An exact abridgement of the reports of that eminent lawyer Sir George Crook knight, one of the judges of both benches, of such select cases as were adjudged in the said courts the time that he was judge in either of them. With two exact tables of the cases and principal matter therein contained.

AN EXACT ABRIDGEMENT OF THE REPORTS , &c.

Term . P. Car . 1. Com . Ban .

Hamond against Dod .

DEbt upon Obligation . Whereas Lands were to be surrendred by A.S. at her full age to G. & H. and their Heirs , and if G. failed to pay H. &c. to be to the use of H. &c. Condition , that if the Obligor procured A.S. to surrender to H. &c. that then , &c : Defendant replies , that A.S. did surrender to the Plaintiff ut supra , and that G. did not pay , &c. Plaintiff pleads , quod bene & verum est , but after G. expelled him , the Defendant demurs . Moved by Athowe , that the Replication was good , 2 E. 4. 15 : If a Replication be not good , yet if the Bar be ill in substance , Judgement shall be for Plaintiff , 3 Rep. 52. But resolved this Replication is nought , because he sheweth not that he was lawfully expelled , 15 Eliz . Dyer 325. 26 H. 8. 3. And the Bar ( that she surrendred in Court ) is good , though she said not to the use of H. being alledged to be accepted by him , and confessed in the Replication , &c.

Holm against Lucas , fol. 6.

Assumpsit . Writ and Declaration were quod cum indebitatu● fuit , insomuch , in consideration thereof assumed . Upon non Assumpsit it was found for the Plaintiff . Moved in A●rest , &c. to be nought , because he does not shew for what , as wares , &c. but agreed , had the Defendant demurr'd , the Declaration had been nought : but having pleaded otherwise . Presidents were to be searched , et Cur . advis .

Arscot against Heal . Exchequer . fol. 6.

Three were bound joyntly and severally . Arscot one of the Obligors , pleads that he paid the money . Plaintiff replies , that neither he nor the other Obligors , nor any of them , paid , &c. & hoc paratus est verificare , & pred . Arscot sim . Jury found that Arscot did not pay , &c. This Errour assigned , That the verdict was not according to the Issue . For it might be paid by any of them . But it was held good , for that addition in the Bar was but surplusage . Judgement affi●med .

Savern against Smith . Exchequer . fol. 7.

Copyholder in fee , takes a husband , who makes a lease for years , contrary to the custom . Husband dyes : Whether this forfeiture bindes feme and heirs after his death . Adjudged not to binde her . But that she shall have it after her husbands death non obstante the forfeiture .

Flight against Crasden .

Assumpsit . In consideration the Plaintiff would pay the Defendant 30 l : May 9. he would deliver him up his Bond cancelled . Plaintiff says in fact , that he paid ut supra , and that the Defendant had not delivered , &c. It was said no Consideration . For the Defendant received his money at that instant time , and a consideration ought to be beneficial to him to whom it is done , and trouble to the other , 9 E. 4. 19. Court agreed it to be a good consideration . Hobert , If he had promised to pay the money in the morning of that day , he would give him 5 l. it had been a good promise causa ve .

Sir Upwel Caroons Case .

An Alien dyes intestate , seized of divers Leases for years , and other personal Estate : Quest . Whether his nearest kindred being Aliens , may Administer , 2 E. 3. 21 H. 8. Statutes were cited to the contrary . But resolved , that an Alien may be an Administrator , and have Administration as well of Leases as of Personal things , as well as person Outlawed or Attaint , Pas . 41. Eliz . Rot . 1704. Beck against Philips . Debt brought by Admin . Defendant pleads , Plaintiff was an Alience Adjudged quod respond . ouster .

Marshals Case , .

In Ejectment . Ancient Demesn pleaded after imparlance , was said to be too late . But the Court doubted , because such Land is not impleadable at Common Law . ( Cur . advis . )

Trin . 1. Car . Com . Banc .

Lionel Farrington Case , fol. 10.

IN Debt upon the Statute 23 Eliz . against Prince & vx , for Recusancy and absence from Church of his wife eleven moneths , per quod actio accrevit Domino Regi & Lio : Farrington qui tam , &c. habend . 120. l. Defendant Demurs , the Plaintiff joyns in Demurrer , which being entred in H●ll . The King dyed the Vacation following : And it was moved , Whether Original Writ , Declaration , Plea and Demur brought by the Imformer for the King and himself , should not abate by the Kings death , as Original by two , by the death of either abates , or brought in the Kings name onely , Co. 7. Rep. 30. or Whether Writ and Declartion stand onely , or all proceedings by 1 E : 6 , 7. ordered for presidents to be shewed . Upon no presidents , Resoved by the Court , That all proceedings upon this account , stand . For it is meerly the Suit of the party , and within 1 E. 6. And so resolved that all proceedings stand , 7 Rep. 30. Dy . 124. 6 E. 6. Fitz Herbert , Nonsuit 13.

George Venables Case ,

A writ of Priviledge was granted him , being prest for a Souldier , being a Clerk under the Custos brevium , Co. Book Entries , 436. The like granted to a Clerk of the Kings Bench .

It was moved amongst the Judges , if it were lawful to grant an Habeas corpus to the Warden or Marshal , to have a Prisoner in Execution to appear at a day certain the next Term , and under that colour to let him at large in the Vacation . And they alledged it not to be lawful . But they are to have a convenient time to bring him to the Court and back again . And if they let him go at large longer than what the Law shall judge convenient , it is an escape .

Sir John Isham against York ,

For words against a Justice of Peace : I have been often with Sir John Isham for justice , but could never get any at his hand but injustice . Found for the Plaintiff . And after moved in Arrest . For it is not said , that he offered him injustice in his Office of Justice , nor that he complained to him for justice , as a Justice of Peace , and could not have it , or the like . But generally he could not have justice . Crew for the Plaintiff , That the Plaintiff declaring that he was a Justice of Peace , and the Defendant intending to scandalize him , spake , &c. 4 Rep. 40. Beechly and Stenklys Case . Judgement for the Plaintiff .

Smith against Crashaw , & alios ,

An Action upon the Case , in nature of a Conspiracy , for falsly accusing the Plaintiff , and caused him to be falsly and maliciously indicted at the Assizes , for Treason . The Defendants plead special matter of excuse , and traverse the malicious accusation : But it was found against them , and damages &c. It was moved in arrest , &c. Because there is no president in our Books for the like Action , and men would then be deterred to p●osecute . But it was resolved that the Action lies : And the Statute and Writ says , If any falsly and maliciously conspire to procure any to be indicted . Here it is set forth , they did maliciously and falsly , &c. And it is traversed that they did not , &c : which is found against them . And by the opinions of all the Justices adjudged for the Plaintiff .

Greens Case ,

Green p●ayed a Prohibition to the Ecclesiastical Court at Salisbury , because his wife sued for a Separation propter saevitiam : And the Husband had sentence . And the husband was forced to pay all the Costs for his wife . The course of the Spiritual Court was so .

Cook against Younger ,

In an Action on the Case : Whereas the Office ●o Understewardship of the Courts of the Mannors , &c. was grantable for life with a fee of , &c. and the Bishop of Gloucester did grant the same to the Plaintiff for life , with the see of 3 l. 6 s . 8 d . payable yearly at two Feasts , issuing out of the Mannors . Bishop dyed , and the Plaintiff is ready to keep Court , &c. and the Defendant disturbed him . Found for the Plaintiff . Moved in Arrest . 1. Because the Prescription is so much a year , and here the payment appointed at two Feasts , and so not warranted by the Statute .

2. That the Office is grantable for life , and shews not for whose . But these Exceptions not allowed 6 Rep. 37. That the days of payment are not material , where no less than the ancient Rent is reserved yearly . And the grant for life shall be intended of the Grantee . But Judgement for the Plaintiff .

Bryan against Witherhead ,

In Ejectment . Upon a special Verdict . Bryan being seized in fee of a Copyhold Tenement , built six foot , enchroaching on the waste , and adjoyned to the shop of the said house . The Lord , 33 Eliz . demises to Bryan the said waste for 100 years , who 1 Jac . surrendred the Tenement to the use of Mary in fee , and 5 Jac . assigns his term in the six foot to the said Mary , who 19 Jac . demised the said Tenement , called Key-shame , cum pertinentiis habend . for 70 years , who assigns over , &c.

Whether by these words , The Messuage called Keyshams , cum pertinentiis , this parcel of the shop so built and annexed to the other past or no . And resolved , not . For nothing could pass here but what was parcel of the house from the time , &c. Hobard conceived in a Devise it might pass .

Sir Francis Vincent against Lesney , fol. 18.

Trespas quare accipitrem ipsius F. percussit . Found for the Plaintiff . And the Declaration was held by the Court to be good , though it shews not what kinde of Hawk it was , a Goshawk , &c. not like Platers Case , 5 Rep. 35. And 2. It was held good , though be shews not that the Hawk was reclaimed , because it is in an Action of Trespass . And not like Spencers Case , 14 Eliz . Dyer . For there it was an Action of Trover and Conversion , which lies onely of an Hawk reclaimed , and which are known by vervels , bells , &c. whereby notice may be taken of her owner . Judgement pro quer .

Farrer against English , fol. 19.

Assumsit . Declares , whereas in consideration the Plaintiff would accept 12 l. 10 s . of the Defendant , in discharge of all accounts between the Plaintiff and this Defendants Brother , and seal an acquittance to the use of his brother , the Defendant promised his brother should seal the like to him . And in fact says , he did accept the 12 l. 10 s . &c. and seal'd , &c. and that the Defendant hath not procured an acquittance from his Brother . Found for the Plaintiff . And the Defendant moved , That there is not a sufficient consideration why the Defendant should give this money ut supra . But not allowed . Court , He paying , and the other accepting is enough .

2. Because he alledges he gave a general acquittance , but shews none to the Court to judge the sufficiency .

3. Because it is said to be delivered to a stranger , who would or could not deliver it to the party himself . Crook for these two last , held the Declaration nought , but the other Justices contrary . For they said it was good , after the Plea wherein he denied the promise , but not performance . Hobart , If they had demurred because he shewed not the acquittance orherwise . Judgment pro que .

Whyte against Rysden ,

Action Case . The Plaintiff had lent the Defendant his horse from L. to Exon , and there to be safe delivered , &c. The Defendant did misuse his horse , and he demanded him of the Defendant at Exon , and he refused , but converted the said horse to his own use . Found for the Plaintiff , dam . 10 l. Moved in Arrest , that the Declaration is nought to joyn all these Torts in one Action . Also the Tryal ought to have been at L. where the beginning of the bargain was , and not where the conversion . Also , intire Damages is not good for all these Torts . But resolved , The Tryal good , and Damage well assest .

1. The Tort was , the not delivering according to bargain , and then refusing that , and converting , he may have action for both , and together . But had he demurred to the doubleness of the Declaration , otherwise . And so the Tryal is good , and Damages well assess'd Judgement 7 Rep. 1. Bulmers Case .

Castle against Hobs . T. 21 Jac . Rot . 2827.

It was resolved , that where the King is deceived in his Grant , nothing passes from him , and the Grant void . For here the Rents and Services were granted , which are intended free-hold . And there being none such , the Grant meerly void . 5 Rep. 97. Goodales Case .

Smith against Tinderstal .

A man purchases Lands to him and his wife , and their heirs , afterwards ( without his wife ) lets this Land for sixty years to another , if they two lived so long . The Baron dyes , if this Lease shall binde the wife by 32 H. 8. cap . 28. Because she was no party to the Indenture was the question . Yelverton , Harvey , and Crook , conceived that it bound the wife . But Hobart doubted . It was after ended by Arbitrmeent without Argument .

Hodgekinson against Whood . T. 19. Jac . Rot . 596.

One seized of Soccage Lands in fee , and had issue by several venters . F. and W. devises this Land to F. to the use of himself for life , after to his heirs males , with divers Remains over . Afterwards makes a Lease for thirty years to W. to commence after his death . And so dyes . Lessee enters , and surrenders his term to F. who enters and assigns that term over , dyes without issue . W. enters as heir male , and makes a Lease to the Plaintiff .

1. Whether this Lease made to commence after his death , ( so to begin when the devise should inure ) were a countermand of the devise totally , or quoad the term onely , and shall stand as to the Inheritance .

Resolved , no revocation of the Inheritance , but the Term , because they may stand together , and the intent is not expresly changed . Cook and Bullock , 2 Jac . one devised Land to his sister in fee , and after made a Lease to her for six years thereof , to begin after his decease , and delivers it to a stranger to her use , who delivers it not to her till his death , who then refused it , and claimeth the Inheritance . Resolved , because both made to one and the same person , they could not stand together ; but if made to a third person , otherwise , 41 , 42 Eliz . Com . Banc . Coward against Marshal , one devised his Lands to one in fee , after devises the same to his wife for life . Resolved , both these devises may stand , and as one will .

The second point , Whether devise to F. and his heirs males , and for want of such Issue , the heirs males of the Devisor , and the heirs males of his body , and for default , &c. to the right heirs of the Devisor were a limitation in tail to the heirs males of the body of the Devisor , so as W. might claim ut supra . Adjournment . After adjudged for the Plaintiff .

William Plat against Plummer M. 20. Jac . Rot . 17. 59.

1. Quest . Whether a Copyholder who comes to his Tenement by surrender of the Lessor , be such an Assignee as may have an Action of Debt or Covenant by the Statute , 32 H. 34.

2. Admitting he be not within the Statute , whether by the Common Law ( Covenants being made by express words with the Lessor his Heirs and Assigns ) the Assignee for these Covenents may maintain his Action . Finch , pro que . Crawley pro Defendant . Adjournment .

Knight against Harvey , Administrator of Harvey . H. 22. Jac . Rot . 635.

Court ordered after Imparlance , and the Declaration and Plea entred , where Declaration was Anno 20. Regis nunc , to amend it , and put in Jacobi .

Sir Ed. Cook Sheriff of Buck . Case ,

He took some exceptions to his Oath , which were resolved by all the Judges .

1. That he should seek to suppress all Heresies and Errours , called Lolleries , and should assist the Church Ministers , which they conceived fit to be omitted out of the Oath .

2. To return reasonable Issue . They thought convenient in his Oath .

3. That he should return all Juries of the nearest and sufficientest persons . He excepted and said , the under-Sheriff did that . They said it is not so strictly intended that he himself should return . But it ought to be intended that he himself . For the Law says , qui per alium facit , per seipsum facit .

4. That he should cause the Statute of Winton , and that against Rogues , &c. to be executed . For the first he said is taken away ; for the second , it belongs to the Justices . To which they said , That although Authority be given to the Justices , yet it took not away the Sheriffs right , who is the Publique Conservator . And also , that this had been an Oath continued and appointed divers years by Stat. And so they delivered their opinions .

Sir R. Udal against Tindal , Recor . H. 22. Jac . Rot . 733.

Trespass for taking wood . Upon a special Verdict it was found , If wood be minutae decimae then for the Defendan● . If not for the Plaintiff . It was urged , that wood sown in a field is not minutae , 3 Jac , Herttman and Boxley . But to the contrary , Dean and Chapter of Norwich , Pas . 43 Eliz . was cited . But all the Justices resolved , That wood growing in nature of an herb , the tythe thereof ought to be reputed for minutae decimae . Judgement accordingly .

Mary Peacock Executor of Ri . Peacock against Steere ,

In Ravishment of Ward , it was found for the Defendant , the Issue being upon the Tenure . And it was questioned upon 4 Jac . cap . 3. Whether the Plaintiff shall pay any costs : Because she counts that she brings her Action upon her own possession . Hut . Harvey , and Crook held , that the Defendant shall have no costs . Yelver . Econt . ve M. Jac . Goldsmith and Lady Plat . M. 3. Jac . Havers and Dacre . M. 38. 39. Eliz . Fetherstone and Aylybard .

T. P. Anno 2. Car . Com . B.

Camp against Barn ,

FOr words against a Shoomaker , He is a Bankrupt Rogue . Adjudged Actionable . For the word Rogue does not extenuate Bankrupt . And a Shoomaker is such a person within the Statute of Bankrupts . For he lives by buying and selling , and not upon his Manual labour onely , as Husbandmen , and the like .

Foster against Smith ,

In consideration the Defendant was indebted 7 l. he promised , &c. upon non Assumpsit , it is found against him . Moved that the Declaration is nought . He shews not the cause of the debt . And though it is found against him , the Declaration being nought , the Verdict aids not . Judgement pro Defendant .

Anne Smith against Anne Lady Executrix , &c.

Resolved , That where the Writ and Declaration is Anne Executrix of Sir W.W. & the issue Record and venire accordingly for a Tryal . & although ( upon the Tryal by a Nisi prius Writ in London ) the Writ of Habeas Corpora was to have Corp. Jurat . &c : between Anne Smith , and the Lady Anne Wade Executrix of Sir Henry . Yet it was but the fault of the Clerk , and may be well amended :

Swain against Rogers . Exchequer

Upon Battery . The Court need take no notice of the General Pardon , unless the party demand it ,

Smith against Richardson . Exchequer , fol. 33.

If the Jury finde less damages than the words of the Declaration import , it is not erronious , being in disadvantage to the Plaintiff , and not material . For the Declaration being . ducentas centenas & dimidium , &c : Anglice , two hundred and an half . The Jury giving according to that rate , so as there is no prejudice to the Defendant . And the Issue being non Assumpsit , and found as is alledged . Good .

A Case propounded hanging in the Court of Wards ,

Two Joyntenants to them and their heirs , one makes a conveyance to the use of himself and his wife for a Joynture and advancement of his son . If this be within the Satute 32. and 34 H. 8. for the King to have a third . The words of the Statute are , If any sole seized , or seized joyntly with others , &c. There the King shall have a third upon such conveyance . But where two are joyntly seized ut supra , and the one makes a conveyance , this is out of the Statute 32 : H. 8. Butler and Bakers Case , 3. report and so resolved in Cur . Ward .

Another .

The same time another question was resolved ; Judgment given in Debt in Wales against a Defendant there inhabiting , who dyes intestate . One in London takes Letters of Administration : Whether execution may be in Wales , or that the Record may be remov'd by Certiorare into Chancery , and sent therehence by Mitimus into the Kings Bench : And agreed by Justices , it could not ; For he may not have a Scire facias in any Court , but where the Judgement was given .

Crane against Crampton .

Upon promise to pay you so much at the day of your marriage , It was said by Hutt . Harvey and Yelverton , that he need not shew in his Declaration , that he gave notice of his marriage before he marryed , but that the Defendant is bound at his perill to take notice : and a postea requisitus serves without shewing the day of the request . Crooke doubted thereof , for there was a president , that for not alledging notice Judgement was reversed , Notwithstanding Judgement for the Plantiff .

2. Car . Com . Banc .

Cryps against Grysil , 10. Car . Rot . 1932 ,

IT was adjudged that these words in a Will in writing ( all my Mortgages ) make a good devise of the Lands Mortgaged .

Reymund against the Hundred of Oking ,

In an Action upon the Statute of Winton , the Servant was rob'd , and the Master brought the Action ; It was urged that the Master ought to sweare that he knew none of the Thieves , as well as the Servant : because by 27. Eliz . he that brings the Action should sweare , but that was over-ruled ; And adjudged that the Master may well bring the Action , and the Servant who was rob'd a good Wirness . Cooks Entryes , where the like is brought by the Master , and the Servant sweare ,

Sir Robert Bannisters Case .

A Parson leases his Rectory confirm'd by Bishop and Patron succeeding , neither of them Bishop or Patron at the time of the Lease resolv'd good , 5. report 15. Newcombs Case .

Aylesworth against Chadwell Exchecquer ,

This Error was assigned upon a Judgement in debt , the parties being at issue , the awarding the Roll was of ave . fa . ret . die Mart . post Crast . Pur . and the venire was ret . die sabb . post Octab . Pur . And another , that the return of the venire was before the Teste , but by the Court , being a judiciall Process , and the fault of the Clerke , amendable .

Browne against Tayl●r , H. 22. Jac . Rot . 1669.

One seized of Lands in capite infeoffs Spencer , & alios to the use of himself for life , and after to such persons and such uses , as he should appoint by his Will ; He makes his Will and devises that his Tenants shall enjoy their Farms 20. years after his death , and the rent of his Land to R. for life ; and devises to his Wife all his Land in &c. for life . Agreed that they shall take by the devise and not by the declaration of Uses ; For after the feoffment he had a qualified fee in him as owner , and so as he may make his Will , and devise the rent , and likewise the Land being held by Knights service , the devise is void for a third , that here when he makes his Will without reference to the Feoffment , the Law construes it , as the Will of one who is owner , and may so dispose , and not as a Declaration of Uses which is an Authority only ; And declaring that his Tenants shall hold their Farms &c. cannot be but by Declaration . Three Justices held , that he could not dispose of the Rent , by reason of the said Words , but the Estate only 6. rep . 17. 18. 10. rep . 85. Lowes Case .

M. 2. Car . Com . Banc .

Love against Plater , P. 2. Car . Rot . 386.

FOr words against an Attorney , Thou art the dishonestest Attorney in England , and if any be more dishonest than thou art , he deserves to be hanged : mov'd in arrest of Judgement ; He does not say he was dishonest in his practice as Attorney : and doth not averre there were dishonest Attorneys in England . Thou art as very a Thief as any in England ; No Judgement , because he did not averre ut supra . Cur . advis .

Windsor against the Inhabitants of Farnham .

A decree made by Commissioners upon 43. Eliz . for charitable uses , & upon exceptions in Chancery , and there examined , heard , & confirmed in part , & altered in part : cannot be reexamined upon a bill of Review , because it takes it Authority by Act of Parliament , and that mentions but one examination , and so upon 37. H. 8.

Tutter against Inhabitants of Dacon and Casho T. 2. Car . Rot . 1717.

Upon the Statute of Winton , and 27. Eliz , 13. of Hue and Cry , upon Not guilty pleaded found against them , after moved in arrest &c. because notice is alledged to be given at S. which is in another County , and he saith prope Hund . ubi rober . &c. and not prope locum ubi &c. according to Statute 27. Eliz . T. 30. Eliz . rot . 1425 H. 36. Eliz . rot . 506. The words of the Statute 27. Eliz . were insisted on , but on view of a president , 5. Jac . New Entryes 348. where such an Action was brought against the Hundreds of Longtree and C. and the robbery alledged to be at T. in divisis Hundred , predict . and notice , and Hue and Cry alledg'd to be at another place in the division of the said Hundred adjudged good . And the Court adjudged the first Action good , P. 21. Jac . rot . 488. Banco R. Foster and the Hundred of Spelthorn and Istleworth , where the like was adjudged good : the robbery at B. prope devis . &c. and notice at H. prope devisis Hundred predict .

Bowden against Malster , T. 18. Jac . rot . 1051.

Copyholder in Fee surrenders to the use of his Will who devises in Tayle ; The question was , when a Copyholder in Fee surrenders to the use of one in Tayle , being no custome to warrant , whether it be a Tayle by the Statute W. 2. devis . condic . or a Fee-simple conditionall at Common-Law ; Yelverton held it was an Estate Tayle by the Equity of the Statute ; For all Statutes wherein no prejudice accrews to the Lord or Tenant by alteration of any interest , service , &c. there the generall words of such Acts extend to Copyholds , Statute of Merton extends to Copyhold Lands , West . 2. cap . 3. extend to Copyhold Lands , 32. H. 8. cap . 9. against Champerty , 28. cap . extends to Copyholds 4. rep . 26. 30. For he said were not Copyholds within donis Cond . a Formedon in discender would not lye of Copyholds ; And he said that here the Copyholder might well hold of the donor 11. rep . Nevills Case , and hold over of his Lord : and he said that an Intaile here might be cu● by a recovery in the Mannor Court , 23. H. 8. Kir . recocery 27. & 19. H. 6. 64. 26. H. 6. 6. Plowd . 59. Litt . 16. Plow . 2. 15. H. 8. 24. Dyer . 192. Old book . Entrys , 129. But Hutt . Harvey and Crooke to the contrary , and that it was a Fee-simple conditionall , and not within donis condit .

An Elegit extends not to Copyholds , 27. H. 8. cap . 10. extends not to Copyholds , 31. H. 8. cap . 32. H. 8. 32. whereby Joynt and Tenants in Com . compellable to make partition extend not to Copyholds , 32. H. 8. 28. extends no● , and the reason is because it will be prejudiciall to Lords .

2. They held that in respect of the baseness of their Estate , the Statute never intended a remedy for their alienations nor them . And the intent of the Statute was , no Estate to be entayled , but such as might be given by Deed , such are not Copyholds : and then also because Copyholders at the time of the making the Statute were Tenants at will of the Lord .

3. If Copyholds might be intayled , a perpetuitie of such Estates would be maintained , for a Fine cannot be levyed to barre the intaile , nor a recovery .

4. Lastly they held that neither Estate tayle , nor af●er possibility of issue extinct , can be allowed : For before that Statute all Inheritances were Fee conditionall . But the generall opinion of all the books were , that an Estate in Copyhold Lands so limited to a man , and the heirs of his body , is a Fee-simple conditionall at Common-Law , and so adjudged .

Richard Hodges against Meyse and Scriven .

Upon a recovery in debt of 200 l. in a Court of pypowders held , secund , consuet . civit . an Action is now brought for suffering the party in Execution to go at large ; Verdict for the Plantiff mov'd in arrest of Iudgement .

1. He sets not forth that the Court is held by Custome and Charter , and then their process void .

2. Because a pypowder Court holds not pleas but for battery's or contracts in market and not debt , 10. rep . 77. 8. rep . 133. Judges conceiv'd , the Court being stiled , a Court of Pyepowder , which is incident to Faires , &c. shall not be intended a Court unless shewn to be held by Patent &c. And here the Sheriff who is to take the advantage ought to shew it ; As Stewards when they make Certificates out of inferiour Courts , ought to shew how the said Courts &c. And these words here secund . cons . &c. being in the imparlance Roll , and the omission in the issue Roll being vitium clerici might be amended ; Judgment pro quer . 13. E. 4. 8.

Baldry against Packard , T. 2. C●r . rot . 617.

It was urged , if the generall pardon discharges the offence which is the Princip●ll , that the costs thereupon are discharged ; The Case was this , there was Defamation sued before the Commissary of the Bishop of U. where there was sentence and costs taxed , Defendant appeales , and the generall pardon was pleaded , which pardons this offence , and the first sentence was reversed , costs were given to the appellant . A Prohibition was prayd . Resolved by the Court no Prohibition ; For although the pardon hath discharged the offence of Defamation quoad any punishment , yet in respect of the costs which be not discharged by the pardon ( being assest before the day to which the pardon relates ) Cooke 5. fol. 51. A consultation was granted , and they may in the appeale assess costs upon the reversing the first sentence , because it appears there was an undue vexation .

Bishop Chich against Freedland , P. 1. Car . Rot . 607.

The Bishop was seized of a Parke in Fee jure Episc . and granted the Office of Parke-ship to the Defendant , and for the Execution thereof 3 l : 6 s . 8 d . with livery of 13 s . 4 d . yearly , with Pastureage for two Horses , and windfalls in the Parke , with clause of distress for 3 l. 6 s . 8 d . and the livery of &c. in all the possessions of the Bishoprick , which was confirmed by Deane and Chapter , for non payment of the said Rent , the Defendant distreined and avers the Office and Fee to be ancient , but makes no averment for the residue ; The Plantiff in Barre confesseth the grant and pleads 1. Eliz . that the Pasturage never before was granted , that the Granter dyed &c. & that the Plantiff was Bishop , Upon demurrer , it was argued by Hutt . and Yel . that the grant was good for the Office and Fee , and here the two grants being distinct and not mixed , that it may be good for one , and void for the other . Hutt : said if the Bishop had granted the Office and Fee for him and success . and the Pasturage during his being Bishop : There no question but both had been good , The one is good against himself , the other against his successors : and here the one being void again●… his successor destroyes not the good , for utile per in ut●le non vitiatur , and 1. Eliz . allowes these kind of Offices to be grantable , and the reasonableness of the Fees the Court adjudges , H. 10. Jac . rot . 758. C. B. Bishop Elyes Case , who granted the Office of keeping his house , &c. with the Fee of 3 l. for life , confirmed by the Deane and Chapter , adjudged good against the successor : But had he granted in the first Case the Office for life , and for the better executing thereof these Fees , viz. &c. The grant here were void in all being put both in one sentence , but here in severall , and the one not depending on the other , otherwise , So conceived Judgement for the Avowant . Harvey and Crook contrary , 1. Eliz . was made for the Successors benefit , that their possessions might not be impoverished , 10. rep . 61. A grant of Rent , pro consilio imp●nd . is restraind by the intent of this Act , Dyer 370. 5 : rep . 15. The grant of Ancient Offices are allow'd , but they ought not to be with new additions , as a new charge upon the Successor . If an Office usually granted for life be granted for two , or for life , reversion for life , and confirmed by Deane and Chapter , it is void against the Successor in all . Moneys Case , 5. rep . 4 : Lease for years of Land usually demised , and of other Land not demised before , reserving the ancient Rent for the Land usually let , and 12d . for the other , adjudged not a good Lease ; And they said the first appears to be one intire grant , But had they been on other considerations granted , then otherwise , 8. rep . 49. 39. Assize 4. Therefore they conceiv'd the grant being of more than usually granted , was void in all , ab initio quoad the Successor .

Eyres against the Executors of Eyres in Chancery .

Resolved by the Civilians and Common Lawyers , That where there is an absolute and formall Will , made in the Testators health , and he falling sick makes some other bequests than in the former Will , if there be no mention made of his former Will , nor no direct speech of the revocation of that will , it shal stand good , and they said there was a canon express , that there cannot be a revocation of Legacies amongst Children , without express and precise mentioning the first Will , and the Legacies given thereby , and the Law is taken when he hath no Children , and devises Legacies to his Brothers . ( as in the Case at Barre ) without express words and misdemeanor in them , to provoke him to revoke , it shall be good , To which the Lawyers agreed .

Bowell against Plunket Eschecquer .

Error , Upon a Judgement for these words , spoken by a feme Covert , Mr. Plunket did steale my Plate out of my Chamber , Error assigned , That the Declaration was nought , for a feme Covert cannot have Plate but t is her Husbands , and so the words in sensible , but resolved the Action lies , and Judgement affirmed .

Morris against Fletcher , Eschecquer .

Error upon Judgement given for a Promise , that in Consideration the Plantiff would marry his Daughter , he would pay for the Wedding-Apparrell &c. The Plantiff alledged he marryed her , and bought her two Gowns , and two Petticoats , The Defendant demurres , and Judgement is given for the Plantiff ; Errors assigned . He ought to pay only for one Gown and Petticoate , and intire Damages being given , t is Erronious , but agreed , That wedding Apparrell is taken , for what shall be used on that day and some dayes after to the persons dignity , therefore good .

2 The second Error , Defendant appeared by I.G. his Attorney in Octab . Hill . whereas he was dead before .

3. The third , the Writ of Enquiry was awarded on Monday , post . Quind . Hill . 10. Car . and the Sheriff returns the inquisition 27. Jan. which was after the day of the return , but because 't was not assigned on the Record , the Court took no Conusance , Judgement affirmed .

Davie against Hawkins , Eschecquer .

The Defendant justifies in tresp . For that one W. Birch . was seized in Fee of a Tenement , &c. and he and all those whose Estates &c. The said Edw . Davie had &c. ( mistaking E. Davie , for W. Birch . ) Plantiff replyes and traverse absq . hoc . that predict . Birch . and omnes quorum Stat. predict . Edvard , &c. Thereupon issue joynd in the same mistake , and Judgement given for the Plan●iff . Error assigned that it is a vaine prescription , and none ought to prescribe in the party , in whose right common is claim'd , in him or his Ancestors , &c. And alledging aque Estate in the party is repugnant , and so by consequence the Verdict is void . But 't was moved to be misprision in the Clerke , and the Defendant may not take advantage of the insufficiencie of his own Plea , Dyer 260. 11. H. 72. But agreed by all , not to be mended , because it is in matter of Substance in all the proceedings , Judgment reversed .

Player against Warn , et alios Eschecquer .

Upon trover and conver . of 2000. load of coales , Defendants were found guilty for severall loads , and severally not guilty for the residue : and intire costs , & one Misericordia against Defendant , and one Misericordia against the Plantiff pro falso clam . and Error assigned , because the Judgement was against both Defendants for the severall damages , severally , there being a Joynt trover laid to their charge , they ought both to have been found guilty , and not divided in the Verdict , and damages , Sir Jo . Heydons Case , 11. rep . 5. 44. E. 3. 7. But they all agreed , that the Plantiff should have severall damages , and not like to Sir John Heydons Case , And here being the Trespass is severall , and so found , the Plantiff shall recover accordingly : And it was resolved , upon the second Error , that there shall be one Judgement only , of Misericordia , though the Defendants be severally found guilty , 44. E. 3. 6. 6. & 9. H. 6. 2. 22. Ass. 76. Judgement affirmed .

Sir John Bennet against Dr. Easdale .

An Assize for the Office of Chancellorship ( by Sir John Bennet ) of the Arch-Bishop of Yorke : Defendant endeavoured an injunction out of the Starre-Chamber , and shews that the Plantiff was for bribery by sentence censured , and imprisoned and fined 20000 l : and made incapable of any Office of Judicature : on a day given to Bennet to shew cause , he produces a pardon from the King , which pardoned all but the Fine : Resolved by the Judges , that this pardon took away all the force of the sentence , except the Fine ; And that the sentence never took his Office from him , but only the Execution of it . If before the pardon he had been appointed to execute his Office , and he durst not , peradventure the Bishop for non attendance might have seized it .

Hill . 2. Car . Com . Banc .

Herne against Allen , T. 22. Jac . & H. 1. Car . Rot . 1876.

Upon this Case two questions were .

First , if in a devise of a messuage cum pertinentiis Land passed and the Court said , that Land did not pass , because by the words cum pertinentiis Land passeth not , but only such things which properly may be perteyning ; otherwise if it had been cum terris pertinentibus . Plowd . Hill and Granges Case , 23. H. ● . 6.

2. Whether the devise of his house with the appurtenances to his Son and his Heirs for ever , and for want of Heirs of his said Son , then to Anne Keene his Daughter , and to her Heirs for ever , and for want of such Heirs to his Kinsman John Keene and his Heirs for ever , whether this be an Estate Taile in the Son , and the remainder in Anne the Daughter , or a Fee-simple in the Son , and the remainder void . For it was agreed , had the remainder been limited to a meere Str●nger , the first Estate had been a Fee , and the remainder void , 19. H. 8. 29. H. 8. Dyer 33. Richard , Hutton , Harvey conceived it to be a Fee , and no Tayle , and the Remainder void . Yelverton and Crooke the contrary , 10. rep . 59.

Smith against Ashex his Wife .

Debt due by the Wife dum sola , the Baron is outlawed , and the Wife waived before the return of the exigent , an Attorney procured a Supersedeas for the Wife , surmising she had appeared by him , It was mov'd that this appearance might be received . The Court said , if upon the Exigent the Sheriff had returned a redidit , or upon the plur . cap . a cep . corp . her appearance should be entred , and the Exigent issue only against the Husband , but he is return'd ourlawed , it shall be entred ales sans jour . for the Wife ; There the Exigent being returned against both to be outlawed , the Supersedeas supposing the Wifes appearance is void ; see . 40. E. 3. 34. 43. E. 3. 18. 14. E. 3. 1. 3. H. 6. 14. 34. H. 6. 29. 14. H. 6. 14. Dy . 271. 11. H. 4. 71. & . 89. 9. E. 4. 23. 18. E. 4. 4.

Sir Hen . Mildmays Case , Eschecquer .

It was resolved , that where the Plantiff brought Error only as Administrator , and the Judgement against him , was not for his proper Debt or Case , he should not be forc't to put in Bayle , and that he is out of the intention of the Statute , 3. Jac . cap . 8. though within the words , ruled so .

Sir Charles Howards Case , Eschecquer .

King James grants by his Letters Patents , under the Great Seale officium custodis of a Parke to Sir Charles , Habend to him the said Office cum omnibus vadiis feodis Wind-falls , Commodyties , &c , Et pro consideratione predict . a Fee of 30 l. per annum , issuing out of all the Kings Mannours in that County ; After King Charles by his Letters Patents under the great Seale , published his pleasure in disparking it , and grants all the Deere to Sir Richard W. with liberty to carry them away &c. First , if by these Letters , &c. The King may dissolve the first Patent . If so then , Secondly , whethet the Keepership be determined , and if he may have any remedy for the casuall Fees . Third , admitting Park dissolv'd , and Office determined : if the 30 l. per ann . be determined , and the Justices and Barons all agreed , that the Park is well dissolv'd , and all the Deere destroy'd , and no more accounted a Parke , which consisteth of Vert and Venison , and Inclosure , Withers Case , 6. E. 6. Dyer . 71.

2. They held that the Office ( upon the first dissolution ) determines , for there is no●hing to be Keeper off . but otherwise of a grant for life or years , of an Office , as in the 31. H. 8. grants Brok . 134. 34. H. 8. grants 93. 18. E. 4. 9. but take away the Deere , and the Keepership falls , for cessante causa cessat effectus : If one grants the Office of Steward with the Courts profits ; If ●he Mannour be destroyed , the Office and profits determine .

3. Admitting these they all held ( except chief Baron ) notwithstanding that the 30 l. per ann . Fee did not determine , because t is granted by a distinct clause , and because the Office determined by the granters Act only ; He shall have the Annuity , 5. E. 4. 8. 7. E. 4. 23. Plow . 457. & 381.

Sir Greg . Fenner against Nicholson , Et alios H. 22. Jac . rot . 239.

The Plantiff brings a Quare Impedit against Nicholson Passfield and Bishop of London , as Ordinary for the Church of C. and shews Sir T.M. was seized and presented Passfield , and let the Mannour to which the Advowson is appendant to the Plantiff . The Church became void by pas . resign . so it belonged to him to present , Bishop pleads as Ordinary , Passfield intitles by presentation as to Advowson in gross , and traverse append . Plantiff takes issue , Nicholson pleads under the King , and confesses the title of Sir T.M. and the Lease abovesaid , pleads over , Sir T.M. pro quadam . pec . summ . presented Passfield , and pleads 31. Eliz . cap . 6. It was urged that the plea was nought , and not shewing what summe of Money was given , is not good . But the Pourt , The plea is good : For the plea makes the traverse but argumentative , that he might not resigne ; and being alledged the Church is void , per mort . vel resignat . it ought to be confessed or traversed , and the issue ought to have been taken si vacavit per mortem vel &c. Dyer 376. Cooks Entrys 499. Says Case , H. 15. Jac . rot . 2091. Paschall● Case ; Simony alledged , and presentment of the King therefore , &c. Vacancy per mort . traversed . So M. 2. Car . Entrys , 485. 490 : 511.

Fotherbyes Case .

A Prohibition was granted where the Ordinary would force the Administrator to make distribution , Hutton by 31. E. 3. c . 11. The Ordinary is compellable to commit Administration , but hath not the other power : Nor after Administration hath no more to meddle with it . At this day Administration duly committed by the Ordinary , cannot be repealed : and if there be a Suit for that end , a Prohibition lies , and in the Case , in question , & divers Prohibitions had been granted in the like Case , Clarks Case , M. 20. Jac : rot . 2196. Administratix being bound in 2 0 l. to the Ordinary to make true Administration , perfect accompt , exhibite a true Inventory , and to distribute the surplusage after debts paid , &c. at the Ordinaryes appointment , after being sued , a Prohibition was granted , T. 14. Jac . by the Court , then , H. 9. Jac . rot . 160● . for Wats .

Sydley against Dr. Moundford Eschecquer .

Upon Error , Parson sued for Tythes , and shews that he was long before the time when , & predict . tempore quo &c. Parson of Tewing , and that the place where , is within his Rectory , and the tythable places thereof : and that the Defendants Lessee , Plowed , Sowed , and set out the Tythes , and the Defendant in jur . sua &c. took them away ; Error assigned was , For that he alledged he was Parson tempore quo &c. and at the time of the tresp . supposed , & diu antea , but says not that he was Parson at the time of the severance of the Corne : and then no sufficient Title : but the Court agreed it to be good enough ; For it is antea & tempore quo fuit Parson & adhuc est , &c. It is enough intended he was Parson at the time of the severance , Judgement affirmed , non obstant . 35. H. 6. 48.

The Earl of Lincolns Case , Starre-Chamber .

All the Judges gave their opinions , that Lords in Cases Criminall , especially where the Kings party ought to answer upon Oath , and where they are to be Witnesses between party and party , and Presidents were , where they have been impleaded in Chancery , Starre-Chamber , or Court of Wards , they answered upon Oath ; For no remedy against a Peere speaking upon his honour , but if upon his Oath , 5. Eliz . cap . 9. of Perjury , may reach him .

Lord Morley and Bishop of Chichesters Case , Starre-Chamber .

Lord Morley and another exhibit a scandalous Bill against the Bishop , and it was moved for the Bishop , because scandalous to be taken off the file , which was ordered unless cause shew'd : no cause , the Plantiff fined 100 l. to the King , and 100.l . damages to the Bishop , a year before the Bishops said motion , came the generall pardon , which pardoned all offences ( not treason ) The Plantiff prayes benefit of the pardon , and to be discharged of the partyes costs ; Beverly and Poyers Case Jac . was cited , and resolved that the pardon took away fine and costs , it intervening betwixt bill and sentence .

Langham against le Feme de John Brewet ,

That a Feme sole Merchant by the custome of London , shall be sued , and her Husband named in conformitie . A Feme sole Merchant is one who trades by her self in one Trade which her Husband doth not meddle : and if Judgement be given against him , Execution against the Feme , M. 29. H. 6. rot . 344. she may be a Feme which trades in London , and not a sole Merchant .

March against Culpepper Et. up .

The wife dum sola fuit knowing that her former husband was indebted to the Plantiff , and which likewise appeared upon a view of the account , look'd over by the friends in consideration of the Premisses , promised the Plantiff to pay him the said money , part at the end of Michaelmas Terme next , and residue in reasonable time after ; Plantiff in fact says , she hath not paid ut supra dum sola , nor the Husband , and she since the covert . Found for the Plantiff : mov'd in arrest , no suf●icient consideration shewn to ground the Action , but all agreed a good consideration , and breach of promise good cause of Action ; for the promise to pay at two dayes , implyes that in the interim , Plantiff should forbear his suit , Judgement .

The Souldiers Case .

If a Souldier receive press-Money to serve in the Kings Wars , and be inrolled and taken pay , and delivered amongst other Souldiers to a Conductor , and he run away without lycence , if this be not felony resolved by some of the Judges not , either by 7. H. 7. cap . 1. or by 3. H. 8. cap . 1. which name only departure from their Captain , a speciall named Person , but the other said it was Felony , and Conductor is a Captain within the intention of 7 , H. 7. & 3. H. 8. Another question was , how this Felony should be tryed , whether by Justices at Sessions , or of Assize , and of Oyer and Terminer , therein no resolution . The greater opinion Justices of Oyer and Terminer .

T. 3. Car . Com . Banc .

Wilcocks against Bradwell .

IT was agreed , that in Suits in the Universities upon view of the Charter of Oxford , that if a Scholar be una partium , it shall be tryed in the Vicechancellors Court , and no Prohibition would lye here , the plea being not of a frank Tenement ; For it will hold plea of all other Actions

Jeromes Case .

An Attorney for prosecuting of severall Actions , every one above 4 l. and so Fineable to the King , and entred Judgements thereupon , without Originalls ever being filed ; He himself keeping the Kings Fine and charges of Originall , upon discovery , ( and because it was voluntarily done ) was put out of the Roll , turn'd over Barre , and committed to the Fleet , but no Fine quia pauper . 20. H. 6. 37. 30. Eliz . Osbast . Attorneys Case .

Turner against Palmer ,

In a Quare Imp●dit , ad presentand . ad Ecclesiam de watton , and before the Defendants appearance 't was mov'd to mend the Writ , For his title was to the Vicca●idge , and the Court doubted if it were mendable ; For presentand . ad Eccles . intends right of Advowson of the Parsonage , and there is a speciall Writ for the other , F. N. B. 32. 15. Eliz . Dyer 3 23. But being a misprision of the Clarke , ordered to be amended .

Whitacres against Hamkinson , H. 2. Car .

Two bound joyntly and severally , One is taken in Execution upon a recovery of the said Bond , and the She●iff permits him to escape : No plea to bar the Plantiff of his remedy against the other ; for Execution without satisfaction no Barre ; but had the other Obligee pleaded , the Sheriff voluntarily permitted him by the command or lycence of the Plantiff to go at large : it had been a discharge , and might be pleaded in Barre , and the Demurrer to the fi●st plea judged good .

Thoroughgood and Jaques against Collins .

Adjudged th●t these words in a Devise to them and thei● H●irs of L●nd , part and part like , and being in a Will , makes a Tenancy in Common , and not Joyn-tenancy .

Eve against Wright , H. 1. Car . Rot . 732.

The question in Law was , one being Lord of the Mannour , and a Colledge seized in Fee of the Mannour of the Rectory , and both prescribed to hold a Court-leet ; whether one being a Resiant within the Leet of the Colledge , may be said to be a Resiant within another Leet , and so chargeable to two Leets ; And whether one may have a grand Leet of all the Inhabitants within a Vill . and another h●ve an Interiour Leet of some of the Inhabitants within the same Vill . But the matter in Law was not debated by the Justic●s , vid. 13. E. 7. Leet 7. 21. E. 3. 3. 18. H. 6. 12. Entrys 50. M. 18. Jac . Banc . R. Cook and Stubs .

Chapman against Chapman , Eschecquer , T. 2. Car . Rot . 483.

In Debt on a Bond for performance of Covenants ; Defendant pleads generally performance of all , Plantiff replyes , and shews he p●id not the Rent such a time , but shews no demand ; Defendant demurres , adjudged for the Plantiff . Defendant assignes Errour : That because the condition is generall for Covenants , he ought to alledge a demand for the Rent , it being not particularized , 14. E. 4. 4. 22. H. 6. 52. But the Court against that ; For Defendant pleading performance of all , it shall be intended he had paid the Rent , and the Plantiff replying ut supra , needs alledge no demand , for then he dep●rted from his plea , P. 40. Eliz . rot . 106. Specot and Sheeres in C. B.

Rolt against Sharpe Eschecquer .

Errour upon a Judge●ent given in Assumpsit , Plantiff declared that he made for A.S. a Gowne &c. and the Defend●nt in consideration h● would deliver the Gown● &c. p●omised he would pay as much as it was worth , that he delivered it to A.S. and that it was worth , &c. Errour assigned ; First , he promised to pay , and not alledged to whom .

2. There is not any consideration to charge the Defendant , for he has no benefit by the delivery .

3. He doth not alledge he delivered them to A.S. her own p●oper use .

4. The promise to pay tant . quant . &c. is insufficient : But the Court held it good as to the first : It shall be intended to the Plantiff , for he made the cloaths , and the promise was to him to pay 4. E. 4. Obligation , Solvend , to the Obligor , shall in Law be a good Obligation to the Obligee .

2. The consideration is good , for the delivery of those things at the Defendants request is valueable .

3. That the delivery to A.S. at her request is good .

4. It is the usuall course to lay downe , that he should pay , tant . quant . and then averre the worth , Judgement affirmed .

Purcase against Jegon , Eschecquer .

Debt upon a Bond to pay &c. the 31. December , payment pleaded the said day , and the issue thereupon Verdict and Judgement for the Plantiff ; Errour assigned , because the Verdict being on ●he issue which is void , and so Verdict and Judgement nought : Court ; There being no such day as 31 of September , and they finding the money not p●id on that day , nor before , they finde in effect that it was never paid , a good Verdict , Judgement affirmed .

M. 3. Car . Com . Banc .

Claphams Case .

After an Habeas Corp. delivered to the Court at Guilford , a Supersedeas was granted where they proceeded in Debt upon Bond not made within that Vill . and that 21. Jac . extends not to i● , for that p●ovides against removing , by Habeas corp . where the cause of Suit arises within the Vill .

2. The proceedings ( by express proviso in the Statute ) ought to be before an utter barrister , and he to be present there at tryall , and no deputy unless such Barrister .

Oxford against Rivet T. 3. Car . Rot . 1684 ,

It was said by Crooke and Yelverton , that an Intendment shall not help a Replication to make it good , and an issue cannot be joyned but where there is a direct affirmative and negative , and where there is no issue joyned , the Verdict cannot help it , id v. postea .

Falkner against Bellingham , M. 22. Jac . rot . 49.

Replevin ; The Avowry was , that the Defendant made Conusance as Bayliff to the Lord of a Mannour , and of Chauntry Lands held by Rent and other Services , and after coming to the Crown by the Statute of E. 6. who granted them over by Letters patents . The Lord distreins for the Rent , urged against the Conusance , that they under whom he claimed were not seized of the said Rent within fourty years .

Whether this Rent be within the Statute of 32. H. 8. of Limitations , for if it be then no seisin being had within fourty years , he is to be barred of that conusance ; Yelverton , Hutt . and Richardson argued for the Defendant , that the Statute extends only to Rents services and by prescription , but Rents begun by Deed within memory , or were created quasi by an Act of Parliament , are out of the intent of the Statute ; For that intended only Rents whereof seisin ought to be alledged in an Avowry , and being alledged , binde the party , unless there be a Traverse , when an Avowry is made of a Rent created by Deed , or reserved by grant within memory , although seisin be there alledged , yet not that , but the Deed is only traverseable , 8. rep . 64. 10. rep . 106. So of a Rent created by Act of Parliament , and the Statute preserves the Rent so to the Lord , that as he hath loss , that he cannot have Escheats ; So he hath benefit that latches of time or seisin , although 100. years hurts him not : and it was compared to the Case of a Rent-charge by Deed , or a Rent granted upon Equality of partition , in Avowry for them , although seisin be alledged that 't is not materiall , If Judgement be of a per quae servitia , such Rent is out of the Statute , because there is a Record of it ; Harvey and Crooke said it was within the Statute , and that it is the same Rent as before , and parcell of the Mannour as before , 9. rep . And that this is not a new Rent created by ●0 . E. 6. appears , because this Statute saves only ancient Rents , 14. Eliz . Dyer . 313. 1. rep . 47. Plow . 563. 35. H. 6. 34. And this Rent , the beginning of it is not known , and therefore seisin must necessarily be alledg'd in the avowry , for it is the principal matter to be alledged in the Avowry 9. rep . 34. 22. H. 6. 27. H. 8. ● . Dyer . 107. 10. H. 6. 6. They concluded for the Plantiff , but by reason , the other three Justices were of the contrary opinion , Judgement for the Defendant ; but by Writ of Errour reversed ; vid . postea .

It was resolved that all Serjeants at Law , ought to be impleaded in the Common Pleas , for they are attendant ex officio on this Court . And Serjeant Headleys man being Arrested in London , obtained a Writ of Priviledge , which after much debate was allowed by the Steward of the Marshal sea . The Case of Serjeant Martin was cited . See copy of the Record , and Writ in the Reports .

In Debt upon a Bond , Defendant pleads acceptance of another Bond in discharge of the other , by the Court nought , M. 2. Jac . rot . 3272. In Debt , Defendant pleads acceptance of a Statute Staple , after day of payment , no plea , T. 41. Eliz . And so of a single Bill , a Feoffment of Land was pleaded ; no plea , 4. H. 8. Dyer . 1. 12. H. 4. 23.

Younge against Younge .

After Judgement , Record was removed by Writ of Errour ; Justice Jones admitted him to prosecute in omnibus Action ▪ and entred so upon plea Roll , and viewing it , quod concess . per Cur . 't was that the Defendant by such one his Guardian should prosecute , &c. and so the Remembrance ; and the Philizers Roll was , That I Younge , profers his Guardian , ad hoc admis . per Cur . &c. But there was no entr●… quod concess . est per Cur . &c. whether this is amendable , and to be inserted , Resolved it might well be amended , notwithstanding the Record remov'd by the Writ of Errour , for it appeared by Jones's note , that the admittance was of the Guardian , ad prosequend . But doubted whether admittance to sue by Guardian , where it ought to be by pro chein Amye was good , F. N. B. 27.

Kirtons Case , Court of Wards .

A question was , A man morgages Lands , that if he rep●y &c. to reenter , dyes , leaving issue a daughter , wife , being privement inseint of a Son , daughter pays the money , and after the Son is born , whether the Son shall enter upon her , or she retain it for ever , 1. rep . 99. That she shall retain , for qui sensit onus debet , &c. 9 H. 9. 21. If daughter enter for Condition broken , and the Son after is borne , he shall take no advantage : and so some of the Judges held : and she is in as a Purchasor , although intitled by the Condition , & as heir Rich● Doderidge held she was in as Heir , and the nearer Heir being borne shall defeat it : and she paid it at her perill ; Jones and Trevar inclined for the same .

Halleys Case .

Ejectment upon a Lease of a Messuage in Oxon . It was held that the Universitie Court could not by the Charter , 3. R. 2. 14. H. 8. hold Plea of this , because he is to recover the Possession , for they may hold plea of all Actions , Suits and Contracts , &c. personall , ( except Freehold ; ) A Record was produced where the Court allowed them to hold plea of Covenant , But Court held a difference between that and this Action : for there he was to recover damages only , but hereupon habere fac . possessionem , a Freehold may be recovered .

Whitmore against Porter .

Executrix de son tort , demesne , takes goods into her hands , and after another Administers to whom she accounts &c. and pays as much Debts as the Intestates in all came to ; an Action is brought against her as Executrix de son tort , &c. who pleaded plene Admin . Adjudged that she shall not be charged ; For the Administ . had fully satisfied as much as the goods of the Intestates came to ; but had the Action been brought before the Administ . had fully Administred , otherwise : for in her capacity of Executrix de son tort , &c. she is chargable untill satisfaction to the true Administrator , Judgement pro Defendant .

Kinaston against Moore , H. 2. Car . Rot . 450.

Errour assigned , because a Trover & Conversion cannot be of money in a bag , but all agreed that it well lies , for although alledged , money lost cannot be knowne whose it is : but Jury finding he converted the money ( for loosing is not material● ; ) For if he take it in the Plantiffs presence , he may be charged with this Action ; Judgement affirmed . This Action hes as well of money in bag , as corne .

Younge against Pridd . H. 2. Car . Rot . 778. Eschecquer .

Trespass for beating , &c. his Wife , and for detaining her half a year , per quod cons . & solamen quae habere potuiss . with his said Wife he lost , & al. enormia &c. ad damn . after Judgement Errour , and assigned ; Because he has brought this Action , and recovered damages for the Battery , and not joyned his Wife ; but Court . In this Action he recovers not damages for the Battery , but the loss he had in wanting her company , per quod cons . amisit , and for the Battery the Wife ought to have joyned to recover damages : And this Judgement and Action barrs her not of her Action after his death for the Battery , 17. Jac . rot . 107. 157. Hide and Scissor , Judgement affirmed .

More against Hodges .

Errour after Judgement upon Assumpsit to pay , &c. Assigned this , Issue was joyned Trin . 2. Car . and the ve . fac . bears date 4. May 2. Car . before the issue joyned ; but not allowed : for it is ayded by the Statute of Jeofailes .

2. The ve . fac . is returned sumonitus est , where it ought to have been Attach . est , but being but matter of forme not prejudiciall after Verdict .

Howell against Thomas , T. 1. Car . Rot . 158.

Errour in Ejectment , because in the Bill , Plantiff declares upon a Lease for 3. years , and the Plea , Roll , and Record of nisi pri . is upon a Lease of 5. years , and so Bill and Declaration varies , and a dimunition was alledged by the Plantiff and by Certiorare , the Bill was certified that it was only for 3. years , Defendant in the Errour , Plantiff alledging diminution of the Roll , had another Certiorare whereby the Bill was certified wherein he declares upon a Lease of 5. years , and which of these Certificates should be allowed , and resolved that the second ; So where Plantiff in Errour alledges diminution , and procures originall to be certified , which warrants not the Judgement ; If in truth there be another Writ Originall , which warrants the Declaration , the Defendant in the Errour for affirmance , the Defendant may alledge diminution , and have Certiorare for the true Originall to be certified ; Judgement affirmed .

Wolfe against Hole .

Errour assigned after Judgement in Assumpsit , because no pledges entred on the imparlance Roll : The Court denyed the amendment of it , although there were pledges inserted in the nisi prius Roll , and 18. Eliz . cap . 13. help it not , for it is substance ; but they agreed the issue Roll may be amended by the Imparlance Roll , but not E. convers . and the Record being removed , not to be amended , Dyer 288. 18. E. 4. 9.

Phelps against Lane .

For words spoke in presence of divers , Thy Father is ● Thief , innuendo the Plantiff , declaration held nought : Because not alledged to be spoken to the Plantiffs son , nor in their presence , and innuendo helps not : Judgement pro Defendant .

Richardson , Hutton , Harvey , held their former opinion , that the issue was well joyned : but Yelverton and Crooke , That there was no issue , for in●endment will not ayde a Replication , and being no issue , the Verdict is void , and not ayded by any of the Statutes of Jeofailes .

Westley against Allen .

Held by the Court , that if a question had been in the Spiri uall Court for a probate of a Will of Goods and Land : and making an Executor , that they should not proceede to prove the Will as to the Land , but that a speciall Prohibition should be granted to the Land .

Morant against Cumminge .

It was questioned , whether the King jure Coronae holding Lands discharged of Tythes , his Pattentee should have that Priviledge : or if it were only annexed to the Crowne .

Owen against Thomas App. Rees H. 2. Car . Rot . 17. 89.

Whether a Lease for lives by Indent . dated 30. Aug. 20. Eliz . habend . a die dat . and a Letter of Atturney , 1. Sept. 20. Eliz . to make livery which is done , be a good Lease .

2. Admitting livery by Letter of Attorney , subsequent be good , whether a Lease made by Bishop for 3. lives , to one for life , remainder for life , so not warranted by E. 1. Eliz . cap . 4. and Successor accepts the Rent , If this be good to bind him during his time , and held not to be good to binde the Successor , but that he might enter and avoid that Lease by the Statute : by reason of a fault in the Lease . To the first payment , T. 17. Jac . rot . 11. 79. was cited where it was adjudged ; if one makes a Lease for life by Indent . dated 20. Aug. 2. E. 6. Habend . from Michaelmas following for 3. lives , and livery is made by the Lessor after Michaelmas ; It is a good Le●se by the Indenture , so that a Letter of Atorney being two dayes after the Deed , is as good as if it had been made in person ; For the second point , 5. Jac . Rot . 140. Wheeler and Danby ; It was alledged to be resolved hereupon , that a Lease , although it be for life habend . a die dat . yet being found that Episc . demisit , it shall be intended that livery was made after the day , and then a good Lease .

2. This acceptance of the Rent by the Bishops Successor , shall binde him for his time ; Quaere .

〈◇〉 against 〈◇〉

The Court would not that any should count against the King as Vouchee , for the King shall never render in Voucher upon Voucher , but they ought in such case to sue to the King by Petition to have in value , and not by way of Voucher , 6. H. 6. 3. 56. 25. E. 3. 39. 39. E. 3. 11.

Sir Randall Crew against Vernon .

Whether a Commission out of the Chancery to examine Witnesses ( and they swore them , and begin to examine them ) after the demise of the King , be determined without having notice , and the Justices certified not , especially in a Court of Equity , where the proceedings be jure naturali , and not according to the strict course of the Law , and that the examination of the Witnesses should stand , and not to examine them de ●ovo .

The Lord Keeper put this quaere ; If any Witnesses examined upon such illegal Commission should be perjured , whether they might be punish'd by 5. Eliz . cap . 9. for that perjury : Justices held they might , for examined before notice of the Kings demise , what they did was legall , 34. Assumpsit , Plta . 8. 5. E. 4. 12. 22. H. 6. 29.

Stephens against Potter .

T. seized in fee of an Avowson , by Deed , lets it , and other Lands for years to Z. and others for payment of Debts , and dyed seized of the Inheritance , some of his La●ds being held in Capite , and his son within age , which was found by Office ; the King grants Ward-ship of Body and Lands to Lessee , rendring Rent , with clause to be void of non-payment ; Church becomes void during the minoritie ; The King presen●s under Great-seale , and seale of Court Wards , &c.

1. First it was agreed , King may present to any Church he hath in right of Ward-ship , under the Great-seale or Court of Wards : but under seale of the Court of Wards , having not right to present in the Wards Right is void , and institution without presentation is void 6. rep . 29. and 8. Jac . It was resolved a presentation may be under any seale .

2. That the Lease was not absolutely void upon non-payment of Rent without Office , because it was payable to the Receiver , and 't is not like , if it had been payable at the receipt : for in the last case , the payment or non-payment is upon Record : but in the other it is to be made to the Receiver or his Deputy , and that appears not of Record ; Judged so in Sir Moyle Finch and Throgmortons Case .

Ter . H. 3. Car . Com . Banc .

Peto against Pemberton , M. 3. Car . rot .

WHen Grantee of a Rent for life accepts of a Lease for years , of part of the same Land , and surrenders the said Lease , whe●her the Rent remained suspended during the years , or be revived presently by the surrender , Brampston urged that it was determined during the years ; But he agreed , that if Lease had been to the Grantee upon condition , and Lessor had entred for condition broken , or recovered in wayst , the Rent had been revived , 21. H. 7. 7. 19. H. 6. 4 45. 7. H. 6. 2. But Court held that it was revived : for by the surrender and agreement of the parties , the Lease is not in esse but absolutely determined , quoad Lessor and Lessee .

Stanford against Cooper , H. 2. Car . Rot . 1674 :

A sc . fac . upon a Judgement in Debt , in Hill . Terme , 22. Jac . against one Bill Defendant ret. ter-Tenants pleads a Statute knowledged by Bill , ●2 . Jan. 22. Jac . and an extent , If this Judgement shall relate to the first day of Hill . Terme , which was the twentieth , or only to the 23. of Jan. which was the 4. die post . Court agreed it should relate to the first day , for that in Law is the first day of the Terme : and the 4. die post . is the day of Grace , Dyer 200. & 361. 34. H. 6. 20. 22. H. 6. 7.

Biggot against Smith , Eschecquer .

A man seized in Fee , conveys by Feoffment to the use of himself and wife , and the heirs of the Survivor ; Husband after makes Feoffment and dyes , the wife enters and infeoffs a stranger and dyes ; whether by her Entry the Fee vests in her , surviving . Adjudged that the Barons Feoffment , destroyed the future contingent use of the Fee ; for what cannot accrew at the death of the party who first dyes , cannot by any Act after be revived , but 't is absolutely extinguisht .

Holt against Samba●h , T. 2. Car . Rot . 731.

Tenant for life , remainder in tayle within age , grant an Annuitie with distress , & nomine poenae 20. s . for every moneth ; It was agreed if Tenant for life grant a Rent and confirmed by Remainder in Fee within age , that it is issuing out of the Estate for life , and it is a void grant as to the Remainder ; And if Tenant for life purchase the Remainder or Reversion , it shall not binde the Inheritance . But the matter in Law was not now agreed .

Sir Symon Bennets Case .

Debt upon a Bond , pleads puis darr . continuance , Plantiff was made a Baronet , whether the Writ should abate ; because 1. E. 6. cap . recited severall dignities , but mentions not Baronets : But the Court directed Plaintiff to demurre , but Plantiff offered a new Originall , and the Defendant to appeare gratis and plead in Barre .

Lady Chichesly against Thomson , & Bishop of Ely , P. 2. Car . rot . 302.

Quare Impedit , Plantiff counts that her Husband being seized in Fee of an Advowson , granted to Feoffees for her joynture , and after to himself in tayle , and dyed , Church becomes void ; Feoffees present , Bishop dyes , Pend . writ . Defendant pleads that he was Persona impersonata ex present . Regis , and shews that the Plantiffs Husband was seized ut supra , and was also seized of another Mannour in capite and that they discended to his son and Heir within age , and that this Tenure and discent were found by Office absq . hoc . that the Husband granted to the Feoffees ut supra , Plantiff saith , quod non habetur aliquod tale recordum de inquisitione .

1. Exception to the Barre , because he sayes not that he was person . imperson . temp . imperrat . brevis but by Court ; It is inferred by the Writ brought , and so not allowed , New entrys , 404. 505. 507.

2. This Replication of traversing the Inquisition not good , because 't is traverse upon traverse : but where the traverse in the Barre takes from Plantiff the libertye of his Action , for the place or time , or the like ; There the Plantiff may maintain his Action for place or time , and traverse the inducement to the traverse , and needs not joyne with Defendant in his traverse , 10. E. 4. 3. 49. 12. E. 4. 6. 2. R. 3. Dyer . 107. Of this opinion the Court .

3. It was resolved , that two Titles , Tenure and Discent are accomprised in the Barre , the Plantiff , Replication ought to have answered the Tenure and Discent , for it was not sufficient to traverse the Inquisition .

Johns against Rowe .

In Appeale of Administra●ion , the Ordinary had committed the Administration of a Feme covert intestate to her Neece , and the Husband of the intestate brings this Appeale , Jones , Whitlock , Yelverton . resolved that it belonged to the Husband , and not to any the Wifes Kindred , by 31. E. 3. cap . 11. For as to the Wife , the Husband dying so e converso But 21. H. 8. compels not the Husband to Administer , 4. rep . 51. But Crooke doubted in reason the Husband 's not to have it de jure , but Ordinary may commit it to him or Wifes Kindred ; for if he might have it de jure , he would never suffer his Wife to make a Will , which without his assent she cannot ; Civilians were of this opinion , but it was resolved for the Appellant ; Crooke asserted , 4. H. 6. 31. 12. H. 7. 24. 9. rep . 38 31. H. 6. 14. 27. H. 8. 26. 39. H. 6. 27. 18. E. 4. 11.

Crayford against Crayford , H. 2. Car . Rot . 2418.

In Covenant to stand seized in consideration of marriage to the use of Plantiff and Heirs of his body , and covenants that he was seized at the date of the Indentute of a lawfull Estate in Fee , notwithstanding any Act done by him , or any his Ancestors : and that the Mannour was then of the yearly value , &c.

The question was , if this Covenant for the value depends upon the first part of the Covenant , Notwithstanding any Act done by the Testator or his Ancestors : or if an absolute and distinct Covenant of it self ; Resolved to be distinct , and not depending upon the first part of the Covenant , 27. H. 8. 29. Dyer . 24. 7. & 8. Eliz .

Sands against Trevilian .

Errour in Debt ; Where the Plantiff sued Defendant , because he retained him being an Attorney , to prosecute such a Suit for I.S. and agreed to pay him his Fees , &c. Errour assigned , that Debt lies not , for the Defendant is but a Solicitor , and 't is maintenance in him to Solicit Suits , 32. H. 6. 25. 21. H. 6. 16.

2. Though Defendant be suable for this retainer , yet it ought to be in an Assumpsit , and not in Debt : and this point Cur . Advis . Bradford and Woodhouses Case , H. 16. J●c . Ba . Re . rot . 416.

Ter . P. 4. Car . Com . Banc .

Minn . against Coughton , & ux .

ONe taken upon a cap . sa . and is rescous'd from the Sheriff , whether the part ye shall bring an Action sur Case against Rescousers ; or Debt , or the Case lies against the Sheriff , and he to have his Action against the Rescousers : and it was resolved , he might have his Action against the Rescousers , and they plead that recovery , if sued by the Sheriff .

Iseham against Morris .

Tenant for life of a Mannour , Remainder to Grace of two parts thereof for life , the remainder of a third part to the said Grace in tayle : Remainder over , &c. Grace by Deed inroll'd , sells to Edward the first Tenant for life her moyetie-part , and pur-partie , and covenants to suffer a Recovery : Edward suffers a Recovery of the Moyetie of the Mannour , with Voucher of Grace ; Resolved first , that this was good Recoverye of the intire third part , and not of the Moyetie of the third part .

2. If one hath Interest only in a third part of Mannour , and suffers Recovery of the Moyetie . Good for the thi●d part .

3. That where one leases Land by Indenture , and have nothing in the Land , and after purchaseth the Land and aliens it : although a good Lease by Estoppell gainst him and his Alienee , by way of pleading , yet it shall not bind the Ju●y not to finde the tru●h , and if they do , the Court adjudges it a void Lease .

4. Where bargainee , after sealing the Indenture and before inrollment , let s the Land for years , and within 6. moneths inrolls it , the inrollment shall not here make the Lease good .

5. That a Lessee for years , who assignes over in trust for himself , and after purchases the Inheritance , and occupies the Land , and levyes a Fine with Proclamation , and Lessee claims not his Lease , he shall by this be barred .

6. That where one for money sells Land by the Moyetie , and after reciting that grant by Indenture , grants Reversion to Uses , Lessee at●urns a good grant of the Reversion .

A Lease for years at Common Law , untill Lessee enter , or Lessor waive , Reversion is not divided , nor passes by words of grant of a Reversion .

Eaton against Ayliffe , & up .

He was a Cuckold , and a Witt all which is worse than a Cuckold , and that Aylesworth had laine with his Wife ; Resolv'd they are defamatory words , and suable in the Spiritu●ll Court , and a Prohibition in this Case was denyed , though the first words might be doubted , but the last shews she had committed a great offence ; Brownlow shewed presidents to the contrary , 15. Jac . rot . 2260. Purcas against Birrell , P. 6. Jac . rot . 396. Prohibition for calling one a Hedge Priest , 21. Jac . She is a Quean and a tainted Quean ; A Prohibition .

Ter . P. 4. Car . Com . Banc .

Farrington against Keymor , 112.

IT was urged , that Informations upon 23. H. 8. cap . 4. were not maintainable in this Court , but only before Justices of Peace , by 21. Jac . cap . 4. but it was resolved to be well brought in this Court ; for first 't was held , that 23. H. 8. which gives the forfeiture to be recovered in Courts where no protection , Essoyne , &c. is allowable , extends only to the Courts of Westm . For inferiour Courts cannot allow of Protections or gager-deley , and therefore not before Justices of Peace , Oyer and Terminer , As. 6. rep . 19. Dyer . 236.

2. That 21. Jac . makes no new Law to enable Justices of Peace , to meddle with Informations which was not before by other Statutes , but only appoints where they may be brought in either places , than before the Justices in their proper Counties , for their ease .

3. If Brewers shall be said Victuallers with 23. H. 8. and resolv'd not : and Victualls is properly to Ale-housekeepers .

Norton against Fermer .

A Prohibition was granted to stay Suit for Tythe of Wood , upon surmise that it was spent for fireing , and shews a custome in the same Parish to that purpose , which custome the Jury findes against him , therefore a Consultation was granted .

Mrs. Peels Case .

She was sentenced , fined , and imprisoned by the High Commissioners for being guilty of Adultery , and resolved that a Prohibition lay in the Case : and that Suits for Adultery , unless very notorious , are to be brought before the Ordinary : and that they cannot imprison for a fine assest , nor untill the party findes sureties to perform their Orders ; But they ought to certifie the fine into the Eschecquer . Dr. Conwards Case , P. 8. Jac . who was sued before the High Comissioners for being Pandor to his Wifes Adultery , had a Prohibition . A Prohibition lies for Alimony sued here ; And so for Battery . Balams Case .

Denns Case .

Resolv'd that a will of Lands and Goods , whether revoked is properly tryable at the Common Law : but a Will of Goods only whether revoked , properly tryable in the Spirituall Court : and it was prayed to have a Prohibition divided , but it was denyed ; For when it is one intire Will of Lands and Goods , and the allegation is to revoke it intirely , it shall not be disjoyned in the Prohibition ; but if severall Wills be , one of Land , and another of Goods , and the Revocation alledge of both ; There a Prohibition may be for the one , and denyed for the other .

Brown against Hancock .

Moved in arrest of Judgement upon Assumpsit : That the promise is alledged to be made beyond the time limited in 21. Jac . and the Action is not brought within the time limited thereby : and held ; If it appears so by the Plantiffs owne shewing , he cannot maintain his Action : but if the contract in the Assump . or Debt , be alledged to be within the time , &c. And upon non-Assump . or , &c. pleaded , and upon Evidence it appears otherwise , and so the Evidence not maintain the Action ; The Defendant shall take advantage thereof . Statute ; he shall not maintain , &c. But within such a time .

Homes against Savill .

In Accompt , They infim . comput . for all Debts , Reckonings , &c. and upon that Accompt Defendant was in arreare 20 l. after Verdict mov'd in arrest , &c. For that the Plantiff ought to have specified the particular matters , viz. pro mercimoniis venditis ; Court . It was sufficient without expressing the particulars for which they accounted .

Taylor against Page .

Accompt for receipt of , &c. Ne unques Recep . pleaded and found against him , and being adjudged to account before Auditors : he pleads that after the receipt , and before the Action there was Arbitrement between them of all Debts , &c. And that he was to pay , &c. in discharge of all Accompts , &c. Upon demurre , Adjudged he ought to have pleaded this in Barre of the Action : and having lost that advantage , he shall not plead it before the Auditors , 22. H. 6. 55. 1. E. 4. 2. 21. H. 7. 31.

Post Ter . Trin . 4. Car .

PResidents of Cases of words where treason & where not , and their Indictments , Sentence , and Punishments thereupon .

Resolv'd according 5. Mart . 159. Dyer . That upon the making a Justice of the Kings Bench , the former Parent of the Common Pleas in Banc . de terminis ; Justice Crooks Case .

Cusacks Case .

One in Execution in London : after by Hab. corp . upon suit in the Kings Bench , the said Execution with other causes were returned : whereupon he was committed to the Marshall : all being taken off in the K. Bench , and the Judgement in London reversed , how he should be discharged of this Execution was the question ; It was advised that he might be remitted to London , and there be discharged , 29. E. 3. 47. 48. E. 3. 22. 39. H. 6. 50. 4. 5. P. M. Dyer . 152. 187.

Geery against Reason .

One demises certain Roomes for years , provided and upon Condition , that he should gather such and such Rents and pay it in upon the gathering , &c. And he shew's that the Rents amounted to so much , and that the Defendant had not paid , &c. but shew's not that the Defendant had gathered them ; Defendant demurres : For it seemed there was no Covenant to gather or pay the Rents , but a forfeiture of his Lease , if he do not , &c. And if he payes not being gathered , account lies ; And the Court held that the words provided , &c. was not a Covenant , but meerely a Condition annexed to the Estate , which determines it by not collecting and paying the Rent , and not a Covenant to inforce him to gather and pay , where peradventure he cannot collect . Judgement pro Defendant .

Chamberline against Turner .

Ejectment . One seized in Fee of Soccage Lands and House , devises all my Fee simple Lands to H. my Son , and his Heirs males , and for want , &c. Remainder to his right Heirs , and made him Executor , and that he pay his Debts out of his Goods and Lands ; And I devise the House where Nichols dwels , called white Swan in Old-streete , to H.G. my daughters Son for ever . And that others at the time of the devise lived in part of the Swan , besides Nichols .

1. Whether the Heire of G. had any more than Estate for life : because all his Feesimple Lands were before devised , and then devises that House to him for ever ; And if an Estate for life extracted out of the o●her , it is determined ; Alice Ludhams Case , Dyer . 357. but resolved to be a Feesimple by for ever .

2. Whether all the House passed , or that part that N●chols only had , Jones , Whitlock , and Crooke , that all the House passed , had not Nichols been named : but being named , the white Swan : but had not the Swan been named , peradventure otherwise 4. rep . 48. There a Lease of an House is made to one who lets out two Chambers , and surrenders and takes a new one of the House in his possession : adjudged only of the House in his Occupation , and not of the two Chambers .

Lukersalls against Sammes .

Declares of an Assumpsit made by the Testator , 18. Reg . and non-Assumpsit pleaded by Executor , Jury find Assumpsit mod . & form . but that he dyed , 17. Reg . Court held that the Verdict being the Testator assumed , mod . ut . form . the finding over he dyed before the time mentioned in the Declaration is superfluous ; Judgement pro Que Dyer . 372. 2. rep . 4. Goddards Case .

Hollowayes Case ,

He being Woodward to a Parke caught one in a Tree , cutting Wood , who commanding him to come downe did accordingly , and the Woodward tyed him to his Horses Tayle , and he stroke him twice with a stick , and the Horse run away th●ee furlongs , and broke the fellowes Shoulder whereof he dyed : Resolv'd to be m●rther , for it shall be said in Law to be malice prepensed , he doing it to one who made no resistance ; For the fellow came down upon his command : whereupon Holloway was adjudged to be hanged .

Juxon against Thornhill , T. 4. Car . Rot . 76.

One made locks and sluces upon his owne Land to exalt the River Ouse , and for the rates that boats should pay upon petition it was referr'd to Manchester President to set downe , That the Defendant had carryed divers Tonne of Coales , and in Consideration thereof promised to pay what Manchester should set , that he set so much on every Tonne , which came to , &c. That he requested the Defendant to pay , &c. Upon non-Assumpsit found for the Plantiff ; mov'd in arrest , &c. That River Ouse is Common , and not lawfull for any to make locks , &c. Or take summes for passage , but not allowed ; For they are upon the Plantiffs owne Land , and it stands with reason he should be paid for the passage according to their agreement ,

2. Because 't is not shewn that Defendant had any notice of the said orders . but not allowed : for he is to take notice as well as Plantiff ; As where one is obliged to perform an Arbitrament , there needs no notice be given , but he ought to take notice at his perill : also here the request implies notice .

Chamber's Case .

He was committed by the Lords of the Councell for contemptuous words , who prayed Hab . corp . and had it ; And the Warden in his return , return's the Lords Warrant ( verbatim ) but not what the words were : who was advertised to amend it , and after much debate he was ●ayled , to appear , &c. in the interim to be of good behaviour , the Court advertised him they might for contemptuous words cause an Indictment or Information in this Court to be drawn against him if they would .

Sir William Withypoles Case .

He was indicted of murther before the Coroners inquest : and being arraigned , he prayed that he might offer his Pleas , and have Counsell assigned him , And upon putting his Pleas in , he cited therein , 11. H. 4. cap . 9. That one Aston foreman of the Jury , contrary to the Statute had nominated himself and 14. others to be of the Jury : and that two of the said Jury were outlawed men in Debt , and not yet reversed ; And hereupon the Court advised .

1. Whether the Statute of H. 4. extends to inquests before Coroners , or only to Indictments before Justices of Peace , and Oyer , &c.

2. Admitting it doth , whether it extends to Outlawries in personall Action , or upon Treason and Felony . The greater part of Justices agreed , that this Statute extended as well to Coroners Enquests , as the other P.

2. That it extends to persons outlawed for Felony , because he is not probus & legalis , 34. E. 1. 208. 21. H. 6. 30. But the other Justices on the contrary , 4. E. 1. Offic . Coronator . Crompt . 113. That no challenge to any of the Crowners inquest .

Vicount Say and Seale against Stephens , T. 4. Car . Rot . 602.

An Action de Scan . Magnat . upon 2. R. 2. for saying to the Servant of the Plantiff , Thy Lord is a Traytor , and I will prove him a Traytor : Mov'd in arrest of Judgement .

1. That in his Court he misrecited the Statute , and founding his Suit for himself and the King , there being no such Statute fayles , 4. rep . 12. Cromwells Case ; Where an Action upon this Statute brought , and misrecited , Nuncia pro mendacia , and he could not have Judgement , Plow . 82. Patridge and Croker , and here he recites , that none shall report or publish de Magn . aliq . nova mend . seu alios res unde discordia aut aliqua lis anglice debates inter magnat . & communitatem dicti regni , &c. whereas the Statute is discord , or slander may arise within the said Realm : so as there 's a variance betwixt the words debates for Slander .

2. Because it was not shewn that he was unus magn . at the time of the speaking ; but Court Resolv'd in bo●h points for the Plantiff ; and agreed , had the mis●… i●… ll been in the body of the Act , as Cromwels Case ▪ on the time of the making misrecited , as Patridges Case , such cause had been good to stay Judgement but they conceived no materiall variance : and they al held the Declaration good : for there is sufficient demonstrance in the Warrant , that he was a Vicount at the time of the speaking , for he names himself Vicount , and the Statute , and Defendant not regarding the Statute , spake , &c. of the said W. Vicount Say and Seale : For had he not been a Vicount , he ought to have said , and the said William ; And the Law intends not that he was a Vicount of another Realme : And whereas it was objected there were no Vicounts in R. 2. time , but that Statute intends , Magnates Regni Angliae , and every Vicount is a Baron , which is addition of Honour : also the words , Thy Lord is a Traytor , prove him to be then a Lord : and it is not like words spoken of a Justice of Peace or other profession being slanderous , there you must averre that he was so and do , at the time of the words spoken .

Baylye against Offord , T. 4. Car . Rot . 738.

Question in Law was , whether the Assignee , of a Terme shall have remedy upon a Covenant by way of retainer against the Assignee of a Reversion : and the Court conceived the Assignee should have the benefit by the Common Law .

Crane against Holland , P. 4. Car . Rot . 294.

Vinire fac . was directed to the Bayliffs of N. to return a Jury before the Major and Bayliffs thereof , who by the Custome held the Court ; Errour assigned , because the Bayliffs being Judges , could not be Officers to whom Process should be directed : But the Court conceived it good by custome , and no Errour , and one may be Judge and Officer diver . respectibus as in Redisseisin the Sheriff is .

Skevill against Avery .

Upon Assault , Battery , and wounding to the wounding not guilty , to the Assault , &c. that he would thrust the Plantiff out of his House , & meliter man . &c. Plantiff demurred : because Defendant pleads a Lease , and shew's not who made the Lease , and when , &c. For if it be traversed , there can be no issue ; cited Crogats Case , 8. rep . p. 66. In●ur . sua propria no Plea , but held a good Plea of the Defendant where the title of the House came in question : For as he said , he was possessed of an House , &c. was but an inducement ; Judgement pro Defendant .

〈…〉 T. 4. Car . rot . 770.

Assumpsit in Consideration the Defendants dogge had killed the Plantiffs Sheepe , and he would forbear to sue him he would recompence him the 1. May , &c. And that after he did request him to pay , &c. who refused , and he brought his Action , Defendant pleads , 21. Jac . cap . 16. This Action being grounded upon a promise made six years since Plantiff demurred , and after argument Resolv'd that the Action lies , and is brought within the time ; For although the promise was 18. Jac . yet no cause of Action till request of recompence : For the duty ariseth upon the request , and non-payment after is the cause of Action . Assumpsit to pay if he marry A.S. or when he returns , &c upon request , there no cause of Action till the marriage , &c. and request made ; Judgement pro quer .

Lewknor against Cruchley , & uxor P. 4. Car . 14.

Words spoken by the Wife , That the Plantiff and another knowing that I.S. a Gold-Smith , did carry with him a great deale of Plate , did lay waite to rob him , and set upon him by the high-way , but he raysing the Country , they did fly , &c. mov'd in arrest of Judgment not actionable : because by his own shewing no Felony was committed , 4. rep . 16. for saying , such one was a quarreller , and advised such one to kill him : Not actionable ; But the Court , The Action we lies : And although there was no Felony committed , yet as near it as possible : and therefore like those Cases cited in 4. rep . 16. Jones cited a Case : nine Persons set upon me to rob me , and you Wicks ( the Plantiff ) was one , Actionable ; pro quer .

Law against Harwood , M. 3. Car . rot . 336.

Action for slandering his Title ; Narrat . adjudged nought ; because he shewed not any particular prejudice he had by the Slander , as that he was bargaining for the Inheritance with any , or for a Lease or the like : as calling one Whore , or Bastard , without shewing a particular prejudice , or temporall damage , 4. rep . 17. 18.

Hughs against Farrer .

Thou art a Witch , and didst bewitch my mothers drink : And after ask'd why he said so ; If I call'd her Witch , we will prove her a Witch , and answer what we have done ; Actionable .

Lady Cavendish against Midleton , T. 4. Car . rot . 243.

Resolv'd , That where I buy Goods by my Servant , and he payes the money and dies , and after the man of whom they were bought , comes , demands the money again ; Deceit will lye , as well as an account .

Viscount Say and Seale against Stephens .

After Judgement to recover ; A Writ of Errour was brought upon the Statute , 27. Eliz . cap . 5. which gives Writs of Errour upon Judgement in Actions upon the Case , Debt , Detinue , Account , Ejectment or Tresp . First , commenced there where the King shall not be a p●rty : but this Action was founded upon the 2. R. 2. and is for the King and Party , and so out of the Statute , Hide , J●nes , and Whitlock of this opinion ; ●rooke doubted , and delivered no opinion ; but conceiv'd it more proper to have it disputed in the Eschecquer .

Longe against Nethercote , T. 4. Car . rot . 43.

Errour upon a Judgement in S. upon a Lease for years by assignee of Reversion ; First , because the Court is held by Letters Patents of Q. Mary , and the Process is awarded , secund . consuet . Curiae , which cannot be where erected within memory ; and then because he claim's by grant of a Reversion , and shews not that it was by Deed ; and without Deed or Fine , a Reversion cannot pass : Judgement reversed .

Darcose against Newbott .

Errour assigned ; For in Assumpsit , being at issue , a Demurrer was joyn'd upon the Evidence , and Jury discharged , and Judgement afterwards for the Plantiff , and a Writ of Enquiry awarded , and Judgement thereupon ; where the Jury warn'd upon the issue , although discharg'd ought to have assest the damages conditionally . Scholasticas Case , Plow . 408. Old Entry's , 146. in demurrer , 12. 13. & ibid , 237. But the Court said it may as well be by a Writ of Enquiry , and that is the usuall course upon Demurrer , upon Evidence . Old Entry's 551. Tresp . in arser .

Sir Humphrey Tufton and Sir . Geo . Ashleys Case .

That upon misentring a Judgement upon a Quo Warranto , there was a dispute if it were amendable , because in the Case of the King , where it was urged that the Statutes of amendments , extend not to Cases of Quo Warranto , and suits where the King was partie ; But by the Court it is a misprision of the Clerke , and for other reasons ( ve ) amended .

Kendall against Fox .

N. Kendall and his Wife Lowda joyntly seized by purchase during Coverture for their lives , Remainder to Walter eldest Son in taile , Remainder to William in taile , Remainder to the right Heirs of N. After then feoffs William and his Wife and their Heirs , Remainder to N. right Heirs , with Warranty against all persons , and levyes a Fine to two Strangers and their Heirs , with Warranty &c. And they render it to him for a Week ; Remainder to William and his Wife and their Heirs , and then to N. right Heirs , N. dyes , Lowda enters and dyes , Walter enters , William & ux . enter , &c. And it was held , this Warrante by N. upon the Feoffment was not avoided by the Entry of Lowda , for the Warranty being discended and attach'd before Entry of the Feme , though she be free and not bound , yet he in Remainder being bound , Estops the remitter .

〈…〉

That in a Writ of Errour upon a Quare Impedit the Defendant being delayed a yeare had damages for a year beside costs , according to 6. E. 6. Dyer . 77.

Roysons Case .

One offering himself to be Bayle , and swearing he was assessed 4 l. in the subsidie Book , after being found he was no subsidy man , was committed to the Marshall , and confessing he had done so often , after by the Court , committed to the Pillory .

Ter H. 4. Car . Banc . Reg .

Sir William Withypoles Case .

He was arraigned now before Commissioners of Oyer & Terminer , and he desired to have Counsell , pretending he had matter in Law to plead , having it allow'd ; pleaded he had been anterfoits arraign'd ; but by the Court : This was no cause of Plea ; For if he were not convicted or acquitted , he may be arraign'd upon a new Indictment ; and it was moved that one of the Indictors was outlawed in Tresp . and because he had not the Record ready , it was not allow'd .

Forger against Sales .

One sued as Heire , upon a Bond , pleads riens per discent , and found against him ; and mov'd in Atrest , &c. Because in the narr . ( ad quam quid . solut . obligo me & hered meas ) all this was left out , Jones conceiv'd it not amendable , because 't is the substance of the Declaration : One declares in the debet & detinet , where it should be in the detinet , onely 22. E. 4. 2. not amendable ; Crooke & Whitlock amendable , it being meerly the Clarks fault , it being so in the Obligation , and he confessing the like , having it before him to draw the Declaration by . Richardson of the same opinion . Amended , and pleaded new .

Audley against Halsey , H. 3. Car . Rot , 943.

An Extent upon Goods is sued upon a Statute , and before the Liberate , the Conusers are found Bankrupts , and the Commissioners sell the goods . The sole question was , if this sale be good . Noy and Farrer argued , that notwithstanding the extent , the property of the goods remain in the Conusers , for by that they are but , as it were , in the Kings protection , and so are in the Commissioners power before liberate to sell , Dyer . 67. Goods extended were subject to be seized for the Kings debt . And Statute 13 Eliz . cap . 7. 21 Jac . cap . That such Commissioners might sell goods or lands non obstante . Judgements , Executions , Statutes , or Extents not served or executed , which they said was not until the liberate , 31 H. 6. Br. Stat. 41.

But the Court held , Goods extended before Bankrupt , and delivered by liberat . after Bankrupt , could not be sold , &c. And though the Conusee has no absolute interest in them till the liberat . yet that is for the Conusees advantage . And the Extent is cap . in manus nostras ut cas l●ber . fac . and they be as goods gaged or distrained , which cannot be forfeited by Outlawry , &c. 37 H. 6. 10. 22 E. 4. 11. 34 H. 8. Br. pledg . 28. 2 H. 4. 14. 8 rep . 171. And the case here , The Extent is returned before they become Bankrupts , and the delivery by liberat . before the Commission sued out , and not like Dyer , 67. And there the King hath his prerogative ; and Extent and liberat . hath that relation , that they be said but as one Writ . And according to the intent of the Statute , an Extent being returned served , the goods be not liable to other Executions , or power o● Commissioners , 21 Jac .

Bach against Gilbert .

Error assigned I.S. apud D. demises house and forty acres in D. in parochia de D. and it was surmised that the Parish of D. was in the Cinque Ports ubi bre reg . non currit , and that Allington is the next Parish , and praid a ve . fa . upon it , and it was awarded de vice●●o de Alluad , Errour . The ve . fa . m●sawarded , and so a mis-tryal . For the surmise should , that D. is within the Cinque Ports , and not that the Parish . Court . The vill . and parish are intended all one , unless contrary shewn , and no Errour .

Jenks against 〈◇〉

One charged in Debt , as Heir to his brother . Upon riens per his brother pleaded . He is found Heir to his brothers son , found and adjudged pro Defendant , and that there should be a special Declaration , for he has nothing as immediate Heir from his brother , but by descent from his brothers son .

Ter . P. 5. Car . Com . Banc .

Hyott against Hepton , & alios .

ERror . For that upon the Inquisition it was such Goods and Lands , eidem Jac . deliberat . where it ought to have been by the two Sheriffs , deliberari procuravit . And therefore the Declaration nought , it is not appearing that the goods extended were delivered by any Sheriff . But Court allowed it not . — Entries Cooks . 234.

Bear against Woodley .

Rent of 14 l. granted per annum , 7 l. for 38 years if I.D. so long live , and 7 l. more after the death of Woodley , with power of distress . And the Court resolved them to be several rents , because they have several beginnings and endings , 17 E. 75. Ass. 10. Dy . 308 , 5. rep . 54.

Goshawk against Chiggel .

Termor of 1000. years , grants to Hester all his interests habend . to the Grantor & ux . for their lives , and after to the said Hester , and if she has heir , than to her Executors ; provided , if she dye unmarried , and have no issue , this Grant to be void .

Court . That the Grant was good , and the habend . to the Grantor & ux . for lives , and after to Hestor , void . Because it is repugnant to the Grant , but the habend . shews the intent that Hestors Executors has it not , unless she be married and have issue . And the proviso , &c. has this meaning , If she dye unmarried , or married , having no issue . the Grants void .

Wicks against Sheppard , in Escheq .

For words , He is a sharking fellow , and gets his living by deceit , and used himself violently to his former wife , and denied her necessaries , and is a needy fellow , his conditions wicked , and is a Brownist . The Plaintiff shewing , that by these words , he lost a fortune , and that the woman hereupon refused him . Resolved the Action lies , but without such circumstances , it is not maintainable . Anne Davies case . 4 cap .

Salvin against Clark . H. 20. Jac . rot . 466.

Ejectment . A Tenant in tail , and his Heirs male , Reversion in Fee to I.A. leases for three lives , with Warranty against all persons , being warranted by 32 H : 8. cap . afterwards A. levies a Fine with Proclamation , with Warranty against all persons to T. having issue a d●ughter Elizabeth , and dyes . Afterwards I : dyed without issue , the three lives expire .

1. Whether this Warranty in the fine ( admitting without Proclamation and non-claim ) makes discontinuance in fee , and bars the daughter . And when I , dying and the Elizab . his Heir , if she be barred by this Warranty , or that it determines by the Death of A. Cou●t , That the Warranty continues , and bars her . For by the Estate for Life it was discontinued , and A. had a new Fee . And now though the Warran●y descended not upon I. but on Elizab . yet when I. was dead without issue , the right descended to Elizab . and she b●rred by the fine . And not like 9 Rep. 95. 21 H. 6. 52. 22 E. 4. sic . discont .

2. Whether this fine and non-claim for five years bars Elizabeth . Resolved it did . For I. having a right at the time of A. his death , without issue male , not prosecuting his title , he and his heirs and all claiming by him shall be barred for ever . And not like Tenant for life forfeits , and levies a fine with Proclamation .

Lynnet against Wood .

Trover for loads of Corn , Defendant entitles himself as tythes severed , and because the Plea amounts but to a not guilty . Plaintiff demurs therefore . Court , this Action comprehends title in it , and such a plea is not allowable . Judgement pro quer .

Ansley against Chapman , 3 Car . rot . 842.

One Devises his Land by severall Clauses to his two sons , Mich . and Henry , upon condition if they sell to any but his son Matth . then he to enter as of his gift . And further , they shall all bear part and part like towards the payment of my wives forty pound per annum during her life , and which of my sons refuse to pay , that he enjoy none of my bequest , &c. Whether Mich . and Henry , have a Estate in Fee , or for Life onely .

1. It was argued , that it was Fee . Because the Devise is to the eldest son , who should have a Fee by descent , if not by Devise ,

2. That they sell not , unless to Matthew , is intended they had a Fee , that they might sell . 7 E. 6 , Br. devise .

3. Because they are to pay such a sum , every one his part , &c. therefore resolved , That an Estate for Life onely passed by this Devise . And that the eldest son not any Fee by the Devise , but by descent and operation of Law .

2. They may be restrained from selling Estate for Life . And therefore , &c.

3. It is not devised paying such a sum in gross , as in Willo●k and Hamonds Case . But every one to pay out of his part , which is as an annual rent out of the profits of the Land . And the Law will not construe a Fee in prejudice of the Heir , without the words Heir , or For ever , or which tantamonnt .

Thursby against Warren . T. 4. Car . rot . 217.

Resolved , An Attorney may be a Solicitor for his Client in other Courts , as well as in his own Court , and allowable , and a promise to pay him for it is lawful , and it is no maintenance , 19 E. 4. 3. And here the case stronger , It was formerly expended at Defendants request , and giving a note to a stranger to come , and a promise to pay it if by him thought reasonable , which of it self is a good consideration . And Court agreed , that a Solicitor of an inferior rank may take recompence , and a promise to pay . Bur if a person of superior rank do it , it were maintenance , 19 Eliz . Judgement a good Assumpsit , 19 Eliz . Dyer . 356. 11 H. 6. 10 32. H. 6. 25. An Except●on was taken , That the Action was brought above six years after promise and breach , But because not pleaded , the Original not certified , nor appearing when sued out , the Court regarded not .

Ter . M. 5 Car . Ban . Reg .

Gilpin against 〈◇〉

ERror . Lands were devised in Fee , upon condition that in a year h● should pay his debts , or else to his Executors . And upon riens per discent , pleaded and found against him . Adjudged , that it was assets in the Heirs hands , because he devised it to his son and heir in Fee . And therefore assigned . For though the Heir hath a Fee , yet he hath it as a Purchaser , tied with such condition . Judgement reversed .

Goodwin against Sir Rich : Moor .

Plaintiff by I , S. pro cheine amie against Moor and for Bar . & faux . imprison . To the B●t . not guilty , to the faux . impris . justifies that he seized ●he Plain●iff ●s his Ward . And found for the Plaintiff . And moved in Arrest .

1. Because he sues by pr●cheine amie , where he should by his Guardian . Jones and S●msons Case . Court , may sue by either , Defendant onely by Guardian .

2. Because pledges were not found . Court , Infant shall nor finde pledges .

3. Because the Battery , &c. and the land alledged at several places , and the ve . fa . onely f●om one of the places . Court , aided by the Statute .

Kadwallader , & alii against Brian .

A Prohibition brought by two , where their griefs be several , cannot be good .

In a Feofment there needs not Livery be alledged in a Bar . nor in Assignment of Dower , that it w●s by meets and bounds . For these necessary circumstances shall be intended .

Walker against Riches .

Upon Elegit Exec . of the goods and moyety of the Land . The Writ was , Tibi precipimus quod bona & Catalla , &c. omitting med●etatem terrar . By vertue hereof Sheriff extends the l●nds and goods , and delivered the moyetie of the lands , and returns the Inquisition . Moved to amend the Writ . Court , not amendable . But he must have a new El git . Because there was no warrant to extend the land .

Topsal against Edwards .

Words . Calling him Thief , and for procuring him to be indicted of Felony , and imprisoned , till he was acquitted . Ten shillings damage . Moved upon 21 Jac . cap . 16. That for words damage assest under 48. No more costs than damage , and so but ten shillings costs . Court . This being not onely for words , but conspiracy . It is out of the Statute , and so hath his ordinary costs .

Tankersley against Robinson .

Upon Assumpsit brought after six years of the promise and breach . Moved in Arrest , &c. Jones and Whitlock . Unless the Statute be pleaded , or it be demurred thereupon , no advantage shall be taken . Hide and Crook , The contrary . Because the Plaintiff shews in his Declaration , that it is out of the limitation of the Statute , and Statute is in the Negative . That it shall not be brought at all , unless , &c. Cur . Advis .

Fryer against Fawkner .

Debt upon a Bond , of an Arbitriment , upon Oyer of the Bond pleaded , null . fec . Arbit . Plaintiff imparls and replies , shews the award and breach . Defendant imparls , and after defends , and demands Oyer of Bond and Condition , and pleads the same Plea . Plaintiff imparls , and after replies the same . Defendant demurs , Plaintiff imparls , and shews book cases , &c. And all these entred on record . And after Judgement , for these absurdities it was rev●rsed , and the Clark fined for making such a record ..

Dunscomb against Smith .

Trus in Assault , &c. Defendant pleads son Assault , &c. Plaintiff replies , by vertue of an Attachment he arrested him , and Defendant rescued himself , and beat the Plaintiff , de sua injuria propria absque aliq . tal . causa & hoc parat , est verefic . &c. Upon Demurrer , Replic . held vicious , because he concludes not & hoc pet . quod inquir . per pat . Judgement pro Defendant .

Adams against H●lks .

Upon Trover & Conversion , apud Ward . de All Saints in Bristow , and the venire of Bristow . Moved to be Error . 6 Rep. 14. Where a fact supposed in paroch . Sanctae Marg . in Westm . and the ve . fa . of Westm . But Court held Tryal good . For a Ward in a City , but as an Hundred in a County . And not like 6 Rep. Now supposed to be done at such a Parish , in such a Ward in a City . Here the visn of the Parish . 7 H. 6. 38. 8 H. 5. 10. And Judgement affirmed . And so in Adams and Wellings Case .

〈◇〉 against Hopkins .

A Lease made by Baron & feme , and a Letter of Attorney made by them both . Resolved , a good Letter of Attorney for them both , and the Lease well delivered , and it is the Lease of them both , during the husbands life .

Hill against Thornton .

After a Prohibition , Cause was shewed for a Consult tion . And issue was joyned , whether the Testator made such a Will or no . And after evidence , Plaintiff was Nonsuit . Moved , that notwithstanding the Nonsuit , It was not shewn that the Testator had goods &c. and so no cause to have probate , and then no Consultation ,

If there be a libel for tythes of trees , which were not silvae Ceduae , though the issue be upon a Collateral point , and found for the Defendant , yet no Consultation . And so laying violent hands on a Clerk , and so have damages besides correction , no Consultation here , because no su●h Cause of Suit in the Ecclesiastical Court . And the Court agreed those Cases . But here appearing he had cause of Suit to prove the Will for the Goods , otherwise he could maintain no Action , a Consultation granted quoad bona .

Benson & ux . against Flower & alios .

Upon a Recovery for words spoke of the Feme , & the money upon Execution levied by the Sheriff , and before return of the Writ , the Plaintiff becomes Bankrupt , and by Commissioners the said money was assigned by the name of Bensons money to Creditors , The moneys brought into Court . Plaintiff prays it out . Creditors pray it may be delivered to them . And whether it should or not , was the question . Hide and Jones , That the Sale and Assignment was good , and that the money the Creditors should have . And as it might be forfeited to the King by Ourlawry , &c. and he might cause it to be levied , so may the Creditors . Whitlock and Crook the contrary , That it is here in Custodia Legis . For the Creditors can give no discharge , nor acknowledge satisfaction . If the Judgement be reversed , they not compellable to restitution . Cur . Advisar .

Snape against Norgat .

It was urged by Reve , That a Recovery being against an Executor of a Debt by the Testator , and he dying intestate , the Suit is determined , and he ought to commence de novo , as if Executor recover a Debt of the Testata's , Administrator shall have a sc . fac , upon this Judgement , sic è converso . Jones , Whit . and Crook . True , as Administrator , he cannot have a sc . fac . upon a Judgement by the Execution , but put to a new Action . Yet where a Judgement is against an Executor for the Testators Debt , though he dyes intestate , It might be executed by a sc . fac , against Administrator of the first Testator , but as Administrator to the Executor he is not liab●e .

Chambers Case .

He was committed for defamatory words against the Star-chamber . And at the Bar , he urged that the Star-chamber was erected by Statute 3 H. 7. which gives it no authority to punish for words onely . But Court . That it was not erected by 3 H. 7. but was a Court many years before , and one of the most High and Honorable Cours of Justice . And they could not deliver one committed by their Decree . 3 Ass. Pl. 38. 28 Ass. Pl. 34. 21 H. 8. cap . 20.

Genings against Lake . H. 3. Car . rot . 612.

Ejectment , After a Lease made by Prior and Convent , and dissolution of Abbies , there came to H. 8. four Closes , called North Drocombs , And by mean descents it came to Queen Eliz . who granted by her Letters Patents , tot . illud . M●ss . &c. called Drocombs , alias Drotons . And that before this Grant , an house was erected upon a rod of these closes , Et quod tenements pl : narat . mentionat . eod . mess . spectab . & pertin●b . &c.

1. Whether ( the Lease being made by the name of North Dr●combs ) the Patent of Queen Eliz . being made by another name may be good . Resolved , good .

2. Whether the Patent being made of a Messuage and L●nds thereto appertaining , the Land passes : For Lands in case of a common person , may pass by the name of Land appertaining to an house , as in Hall and Granges Case , yet no● so in the Queens Case . Resolved , the Pa●ent good for the Messuage and Lands . And although it varies from the first name in the lease , yet being found to be all one , it passeth well by the Patent . And they s●id Land may be said to be appertaining to an house in he Kings Case , as of a common person , where for a convenient time , hath been let together , Co●ks Entries , 384. Dyer . 362.

Bodvel against Bodvel . M. 2. Car . rot . 457.

Errors upon a Judgement in Wales , were assigned these : First , that he declaring upon an annunity or yearly rent granted for life , virtute cu●us fuit seis . in domin . suo ut de lib . tenemento , proves it no annuity , but a Rent-charge , 3 E. 6. Dy : 61. Dyer . 220. But not allowed . For being an annuity granted for life , though no Rent-charge , yet he may plead seis . in dominic● suo ut . de lib . &c. Cooks Entries 49. 50. hath two Declarations in that manner , and yet Judgement pro que .

2. Error was , That this Bill is not maintainable , but Original W●it , 3● H . 8. cap . 6. Actions in Wales real and mixt shall be sued by Original Writ , and not by Bill , but Personal may . That this is mixt , 2 H. 4. 13. Fitzh . Rent 48. Cook on Littl . ●85 . But by he Court , annuity thereby , Bill is well brought . For being annuity charging the person onely who grants it , is meerly personal , 2 E. 4. 84. Long . 5. E. 3. 40. Release of Actions personal a bar . Judgement affirmed .

Gross against Gayer . H. 1. Car . rot . 828.

These Questions :

1. Whether an Attainder in premunire hath relation to the offen●e for the forfeiture , or the time of the Judgement onely .

2. Admitting the offence , whether a Patent of those Lands after Incuisition by Commission , Eschequer-Seal ( no Office being found under Great-Seal ) be good by 18 Eliz . cap . 2. The first point was not resolved . To the second resolved . That by the Judgement he should forfeit , &c. Nothing vested in the King until Office found , and that under the Great-Seal , and not the Eschequer-Seal . But here the Lands came not to the King till Office found . Judgement out Stat. 18. Eliz . 1. Rep. 42. 3 Rep. 10. 5 Rep. 52. Plow . 486. Dyer . 325. 29 H. 8. Ch●rter . Pardon . 52. 27 H. 8. Office . Esche . 17.

Earl of Pembroke against Bostock and Green .

Error upon Judgement in quare imped . First , because he counts of a Grant by W. Sands Knight , and it was found he was no Knight . So a void Grant by that name , and Declaration untrue , therefore Judgement Erron . Court , Although it is found he was not Knight at the time of the Grant , yet it is not material . Peradventure had it been as material as in the case of 13 Eliz . Dy . 300. where the Issue was , Whether Sir T. de la Ware demisit , &c. But here the Issue is upon the grant by W. Sands , and whether it appears he was a Knight then or not , it is not consider●ble , 4 H. 6. 1. 21. E. 4. 71 , 72. 38 H. 6. 38. 7 H. 4. 7.

〈◇〉 against Helyers .

Trespass by Baron and Feme for Battery of both . Not guilty , found for the Defendant , and certified that he did it as Constable , and double Costs according , 7 Jac . cap . 5. Moved that the Declaration was nought . Because Baron and Feme cannot joyn in Battery done to both . 9 E. 4. Court , Defendant being found Not guilty , and an Officer . Plaintiff shall not take advantage of insufficiency : their own Declaration , to excuse costs .

J●ffs Case .

He was indicted for exhibiting an infamous Libel against the Chief Justice and Court , because of a Judgment obtained against Magd . Colledge , sticking scandalous papers upon Westminster-Hall gate . And being arraigned , prayed Counsel , and contrary to his advise , put in a scandalous Plea , that he would stand . He was committed to Marshal , adjuged to the Pillowry , and surety for good behaviour .

Coxes Case .

He was attainted of Felony , and brought to the Bar by Hab. Corp. was asked if he could shew cause why execution should not pass , and shewing none , was the next day hanged .

Simms against Smith .

Covenant . That the Defendant would surrender her Copyhold upon request , and permit the Plaintiff to take the profits . In facto , she did not permit him to enjoy the said Lands , but received the profits from that time to the day of the Writ . Defendant demurs , First , that there was no cause alledged for the permission , but not allowed , for the request extends onely to the surrender , and not to the permission . Secondly , He alledges not a special disturbance by Entry , &c. Thirdly , The breach is too general , that she received the Profits , &c. without shewing what . In Covenant assign as many breaches as you will , but not upon a Bond for performance . All the Court , breach well ass●gned . Judgement pro que . 1 Rep. 6. 47 E. 3. 3. 46 E. 3 , 4.

Benson against Flower .

In regard the Assignment , and becoming Bankrupt , were after the Execution served , though before the return , Jones , Whit . and Crook . The money in Sheriffs hand was not assignable . And it being in his hands , and levied by record , it ought to be delivered to him who can acknowledge satisfaction upon record , which none but the Plaintiff here can do . The Assignees being strangers to the Record . Ordered to be delivered to the Plaintiff , acknowledging , &c.

Shalmer against Foster , & ux . T. 5. Car . rot .

For words . Spoken to the mother of the Plain●iff , Where is that Thief thy son , he hath murthered my Aunt Dorothy Stoke , and I will prove it . Not Guilty found pro quer . Moved in arrest , &c. That there being no speech alledged to be of the son , not averring that it was the onely son , for it may be she had divers sons , and every one might bring their action . Whit . and Crook . For that incertainty , not maintainable , 20 Jac . Harvey and Chamberl●ins case , and 15 Jac . Bennet and Codnam . Jones and Hide doubted . Cur . Advis .

Deckrew & alii against Jenkins .

It was said to be the usual course , where one Defendant is found guilty for a part , and not found guilty for residue , and the other Defendant found not guilty for all , Then the Plaintiff be in misericordia but once , 47 E. 3. 10. 9 H. 6. 2. 5 Rep. 59. And sometimes the Prothonotaries enter , That quoad three ( where four Defendants ) for so much whereof they were acquitted , that they be in misericord . And for the fourth , that he be in misericord .

Gryffith against Jenkins .

Error upon a Judgement in Wales . First , the count is , That he deforced him of a Mess . and 20 acres of meadow , 20 acres , &c. and 20 acres of Jampna & Brueria , which ought to be shewn in certainty , as in a precipe of 20 acres of mead ▪ and pasture : if he shews not the particular quantity and quality , it is nought . But Court here in this quod ei deforc . it is good . Because Jampna and Brueria , are intended one and the same land . 2. The issue is ill , because he pleads he hath majus jus tenend , &c. then Plaintiff , and says not & hered . suis , but not allowed . The Court intended he should have no lesser estate than a fee . 3. Because ve . fa . had not 15 days between teste and return , not allowed . For in Wales they have their Process de die in diem .

Gilbert against Fletcher , T. 4. Car . rot . 1359.

If an infant binde himself by Indenture an Appretice , he needs not be bound by the Common Law , or Stat. 5 Eliz . by any such Covenant or Obligation for his Appren●iship . But upon misbehavior he is punishable by Justice of peace , or corrigible by his Master . But no remedy upon such covenant , &c. 21 H. 6. 31. 21 E. 4. 6. 9 H. 6. 8.

Babington against Wood .

An Obligation with a Condition , That if he would at the Plaintiffs request ( whereas he intended to present the Defendant ) resign his benefice to the Bishop of London , that then , &c. Defendant upon Oyer of the condition demurred generally . Because such a condition was Symonie , and against Law , and the Bond void . Court , had Plaintiff averred , the Bond was to binde him to pay such a sum , or make such a Lease , peradventure might be Symonie . But here it appears not to be Symonie . For may be the parson might not be resident , or take a second benefice , &c. 8 Jac : Jones and Laurence , Where a Bond to resign upon request , when Jone's son came to twenty years old , to the intent he might be presented . Adjudged good . Judgement pro quer .

Keyley against Maning . T. Car . Rot . 971.

Upon a Demurrer . Because a Proclamation against Building was pleaded , and no place named where it was made , and so no visn had issue here joyned . Also , because not pleaded to be sub magno sigill . Angliae . Otherwise it is not good , nor bindes not . For there can be no issue thereupon , but nul tiel record , which cannot be , unless pleaded sub mag . &c. Jones and Whitlock doubted . Adjourn .

The King against Sir John Eliot .

For disturbing and conspiring the disturbance of the House of Commons . The Malignants being brought to this Bar , disputed the Jurisdiction of this Court , and that the Parliament onely ought to try and punish malefacts done in Parliament . Upon Demurrer , It was adjudged they ought to answer . For the charge being for conspiracy and seditious acts to stop the Adjournment of Parliament , may be examined here , and out of Parliament . After they refusing to plead , were committed to Tower and fined : view the case at large .

Ter . P. 6. Car . B. Reg .

Thomas Pews case .

REsolved , That if a Bailiff comes to arrest a man , and although he uses not the words , I arrest you , or hath not the Warrant about him , but coming as an Officer , and offering no other provocation or violence . The Law presumes it to be malice and murther in him that kills him .

Sir Stephen Berd against Cudmore .

Error . Because debt was brought by an Assignee of a reversion of Land in Somersetshire , upon a Lease made at London , rendring Rent at London . Whereas the action should have been brought in the County where the Land lay . Because the privity of contract failing , he ought maintain the action upon privity in Law . Agreed on other side . And by the Court Judgement reversed , 16 H. 7. 1. 7 Rep. 2. 38 H. 6. 15.

James against Hayward .

Two questions were in Law :

1. Whether the erecting a gate cross an high-way , opening and shutting at the pleasure of passengers , be a common nusance in it self , in the eye of the Law .

2. Admitting it a Nusance , if every one may pull up and cast down the gate at their pleasure . Hide , Jones , and Whitlock , in the first point held it a Nusance . For the passage is not so free , and old people are troubled . Crook seemed not . That not any Nusance in it self , being so small a trouble , but much for publique good , to preserve corn and grass f●om cattel . And appears , there are divers gates in high-ways , which always have been allowed . And if it were malum in se there never should be any , 2 E. 4. 2. The erecting of a gate upon the way is pleaded , and to be admitted lawful enough .

To the second , they held every person may remove the Nusance , although the usual way is by Indictment . And Jones , Hide , and Whit . The cutting it was lawful . And for ancient gates , shall be intended by licence from the King .

Spalding against Spalding .

I.S. devises his Land to his eldest son John , and the heirs of his body in fee , after the death of his wife , and if he dyed living the wife , that his other son William should be his heir . John dyes living the Devisers wife , leaving a son , upon whom William , Johns brother entred . Judgement in Ely Court , that the Entry was lawful . But held now , that during the time John should have heirs of his body , William should not have the Land . And the Judgement reversed .

Cule against Executors of Thorn .

Assumsit . That he would give him with his daughter Sarah , as much as he gave any of his daughters , if he married her . In facto , that he married S. and that he gave 100 l. with his other daughter Alice , and a bond of 50 l. to be paid three moneths after his death , if Alice or any of her issue were alive . And that Alice is alive , and hath issue alive . That the Testator p●id the Plaintiff 40 l. and for the residue , and a bond , brings the action against Executors . Non Assump . found pro quer . dam . 70 l. Moved in Arrest , &c. The Breach ill assigned .

1. Because he promised to give as much as he did with any other daughter , and that extends to money , and not to the bond .

2. If it extends to the bond , yet it ought to be averred , that Sarah , or some of her issue be alive . The same opinion all the Court , especially second point . Judgement pro Defendant .

Morgan against Greens Administrator .

Declares , the Intestate was indebted to I.S. for divers wares sold , and that I.S. was Bankrupt , and this debt assigned by Commissioners , to the Plaintiff , a Creditor . Adjudged the action lies not , For debt upon a simple contract , lies not against Executor or Administrator , notwithstanding the Assignment of the Commissioners , and so makes it in the nature of a debt upon Record . Judgement pro Defendant .

West against Treud . H. 5. Car . Rot . 318.

An Action upon the Case was brought against Tenant by sufferance , for pulling down part of the premises . After Verdict . Moved in Arrest , &c. That if an action lies , it is trespass . Littleton . If Tenant at will or sufferance , destroys any the premises demised , Trespass , and nor Action on the Case lies . But Court , that Trespass or the Case may be brought at the Plaintiffs election , and properly the Case , because to prove his damages . Because he is subject to waste . Judgement pro quer .

Bachelor against Gages Executor .

Lessee of a Term , Covenants for him , his Executors and Assigns , not to erect any house to the Plaintiffs prejudice . In facto , That the Lessees Assignee had built , &c. Lessee dyes , and makes his Lessor Executor .

1. Whether this Covenant lies against the Executor of the Lessee . For he having assigned over , and Lessor accepting his Rent of the Assignee , if the privity of contract be not determined , concerning an act to be executed on the Land , and runs with it . Court , That inasmuch as it is an express Covenant that he should not build , it shall binde him and his Executors , as an Obligation to pay the Rent .

2. The Declaration being by such an Indenture testat . exist . and not expresly demisit & convenit , like Plow . 141. if good . Court , It is a usual Course in this Court to declare so .

3. The Declaration being , that he demised Mess . sive tenement . which is un●ertain . But not allowed . In Eejectment or Endictment upon 8. H. 6. it were nought .

Bethyl against Parry .

Jones , Hide and Crook , at common Law a ve . fac . returned by the Sheriff without his name , or any addition of his Office is good , and the Statute onely appoints now , that his name be to it , Plow . 63. Dive and Maninghams Case . Then being returned with his name , the addition of Nuper vice com . ( which was the errour assigned ) shall not make the return void . As it was true that Nuper vice com . must necessarily imply , that he was not then Sheriff , at the delivery of it to the new Sheriff : So it is to be construed , that by Nuper vice com . he was Sheriff at the time of the pannel made . And had he returned it without those words , it had been good .

Sheppards Case .

Declares for breaking close , &c. Defendant justifies by , &c. The Plaintiff intitles himself b● such a grant of the premises , being Copyhold land to I.S. Adjudged no good pleading , in not shewing the grant . For none may intitle himself to any Copyhold , but he ought to shew a grant thereof . Hide , Jones , &c. conceived but default in form , and aided per stat . je●fails .

Nash against Preston .

Upon a reference to Jones and Crook . The wife of a Morgagee shall not have dower : And if an husband takes a fine sur Conis . de droit . come ceo , and renders arrear . Although it was once the husbands , the wife shall not have dower . And likewise where a wife is dowable by act or rule of Law , the Court of Equity shall not bar her . For where no fraud or covin , a Court of Equity will not relieve .

Ter . T. 6. Car . B. Reg .

Tailor against Starkey . H. 5. Car . Rot . 385.

HE is a common Barrettor , a Judas , and a Promoter . Being spoken of an Attorney . Adjudged actionable .

Johns and Robinson against Dodsworth .

Errour in Maim , declares that they wi●h a third , Maimed , &c. There were several Pleas , and thereupon several Issues , 50 l. dam . against Johns and 100 l. against Robinson . Judgement against both for the 100 l. dam . and costs , assigned . Because now the Plaintiff had Judgement for the 100 l. dam . and releases not the 50 l. Court , no errour . For Judgement by the Plaintiffs election , being for the 100 l. is a waver of the other . Judgement affirmed .

Simonds against Meudesworth . H. 3. Car . Rot . 378.

Debt upon a Bond Defendant pleads that he by Indenture , and divers of the Defendants Creditors , That the Defendant should sell divers lands , and alledged in fact , that he by Indenture did sell . Pl●intiff demurs ; Because the Indenture sounds in nature of a Covenant ; and if so , shall be no satisfaction , nor pleadable , And then admitting it good , if perform'd , yet part not being perform'd 't is no bar . For agreement without satisfaction , is to no purpose .

Sands against Trevilian . M. 4. Car . Rot . 196.

Errour . Shews , he being an Attorney of C. B. Defendant retained him to prosecute a Suit there between I.S. and I.D. and promised to pay all fees and expences , &c. Upon nil debet , found pro quer . Errour assigned . Because in this case debt lies not against him , who so entreated him to be Attorney , &c. Because he has not quid pro quo ; And Assump . That if he for whom he retained him pays not . Court , good error . But doubted if debt lay . Rolls moved that debt lay , because the retainer is a consideration , 37 H. 6. 10. If one entreat a Carpenter to do such a thing for another , and promiseth him 10 l. debt lies . And 17 E. ● , 5. so , if one marry his da●ghter , &c. But Court , Not debt , but Action of the Case here . Here is no consideration between him that retained , and the Attorney for this Action . But the Attorney may have debt for his fees against him , for whom he was retained , 27 H. 8. 14. Judgement reversed .

Poynter against Poynter .

If the Plaintiff would marry ad instan . defend . Defendants daughter , he wo●ld give him 20 l. and twenty French pieces , &c. In fact , he did marry . Upon non Ass●m . Verdict proquer , Moved , That he ought to aver , that he married her ad instant . Defend . for the promise is but conditional . Court , it shall be intended ad instant . &c.

2. Because promise is to give twenty French pieces , that is not twenty French Crowns , for there may be other peices . But not allowed . For French Crowns are the common Coyn in France , and here known , and so intended according to our usual speech .

Harlow against Wright .

Debt upon a Bond for quiet enjoying of a Lease . Defendant , That post oblig , until the day of the Bill . Plaintiff had enjoyed the Land .

Upon Plaintiffs demurrer , these Exceptions :

1. Because Defendant says not a die confec . oblig . & semper post , &c. But not allowed . For , a bar is good to a common intent . And it shall be taken that he always enjoyed , unless the contrary be shewn on the Plaintiffs part .

2. Because not pleaded that Plaintiff and his Assignees enjoyed , and it was said , Plaintiff in truth had made an Assignment . Not allowed . For it shall not be intended he made assignment , unless himself shews it . Judgement pro Defendant .

Sulmon against Percival .

Trespas , for battery , wounding and imprisonment . To the wounding , not guilty . To the Battery and imprisonment , justifies as a Sergeant of London , and that he arrested him by Process . Plaintiff replies , that he tendred him sufficient bail . Defendant takes issue of non tender of bail , and found against him , and intire damages . Moved in Arrest , &c. That having justified tender of bail , is not material , for not he , but Judge of the Court ought take bail . And though it was objected pro quer . he was ( refusing to take bail ) a trespasser ab únitio , as he who enters into a Tavern , and takes a c●p away . Yet Court , justifying the arrest , &c. though he might take , and refused bail , that makes not the arre●t tortious . Probably Action of the Case lay for detaining after bail tendred . Judgement pro Defendant . Dam . given as well for the battery , &c. as wounding .

Dow & alii against Golding . H. 5. Car . Rot . 125.

A Lord of Copyhold Mannor assessing unreasonable fines , as two years and half on a rack Rent , upon a grant of a Copyhold . Resolved , If he enter for non payment , it is unjustifiable .

Hughs Case .

One taken upon an Excom . capiend . upon a condemnation in the Vice-Chan . of Oxford for Costs . And the Significavit returned into Chancery , and delivered here according to 5 Eliz . cap . 23. Exception taken because it is not expressed to be for some of the causes mentioned in the Statute . Littleton said , that tho●gh it mentions not any of the causes in the Statute , but is for other causes ( viz. co●ts ) yet the Excomm●nication good . But if any cap . with p●ocl●mations and penalties therein awarded , Then otherwise . To which agreed the Court , and to the case 3 Car . of one Brown .

Lord Brooks against Lord Goring .

Queen Elizabeth grants the Office of Clark of the Council of the Marches in Wales , to G. for life , in 19 of her Reign ; and 25 year , she grants the Office of Secretary there for his life . And 1 Jac . He grants the said Office to G. for life , without reciting the former Patents , and 9 Jac . reciting , 1 J●c . he grants to another post mortem , &c. of G. and in 14 Jac . reciting 1 and 9 Jac . and not 19 ●nd 25 Eliz . he grants to another . Agreed , that 1 Jac . was void , not reciting the former Patents , and no non obstante therein . Harris and Wings case If Lessee for years of the Q●een , take a new lease for years of the same thing , without reciting the former , it is a meer void lease , and no surrender of the former . And this Case is stronger : For gra●t of an Office cannot be surrendred by taking a second .

2. It was agreed , that the Patent of 9 Jac . was also void , because no non obstante in 1 Jac . and agreed that 14 Jac . was void , for th● King was deceived in his Grant , and non obstante , cannot aid such false informations , 6 R●p . 35. Dyer . 147.

King and Codrington against Rodman .

Excom . cap . on a sentence in the Delegates for costs in castig . morum Defendant pleaded quoad , all the penalties and forfeitures , 't is not for any the causes within the Statute , therefore quoad them he ought be discharged . And so held by the Court . And quoad excom . Cap. pleaded , that the offence for which it was awarded was before 21 Jac . the General Pardon , and pleads that in discharge : Upon demur to the Plea . But moved , that this Writ being for Costs , taxed for the party , and he having interest in them before the pardon , the pardon shall not take them away , which was agreed by the Court . And they held , That the Excommunication , and all contempts before , were discharged by the pardon ( except onely costs ) 8 Rep. 69. for the payment of which , he ought to have new Process . P. 7 Car . M. 2 Car . Rot . 64.

Smart against Dr. Easdale .

Thou wast perjured , and hast much to answer for it b●fore God . Court held actionable . Though not alledged to be spoken in audita plurimorum . And that it was not material how long since it was spoken .

Ter . M. 6 Car . Ban . Reg .

Hulm against Hyleck .

REsolved , That a fine and non-claim may bar the Baron who suffered the five years to pass , and the Feme during Coverture . But the Feme shall have new five years after the death of the Baron . If one enters after a Devise , before Devisee enters , and dyes seized , that descent takes not away the Entry .

Indictment of forcible entry in tythes , where restitution was prayed , whether here an Indictment is maintainable ? For agreed , an Assize lies of tythes by 32 H. 8. And moved , that the Indictments were allowable as well for tythes as rent . And for rent . F. N. B. 20 H. 9. 11. 22 H. 6. 23. And a Writ of Restitution granted .

Levannes Case .

Resolved , That where Administration was , the Ordinary cannot compel the Administrator to make distribution . For the absolute interest in the goods is in the Administrator . And if the Ordinary meddles , a Prohibition lies . See before , in Fortherbies Case .

Pilchard against Kingston .

In consideration the Plaintiff marry J●ne S. and that such lands should be assured for her joyn●ure . Defendant promised the Plaintiff to pay him 100 l. & firmam faceret 600 l. her portion . Shews , that he at the Defendants request , espoused , &c. and that Defendant h●d not paid nee firmam face●et , the 600 l. Moved , That the Declaration is nought . Because 't is not shewn , that he might not have the said portion , or that Jane S. had such a portion . Court held it good enough , for it pursues the words of the Assumpsit in the breach alledged . And these words tant amount , that he would warrant that he should have such a portion .

Downs against Winterflood .

One of the Jurors was returned by the name of Alexander Prescot , and in the resummons , it was Alexandrus Prescot , Whether this were aided by any the Statutes , or amendable by the Stat. 21 Jac . Court held , It was not aided by 21 Jac . for that extends onely to the Sirnames of Jurors , where additions are mistaken , and it appears to be the same person 5 Rep. 42. Where Palus Cheak was returned in the Venire , and in the distring . Paulus Cheak , not to be amended . Adjourn .

Aquila Weeks Case .

Keeper of the Gate-house , sued for the escape of one in Execu●ion upon a Judgement . T. 2 Car . And the record of Nisi prius mentions the Judgement to be T. 3 Car . Plaintiff Non-suit . Moved by this misprision Nisi pr●us record is not warranted by the Roll , and the Non-suit thereupon null . For there was no warrant for the Nisi prius record . And a distr . de novo was awarded .

Crowle against Dawson .

Debt upon a Bond , That his intended wife and her children should enjoy all the goods of her first husband , without his disturbance , claim or interruption . Plaintiff assigns breach , That she had of her first husbands so many sheep , and after her marriage with the Defendant , Defendant took them and detained them from his wife . Upon this issue , and found for the Plaintiff . Moved in Arrest , &c. For he shews not that the hu●band made any disturbance , for by the marriage the goods are his . Hide and Jones of that opinion . Whitlock and Crook . The breach well assigned . And it must be supposed a fo●cible taking and detention , and unjust , contrary to the agreement . Judgement pro quer .

King against Lord . H. 5 Car . Rot . 793.

It was urged , that when a Copyholder for life surrenders to the use of another , who is admitted , the first Copyholder hath quasi , a possibility , or remainder of an Estate . But if a Copyholder for life surrender to the intent the Lord should grant it to whom he pleased , then his Estate was drowned . Dyer . 264.

But Court , That such Copyholder may not have it again , but that her Estate is meerly determined by the surrender . If Copyholder in fee surrender to the use of another for life , after his death he shall have it again . Judgement .

The Lord Savils Case .

Where one is sued in the Common bench , in Personal Actions , and Process of Outlawry . A Writ is sen● out of the Chancery , reciting that he is a Peer of the Realm , and appoints that no other Process shall be awarded against him , then such as shall be against a Peer . Regist . 287. F. N. B. 247. So it hapned in this case .

Ter H. 6. Car . Banc . Reg .

Drake against Munday .

DEbt by an Executor , Shews , That the Testator covenantd , granted , and agreed with Defendant , That he should have and enjoy , &c. for six years . And in consideration of the premises , the Defendant covenanted and agreed with the Testator , the Rent of &c. And for a years Rent , the Executor brings the Action . Defendant demurs , Whether this was meerly in the Covenant , and so go to the Executor , and did not inure as a Rent by way of reservation , and so follow the reversion . And it was moved to be a Covenant by the intent of the parties , otherwise the words of the Covenant were idle , Dyer . 275. 4 Rep. Rawlings Case , 5 Rep. Windrams Case , and the rather a Covenant for that ratione premissor . he Covenants . Court held , That it was meerly a Rent , and ensued the Reversion , and so go to the Heir . For as the words of the Covenant , that he shall enjoy , amounts to a Grant , and binde the Heir . So the words , that he shall pay such a Rent , amounts to a Reservation ; Plow . Browning and Beestons Case , 21 H. 7. 36. Judged pro . Defend .

Beamond against Long .

Baron and Feme , being Administratrix to her former husband , brings debt upon a Bond due to the Intestate . After Judgement Feme dyes , and a year and a day pass , and Baron brings a sc . fac . The Court held , That a sc . fac . lies not for him . Because being demanded by Feme as Administratrix , it is in auter droit . And the duty remains to him , who takes new Administration as in right of the Intestate . But if Baron and Feme bring debt , for debt due to the Feme , there the Baron may have a sc . fac .

Stroud against Hoskins .

Upon a suggestion for a Prohibition , being sued for tythe of Heath and Barren Ground , within seven years after improvement . Whether by the Statute the suggestion ought to be proved by witnesses . Resolved , that it ought , because 't is a meer matter in fact . And the suggestion ought to be proved , as well amodus deciman . or discharge of tythes .

Sir William Courtney against Sir Richard Greenvil .

Errour upon Judgement in debt . Declared , That Defendant May 10. &c. concessit se teneri , &c. & profert hic in Cur . &c. Errour assigned , because he does not declare according to the usual course , quod perscript . oblig . concessit , so it appears not to the Court that there was any obligation . But Court held , Because he shewed the writing whereby he demands the debt ; and Defendant by his pleading paymen● , shews that is an Obligation with a condition . And issue thereupon ; and found pro quer . That the Declaration is good enough . Judgement affirmed , 5 Rep. 25. 7 Rep. 25. 8 Rep. 133. 8 H. 7. 71. 18. E. 4 , 16.

Gray against Feilder .

Debt upon Bond assigned by Commissioners of Bankrupts , coming in by act in Law . Adjudged good , without shewing the Obligation in Court . As Tenant by Statute Merchant , or Dower , shall have advantage of a Rent-charge , without shewing the Deed .

Sir Miles Hobert and Strond their Case .

Being committed to the Marshalsea , were by Order sent to the Gate-House . And by reason they never were in the Old Prison of the Gate-House , but in an house of the Keepers , and with their Keepers .

Whether they might be said ever to be imprisoned . And the Judges held , That their Voluntary retirement to the Close-stool , made them to be Prisoners . They resolved also , Although departs from Prison by his Keepers Licence , yet it is an offence as well punishable in the Prisoner , as in the Keeper . And Court agreed , That the Keepers consent , and not consent , makes the difference between Breach of Prison and Escape , and in both the Prisoner is punishable . Resolved also , The Kings Bench is not any Local Prison confined onely to one place . And every place where one is restrained of his liberty , is a Prison .

Ter . P. 7. Car . Banc . Reg .

Flowers Case .

WOrds spoken of a Midwife , Many have perished for her want of skill . Held actionable : Because she shews she gather●d maintenance that way . And these words may be prejudicial .

Helier against the Hundred of Benhurst . P. 6 Car . Rot . 233.

Berk . ss .

An Action upon the Statute of W●nton . That he was robb'd , and made Hue and Cry , and that none of the Robbers are yet taken , and that he took his Oath before I . S , Justice of Peace for that County , inhabiting within the Hundred . And if ( the Oath being taken before the said I.S. at his chamber in the Temple ) be a good Oath , secund . form . Stat. It was moved , Whether I.S. being out of his County , can take such an Examination . And urg'd he could not , ●3 E. 4. 9. Plow . Plats Case , 32. That a Justice of Peace cannot exercise his Jurisdiction out of his County , to commit any Felon . Urged by the other side . The Jury finding in general , that he took his Oath secund . form . Stat. and after specially , that it was at the Temple , 22 Eliz . Dyer . Sir Rowland Heyward . The last is void . And then they moved , That it was well taken at London : For the Statute appoints not to take it in the County , but by a Justice of Peace inhabiting in the County , neer the Hundred , 8 Jac . A report , That a Justice of Peace taking a Recognizance out of his County , was good . Being moved again , Judges agreed , He is said to be a Justice inhabiting in the Hundred where his family and himself usually are commorant , although in Term he be at London . Hide and Whit , doubted that the Examinations cannot be taken out of the County , because out of their Jurisdiction . But Justices of the Kings Bench may any where in England , and compared it . Where two Justices , 18 Eliz . ordered for the keeping of a Bastard . Not to be done out of their County . And 5 Eliz . of Labourers . Therefore they held this Examination ill . Jones and Crook contrary , That it is not material where taken , so by a Justice of that County , and neer the Hundred . Sometimes they take Recognizances , and that by assent of the parties , well enough out of their County : But they cannot compel one to enter into a Recognizance . And after Judgement was given , that this Examination was well taken , being no act of Jurisdiction , but matter of Examination , to enable the Plaintiff to his action , 47 Ass. 11. Justices Assize take Verdicts in other Counties , 1 H. 6. 3. Distress may be driven into another County , 27 Eliz . an Irish Bishop being in England , committed Administration of ones goods , dying in Ireland within his Diocess .

Flower against Elgar .

One recovers in debt , takes Execution by Elegit , whereupon the Defendants Lands were extended and assigned over , and so conveyed to several hands . Plaintiff in the action releases all such Judgement , &c. Defendant brings an Audit . quer . Resolved , that though a Writ be bro●ght against the first Plaintiff . and not the Assignee , yet well brought .

Fawkner against Bellingham .

It was held by all , that the Judgement was erronious . For they all held , that the Rent was the same as before , and not a new Rent begun by the Statute , but changed by operation of Law , from Rent-service to Rent-seck . Jones , Had he recovered this Rent before the Statute in an Assize , and after the Statute had been diseised again , he should have a re-diseisin , which shews it the same Rent . And likewise to the distress , the Statute is express , that no Avoury , shall be made for Rent , unless there hath been seisin thereof within forty years . If Lord and Tenant by Rents and Services , if Tenant by license at this day , makes a Feoffment by Indenture , to hold of him by the same Services , as he holds over . In Avowry for this Rent , there ought to be seisin within forty years .

Ter . Trin . 7 Car . Ban . Reg .

Ward against Uncorn .

IT was adjudged in debt upon a Bond to perform an Award , That where a submission made the 29 of Decemb . of all matters and controversies between them , and the award was of so much in satisfaction of causes and matters until the 28. of Decemb . and so excludes one day before the submission , a good award . 8 Rep. 97. T. 43 Eliz . rot . 947. For when he saith , they made an award de & super premissis : and it appears not to the Court by any special , shewing , that there is any cause newly arisen upon the said 28 day , the Court will not conceive any . Judgement according .

Flower against Baldwin . H. 4 Car . Rot . 687.

One bargains and sells Land , next day 't is acknowledged before a Master in Chancery . After Batgainor suffers a Judgement ; and after that the Deed is inroll'd . Littleton moved , that the Bargainor was not seized at time of the Judgement . For being inroll'd shall have relation to the Delivery , 8 E. 6. Brook inrolment fayts 9. Two Joyntenents , the one sells , &c. the other before inrolment dyes , and the inrolment within six moneths , a moyetie onely passes . Cook . Littl . 147. If after Bargain and Sale , Bargainee and Bargainor joyn in a Grant of a Rent-charge : The Deed inroll'd within six moneths , It is the Grant of Bargainee , and confirmation of Bargainor . And so if Bargainee dyes before inrolment , and after 't is inroll'd , his wife shall have Dower . And to this all the Court agreed , That the inrolment within six moneths , relates to the sealing , and puts the Bargainee in , to avoid all incumbrances made to strangers after sealing .

Atkey against Heard .

Action for Trover and Conversion of the Intestates Goods , and the conversion supposed after Administration . And being found against Plaintiff : Resolved , it was as his own proper action , and he should pay costs .

Taylor against Willes . T. 5 Car . Rot . 1204.

Errour . Upon an Assumsit . First , there being two several Assump . they finde Assump . generally , and do not Divide them . Resolved , if they were upon several promises , yet non Assump . generally is good . 2. Because they found the damages to be paid in dying , if by Law it may be so , is void , &c. Resolved , the finding of the damages being good , and that after void , the Judgement ( omitting that which was void ) is good enough . Judgement affirmed .

Mariot against Kinsman . M. Car . Rot . 38.

Debt upon a Bond by the husband , conditioned to permit the Feme to make a Will , and Devise Legacies to the value of not above 50 l. Adjudged for the Plaintiff . For though she were Covert , and could not make a will to dispose of any goods without his consent . Yet it is a Will within the intent of the Condition . And 't is but her appointment , which the Baron by the Obligation is bound to perform .

Drakes Case .

A Prohibition was granted , to stay the Suit for Alimony , in the Spiritual Court . Statute 1 Eliz .

Rockey against Huggins . T. 4 Car . Rot . 764.

Resolved , That a Custom for Copyholder for Life , to cut Elms , is a void Custom : But peradventure such Custom may be for Copyholder of Inheritance . Lease for Life or Years , without impeachment of waste , must be by Deed , nought without . H. 45 Eliz . Rot . 156. C. B. Powel and Peacock . Such custom pleaded in Trespass judged not , H. 6. Jac . Rot . 2613. Rowls and Masters . Adjudged where the custom of Beauminster was for Copyholder for Life , might nominate his Successor , and so in perpetuum , &c. and that such Copyholder might cut , &c. It was said , where he hath the Inheritance , and he to name his Successor ( whom by intendment he would not hurt ) it might be good . But all agreed , That such a custom for Copyholder for life , was nought . Judged void custom . Vi . 14 E. 3. Bar . 77. 21 H. 7. 40. 11 H. 7. 14. 9. H. 4. wast . 59.

Congham against King . H. 6. Car . Rot . 114.

Covenant . For not repairing an house let inter alia , against the Defendant , as an Assignee of an Assignee . It was urg'd , that the Action lies against the first Lessee ; as 3 Rep. Walkers Case . But resolved , This covenant is devidable , and follows the land , with which the Defendant as Assignee is chargeable , by the common Law , or by Statute , 32 H. 8.

Feme Covert , sues in the Spiritual Court for Defamation without her husband , sentence for her costs . Defendant in appeal , pleads release of her husbands , as well for sentence as costs . Resolved , That a release of the husbands cannot bar the Suit quoad reformation . morum . But for the costs , the Baron may release . And Prohibition was awarded quoad the costs .

Sir William Marsham against Bridges .

Words against Justice of Peace . Sir William Marsham is but an half ear'd Just●ce , he will hear but on one side . Resolved , That if it be not sufficiently shewn that he was a Justice of Peace at the time of the words speaking , the Action lies not . And for the words , they held scandalous ( spoken of a Justice of Peace .

Sankil against Stocker .

Moved in Arrest , &c. For upon the venire , but 23 Jurors were returned , where there ought to have been 24. And the Tryal was made by ten of the principal Pannel , and two Tales . Jones , Whit . and Hide . The Tryal being made , the non-return of the 24. is but a misreturn of the Sheriff , which is aided by 18 Eliz . 5 Rep. 37 , Where on the Venire , 23 were returned , and the Tryal made by 12. Good , and aided by the Statute . Cro●k , Where the Tryal is by 12 of the principal , 't is good ; but if by Tales ( in this case ) nought . 20 J●c . Calthorp and N●ws . But after much debate resolved , aidable by the Statute , being but a misreturn of the Sheriff .

M. 7 Car . Ban . Reg .

Smith against Norfolk .

DEbt . As Administratrix to her husband , for Rent due in her husbands life , and two quarters since his death . Moved because the Action was brought in the detinet onely , for the last two years it should have been in the debet & detinet ; she having the interest onely as Administratrix , and that case in 5 Rep. is not Law , Judgement pro quer .

Taverner against Skingle .

Debt , upon a Bond to perform the Award of I.S. and I.D. And if they did not agree by su●h time , then to stand to the Umpirage of I.N. to be under hand and seal by such time . Defendant pleads , that I.S. and I.D. did not , &c. nor the said I.N. Plaintiff replies , that true I.S. and I.D. did not , &c. But I.N. did by the time limited , &c. and awarded the Defendant to pay to the Plaintiff at such an Inn , by such a day , 30 l. Defendant demurs , and it was moved , The submission is uncertain , for it is , if they do not agree . But not said about what , and therefore void . Not allowed : For the words have their intendment , if they do not agree about their Award .

2. Because the money is appointed to be paid at a strangers house , wherein by intendment Defendant had no interest , nor could compell him to suffer money to be paid . By which the Defendant might probably be a trespasser , 5 Rep. 77. 2. H. 6. 46. Court , it is good , the appointment being at an Inn , though a strangers , cannot be unreasonable . If the stranger denies payment there , a good excuse for the Defendant . Judgement pro quer .

Beumond against Long .

They held still , that the Sc. Fac . lies not for the Baron . Its clear , if Administration be committed , because no Will extant , and the Admini●… rator recovers in debt , after the Will is proved , wherein there is an Executor , he shall not have a Sc. Fac . upon that Judgement . It was urged in the principal case . Judgement was for costs and damages , which belong to Baron . And therefore a Sc. Fac . for them , that the Court resolved not . Yet 19 E. 4. Recoverer in real action for land and damages , his heir shall have Sc. Fac . for the land , and Executor for damages .

Reynel against Champernoon .

If one fishes and rows in my several Piscary . By Court held , I may not cut his Nets or his Oats , but detain them as damage fesante .

Tyler against Wall .

In Assault and Imprisonment . The Plaintiff declares , that the Defendant assaulted , and took him 31 Octob . and kept him two days . Defendant justifies as Bailiff , and that he arrested the Plaintiff 13 Septemb . and kept him two days , which is the same Arrest , Detention , &c. Plaintiff replies and confesses the Warrant and Arrest . But that he found Sureties for the Sheriffe , and afterwards did assault him , ult . pred . Octob . 9 Car . Defendant demurs . Moved for the Plaintiff , That Defendant answers not the time in the Declaration , viz. 31 Octob . neither by answer or traverse . Grimston pro Defendant , that the justification being of an act of the same County , and justifying the time in the Declaration , although it agrees not with it in the day , but conclude quae est eadem trangres . Court held good ; and Replication ill , because he departs from the day in his Declaration .

Hugs Administrator against Harris .

Accompt . Against one as Guardian , for that he occupied Lands which were granted to , &c. by Copy of Court-Roll , tenend , secund . consuet . Manerii . sound pro quer . Moved in Arrest . First , because in his Declaration he recites not Statute of Marl . not allowed . For being a General Law , needs not be recited . And that Statute gives not this action . Cook . Lit .

2. It appears not to be Freehold , but Copyhold lands , and against occupier of Copyhold account , lies not . Not allowed . For though it is not ad volunt . Dom . There be many Free-holds in Wales granted by Copy and Verg .

Thou art a Knave , and stirrest up Suits betwixt parties , and stirrest up a Suit betwixt such and such parties to their undoing . Spoken of an Attorney . Actionable .

Holinsheads Case .

Thou art a Bawd , and I 'll prove thee a Bawd . Because not actionable at Common Law , they be determinable properly in the Spiritual Court , and no Prohibit . Otherwise . Thou keeptst an house of Bawdry . 27 H. 8. 4 Rep. 20.

Sanders against Corinth . T. 4 Car . Rot . 840.

One Devises a Term to such a one for life , and after that , such a one shall receive the profits during life , and so over . Question , Whether this Devise of a Term in this manner be good to go in Remainder . And if such Remainders one after another , and limitation of the Devise of a Lease , may be good . Court , That the Devise of a Term in this manner to make a perpeturity cannot be good . For to limit a possibility after a possibility , and the Remainder of a Term after a dying without issue , stands not with Law . Cur . Advis .

Jenkins against Young . P. 6 Car . Rot . 53.

Land given to Baron and Feme , to the use of them and the heirs of thei● two bodies , and for want of su●h issue , to I.S. and his heirs . Whether Ba●on and Feme have Estate-tale , or for lives ? adjudg●d ● tail . Errour assigned . For he alledged the estate , ou● of which the use should rise , was but for their lives , and the use cannot make Estate larger than the limitations . Dyer . 186. Jones , Whit . and Crook , conceived difference where an Estate is limited to one , and the use to a stranger , there the use shall not be greater than ●he Estate whereout derived . But limitation to two habend . to them , and to the use of their two bodies . They are not in by the Statute , but course of Law . Cur . advis . adjour .

The King against Maynard .

It was urged by Noy and Mason , That ingrossing of Salt not an offence within 5 E. 6. c . 14. First , Ingrossing , in it self , is no offence nor fore-stalling , &c. Secondly , It is not any victual within the words of the Statute . Pas . 18 : Eliz . That buying Barley and making Malt of it , and selling it , no offence in a Mayor , who is prohibited to sell victuals . Hops no victuals within Statute . P. 14 Jac . rot . 136. Buying apples , and selling again , not victuals within , &c. adjourned , &c. It was said to engross salt to sell at his own , and unreasonable prizes , he is indictable , P. 43. E. 3. rot . 19.

Upon Trespass by Feme sole after verdict , Defendant aljour . in Banc . pleads , that after verdict , and before the day the Plaintiff took to husband I.S. and demanded Judgement , &c. Adjudged , that this plea should be ousted , and the Plaintiff have Judgement , unless , &c. 4 H. 43. 21 H. 6. 10. 21 H. 7. 33. 5 H. 7. 40.

The King & al. against Hill & al.

Information . Upon 32 H. 8. for buying titles , &c. Not guilty sound pro quer . Moved in Arrest , &c. Because there is a mis-recital in the date of the Act. And being misrecited , though it needed not have been recited at all , it is ill , Plow . 78. But urged on the contrary , Though misrecited , yet not material ; for he alledges he bought titles cont . form . statut . in hujufm . casu edit . But Record being viewed , it was statut . predict . min. cur . Secondly , it is not averred in fact , that they were pretended Rights , which ought to be . Thirdly , he shews , at the time of the fine , the Land was worth 800 l. but shews not the value at the time of the bargain , for the grant of them is the offence : And they might be more worth at the time of the bargain . Fourthly , Verdict findes Hill and his wife guilty , and she is not party to the Suit . Court , These faults made the Information nought . Cur . Advis .

Matthews against Whetton . H. 4. Car . Rot . 596.

Copyholder for life , makes a lease for one year by Deed , and the same day makes another ●ease for a year , to commence at the end of the first ; and another lease for year , to commence at the end of the second . And afterwards surrenders his Copyhold to the Lord , who enters , and lets to another for forty years . Resolved , That the three leases made so at one time , shall be intended one intire contract , and not warranted by the custom , but is a forfeiture . By the Law , Copyholder could not lease for years , but by custom , unless it were to try title . Then it was urged , that the Lords accepting this surrender , and not entring for the forfeiture , allows the other leases . But resolved , that ( admitting the forfeiture ) the Lords acceptance of the surrender , not knowing of the forfeiture , is no Dispensation .

Holiday against Oxenbridge .

Trespass for assaulting , wounding , &c. Not guilty to the wounding , and to the residue , shews that the Plaintiff was a Cheater , and that he cozened with false Dice , and came into the house of Sir N. Carew , a Justice of Peace , and that he played with the Defendant , and cheated him of divers sums of money with false Dice . Thereupon the Defendant moliter manus , &c. being in the same house , and brought him before the said Justice , who bound him to the Sessions , and there he was convicted of the said crime . Upon Demurrer , That one cannot Arrest without an Officer for any cause , unless in Felony , upon his onely suspicion any man , wherefore , &c. Court held the Plea good ; For he shews , that he was a common Cheater , and cozened with false Dice , and led him therefore to a Justice within the same house . And then he was convicted thereof . And it is pro bono Publico to stay such . Judgement pro Defendant .

Lakins against Sir John Lamb & al.

In a quare impedit , the Defendant Lamb pleads to the Non Concessit ut , &c. which upon Issue was tryed . Holt pleads a Plea which was demurred to . Verdict in Summer Assize , pro quer . and the Postea returned at Octob . M●ch . Entry was Cur . Advis . of Judgement sur . verdict . & demurrer . Day was given to Holt usque Octob . Hill . And then Judgement was given upon Verdict and Demurrer . And it was moved for Errour , because no day was given to Lamb , against whom was Judgement on the Verdict . For Judgement not given the same Term , the postea returned , day ought to have been given to all the parties . Therefore a Discontinuance . And discontinuances after verdicts not aided . Court , no discontinuance , Judgement affirmed .

Mot & ux . against Butler . T. 7 Car . Rot . 5.

There was speech of Sibil and Alice , the Plaintiff Sibil Goodwin hath stoln such goods , and that she ( innuend . the Plaintiff Alice ) was privy , and consenting thereunto . Moved in Arrest , That the Communication being of two , and not specially of Alice , for the innuendo helps not , there cannot be any reference to the Plaintiff , 4 Rep. Hoberts case . Court , certainly alledged enough . And that this word she cannot be referred to Sibil , but to the Plaintiff . And she was privy and consenting to the stealing , &c. actionable .

Jaxon against Tanner .

Words spoken of a Merchant , Thou art a Rogue , and a beggarly fellow , I shall prove thee a Bankrupt before the next Term . And afterwards speaking of the Plaintiff , Trust him not , for he will be thy undoing . Intire damages given . Moved in Arrest . The words are alledged to be at several times . The first will beat action , but the second words will not . And therefore intire damages given . No Judgement can be . But the Court held , That the second words are as Actionable as the first ; and Judgement according . For the second aggravates the first words .

Facy against Long .

Adjudged , That tythes shall not be paid for Cattel eaten in a Family , no more than for Cattel reared for Pale or Plough , H. 9 Jac . so adjudged .

Margaret Hinde against Bishop of Chester .

A Suit in the Consistory Court of Chester , for Mortuaries . Where it was said , there was no such custom . It was urged , that a Mort . is meerly tryable in the Court Spiritual . And if any where else , a Prohibition lay , F. N. B. 5● . 51. Upon the Statute of of Artic . Cler . Kellway 110. But the Court said , here the custom is in Issue , and it is tryable at the Common Law . For the Statute appoints what shall be paid for Mortuaries , and that they shall be paid in Wales and Chester . And his Issuable and Tryable at the Common Law . Prohibition granted .

Mills against Mills .

If two conspire to indict another , an Action by the Court will lie against one of them .

Walsh against Bishop . H. 6. Car . rot . 954.

Two sued in Battery , the one justifies , other not guilty . Both Issues found pro quer . and several dam . assest , but joynt costs . And after the Plaintiff caused a Nolle prosequi to be entred against one , and takes Judgement against the other . It was urged , that a Nolle prosequi against the one , before Judgement entred , is as a release to him , and shall inure to the other , and the Writ abate for both . Otherwise , had he prayed Judgement against the one , and had it , 14 E. 4. 6. But on the other side , it was said to be but acknowledgement that he would not prosecure one which may well be where several Pleas and Verdicts . Cur . Advis .

Robinson against Cleyton . T. 6 Car . rot . 1343.

Resolved , If one taken in Execution make Escape , Plaintiff may have a new Execution , and Defendant shall not plead the former taking : For it is not reason he should take advantage de son tort demesn . Though it is no good return in the Sheriff , nor Plea in debt upon Escape . And the Plaintiff is not barred of his remedy against either , unless a recovery against the one is pleaded , 29 Ass. 41 Cook 3. 44. & 52.

Wells Administrat . dur . minor . I.S. against Some ,

In account , against Defendant as Bailiff and Receiver , pleads to the Issue , and found pro quer . Moved because shews not that I.S. was under 17 years ; for he may be under age , and yet above 17. But Court , It shall be intended , unless shewn that he was above , when the other pleaded to the Issue .

2. Because he charges as Bailiff , &c. and after shews not any charge against him as Receiver . But not allowed . For the more the Defendants benefit . Judgement pro quer .

Ter . H. 7 Car . Ban . Reg .

Mills against Mills .

ASsumpsit . In consideration of marriage promised to pay 20 l. ( viz. 10 l. at Mich . 1631. and 10 l. residue at Mich . 163● : Action brought for the non-payment of the first 10 l. dam . found to 20 l. and 2 l. costs . Moved , That the Action lies not till after Mich . 1632. Like Action on Bond to be paid at several days , debt lies not , till the last day . Court , The Action lies well before the last day , being upon Covenant or Promise . Agreed , the Case put of a Bond .

2 : Because dam . are given for the last day , not yet come . Court , The 20 l. given , shall intend the first 10 l. and no dam . given for the last 10 l. Judgement pro quer . 2 and 3. P. and Mary , Dyer . 113.

Cooks against Douz .

Error assigned , because it shewn he forbore per paululum temp . which is no consideration . But agreed well enough , for when the money was lent , and forborn , the Plaintiff upon Defendents request agreed for a longer time , and alledges in fact that he forbore till the day of his action . Judgement pro quer . affirmed .

Berry against Heard . H. 19 Jac . Rot . 1444.

Trover and Conversion for loads of Bark . Quest . If a stranger cuts down a Timber tree in the time of Lessee for years , and carry that or the bark of it away , whether Lessor , may have Trover , or be put to waste against his Lessee , and the Lessee to bring Trover against the said stranger , or Lessor at his election p●nish the one and the other . Jones , Whitlock , That the Lessor hath his Election . For the property of timber is always in the Lessor , non obstante Statute of Glocester , which gives him his action of Waste . R●chardson the same , That when cut down , the sole property in the Lessor . Crook , That the Lessee solely shall have the action , and not Lessor : For during the term , the sole property rests in the Lessee . And Lessor may have Waste to answer to the Lessor the treble dam . For the Lessors Recovery in Trover● . No bar for Lessee to plead in Waste . But upon the three other opinions judged pro quer . 4 Rep. 62. 5 Rep. 76. 11 Rep. 48 , & 81. Dyer . 90. 44 E. 3. 5. 10 H. 7. 2 Cok . Lit . 220.

Walsh against Bishop .

It was again resolved , that the Nolle prosequi was a release to the othe● . For if one pleads a Plea , and there is a Demurrer thereupon ; and the other pleads to the Issue , and it is tryed , It is usual to enter a Nolle pros●qui against him who pleaded , whereupon the Demu●rer was , and pray Judgement against the other . S● where they sever themselves , 18 E. 4. 26. 5 H. 5. 1 5 H. 7. 24. 11 H. 7. 5.

Copland against Pyat . T. 6. Car . rot . 687.

Lands settled ( in consideration of 200 l. po●tion in Marriage , to the use of the Donor for life , and after to Robert and Margaret , and the heirs of her body by Robert begotten , and for want of such issue to the heirs of the body of the said Margaret , with divers Remainders over . Robert and Margaret had issue . Robert dyes , Margaret takes another husband , and they by fine couweys it away . The issue enters upon a forfeiture by Statute 11 H. 7. Whether a forfeiture or not . And adjudged she was not any Joyntress within that Statute . For it is not of the purch●se of the Baron or his Ancestors , but an Advancement by the Ancestors of the Feme . M. 19 Jac . Kinastons Case , 16 Jac . B. R.

Meredith against Joans . P. 6. Car . rot . 53.

Errour upon point of Law .

Land was given to Baron and Feme , habend . to Baron and Feme to the use of them and the heirs of their bodies . Whether this was an Estate for life onely , or in taile . Adjudged a tail . And after in Errour they held Judgement to be affirmed . For it is as if it had been said habend . to them and the heirs of their bodies . And not like Dyer . 186. when an Estate is limited to one or two to the use of others and their heirs , the first Estate is not enla●ged by this implication . But when the Grant and habend . convey the Estate , and the limitation of the use is to the same person . There a good limitation of the Estate , for the Use and the Estate go together . Judgement affirmed .

Swain & alii ag . Stephens . H. 6. Car . rot . 1243.

Trover and Conversion . Whether Trover and Conversion be within the Statute of limitations . Court held , that all actions upon the Case shall be brought within such time , Trover is implyed in those generall words , Actions on the case . Secondly the Proviso , That if the Plaintiff be beyond the Sea , he shall be saved , the same equity shall not be to the Plaintiff , the Defendant being beyond Sea , that the Court did not then resolve , but after they did resolve to be within the Equity . Thirdly , although barred by the Statute as from the time of the conversion , yet requesting him upon his coming over to redeliver , and he refusing be not a new cause of action , and so be restored to his Action ; Jones and Wh●tlook conceived he might , Crook doubted . Judgement pro quer .

Sautley against Pricc . H. 5. Car . rot . 1276.

An appeale was brought in Shropshire , for a murther done in County Montgomery , Resolved the Writ should abate , for 't is against a fundamental rule of the Law , that a Trial for Murther by appeal or otherwise , should be out of the County where it is committed 18. E 3. 32. 11. H. 4. 98. and before 2 E. 6. 't was doubted , if a stroak given in one County , and death ensued in another , where to be tryed . But allwaies clear , that a fact in one County , not to be tryed in another . But if the Murtherer were in custod . Mareseh . whether he should be tryed here by Bill they would not resolve . No presidents could be shewn that an appeal hath been allowed in Counties adjoyning , for murther committed in Wales , T. 1● . H. 6. For a Rape &c. P. 10. E. 2. rot . 110. P. 5. E. 4. rot . ●4 . Statute 26. H. 8. cap . 6. Allowes Indictments to be in Counties next adjoyning , but no mention of appeals . Judged the appeal lay not .

Lancelot against Allen . T. 3. Car . rot . 1037.

Resolved that Lands given to the maintaining of a Priest to say Masse &c. and he to have yearely three pounds and six shillings , and that what shall be above shall go to the repairing of the Church . That this land was not given to the King by 1. E. 6.

Ter . Pasc . 8 Car . Banc . Regis .

The King against Sir James Wingfield , & alios .

INformation against Defendants for assaulting Sheriff of Middlesex in serving Execution upon Sir James Wingfield , by which he escaped . All not guilty . And upon the tryal all but Bedel made default . Held That because the suit was for a Criminal offence , though they all pleaded , yet 't is to every one quasi several , and the default of one shall not be the default of the others , nor confession of one prejudice the others . And upon tryal all but Bed●l found guilty . And the Court assess'd several Fines . And resolved , That such fines assest in Court by Judgement upon an Informat●on , cannot afterwards be qualified .

King against Mayor and Commonalty of London .

They were fined 1500 marks ; for because one Dr. Lamb was slain in a tumult in the day time , and none of the Offenders indicted for it , 3 E. 3. Coron . 2●9 . 22 E. 3. Coron . 238. Stamf . 33. 7 Rep. 7. 3 H. 7. 15. Dyer . 210. Noy produced a president , 18 E. 3. Rot . 132. An Indictment of a Town in Devonshire , for suffering an Assembly , as it were , to hold Assizes in Mockery of Justice . And so of a Riot in Norwich , and one took upon him to be King , with a Crown of paper , &c. Their Liberties seized .

Tindals Case .

A Cerciorari was awarded to the Mayor of Hithe , one of the Cinque Ports , and they would not return it . But imprisoned the Messenger , and spoke contemptuously of the Writ . Noy Attorney General , said he would draw an Information against them . And cited the 33 E. 1. Rot . 101. Bishop of Durham pretending a priviledge , and that the Kings Writ was not there , imprisoned the party that brought one : He was fined & quod Cap. and lose his Liberties , 21 E. 3. Rot . 46. 460. Bishop of Norwich excommunicated one in the like case , party brought his action adjudged , his Temporalities should be seized until he absolv'd the party , &c.

Mich . 8 Car , Cerciorari was prayed to be awarded to the Mayor and Justices of Devon , to remove an Indictment , &c. Henden moved that it should be awarded to the Lord Warden of , &c. Resolved , that it should be awarded immediately to the Justice before whom the Indictment was .

Rhemes against Humphreys , & ux . H. 7. Car . Rot . 1202.

Trover and Convers . against Baron & Feme ad usum ipsor . Moved , that the Action lies not against Baron and Feme joyntly for convers . to their uses , during Coverture ; for the Feme cannot convert to her own use . Trover well lies for Conversion by the Feme before Covert , or by Feme onely during Cove●ture , Cur . Advis . Tr. 8 Car . Judged pro Defendant , 38 E. 3. 1. 13 R. 2. Bre. 644.

Boulton against Banks . H. 7 Car . Rot . 276 ,

Resolved , an Action lies against one who keeps a Dog ( knowing he is accustomed to bite Hogs ) if he kills one . And that it is not lawful to keep such a Dog .

Jesson against Laxon . T. 7 Car . Rot . 258.

Errour of a Judgement in Coventry . Because the Judgement being by a nihil dicit in debt was discontinued . For the continuance was taken until the next Court , which is uncertain ; for it ought to be a certain day , Dyer . 262. Answered , In Coventry no day i● certain for keeping their Courts . And Jones , all proceedings in Wales are adjourned till next Great Sessions , which is uncertain when . Judgement by all ( but Crook ) affirmed .

Mounson against Cleyton .

After once in Execution , and the Defendant escape , the Plaintiff may have another Execution , and Defendant shall not take advantage of his own escape , as to plead it in Bar .

Ter . Tr. 8 Car . Ban . Reg .

Butler against President of Colledge of Physitians . P. 7 Car . Rot . 519.

ERrour assign'd . Because the Record was ad respond . Dom . Regi & Presidenti Collegii , &c. qui tam , &c. Whereas it ought to have been brought by the President onely qui tam , &c. and not by King and President . Court , Being original Writ , it is most usual , and somtimes the other way , but good both ways . But Informations are always that the party qui tam , &c. Plow . 77. New Entrys 160. Old Entrys 143 , 373. The other Errours were , upon the repealing of Statutes . View Case at large .

Walker against Sir John Lamb . T. 7 Car . Rot . 374.

Upon the granting of the Archdeacontry of Leicester and Office of Commissary of the Bishop of Lincoln . These questions :

1. Whether the Patent being to a lay person , and not Dr. of Law , were not restrained by Stat. 37 H. 8. Resolved , The Grant was good , and that the Statute doth not restrain any such Grant . For it is but an affirmative statute , and there be no restrictions therein . And though Doctors of Law shall have those Offices , yet that is not any restriction that none but Doctors of Law shall have them , H. 35 Eliz . Rot . 181. Prat and Stock , where this Commissariship was granted but to a Batchellor of Law , and he having granted administration , adjudged good , Book Entrys 484 , 489. and i● was resolved , That where an Officer for life accepts of another grant of the same Office to him and another , it is not any surrender of the first Grant .

2. Whether these two Offices be grantable by 1 Eliz . and 13. Eliz . Because not-parcel of the possessions of the Bishoprick and Archdeaconty . But resolved , they be Hereditaments , and pertaining unto them ; and that a grant of Offices to two , where they were onely grantable to one for li●e , and being granted in Reversion , a void Grant by the Statute against the Successors , 10 Rep. 60. 5 Rep. 14. 15 Jac . Johns against Powel . The Office of Registership . And Young against Fowler . Where such Offices granted in Reversion were void .

Tredymmock against Perryman . M. 7 Car . Rot . 76.

Errour assigned . Upon a Judgement in Cornwal , where the tryal was by six Jurats . Rolls u●ged it was secund consuetud . ibid . a temp . &c. Held , that such a custom is void and against the common Law . Judgement reversed .

Major against Brandwood . H. 5 Car . Rot . 643.

Replevin of an Ox. Defendant makes conusance as Bailiff , and that such one was Lord of the Mannor , and that such one was Tenant , and held by Rent and Hariot service , and he dying , and the Hariot not being paid , by the Lords command he distrained . Issue upon the Tenure , and found for Defendant . Moved in Arrest . Because he shews not what was the best Beast , Kinde , nor price of it . Therefore the Avowry ill , 8 Rep. 103. Plow . 94. Book Entrys 584. Richardson , when the Lord distrains , it is because the Hariot is eloigned , and therefore cannot seize it , and then not shew what was the best Beast , Seize he cannot , unless the Tenants proper Beast , distrain he may any mans upon the land , and detain till Hariot satisfied , 24 E. 3 , 72. 44 E. 3 , 13. Judgement for the Avowant .

T. 18 Eliz . Rot , 506. Dicker and Higgons , Tr. 13 Jac . Rot . 1148.

Hixe against Hollinshead . H. 7 Car . Rot . 765.

She is a Bawd , and hath bewitched him with Sorcery . For the first words , it was doubted . But for the last , She hath bewitched , &c , The Action well lies .

Mead against Perkins .

Words of an Attorney , He is a Cozener , and cozens his Clients in the Sheriffs Court of London , and was for that cause discharged of that Court . Adjudged actionable , as touching his profession .

Ellis against Johnson . T. 7 Car . Rot . 1039.

It was adjudged an erronious Judgement in an inferior Court , obtained after Hab. Corp. delivered to the Mayor , and allowed .

Wilson against Chambers .

Errour upon Judgement , upon Trover and Conversion of a Bond , 1. He does not set forth the date of his Bond . Not allowed , for peradventure he knew it not , and to recite , and misrecite it , would be a failer of his suit . 2. Because he alledged not the place or day of conversion . Not allowed . For denying , to deliver it upon request , is a conversion , and the day , year , and place are thereby alledged . Judgement affirmed .

Kiffin against Vaughan , & ux . T. 6 Car . Rot . 571.

In a quod ei defor . in nature of Writ of Right , Defendant says , that he hath majus jus , than Plaintiff . Issue thereupon , Defendant makes default , petit cap . awarded . At the return I.S. prays to be received , because the Feoffment was made , &c. Demandant counterpleads the Receipt , traversing the Feoffment .

Afterwards I.S. his heir prayed to be received ( his Father being dead ) and pleads his fathers plea . Plaintiff countermands his Receipt , taking Issue upon the the Feoffment ut sup . Tenant by Receipt made default , and petit cap . awarded , and judgement against Tenant by Receipt . Errour assigned .

1. Because the counter plea was of the Feoffment alledged , where he ought to have said of the Reversion .

2. Because Receipt admitted after Receipt , which ought not , unless where Tenant by Receipt dyes .

3. Because Judgement is given against Tenant by Receipt upon default of Tenant by Receipt , and it should be against Tenant to the Action . Judgement reversed .

Jennings against Vandeput , & al.

If there be a submission to four Arbitrators , to arbitrate by the 24 of July pr . and if they could not agree by such time , then the said Arbitrators to nominate an Umpire . Three of them , the 22 July ( the fourth agreeing to it the 25 ) by writing nominated an Umpire : Moved , that they should not have appointed an Umpire till after the 24. Court , There is no compleat Nomination till the agreement of the fourth man the 25. And it had been good , had they nominated before the time expired of making their Arbitriment , When none is made within the time .

Wats against Baker .

Resolved , That a Tender of amends for Trespass , after an Arrest upon a Latitat , comes too late , as well as after an original Writ . For the Statute intends it , to be immediately after the Trespass , and before any Suit commenced .

Tythes of Fishes are paid in Ireland , and so in Cornwal for fishing on the Sea , paid to the Parson of the Parish where they are landed . In Yarmouth , Tythes for Herrings .

Tildens Case .

A Cerciorari was awarded to the Major and Jurats of Hythe . They return that it is one of the Cinque Ports , and that none of the Kings Writs run there . An alias Certiorari was prayed , commanding them such a day to be in person , and shew their Charters and Evidences , and answer their former contempt . Noy shewed a Record , 43 E. 3. Rot . 19. Such a Writ was awarded to the Mayor and Commonalty of London , who made such a return . And a Pluries was awarded to shew their Evidences ut sup . And they ( at the day ) did so . So a Pluries Certiorari awarded in the first Case .

Goodyear against Bishop .

Words against a Merchant , He is not worth a groat , he is a 100 l , worse than nought . Adjudged actionable , and tantamount , as if he had call'd him Bankrupt .

Johnson against Sir Henry Row .

In this case it was said by the Court , That the Inducement of a Traverse ought to be always sufficient .

The King against Ward , & al.

An Information for stopping with hedges , &c. a common High-way . Defendant pleads , that the place was usually dangerous , and not passable , and that they had stopped , &c. But that one Carew had made as good a way in his Close joyning to the said Highway , &c. And that before the laying out the said way , an ad quod Dam . issued , to enquire whether it were to the damage , &c. if the King granted license to the Defendants to stop the said way : And the Inquisition taken , and found no damage , &c. Upon Demurrer , the Plea was held ill ; Because the Allegation , that Carew laid out a way , not appearing by what Authority he did it , is nought : For he may stop it when he will ; nor can any justifie the going there , or the Inhabitants bound to watch there , to make amends if robbery be committed there . Also , the pleading the ad quod Dam . &c. is nothing in not pleading he obtained license . For that is but to enable him to obtain license . Regist . 253 , 255.

Ter . M. 8 Car . Banc . Reg .

Halley against Stanton . T. 8 Car . Rot . 1405.

FOr words . He ( meaning the Plaintiff ) was arraigned at W. for stealing of twelve Hogs , and if he had not made good friends , it had gone hard with him . Moved in Arrest , &c. For to say , he was arraigned for Felony , is not any cause of action : For honest men may be suspected and arraigned , &c. 31 Eliz . of an Attorney , You were coop'd up for forging Writs , adjudged not actionable . But resolved by the Court , That it is actionable , for these words adding , If he had not made good friends , it had gone hard with him . Which shews , he conceived him guilty . And being avert'd that he never was arraigned , it appears the more malicious : and it is not like the cited Case , and 34 Eliz . Bayly and Charrington , Thou wert arraigned for two Bullocks . He says not there for stealing of two Bullocks . T. 8 Jac . Thou wert in W. Goal , for a robbery committed , &c. With an averment , that he never was in W. Goal , adjudged actionable .

Southold against Daunston . T. 8 Car , Rot . 868.

Words spoken of one , alledging he was about marriage , and thereby lost it , Southold hath been in bed with Dorcesters wife . Jones and Crook , being spoken to disgrace him , and deprive him of his marriage , they are actionable . And such forraign intendment , that he was in bed with her when he was a childe , or the like , shall not be taken . But judged ex effectu dicendi , which is here to hinder him his marriage .

Favely against Easton . H. 6 Car . Rot . 1075.

Whether a fine levied of Lands known in a Village , not mentioning the Village or Hamlet where the Land is , be good ? Urg'd , that it was not good , and it ought to be of Lands in a Village or Hamlet , naming the Village or Hamlet wherein , &c. Calthop , that the fine is good , because it is a personal action , though the Covenant be real in respect of the Land , 1 H. 5. 9. 21 E. 3. 14. 38 E. 3. 20. 2. A fine is but an assurance by agreement betwixt the parties , which may be by such names as the parties agree , P. 17 Jac . rot . 140. Munck and Butlers Case K. Bench . Richard . Jones and Crook agreed the same . For a fine being but an assurance , is to be favourably taken , 5 Rep. 40. Cur . Advis .

Cawdry against Highley , al. Tythay .

Words of a Doctor of Phisick , Thou art a drunken Fool and Ass , thou wert never Scholar , nor art not worthy to speak to a Scholar , and that I will prove and justifie , Moved in arrest of Judgement , That the action lies not . For the first , Thou art a Fool and Ass , are but words of scorn : and it appears not they were spoken in regard to his profession . And the other words touch him onely in his Scholarship , and not in his art . And a man may be no good Scholar , and yet a good Phisician . Compared to Buckleys Case . Cur . Advis . After , 9 Car . adjudged pro quer .

Manning & ux . against Fitzherbert .

Upon the Case , for that ex mal●tia the Defendant crimen feloniae imposuit , and caused her to be brought before a Ju●… ice , and said before him ad tunc & ibid . that he charged her with Felony for stealing an Hog , &c. Moved in arrest , &c. Because , 1. They do not say , he falso imposed felony , &c. 2. He shews not the day , and place where , and whether he brought her . 3. For joyning action for words and conspiracy together . But none of these allowed . For when they say ex malitia , &c. it implies falso : and that he caused her to be brought before , &c. it is coupled with the other , and shall be intended the same time and place . And the other matter is not in nature of a Conspiracy , but aggravation of the false accusation . Judgement for the Plaintiff .

Chapman against Allen . H. 7 Car . rot . 419.

If Kine be put to one to pasturage , and afterwards the owner sells them to another , who demands the Kine of the Depasturer , who because there was money due for the feeding , denies the delivery . Afterwards a stranger , by the appointment of the first owner , pays what was due , and had the Kine delivered to him . Conceived by Jones and Crook , that this denial upon demand and delivery to the stranger , was a Conversion , and that he cannot detain them against the buyer , but is put to his action against him who put them to pasturage , Inn-keeper or Taylor , may detain till satisfaction . Judgement according .

Johns against Staynar . H. 8 Car . rot . 243.

Errour of Judgement in Ejectment . Assigned , because the original Writ , bears another date , than the Ejectment . Rolls , it was good notwithstanding , and that it shall not be intended the same original . For as an action is brought and tryed in Middlesex , and the original certified in London , it shall be intended not the same original , but rather that it was tryed without original , and then aided by the Statute .

Harris against Richards . Tr. 7 Car .

In consideration one B. was bound in 20 l. to the Plaintiff , and the Defendant in 50 l. to one H. In consideration the Plaintiff would fo●bear the 20 l. and compound with H. for the 50 l. and the interest , promised to pay the 20 l. and the said 50 l. and all interest should be due . In fact says , he did forbear the 20 l. and paid the 50 l. and 15 l. interest , and such day and year gave notice , &c. and requested payment , &c. Moved in arrest , &c. First , because it is no lawful consideration to pay intere●… . But this was to compound , which is a good consideration , and it is not unlawful consideration to pay no more than permitted . Secondly , resolved there was a good consideration for the Defendant to pay 20 l. be●ause 't is that the Plaintiff at his request would forbear it . And it was sufficient ( if it be alledged he paid so much and required it ) without alledging notice of the quantity or time . Judgement according .

Burgoyne against Spurling . Tr. 7 Car . rot . 373.

Copyholder surrenders Messuage and twenty acres out of Court , according to the custom , upon condition to be void upon payment of , &c. and before the condition performed , surrenders an acre of the same Land to another , who is presented and admitted the next Court . Jones and Crook ( caeter . absent . ) The Condition being performed before the first Surrender , upon condition , was presented in Court , That Surrender is , as if never had been made , and after such Surrender , and before the Condition performed , the Copyholder remains still interested , and the Estate was never out of him , lib . 4. 28. So the Surrender and Admittance upon , and of the one arce good .

Waller & Petty against Sands . T. 7 Car . Rot . 374.

Tenant for Life sans impeachment , &c. Reversioner sells the timber upon the premises to the Plaintiff , Tenant for Life cut them down , and sells to the Defendant . Whether bargainee of the trees shal have Trover against Vendee of Tenant for Life . Hide argued , Not . For Tenant for Life having a particular interest and authority in them , and the Lessor or Reversioner but a general , but no authority to sell them , his sale is void , ergo , no Action , 21 H. 6. 46. Dyer . 90. Rep. 47. Liffords Case . Coo . Litt . 220. Adjourn .

Le Marchant against Rawson . T. 7 Car . Rot . 722.

Debt upon 2 E. 6. not setting out Tythes , Mov'd , that there was a mis-tryal : For the Nisi prius Roll is in Trespass , whereas it should have been debt . Whether after tryal it be amendable . Now the Jurata is not the sole warrant for the Justices of Nisi prius to proceed , and the Distring . is in debt . So that is a warrant to proceed , although the Nisi prius warrants it not : And it has been rul'd , that whereupon such Writ of Distring . the Sheriff returns nomina Jurat . inter A Querent & B Def . in placito Transgres . where the Writ to which the pannel is annexed , is placito debiti being but a misprision of the Clark , it shall be amended . Cur . Advis .

Griffith against Biddle .

Trespass , for taking a Bullock . Defendant justifies : Because at the Sheriffs turn held infra mensem Paschae , viz. 16 Ap. &c. Plaintiff was amerced for not appearing at the said turn , which was affeered by four of the Jury , which was ratified at the next Sessions , whereupon the Steward made a Warrant , by vertue whereof , &c. Upon this a Demurrer : Because first , he does not say i●fra mensem post . fest , &c. by 21 E. 3. Cap. 15. 7 H. 6. 12. 28 H. 6 , 7. 8 H. 7. 4 Dyer . 137. Secondly , because the Amercement is said to be made by the Jury , and affeered ut sup . whereas it ought to be assest by the Court , and affeered by the Affeerors appointed . Old Entrys , 507. New Entrys , 119. Thirdly , because the Warrant comes not from the Steward , contrary 1 E. 4. Cap. But by Process from the Justices . All the Court of this opinion .

Smith against Hodgeskins . 1 P. 8 Car . Rot . 104.

For words . The Defendant malitiose & falso crimen felon . impos . Pleads , the Plaintiff set upon him , whereupon he complained to the Constable to attach him , who refused , unless he would charge him with Felony , which speaking is , &c. Demurrer . First , Defendant shews not any cause to charge , &c. therefore this no cause of justification . Same opinion the Court . Ward on the contrary . M. 2 Car . King and Mellor . Because crim . felon . impos . and said to the Constable present , I charge you to arrest him of Felony . Adjudged then not actionable . Berkley , Jones and Crook , That the action here lies , for it is a malicious scandal to charge , &c. and in his own shewing , says not what Felony was committed .

Lawrence against Woodward .

Thou didst violently upon the high-way take my purse from me , and 4 s . 2 d . in it , and didst threaten to cut me off in the midst , but I was forced to run away to save my life . Moved in Arrest of Judgement : Because he does not say , Feloniously took his purse . Crook cited to that purpose , 10 Jac . Thou art a lewd fellow , and didst set upon me by the high-way , and didst take from me my purse , &c. Adjudged , not actionable . Richardson , Jones , and Berkly , That violently taking , &c. and threatning to kill him , is a description he took it feloniously . Judgement according .

La Merchant against Rawson .

Resolved , that the Record is amendable . And because it was the Clark of the Treasuries fault , he was fined 40 l. and the Clark for amending it without the Courts direction , was committed . Dyer . 260. 2 H. 4. 6. 7 E. 4. 15. 2 R. 3. 11. 11 H. 6. 11.

Fines against Norton . T. 8 Car . Rot . 1386.

Errour of Judgement . Assigned in this . Upon ve . fac . 23 Jurors were returned , and in the Hab . Corp , 24 ( viz. ) the said 23 and one W. Lamb , twelve of them were sworn , whereof the said W. Lamb was one , and the Issue was tryed . Court held it a manifest errour , and not aided by 32 H. 8. 18 Eliz . or 21 Jac . But had twelve of the 23. been sworn , and not Lamb , it had been aided by 18 Eliz . 5 Rep.

Young against Stoel .

Action for disturbing of Register of Rochester in his Office . Shews , that the Office was usually granted , as well in Reversion as in Possession . And that the Bishop granted him the Office habend . post . mort . vel sursum reddit . I.S. who held it for life , exercend . per se vel suffic . deputat .

It was urged , that the reversion of an Office cannot be granted by a common person . Court , Though it cannot be granted by the name of a Reversion , yet it may be granted in Reversion habend . after death of Tenant for life .

3. It was urged , that the Grantee was an Infant at the time of the Grant , and that an Infant cannot exercise , neither by himself , nor make a Deputy . But Jones , Berkley and Crook , that the Grant is not void for neither causes . For an Infant that can write and understand Latine , may be a Register , or able to depute : For if he puts in one insufficient , it is a forfeiture of his Office .

Pas . 8 Car .

Noy cited 15 E. 1. Rot . 3. Nich . de Stapleton , whose hedges were cast down noctanter , and not being known by whom , a Writ was awarded to distrain , propinquas Villas to repair . View the Writ at large .

Johns against Stayner .

Rolls cited 22 Jac . Rot . 503. Kelley and Reynel . Where debt brought in Exc. and the Writ supposed to be in Devon . after verdict it was held , a tryal without original , and aided by the Statute . But held , in the first Case the Judgement erronious : Because the original is certified as an original in this Action , and being taken out before cause of Action it is an ill original , not aided by the Statute , like Bishops Case , 5 Rep. 37. Judgement reversed .

George & ux . against Harvey .

Thou art a Witch , and a strong Witch . Judged , not actionable , unless he had said , she had bewitched some person , or his goods . M. 4 Car . Hughs and Farrer , ante fo . 141. Thou hast bewitched such a ones drink . Judged actionable . Judgement pro Defendant .

Collis against Malin . T. 8 Car .

That he used per longum tempus , the trade of buying and selling Cattel . Defendant said , Thou art a Bankrupt , because he shews not that he used the trade at the time of speaking , &c. Judgement pro Defendant .

Parker against Grigson . T. 8 Car . Rot . 130. or 1306.

Ejectment . Moved in Arrest , &c. That there was not any Bill upon the file . Court , It was aided by the Equity of the Statute 18 Eliz . 16 Jac . Rot . 945. Woodhouse and Willis . Judgement according .

Stirley against Hill .

Thy Brother was whipped about T. Cross for stealling sheep , or burnt in the hand or shoulder . Court , These words import no certain slander .

Grysil against Whitchcot . T. 8 Car . Rot . 420.

One upon Bond morgages Land for 100 l. and there is a Bond for the interest of 8 l. per cent . payable half yearly . Adjudged no usurious Contract . And the Reservation payable half yearly , is allowable .

Burgain and Spurling .

The second Surrender , by the Court resolved good , and that the Estate was never out of the Surrenderer , before it be presented in Court . As Bargain and Sale to one , and after Bargain and Sale to another , and the second onely is enroll'd , the second is good , Grant of Reversion to one , and before Attournment , a grant thereof to another , and to the second Grantee an Attournment , the second is good , & nil operatur by the first . And then in the principal case , the payment was conditioned to be 1 Julii , and the payment was made 16 June before , and an acceptance thereof , it is a good performance of the Condition . Now had the first Surrender been presented at the Court , it would have bound the Land that all mean acts done afterwards had been void .

Delves against Clark .

D. being seized of Lands in Kent 21 May , &c. treated about the sale of it . The Defendant Ad tunc & ibid . ( viz. predict . 21 May , &c. apud London . in consideration of such sum promised to assure . The tryal was in London . Moved in arrest , that the tryal ought to have been in Kent , where the Land lies . And by the Court a Ve . fac . de novo was awarded .

Cucko against Star .

Thou art a Drunkard , and a drunken fellow . Jones● Berkley , and Crook . A Prohibition was granted , for these words concern not any Spiritual , but Temporal matter . Richardson assented , and that after Declaration , the party , if he will , may demur .

Major against Talbot . P. 8 Car . Rot . 419.

One and his wife seized of an house and land to them and the heirs of the husband , and let the house and land to the Defendant , who covenants with them and the Heirs and Assigns of the husband to repair . Baron and Feme convey the premises in fee to Plaintiff , who brings Covenant for not repairs , as Assignee to the Baron , and does not aver the Feme to be dead : whether he should have brought the action as Assignee to both was questioned , unless the Femes death was averred , 6 Rep. 14. Dy . 234. Court , the action is well brought , being brought as Assignee to him who had the Inheritance . Judgement pro quer .

Kercheval against Smith , & al. Escheq .

Action on the Case against Church-Wardens of for the presenting the Plaintiff falso , &c. for incontinency . Being found for the Defendants ; It was moved , they might have double Costs , as troubled concerning their Office . Resolved , not ; for that the Statute extends to Temporal matters , and not Ecclesiastical , as concerning fame , &c.

Nevil against South . & al. Escheq .

Errour . Upon a Sc. Fac . brought by Executor , Judgement got by the Testator . It was moved , that no Writ of Errour lies upon Sc. Fac . for the Statute gives it onely , In Debt , Detinue , Covenant , Accompt , upon the Case , Ejectment , or Trespass . And no Sc. Fac . named . Court doubted , this Sc. Fac . grounded upon a Judgement in Debt , be not within the Equity of the Statute . Cur . Advis .

Hitchman against Porter . T. 8 Car . Rot . 483.

Errour . Whereas an Action of Conspiracy was brought , that the Defendant imposed falso , &c. crimen talis felon . and caused him to be bound and indicted , &c. till he was Legitimo modo acquiet . and does not say , Inde . Court conceived it Errour . Sed Adjourn .

Lyster against Bromley . T. 8 Car . Rot . 235.

Errour of a Judgement in Debt by the Sheriff for his fees . Assigned , because he took more than the Statute of 20 Eliz . allows . For he ought to have 6 d . for every pound , where it is above 100 l. and 12 d . in the pound , where it is but , or under 100 l. H. 1 Car . Rot . 721. Jesson and Westley . P. 14 Jac , Rot . 537. And all the Court of the contrary opinion ( absent Richard . ) The next day moved again , and two questions were :

1. Whether the Sheriff may demand 12 d . in the pound for the first hundred , and 6 d . after for every hundred , or but 6 d . in the hundred where the sum exceeds 100 l. Adjudged 12 d . for the first hundred , and 6 d . in every pound after the first hundred .

2. Though it be provided in 29 Eliz . that this shall not extend to Sheriffs of Cities or Corporations . It was held , it was onely to be intended for the executing Judgements in the Courts of the said Corporations , and not to the Sheriffs of Cities or Corporations , for executing Judgements out of Superior Courts . It was resolved in this case , a Sheriff cannot take Bond for his fees . Judgement affirmed .

Drake against Corderoy . M. 7 Car . Rot . 280. or 28.

Errour of Judgement for words . Plaintiff shew'd he was a Constable , and had sworn in the quarter Sessions concerning an Affray made by the Defendant upon one F. Defendant in open Court said , The Plaintiff was forsworn . Defendant justifies , shewing the Oath he had made in Sessions . Court at first doubted if the Declaration being so uncertain , be actionable , because he shews not he intended a false Oath in a Court of Record . But the plea confessing the words were spoken , by reason of the words spoken in open Sessions , that shews his intent . Judgement affirmed .

Bland against Inman . H. 7 Car . Rot . 550.

One seized of a Term , he and Joan his wife by Indenture lets it for years , rendring rent at two feasts ( the Baron onely sealing ) with clause , for him and his wife , and their Assigns , and the Survivor of them , upon non-payment to re-enter . Lessor dyes , Rent is arrear , the wife demands it , and one Walter , the Lessors Administrator demands it also . The Lessee assigns to the Plaintiff . Administrator Walter enters , and lets it to the Defendant . First , Whether this Reservation be good to the wife , because she has no interest to pass , and never sealed the Deed , and if not good to the wife , whether good to the Baron , and his Administrators , Executors or Assigns in Law . Berkley , The words being reddend . & solvend . to Baron and Feme , and durante tot . term . and the Survivor of them , being by Indenture , is good by way of reservation to the husband , and the word solvendo construed by way of grant to her , and may take by the Deed , being named therein , though she never sealed any part , cited Constables Case . Lessee for years rendring Rent durant . term . annually to him , that includes his Executors and Administrators , though not named . Litt . Condition to pay , &c. to the Feoffee , and he dyes before the day , it shall be paid to the Executors . Richardson , Jones and Crook , Had there been no more but reddend . solvend . durant . term . it had been a Reservation during the Term , but being rendring to him and his wife , and the Survivor of them , if they so long live . That 's an express Reservation onely to them two , and she being no party in interest , it is void to the wife , and the Rent endures no longer than the life of the Baron , 10 E. 4. 18. 21 H. 7. 25. 8 Rep. Whitlocks Case , Co. L●tt . 47. 143. And they all held , that ( solven . ) cannot enure by way of Grant to the wife , when it is by way of Reservation to the husband . And in the Reservation , Assignee is not mentioned , so it cannot give any interest to the Admini●… rator as Assignee in Law . Judgement for the Plaintiff , the first Lessees Assignee .

T. H. 8 Car . Ban . Reg .

Carlion against Mill . H. 7 Car . Rot . 1147.

ACtion of the Case against the Apparator of Bishop of Excester , for falsly and maliciously causing the Plaintiff to be convented before the Consistory there for incontinency , where there was no cause nor Fame of any such thing . Moved in Arrest , &c. Because he did it as an Informer , by vertue of his Office . Court , an Action well lies . For it is averr'd , he did it when there was no cause , but maliciously , &c. Judgement pro quer .

Tildens Case .

He was brought to the Bar , upon a Cerciorari directed to the Mayor and Jurats , and not to the Lord Warden , &c. ut sup . The Prisoner challenged one of the Jurats , but appearing he was sworn , the Court altered not the Record . And the challenge disallowed .

Rose against Bartlet . T. 7 Car . Rot . 497.

It was resolved by all ( absent . Richardson ) If a man hath lands in fee , and lands for years , and deviseth all his Tenements and Lands , the fee-simple Lands onely pass , and not the lease for years ; and if he hath none but leases for years , and devises all his Lands and Tenements , they pass .

2. They agreed , If one devises his Land which he hath by lease to his Executor for life , the remainder over , that there ought to be special assent thereto by the Executor , othe●wise it is not executed . And then it was resolv'd , that a man may make several Executors , the one quoad things real , the other quoad things personal , and may divide their Authority , yet quoad Creditors . They are all as one , and may be sued as one Executor , 19 H. 8. 8. Dyer . 3. 32 H. 8. And in our case , the wife being made sole Executrix of his Cattel , Corn , and moveable goods , it is no exclusion of debts and leases . So Jones and Crook . And that she is a general Executrix . Berkley contrary . Then she proving the Will , and Administration is committed to her , omnium bonor . Jur . & Credit . predict . R.B. predict . testament . concern . Jones and Crook , A general Administra●ion . Barkley , but a special , because being coupled to the Testament , it extends no farther than the Will . Adjour .

Sir Tho : Finch against Lamb . M. 5 Car . Rot . 295.

Upon Errour of a Judgement after Verdict in the Common Bench . Defendant upon Diminution alledges the Original to be certified , H. 4 Car . Upon which , Plaintiff in the Errour pleads , Statute Limitat . and this action being on a promise in 16 Jac . and not brought six years after promise , and three after Statute , not maintainable . Defendant , that he brought within three years after the Statute , an Original of Assump . supposed in Kent , and so to the Outlawry . That was discharged , and another Assumpsit within a year after is brought supposed in Bury ad dam . 600 l. The other in Kent , ad dam . 500 l. The Variance was moved for Errour . Richardson Jones and Berkley , This Variance of the County , and Damages , not material to the Action , being transitory , and averred to be for one and the same cause . Judgement affirmed . Crook on the contrary , because the Outlawry was not reversed by Errour .

Eyres against Taunton . T. 7 C●r : Rot . 590.

Upon Scire Fac . upon a Recognizance . Defendant is returned dead , and a second Sc. Fac . issues against his Heir , and against the Tenants of the lands of the Conusor which he had temp . recognition . vel post . Sheriff returns the Terr-tenant , and omits to return the Heir . Urg'd , That this was a non ret . of the Sheriff , and not a mis-return , and not aided by the Statutes of Jeofayles . And he urged , the Terr-tenant ought not to be charged without the Heir , therefore the Heir ought to be summoned . For until it be returned , no Heir , or that the Heir has no land , Terr-tenants not to be charged : For the Heir might have something to plead . Also , the Heirs land is rather to be charged , because he has not contribution against Terr-tenant , as Terr-tenant hath . And if Heir be within age , the Parol demurs : Of the same opinion Richard . Jones and Barkley . Crook the contrary . The Defendant having pleaded , and Issue found against him , he shall not take advantage thereby now , 17 E. 2. Exec . 139. 18 E. 2. ib . 142. 3 H. 4. 13. Sheriff returns such Terr-tenant warn'd , & speaks nothing of the Heir , yet Terr-tenant was inforced to answer . Ordered , an Inform . Cur . whether there was Heir or no , a new Sc. Fac . 1 Car . Bowyer and Rivet . In Scire Fac . against Heir and Terr-tenant , he is charged onely as Terr-tenant , and in Riens per discent , and found against him , Execution of the moyety of his land , and not of all , as Heir should be charged upon a false plea .

H. 8 Car . Resolution upon Cases in the Admiral Court .

1. No Prohibition for Contracts , or other personal things beyond or upon Sea .

2. No Prohibition , for Fraight , or Marinors wages , or breach of Charterparties for Voyages beyond Sea , though Charterparty made within the Realm . But if the Suit be for the penalty of it , or whether made or not , or if no discharge be upon it , Prohibition lies .

3. No Prohibition for Building , Mending , or Victualling the Ship , though done within the Realm .

4. Of Causes arising on the Thames , and other Rivers beneath the first Bridge . This Court hath Jurisdiction , 15 R. 2. and try Contracts and Injuries done there .

5. If any be imprisoned . Upon Hab . Corp. certified , that any of these be the cause , he shall be remanded .

Subscribed by all Judges of both Benches .

Action against the Sheriff for levying an Fieri Fac . of the Testators , and not returning it before his death , for this tort in vit . Testat . Executor brings the Action . Glynn moved , that for personal wrongs done to the Testator , no Action is maintainable by the Executor . Jones cited , Where an Escape suffered by the Sheriff , in the Testators life , and at his suit , and the Executors for this tort brought an Action upon the Case . Adjudged it did not lie . Cur . Advis . &c.

Lutterell against Lea .

Divers presidents were shewed , That Records in Debt , by Mittimus out of the Chancery , have been sent out of this Court into the Common Pleas , H. 21 Eliz . Rot . 1374. M. 33 and 34 Eliz . Rot . 2013. Leex and Skargill . H. 11 Jac . Rot . 3455. Palmer and Steward . And H. 11 Jac . Rot . 1715. Phillips against Manings . Sed Adjournat .

Ter . P. 9. Car . Banc . Reg .

Sims against Lady Smith . H. 6 Car . Rot . 1066.

COvenant . That the Defendant would surrender , &c. upon request . And shews , that there is a custom to surrender by Letter of Attorney , and that he tendred the Defendant a Letter of Attorney to seal , which she refused , unless time to shew it to Counsel were given .

Resolved by the Court , The Breach is not well assigned , for by he● Covenant she is bo●nd to surrender upon request , but not bound to make Letter of Attorney to surrender .

2. It was moved , forasmuch as she is to have reasonable request , and if it had been that she should upon reasonable request , sealed the Letter of Attorney , she should have convenient time allowed to advise . Court , There is no difference , where it is to be done upon request , or upon reasonable request .

3. It was moved , That a request to make Letter of Attorney to surrender , implies a request to make a surrender . But not allowed . For it ought to be an express request to make a surrender , and not an implied one .

Lancaster against Keyley & al.

It was adjudged , that if there be Jugdement against Bail and Principal , they cannot joyntly bring a Writ of Errour ; because there be several Judgements given ag●inst them , and the damages against the one , is not against the other . No more than Tenant for life , and he in Reversion , or Tenant and Vouchee may joyn .

Pruett against Drake . & ux . P. 8 Car . Rot . 271.

Of a Common in gross without number , a Feme is not Dowable , but appendant or appurtenant , she may . And a Demand in Dower of 100 ac●es Terr . 20 ac . pasc . 30 ac . prat . & de comunia past . p●o omn . averiis cum pertinen . It shall be taken for Common ●… pend . And P. 4 Car . Rot . 1069. Peckham and W●ckham , a Demand of Dower was in the same Mannor .

Priest against Wood . H. 8 Car . Rot . 181.

In Ej●ctment . It was said , That an Ejectment lies nor of Tythes , b●t it may be of a Rectory or Chappel , and of Tythes the●eto appertaining , so he may be eje●ted from a thing whereof Hab. F●c . possessi●… m may be , ●ur . Advis . Dyer . 116. Dyer . 258. 11 Rep. 25. 15 H. 7. 8. And afterwards judged for Plaintiff .

Barnaby against Rygalt . M. 8 Car . Rot . 364.

Errour . Plaintiff declared upon a custom amongst Merchants , whereby if one for wares delivered to him , or his Factor , makes a Bill of Exchange directed to a Merchant , and that Merchant accepts it , and after refuses to pay , &c. In fact , that the Plaintiff delivered Wines to I.S. who gave him a Bill of Exchange to I.N. who accepted , and refused to pay , whereupon this action , &c. Errour assigned , because he does not shew that he was a Merchant at the time of the delivery , being the action is grounded upon their Custom . Court , he declaring for Merchandizes sold , and that he names him Merchant , it shall be intended no otherwise . Judgement according .

Blunden against Baugh . H. 7 Car . Rot . 1106.

E. of Notingham levies a fine of the lands in question , to the use of Sir W. Howard , and Eliz . his wife for her Joynture , and to the Heirs-males of the body of the said Sir William , Remainder over . Before this fine levied , when the Estate was onely setled by Indenture , Sir William Howard let the land to Tho : and John Humphreys for 21 years . Sir W. dyes , John Humphreys dyed . Thom . Humphreys being seized , sells to Sir Charles How . Son and Heir of the E. of Nottingham . ●lunden , by the command of Elizabeth entred , and claimed it as her Joynture . Sir Charles entred , and makes a Lease . Blunden enters and ousted him . Whether there be a Diseisin to Sir Charls , and if there be , who should be the Diseisor and Tenant to the Freehold . Jones , Berkley , and Crook cited Co. Litt . 153. A Diseisin is , when one enters intending to usurp the possession , and to ouste another of his Freehold . And it is at the el●ction of him to whom the wrong is done , if he will allow him to be a Diseisor . Therefore if one receives my rent , it is at my election , if I will charge him with a Disseisin , by bringing an Assize , or other action , or have an account , 7 E. 4. 6. So if one enters as Guardian in Soccage , where he is not , it is at the election of the Infant to bring an Assize , or charge him as Guardian , and then admit him in without wrong , 49 E. 10. 40 E. 3. 35 and 33 H. 6. 2. Tenant at Will is at the will of both pa●ties , and the Will shall not be determined by every act , 38 H. 8. 62. Kelew●y , 20 H : 7. 65. So when a Feme , Lessee at Will takes husband , or makes a lease at Will , and takes husband , yet no determination , without election of Lessor or husband to the contrary . Copyhol●er makes a lease for years , no Disseisin , but a good lease betwixt Lessor and Lessee .

2. Admitting a Disseisin , who is the Disseisor . If Tenant at Will makes a lease for years , which is a greater Estate than he may make , that act is a Disseisin . If Lessee for years makes a Feoffment , though it be a Disseisin to the Lessor , yet it is a good Feoffment bewixt them de facto , though not de jure , and Feoffee is in the per , 4 E 2. Bre. 403. F. N. B. 201. 8 H. 7. 6. If such Lessee for years , 50 E. 3. 12. or at will , makes a gift in tail , or lease for life , that creates a good lease , or gift in tail amongst themselves , and all others besides the first Lessor , and as to him both Disseisors , 14 E. 4. 6. Jones cited 42 Eliz . Spark and Spark . Adjudged , Where Lessee at will made a lease for years , and he being ousted by a stranger , brought Ejectment , and recovered , 28 Eliz . So of a lease made by a Copyholder .

Blizard against Barns . H. 8 Car . Rot . 816.

Action , for that falsò & malitiosè spake , that the Plaintiff committed Felony , and procured him to be arrested for Felony , &c. Because damages being under 40 s . costs should likewise be no more ( being for words ) by 21 Jac . Court , but it is joyned with other matter , and not within the Sttaute .

Earl Newport against Sir Henry Mildmay & al. M. 6 Car . Rot , 439.

Errour upon Judgement against E. of Newport , where he appeared by his Guardians . Wherein they vouched the common Vouchee , and Judgement given upon his default after appearance . Errour assigned , because the Judgement is given by default , he being an Inf●nt . Resolved , per Cur . that it was no erro●r ; for J●dgement is not given upon default of the Infant , but upon departure of Vouchee , despite of the Court , 9 E. ● . 34. There is no more pretence for an Infant , who ●ppears by his Guardian , than for another person at full age . 10 Rep. 43. to the contrary .

Johns against Stratford . M. 8 Car . Rot . 96.

A Serjeant at Arms to the Council of Marches in Wales , making an Arrest in London , out of the Jurisdiction , took a Bond for the appearance . The Bond is clearly out of the intent of 30 H. 6.

Star againg Buckhold .

Prohibition granted to the Arches , Thou art a Drunkard , and a drunken fellow , a base idle drunken fellow . Because these words tend to a Temporal offence .

Ter . Tr. 9 Car . Ban . Reg .

Gwin & ux . against Gwyn . H. 5 Car . Rot . 295.

ERrour of a Judgement at a Grand Sessions in Wales . Assigned , The Writ being quod ei deforc . the Protestation being prosequi in nat. bre. de rect . He ought to shew what Writ of Right , for there be divers kindes . But disallowed .

2. There ought in such a Writ be double defence ( viz. ) the Plaintiffs right and his own .

3. The Defendants joyning in defence , not have severed their Pleas .

4. The Plaintiff having admitted that , and taken several Issues , thereupon abates his own Writ .

5. There is a final Judgement against the Feme , for the whole , where she pleads but part , and against her Heirs , where she claims but for life . This an Errour . Judgement reversed .

The King against Talbot .

In a quo warranto . Moved in Arrest , &c. 1. Not good to prescribe to have a Warren in the said Mannor , and Demeans of the said Mannor , 5 Ass. One o●ght not to prescribe to have Turbary in anothers Soyl , as appertaining to his said Mannor . Answered , That to the Prescribe so is good : For being by Prescription , it is intended this liberty was before the creation of Freeholders , whose Estate is extracted out of the Demeans of the Mannor . But moved , That the tryal was awarded ( by Ve . Fac . ) from Ridge , where it ought to have been of the Mannor : For Ridge is alledged to be but parcel of the Mannor . For this the Court held it to be a mis-tryal , and not aided by the Statute of Jeofayle , and a Ven . Fac . awarded de novo .

Townly against Chaloner in Chan .

Foster and Townley being Assignees in trust of a lease for Chaloner an Infant . Foster took all the profits , and was in arrear , &c. and unable to satisfie . The question , whether Townley agreeing to this Assignment , by sealing the counter-part , and joyning in acquittances with Foster for Rents of a year , &c. and no more , shall be charged for that onely , or for all the residue . And resolved , that Townley shall be accountable and answerable for no more than came to his hands , and not compell'd to pay what Foster could not .

Eyres against Taunton .

After a second Sc. Fac . issued . These exceptions : First , the Sc. Fac . ought not to have been awarded to the Sheriff of Gloucester , but upon Testat . that the first Sc. Fac . was awarded to the Sheriff of Middlesex , where the Recognizance was first acknowledged , Entrys 500. and 2 E. 3. 20. But not allowed . True , the first Sc. Fac . ought to be sued where Recognizance acknowledged ; But when sued there , and the party returned dead , it may be sued against the Heir or Terr-tenant in any County where the land is . Then that it was no good tryal by nisi pri . for Issue joyn'd in the Chancery , and the Record delivered to the Kings Bench to be tryed , it ought there to have been tryed . But all the Court against that . For Issue joyned betwixt party and party , it may well be tryed by nisi pri . out of this Court .

Randal against Scory . P. 8 Car . Rot . 422.

Errour . The Declaration was of land leased to Rob . Chichester for 99 years , if the said Robert , John and James Bellun , or any of them , so long live , paying after the death of the said Robert , his Executors or Assigns his or their best beast , &c , Upon Oyer of the Indenture , this variance was , Paying to the Lessor , &c. after the death of Robert , James and John , and every of them his or their best beast , &c. Errour assigned , because of the variance . And Court held a plain variance . For though it cannot be construed to be the beast of Bellun and Bellun , yet the reservation is , that it shall be paid onely after the death of Chich . Bellun and Bellun , So as they are the parties , after whose death the limitation of the Har●ots are to be paid .

Fenns Case .

It was moved , that Fishmongers are not within the Statute of 5 E. 6. of engrossing . But the Court held , that though they be not within the Statute for engrossing , yet if they regrate , and sell at unreasonable prices , they are . He is indicted , that he bought ea intent . ad revendend . cont . form . Statuti , and is found guilty , it shall be intended he ingrossed , and sold unreasonably . Then it was moved , that he was tryed the same Sessions , indicted , and therefore ill , and there should have been Sc. Fac . returnable the next Sessions , 22 E. 4. Coron . 44. disallowed . For it is the common course , Kellway 159. The tryal before Justices , Goal Delivery , may be the same day .

Porter against Hutchman .

Bulstrod cited Pas . 7 Jac . 407 Rot . Bell and Gamble in Conspiracy , where this word inde was omitted . And after exceptions taken for that cause , Judgement yet was given for the Plaintiff , of that opinion Jones and Berkley : Because it shall not be intended but that he was acquietat . inde Richardson and Crook doubted . For if it appears not that he was acquiet . inde , an action will not lie . And it is a material omission , and a Declaration shall not be aided by intendment in the point of the action . Adjournat .

Errour . In Judgement upon Information upon 5 Eliz . again●t Ironmongers , for using the trade , not being Apprentice . First errour , because by 21 Jac . every common Informer shall be sworn before his information be received . That the fact was within the year before , and within the same County . Disallowed . For no parcel of the Record , but a direction to the Offices .

2. Because Informers upon that Statute cannot have the moyety , but it is given to the Corporation . Disallowed . For it is to be understood , that the Forfeiture given to the King there , goes to the Corporation , and the Informer has his moyety still . Judgement affirmed .

Parker against Taylor . M. 8 Car . Rot . 366.

Errour . Because upon Oyer of the Bond , &c. Defendants pleads payment , & de hoc ponit , and Plaintiff similiter . This after J●dgement assigned , because he ought to plead solvit & hoc parat . &c. and the Plaintiff to replied , non solvit & hoc pet . So there had been affirmative and negative . But as here there 's no issue , and not aided by Jeofayls . B●t Court , Forasmuch as the Defendant pleads payment & de hoc , &c. and the Plaintiff joyns with him , the Jury shall not enquire whether p●id or not , and they finding not good enough and aided by Jeofayles . Judgement affirmed .

Leycroft againgst Dunker . P. 9 Car . Rot . 192.

Words of a Merchant , He came a broken Merchant from Hamborough , and that I 'll justifie . Moved in Arrest , &c. and allowed , had he said , he is a broken Merchant , in the present tense , actionable . But as here it imports no scandal , for he shews he came over eight years ago , since which he might become a rich man , and in good repute . Richardson of that opinion . For slander ought to be express , and not taken by intendment or implication . Therefore if of a Merchant , He was a poor man within these seven years , or the like , no action lies . Jones , Berkley , and Crook held , the action lies , For the cases before charge not any crime , but here he charges him with once being broken , & qui semel malus , semper presumitur esse malus in eodem genere . And here they are alledged to be falsò & malitiose spoken . And if the Defendant had spoken them with other intention , he should have shew'd it by special Plea . Judgement pro quer .

Green against Lincoln .

Thou art a long-shag-hair'd murthering Rogue . Moved in Arrest , &c. It is not directly that he is a Murtherer , but the words are adjectively spoken ; which manner of speaking shews chiding , and extenuates , and not aggravates . But on the other side , H. 7 Car . Rot . 728. Wilson and Mason , Thou art a murthering Knave , actionable . Judgement pro quer . In the first case .

Fish against Wagstaff .

Errour of Judgement in the Marshalsey . Assigned , because in the stile of the Court it was mentioned , that the Court is holden by vertue of the Kings Letters Patents , ad audiend . & terminand omnia placita , &c. And a Patent . &c. ad audiend . & terminand . omnes causas cannot be , but onely of criminal matters , Dy . 175. Judgement reversed .

Sparrow against Matters●ck & al. H. 8 Car . Rot .

It was resolved , That a Bailiff of a Liberty may make Inquisition , and an extent upon an Elegit , by Warrant from the Sheriff directed to him .

2. That the Jury shall extend all the land , and the Bailiff or Sheriff ( where no Franchise ) shall deliver the moyety , and not the Jury .

Ter . M 9 Car . Ban . Reg .

Broxon & ux . against Dager & ux . T. 9 Car . Rot . 1151.

WOrds , Thou art a Witch , I 'll make thee come and say God save my Mare , I was forc'd to get my Mare charm'd for thee . Moved , that to call one Witch ●… o action . The same opinion the Court ; and for the second words , I 'll make thee say , God save , &c. no Witchcraft . And for the last , I was forc'd &c. Is a fault in the Plaintiff to procure charming , to prevent mischief in his Mare . Judgement staid until , &c.

King against Edwards . T. 7 Car . Rot . 992.

I.B. and Jane his wife seized of the Premises to them , and the Hei●s of the body of J.B. Remainder to E.B. and his Heirs , Remainder to W.B. and his Heirs , Remainder to G. Edwards . I.B. and his wife , and W.B. ( the third Remainder joyn in a Feoffment with Warranty ) to M. Keene , and after the Baron and Feme levy a fine to the said Keen . I.B. dies sans Issue . W.B. and E.B. dye sans issue , M. Keen dyes , and the land descended to R. Keen , who after the death of I.B. entred , and let to the Plaintiff , and Defendant by the command of G. Edwards ousts him . Whether the Entry of G. Edwards was lawful .

1. Whether this Feoffment were a discontinuance of the Estate tail , it was argued not , 3 Rep. 5. Owen and Morgans Case , 3 Rep. 61. Richard . B●rkley and Crook , That it is a discontinuance . And though objected , that W.B. the third Remainder joyned in the Feoffment , so as it could make no discontinu●nce , but that every of them passed their Estates . All agreed , Williams joyning not material .

2. Object . That if this Feoffment were discontinuance at Common Law , yet it is taken away quoad the wife , by 32 H. 8. Agreed , that this Feoffment and Fine to the same person , make but one Assurance , and when the wife is bar'd , and her Estate destroyed by the Fine , that she cannot enter , those in Remainder may not enter . And for the first point , 3● Eliz . Worn and Webster . It was held , It was no discontinuance when the wife survived : But had the husband survived , otherwise .

Sir Richard Snowd against 〈◇〉

For words , Shews , that there was a Bill preferred in Chancery by one Christmas , and that he put in his answer , the Defendant spoke these , &c. He is forsworn in his answer to Christmas's Bill . Adjudged actionable .

Dorothy Bryan against Cockman .

Words spoken of a Widdow about marriage , She is a Whore , and her children ( innuend . which she had by her former husband Bryan ) are Frambishes bastards . Judged actionable . And the Court held , If one says of a Widdow , being in communication of marriage , She played the Whore in her former husbands time , actionable .

Edwards against Wooden . H. Car Rot . 602.

In a Replevin he makes Conusance , &c. Plaintiff in Bar confesseth , that the Land is parcel of the Mannor . And that I.S. was seized of the said Mannor in Dominico suo ut de feodeo prout in the Conusance . It was said upon this Case , That one seized in Fee of a Reversion , Expectant upon a lease for years may well say , that he was seized in Dominico suo ut de feodo . For of that Seisin he may have an Assize . Plow . Adam and Wrotsleys Case . Adjournat .

George & ux . against Harvey .

It was again adjudged , that for calling one Witch , and not alledge she did some act , an Action lies not . But if it had been said , she bewitched any man , or any thing it lies . P. 17 Jac . Hawks and Auge . M. 10 Jac . Towse and Sande .

Tiffin against Wingfield .

The Record was in placito transgr . & eo quod vi & arm . cap . & chasev . his cattel in another mans close , for which he took them damage feasant , and the Plaintiff forc'd to compound for the amends . It was mov'd , to be nought , because he does not conclude , contra pacem . Grimston , this is an action upon the Case , for driving them , &c. And so the Plaintiff pays the damages his cattel did . And though it is vi & arm . for that may be in actions of the Case as well as Trespass , 9 Rep. Rutlands Case . So resolved by the whole Court .

Symonds against Seabourn . P. 8 Car .

Upon the Case . Plaintiff shews , that he was possessed of an house in , &c. and that the Defendant was , and yet is possessed of an house and void piece of ground , from which ground the light came into the Plaintiffs windows . Defendant malitiously to keep the light away , erected an house , whereby his house is totally darkned . And now moved in arrest , &c. there is repugnancy in the Narr . And now to say , ad huc possessionat . of the piece of ground , and to shew the offence in erecting , shews it no void piece now . Berkley of that opinion . All the rest , that it is no repugnancy , for may be but part is built ●pon .

2. There is Prescription alledged , but no person in whom , &c. Court , The time whereof , &c. is tyed to the house , and not to the person .

Baal against Baggerly . T. 9 Car .

Thou hast forged a Pr●vy Seal , and a Commission , why dost not thou break open thy Commission . Court . that the action well lies ; and that it shall be intended according to common speech , the Kings Privy Se●l ; and thy Commission , meaning the Commission under the Privy Seal , which the Plaintiff sued out . T. 35 Eliz . Thou hast forged a Writing , for which thou wast brought into the Star-Chamber . Adiudged actionable , for it shall be intended such Writings for which one shall be punished . Judgement . pro quer .

Johnson against Davy . Tr. 9 Car . Rot . 1314.

After verdict in Ejectment , it was moved in Arrest , &c. because the Original is for sixty acres , and the Declaration for many more , so a variance . R●lls , That this shall not be intended the Original upon which the Declaration . For the Writ , testes 18 Apr. ret . 15 Pas . and the Declaration in Trinit . Term , and here is no continuance upon this Writ . 2. The Writ is against Defendant and Copyholder , in the Narr . no Copyholder named . Wherefore this cannot be the Original , but another , which is now wanting , which the Court held aidable by the Statute of Jeofayles .

Penson against Gooday . T. 9 Car .

Thou hast taken out of my pocket 40 l. of my money , and I will cause thee to be indicted at , &c. & ex ulter . malit . such a day after said , He hath picked out of my pocket silver and gold . Moved in Arrest , &c. That the last words are not actionable , and intire damages given , where part of the words are , and the other not actionable . Court held ( according to Osborn and M ddletons Case Judgement shall not be entred . But here they held ; That the last by ex ulteriori mal . have reference to the first , which charges him with flat Felony , which first are without doub● actionable . Therefore damages well given . Judgement pro quer .

Vesey against Harris & ux . H. 8 Car .

Feme dum sola , &c. recovered in Action , &c. and had Execution , and yet is possest thereof , Afterward the judgement was reversed , and restitu●ion awarded . Afterwards she took to husband , Plaintiff bro●ght his Writ of Restitu●ion . Defendant plead before the Writ purchased , and after reversal he paid , &c. absque hoc that they be possessed prout , &c. It was held , that pleading payment is ill , because it is affirmed against matter of Record . And payment being against matter of Record , cannot be discharged but by matter of Record or Specialty , 20 H. 6. 24 21 H. 6. 15. And it is doubted , whether if levied by a Sheriff upon Fier Fac . it is a good Plea . And if it be a Plea , yet he should not traverse , as here . Judgement pro quer .

Penson & ux . against Gooday . T. 9 Car .

Words spoken of the wife , Hang thee Bawd , thou art worse than a Bawd , thou keepest a hou●e , worse than a Bawdy house , and a Whore in thy house to pull out my throat . Moved in Arrest , &c. But agreed , for saying one is a Bawd , and keeps a Bawdy house , an Action lies , but to call one Bawd barel● , no Action lies . And if it be intended such wo●ds would hinder guests from coming to the house , being an Alehouse , then the husband alone ought to have brought the action . That the Court agreed . And for the words , the action lies by Baron and Feme .

Min against Bailiff of Westminster .

Shews , that he had an Attachment of priviledge to arrest , &c. the Sheriff makes his Warrent thereupon to the Bailiff of the said Liberty , which Bailiff was the Defendant , and that he took the person , and let him at large again . Upon reference to Jones , Berkley and Crook . First , they resolved the Declaration to be ill , because he does not say of what Liberty he was Bailiff , and that he had the returns of Executions and Writs . Secondly , he had an Attachment to arrest him in Trespass , intending after his appearance to declare in Debt ; which cannot be in any Court , but the Kings Bench . And there when he puts in bail , he is supposed to be custod Mares . wherefore they held Declaration nought .

Bawderock against Mackaller .

Upon an Information for Symony . Moved in Arrest , &c. because he shews the annual value of the Benefice to 6 l. 13 s . 4 d . and demands but 6 l. 13 s . 4 d . as the double value . But not allowed : For the truth of the offence being shewn and found , though he demands less than he ought , yet the Information is good pro Reg . The case between Agar and Candish , where in the like nature , it was good for the King , tho●gh not for the party . 2. This being of the Kings Donation , not within 31 Eliz . For that onely mentions where one comes in by Symony Presentation , or Coll●tion . Disallowed , because within an equal mischief against which the Statute provides . 3. The King being Donor , cannot be intended that he presented for Symony . But disallowed : For Symony may be by compact betwixt strangers , without the privity of the Incumbent or Patron : For adjudge Symony where one contracted with the wife of the Patron , Patron or Incumbent not knowing it .

Chedleys Case .

One was indicted for petit Treason in Anglesey , a Cerciorari was prayed , to remove it to the adjoyning County . Jones , 32 Eliz . such Cerciorari warded . 26 H. 8. allows Felonies to be tried in the adjoyning Counties . And here it was appointed to be argued .

Martin Pages Case .

Upon Indictment , was for Rape of a childe with 10 years , and it was proved , that he entred the body of the childe , and had much abus'd her . And being quitted by the Jury , Court caused an Indictment of Battery , and being found guilty , was imprisoned and pillored .

Arthur Crohagans Case .

Was found guilty of Treason upon 25 E. 3. for saying in Spain , I will kill the King , meaning the King of England , if I can come to him . And upon his arrest in England , he put his finger in his mouth , and scornfully pulled it out , I care not this for your King .

Adams against the Warden of the Stanneries .

Prohibi●ion was granted , because the Jurisdiction of the Stanneries is onely for Tynn matters , and the persons which sue , or one of them , ought to be a Tinner .

Swan & al. against Stephens .

Now no new matter was brought . But Judgement was entred pro quer .

Dyke against Ricks . H. 8 Car . Rot . 704.

One devises , that if his Devisee should not finde goods and debts enough of the Testators , to pay his debts , and maintain her and her children , then to sell the Tenements , shews , that here was not enough , &c. and did by bargain and sale inrolled , sell to W. Sugar . By vertue of which , &c. it was urged , that the Plea was not good . 1. Because he does not shew the value of the goods and debts due to the Testator , and what he owed , that the Court might judge whether she had cause of sale or not . 2. The Will giving authority to sell , and he pleading a sale by indenture inrolled , &c. by vertue , &c. it is not good : For if the sale be good by the authority of the Will , he is not in by the Statute of Uses , but by the Devise . Jones said , that in 22 Jac . Davy and Urburs case , both these points were judged .

〈◇〉 against Inhabitants of the Hundred 〈◇〉

In Hue and Cry , one errour insisted on was , The action is brought by the party and the King , yet neither upon the joyning issue , nor Ve . Fac . is there any mention of qui tam pro Dom . Reg . But the Court held it good enough , and that so are all the presidents , as Keeling affirmed . Judgement affirmed .

Annonymus .

Words . Thou hast given I.S. 9 l. to forswear himself in the Chancery , and h●st hired him to f●rge a bond . Judged actionable . For though it is not alledged , that he forged a bond , or that he forswore himself as witness , or his answer , yet it is scandalous . Judgement pro quer .

Makaller against Todderick .

Errour upon judgement given . Whereas Defendant promised , if he would get him presented , &c. to such a Chappel , he would pay , &c. Plaintiff in fact , he did , &c. and the Defendant hath not paid , &c. Upon Judgement pro quer . Moved , that this was Symonie , declaring upon a promise grounded on an illigal consideration , the Assumpsit as void . Onelys case , 19 Eliz . Dy . 3 Rep. 82. sed Adjour .

Eliot against Skipp .

A return of the Postea being uncertain , upon the mistake of the Clark of Assize . Berkley , Judge of Assize at the Tryal well remembring the certainty of it , caused it to be mended .

Ter . H 9 Car . Ban . Reg .

A Prohibition prayed , upon suit for Tythe of Trowts , because they are ferae naturae . Richardson , A Prohibition granted for suing for tythe of Coneys in a Warren . Tythe by custom in Yarmouth for Herring . And he said , that tythes for Fishes are not payable , unless by custom .

Gobbets Case .

Upon Suit in the Spiritual Court , for calling one Cuckoldly knave . A Prohibition was denied , and that it belongs to the Spiritual Court , pro reformatione morum . Though for saying , he 's a Knave , and a cheating Knave , a Prohibition was granted .

Chapmans Case .

It was resolved upon Errour , That Common Barretry is an offence against divers Statutes ( viz. ) Maintenance . 2. Resolved , that upon the Indictment he appearing gratis , a Ven . Fac . awarded the same Assizes is good , either upon appearing gratis , or if he were in Goal . 3. It was objected for errour , because it is ideo in misericordia , where it should ideo cap●at . But upon view of the Record , it is ideo Committitur Goalae . So there needs no Capiat . and the ideo miserecoidia is but surplusage . Cur . Advis .

Pridgeons Case .

If upon order of one Sessions , he appeals to the next Quarter Sessions , and be there discharged of the former order , according to 18 Eliz . The next Sessions hath no power to alter it .

Henry Cort against Bishop of S. Davids & al. H. 8 Car . Rot . 454.

It was held errour . For a Tales de Circumstant . to be awarded in an Assize . And that Justices of Grand Sessions in Wales may write to the Archbishop of Canterbury , and a quare non admisit lies against him .

Bret and Read .

Whereas he was indebted to the Plaintiff for Rent arrear , in consideration whereof he assumed to pay , &c. Being moved in Arrest , &c. it was held by the Court , that the action lies not : For it is a real contract , if upon a Lease for years , and a general Assumpsit lies not for it , no more than upon a Recognizance . Also , it may be Rent-charge , Rent-seck , or Rent-service . And then it is more stronger against the Plaintiff . But had he alledged , in consideration he should forbear till such a day , then otherwise .

Lord Hastings against Dowglas . T. 8 Car . Rot . 1331.

The great question in this case was , whether ( a wife being possessed of jewels as her Paraphernalia , and ordinary wearing ) the husband may devise them from the wife , Jones and Berkley , that if there be no debts to pay , or assets to pay those debts , besides the jewels , there the property vests immediately after his death in the wife . Agreed by both the other Justices . And tho●gh the husband by gift in his life time , may dispose of them , yet by his Will he cannot . And Lynwood says , that ●he Feme in vita marit . invito marit . may devise them , Plow . 315. Bracebridges case . 1 H. 5. Exec . 108. The King may give the Jewels of his Crown by Letters Patents , but cannot by testament dispose them . Berkley , this permission of the husbands for her to wear them , is as a gift to her , 11 H. 4. 83. that by the custom of London in elsewhere , the wife shall have the moyety of the goods , Her husband might in this case give them in his life time , but by his will he cannot dispose them to her prejudice . Whereupon they concluded for the Defendant . But Richardson and Crook held , that the wife cannot take these , but according to the husbands disposition by Will . But had the husband made no Will , but left them to the disposition of the Law , there ( had the contest been betwixt the wife and Executor , or Administrator ) she might have them as a Paraphernalia . And it is not like the case of 11 H. 4. 83. And now the husband can give nothing to the wife , they being but one person in Law . And as to the objection , that though the Husband may dispose them by act in his life , yet not by will . Answered , That a man who hath a thing real in anothers right , or a Chattel personal , though give , yet he cannot devise it . So an Executor may give , but not devise , because he hath it in auter droit , But of all Chattels personal , which the wife , though had them before marriage , the absolute property by the marriage is vested in the husband , and he may devise them . And to the cases of the Custom in London , &c. They agreed to be good Law . But it is supposed , that was for the necessary things , 19 H. 6. 14. A Feme for her Quarentine may have her living de Communi ; but she may not take any thing , unless for necessity . And the Common Law is against , that the wife may make her will , and dispose these Paraphernalia invito marito . But of Bonds , or things in action , by the husbands assent , she may make her Executors . 4 H. 6. 31. 31. 39 H. 6. 27. 26 E. 3. 71. That she ought to take onely her necessary apparel , Dyer . 166. 18 E. 4. 11. 12 H. 7. 23. and 24. and the 28 Eliz . Lord Tresmer & al. against the Viscountess of Bindon . There adjudged , that Jewels to 160 l. value , are not deemed necessary things . But they conclude ( the husband in our case having disposed them , and limitted the use of them ) that the Devise is good . For the Plaintiff .

The King against Bagshaw .

That in alledging a Custom uti possit , is as well as usus fuit , 21 E. 4. 28. Old Entrys 141. Pleading , That every Citizen may devise in Mortmain , allowed good . And so the Court held .

Fairweathers Case .

A Cerciorari to remove an Indictment of Barretry , from the Assizes to this Court , and it was held , that there be many presidents to that purpose . Keeling , Clark of the Crown said so , without any consent of the parties , and against the will of the Prosecutors . And by the Stature of Nisi prius it is , that Tryals shall be in Banco , where the causes magna indigent examinatione . But if the King will have it tryed by Nisi prius , then otherwise .

Peck against Ambler . M. 9 Car . Rot . 348.

Assumpsit , That he should quietly enjoy the lands , and that he would save him harmless against any action against him for them . Shews , that he was ousted , and a Judgement against him recovered . Defendant pleads , that all this is six years sin●e , and so pleads the Statute . Court held , Because he failed of his promise , to save harmless , and suffered this Judgement to be against him , which is damage to the party , though Execution be not taken out , that the action well lies , and the S●atute hinders not . And the damages shall be e●tire , though the breach be but in part . As if one assume to pay fifty quarters of , &c. in five years , every year ten quarters ; if he fail of payment of any , an Assumpsit lies , and damages shall be for all .

Margaret Harts Case .

She was an arrant Whore , and runs from Chamber to Chamber playing the Whore . Action lies not at Common Law for these , but she should be sued in the Spiritual Court for them .

Wickham & al. against Enfield & ux . M. 8 Car . Rot . 66.

Errour in Dower . Defendant pleads , Nunques couple in loyal Matrimony . Issue quod fuit , &c. First , because there was not a Writ Original , nor Warrant of Attorney for the Defendant . Court , the Warrant of Attorney being not assigned of Record , that diminution might be alledged . It is not now assignable . Then it was alledged , that neither day nor place of the marriage was alledged in the Bishops Certificate . But disallowed . For the day is not material . And for Thoro & mensa , it shews they continued as man and wife , and ver . matrimonium is as good as legetimum .

Sharps Case .

He was indicted of Perjury upon the 5 of Eliz . for swearing to an Interrogatory in Chancery , that he knew the Land in question , that it was the soil of , &c. and parcel of his Mannor of , &c. ubi revera it was not . It was said by Richardson and Crook , that there can be no Indictment upon this Statute , but where it is shewn that the deposition is upon the matter in question , and conducing to the issue , and the party may thereby be prejudiced . And Richard . that it is usual in the Star-chamber to dismiss Bills where this defect . Be●kley , that to say he knew the Land in question , makes it out , that the Land was in question . Cur . Advis .

Mackaller against Todderick .

It was moved , that being for his pains and solicitation , it was no Symonie . And if it were , it is not an offence against the Common Law but the Ch●r●h-Canons , and therefore examinable onely in the Spiritual Court , until 31 Eliz . and so it was adjudged in 40 , 41 Eliz . upon a Bond . Defendant pleaded Symonie . And 8 Jac . betwixt Taverner and Smith , upon 31 Eliz , Resolved , he ought to suppose a corrupt , and not a Symonaical contract . Fl●tcher to the contrary . Richard . being to pay so much for his pains and not for the Presentation , doubted . Adjournat . Ass. 361. Judgement was reversed .

The King against Archbishop of Canterbury and Pryst . T. 4 Car . Rot . 441.

It was argued by all the Judges in a Quare Impedit . First , that if an Avoidance of a Church h●ppening , and continuing void divers years , so as the King hath ti●le to present by lapse , and the King takes not advantage thereof , but dies , whether his Successor may take advantage of this lapse , or be barred by the 25 E. 3. cap . 1. leg . verb . It was argued , that this Statute extends to all the Successors & Heirs of E. 3. Vernon , That the King hath not good title . But all the other Judges , That the King hath good title to present by the lapse incurr'd in the time of his Predecessor , and is not restrained by 25 E. 3. For by the express words , all his Rights and Titles which the King had in anothers right , are saved . Berkley and some of the Justices doubted , whether a Presentation by lapse shall be said to be in anothers right . All the others agreed , it shall : For though he present ratione prerogativae , yet he presents as in right of the Patron , 14 E. 3. quar . imped . 54. 22 H. 6. 29. Dyer . 364. and for the principal point , 11 H. 4. 7. 7 H. 4. 25. Dyer . 347. 7 Rep. fol. 28. 2. If the Incumbent might resign , whether by his Resignation the Church is become void , and whether the Church by 21 H. 8. by a acceptance of second Benefice , being both with cure , be absolutely void . It was argued by Vernon and Hutton , That the Church is not absolutely void de facto , but voidable quoad the Patron , and until the Patron presents , the other remains Incumbent , and then he remaining so , and in possession for three years , until the pardon , 21 Jac . which establisheth him in possession , that he cannot be ousted by King , or any other , And is so Incumbent , that he may have debt for his tythes , and is chargeable for the payment of Subsidies and fifteenths . But all the others held , That the Church was absolutely void de facto & ●ure , by taking a second Benefice . For at Common Law before 21 H. 8. by reason of Ecclesiastical Canons , the first Church was in Jure void , so as the Pat●on might p●esent thereto if he would , but the Patron not bo●nd to take no●ice of that avoidance , until dep●ivation . 9 E. 3. 2. 5 E. 3. 9. 10 E. 3. 1. 14 E. 3. ●0 . F. N. R. 34. 14 H. 7. 28. and by 21 H. 8. It is ●ade absolutely void , after admission , institution and induction , and the Patron at his peril bound to take notice , and present within six moneths , or lapse incurs . And this appears by the Books since 21 H. 8. Dyer . 347. 4 Rep. 75. 78. 6 Rep. 29. Dyer . 377. Cooks Entrys 368. And for his being charged with Subsidies , imbetters not his title . And it was denied , that he might have debt for not setting out Tythes . And they held , that the pardon of 21 Jac . helps him not . First , because it is no offence within the body of the Act ; for it is no offence against the King . 2. It was never intended by the pardon to dispence with pluralities , or to make a plenarty of a Church absolutely void . And adjudged according .

Earl of Kent against Steward & al. H. 8 Car . Rot . 235.

F. seized in Fee of two Mannors , conveys to the Earl of Shrewsbury & ux . to the use ( viz. ) of one Mannor to them , their Heirs and Assigns ; and of the other to the use of the wife of B. for her life and after to the use of B. until his wife should evict the said Earl or Countess , their Heirs or Assigns , Fermors , &c. from the said Mannor . And after such Eviction to the use of the said Earl and ux . until they should be satisfied of the profits for their loss . Earl & ux . by Fine conveys to E. of Kent , who enters upon the Assignees of B. Resolved , that he as Assignee might not enter , but that the use upon the Eviction ought first to rest in E. of Shrewsbury and his Heir , and that this Conveyance before Eviction , cannot give him title of Entry as Assignee . For Heirs and Assigns are to be taken as words of Limitation ( viz. ) the Earl of Shrewsbury hath it by Limitation to him , his Heirs and Assigns , 1 R●p . 135. 136. Plow . 483. 8 Rep. 75. 10 Rep. 51. 4 Rep. 66. 5. Rep. 95. Plow . 345.

Ter . P. 10 Car . Banc . Reg .

The King against Bagshaw .

IT was urged ( for one informed against for using the Trade of Goldsmith , Londo● , and not Apprentice to it ) that a Freeman by the cu●tom may use any Trade . Upon Demurrer thereupon : 1. Because quod uti possit , and not quod usus fuit , answered 22 E. 4. by Prescription quod possit turner sou plough , and not quod usus fuit . Court agreed , that that alters the ca●e ; as 21 E. 4. 28. Old Entrys , 141. Every Citizen ●nd Freeman may devise in Mort main , good . 2. That custom not to be alledged against a Statute . Answered , that the customs of London ( and that being a custom there ) are confirmed by Parliament , and so good . Court thereof doubted . Upon motion the Demurrer was waved .

Mackaller against Todderick .

It was not yet agreed by the Court . But it was urged to be no Symonie , and not offence within the Common Law : For M. 40 , 41. Eliz . Adjudged , an Oligation for payment of money . Defendant in pleading , shews it was for performance of a Symonaical contract . Upon Demurrer , Not within the cognizance of the Common Law , and therefore no plea , 8 Jac . He ought to suppose a corrupt , and not Symonaical contract . And Symonie by the Statute is not like that for Usury , or 23 H. 6. for Sheriffs . Fletcher urged to the contrary , I promise 10 l. to beat one , void , Adjournat .

Ward against Petifer .

A Lease by the Vicars , &c. of a Meadow , called the Parsons Hayn . Defendant pretended , that the Lessors had not the Fr●ehold , onely primam ●onsuram . Court , That properly , unless other matter be shewn to prove the contrary , the Freehold is in them who have the first Tonsure , and they who have the after-pasture , have it but in nature of Common . And admitting they have but the first Crop , they held they may have an Ejectione firmae of it .

Goldsmith against Ellen Sydner , Administratrix of W. Sydner . M. 9 Car .

In Debt . It was moved by Grimston , that a Statute Staple not being yet forfeited , is not pleadable , and cited 5 Rep. 28. Harisons case . But the Court held , that Harisons case was a Statu●e defeazanced for the performance of Covenants , which might never be broken . But this was a Statute to pay money at a day certain , which is allowable before d●bts upon Bond . Rolls took exception to the Plea in Bar , because it is not per scriptum suum obligatorium nec se●und . formam Statuti , &c. And of this opinion was the whole Court . Co. Rep. 4. fo . 64. Fulwoods Case .

Boreton against Nichols & al. P. 7 Car . Rot . 115.

Father seized in Fee of the premises , makes a Feoffment to the use of himself for life , sans impeach . after to the use of James his second son for life , Remainder after his decease to the first son of the said James , which should have issue male of his body . Adjudged , that this Remainder to the younger son who should have issue , is but a contingent Remainder .

Ter . T. 10 Car . Ban . Reg .

Burgesses Case .

HE was Outlawed upon an Indictment for Manslaughter in Middlesex , and brought a Writ of Errour to reverse the Outlawry . And upon Oath made of the Certificate , that he was beyond Seas at the time of the Outlawry , and not in Middlesex . It was reversed : and he was arraigned upon the Indictment , and pleaded .

The Case of Langforth Bridge .

An Information against the Inhabitants of 〈◇〉 for not repairing the Bridge , whi●h was supposed to be an ancient Bridge . Defendant protestando that it is not ancient , &c. for Plea saith , that it was lately erected . Noy demurred , because he answers not that it was ancient , which being the substantial part of the Information , ought to be specially answered or traversed . 2. The County ought to maintain Bridges , because it is for the peoples ease , unless shewn who ought , 10 E. 3. 28. Judgement for the King , unless , &c.

Sir Edward Duncombs Case .

He was indicted for inclosing his Land , so that he had straitned the High-way . And it was resolved . That where before the Countrey were bound to make it good , he now at his own charge was bound . And Noy , That 6 Jac . 19 Jac . it was so resolved .

Seagood against Hone & ux . M. 8 Car . Rot . 199.

Copyholder in Fee surrenders to the use of F. Reve , and John his son , and the longest liver of them , and for want of issue of John to the younger son of , &c. This Surrender not to be in force , till after the death of the said John . They were upon presentment of this Surrender , they were admitted ut sup . First , whether this clause , This Surrender not to be in force , &c. be void . And resolved , The Surrender good , and that clause ( being repugnant to the premises ) void . 2. Whether John had Estate for life onely , or to him and his Heirs of his body . Resolved , but an Estate for life . And it was resolved , That in an Honor , though there be several Mannors , yet all the Courts for the Mannors are distinguisht , and have several Copyholdes . And though but one Court for all the Mannors , yet they are quasi several Courts .

Spirt against Bence . H. 8. Car . Rot . 246.

Errour of a Judgement in C. B. in Ejectment . The case , C. seized in fee of Soccage Lands , devised ut sequit . having three sons , T. F. and H. I devise to T. my Lands in H. and to his Heirs male , remainder to F. and his Heirs . Item , I give to F. my house in W. and his Heirs male , and for want , &c. to H. and his Heirs male , &c. And then , Also , I will , that all Bargains , Grants and Covenants which I have from , &c. my son H. shall enjoy , and his Heirs for ever , and for lack of Heirs of his body , to remain to my son F. for ever . Upon this two questions : First , whether H. hath an Estate for life onely by this Devise or Tail . It was urged , that the last clause to H. where it is to him and his Heirs , and for lack of Heirs of his body , to remain to F. and the Heirs of his body , extends to all the foregoing clauses , and gives him a tail in all Lands devised to him , because he devised to T. and F. estates of inheritance . All the Justices agreed it to be but an estate for life , and that the words in a Will which disinherits the Heir at Common Law , ought to have an apparent intent . And that the word Also makes no more then And , 6 Rep. 16. 22 E. 3. 16. 7 E. 6. devise 38. Dy . 1. 9 Rep. 127. And upon another clause in the Will , That my wife shall have the use of keeping my son H. and of all the premises to him bequeathed during her life , paying for his maintenance , &c. Agreed she had an estate for life .

Litt . Sec . 735. a maxim , That the Heir is not bound , where the Ancester himself is not bound .

Sir Henry Ferrers Case .

Being arrested for debt by the name of Henry Ferrers Knight ( when in truth he was none ) he and his man in the rescous , killed the Bailiff , and upon the Indictment , it was resolved , that the Bailiffs had no authority by that Warrant to arrest him , and the killing , upon the executing it , no murther , nor manslaughter .

Dorchester against Web . M. 9 Car . Rot . 373.

In this case , first it was urged , That when an Obligee makes the Obligor his Executor , it is a release in Law of the Debt : And so when he makes one of the Obligors his Executor . And secondly , though plene Administ . be pleaded , the Plaintiff may take Judgement presently , and expect when the Executor hath assets , 8 Rep. 134. But it was agreed , 1. That when Debtee makes the Debtor his Executor , it is not absolutely a discharge of the debt , but a meer suspension of the action : As , where Feme Debtee , takes Debtor to husband , it is quasi , a release in Law , because they may not be sued . And personal actions once suspended , are perpetually suspended . But where Executor of Debtor , is made Executor to Debtee , he hath nothing in his own right , but to use an action in the right of another . And they denied the Law to be as in 8 Rep. 134. For if it be found that he hath fully administred , the Judgement shall be against the Plaintiff . But if found that he hath assets , though of a small value , Plaintiff shall have Judgeme●t for the intire Debt , but Execution of as much as is fo●… . But not barred for the residue , and if more assets come after , he may have a Sc. Fac . 8 E. 4. 3. 10 E. 4. 17. 21 E. 4. 81. 21 H. 7. 31. 8 Rep. 136.

Sir William Wallers Case .

He was indicted for striking one in the contempt of the Law and King , and because it is not in the Indictment , that he did it in the presence of the Judges , nor of the King , It was resolved , that his hand should not be cut off . But being it was done in the Palace-yard , neer the Hall-door , and sitting all the Courts , he was bound to his behaviour , and fined ▪ 22 E. 3. 13. 39 Ass. 1. 41 E. 3. Coron . 280. striking at the Court of Wards stairs , imprisonment onely , and fine . H. 17 Eliz . Rot . 6. Tho : Jeans . Indicted for murther , &c.

Ter . M. 10 Car . Banc . Reg .

Tilley against Pearce . P. 10 Car . Rot . 306.

DEbt . Conditioned , whereas Defendant was to espouse A.S. widow , if the marriage took , and he survive A.S. that there should within three moneths after his decease , be paid to such uses , &c. as A.S. by any writing under her hand should direct . Defendant , That she did not limit . Plaintiff replies , that she by her Will in writing did , &c. Defendant demurs , for that she ought to have made a Deed , and not a Will . First , That a Feme covert cannot make a Will . Court , That though Feme covert cannot make a Will without her husbands assent , yet that Declaration , in form of a Will , good enough . Richardson , It had been adjudged upon a Conveyance , wherein was a proviso , one might revoke the uses by writing under hand and seal , that being by Will under hand and seal , judged good .

Holms Case .

One possessed of an house for years , was indicted malitiose , felonice & voluntarie viet armis the said house burnt . Adjudged not Felony . For it was said , that burning of houses is not Felony , unless aedes alienae , Britton 16. Bract . 146. Felony to burn the house of another , 10 E. 4. 14. 3 H. 7. 10. 11 Rep. 29. And that intent onely without fact , makes not Felony . Crook , that the burning of my own house in a City is Felony , because it endangers the whole City . And though intent onely makes not Felony , yet here it is coupled with an act of Felony , as 5 H. 7. 18. 7 H. 7. 4. 42. 13 E. 4. 9. where one delivers goods to one , and afterwards privately steals them , to the intent to charge him , &c. it is Felony . But it was adjudged in the principal case not Felony . And the Prisoner committed till good suerty for his behaviour , fined and pillored .

Robodham against Venleck .

Words , The Plaintiff made a false Oath before the Judge , and I have that in my house that can prove it . Held actionable , shewing that he was examined to the truth of some articles before Justice Whitlock : and this speech charges him with perjury .

Merrick against Hundred of Rapesgate . P. 10 Car . Rot . 233.

Read the very same matter resolved against the Hundred of Dacorn .

Stephens against Faucon . H 9 Car . Rot . 1052.

Errour of Judgement in Quare impedit . Assigned , Because after a Writ awarded for the tryal , upon consideration of the Plea , a Repleader was awarded , because the induction was alledged , and it ought also to have been traversed , which the Court held was no erro● . For the t●… v●s● alters the course of the tryal . 22 H. 6. 27. 2 H. 4. 17.

Anonymus .

Indictment , that I.S. and 28 others , ingrossed mag. quantitat . stram . & foent , to sell and make the price dearer . Urged to be nought , because it is not quilibet eorum , for 28 may not ingross together . But disallowed . For it may be th●t 28 may ingross , &c. though not probable . 2. Because , it is , they ingrossed magnam quantitat , which is uncertain . Court , for that cause quash'd .

Stile against Finch .

For words . Moved in arrest , &c. because the action is brought six years after the words spoken . But the Court , Defendant not pleading the Statute of Limitations , there might be divers hindrances of bringing it before , as infancy , imprisonment , &c.

Stonehouse against Corbet .

In Waste , there were several Issues joyned , and because the Jury inquired not of the several Issues , errour was brought , but disallowed by the Court .

Howel against Barns , in Chan .

One seized in Fee of Land , devises to his wife for life , and afterwards , the same to be sold by his Executors , and the moneys to be divided amongst his Nephews , makes two Executors , one of them dies , the wife living .

It was resolved , that the Executors had not any interest , but an authority . 2. That the surviving Executor might sell . But whether he might sell the reversion , till the Femes death , was doubted . Coke Litt . 112 , 113. 136. Br. Devise 31.

Peards against Johns .

Words against a Lawyer . He is a Dunce , and will get little by the Law . Adjudged actionable .

Morgans Case .

For counterfeiting Twenty shillings pieces of the Kings Coyn . He was judged to be drawn and hang'd , but not quartered .

Beal against Beal .

Debt upon a Bond . Upon Arbitriment . Upon Demurrer . It was urged , Whereas the condition was , that the Arbitriment be delivered on 28 of Feb. at Joh . Rolfs shop Scrivener in Cornhil . It was not said to be delivered at the aforesaid shop , nor to the aforesaid J. Rolf , disallowed . For it shall be intended no other person , unless the contrary be shewn . Then 2. It is uncertain to pay charges in such a suit , disallowed . For they are certain , when the Attorney hath made the Bill . Judgement pro quer .

Langden against Stokes .

It was agreed by all the Court , that where an action is grounded upon promise by words , it may be discharged by words , before breach , 3 H. 6. 36.

King against Coke . T. 10 Car . Rot . 1194.

It was agreed in Assumpsit to pay money , although it is upon request , l●cet septus requis . is a sufficient allegation , and the bringing the action , a sufficient request for the money .

Vivian against Shipping . Trin . 10 Car . Rot . 1194.

Upon Assumpsit . In consideration the Plaintiff assumed to stand to the Award of I.S. and I.D. and if he failed , to pay 40 l. the Defendant assumed to pay 40 l. if he did not perform &c. Plaintiff shews , that he performed on his part , and that the Defendant had not on his part . Defendant pleads null . tale fec . Arbitrium , and found against him . Rolls moved in arrest , &c. because the Plaintiff shews not particularly that he paid the money , adjudged upon the award . 2. Because he alledges not a special request for the payment of the 40l . for a general licet sepius , &c. serves not . All agreed , that shewing by the Plaintiff , that he hath performed on his part , it is good in substance , though not in form , and the Defendant might have demurred . And to the second , They agreed , that in Assumpsit to pay money , though upon request , the general allegation licet sepius requisit . &c. is sufficient , and the bringing the action is sufficient request for money . Judgement pro quer .

Palmer against Knights . Tr. 10 Car . Rot . 225.

Assump . That the Defendant in consideration the Plaintiff would cut and carry away such trees promised to save him harmless , shews that he did cut and carry , &c. and that he was sued , and upon non Assump . 30 l. damages gived . Grimston moved in Arrest , &c. That the Declaration is nought , because he shews not in what Court he was sued , nor how he was damnified . Richardson ▪ held at first , that the Verdict aided it . But Jones and Crook held , that the breach is not sufficiently shewed , and so ill in substance , and the Verdict aids not . Jones cited Peck and Metholds case , where an Obligation was to be delivered upon request , after payment , &c. And because a special request was not made , as the day and year , &c. Upon Error brought , Judgement reversed . Judgement according .

Hopehill against Searl . H. 9 Car . Rot . 269.

A Lease made for octoginta & terdecem annos . Adjudged , that terdecem there , must be taken for 13. and not 30 years in common Parlance , especially coming after octogint .

Baker against Hacking .

Tenant in Tail , Reversion in Fee , joyn in a Lease for life by Deed , Reversioner during Lease for life , devises his Reversion , and dyes , afterwards Tenant in tail dyes sans issue . Whether this Devise be good , to not . The doubt was , if Tenant in tail joyns with the Reversioner in Lease for life , not warranted by the Statute : Whether a discontinuance of the tail onely , or of the Reversion also , if of the Reversioner no Devise . Jones and Crook , no discontinuance of the Reversion , but quasi a confirmation of the Lease , du●ing the life of Tenant in tail . Berkley doubted . Adjurnat .

Hinsley against Wilkinson . H. 8 Car . Rot . 302.

Error of a Judgement . An action was brought against one , because his Coneys came into the Plaintiffs ( in the first action ) corn . Adjudged , the action lies not , for it is no more reason for that they being ferae naturae , than for a man to bring his action against me , because my Pidgeon● fly in●o his corn . For none then can tell whose they are . For he may kill them if he can . 5 Rep. 104. Borastons case . Judgement reversed .

Bull against Wyat .

It was held by the Court , That a Lease , with Letter of Attorney to make Livery , habend ▪ a die dat . and the Livery made the same day is void . And he entring thereupon , paying Rent , is but Tenant at will : as one entring without Livery , is Tenant at will to the Feoffor .

●rousers Case .

He being an Attorney of this Court , was elected Tythingman in Taunton , where there was a custom , that every one shall be Tything ▪ man or Constable according to their several houses : Whereupon he brought his Writ of Priviledge , which by the Court was allowed , and that custom judged void . For if a woman have a house there , she is eligible , which is against Law .

Stevensons Case .

One being in Execution for a debt to the King , in the Eschequer , was condemned in this Court in debt● and was brought to the Bar to be charged in Execution for this debt also . It was moved , that by the 25 E. 3. cap . 19. a common person shall not have the Execution against the Kings debtor , until he makes agreement for the Kings debt . Of the same was the whole Court . But inasmuch as he had not a Writ of Protection . Resolved , that he was out of the Statute , and should be charged ,

Griffiths Case .

Sc. Fac . upon Recognizance to keep the Peace . Error . 1. Because it was garderet , when it should , conservaret pacem . Court , it is all one , and as well . 2. Because he should appear at the next General Quarter Sessions , and in the interim Garderale par . And does not shew the day of the next Sessions . Crook for this held it ill , Richardson & al. Advisare Cur .

Ter . H. 10 Car . Ban . Reg .

Netter against Bret . M. 10 Car . Rot . 132.

REsolved , that the Spiritual Court hath nothing to do with Land , but onely of the Probate for the Personal Estate ; and where a Will is intire , there cannot be a Prohibition for part , and not for the other part , 6 Rep. 23. Marquess of Winchesters Case . A Consultation , unless cause , &c.

Gymlet against Sands . T. 8 Car . Rot . 678.

One seized in fee infeoffs A. B. and C. to the use of himself for life , sans impeachment , &c. after to his wise for life , and after to the use of I. their son and heir apparent in tail , remainder to his right heirs . After the Feoffer infeoffs another with warranty against all , &c. and dyes , he wife enters , John the son enters upon this last Feoffee , and infeoffs another with warranty . First , whether the wife and John had a good title to make this last Feoffment . 2. This Feoffment by the wise , joyning with John the remainder , is no forfeiture , without finding she had notice of the Feoffment and Warranty , Cook , 5 Rep. 110 Bargainee by Deed inroll'd , shall not enter upon Lessee for non payment of the Rent , unless it were shewn that he had notice . And so 8 Rep. 96. Maynard on the contrary , that it was a forfeiture , for she ought to take notice at her peril : and a difference is between a condition , and this voluntary act of the Feoffment . And to the other , he shall be intended heir , because it is found he had unic . fil . suum . Jones and Berkley , This warranty no bar , and that he shall not be intended to be heir . Crook è cont . For it is found , the verdict calls him fil . suum hered . apparent . and in a special verdict intendment sufficeth , especially in this case , 5 Rep. Goodales case . For the second , they all resolved , had the warranty been well found , the sons estate was bound , and her joyning in the Feoffment was a forfeiture , and that she at her peril ought to take notice . Upon the first , Advis . vol.

Mead against Thurman .

Upon suggestion , that by custom , for Tares cut and given to Plough-Cattel , and for Head-lands sewed with corn for that purpose , tythes are not payable . A Prohibition was granted .

Dymock against Fawcet . M. 10 Car . Rot . 148.

Words in London spoken of a Captain , Thou art a Pimp ; and further , That he was a common Pimp , and notorious , which he would justifie . Berkley and Crook held the words actionable , Jones and Bramston not . But all agreed , that the exposition and averment , that Piffe is known to be a name for a Bawd , is good Judgement staid .

Nichols against Walker & al. T. 10 Car . Rot . 222.

It was resolved in Trespass . That a rate unduly taxed , the Warrant of the Justice of Peace for the levying it , will not excuse the Trespass . For not like where an Officer makes an arrest by Warrant out of the Kings Court , which if it be errour , the Officer must not contradict , because the Court hath the General Jurisdiction : But here the Justices have but a particular Jurisdiction , to make Warrant to levy rates well assest .

N●tter against Percival Bret .

Berkley cited the resolution of a case , That where a Testament is made of land and goods , no Prohibition lies to stop the probate thereof for the said goods , and in such case the testament being mixed of lands and goods , probate shall be of the intire Will , and not of parcels . Dyer 254. And Jones held with him , that a consultation shall be , but that it shall be special . And Register , 246. that Wills of Lands in London are first proved before the Ordinary . Crook argued , That a Consultation ought not to be first , because the Prohibition is well granted , and upon good grounds : For as it is drawn it alledges , that the testament is made of the land , and no mention of the goods . And as for that the Register speaks of probate land of before Ordinary , it mentions a special custom , which shews , that without custom it cannot be . And Crook agreed , the case in Dyer , where land was devised to be sold for payment of Legacies , the suit for the money to be distributed , may be in the Spiritual Court . For there the land being sold , the money is personal , and savors not of the reality , and is as assets in the Executors hands . 2. If consultation be , it ought not to be upon motion , but pleading . For here the party might be prejudiced erroniously , and not have his Writ of Error . Marquess of Winchesters case , 38. 39. Eliz . rot . 355. Lloyd and Lloyd . 3 Car . Westlys case , 6 B. M. 5 Car . Hill and Thornton , where a consultation was granted onely for the goods .

Miller and Johns against Maynwaring .

One seized with his wife in fee , in right of his wife , had issue a son , after they let this land to A.S. for 30 years , the wife dyes , and after Tenant per courtesie dyes . The son reciting A.S. lease , makes another lease to Rochester habend . after the end surrender , &c. of the said A.S. lease . And it is found , that the Deed to Rochester was rased , as 28 H. 8. were altered and made , 27 H. 8.

1. The first question was , Whether the lease to A.S. determined after death of Tenant per courtesie , or onely determinable by the heirs entry . Resolved , it was determined by death of Tenant per courtesie . And no acceptance of the rent after by the heir can make it have continuance , 1 E. 6. accept . 19. 2 Rep. 77. Harvy and Thom . case cited , 8 Rep. 34.

2. When the lease to Rochester began ? Resolved , It began presently upon sealing , for there was no such lease in esse , then as A.S. 3 E. 6. Br. leases , 62. 6 Rep. 36. 46. 4 Rep. 74. Dy . 116.

3. The Deed being raced in a material point , after sealing and delivery , whether that makes it not void . Jones and Berkley , that the Deed is void by the rasure , but the Lease good , and remains in esse notwithstanding . And they differenced the case , where an estate loseth its essence by a Deed ( viz. where it has no essence without Deed , as Lease by Corporation of tythes , &c. there such rasure determines the estate . But where it may have essence without Deed , otherwise . Crook , that this rasure determined the estate , 11 Rep 27. 27 Dy . 261. 10 Rep. 97. Dr. Leyfields case . 7 E. 3. 57. 14 H. 8. 27.

4. It was resolved , That by the name of a Reversion , lands in possession cannot pass , but by the name of land a Reversion may pass . And that an habend . in a Deed shall not enlarge the estate , contrary to the Grant . See , That by the grant of a Reversion , he hath none , nothing passes . Co. Lit . 46. 10 Rep. 107. 5 Rep. 104. Plow . 196 , 433.

Sir John Stonehouse & ux . against Corbet .

Errour . In Waste . Sir R. Corbet . seized in fee , levied a fine to the use of himself for life , after to his wife for life , and after to himself , and his heirs males , after to Sir J. Corbet Plaintiff . Sir R. dyes , the wife enters , being seized for life , Reversion to the Plaintiff , and that she made waste ad exhereditat . the Plaintiff . Errour assigned . Because the Plaintiff hath not sufficiently intitled himself to the Reversion to punish the Waste . Because he alledges not that Sir R. was dead without issue male . And that intendment helps not it , it being matter of substance . But the Court , Forasmuch as it is answered , that she entred , and was seized for her life , and the Remainder to the Plaintiff , and alledging it was to his disinheritance , it is intended that Sir R. is dead , and without issue male , 5 E. 3. 37. 7 E. 3 , 46. Dyer . 304. 10 Rep. 63.

Bowton against Nichols .

Errour . Judgement given for the Defendant , and Judgement affirmed , and 10 l. costs given upon the Statute , 3 H. 7. which is where Judgement is given against Defendant or Tenant , and he to delay , &c. But here Judgement was for the Defendant . Court , that it is out of the Statute . And a Supersedeas awarded to stay Execution for the costs .

Ter . Pasc . 11 Car . Banc . Regis .

Anonymus .

PRohibition prayed . And alledges a custom that for every lamb above seven , he compounded , if he had ten , the Parson had the tenth . That this surmise is not allowable in the Spiritual Court . Bramston and Crook held , for that cause a Prohibition . Also , of After-marth , that there is a custom in consideration he should make the first Tousure , and carry it away , he should be discharged of tythe of the After-mouths , a good suggestion . And so of Bees . that in consideration he maintained the Hives in Winter , and paid honey and wax , he was discharged of tythes of Bees . A Prohibition was granted .

Hawkins against Bilhead . H. 10 Car . Rot . 1312.

For words , He hath lain with such a woman , and others ●and them carnaliter cognovit . Moved in arrest , because the action is not brought within two years , according to 21 Jac . of Limitations . Jones and Berkley , because the Statute is not pleaded , that advantage shall not now be taken . For otherwise a great mischief would insue . For in Common Bench they prosecute by Original , &c. But here by latitat , whereby the cause of action does not appear , and may continue by Process divers year before arrested . And Plaintiff needs not shew in his Declaration , why he commen●… d his suit no sooner . But if Defendant plead the Statute , then by Replication he ought to shew the cause . Judgement pro quer . unless cause , &c.

Baker against Hacking .

Bramstone Jones and Berkley , That the Devise is void . For all held . That the Lease for life , is onely Lease of Tenant in tail , during his life and Lessees , and then a discontinuance , and the Reversion taken from him , so that he cannot make a Devise . If there be Tenant in tail , Remainder to his right heirs , he may be restrained by condition not to alieu , for his Feoffment is held there a discontinuance . Jones cited Cromwel and Andrews case , 15 Eliz . Tenant in tail , Remainder to his right heirs , makes a Feoffment by Deed . Resolved , a discontinuance : And no difference , when Tenant in tail , Remainder to his right heirs , makes Feoffment ; and when Reversioner and Tenant in tail joyn in a Lease for life : and it is a discontinuance presently , or not at all . Crook , That it was no discontinuance , nor Reversion displaced .

1. It shall be said not tortious , when by any means it may be construed to be a good Lease . Which may here be . For it is an estate derived out of both their Estates . A Lease of Tenant in tail as long as he lives , and after of Reversion . Co. 42. Litt . 6 Rep. 14.

2. Because they joyn in the Lease , therefore no discontinuance to the Reversioner , because he joyned , and Tenant in tail is dead without issue , 27 H. 8. 13. 1 Rep. 76. And an act may be a discontinuance now , and not one by matter ex post . As if Tenant in tail infeoff the Reversioner and a stranger , and Reversioner survive , no discontinuance . But all the other Justices held it tortious . Judgement according .

Mayo against Cogshil .

Error of Judgement in Ejectment . Upon not guilty Baron was quitted , and the Feme found . The Judgement being quod capiantur , was assigned for error . Rolls , so it ought to be . T. 4 Jac . Rot . 376. Lewes and White . Upon error for that cause , it was adjudged good . Which the Court agreed . But the second errour , The Declaration was not vi et armis . But the Writ was , quare vi & a●m . intrav . wherefore Judgement for this reversed .

Ter . T. 11 Car . Ban . Reg .

Bushel & al. against Yaller . T. 10 Car . Rot . 456.

ERror by Principal and Bail . Assigned , because there never was any Capias issued against the Principal . Resolved , that they cannot joyn in error . For the one hath nothing to do with the Judgement against the other .

Townsend against Hunt . H. 11 Car . Rot . 774.

Assumpsit . In consideration at the Defendants request , the Plaintiff had sealed a release , the Defendant assumed , &c. Upon Demurrer argued , that this promise being for a consideration past , was void , Dyer 272. where he promised one that was bail for his servant , he would save him harmless . Judged a void promise . Berkley agreed it . Jones and Crook , that the promise was good . Had it been made at the time of the release made , it had been clearly good . Then being made after the release , and made at his request , Defendant hath continuance of the benefit of it , and therefore good . For so the case in Dyer imports . And for this purpose 24 Eliz . between Marsh and Rainsford was cited . And because made at the Defendants request . Judged pro Plaintiff .

The King against Sir Basil Broke .

Sc. Fac . A fine assessed at the Justice Seat in the Forest of Dean . Plea , that the Seat was at Glocester , Thereupon demurred , because beginning of Justice Seat was at such place within the Forest , and adjourned to Gloucester . Court , good , though begun out of the Forest , &c.

The King against Myn .

Judgement upon Scire Fac . found for the King against Defendant , for cutting trees in a Forest without License , being removed out of Chancery by Cerciorari , and sent by Mittimus into the Kings-Bench .

Smith against Smith .

In Dower . Errour assigned . Record certified , Defendant in misericordia . The Defendant being an infant , who cannot be amerced , amended , ve . case .

Reve against Master & al. H. 9 Car .

Copyholder in fee of Borough English Land , surrenders to the use of himself , and his wife , and his heirs . Having issue W.G. and Charls , Father dyes , then it descended to Charls the youngest , who dyes sans issue , elder enters , the middlemost enters upon him . Whether W. son and heir to the Father who created this Reversion , and brother and heir to the youngest , or G. the middlemost brother , shall have this . It was agreed , that G. cannot have it : so resolved in Ballards case for a Copyhold in Tottenham . 2. That though Charls never was admitted , but dyed before , it is not material , for it is all one as if he had . 3. They all agreed between Copyhold in Borough English , and a Freehold in Borough English , there is no difference . And that if the Mother had dyed , living Charls , and he entred , and dyed without issue , then W. should have it as heir of Charls . But sole doubt , this being a Reversion expectant upon Estate for life , and Charles dying in life of Tenant for life ( the mother ) without issue , whether George as youngest might not have it . Bramston and Berkley argued , that G. should . And compared it , That brother of half blood , the eldest of the whole blood never entring , shall claim as heir to his Father , 40 E. 3. 9. 7 H. 5. 2. And in Writs , where he conveys by descent , there is mention of none but those who had the Seisin , as Pitz . Recov . 212. 8 Rep. 88. Jones and Crook , That W. shall have it . They allowed the Cases put of Estates at Common Law . And said , that Charls being youngest son at death of his father , that makes him heir in Borough English by custom . And therefore living the father , none can be said to be herein Borough , &c. 6 Rep. 22. One seized in Borough , &c. having a son , leaving his wife , priviment enseint with another . The son born before shall be heir , and not him that is born after the death . Bramston demurred that . And said , that the son born after shall oust him ; as in Shellys case , 5 E. 4. 6. 9 H. 7. 15. 30 Ass. 47. And whereas it was said , that 6. the youngest should have it as heir in Borough , &c. because he is youngest , when the Feme dyed . Jones and Crook denyed it . For he was not the youngest when his Father dyed . As Writ runs minime nat . at the time of his Fathers death . Wherefore , &c.

Anonymus .

Error assigned was . The Verdict found 5 l. dam . and 26 s . 8 d . for costs . Court awarded to recover the damages and costs assest , and 50 s . de increment . &c. and says not , pro misis suis , according to the course . Court , it shall not be intended but pro misis suis , which was the last antecedent , and not pro dam .

Ter . M. 11 Car . Ban . Reg .

King against Fitch . T. 9 Car . Rot . 213.

ERror , Because the Waste is supposed in Houses and Gardens , and upon the Writ of Enquiry intire damages was found . But the Court held that finding good . The second error , because upon the Writ of Enquiry , thirteen Jurors returned , where there ought to be but twelve in this action , 3 H. 6. 29. which at first the Court conceived good error , but after not .

Acton against Symon . M. 10 Car . Rot . 83.

Assumpsit . In consideration the Plaintiff would demise , &c. promised to pay the Rent , &c. Defendant pleads a surrender and acceptance . After Verdict , moved in arrest , &c. That the action lies not , because it is grounded upon a personal promise in a real Contract . Bramston , Jones , &c. held it lies , for it is a collateral and absolute promise . But had it been upon an implied promise , as upon a sale of goods , &c. It lies not . Crook doubted , because it is a personal Contract , and by the Lease made the personal Contract , is determined . For it is in vain to have Assumpsit , where he may have debt upon a Lease . All the Court denied ; for notwithstanding this promise , it is a Rent as before . And all agreed , There ought to be an express promise proved , if he pleaded non Assumpsit , and that an implied promise would not serve . Berkley , if he recover damages to the value , it may be pleaded in bar to an action of debt for the Rent . Bramston and Crook denied , if one borrow money , and promise to enter into a Bond to pay it , and enters , that Bond determines the Contract .

Done against Smeth●ar & al. T. 8 Car . Rot . 1310.

Error to reverse a fine betwixt , &c. Demandants and such Deforciants . Error assigned . Because the Writ was directed to the Coroners , where it should have been to the Sheriff . For had the Sheriff been sole party to the fine , because it is but a summons , and he may summon himself , it should have been directed to the Sheriff , 18 H. 8. 3. 9 H. 6. 12. But the Court were of the contrary opinion . For it is a question , whether the Sheriff , as Plaintiff , may execute a Writ for , as Defendant against himself . And so no error , 34 H. 6. 29. 12 H. 4. 24. 8 H. 6. 28. 2 H. 6. 12. F. N. B. 98. Another error , That the Writ of Covenant in the Registers si fecerit eos secur . where ought to be vol. But the return being vos , rul'd , that the Roll be mended . And fine was affirmed .

Down against Hatewait ,

Debt upon Bond de quinquaginta duab . libris . Jury find quinginta duab . libris . Resolved to be all one as wiginti pro viginti .

Needler against Symnel & ux . T. 11 Car .

For words of a Tradesman , Thou art a Cheater , and hast cheated my husband of 500 l. Moved in arrest , &c.

1. Because the Issue is non sunt ipsi culpab . where it should be ipsa culpab . But Court , Baron and Feme are both charged .

2. These words touch him not in his Profession , and then no action , for it may be he cheated him at dice , &c. so resolved in Brunkers and Gorges case . Judgement pro Defendant , unless cause , &c.

Dr. Sybthorps Case .

Words . See , Dr. Sybthorp is robbing the Church ; and another day , Dr , Sybthorp has robbed the Church ( innuendo ) adjudged actionable . Though it was urg'd , to say he is robbing , is not of an act done , and so no Felony . Berkley said , that for saying , such a one is robbing such a one , or ravishing , &c. action lies , 5 Jac . Benson and Marley , Thou hast robbed the Church , innuend . such one actionable .

Downs and Hathwait .

It was moved again , because of this variance . Declaration is that Johannes was obliged . The Obligation is Joaens , without any dash . But disallowed . For it was the same , and an obligation shall not be avoided by vicious writing , and incongruity . And for the other quinquaginta , for quinginta . The Court cited a case , where an Obligation of septingint . was taken for septuagint . and not void . Judgement pro quer .

Baker & ux . against Bereman . P. 11 Car . Rot . 152.

Action on the Case . Shews , That they were possest of such a Close for years , in such a Parish , and that the Defendant was possessed of another Close neer joyning . And that within the said Parish there is a custom , that all occupiers of such a Close of the Plaintiffs , time out of , &c. had a horse and foot way . And that the Defendant had built to stop the said way , &c. Moved in arrest , &c. 1. That such a custom in a Parish alledged for an occupier , to have a way , &c. is not good , but he ought to prescribe , in him , who hath the inheritance . And that a custom in a Parish cannot be well applied to a Close in the Parish . Dyer . 363. 6 Rep. 59. Of that opinion was the whole Court . And they held , That Inhabitants may alledge Prescription for a way to a Church or Market , which are in necessity , and the like , but not in matter of profit or charge in anothers soil , 8 E. 4. 5. For Fishermen to dry their nets , pro bono publ . 15 E. 4. 29. 18 E. 4. 3. Judged also , the Baron and Feme may joyn , in wrong done to Feme , where the Baron has in her right .

Hitchman against Porter .

Judgement affirmed . For it cannot be intended he was acquitted of any other matter , therefore he was acquitted inde , and certain enough F. N. B. 114. and there says not inde . Old Entrys 123. is acquietat . though acquietat . inde is the surest way .

Spencer against Medburn & ux .

Words . Go tell my Landlord ( innuend . Plaintiff ) he is a Thief , and I 'll cause him ( innuend . Plaintiff ) to be hang'd . It was resolved , because it is not averred the Plaintiff to be her Landlord , and she might have more Landlords , non constat of whom she spoke . And if the Declaration it self is not certain by an ( innuendo ) to be spoken of the Plaintiff , the Verdict will not aid it . Cur . Advis . for the Plaintiff to relinquish this , and amend this in his second action .

Price against Parkhurst & al.

Error . Debt was brought by six Executors named in the Writ , and after but three prosecute , and the Judgement was for them , and named not the other three that served . Judged good , causa ve .

Smith against Smith .

Upon Error . Because upon the Ve . Fac . it was returned R. S. Sheriff . &c. ret . crast . Mart . whereas then he was not Sheriff , but one Smith . It was moved by Maynard , that this ought to be tryed per pais , and not by matter of Record . But not allowed . Judgement affirmed .

Horn against Barber .

Debt upon Obligatihn . Conditioned to pay the Rent at the Feasts mentioned in a Lease , or within ten days , or six moneths after , and that there were divers other Covenants in the affirmative , but no day after the said Feasts limitted in the said Indenture . And that he had performed all Agreements , Covenants , &c. Plaintiff demurred . Resolved , that he pleading he hath performed all Covenants , &c. when the Obligation refers to one of the three times ( viz. ) The four Feasts , or within ten days , or six moneths , ( where he hath Election upon which of those he will pay ) the Plea is ill . 21 E. 4. 12 , 44. Kelway , 95. 38. H. 6. 26. 8 Rep. 33. Co. Litt . 303. 5 H. 7. 9. 22 E. 4. 44.

Sydownn against Holm .

Upon surmise , after a Prohibition , they shew that the Prior of B. was seized in fee , and that he and his Predecessors time whereof , &c. untill the dissolution were discharged of Tythes , and all their Fermors : That after H. 8. was seized , &c. and shews the 32 H. 8. ( that none shall be sued for tythes , who were discharged by the Laws and Statutes of the Realm ) and that he was now sued by the Parson for tythes . Crook , that in regard it was discharged , time whereof , &c. in a spiritual person ( viz. the Prior and Convent ) It may by intendment be by composition real , then it goes with the Land , 8 E , 4. 11. N. B. 41. That any lay person may have a composition , and thereupon prohibition afortior . a spiritual , 7 E. 3. 3. 10 H. 7 , 18. And then being a prescription in a spiritual person , and after dissolution in the King as persona mixta , and from him to his Patentee , as 2 Rep. 44. 11 Rep. 12. Bramston Jones and Berrkley to the contrary . But agreed all that such composition shall be by composition reall , and so go with the land . But a spiritual person having divers priviledges , as by grant as well as by Composition , it shall be intended personal discharge , and so determines 3 E. 3. 11.

2. Whether this priviledge ( admitting the first ) determine not meerly , or be revived by 27 H. 8. and 31 H. 8. Crook , if not aided by one , it is aided by 31 H. 8. by the general clause , that the King and his Patentees of any Monastery , &c. shall have the same discharged , &c. as the late Abbot , &c. and that all Abbies were surrendred or relinquished . 4 Feb. 27 H. 8. And to that 7 Eliz . Rot . 254. Pas . 27 Eliz . Rot . 328. Cogal and Fairfax . Bramston , &c. on the contrary , that 27 H. 8. does preserve or revive this priviledge : Because the words are , not as the Abbot held it discharged , but that the King shall have it in as ample manner as the Abbot held it . And general words never preserve priviledges determined , unless by special Statutes revived . And that 31 H. 8. extends not to Abbeys come to the King after 4 Feb. 27 H. 8. They cited 18 Jac . C. B. Gerrard and Wright . So they held . And a Consultation was granted , principally for that the Abbey dissolved , appeared to be suppressed by 27 H. 8.

Smith against Smith . M. 10 Car . Rot . 142.

Error of a Judgement in a Formedon in Remainder . It was moved ( upon affirming the Judgement ) for costs for the Defendant in the Writ of Error , because of delay , according 3 H. 7. But resolved , There being no cost nor dam . allowed in the first action . Here no ●… is by the Statute .

Byrt against Manning .

Debt for performance of Covenants , That the Plaintiffs son should marry the Defendants , daughter ; and amongst others , Manning Covenants to procure the Plaintiffs son to be presented to such a Church , &c. Resolved , that without a special Averment , that it was Symonie , it shall not be so intended . But all the Court held , that had it been in consideration of the marriage of his son , &c. he would procure him to be presented &c. That had been Symonie , and would avoided the Obligation . But here it is a meer distinct Covenant , and independant upon the former . Judgement pro quer :

Tyffins against 〈◇〉

Upon Error . It was resolved , where there be two Defendants , and after Issue one dyed , though the Ve . Fac . issued against both ( so against a dead person ) yet the other being alive , no error , 3 H. 7. 4 H. 7. 7. Judgement affirmed .

Digbie against White .

Debt upon Bond . Defendant pleads , That Feb. 22. Plaintiff released . Upon Oyer of the Release , it appeared a release of all actions to Jan. 14. before date of the Release . For that misprision the Plea judged ill .

Stone against Newman , Escheq , P. 7 Car . Rot . 115.

Sir T.W. Tenant in tail of the gift of the King , the Reversion to the King in fee , infeoffs Moulton and his heirs to use of him and his heirs , he had issue G. who had issue Sir F. Sir T.W. who made the Feoffment , was attainted of Treason , and executed . And by Act of Parliament , that he should lose Jura Condition . & hereditament . sua .

Whether after this Feoffment Sir T.W. had any estate or right remaining in him , which is not forfeited by this Attainder . And the Arguments in Walsinghams case in the Coment . was much insisted on .

1. Because it being a Feoffment by Tenant in tail of the gift of the King ( the Reversion remaining in the King at the time of the Feoffment ) no discontinuance of the tail , and therefore the tail in him at the time of the Attainder . Not all agreed , If Tenant in tail of a common person , makes Feoffment , where no Reversion to the King , it is discontinuance , and if attainted , no forfeiture to the King . M. Winchesters case .

2. If the tail be not in him to be forfeited , yet the right of the in●ail remains , which is given to the King by 33 H. 8. or prim . Mar. And though Feoffment by Tenant in fee gives all Estates , &c. yet not so in Tenant in tail , but that follows the person and blood . And therefore a que Estate of Tenant in tail cannot be pleaded .

3. The privity of Estate remains betwixt Donor and him , and cannot be transferred ; especially Reversion being in the King . And therefore the heir within a fee recovering in formedon , shall be in ward . And Tenant in tail , remainder in the King makes Feoffment , heir within age shall be in ward . F. N. B

4. The right remain'd in him , and is forfeitable by 33 H. 8. and 1 Mar. For Writ formedon supposes quod descendit jus .

5. It construed strongly against Traytors . As Shefields case , 21 Jac . But Hutton , Crook and Jones to the contrary . To the first , 3 Rep. fo . 2. was cited , M. Winchesters case , and there fo . 10. Doubtys case , the right of Entry , and not of Action , is onely taken away . And that Estate in fee passeth to the Feoffee descendable to to his issue , & wife of Feoffee dowable . And Feoffee after recovery by default , shall have Writ of Right , and quod ei deforceat , Plow . 557. 10 Rep. 96. If Tenant for life , Reversion in the King , makes a Feoffment , it cannot touch the Kings Reversion , nor a fee descendable passeth . But where Tenant in tail , &c. there a base fee passes , determinable by entry of issue in tail , Coo . Lit . 339. Tenant in tail , Reversion to the King , disseised , a descent is cast , it is good , and bindes the issue . But Tenant for life , &c. otherwise , 18 E. 312.

To the second , they cited F. N. B. 55. That Waste lies . For the privity that once was in them , as Tenant in Dower or Courtesie aliens . And it was said , that common recovery before 34 H. 8. barred a a tail , where Reversion in the King was not touched .

3. They all argued , that against this Feoffment no right remained in him , nec jus in re , nor ad rem , 9 H. 71. 39 H. 6. 43. 12 E. 4. 32. 1 E. 4. 81. Plow . 374. Resid . postea .

Ter . H 11 Car . Ban . Reg .

Spooner against Day and Mason . M. 6 Car . Rot . 183.

ADjudged , That a Prescription cannot be pleaded against a Prescription , but the Prescription in the Declaration ought to be traversed . And for error this was assigned , Because a Fold-course being appurtenant to a Mannor , cannot be divided and annext to parcel thereof . But that exception over-rul'd 5 H. 7. 7. 1 H. 7. 24. 1 E. 3. 1. 27 H. 8. 10 H. 6 22.

Hays against Hays . 10 Car . Rot . 1045.

Debt on a Bond , to perform the Arbitriment of H.C. and R.S. of all controversies and demands between Plaintiff and Defendant . Defendant pleads quod null . fec . arbit . The Court resolved , after argument , that notwithstanding the two brothers Robert and Will . entred not into one bond of submission , yet when at the same time they enter into several bonds to stand to the Award , it is but one submission . And the action being upon the bond of submission , it is not fitting to set out the other bond in the narr●tion , but sufficient to shew it in the replication . Judgement for the Plaintiff .

Bradstock against Scovel & al. T. 11 Car . Rot . 1097.

T.B. seized in fee conveys to T. his son , and his wife , and the heirs of their bodies for a Joynture for his wife . T. the father dyes , T. the son and his wife enters , and seized in tail have issue P. and T. T. the father dyes , and P. the eldest son levies a fine in life of the Mother Tenant in tail , and dyes without issue . Whether this fine levied by the eldest son , living the the mother Tenant in tail , and dying without issue , shall bar T. the second son ? All agreed , that this fine levied by the eldest son , who was never seized by force of the intail , and dying without issue before the intail descended upon him , is not a fine within 32 H. 8. nor 4 H. 7. to bar the intail . And in a formedon en descender , his brother shall never name him . But had he survived , the mother Tenant , &c. this fine had barred the brother , And nor like Archers case . Berkly compared it , Where Father is attaint , living grandfather , and hath issue a son , and dyes after the grandfather dyes , the land shall escheat . And so had eldest been attainted , and dyes , living the father , who dyes , the younger inherits , but had he been tainted , and survived the father otherwise . And so lands devised in tail , when he attains 25 years , and before levies a and fine , after attains . This fine bars the issue .

Salter against Brown . H. 10 Car . Rot . 207.

He is the reputed father of that bastard childe . Not actionable , unless some temporal loss be alledged , 10 Car . Rot . 752.

Clotworthy against Clotworthy .

Error of Judgement in Annuity . Error assigned , because the Plaintiff demands this Annuity and the arrearages unto M. 3 Car . and his Writ is brought 16 Ap. 4 Car . And so two quarters not demanded , which by intendment are paid , and if not , they ought to be demanded , or acknowledged satisfaction for that part . And also the Judgement is , to recover the arrearages due before the Writ , and the arrearages accrew'd pendent bre . Judgment for this cause reversed , unless cause , &c.

Tregmiel & ux . against Reeve .

That the Baron having land in right of his wife , may well joyn her with him in suing for damages , and she shall have them and the action , if she survive .

Tolson against Clark . T. 11 Car . Rot . 687.

Resolved , To forbear aliquo temp . no consideration , and so per paululum temp .

Brumsteads Case .

That Justices of Goal-Delivery may take Inquest the same day , 4 H. 5. Enq. 55 , 22 E. 4. Coron . 44. Stamf . 155.

The King against Inhabitants of Epworth & al. M 11 Car Rot . 146.

It was urged , that in 12 Jac . there should be a year to indict those who pull down fences , and prostrate hedges . Banks denied it , and that is onely a convenient time to be given , which is in the breast of the Court . And that the Statute extends not onely to all inclosures improved out of Commons , but extends to the prostration of all , ve . the form and presidents of the Writ and proceedings , and Westm . 2 cap . 46.

Hilton against Bembridge . T. 11 Car .

G. Tenant for life , Remainder to A. in tail , A. grants the Remainder to the Plaintiff in fee . G. Tenant for life , hearing of it , said , That he was pleased that the grant was made to the Plaintiff , for he was his Cousin . It was held a good Attournment . For if the Tenant had indorsed his hand as a witness to the deed , knowing what it was , a good Attournment . Cook . Litt . 310. 2 Rep. 69. Attournment to a servant good , 28 H. 5. Attourn . 40. denied .

Stockman against Hampton . T. 11 Car . Rot . 752.

Trespass for chasing his Cattel . Defendant justifies as Bailiff . Plaintiff replies , that such and such were seized , and being so seized , covenanted to stand seized to such and such uses : Where by license of one of the Covenantees , Plaintiff put in his Cattel , and shews not the Deed of uses . 1. It was held a good Replication , for the Deed belongs not to him , but to the Covenantees . 2. Because it is an estate executed by the Statute of Uses . And so the party is in by Law , as Tenant in Dower , Statute Staple or Merchant , who have a Rent-charge extended to them , 31 E. 3. monstrans de faits , 38. 35 H. 6. ib . 118. 14 H. 8 , 9. 20 H. 7. 8. 10 Rep. 92. Cook . Litt . 226. 28 H. 8. 29.

Slocombs Case .

For words . Error is brought after Judgement pro Defendant , assigned . Ideo concess . quod quer . nil . cap . &c. Held manifest Error . For it should Ideo considerat . &c.

Corbet against Barns .

Audit . querel . by three , where one onely was taken in Execution . And it was moved , that onely he that was taken ought to had it . 35 H. 6. 1. F. N. B. 104. 17 E. 3. 27. But the Court held , that all three might have it , for they were liable as well , and so for their indemnity . And if one was discharged by release , &c. the other two may make benefit of it . And also by the Court . The action being for Battery , it is transitory , and may be laid in any County .

Griffith & ux . against Lewis & al. . 10 Car . Rot . 397.

Errour of a Judgement in the County of Pembroke , where Plaintiffs had brought a quod eis deforciant , and in their Protestations make onely mention of the Statute of Rutland , and that being formed according to W. 2. make no mention of that . But the Court held it no error , for Rutland gives that Writ , and W. 2. made a year after takes not that away . For W. 2. cap . 4. gives a special Writ of quod ei deforc . in special cases ; as , where Tenant for life , dower , or tail , or by the courtesie , lose their lands by a recovery by default . And in Wales this hath been the common practice , as 2 E. 4. 12. Berkley and Crook denied 2 E. 4. 11. and said , there was a quod ei defor . at the Common Law before W. 2. as appears , 33 H. 6. 46. 10 H. 7. 9. and the Statute of Rutland proves it . And whereas it was objected , that if it is warranted by the custom of Wales , it ought to be shewed in pleading . Court , that the Court here ought to take cognizance of the customs , being warranted by the Statute of Rutland , And note , that for lands in Wales , there may be pleading here .

Moyser against Grey . M. 11 Car . Rot . 500.

Whereas it was commanded , the Defendant being Mayor , to accept of pledges of I.S. and to deliver Cattel distrained for 7 l. 10 s . rent . The Defendant pleads , that I.S. delivered him 3 l. 10 s . for pledges . Upon Demurrer , it was held a vicious Plea . For he ought not to accept money for pledges ; and if he might , he ought to have had as much as the Plaintiff demands ; though a Justice may accept money in deposito , as Berkley . for security of the peace : But it must not be so here . Had he taken but one sufficient , it had been well . As 10 Rep. 502. notwithstanding 23 H. 6.

Girlings Case .

Defendant justifies the imprisonment , by vertue of a Warrant from the Sheriff to him upon a latitat . And hereupon Plaintiff demurs , That because the Writ being executed , it is not pleaded , it was returned . For the Writs conditional , ita quod habeas , &c. tali die . And if the Sheriff would justifie , as here , &c. he must shew the return , Court , Though the Sheriff ought to return it , otherwise no good justification ; yet not so with the servant . 2. Objected , the discharge by paroll not good . Court , The Sheriff may dis●harge his servant by parol of keeping the Prisoner longer .

Wilkinson against Merriland . T. 10 Car . Rot . 1045.

One seized of lands forfeited to him by Mortgage in fee in A. B. and C. The lands in A. and B. he deviseth to several and their heirs . And addes this clause , All the rest of my Goods , Estates , Leases , Mortgages , &c. I devise to my wife , after Debts and Legacies paid . Court , that an estate for life onely passed to her .

Blague against Gold .

One seized in fee of an house called the Corner-house in the tenure of A. B. and another house thereto adjoyning in the tenure of C. And devises the house called the Corner-house , in the tenure of A. and C. Resolved , That the Corner-house in the tenure of A. and B. onely passes ( if they occupy joyntly ) if severally , onely that part in the tenure of A. and not the residue in tenure of B.

Brumsteads Case .

That Justices of Goal-Delivery may proceed de die in diem . But for other matter , the Judgement was reversed . As where it was found , that he took 6 s . 8 d . extorsive , they awarded he should pay quadruple damages , besides 20 s . to the King . Court held it erronious . For though 23 H. 6. cap . 10. gives treble damages , and the Court might assess them ; yet it is here erronious . For they ought first to enquire of the damages , for they may be more or less . But the Jury ought first to finde , and then they treble them . And they held , that quadruple damages was out of the Statute . And it was doubted , whether that Statute speaks of Extortions , but upon Arrests .

Bells Case .

The question in this case , whether the Exception in the Statute of 21 Jac . as to goods taken and purloined from the King , as Trespassors or Felons . Cur . Advis . 26 H. 8. 7. 4 H. 7. 8.

Wilkinson against Merryland .

It was still held by the Court , that a Fee did not pass . But had he devised all his Estate in such land , or had mentioned that he had such land mortgaged in fee , and devised his Mortgage , the Fee had passed .

Cleve against Veere . T. 11 Car .

A Statute of 800 l. was acknowledged to I.S. who makes I.D. his Executrix , who p●oves the Will . and after sues an extend . fac . That before the return , she dyes intestate , and I.N. takes Administration of goods of the first Testator , not administred by I.D. who obtains a liberate after the inquisition , to have the lands delivered to him , which was returned , and the Sheriff delivered the land to the Administrator tenend . according to the extent . Rolls , This Extent and Liberate are void . For the Writ is to apprize and seize into the Kings hands ut ea liberari fac . to the said Executrix , and she being dead before the said Inquisition taken ( and so cannot be delivered to her ) it is void , 36 H. 6. Br. Tit . Stat. merch . 43. 2. Though the extent be not void ; yet the liberate ought not be delivered to the Administrator . For he ought to begin de novo , and procure a new certificate , a new extent and liberat . as 26 H. 8. 7. 1 Rep. 96. That if an Executor recovers upon Obligation made to the Testator , and dyes intestate , the Administrator of the first man cannot have Sc. Fac . upon this Judgement , but ought to begin again , because he comes in paramount the first Executor . And so if Conusee of a Statute takes a certificate , and thereupon a cap . and before extend . fac . be made , Conusee dyes , his Executor must have a new certificate , and a new cap . F. N. B. 131. Dy . 180. 17 E. 3. 31. 25 E. 3. 2. Jones and Berkley held the same . Crook contrary : yet agreed the first , That an extent taken in the name of one who is dead before the teste of the Writ , it is void . But where it is well sued out , and the party which sued dyes before inquisition , yet it is well taken . To the second , he said , That a liberate is well executed at the Administrators suit . For it is a usual ( the Administrator upon his oath , to testifie that he who sued is dead , and recite the whole matter ) to have an extend . fac . Bramston doubted . Adjour . post . resid .

King & ux . against Fitch .

Error . Because it is said for Waste in Dom . pom . & Gardin . and assigns the Waste in the Orchards for cutting down twenty Apple-trees , and upon the Writ of Enquiry , the Waste is for two Appletrees . 2. The Waste is assigned in twenty , and there is found but two , and the entry is , that the Plaintiff be in misericordia , and not in misericordia for the residue . Berkly , it is here good enough , for here is onely a variance in the quantity . But had it been in Dom . Gard . & boscis , and no bosc . found otherwise . Jones and Crook doubted 14 E. 3. Wast . 27. 22 E. 3. 1. Entrys 620. 8 Rep. 61.

Ter . P. 12 Car . Banc . Reg .

Humphreys against Knight . T. 7 Car . Rot . 779.

A Citizen of London devises six Mess . to Parson and Church-Wardens of S. Mary Magdalens , and the Church-Wardens to take the profits , and finde a Chaplain , &c. And the residue of the Profits towards the reparations and Church . They were seized into the hands of E. 6. and by him granted to I.S. Resolved , that by Statute 1 E. 6. these were given to the King , 4 Rep. 110. and 12. Adam and Lamberts case . And then about the value , it was to be respected , as it was at the time of the Statute made , 6 E. 2. Voucher 258. 19 H. 6. 46. Vouchee shall not render in value more than it was at the time of the Warranty . And the 8 l. value of a Church , is according to the valuation of the Benefices , and not to the value as it is upon improvement .

Pew & ux . against Jeffrys .

Words . Thou art a Welsh Jade , and Welsh Rogue . And by all the Court , Jade expounded in the Spititual Court for Whore , is there suable and punishable , and no Prohibition in the case . But to call one Welsh Thief , action lies .

Cleve against Veere .

Jones and Berkley held their former opinions . Crook , That though an inquisition be after the death of the Conufee , it is as good as if it had been in his life , for the Sheriff may not take notice of his death , but he ought to return he served it ; and if he return the Conusee is dead , he shall be amerced , 10 H. 4. 5. and 7. 32 H. 6. 28. As if a Ca . Sa . or Fi . Fa . issue . The Sheriff shall execute it , though the party who sued it be dead before the return . To the second I agreed , That being not a suit by way of action . as Sc. Fac . or debt , the Administrator shall not have upon a Judgement obtained by the Executors , because he comes Paramount , the Executor , 1 Rep. 96. 5 Rep. 4. But this being no suit , but praying a liberat . upon shewing letters of Administration , he may well have it . But notwithstanding , Judgement was entred according to the opinion of Jones and Berkly .

Web against Nichols .

Error of words against an Attorney . I marvel you will imploy such a Knave as Nichols , you will have but disgrace and discredit by imploying him , he is a proclaimed Knave in the Market . Court held actionable , and Judgement was affirmed .

Stone against Newman .

An exception was taken as to the Attainder . That the Indictment was by vertue of a Commission granted , but does not say , sub magno sigill . Angliae , and the Attainder before such Commissionets , and does not sub mag. &c. And if it were not sub . mag. &c. it was not good . Huntlys and Mouitons case , the pleading is so , 5 Rep. 51. Cooks Entrys 174. Sir Moyl Finches case so . But the Court , if it had been in , it had been better , but though omitted , it is well enough .

Porters Case .

Upon 1 Jac . cap . 11. because she was married to one Porter , and afterwards sues a divorce propter saevitiam , where it was decreed , that propt . saevit . of her said husband , she should be separated à Mensa & Thoro , she marries again , living Porter . Whether she be within the Statute 47 E. 3. fo . ult . and out of the proviso . For the Statute mentions onely , Causa professionis , causa praecontractus , consanguininatis , affinitatis , & Frigiditatis . which are precedent causes , and makes the marriage void ab initio , and bastardizes the children . And this prop. saevit . is none of them . And besides , here is no absolute divorce , but separation à Mensa & Thoro . Whereupon Civilians and all held it Felony within the Statute , and not aided by the proviso .

Ter . T. 12 Car . Banc . Reg .

Anonymus .

IN a Recovery of debt by Baron and Feme , as Administratrix of her former husband . Before Execution Feme dyes , Baron sues out Execution . Moved to stay , for the Debt being due to the Feme in auter droit , though the recovery be by Baron and Feme , she being dead , the Baron may not have Execution upon this Judgement . Of this opinion was the whole Court . But being Execution was sued . Judgement must be reversed first by error . Upon the last . Cur . Advis .

Chomleys Case .

Endictment for striking in the Church of Shoreditch cont . form . Stat. amongst other exceptions , this onely was allowed ; because the offence was alledged in the Church of Shoreditch aforesaid , and Shoreditch was not named before . Whereupon the Indictment was held void per Cur . Jones , that it was good for a Battery at the Common Law . But Court held , that concluding cont . form . stat . it cannot be good as for an offence at Common Law .

Mary Smiths Case .

Was indicted at the Kings Bench for taking away a childe cont . form . stat . 4 & 5 Ph. & Mar. cap . 8. It was moved , that by this Statute , Justices of the Kings Bench have not power . The Statute onely appointing the Star-chamber and Justices of Assize to fin● and imprison in this case . Court doubted , Whether Justices of Kings Bench , were Judges of Assize , there being none other for Middlesex . Then admitting this Quere , Whether they may fine , or onely imprison .

Stone against Lingar . & al.

Upon action upon the case , for being falsly presented by a Constable . And after verdict for the Constable , it was moved , that he might have double costs , by 7 Jac . cap . 5. A●kins , This being a special action upon the Case , and not for false imprisonment , &c. wherein libertie is given to plead not guilty , and give special matter in evidence . This was out of that Statute , and within 23 H. 8. for single costs . Of the same opinion the Court .

Ter . Pasc . 13 Car . Banc . Regis .

Humphreys against Stanfield .

WOrds , Thou art a Bastard . Court , The Plaintiff alleging that he was likely to be his Uncles heir . Upon these words a jealousie may be conceived , and he disinherited , they held them actionable . Vaughan against Leigh . Upon surmising that land was given to the Plaintiffs Grandfather , and his heirs males , and so brings himself in the line , he bringing his action for the same words recovered , and upon Error , Judgement affirmed .

Slaters Case .

In case of Bastardry these points were resolved by the whole Court :

1. Before 3 Car . cap . 4. Justices at the Sessions had no authority to meddle in the case of Bastardry , till the two next Justices , according to 18 Eliz . cap . 3. had made an order in it . And th●n the party refusing to obey their order , Justices at Sessions might make a new order , otherwise not .

2. That by 3 Car . Justices of the Sessions have power to make orders in case of Bastardry . And so the first order being by good authority ( viz. ) by the Sessions , cannot be reversed by the order of two Justices . Pridgeons case .

3. That Justices of the Peace had not power to commit the woman for her life , being the first offence .

Goodier against Plat . H. 11 Car . Rot . 349.

Errour of Judgement in Formed . Being quod recupsesin . de uno Mess . 2 ac . terrae & pastur . It being nought , ( for the incertainty ) in part . Court held , That Judgement being intire for the Messuage and Land , and being ill in part , it ought to be reversed for th● whole .

Turner against Lee .

Replevin . Defendant avows as Executor ( for a Rentcharge ) to the Testator for years , determinable ●pon death of Grantee , upon non concessit found pro Avowant . Rolls moved , that the Avowry was not good . For the rent granted for years being determined , Executor cannot by 32 H. 8. distrain ( for that extends to a rent for life or inheritance . ) Court , The Avowry is nought , and within the Statute . And being ill , the Issue non concessit , and found quod concess . helps not .

Anonimus .

For words against a Grocer , He is a beggarly fellow , and not able to pay his debts . Judged actionable , and that they tantamount to Bankrupt .

Snape against Turton .

A Conveyance to himself for life , with Remainders over , with proviso , that if he conveyed the premises in fee or tail to be good , and revocation of the former uses . And being found upon special Verdict , that he made a lease for years , and next day granted the Reversion in fee . Judged within the proviso .

Ter . T. 13 Car . Ban . Reg .

Blague against Gold . H. 12 Car . Rot . 752.

IT was judged , that the Corner-house onely passed by the Will : And non obstante the imposition of the tenure , yet it is ascertained enough , by saying the Corner-house in Andover , and the tenure is but surplusage , Dy . 376. 296. 2 E. 4. fol. ult . 2 Rep. 32. Plow . Worthly and Adams case .

Evans against Finches Case .

Resolved , that if one climbs into a chamber , and the other stands below and receives , that he who stands below may have his Clergy , and not within 39 Eliz . And also resolved , that a chamber of Inns of Court or Chancery broken open may be said to be domus mansionalis of the owner . 2. That this breaking ( though at noon time , and divers persons walking in other parts of the house ) and taking 40 l. no person being there , is Burglary within 39 Eliz .

Ceely against Hopkins & ux .

For words spoken by the Feme dum sola , &c. He is a Witch , and a strong Witch , and hath bewitched me and my Aunt A.S. therefore I will not marry him . All agreed the first words , Thou art a Witch , not actionable . But for the latter , he hath bewitched me and my Aunt . Houghton , Jones and Berkley , held actionable , Crook contra . Cur . Advis .

Dodson against Lyn . T. 11 Car . Rot . 446.

Earl of Salisbury's Chaplain gets license from Bishop of Canterbury , to take a second Benefice with cure , and in the license there is modo sit infra ten miles of the other . Resolved , upon presidents and arguments by Civilians , to be a proviso , and no condition . But had it been modo or dummodo , that if he do otherwise , that then it shall be void , the subsequent words make it a condition 4 Rep. 75. Hollands case .

Baker against Willis & ux . P. 11 Car . Rot . 46.

In Ejectment . I.B. & E. ux . Tenants in tail of lands to them , and heirs of their body of the gift of Sir H. Fost●r , Remainder to the right heirs of I.B. having issue F.B. I.B. 6 E. 6. levies fine with Proclamation to the King , who grants the same to F. Earl Huntington and his heirs , 5 and 6 P. and M. I.B. dyes , the same year E. his wife enters , &c. Berkley argued for the Defendant , who came in by mean assignments . And , 1. That the fine with Proclamation bar●'d the Estate tail , 4 H. 7. 32 H. 8. Acts , and that fines are perpetual bars against Heir in tail of him who levies the fine . 2. That E. by her entry , after death of her husband , reduced Estate tail back to her by the acts aforesaid , 4 H. 7. &c. and that she was Tenant in tail , and not after possibility . 3. That the tail is so barr'd by the fine , and 4 H. 7. and 32 H. 8. that he cannot claim . As a person attaint , though pardoned , cannot claim by descent . Crook to the contrary , though he agreed to the two first points . But to the third , though the Estate tail is barr'd by the fine , yet here is a confirmation , which being by Indenture of him in Reversion , hath revived the tail . And the Reversioner by this confirmation , hath excluded himself against his confirmation to claim it . For he might exclude himself of his estate , and as he may avoid , so confirm , 1 Rep. Mayo's case , 11 H. 7. 28. N. B. 98. Jones of the same . But no Judgement given .

Ter . M. 13 Car . Banc . Reg .

Ceely against Hopkins .

COurt , The words being , She hath bewitched me and my Aunt , Held malicious sp●aking . Judgement pro quer ?

Anonimus . H. 12 Car . Rot . 618.

It was held upon Errour , that by 21 Jac . cap . That if a tryal is to be of several places , it shall be tryed per vicinet . of any of the places , and good . But before , if of two places , the tryal ought per vicinet . of both .

Seaman against Big . T. 13 Car . Rot . 1009.

For words spoken of a Bailiff , and servant in Husbandry , Thou art a cozening knave , and hast cozened thy Master of a bushel of Barley . Court held , That of such a person , who is a servant and accomptant , and whose credit and maintenance depends on his fidelity , they will lie , though generally not . Judgement pro quer .

South & al. Bail for J. al. Griffith . H. 12 Car . Rot . 559.

Error of a Judgement in the C. B. brought by the bail . And it was held , that a Cap. ought to be against the principal , and returned non est invent . and then a Sc. Fac . against the Bail . And the Court agreed , the Bail cannot bring a Writ for error in the principal Judgement . Jones held , that being the errour is brought upon the Sc. Fac . and the principal Judgement together , It is good for part , and void for the residue . Crook and Berkley held it void in the whole . Because it is grounded on the first Judgement .

Sacheveril against Porter . T. 11 Car . Rot . 324.

Trespass quare claus . &c. Case , One seized in fee of , &c. being a Waste , 2 H. 4. granted it by deed to the Prior and Convent of S. ( who were seized of other Lands in Stallington ) common for him , & omnibus tenentibus suis in Stallinton , pro omnibus aver . &c. Habend . the said Common to the Prior , & Successoribus in perpet . First , If Common created 2 H. 4. and so within memory , &c. granted to the Prior , &c. may be said to be common appurtenant to the Tenements in Stallington . Resolved it may . For being granted to him and his Tenants of Stall . it is common appurtenant , and may pass by Feoffment as common appurtenant .

2. Here being but part of the lands conveyed cum pertinentiis . Yet it is common . appurt . and it may well be apportioned , 8 Rep. 78. Judgement pro Defendant , 36 Assize 3. 15 Ass. 11.

The Case of the Lady Fulwood & al.

Upon an Indictment for taking violently away a Maid . Upon Counsel assigned , Holborn and Serjeant Henden alledged one Brutons case , that the taking away of a woman , unless she be married or defiled , is not Felony within the Statute . Adjournat .

Sir John Fitzherbert against Sir Edward Fitzherbert & al.

T.F. and I.F. Tenants for life , the one in Remainder after the other Remainder in tail to T.F. their Nephew , with intent to bar this intail , 1 Octob . 25 Eliz . make a lease for years , upon agreement the Lessee should make a Feoffment , who 12 Octob . did , 17 Octob . after , E.F. released to the Feoffee with Warranty , and the 19 I. F. did the like , and both these Warranties descended upon T.F. in remainder . It was moved , that these were Warranties commencing by disseisin , and the Feoffment was made by Covin , and that they shall not binde him in Remainder . 2. If T. after this Disseisin , not knowing of it , had levied a fine to a stranger , if that should bar his right , and enure to the benefit of the Disseisor , as 2 Rep. 55. Bramston and Crook , not , but to the benefit of the Conusor himself .

Moulin against Sir George Dallison .

It was agreed , That a Tenure , though ancient , cannot destroy and change an ancient custom .

Fullwoods Case .

Upon presidents shewn , one P. 31 H. 8. Rot . 14. where two were indicted for taking away Agnes Hobson against her will , and they pleaded to the Indictment , and that they ought not to answer , for that it was not mentioned in the Indictment , quod ceperunt ad intentionem maritandi predict . Agni . vel ad prostituend . &c. and they were discharged . Another H. 3. and 4 P. & M. Rot . 10. for the like defect . The case of Bruton is set down in the Lord Hobar●s book . Where resolved , not within the 3 H. 7. cap . for the causes aforesaid , H. 16 Eliz . It was agreed , that if a woman be taken ut . sup . and inforced to contract herself in marriage , and yet is not married , no Felony ; but if married or defiled , it is Felony . For though the body of the Act is , such taking shall be Felony ; yet aided by the Preamble , which makes the marrying and defiling material . Adjournat .

Sidnam and Parrs Case . M. 13 Car . Rot . Surrey .

Upon return of a Hab. Corp. that they were committed by force of the Statute 15 R. 2. That one I.S. claimed Common in a Meadow of Sydenhams , and that the said Syden . and Par kept him out of the Meadow with force , &c. Court held this Commitment not warranted by the Statute . For though one may be disseised of a Rent or Common by force , which is inquirable at Assizes , and punishable . Yet not for entring or holding his own land with force . For it ought to be ubi ingress . non datur per legem , Held Commitment unlawful , and the Prisoners were discharged .

Bower & ux . against Cooper .

For words in London , Thou art a Whore , and a two penny Whore . Upon Hab . Corp. this cause being removed , Crook signed a Procedend . and a Superse . was prayed , for that London by their custom could not punish such crimes . But denied by Court . And that they may punish them by carting or whipping . Stone , after a Procedend . by the Statute of 21 Jac . no Superse . Court denied , and said , where a Procedend . improvide emanavit . a supersed . lies .

Kinnion against Davies . T 12 Car . Rot . 1096.

Errour in action on the Case , pro eo quod Defend . quendam canem ad mordend . oves consuet . apud Hinton scienter retinuit & custod . qui quid . canis , &c. Court held ( absent . Bramston ) the Declaration nought : Because he shews not , quod sciens canem predict . ad mordend . oves consuet . scient . retinuit . Judgement reversed , unless , &c.

Wilner against Hale .

For words , Thou art a Rogue and a Rascal , and hast killed thy wife ( quand . Eliz . nuper uxor . le Plain . innuend . Moved , the action lies not , because he does not shew his wife is dead . Court , the word ( Nuper ) shall intend her dead , and not have so forreign a construction , as that she was divorced . Judgement pro quer .

Kniveton against Latham .

Two Executors bring Debt on a Bond of 100 l. for payment of 52 l. Defendant pleads payment of 52 l. and a release thereupon from F. one of the Executors . Plaintiff replies , that F. at the time of the release made , was but 18 years old . Upon Demurrer , Allestre pro Defendant , because there is not denial of the principal interest and damages , and though the Bond was forfeited rigore juris , yet acceptance was good cause of making a release , and being above 17. who may take upon him Executorship , his release as Executor is good , and shall binde his co-Executors . Rolls , that this release being by an infant is void . For the Bond forfeited , the 100 l. is due , and acceptance of 52 l. part , cannot be taken as satisfaction , for he is in danger thereby of a Devastavit . Jones and Berkley of that opinion . Crook è contra , because he did that which he was compellable to in conscience , 5 Rep. 27. 6 H. 6. Release 45 , 21 E. 4. 20. But Damport and Denham were of the first opinion . And they agreed , that such Receipt by Executor of full age , shall be onely Assets , and no Devastavit for the residue .

The King against Rooks .

Upon Inquisition for forfeiture of his Office , it was found he committed divers misdemeanors , to the prejudice of the King , &c. The Defendant appeared and traversed the points in the inquisition . One was , for his absence in executing his Office from such time to such . To this he pleaded sickness , &c. Two other , that he voluntarily suffered the exporting and importing of several goods , to the prejudice , &c. But it appeared not , that this was done with his knowledge , and so not voluntarily . Court , That this voluntary absence and neglect was not onely crassa negligentia , but a voluntary permission . As if a Goaler leave his Prison doors unlock'd , and Prisoners escape , it is not onely a negligent , but a voluntary Escape . So here , &c.

Herbert against Laughleuyn . P. 12 Car . Rot . 388.

Errour upon Ejectment de piscaria . And because it was not terra aqua cooperta , nor of any land , but onely of a profit apprender . Court held , Ejectment lies not , no more than of common apprender or rent . Jones , peradventure Assize lies , because it is profis . incert . loc . cap . end .

Fulwood and Bewens Case .

Upon many arguments , Court resolved Judgement to be given . And Jones pronounced sentence to be hanged . The like was done before at Newgate on Tho●old , for stealing Mistress Havers , but he got his pardon .

Ter . Hil . 13 Car . Banc . Reg .

Kellend against White . T. 13 Car . Rot . 1626.

EJectment . Defendant pleads , that long before the Lessor had any thing to do , Defendants Grandfather was seized in Fee , holden in Soccage , and devised to Defendants Father in tail , who dyed seized , which descended to the Defendant . Plaintiff confesses all this , but pleads a fine to bar this in tail , upon this the Defendant Demurs . Court , That this Replication is vitious , for it is not an express confession and avoidance , but argumentative . And not like Heliars case , 6 Rep. 24. Judgement pro Defendant .

Perry against Digs . T. 13 Car . Rot . 402.

Errour in Trover and Conversion against Baron and Feme , and declares ad usum ipsorum . For that judged nought .

Reeve against Digby . T. 13 Car . Rot , 303.

Where two Verdicts are upon one intire Issue , if they be rep●gnant one to the other , the second is void . Quere ,

Hughs against Bennet . T. 13 Car . Rot . 1536.

Covenant . B. covenants in consideration of marriage , and such a portion , to stand seized for his wives life , and to the son in tail . And after Covenants ; That he was se●zed in fee of those lands , notw●thstanding any act done by him , &c. and that they were of the annual value of 200 l. per an . ultra reprisas . Upon Demurrer , resolved , these words , For any act , &c. refers not to the second Covenant , but to the first part , that it makes not a general Warranty .

Ter . P. 14 Car . Ban . Reg .

Hall against Marshal . M. 13 Car . Rot . 41.

ERror in Assumpsit to pay 130 l. in consideration he suffered him to take all the Furzes growing , &c. before Michaelmas , quietly , without disturbance . Defendant pleads , that he was disturbed . Error assigned , because he shews not the time of the disturbance , whether before Michaelmas , otherwise no cause of action . Court , being after Verdict , and non Assumpsit pleaded , it shall be intended within the time . Judgement affirmed .

James against Turney . H. 11 Car . Rot . 753.

Error in Replevin . Where the custom was set out , that the Jurors did for the regulating of the Common in the Mannor , and to make Ordinances and Peyns upon those that are guilty of Purprestures and Misfeasans in the said Common . That the Plaintiffs had been guilty ut sup . and that at a Court , the Jurors peyn'd , for which he distreined , &c. First error assigned , that it is not a good By-Law to binde any for his inheritance . Court , that Ordinances for the Government of the Common is good , Dy . 314. 5 Rep. 62. 21 H. 7. 40.

2. Because he shews not , that the Plaintiff had notice of this Ordinance . Court , it being proclaimed in Court , as alledged , and he being a Commoner , is bound to take notice of it .

3. Because costs are given for the Defendant , it was said to be out of the Statutes , 7 H. 8. 21 H. 8. being a distress for a penalty . Of that Cur . Advis .

The King against Heyward & al. his Sureties .

It was said , where one is bound to his good behaviour for words , yet speaking again words , which tended not to the breach of the peace , or terrifying others , or unto Sedition , shall not be sufficient cause of forfeiture of a Recognizance . Jury found pro Defendant , 2 H. 7. 2. 22 E. 4. 35. 18 E. 4 , 28.

The King and Informer against Fredland .

Errour of a Judgement upon Information upon Statute 5 Eliz . for using the Trade of an Hempdresser . Court , that this is no su●h Trade as is within the Statute , for it requires not much skill , and Husbandmen uses it for necessities ( sans argum . ) reversed .

Anonymus .

Action on the Case , for diverting an ancient watercourse , qui currere consucviss . & debuiss . to his mill . Rolls moved in arrest , &c. because he shews no title to it by Prescription , &c. Grimston alledging it to be antiquus aquaeduct . and that by it the water currere consucviss . &c. is good . Court of the same . Judgement pro auer . The same rule was given upon another case the same day , of the like nature .

Ter . Trin . 14 Car . Banc . Reg ,

Nevison against Whitley .

IN Debt upon Bond , the Statute of 21 Jac . Usury was pleaded . And because in the Plea it was not said , quod corrupte aggreat . fuit , and that he should have for interest for forbearing , and says not corrupte . Held by the Court , that the bar therefore was nought .

Lloyd against Gregory .

It was agreed by all ( absente Bramston ) That a lease made to Infants , and they during minority , accept of a new lease before the expiration of the former . That here such a surrender by an Infant cannot be by Deed , but it is absolutely void , and that a surrender by acceptance of a second Lease is void , because it is without increase of his term , or decrease of his rent , and where there is not an apparent benefit , or the semblance of a benefit , his acts are meerly void .

Arundel against Sanders . H. 13 Car . Rot . 1266.

An action on the case was brought pro valore maritagii . It was doubted by the Court if that lay , or it ought to be in valore mar . Jones , that it lay as well as debt , or the case lay for an escape . Adjourn .

Middlemore against Goodale .

Covenant was brought by an Assignee , because he did not levy a fine upon request , according to the Covenant , for further assurance . Defendant pleads release from the Assignor with whom the Covenant was made . Court held , That the Covenant goes with the land , and that the Assignee at Common Law , or at leastwise by the Statute , shall have the benefit thereof .

2. They agreed , though the breach be in the time of Assignee , yet if the release had been by the Covenantee , before any breach , or before the suit commenced , it had been a bar to the Assignee , from bringing his Writ of Covenant . But here being otherwise , Judgement pro quer .

Harrisons Case .

He was indicted , fined and imprisoned during the Kings pleasure , for rushing into the Common-Pleas , and speaking these words of Judge Hutton , Palam & malit , I accuse Mr. Justice Hutton of High-Treason . And he was led with a paper in his forehead , and shewed to all the Courts at Westminster .

The Marquess of Winchesters Case .

Upon errour to reverse a Judgement for the King , upon an Indictment for Recusancy . And divers objections were urged . But it was doubted , if any would hold . For the Statute 3 J●c . is precisely , that it shall not be void , or discharged for default of form or other matter . But because the Judgement was not ideo capiatur , and the omission of that is apparent to the Kings prejudice . For this cause reversed .

Middlemore against Goodale .

There was another exception taken by Bear to the Declaration , because the Plaintiff brings the action sole , and shews that the Conveyance was made to him and his wife , and joyns not his wife in the action . Court , For that cause it was nought . Judgement pro Defendant , quod quer . nil . cap . per Bill .

Man against the Bishop of Bristol & al. Incumbent . P. 14 Car . Rot . 467.

In errour in a quare impedit , the case in 14 E. 4. 1. was resolved for good Law . A Feoffment to three , the one dyes : It may be pleaded to be made to the Survivors , not mentioning him that is dead .

Evans and Cottingtons Case .

Evans & al. were indicted for a Riot and Rescous of a person taken at Charing-cross , upon a Bill of Middlesex . And being so near the Kings house , Whitehall , some were fined 500 l. and others stood in the Pillory .

Barkhams Case .

Upon an Hab. Corp. he was remanded back by the Lords of the Council . And because no cause of commitment was mentioned , either in the commitment or return , Court thought it not fitting to detain him in prison , whereupon he was discharged by bail .

Lawsons Case .

He at the same time was upon the same cause , discharged by bail .

Smith against Smith .

Assize of a Rent-seck in Cambridgeshire . The case was , A Rent-seck was granted by I.S. to N. his son in fee , issuing out of an house called the Unicorn in L. payable at our Lady day , and St. Mich . after his decease , payable at the house of the said N. and gave six pen●e in name of Seisin , and for Rent due at Lady day , 1637. and six years before , and not paid , &c. Jury finde the grant , and seisin , and demand at the Unicorn aforesaid , at the said Ladiday , and that none were there to pay it . The question , 1. Whether this were a disseisin for the Rent-arrear . The doubt was , whether it was a good demand for the Rent at the said Feast , at the house whereout it was issuing , and not where it was payable . Resolved , a good demand , and disseisin for not payment : And that gift of six pence in name of seisin , a good seisin . Institutes 153. 7 Rep. 28. Book Entries 78 , 79. H. 45 Eliz . C. B. Midd . Assi . for a Rent-seck .

Ter . M. 14 Car . Banc . Reg .

Anonimus .

TRespass against Baron & Feme , for breaking his Close . After verdict pro quer . the Baron dyed between the day of Nisi prius , and day in banco . It was moved , that no Judgement sho●ld be entred , for the Baron dying , the action quoad her , is abated by the act of God , 6 E. 3. 295. 11 H. 7. 6. Court held , that the death of either Plaintiff or Defendant in that nature , abates the Writ or Bill . It was doubted in this Case . But had the Feme dyed , it had been clear that Judgement should be entred . Adjour .

Ceely against Hoskins . H. 13 Car . Rot . 696.

Errour upon Judgement for words , Thou art forsworn in a Court of Record , and that I will prove . It was moved by Maynard , that they were not actionable , because he does not shew in what Court of Record , nor how . But Jones , Berkley and Crook held , the action well lay , and such Foreign intendment shall not be conceived , but that he spake them maliciously , accusing him of perjury .

Morley against Pragnel . T. 14 Car . Rot . 549.

Upon the Case by an Inn-keeper , against one for maliciously erecting a Tallow-furnace , and boiled therein stinking tallow , to the much annoyance , &c. It was moved in arrest , &c. For that he ought to use his trade , which cannot be said to be a nusance . Court , the action well lies : For every one ought sic uti suo , quod al●enum non laedat . Judgement pro quer .

Jeffrys against Payhem . T. 14 Car . Rot . 528.

For words of an Attorney , He is a base cozening , cheating Knave , and hath cheated me , as never any man was cheated . As it is laid barely , without any circumstance , it appears not that it toucheth him in his profession , and otherwise no action . Cur . Advis .

Droit d'Advouson for the King against Dreidon & al.

Parties being at issue , there issued thereupon a Ve . fac . to return 4 Milit . that they cum seip . should return 12 others , who with the said four , should make a Jury ret . &c. Upon the day of Essoyns , Demandant appeared , and prayed that the tenants be demanded . And being demanded , their Attorney appeared : The Demandant prayed their default to be recorded , because they ought to appear in person . 1. Berkley held , they might really appear by Attorney , who was admitted before upon record , vi . case .

Mulcarry & al. against Eyers & al. M. 13 Car . Rot . 333.

Errour of a Judgement in B.R. in Ireland , in Ejectment of a Lease of 40 Mess . 500 acres of land , 40 acres of meadow , 200 acres of pasture , 100 acres of bog , and 100 acres of bruery in villis & T●rritoriis of , &c. Upon the special Verdict the case was thus , I.S. seized in Fee , let it to the Plaintiff for 21 years rendring rent , conditional he should not alien any part above three years , if he did , the Lease to be void , and he reenter . He let from three years to three years , during his life , if he lived so long . I.S. after this assignment , accepts the rent due from Assignee , and yet re-entred . Court , it was a plain breach of the Condition , and the acceptance after might not dispence with the condition , seeing it was to be void : so it was absolutely determined . And the Court resolved upon the exception to the word Bog , that it was an usual word there , and well known . And villis & Territo . was held good enough , for they be of the same sense , and if not , but surplusage . Irish Judgement reversed , which was contrary to this .

Smith against Cooker . T. 14 Car . Rot . 1499.

For words , Thou and thy wife are both Witches , and have bewitched my Mare ( innuend . ) the Mare of S. who was the Plaintiff . Moved in arrest , &c. because two cannot commit one Witchcraft . And then the other mistake of owner of the Mare , not allowed . For the words ought to be referred as they were spoken ; viz. that both of them bewitched , &c. both refers to to each of them . If I say to two , you have murdered I.S. each of them shall have his action severally , and not joyntly , 28 H. 8. fo . 19 Dy . And for the ( innuend . &c. ) S. is repugnant to the precedent words . Judgement pro quer .

Anonimus .

Battery against Baron and Feme , done by the Feme , Resolved , that a quod capiatur onely against Baron be entred .

Kemp against Bernard . H. 13 Car . Rot . 1252.

It was resolved , that lands leased for life , under the Eschequer-Seal , being of lands usually leased , and reserving the ancient Rent , is good , 2 Rep. 16.

Talory against Jackson . T. 14 Car . Rot . 187.

Resolved , That 21 Jac . of Limitations , did not extend to an action for Tythes , upon 2 E. 6. not set out 20 & 21 Jac . until 11 Car .

Anonimus .

Quest . Whether error in Deed , as well as in Law , be assignable in the Eschequer , And resolved , upon 27 Eliz . they be as well as the other . And that it may be ●ryed by Nisi prius out of the Eschequer Chamber . M. 42. 43 Eliz . Rot . 335. Rove against Long . Error in fait assigned in the Eschequer Chamber , and tryed by Nisi prius , 10 Car . Rot . 169. Smith and Merchant .

Thornton against Lister .

Trespass for Battery , 1 Aug. 13 Car . Defendant justifies in son assault . per . by reason of assault made by the Plaintiff , issue thereupon . Defendant gives in evidence , assault by the Plaintiff , 2 Jul. 13 Car . Plaintiff shews , that the Battery which he meant was 9 Jul. 1● Car . It was urged by D●fendants Counsel , that the Plaintiff ought to have made a special R●plication , and shewn the special matter . But Court , i● was not requisite , and if ano●her day h●d been shewn in the Replication , it had been a departure . And sufficient to shew in evidence to be done another day , for the day is not material .

Latham against Atwood . M. 11 Car .

Feme , Tenant for life , takes husband , the Remainder to , &c. Upon Trover and Conversion of Hops . It appeared , these Hops were growing out of ancient roots in the land in ques●ion . Feme dyes , a small time before the Hops were severed . Resolved , that like Emblements which grow by manuran●e and industry , Baron , and not Remainder , shall have them .

Bains against Brighton .

Debt for 40 s . upon Bill Obligatory , and shews that by his Bill the Defendant confessed to be indebted 20 s . to be paid , &c. to which payment he bound &c. and for non payment of the 40 s . the action . It was held a fault in Declaration , because it is not shewn that the 20 s . was not paid , for if otherwise , 40 s . is not due . Judgement pro Defendant .

Anonimus .

For words against Attourney , He is a very base Rogue , and a cheating Knave , and maintains himself , his wife , and children by cheating . Judged actionable .

Davenport against Pensel . T. 14 Car . Rot . 698.

Assumpsit brought agai●st Administrator , durant● minore aetate I.S. Defendant pleads , that I.S. was above 17 years old at the time of the promise . Whether 21 years , or 17. shall be said in this case to be the full age ; for if 17. no consideration , 5 Rep. 29. Cur . Advis .

Appleton against Stoughton . H. 10 Car . 256.

Whether a custom which concerns the whole City , ought not to be tryed per Pais , according to a case in Hobert . And not by certificate by the Recorder . But Court held , that such a certificate is good enough . 4 Rep. 30. 39 H. 6. 34. 9 Rep. 31. as custom of London , to devise in Mortmain , to be tryed by certificate is good .

Tomlins against Bret .

Resolved , that where a Judgement is given by default , the issue and pleading is out of the Court , and they will not look , whether issue were joyned or not . For the Judgement is onely upon the default .

Angel against Sir William Cooper . T. 10 Car . Rot . 1331.

Defendant upon Judgement and Execution of 900l . bei●… dead , The Plaintiff surmised he was seized of lands in Kent and Surrey , and prayed ●c . Fac . into several Counties , Sheriff of Kent returns Angel Terrtenant of Surr●… , returns Bell & ux . Terr-tenants . They plead sev●… l pleas , the one , that he was Bell , that h● was not ●err ten●nt , Er●or , because the Plaintiff is not to have his land charged sole , if there be more land , as appears by the Sheriffs ret●rn there is in Surry . The finding by the J●… y , after the death of Bell , is void , and so the issue not tryed , is erronious Judgement . Rolls , There being two several Sc. Fac . into several Counties , they be as several suits , not depending on one ano●her . And though death be alledged , &c. as to the one it is not material as to the other , 5 E. 47. And of that opinion the Court .

Mounson against Brown .

Errour in Judgement assigned . First , Because it was quod recup●ret the dam . de bon . propriis si non . bon . testat . where they appeared upon the summons , and Judgement upon nihil dic . and it ought de bon . testat . 31 H. 6. 13. 33 H. 6. 23. dissallowed , because it is not the confession , but delay , that the Judgement be de bon . prop.

2. It was resolved ( whereas it was objected , the Judgement was against the goods of the Feme , and a Feme covert can have none ) that the Baron onely charg'd in right of the Feme , Judgement shall be against both , and she may have goods as a term , &c. before coverture .

3. That a Devastavit may be by a Feme , as Feme covert may do a Tort , and be punished for it . Jones , If recovery be had against Baron and Feme in Devast . if Baron survive , he shall be charged , and so if Feme survive , she . And Judgement by all the Court against them . And it was their own folly not to plead , and out of Pettifers case , 5 Rep. 32. post . 526.

Maurice & al. against Prince .

Errors upon a Judgement in an Assize . And assigned first , He demands a rent by a Devise , whereof arrearages are found for 30 years , and it appears not when the Devisor dyed , nor any Feast appointed for payment . Upon which the Judgement was reversed .

2. The Jury finding Seisin by the hands of one of the husbands of the heirs , whereas the land descended to two daughters , resolved to be sufficient finding of the Seisin , as Seisin given by one Joyntenant , &c.

3. It was held , to demand rent of the persons off from the la●d , and their denial , is not sufficient , but it ought to be upon the land 33 E. 3. 9 Rep.

Lee against Bothby .

Resolved , if Copyholder in fee surrender to the Lord , and the Lord makes a lease for years of the Mannor and Copyhold by the name of his Tenement called H. that this is no determination of the Copyhold . But had he leased it for years by it self , that had destroyed the Copyhold .

Claxton against Lilburn .

This question , That upon examining both Champions upon wager of battel , that they were both hired for money , whether such exception coming after the wager , and Champions allowed , and sureties given to perform it , may be received . And resolved not .

Goodwin against Anne West . H. 13 Car . Rot . 1321.

Action of Debt upon 5 Eliz . The Defendant being to be a witness in another cause between Pl●intiff , &c. he brought her a Subpoena of the place , and time of appearance , and left her 12 d . pro expensis & onerib . suis , and that when she came , he would pay her what more she should request , That she did not come , whereby he lost his cause . After Verdict moved in arrest , &c. Because he averrs not , that the 12 d . was sufficient for her charges , otherwise she may refuse . Crook and Berkley , It was good , when she accepted the 12 d . and did not say she would have more for her expences . And that oneribus , joyned with pro misis , shews it was intended pro misis post .

Ter . H 14 Car . Ban . Reg .

Lord Says Case .

TRover and Conversion of three Oxen taken for 3 l. 5. s . assest by the Sheriff for Ship-money . Banks moved , that nothing might be argued against it . And in the case of the King and Hampden was judged , that the Writ was legal by Kings Prerogative . 2. That the Sheriff might sell without a Jury . 3. That Inland Counties ought at their proper charges to finde victuals , &c. 4. That the sum assest may be levied .

Edwards against Rogers . T. 11 Car .

Tenant for life , Reversion to W.R. an Ideot in fee , A.R. his Uncle levies a fine to R.C. and had issue John , who had issue W. the Defendant , and dyed . W. the Ideot dyed sans issue . W. the Defendant enters as heir to him , son and heir of John , son and heir of the said A.R. Rolls , that this fine bars W.R. 27 E. 1. Fines , 8 H. 4. 9. 40 E. 3. 9. 10 Car . S●ovel and Brastocks case , 3 Rep. 50. But Farrer , that this fine bars not , because he claims nothing from A. that levied it , but onely mentions him in the pedegree , Hobbes case in Cook Lit . 8. 2 E. 3. 6. and 10. 17 E. 3. 54. 8 Rep. 53. And he is here in quasi of another title , and puisue to the fine , Dy . 277.

White against Hauby . P. 14 Car . Rot . 465.

Errour . In the Writ he shews he was possest of such goods at A. and in the Count , that they were found and converted at A. aforesaid . This being assigned , the Court held , that it shall be one and the same place , the Trover and Conversion , and possession , being conjoyned with a copulative .

Ascoughs Case in the Court of Wards .

Being seized in Capite , devises his land to be sold , and part of the money to his wife , other part in Legacies and Charitable Uses . Resolved , that the King is not barred here of his Wardship , Livery or Primer Seisin . 2. Resolved , admitting it a conveyance within the 43 Eliz . of Charitable Uses , yet it is void against the heir for the third part . 3. Whether this were a conveyance within 43 Eliz . Because here is no disposition to Charitable Uses , but an appointment . To this , they all resolved not .

Gybbs against Wybourn .

Resolved , that tythes shall be paid for little trees in a Nursery . Because they are set to be digged up and sold . So there is a profit of them , as of corn , or other roots .

Mounson & ux . against Bourn .

Berkley , that Judiical Writs are , and may be framed according to the discretion and direction of the Court , 9 H. 57. 6. and Cook rep . Wiscots case , 4 Rep. 92. And appearing and not answering , but suffered Judgement to pass by nihil dic . it is quasi , a confession thereof , and reason to be charged de bon . propriis . And in the Common Bench , one Sc. Fac . to have Execution , which returned nihil , the party is to have Execution . But in the Kings Bench it is usual to have two Sc. Fac . and if Execution be upon one , and nihil returned , it is error . 6 E. 4. 1. 11 E. 4. 1. 2 Rep. 16. The Presidents of every Court are the Law of the Court . vi . case at large .

Smith against Risley & al. T. 14 Car .

Paul Risley seized in fee by Indenture betwixt him and Sir T. Denton , Sir A. Denton , Thomas Risly his brother , and W. Withers covenanted with them , that for the setling of the premises in the blood of the said P. Risly , and affection to his wife , &c. and covenants with them to stand seized to himself for life , with Remainders over , and for the Covenantees to raise out of the land portions for his children . It was urged , that the Deed raised no uses to the Covenantees , because they are strangers in blood . For the first consideration is the preferment of his wife , the second of his children , the third to raise portions for his childrens benefit , and no benefit to the brother or his children . Court resolved , that the uses are well raised to the brother , and none other of the Covenantees , because he is of the blood , and one of the considerations is , for consideration to settle in his blood . And the Covenantees may sell the Estates , to raise the portions according to Devisors appointment .

Cook against Cook . T. 14 Car . Rot . 1446.

Error of Judgement in Waste . Declares , the Defendant fecit vast . in a close succiden . three Oaks and black Thorn-trees existent . arbores Maerennii , and intire damages given . Assigned for errour , because black Thorn-trees are not timber , where other timber grows in the same close , as 46 E. 3. 9 H. 6. 10. But Court agreed not errour . They being averr'd to be timber , and the Issue found by Verdict , it is not to be doubted but they are timber : For they are so in some Countreys .

Powel against Sheen .

A Prohibition granted , because the Marches in Wales proceeded in a Riot , where damages alledged above 50 l. as being out of their Instructions ; and it was said , that Court hath not Jurisdiction like Star-Chamber .

Pigot against Mary Pigot and Lewen . Trin . 14 Car .

In an appeal of the death of his Father , for that Mary proditorie , and Lewen felonice , poysoned his Father . Exceptions were taken , because no Declaration filed . Answered ; this appeal was arraigned at the Bar , and the Defendants being at the Bar , pleaded instantly , and so well , without Declaration filed . And so said the whole Court . And second Exception , because but one Venire charged being with several offences . Court held it good enough , 9 E. 4. 27. Judgement , that Mary be burnt .

Ter . P. 15 Car . Banc . Reg .

Cooks Case .

COok indicted for the murther of a Bailiff , who having Ca . sa . against him , the Bailiff broke the window , and forced into the house , whereupon Cook killed him . And all the Judges , that this was not murther , 5 Rep. 91. 13 E. 4. And though he killed a Bailiff , yet he killed him not in duly executing his Process : And it is not murther , unless there be malitia praecogitata , or malitia implicita . And though he might have entred had the door been open , yet he ought not to break it open in the case of a subject . But it was judged to be man-slaughter here , because he saw the Bailiff , and shot at him , otherwise it might have been , had he been ignorant , or not seen him , 13 E. 4. 9. 18 E. 4. 4. vi . a large case in the Rep. at large of the like .

Perkinson against Gilford & al. H. 14 Car .

It was agreed , that upon a Fi . fa . the Sheriff levies the money , and dyes , debt will lie against his Executors . And that the Executor of the Defendant in the first action is discharged upon that levy , and may aver and plead it against any new Execution , 21 H. 8. And the Sheriff is chargeable for the money to the Recoverer , and the Plaintiff might have either debt or accompt , 28 H. 8. 4 Rep. Slades case . Berkley , a Collector by acceptance of a Talley , is chargeable in debt . And it is not like a Personal Misfeasance of the Sheriff , which action morit . cum persona . But where he is chargeable for levying money , and not paying it over , that is for a duty , and there his Executors are chargeable as well as himself . Judgement pro quer . unless , &c.

Goodwin against Anne West .

It was resolved , that to leave a note of the contents of the Writ ad Testifi . is sufficient , and within the intent of the Statute . But because he does not alledge in his Declaration , that he was damnified by her non-appearance , as that he was non-suited , &c. Held by the Court to be nought . For there ought to be a party grieved , otherwise no cause of forfeitu●e , and the express words of the Statute . So Judgement pro Defendant .

Bardsey against Clifton .

D●bt upon Bond for performing an Arbitriment , where the Award was , that he should acquit the Plaintiff concerning a Bond , wherein Plain●iff and Defendant were bound to I.S. Urged to be a void Arbitriment to award him to discharge him of a Bond made to a stranger , for it is not in his power . But Co●rt , that ●he party may well discharge , &c. if the m●ney be to be paid at a future day . 2. Because he says they made it under their hands , &c. and does not say , ready to deliver . Court , when it is under hand , &c. is intended ready to be delivered . Judgement pro quer .

Daily against Bellamy & al.

In attaint , and the Verdict affirmed . It was urged upon 21 H. 8. and 23 H. 8. that the Defendant might have costs , because had the Plaintiff avoided the Verdict , he would . But resolved , that the Defendant shall have no more costs .

Daniel against the Count . of Hertford . T. 14 Car . Rot . 543.

It was resolved , that pleading the Prior was seized in Fee of , &c. at the time of the dissolution , is good , and need go no further , as in the Archbishop of Canterburies case , 9 Rep. 24.

Edwards against Rogers .

Berkley and Crook , that this fine by A. Uncle to W. the Ideot , bars not the Grandchilde , and compared it . Father is attaint , having issue two sons , one purchases lands , and dyes without issue . The corruption of his fathers blood hurts not him to claim as heir to his brother , Dy . Jones to the contrary . Adjour .

Coopers Case .

Court , if one breaks an house , with an intent to rob it , or kill any therein , and a party within the house ( though not Master , but a Lodger or Sojourner ) kill him , it is not Felony , but excusable by 24 H. 8.

Sir Martin Lyster against Home .

Trover and Conversion of an Hawk called a Ramish Faulkon , shews that he was possessed thereof , ut de bon . propriis & casualiter amis . Moved in arrest , &c. because he does not shew she was a reclaimed Hawk , or tamed , or that she had bells or varvels , and relied upon Dy . 306. Jones and Berkley of that opinion . C●ook contrary , cited 7 Rep. 17. shewing of what Beasts and Birds a man may have property . But Judgement ver . Plaintiff , and to amend his Declaration .

Ter . T. 15 Car . Banc . Regis .

Crisp against Prat . H. 10 Car . Rot . 73.

THe first question was , Whether an Inholder be a person within the Statute of Bankrupts of 13 Eliz . 1 Jac . 21 Jac . Berkly , that he was a Bankrupt within those Statutes . But the other Justices held , that he was not . For though he buys provision into his house , he does not properly sell it . And the Statutes mentions those who buy and sell in gross , or by retail . And Inn-keepers get their living by buying and selling no more than Fermors .

2. Whether Copyhold Land be within the Statutes to be sold by Commissioners . They all agreed , that it was within the purview of all the Statutes .

3. Because he gave this Land two years before he was a Tradesman to his son , and years before he became a Debtor . Three Justices held , that it was not within the power of the Commissioners , nor Statute of 21 Jac . 2 Rep. 25. 10 Rep. 56. 10 Car . Lady Gorges case .

Dennis against John Pain Sen. H. 14 Car . Rot . 680.

Two men joyntly and severally bound , one was sued , and pleads , and Plaintiff enters a Retraxit . It was urged by Whitlock , that this was a Release , 8 Rep. 58. Crook rather that it was but an Agreement , and no Release in facto , or Law . Be●kley held it a good discharge to both , being the one was discharged .

Evelins Case .

Prohibition was granted ( upon surmise of a custom that the Parishioners of St. Thomas's Parish elected their Church-wardens , and not the Parson ) to try whether any such custom or no .

Woulnoughs Case .

He and seven other were committed by the Mayor of London , for refusing to enter into a Recognizance to appear before the Lords of the Council . And upon Hab. Corp. returned , it appeared , that by an Order from the Council-Table , they were appointed to come before the Mayor , &c. It was moved , that this Return was not good , because he mentions not the Order , nor shews what it was . 2. Because the Recognizance is for them to appear before the Lords , no time no● place appointed , nor cause shewn why demanded . Parties were bailed till next Term .

Sub-chantor and Vicar of L. against Eyers & al. T. 12 Car .

The Plaintiff seized in Fee of Rectory of C. by Indenture , 29 H. 8. demised it to Peto fo● 42 years , excepting the privy Tythes , &c. After 5 E. 6. reciting the said Lease of 29 H. 8. and that these Grantees had bought it of Peto , grants the said Tythes of the Hay ( except the privy Tyches , &c. ) to others habend . after the end of 42 years to I.W. for one moneth . The 2 and 3 of P. and Mar. they made another Deed to Peto , and grant to the said Peto all their ●leablands in L. aforesaid ; viz. 78 acres of land , and also the demeans thereof , and all Predial Tythes , and Personal , which were belonging to the Parson of C. aforesaid . And the Court held , that the Deed of 5 E. 6. is meerly void , because it is to convey an Inheritance in futur . for the moneth is not to begin till the 42 years expired , and it is a grant of an Interesse Termini , and not of a Reversion ; and as it is Interesse Termini for the Tythe Hay , so it ought to be of the residue , for there cannot be a fraction of the Estate , 22 Rep. 55. 8 H. 7. 3. 38 H. 6. 43. And then agreed the Grant of 2 and 3 P. and Mar. to be good , notwithstanding an addition of a false thing : For an addition of a falsity shall never hurt , where there is a certainty before , 2 Rep. 32. Dy . 376. 4 Rep. 34. But in the Kings Grant , where there is a falsity in point of prejudice to the Kings benefit , or a misinformation of the Kings title , or upon a false suggestion of the party , there all Grants shall be void , as 10 Rep. 113. 21 E. 4. 48. 8 H. 7. 3. 9 H. 6. 28.

Arundel against Mare .

For words against a Merchant , He is a cheating Knave , and had cheated his Father by returning 20 l. for Wares , &c. Rolls moved , that to call one cheating Knave no action . But because he was a Merchant , Court held it lay .

Bagnel against Knight . P. 15 Car . Rot . 465.

Errour upon Judgement in a Conspiracy , declaring falso & mal tiose , caused an indictment of perjury to be written , containing hanc falsam mater . ( reciting verbatim . ) And it was delivered to the Justices of Goal-delivery , whereby he was brought to the Bar , under the Sheriffs custody : It was moved to be nought : First , because it is by way of recital of the Indictment . Plow . 136. but not allowed , for it is affirmative directly .

2. Because he shews not that he was in the Goal , and then the Justices of Goal , &c. have no power . Disallowed , Ductus ad barram & sub custodia is the same .

Dalby against Dorhal & ux . M. 14 Car . Rot . 415.

Errour . Upon Judgement had in a Conspiracy , for causing them to be indicted ad damnum ipsorum . Errour assigned there , because the Feme cannot joyn with the husband for damages . Berkley so ; for the wrong is several , and the Feme may not joyn for a Tort done to her husband . Crook to the contrary , because it is grounded on one intire Record . Adjourn .

Childe against Greenhill . T. 14 Car . Rot . 664.

Trespass for fishing in seperali piscaria sua , and taking pisces suos . Moved in arrest of Judgement , that it was nought , because he hath no property in them , till taken . But the Court agreed , being said in seperali pisc . sua , it is good . So of Deer and Coneys , and Doves in a Dove-coat . But Coneys or Deer , if not in a Park , he cannot say suas , unless domestick , 43 E. 3. 24. 3 H. 6. 55. 22 H. 6. 59.

Sprig against Rawlinson .

Errour upon Judgement in Ejectment . They declared upon a Lease of a Messuage , & unum repositorium . Errour assigned , because reposit . signifies a Cupbord , and a person●l thing which is moveable , and so an Ejectment lies not . But it was said on the other side , that it was a Warehouse as well as a Cupbord . Berkley and Crook held so . Had it been Anglice , a Warehouse , cleerly good by all . Now that it is without Anglice , being a good Latine word for a Warehouse , the Court may well take conusance of it , as of a real thing , and being mentioned with a Tenement , Ejection . firm . lies as well of a Warehouse as a Chamber , or Ass. of a Cellar , 5 H. 7. 9. 24 E. 3. 33. or a Shop , 48 E. 34 , But upon division of the Court , and Calapine , calls it a Voider , because the word Repositorium was of so various signification , and a word not usual in our Law , as Curtillag . Cottag . Fodina , &c , Judgement reversed , and the Plaintiff to begin a new action .

Young against Fowler . H. 14 Car . Rot . 1264.

Bishop of Rochester grants the Office of Register , for the Diocess of Rochester , to one after the death of him that is in actual possession , who by a former grant was to hold it for his life , habend . & exercend . per se v●l sufficient . deputat . for life , whi●h was confirmed by Dean and Chapter by their Deed . This Grantee , at the time of the Grant , was an Infant . But he attained full age in the life of the Bishop , and the Tenant for life , Bishop and Tenant for life both dye , this Grantee is disturbed in his Office .

Two Que● ions were moved :

1. Whether this grant of an Office to an Infant of eleven years old exercend . per se , &c. in Reversion after death of Tenant per vie be good .

2. Whether Office for l●… e ●sually granted in Reversion or Possession , granted by the Bishop , and confirmed by Dean and Chapter , shall binde the Successors .

1. The Court held , that this grant ut . sup . is a good grant . And the case of Coo . L●t . 3. of an Under-Stewardship was denied , unless with this distinction per se vel deputatum sufficient . For as an Infant may present to a Church , and the Ordinary give the allowance , so here depute , and the Lord give his approbation of the Deputies sufficiency . For as an Infant may have Offices by descen● , as Warden-Fleet , &c. so an Office by grant , 5 E. 4. 3. 48. Dy . 150. 39 H. 6. 32. 1 H. 7. 28. 9 E. 4. 5. and 26. where an Office may be intailed and granted in Fee , 21 E. 4. B. Infant a Mayor , Co. Litt . 107. 18 E. 3. 3. &c. 10 H. 14.

2. The second , They resolved it should binde ●he Successors , Bishop of Sa●ums case . Bishop of Chic●ster against Fredland , 2 Car . grant by Bishop , confirmed by Dean , &c. where no increase of a new Fee , good and binding , Co. lib . 997. 5 Rep. 2. and 3.

Seeles and others , Prisoners .

Upon an Habeas Corp. to the Marches of Wales Prison who returns , that the Prisoners were committed to him by a Decree of the Marches , upon a stoln marriage , and fined , and they remained there till they found bail , and until the Court took further order , and retu●ned also , that they stood committed by vertue of an Order from the Lords of the Council . This Return held insuffici●nt for the last part , because no mention what was the order of the Council . And moved to be nought likewise , because to remain there till further Order , which is uncertain .

Ter . M. 15 Car . Ban . Reg .

Facy against Lang . T. 7 Car . Rot . 1549.

IT was moved , Whether after a Prohibition granted and delivered , the party who obtained be still sued , shall have costs and damages assest him , or barely the other party shall pay a fine to the King . The Court cited a president , where an Attachment issued upon a Prohibition , and he recovered his costs and damages . Which the Court agreed to .

Barfoot against Norton . T. 15 Car . Rot . 1227.

It was agreed by the Court , that Tythes shall be paid for honey , F. N. B. 51 l. and Linwood .

North against Wingate . T. 15 Car . Rot . 973.

Errour upon a Judgement assigned . First , where the suit is upon a Penal Statute , no damages and costs ought to be given , because a penalty is given by the Statute . As there was in this case , Pilfords case , 10 Rep. 115. where the Statute gives single and double &c. damages , and mentions no costs . The Plaintiff there recovers none .

2. The Judgement is ideo in misericordia , where it should have been ideo cap .

Court resolved , Where a Statute gives a penalty certain , and an action of Debt , there if the party be put to his action of Debt , he shall recover his damages , because the penalty was not paid ; and he shall also recover his costs . But otherwise , where incertain , as the treble damages upon Tythe or Waste , 2 E. 6. Co. Entrys 163 , 164.

2. Resolved , the Judgement being in Debt for not payment , and not upon the Statute , it is good . Judgement affirmed .

Lee against Russel , T. 15 Car . Rot . 691.

Errour . Declares , upon a Bond conditioned , that if Obligor sealed a Leafe of such Lands , upon the Plaintiffs request , that then , &c. Defendant pleads no request . Plaintiff replies , he did cause an Indenture to be drawn according to the Condition , ingrossed , labell . affix'd cum sera impensa , and offered to the Defendant to accept thereof , who refused . Issue upon the request , and found for the Plaintiff . Errour assigned , that it was cum sera , &c. and sera is no Latine word for Wax , but a Lock . Not allowed , for it may be intended Wax , secundum subject●m materiam .

2. The second Errour , No Averment , that the Lands in the Indenture were the same in the Condition . But being pleaded ut . sup . if they were other Lands , Defendant ought to have shewed it by the Court Judgement .

Anonimus .

Errour brought by the Bail , of a Judgement given against the Principal . Errour assigned , because the Bail is taken upon a Cap. without a Scire Fac . sued against him . Court took exception to the Writ of Error , and agreed , that the Bail cannot have a Writ of Error upon the Principal Judgement . But the Record being removed then , whether quod coram vob . residet . Cur . Advis .

Lauder against Brook & al.

One seized of Soccage-Lands in Fee , and other in Cap●te , by Will in writing devised his Soccage-Lands to his base son and his heirs . Defendant p●etends a custom in Kent to devise Lands in Gavelkinde held in Soccage . Whether such a custom ? To prove , shewed F. N. B. 198. Lands in Gavelkinde devisable by cus●om , and Lambard fol. they may be sold without the Lords license . Shewed several presidents to that purpose . But they said , that such a custom ought to be pleaded . For the custom of Gavelkinde , sufficient to shew it is in Kent and Gavelkinde Land . For the Court takes notice what the custom of Gavelkinde is . Counsel on the other side , held no such cu●tom ut sup . and cited 4 E. 2. Mortdauncestor 39. That an Assize of Mortdaunc . lies not of Lands devisable . But resolved to the contrary , that it lies , if true that his Ancestor dyed seized . Now if the Defendant plead there is such custom , and that the lands were devised to him , good bar to the action . Jones , there is much of this custom in North-Wales . But after much debate , the Defendant suffered Nonsuit . For if no such custom , Plaintiff had good title , if otherwise , Defendant .

Roe and Bond against Devys . T. 15 Car . Rot .

Samuel Sutton was returned on the Jury , the same on the Distringas , and upon the Pannel annext , was written Daniel Sutton of the same place , and was sworn . This moved in arrest , &c. But being affirmed a misprision of the Clark , by the Cou●t amendable ( being proved the same that swore and gave the verdict ) by 8 H. 6. Statute 21 Jac . extends onely to sirnames , appearing to be the same persons who were returned .

Reignolds Case .

For Words . There being a communication of the Plaintiff , and his Office , Defendant spoke these words , He is a base cozening Knave , he is a Cheater , and has cozened his Master , innuend . ( Parker ) who was Master over him in the Office . Moved in arrest , &c. because he says not that he cozened him concerning his Office , and it may be intended in some other thing . But by the Court the action lies . Judgement .

Proctor against Chamberlain & al. Executors .

Errour was brought and assigned . Because the appearance was upon the Summons , and not upon the grand Distress , therefore out of the 9 E. 3. cap . 3. Secondly , because it is misericordia against the three , where two of them never appeared . And against him who appeared , no misericordia ought to be , because he came in upon the Summons . Therefore resolved , that the party taken in Execution should be discharged .

Terreys Case .

One indicted and found guilty upon the Statute 33 H. 8. of false tokens , because by a false note in the name of another , got into his hands a wedge of silver , to the value of 200 l. was condemned to the Pillory , and fined to the King .

Ter . H. 15 Car . Banc . Reg ,

Dawson against Lee . M. 15 Car . Rot . 585.

IF the Defendant after Imparlance , pleads in Bar as Outlawry , &c. and upon nul tiel Record , pleaded he fails of his Record . Judgement should be absolutely given , and not a respond . ouster . Resolved by all .

Stevens Case .

Resolved , that the Principal not being attainted , but discharged by burning in the hand onely , according to the Statute , the Accessory ought to have been discharged , without burning , or being put to his Book . For where a man is Principal , and another Accessary to him after the fact , and both convicted , if Principal prays his Glergy , and has it , and is burnt , the Accessary is to be discharged without putting to his book . And the Judgement was erronious , because he shall forfeit his Lands and Tenements after such Conviction , and Clergy allowed .

Crawleys Case .

Resolved , that if an Inhabitant refuse to serve as Constable , he is not to be committed to Goal , but they may cause him to be indicted , and set a fine upon him , as 8 Rep. 38. Griesbys case .

Parker against Edith Bleeke . H. 13 Car . Rot . 1002.

One seized in Fee of Copyhold Lands , in which Mannor there was a custom , and confirmed by act , that the wife of such Copyholder Tenant ( if she survive ) shall enjoy the said Lands during her life , and twelve years after . There issues out a Commission of Bankrupts , which fines this Copyholder a Bankrupt . Whereupon by Bargain and sale enroll'd , they sell the land to pay the Creditors . Copyholder dyes , his wife is admitted in Court to these lands before the Bargainees . Two points were insisted on .

1. Whether by this Bargain and Sale of the Commissioners , the Copyholders Estate was vested in the Bargainees before admittance by the Lord , so as the said Copyholder did not dye Tenant , and so not within the custom for the Widows Estate .

2. Admitting he dyed Tenant , and the Widow had such an Estate , Wheth●r the Vendee ( by the Bargain and Sale before made ) shall not afterward devest the Estate of the Feme by relation , Berkley and Crook , That the Bargain and Sale bindes the Copyholders , and bars his Estate , that he is no Copyholder after Inrollment . And the Bargainees by the Statute are onely barr'd of the Profits , until Composition with the Lord .

2. They held , When they are admitted , it shall devest the Estate the wife claimed by the custom , 7 E. 6. inrollments . Where one Joyntenant sells , and before Inrollment other dyes , and after inroll●d , the moyetie onely possessed . And where one bargains and takes a wife , and dyes , and after the Deeds in●olled , the Feme loseth her Dower . And so 22 Eliz . Mortgagee dyes , his heir being in Ward to the King , the Condition is after performed , the Wardship shall be divested , And the other Justices , after some debate , agreed in the first case , because by the custom she ought to be wife of a Tenant , which here could not be . Judgement according .

Bathels Case . H. 9 Car . Rot . 958.

Errour upon a Judgement at the Grand-Sessions in Flint . First , because Coram Just . in Com . Flint . and not magnae Sessionis in Com . Flint , but it was not allowed , for it is good both ways .

2. Because the Ve . Fac . was returned per T.H. militem nuper vicecom . so not returned by the Sheriff , but the late Sheriff , and it appears not that he was Sheriff at the time of the Pannel made , for no name is subscribed . But not allowed . And resolved , that the addition T.H. nuper vicecom . is sufficient .

Ireland against Blockwel . T. 15 Car . Rot . 1181.

In this case it was agreed for Law , That where an Assumpsit brought by one within a private Jurisdiction , That I.S. upon good consideration promised to bring him so many loads , &c. from a place out of that Jurisdiction , to a place within the said Jurisdiction . A Judgement given thereupon is erronious , because it being a private Jurisdiction , they have no authority to enquire of any thing out of the same .

Resolved , if one promise to pay such a sum upon my return into England , I must in my Declaration alledge express notice of my return , and shew the day and place of such notice given . Otherwise erronious .

Scavage against Hawkins .

Errour upon Judgement in debt , upon Lease for years . Errour assigned , because Plaintiff in debt counts that his Father was seized in tail , and made that Lease for years , and dyed seized of Reversion , which descended to him as heir of his body , and shews not the beginning of his Estate . But because it was in a Count , and not a Bar nor Avowry , held no errour . Judgement affirmed , 22 H. 7. 26. 34 H. 6. 48. 2 E. 4. 11

Brian against Wikes .

Errour upon Judgement in Leicester . First , Because upon Entry of the Plaint , and upon a Summons , a non est invent . is returnd at the Court held coram I.S. Majore . & I.N. & I.D. Aldermannis , whereas the stile of the Court was placita coram I.S. Mayor & such one Recorder , and I.N. I.D. Aldermen , So the Recorder was left out in the re●urne . But not allowed for errour . For the Court is well held there before the Mayor and two Aldermen by the custom .

2. The action being for these words , He hath stoln a tree formerly cut down , which is Felony , and I will cause him to be indicted of Felony . Adjudged actionable . Judgement affirmed .

Owen against Long & alios . M. 15 Car . Rot . 572.

Upon Assault & false Imprisonment apud Parochiam Sancti Nichol . Defendant justifies , that by an Act of Parliament , every poor Citizen and Freeman inhabiting in London , arrested under 40 s . gave Commissioners power to send for the Creditor , and upon refusal to come or perform their orders , to imprison such person . That by the command of the said Commissioners at such a Parish in Woodstreet , refusing to come before them , was committed , Et hoc paratus est verific . Upon Demurrer , these Exceptions were to the Plea :

1. He shews not that the Debtor , who complained was poor , and a Citizen and Freeman , and dwelling in L.

2. The Battery and Imprisonment alledged in Parochia Sancti Nichol . and he justifies in another Parish without a Traverse .

3. It should have been & hoc paratisunt , &c. for there be two Defendants .

Martin against Nichols .

Error of Judgement in Ejectmen● . Declares of a Messuage , and 40 acres of Land Meadow and Pasture , and distinguishes not how much there was in one , and how much in the other . Judgement reversed .

Canwey against Aldwyn . M. 15 Car . Rot . 132.

In Assumpsit . Plaintiff declares , for mending one Boat , and divers others , Defendant promised to pay him tant . quant . meruit . In fact says , he deserved 30 l. Upon non Assump . found for the Plaintiff . Moved in arrest , &c. Because he shews not what certain number he mended , cited Playters case , 5 Rep. 34. quare pisces suos cepit . But agreed ( being one and divers others ) to be certain enough . And so adjudged of a Taylor for one Gown and divers . Judgement .

Anne Healings against Mayor and Com . of the City of London .

Errour of a Judgement in Debt . The Judgement is , that the Mayor and Commonalty , and Citizens of London , should recover the debt , and 6 l. for costs , eisdem Major . & Com . adjudged ( omitting Civibus ) so no such Corporation . Held Error .

The King against Dryden , Gibbs & al.

Right of Advowson against Copartner . Resolved , that if one dyes puis darraigne continuance , the Writ should abate , being in a real action , and so of Joyntenants . Otherwise of an Assize of Novel Disseisin or Mortdancestor , 7 H. 4. 33. 40 Ass. 51. 1 Ass. 12. 1 E. 3. 12. 6 E. 3. 270. 7 E. 3. 300. 43 E. 3. 16. 12 H. 6. 2. Judgement .

Smith against James .

Errour assigned and allowed upon a Judgement got upon an action brought before there was any cause of action . Judgement reversed .

Sands against Trefuses .

Upon the Case for stopping a Water-course , declares , he was seized in Fee of a Mill , and had a Water-course running in the Defendants Land , to a Water-course which run to his Mill and the Defendants . Moved in arrest , &c. because he shews not that his Mill and Water-course was an ancient , &c. and does not prescribe to have a Water-course in the Defendants Land . But held to be good enough . For he was lawfully in possession , and the stopping was tortious . And it is not material to shew qua Estate , 33 Eliz . Sly and Mordant .

Mayor and Commonalty of London against Alford .

One seized in Fee of twenty Messuages , devisable as well in Mortmain as otherwise , built School and Almhouse and a Chappel , and devises these Tenements to one Brigs and Alford & al. habeud . to them , their Heirs and Assigns , to this intent , that they should pay yearly Pensions to the School-master and poor people . And if any part were unperform'd , devises them to W. Monox , and the Heirs males of his body upon the same condition , and if he failed in two moneths , to the Mayor and Commonalty upon the same conditions , and to repair London Bridge , and if they failed , that his Heir should enter and perform the same . Devisor dyes , the trust unperformed by all , his Heir enters , and is ousted by the Heir of Alford , who purchases of the other Devisees , by Deed inroll'd the Tenements , and afterwards Fine with Proclamations was levied to him . It was fo●nd , that none of the Conditions were performed , and that neither Devisors , Heir , nor Mayor and Commonalty of London had any notice of this Will , not of the Conditions , nor non-payment . After notice , Mayor and Commonalty entred upon Alford : He reenters .

Three Questions :

1. Whether this be a Condition or a Limitation appointed by the Will . Admitting a Limitation , and that it may after the first Limitation be good to the Devisors Heir , whether such may be good to the Mayor and Commonalty , being but a possibility .

2. Admitting alll these , yet being broken the first year , so de anno in annum . If the Devisors Heir has good title of Entry , and after the Mayor , &c. And they not entring , but suffer fine , and five years , if their Entry be not barr'd .

3. Admitting a breach of Trusts , &c. If want of notice ayds not . The Will being , If through oblivion , or other cause , the Trusts be not performed , then they shall re-enter . Court resolved , that Fine ●nd five years has bared , &c. And the Limitation to the Mayor , &c. was void , being a possibility upon a possibility , 1 Rep. Rector of Chedington . And that want of notice was not material . But for these two last points , they were not very clear , but the Fine and five years all agreed was a barre . Judgement against Plaintiffs .

Ter . Pasc . 16 Car . Banc . Reg .

Anonimus .

IS . upon Hab . Corp. brought to the Bar , and returned , that he stood committed by an Order of the Eschequer , for not paying of a fine imposed by Ecclesiastical Court , though it was not shewn wherefore the fine was , yet the Commitment was by a Judicial Court . Good .

Norton against Acklane . H. 17 Car . Rot . 549.

Covenant . Lessee Covenants for him and his Assigns , to repair , & leave it at the end of his term in good repair . Breach assigned in not reparations . Defendant pleads , that he assigned over his term to another , and then it was in repair , and that the Lessor accepted there of the Assignee . And adjudged , that the action well lay against the Lessee ( non obstant . the acceptance of the Rent of the Assignee ) or the Assignee at his choice , H. 16 J●c . Bret and Cumbeland so resolved . Judgement pro quer .

Anonimus . Hill . 15 Car . Rot . 1656.

A Writ of Distringas , Villatas circum adjacentes Villae de Dorling , ad levandum Sepes & Fossatas , &c. prostratas per diversas personas ignotas , & ad inquirendum , &c. which Inquisition being returned , and the Malefactors unknown , they found damages by vertue of the Statute of Westm . 2. cap . 46. And hereupon the Kings Attorney prayed a Distringas against the Inhabitants , and whether he should have it without a Scire facias sued to answer , and what Process he should have was much doubted ? Wherefore the Court would advise thereof .

Raymund against Burbedge . H. 15 Car . Rot . 1656.

Errour upon Judgement in Debt . Judgement was quod quer . nil . cap . per bre. The action being brought by an Attorney , by a Bill of Priviledge ought to have been nil . cap . per bill . and not per bre . Held errour , and not mendable , because it was in the Judgement , and so accounted as the act of the Court , 14 Eliz . Dyer 315.

Bishop of Salisbury against Hunt & al. T. 15 Car . Rot . 543.

Trespass , for taking two load of Wheat , being severed and set out for Tythe . Defendants plead as servants to the Grantees of the Queen by her Letters Patents , of the Tythe of all Corn and Hay within the place , &c. Plaintiff replies , that before the Grant of the Queen , she by her Letters Patents , granted the same to I.S. for 21 years , the Reversion to the Bishop and his Successors , who is Plaintiff . Defendant demurs , but shews no cause of Demurrer . Maynard shews the cause , for that Defendant intitles himself by a Grant of the Queen , 22 year , and the Plaintiff claiming by the Queen , neither confesses , avoids nor traverses . Berkley and Crook held , there needs no confessing , &c. when the Plaintiff claims by a former Grant of 17 years . And if not a good Grant , the Defendants ought to have traversed it , 6 Rep. 24. Heliers case , 2 E. 6. Br. Confess . &c. 66. Dyer . 366. 10 E. 4. 6. which was adjudged by the Court .

Plowden against Oldford . M. 15 Car . Rot . 86.

The case was , Parson , Patron and Ordinary before 13 Eliz . leases for 99 years , there being a Grant of the next Avoidance before this Lease . The Parson dyes . Grantee of the prochein Avoidance presents another , who being instituted , admitted and inducted , avoids the Lease , during his life , and dyes . The Patron presents a new Incumbent , who was admitted , instituted , &c. Question , whether he shall hold it discharged of this Lease , as his Predecessors . Adjudged that he should , because the Parson has the intire fee , as a Parson may have of Rectory presentative . And being in , and evicting the Lessee , it is an absolute eviction of the intire term without Revivor , and not onely for himself , but all his Successors .

Torles Case .

He and four others were brought by Hab. Corp. which returned , they were committed for a contempt of an Order of the Ecclesias●ical Commissioners , not paying the Parish Clarks wages . They were bailed upon this return till next term .

Parkers Case .

Returned upon Hab. Corp. out of the Kings Bench , he was taken upon an Excom . capiendo . And because the Writ was not brought according to 5 El●z . into the Kings Bench , and inrolled and delivered of Record in convenient time to the Sheriff , By the Court discharged , as unduely imprisoned .

The Case of Sir John Dryden .

Was now in the end of this Term moved again , that the Right of Writ of Advowson should abate by the death of one of the Tenants ; although it be admitted that they were Joyntenants . Now because neither Master Attorney , or any other , had argued for the King all this Term , all the Court retained their former opinion , that the Writ should abate , and that Judgement should be entred accordingly .

Thomas Bensteads Case .

He was after the Term indicted before special Commissioners of Oyer and Terminer , it was resolved by all Justices and Barons , that going in warlike manner to surprize the Archbishop , being a Privy Counsellor , with Drums , and a multitude of 300. was Treason .

2. That the setting , inquiry and tryal of the Prisoners all upon one day , without Commission of Goal-Delivery , was good , notwithstanding 2 H. 8.

3. That breaking Prison , where Traytors be in durance , and causing their Escape , though ho knew them not to be Traytors , Treason , 1 H. 6. 5. so of Felons .

Ter . T. 16 Car . Banc . Reg .

Leytons Case .

HE was endicted for erecting a Barn upon the High-way , ad grave & commune nocument . omn . legior . & subdit . &c. leaving out contra pac . Crook and Berkley . that the Indictment is ill , but Crook onely for the quashing it . Berkley , the usual course is not to quash an Indictment for Nusance on the High way , without Certificate that it is removed and avoided . But Crook , being it is agreed to be vitious , it ought to be quashed .

Abdy Alderman of Londons Case .

Resolved , that Aldermen of London , having houses in the Countrey , shall not be obliged to serve Constable-ship by his priviledge . As Attorneys attending in the Courts , are discharged of Constableship and other Offices .

Drydon & al. against Yates and Bishop of Peterborough . M. 10 Car . Rot . 1433.

Quare impedit . Plaintiffs count that they were seized in Fee of the Advowson of such a Church , as in gross , that it belonged to them to present , and that they were disturbed by the Defendants . Bishop pleads but as Ordinary , Yates pleads ss Parson imparsonee of the Presentment of the King , who claims from Queen Eliz . who seized thereof in Jure Coron . and pretending the Plaintiffs title , did present one Ellis , who was admitted , instituted , &c. and Queen and King James dying , the now King presented this Defendant . The Plaintiffs reply , that they presented such one , and traverse that Ellis was admitted , &c. Errour , because the Plaintiffs traverse the Justification , Admission , &c. of Ellis , of the Presentation of the Queen , where they should have traversed the Queens Seisin , and not the others Admission . But adjudg'd the Traverse to be good , and the Seisin of the Queen ought not to be traversed . Judgement affirmed .

Thorn against Shering . H. 15 Car . Rot . 588.

Trespass Claus . freg . Justifies Entry by I.S. his command . Plaintiff replies , and shews I.S. Lease to him at Will , and traverses the command . Defendant maintains the command , and his Entry thereby , and traverses the Lease . Upon Demurrer , adjudged the command was traversable , and Defendants rejoynder to make a traverse on a traverse , not good 38 Eliz . Parkers case . Command judged traversable .

Ter . M. 16 Car . Banc . Reg .

George Mead against Sir John Lenthal .

QUestion was , Whether a Patent of the Office of the Marshal of the Kings Bench , granted for years , be good . And resolved , not to be good , Sir G. Reynolds , 9 Jac . Hill . 9 Rep. 97. Whi●h were it good , being an Office of so great trust , might come in suspence upon a Probate of a Will , till Administration were committed . And it was objected , it might be granted in Fee or Tail , and so descend to an Infant . Court answered , they could put in a fit person to serve in the mean time . And it was said , till 14 E. 3. Offices of Sheriffs were granted for years .

Lodge against Holowel . T. 15 Car . placita Reg .

Upon Information . Defendant being a Currier , bought two Hides of tann'd-Leather , to the value of 16 s . apiece , of persons unknown , and sold them unwrought , and not converted into wares , to a Shoemaker . Resolved by the Court , to be an offence against the Statute of 1 Jac . cap . 22 For this selling by a Currier , not cut out and made into wares , is against the letter and meaning of 5 and 6 E. 6. cap . 15. 27 Eliz . cap . 16. & 1 Jac . 22. and the third part is due by this 1 Jac . to the Informer . And they held , that a Currier may not buy and sell by whole sale . But peradventure in any other manner , as to Coach-makers , Joyners , and others , for Stools and Chairs . Judgement for the Plaintiff .

Orm against Pemberton .

Plaintiff prayed a Writ to revoke Pembertons election to be Clark , by the Parson of the Parish , whereas the Parishioners , according to their Custom , had chosen him . Day for presidents , Trin . 21. Jac . A Prohibition against a Parson and Clark who sued in the Spiritual Court to be admitted , as elected by the Parson , and the other by the Vestry .

Yates against Dryden & alios . M. 10 Car . Rot . 1473.

Yates brings Errour upon a Judgement in the Common Bench , and hanging the Writ , the King brings Right of Advowson , and the proceeding in the Writ of Errour staid , until tryal of the other , after the mise . was joyned upon the Right , and thereupon a special : After verdict , one of the Tenants dyes . Resolved and adjudged , that the Writ should abate in all . And after the Errours were tryed , and Judgement was affirmed , Yates exhibites his Bill in Eschequer , and gets an Injunction , to stay the drawing up the Judgement , and serves Counsel and Prothonotaries with it . Hereupon came a Plea , that Mr. Gibbs held that Advowson in Coparcenary with the other two Plaintiffs in capite , and dyed seized , which descended to W. her son of 27 years old . And for want of his suing out Livery , it belonged to the King to present . Court held it to be no Plea , especially no Office produced finding the same . Attorney insisted much , where a title appears for the King ex officio , the Court must award 21 E. 3. 30. 12 H. 7. 12. F. N. B. 38. where a title appears for the King , the Court to award a Writ to the Bishop , 9 H. 7. 9 , Had there appeared any title for the King upon Record . Berkley and Crook held , the Court had nothing to do , but to reverse or affirm the Judgement . And a Writ of Error is but in delay of Execution , Hollands case , M. 40. 41. Eliz . A Writ of Errour is but a Commission to examine errors , and there much doubted what things might be assigned for errour , therefore of opinion , that Judgemen● being entred , and Damages and Co●ts signed , it ought to be affirmed . And they all agreed , there ought to be a clear Right appear for the King , and confess●d by the parties in pleading ; otherwise the Court ought not to award a Writ ex officio for the King . And that by the death , the Writ of Right of Advowson abated .

Richard Lees Case .

The same day , being Saturday , Richard Lee , and seven others , were brought upon an Habeas Corpus from Colchester . And it was returned , that they were committed there to Goal being Anabaptists , using Conventicles , and absenting themselves from all Parochial Churches , and bap●izing and preaching , being all Mechanical persons , viz. Taylors , Weavers , and such like : and it being proved by their own confessions , that one of their company of the age of 60 years , utterly disallowed of the administa●ion of the Sacraments by the Ministers of our Ghurch : whereupon an Indictment being sound at the Sessions in Essex , before the Justices and others , finding th●ir absence from Church for a moneth , and resorting to Conventicles , against the S●atute of 35 Eliz . cap . 1. made against such persons , they being severally arraigned , thereupon pleaded Not Guilty modo & forma , which being returned , a tryal was appointed to be at the Bar upon Tuesday 24. November following : and the Statute was read unto them , because they pretended there was not any such Statute made against them , or that they knew of any such Statute , but onely against Recusants ; wherefore they were advised to consider thereof , and in the interim to submit themselves according to the said Statute , and avoid the penalty which would ensue upon conviction : Whereupon they were appointed to be bailed , and to appear at the said day of tryal , and in the interim to be of good behaviour .

Brices Case .

Upon Hab . Corp. returned , that he was committed to Oxford Goal by Earl of D. to remain without bail , until delivered by the Justices in Eyre . It was ordered he should be bail'd for twelve days : And being no special cause shewn , but so general , held void . And if the return were not mended , and good cause shewed such day , to be dismist absolutely .

Derby against Hemming . H. 15 Car . Rot .

Errour upon Judgement in Debt . Condition to pay 51 l. 6 s . 8 d . Pleads , that he paid the said 21 l. 6 s . 8 d . ( so mistook . ) Plaintiff replies , that he did not pay the said 51 l. 6 s . 8 d . & hoc pet . &c. & Defendens similiter . Assigned for Errour . Defendant pleads payment 21 l. &c. Plaintiff saith non solvit the said 51 l. &c. So no Issue . And held , there might not be a Repleader . Judgement reversed .

Pelham against Hemming . H. 15 Car . Rot . 999.

Errour . Judgement in Debt was quod recuper . against the said Robert . & predict . Henric . in misericordia , where it should have been Robert . Held , this Entry is but the Clarks misprision , and amendable .

Watkinson & ux against Turner .

Errour For Battery . Watkinson pleaded , Not guilty , and Baron and Feme , quoad the wounding , not guilty , & quoad the Battery , the Feme pleaded Justification by the Feme , Et hoc parata est ver . where it should have been parati . Court doubted , whether good , for the Baron ought to have joyned with the wife . Cur . Advis .

Tregose against Wennel . M. 15 Car . Rot . 226.

Errour upon Judgement in Replevin , in the Hundred Court , and removed to the Common Bench , be Recordar . Errour , because no pledges appear to be returned upon the Plaint , Husseys case , Co. 9. 71. And the Court agreed according to the said Case .

Sloper against Childe .

Errour . In the Ven . Fac . to the Sheriff of Somersetshire , the word Vicecom . was omitted , yet he returned the Pannel , and his name was indorsed . Held a clear Errour . But because it was right upon the Roll ; and the other but the omission of the Clark . Amendable .

Sir Henry Williams Case .

It was doubted by the Court , if the Court of Marches in Wales , could hold Plea of Legacies aabove 50 l. because causes Testamentary , and Legacies are suable in the Spiritual Court by the 34 H. 8.

Calmadies Case .

Resolved , a Prohibition lay upon Bills exhibited into the Court of Requests , after Verdict and Judgement , Trin . 14 Eliz . Rot . 1157. Flood against Stepney , C. B. Where duress pleaded to a Bond , and afterwards Attachment issued out of the Court of Requests against the Defendant , and held to be good Plea . And there resolved , that Court cannot grant an Attachment of Contempt . And 37 Elizab . against Law , for that Court to commit any .

Anonimus .

It was moved at Bar , and 11 Rep. 16. Dr. Grants case , That for houses , Tythes ought not to be paid , unless there be a spiritual custom .

Sir Matthew Mints Case .

He was convicted 14 Novemb . 1640. for Man-slaughter , and his burning was respited , and now he pleaded his pardon , whereby the burning in the hand for the Man-slaughter , and all other Felonies , & alia malafacta , before the 8 of July last , committed by him were pardoned . And that he should not finde Sureties for his good Behaviour , although there were divers misdemeanors committed by him after the 8 of July , yet his Pardon was allowed , and discharged without Sureties .

Aspy against Pembridge .

Prohibition was prayed to be awarded to the Councel of the Marches of Wales , pretending , That a Copyholder in Fee surrendred into the hands of such a Tenant , such a Tenement , held of the said Mannor by the Verge , to the use of the Plaintiff ; and that Pembridge the Steward of the Mannor refused to admit him , and prayed , that he should be compelled to admit him . The Defendant pleaded , that the custom of the Mannor is to surrender into the hands of two Tenants , and that the said surrender ought to be done by the Verge : And this Surrender was onely by a Knife , sitting at at the Table , and into the hands of one Tenant onely ; and that he who was pretended to makes this Surrender was dead ; and his Heir alledging , that this Surrender was void , desired to be admitted , and was admitted : And that notwithstanding this answer , they proceed to try the Custom , which is void ; whereupon a Prohibition was granted .

Sherman against Lylly . H. 15 Car . Rot . 1198.

Debt upon a Bond of 200 l. Condition , If the Defendant would permit his wife to make a Will of Goods , to the value of 100 l. to be paid within a year after her death , that then , &c. Defendant pleads , he permitted his wife to make a Will . He ought to have pleaded that he paid accordingly , for else he answers not to the Condition . So was the opinion of the Court .

Burwell against Harwel . H. 15 Car . Rot . 197.

In Replevin , Question was first , Whether the Grantee of a Rent-charge by the Conusor of a Statute , after Statute acknowledged , and the time of the extent incurred , averring Debt , Damages and Costs are satisfied , may distrein for the Rent and arrearages , without suing a Sc. Fac . Berkley , the distress lawful , without Sc. Fac . Difference , where a man makes a gift in tail , reserving a Rent , and where a Donor grants a Rent out of a Reversion . In the one the Rent may be dockt by a Recovery ; but in the other , notwithstanding the Recovery , it remains at least as a Rent-seck . Bramston , where a man hath profits a prender , as Common for twenty Beasts , &c. every year : If he might not have them without Scire Fac . a great prejudice would ensue . Crook , on the same opinion .

2. Whether one who claims by the Conusor by Fine , or other Record , may maintain a Distress without a Sc. Fac . ad comput . as 38 E. 4. 12. 25 E. 3. 1. and 37. But Rolls , forasmuch as Conusee comes in by matter of Record , he cannot be ousted by one who claims under the Conusor ; therefore he cannot distrein without suing a Sc. Fac . Berkley agreed that Grantee of a Rent after extent satisfied , may well distrein , so may Grantee of a Common , for they claim no interest in the Land , but onely the profits . And the rule , that he who holds Land by matter of Record , must be ousted by Scire Fac . or matter of Record , holds not always good . For he who hath Lands by extent upon Recognizance , after debts satisfied , may enter without Sc. Fac . Judgement for the Avowant , unless , &c.

〈◇〉 against Stringer . H. 15 Car . Rot . 2.

Trespass for breaking Close . As to breaking parcel containing 42 acres , they justifie under a Grant of one who seized of the Mannor wherein , &c. in Right of his wife , and that the Grantor granted him Common for , &c. in the Mannor and Lands of , &c. and that the Baron is alive , and that he put his Cattel to use the Common . And as to the other part of the breaking , he pleads a Lease of 99 years . Upon these Pleas Demurter . It was urged , that the first Plea is nought , because he does not plead , that it was Waste or Common , &c. B●t Berkley and Crook h●ld , that by the Plea , as the Crant and Fine is , he may claim Common in any part of the Mannor . For there is no restraint . And it is not like 9 H. 6. Grant of Common ubicunque & quandocunque averia ierint . For he ought to aver there , the Cattel of the Grantor w●nt in the same place . Berkley held that clause void , Crook , good . But for the other part of the Plea , wherein he prescribes to have Common , was nought . Judgement pro quer .

Ter . H. 16 Car . Banc . Reg .

Chambers against Sir Edw . Bromfield , Mayor of London .

TRespass for false imprisonment . Adjudged to imprison for not paying of Shipmoney , was false imprisonment at that time .

The Lord Greys Case .

One created a Baron to him , and his heirs has a son and daughter by one Venter , and a son by another . He dyes , his son sits in Parliament , and after dyes , whether the daughter as possessio fratris , or the son by the second Venter . Adjudged , the son . And that there is not possessio fratris in dignity . Coo . Lit . 17. 3 Rep. 37.

Bacon against Bacon & al. T. 16 Car . Rot . 456.

That an Englishman , with his wife , being in Merchandizing beyond Sea , and his wife an alien , she being privement inseint , when the Merchant dyed , and is delivered , this childe shall be a Denisen , for it is not material what Country she is of , for she is sub potestate viri , and it is not as the Civilians , partus sequiter ventrem , but the childe shall be of the fathers condition . A case was cited , where one Stephens a Merchant went over Seas , and resided for his Merchandizing , and there had children . Resolved , that they were Denizons . And so Judgement here .

Prinsors Case .

One , as Constable , arresting one by Order of Sessions , on a Sunday in the Church-yard , was fined , and also upon a Cerciorari from the same Bench shewed him , he refusing to obey it , pretending his ignorance of reading , was put to finde Sureties for his good behaviour . But the Fine and Imprisonment were discharged , because the arrest was by Process of Sessions . But the Court declared , it was not well awarded according to 21 Jac .

King against Hilton & ux . T. 16 Car .

Debt against Baron and Feme as Administratrix of her former husband . Upon nulla bona of the Intestates returned , another Fi . fac . awarded , with a clause in the Writ , that if it be found that the said Baron & Feme devastaverunt bona , &c. 5 Rep. 32. Sheriff returns , that the Feme , and not the Baron , had wasted 100 l. worth of goods during her Widow-hood . Rolls urged , that it was a Devastation in both . And the Court held the Sheriffs return good enough . Judgement for the Plaintiff .

Ball against Trelawny . P. 16 Car .

Bill against Defendant in Cust . Mares . upon 2 H. 4. cap . 11. for suing in Admiral Court , for a Contract made on the Land at New-England , and not super altum Mare . Hales moved in arrest . Because the suit is by Bill , and not by Original Writ , as the Statute appoints . But in regard it was returned , he was in Cust . &c. It was held well enough . 2. For that being at New-England , it was held to be partibus tr●nsmar . The Court held it to be out of the Admirals Jurisdiction . And appearing to be in Execution for this cause onely , being brought to the Bar , he was discharged .

FINIS .