
the
fourth
day
of
Februarie
in
the
morning
as
he
was
making
readie
to
go
the
Hall
.
Elizabeth
Davis
against
Hawkins
.
THere
was
a
case
between
Elizabeth
Davis
and
Hawkins
in
the
spiritual
Court
for
defamatorie
words
,
and
sentence
was
given
against
the
Plantiff
who
appealed
to
the
Arches
,
and
judgement
was
given
for
the
Plantiff
,
and
12.
d.
costs
,
and
then
came
the
general
pardon
,
and
the
Defendant
did
appeal
to
the
deligates
,
and
there
the
second
sentence
was
affirmed
,
and
greater
costs
given
,
and
the
Defendant
did
plead
the
general
pardon
,
and
they
would
not
allow
of
that
;
and
now
it
was
moved
for
a
prohibition
,
and
these
points
were
debated
by
the
Councel
,
and
agreed
by
the
Court
&c.
by
Hobert
,
and
by
Harvey
;
that
though
this
suit
and
sentence
is
only
for
to
make
the
partie
to
denie
the
words
,
and
confess
his
fault
in
some
publick
place
,
yet
it
is
in
effect
,
as
if
it
were
meerly
at
the
suit
of
the
King
for
reformation
,
and
this
is
a
new
invention
which
they
had
found
out
,
to
take
away
the
benefit
of
the
pardon
of
the
King
,
and
now
to
the
new
costs
which
were
taxed
by
the
deligates
,
they
were
not
taken
away
by
the
pardon
,
for
though
the
first
offence
was
,
yet
because
this
new
suit
was
not
only
to
quash
the
sentence
for
the
offence
,
but
also
for
the
costs
,
ergo
these
new
costs
were
assigned
for
the
unjust
vexation
,
for
he
was
the
cause
of
the
removing
of
that
;
and
so
they
may
do
for
the
unjust
vexation
;
but
not
for
the
first
offence
.