Reports of that learned and judicious clerk J. Gouldsborough, Esq. sometimes one of the protonotaries of the court of common pleas. Or his collection of choice cases, and matters, agitated in all the courts at Westminster, in the latter yeares of the reign of Queen Elizabeth. With learned arguments at the barr, and on the bench, and the grave resolutions, and judgements, thereupon, of the Chief Justices, Anderson, and Popham, and the rest of the judges of those times. Never before published, and now printed by his original copy. With short notes in the margent, of the chief matters therein contained, with the yeare, terme, and number roll, of many of the cases. And two exact tables, viz. A briefer, of the names of the severall cases, with the nature of the actions on which they are founded, and a larger, of all the remarkable things contained in the whole book. By W. S. of the Inner Temple, Esq; Goldesborough, John, 1568-1618. This text is an enriched version of the TCP digital transcription A85496 of text xxx in the English Short Title Catalog (Thomason E209_5). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 687 KB of XML-encoded text transcribed from 114 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2018 A85496 Wing G1450 Thomason E209_5 ESTC R10354 99858824 99858824 110883 2248518431

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 Early English books online. (EEBO-TCP ; phase 2, no. A85496) Transcribed from: (Early English Books Online ; image set 110883) Images scanned from microfilm: (Thomason Tracts ; 37:E209[5]) Reports of that learned and judicious clerk J. Gouldsborough, Esq. sometimes one of the protonotaries of the court of common pleas. Or his collection of choice cases, and matters, agitated in all the courts at Westminster, in the latter yeares of the reign of Queen Elizabeth. With learned arguments at the barr, and on the bench, and the grave resolutions, and judgements, thereupon, of the Chief Justices, Anderson, and Popham, and the rest of the judges of those times. Never before published, and now printed by his original copy. With short notes in the margent, of the chief matters therein contained, with the yeare, terme, and number roll, of many of the cases. And two exact tables, viz. A briefer, of the names of the severall cases, with the nature of the actions on which they are founded, and a larger, of all the remarkable things contained in the whole book. By W. S. of the Inner Temple, Esq; Goldesborough, John, 1568-1618. W. S., Esq, of the Inner Temple. [20], 192, [16] p. Printed by W. W. for Charles Adams, and are to be sold at his shop at the signe of the Marygold over against Fetter Lane in Fleetstreet, London : Anno Dom. 1653. The first leaf is blank. Annotation on Thomason copy: "ffebr. 8 1652"; the 3 in imprint date has been crossed out. Reproduction of the original in the British Library. eng Law reports, digests, etc. -- England -- Early works to 1800. eebo Reports of that learned and judicious clerk J. Gouldsborough, Esq. sometimes one of the protonotaries of the court of common pleas.: Or his collectio Goldesborough, John, 1653 227 118058 288 0 0 0 0 0 24.39 C The rate of 24.39 defects per 10,000 words puts this text in the C category of texts with between 10 and 35 defects per 10,000 words. 2007-08 Assigned for keying and markup 2007-08 Keyed and coded from ProQuest page images 2010-08 Sampled and proofread 2010-08 Text and markup reviewed and edited 2011-06 Batch review (QC) and XML conversion

REPORTS Of that Learned and Judicious Clerk J. Gouldsborough , Esq. Sometimes one of the Protonotaries of the Court of COMMON PLEAS .

OR His Collection of choice Cases , and matters , agitated in all the Courts at Westminster , in the latter yeares of the Reign of Queen Elizabeth .

With Learned arguments at the Barr , and on the Bench , and the grave Resolutions , and Judgements , thereupon , of the Chief Justices , ANDERSON , and POPHAM , and the rest of the Judges of those times .

Never before Published , And now Printed by his Original Copy .

With short Notes in the Margent , of the chief matters therein contained , with the yeare , Terme , and Number Roll , of many of the Cases .

And Two Exact Tables , viz. A Briefer , of the Names of the severall Cases , with the Nature of the Actions on which they are founded , and a L●rger , of all the remarkable things contained in the whole Book .

By W. S. of the Inner Temple , Esq

Ubi est nulla Lex , ibi est nulla transgressio : Sed ubi lex est nullum , ibi abundat Iniquitas .

LONDON , Printed by W. W. for Charles Adams , and are to be sold at his Shop at the Signe of the Marygold over against Fetter Lane in Fleetstreet . Anno Dom. 1653.

TO THE Studious , and Ingenious READER .

TWO things ( usually ) make new Books famous ; the Name of the Authour , and the Approbation of the Judicious : neither of these are here wanting ; for thou seest that this Book ( as part of its Title ) challengeth the Name of that Learned , and Judicious Clerk , John Gouldsborough ; A Name so well known ( even in this our Age ) that I should but trifle away time , in multiplying words , to tell thee what he was , and to inlarge upon his worth ; and allso discover ( too much ) mine own weakness , by endeavouring to prove so known a Truth , that it is by all ( allready ) taken for grantld . For the second , I am assured , that the Copy hath been communicated to the view of many knowing men in the profession of the Common Law , whose unanimous consent in a fair Testimony of the excellency thereof , hath been not only a chief cause of the now making it publique , but allso of heigthning the Publishers hopes , that this Book will be perused with as much content , and received with as generall an Applause , as any thing ( of the like nature ) that these latter yeares have afforded ; And that his great care and hazard in this his Edition may receive thy candid construction , and himself reap ( if not a fruitfull ) yet ( at least ) a saving return , for his better encouragement to adventure further ( hereafter ) in this kind , for thine , and the publique good . For thy further satisfaction know , that thou hast not here a spurious deformed Brat , falsly fathered upon the name of a dead man , too too usuall a trick , played by the subtile Gamesters of this Serpentine Age ; but thou hast presented to thee , though I cannot say the Issue of the Learned Gouldsborough's own Brain , yet I dare say , the Work of his own Hand ; and that , which were he living , he would not blush to own . A Work , I say , not roughly drawn , and cast by , in neglected Sheets , till time should give leave for the perfecting thereof , but carefully transcribed ( by himself ) in a fair Manuscript , destined ( as it should seem ) either for the Press and publique view , or to be preserved as a pretious Jewell , to be ( privately ) made use of in succeeding Ages . That this is true , there want not many living Testimonies , of persons of worth , who doe , and have very good reason to know his Hand-writing , that , if need required , might be produced , to say as much . I shall adde but one thing more , and that in brief is this , As the Authour was very careful in Transcribing and Correcting his Copy , that he might leave it fair , and entire to Posterity ; so hath the Publisher spared neither pains nor cost in the Printing thereof , that the Book may not come foul , and imperfect , to the hands of thee , it 's courteous , and ingenious Reader .

W. S.
A Table of the Names of the severall Cases , with the Nature of the Actions on which they are founded .

pag. pl. Wast . COnstance Fosters case , 1 1 Return of a Writ , 1 2 Wast , 1 3 Devise , 2 4 Battery . Webster against Payn , 2 5 Trespass . Nelsons case , 3 6 Quare impedit . Moores case , 3 7 Dower . Tristram Ascough and Eulalia his wife , 4 8 Quid juris clamat . Justice Windham against the Lady Gresham , 4 9 Verdict in an Ejectione firme , 5 10 Avowry . Capel against Capel , 5 11 Trespass . Baintons case , 6 12 Replevin . Colgate against Blith , 12 13 Ejectione firme . Knight against Brech . 15 1 Writ of Right . Heydon against Ibgrave , 23 2 Debt upon the Stat. of Winchester . Tyrrels case , 24 3 Quare impedit . Mores case , 24 4 Action on the Case for words , 25 5 Trespass . Leonards case , 25 6 Scire facias . Owens case , 26 7 Dower , 27 8 Arrest of Judgement in an Action for words , 28 1 Partition by word , 28 2 Debt for Rent , 29 3 Lands purchased by an Alien , 29 4 Misdemeanours of an Attorney , 30 5 Annuity . Sellengers case , 29 1 Plea by an Executor , 31 2 R●plevin . Boss against Huntley , 31 3 Trespass . Wilgus against Welch , 31 4 Ejectione firme , 31 5 Action upon the case . Fulwood against Fulwood , 32 6 Replevin . Gibson against Platless , 32 7 Battery . Lees case , 33 8 Copyhold . Smith against Lane , 34 9 Quare impedit . Specot against the Bishop of Exeter , 35 10 Replevin . Brooks case , 37 11 Replevin Knights case , 37 12 Replevin . Wakefield against Cossard , 38 13 Debt . The Earl of Kents case , 39 14 Debt . Mounsay against Hylyard , 39 15 Debt . The Purveyors case , 39 16 Trespass . Justice Anderson against Wild , 40 17 Error in debt . Sir Wolstan Dixy against Spencer , 40 18 Attaint . Husseys case , 42 19 Quare impedit , 42 10 Pleading in Battery , 43 21 Ejectione firme . Clayton against Rawson , 43 22 View . Hoo against Hoo , 44 23 Debt . Wiseman against Wallinger , 44 24 Quare impedit . Beverley against Cornwall , 44 25 Quare impedit . Gerrards case , 45 26 Debt . Bingham against Squire , 45 27 Lords Chancellors solemnity , 46 1 Quare impedit . The Queens case , 46 2 Ejectione firme . Kent against King , 47 3 Ejectione firme . Hurlestones case , 47 4 Assumpsit , 47 5 Action on the case Whorwood against Gibbons , 48 6 for words . Action for words , 48 7 Action upon a promise . Bodyes case , 49 8 Assault and Battery , 49 9 Action of covenant , 49 10 Debt upon a bond . Sir Will . Druries case , 50 11 Estrepment , 50 12 Perjury . 51 13 Conspiracy . Hurlstone against Glascour , 51 14 Quare impedit . Specots case , 52 1 Replevin . Board against Henley , 52 2 Quare impedit . The Queen against Lee , 53 3 Kimptons case , 53 4 Estopple , 53 5 Debt upon a bond . Hasels case , 54 6 Trover and Conversion . 54 7 Vtlary . Beverleys case , 55 8 Hue and Cry . Comberfords case , 55 9 Hue and Cry . Ashpools case , 55 10 Action for words . Normans case , 56 11 Debt upon a bond . Hayles case , 57 12 Attornment . Moore against Hills , 57 13 Wager of Law , 57 14 Prohibition . Pierce against Davy , 58 15 Robbery . Burnels case , 59 16 Debt upon a bond to perform covenants . Hannington against Richards , 59 17 Action upon the statute of Hue & Cry . Ashpooles case , 60 18 The Mayer and Commonality of Norwichs case , 61 19 Debt upon a bond . Lassels case , 61 20 Debt upon a bond . Gewen against White . 62 21 Replevin . Goverstones case , 62 22 Action of Wast . Constance Fosters case , 63 23 Debt upon a bond . Bret against Andrews , 63 1 Devise , 64 2 Redisseisin . Thatcher against Elmer , 64 3 Privilege of Court . Powels case , 64 , 65 4 Wager of Law . Millington against Burges , 65 5 Avow●y . The Lady Roger case , 65 6 Debt upon a bond to perform covenants . Hanington against Richards , 65 7 Avow●y . Johns of Surries case , 66 8 Debt upon a bond . Raven against Stockdale , 66 9 Trespas vi & Armis . Bloss against Halmon , 66 10 Trespass . Foster against Pretty 67 11 Debt upon a bond . Bret against Shepheard , 67 12 Replevin . Colgate against Blith , 67 , 68 , 69 , 70 13 Action for a Robbery . The Hundred of Dunmows case 70 14 Assumpsit . Cogan against Cogan , 71 15 Trespass & ejectment Cock against Baldwin , 71 16 Trespass vi & armis . Walgrave against Somerset , 72 17 Trespass vi & armis . Bloss against Halmon , 72 18 Wast . Taire against Pepiat , 72 19 Debt upon a bond . May against Johson , 73 20 Quare impedit . Sir Thomas George against the Bishop of Lincon . 72 22 Debt upon a bill . Goore against Wingfield , 73 23 Ejectione firme . Michell against Dunton , 74 1 Fine . Adams case , 74 2 Betenham against Herleckonden , 75 3 Wager of Law . Bostocks case . 75 ▪ 76 4 Entry sur disseisin . Sir Thomas Shirley against Grateway , 76 5 Action for words . Smith against Warner , 76 6 Redisseisin . Thachers case . 76 7 Debt upon a bond . The Earl of Kents case , 76 , 77 8 Trespass quare clausum fregit . Haires case , 77 , 78 9 Quare impedit . The Queen against the Bishop of Linc. 78 10 Trespass . Harper against Spiller and Drew , 78 11 Quare impedit . Brokesby against the Bishop of Linc. 78 , 79 12 Avowry , 79 13 Debt . Hare against Curson , 79 14 Debt against an administrator 79 , 80 15 Ejectione firme . Cleyton against Lawsell , 80 16 Debt . Saundersons case , 80 17 Debt . Sibill against Hill , 80 18 Quare impedit . Kemp against the Bish. of Winchester , 81 19 Escape . Cheny against Sir James Harington , 81 20 Assumpsit . Tayler against Falkam , 81 21 Covenant . Plane against Sams , 81 , 82 22 Ejectment . Staples against Hacke , 82 23 Disseisin , 82 24 Annuity . 83 1 Debt upon a bond . Michell against Stockwith , 83 2 Debt upon a bond . Weghtman against Chartman , 83 3 Quare impedit . The Queens case , 83 , 84 4 An Action for words , 84 5 Replevin . Clothurst against Delues , 84 6 Action for words . Cuts case , 85 7 Writ of entry . Carleton against Carre , 85 8 Quare impedit . The Queens case . 86 9 Plea to a Writ , 86 10 Action for robbery . The Hundred of Glocesters case , 86 11 Dower , 87 12 Formdon . Lennard Whites case , 88 13 Formdon in discender , 88 14 Error in the Exchequor-Chamber , 88 15 A Writ of Error . Lord Seymour against Sir John Clifton , 89 16 Error . Rawlins case , 89 17 Error in an Action of Trover , 89 18 A Writ of right . Heydon against Smithwick , 90 1 Trespass . Blunt against Lyster , 91 2 Recovery . Mills against Hopton , 91 3 Errror in the Exchequor-chamber . Bedell against More , 91 4 Trespass . Mounson against West . 92 5 Ejectment . Ashby against Laver , 93 6 Trespass . Johnson against Astley , 93 7 Error in the Exchequor-chamber . Rawlins case , 93 8 An assumpsit . Brown against Garbery , 94 9 Surrend●r of a Copyhold . Rippings case . 95 10 Resceit , 96 11 Audita querela , 96 12 Action on the case . Mathewes case , 6 13 Partition . Tamworth against Tamworth , 105 10 Action of debt . Hughsons case , 106 15 Ejectment . Johnson against a Carlile , 107 16 Action of Dower . Hunts casa , 108 17 Extent , 100 18 Trespass quare clausum fregit , 109 19 Speciall Verdict . Devise , 111 20 Retorn of a Sherif . Hockenhalls case 111 21 Debt upon a bond . Hooker against Gomersall , 111 112 22 Quare impedit . Brooksbies case 112 23 Maintenance . Tysdale against John Atree , 113 1 Consultation . Brown against Hother , 113 2 Amendment . Broughton against Flood , 113 3 Venue . Avowry . 114 4 Prohibition , 114 5 Extinguishment . Rotheram against Creen , 114 6 Debt upon a bond . Adams against Oglethorp , 114 7 Speciall Verdict . Eveling against Leveson , 115 8 Ejectment . Bacon against Snelling , 115 9 Scandalum magnatum . The Earl of Lincons case , 115 10 Debt . Willoughby against Millward , 116 11 Debt . Kitchin against Dixon , 116 12 Rent-charge , 116 13 Condition . Cromwell against Andrews , 116 14 Trespass . Smith against Bensall , 116 15 Habeas corpas . Walter Ascoughes case , 118 1 Price against Sands , 118 2 Action for words . Hugh Halls case 119 3 Administration . Willoughby against Willoughby , 119 4 Speciall Verdict . Extent , 120 5 Debt . Overton against Sidall , 120 6 Speciall Verdict . Sherborn against Lewis , 120 7 Disceit . Russell against Vaughan , 123 8 Tender of Reut . Burrough against Taylor , 124 9 Debt . Welcome against S. 124 10 Trespass for braking his close . Nevell against Sail , 124 11 Action for words . Somerstailes case 125 12 Monstraus de droit , 125 13 Debt upon a bond . Hamond against Hatch , 125 14 Debt for Rent . Bow against Broom 125 15 Formdon . Downall against Catesby 126 16 Action for words . Palmer against Boyer , 126 17 Libel for Tythes . Prohibition , 127 18 Latitat . Bayle , 127 19 Scire facias . Midleton against Hall , 128 20 Action for words . Martin against Burling , 128 21 Error . Collet against Marsh , 128 22 Ejectione firme . Portman against Willis , 129 23 Trespass . Gray against Trow , 129 24 Debt . Thyn against Cholmeley , 129 25 Action for words . Parlor against S. 130 26 Action on the case . Earl of Pembroke against Buckley , 130 27 Action for words , Lassels against Lassels , 131 28 Indictment , 132 29 Action on the case . Peirce against Barker . 132 30 Indictment . Arundels case , 133 31 Error in Debt . Slaughton against Newcomb , 133 32 Ejectione firme . Bulleyn against Bulleyn , 134 33 Action for words . Bury against Chappel , 135 34 Arraignment , 135 35 A Writ of Error . Wilkinsons case , 136 36 Assumpsit . Skelt against Wright , 136 37 Debt . Ford against Glaubile , 136 38 Information . Sir Christopher Blunts case , 136 39 Condition of an Obligation , 137 40 Mortgageo The Duke of Norfolk and Rowland , 137 41 Action for words . Redfrem against J. S. 137 42 Action for words , Megs against Griffith , 138 43 Action upon a Statute . Revell against Hare , 138 44 Error in Debt . Winch against Warner , 138 45 Assumpsit . Petties against Soame , 138 46 Devise of lands , 139 47 Arrest by Latitat . William Gerrards case , 139 48 Debt upon a bond , 139 49 Trespass . Stafford against Bateman , 140 50 Error in Debt . Anne Lathams case , 140 51 Quare impedit . Langford against Bushy , 141 52 Devise of Lands , 141 53 Prohition . Necton and Sharp against Gennet , 141 54 Debt upon a bond . Greningham against Ewer , 142 55 Execution of a Writ , 142 56 Action of debt . Woodcock against Heron , 142 57 Action for words . Brough against Devison , 143 58 Forfeiture of Copyhold , 143 59 Lease for years . Knevit against Poole , 143 60 Prohibition . Rame against Patison , 145 61 Partridge against Nayler , 145 62 Forfeiture , 146 63 Quare impedit . Lord Zouches case , 146 64 Assumpsit . Thornton against Kemp. 146 65 Prohibition . Sherington against Fleetwood , 147 66 Trust . Wildgoose against Wayland , 147 67 Reservation of Rent , 148 68 Action for a Robbery , 148 69 Outlary reversed , 148 70 Fine with proclamation , 148 71 Feoffment to a use , 148 72 Tenure and Wardship , 149 73 Devise , 149 74 Prohibition . Benefield against Finch , 149 75 Oyer of a bond , 150 76 Ejectione firme . Beckford against Parnecole . 150 77 Writ of Error . Harecourts case , 151 78 Trover . Easts case , 152 79 Writ of Error . Wiseman against Baldwin , 152 80 Assumpsit . Pine against Hide , 154 81 Prohibition . Jacksons case , 154 82 Trover and conversion , 155 83 Assumpsit . Chessins case 155 84 Assumpsit . Dixon against Adams , 156 85 Ejectione firme , Ross against Ardwick , 157 86 Trover . Harding against Sherman , 158 87 Debt upon a bond . Paytons case , 158 , 159 88 Trespass quare clausum fregit , 159 89 Debt upon a bond . Allen against Abraham , 159 90 Account . Huntly against Griffith , 159 91 Scire Facias . Lady Gresham against Man , 160 92 Prohibition . Ramsies case , 161 93 Account , 161 94 Indictment . Hom's his case . 162 95 Fine of Lands , 162 96 Ejectione firme . Robins against Prince , 162 , 163 97 Scire facias . Hoo against Hoo , 166 98 Mackerell against Bachelor , 168 99 Information . Goodale against Butler , 169 , 170 100 Scire facias . Foe against Balton . 170 101 Contra formam Collationis , 111 102 Ejectione firme . Cootes against Atkinson 171 103 Action for words . Pollard against Armeshaw , 172 104 Elegit . Palmer against Humphrey , 172 105 Covenant , 173 , 174 106 Debt upon a bond . Robinson against May , 174 107 Audita querela . Hobs against Tedcastle . 174 , 175 108 Covenant . Matures against Westwood , 175 109 Assault and battery . Sims his case , 176 110 Trespass . Goodale against Wyat , 176 111 Ejectione firme . Sayer against Hardy ▪ 179 112 Rent . Walter against Walter , 180 113 Debt upon an Escape , 108 114 Vtlary after Judgement . 108 115 Fine levied . Sir Henry Jones case , 181 116 Evidence . Tutball against Smote , 181 117 Debt . Richard Thornes case , 182 118 Debt . Humble against Glover , 182 119 Evidence . Maidstone against Hall , 182 120 Speciall Verdict . Dickins against Marsh , 182 , 183 121 Covenant . Cole against Taunton , 184 122 Grant . 184 123 Error . Brewster against Bewty , 187 124 Trespass . Pannell against Fen , 185 125 Repleuin . Second deliverance , 185 126 Action for words . Stitch against Wisedom . 185 127 Accessary to Felony , 185 128 Debt . Thin against Chomley , 186 129 Lease . Harbin against Barton , 185 103 Action for words . Baddocks case , 186 131 Debt upon a bond . Staples against Hankinson , 187 132 Error . Boyer against Jenkins , 187 133 Grant over , 187 134 Ejectione firme . Thomas against King , 187 135 Trespass . Oland against Bardwick , 188 136 Error . Ascough against Hollingworth , 188 137 Trespass , Bodeam against Smith , 189 138 Name of purchase , 189 139 Perjury , 189 140 Obligation , 190 141

De Term. Pasch. Anno Elizab. Reg. xxviij .
1.

WAst war brought by Constance Foster , Wast . and another , against Lessee for years , in effect the case was such ; A man makes a Lease of certain Lands , 44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. excepting all manner of Woods , the Lessee cuts down Trees , and he in Reversion brings an Action of Wast , and by the opinion of the Court , the Lessee is not punishable in Wast ; for they were never let ; and therefore the Plaintif is driven to his Action of Trespass at the Common Law .

2.

THe Sherif returneth in a Writ of Right four Esquires to make the pannel , Return . and doth not say that there be any Knights , it was sayd by the Court , that he ought to return them which be , and that there be no more .

3.

WAst was brought for digging in Land , Wast . and taking away Okes ; the Defendant pleaded in bar , That the Queen by her Letters Patents under the Great Seal of England , granted unto him , that he might dig for Mines of Cole in the Land , and prayed that it might be entred verbatim ; and a Grant under the Seal of the Exchequor was entred ; whereupon the Plaintif Demurred : Now came Walmisley , and would have amended it , and by the opinion of the Court , he cannot amend it after the Demurrer be entred , Demurrer . but Judgement shall be given for the Plaintif , if he shew no other matter .

4.

A Man seised of Lands in Fee , Devise and sale by Executors . Deviseth to his Wife for life ; the Remainder to his Son in tayl , and if his Son dye without issue of his body , that then the Land shall be sold by his Executors , and maketh two Executors , and dyeth ; the Wife dyeth ; one Executor dyeth ; the Sonne dyeth without issue ; the other Executor selleth the Land ; and Gawdy the Queens Serjeant moved whether the sale be good or no , and it seemeth to him that the sale is good , and vouched the Case in 30 Hen. 8. Brook , Devise 31. And now lately , it was adjudged in the Kings-bench , where a man did Devise his Lands in tayl , and for default of such issue , that the Land shall be sold by his Sonnes-in-law , and dieth , having five Sonnes-in-law ; the one dyed , the others sold the Land , and this was adjudged a good sale .

Anderson

It seemeth the sale is not good ; for if one make a Letter of Attorney to two to make Livery and Seisin , Livery . if the one dye , the other cannot doe it : So if one grant the Office of Stewardship to two , the one of them cannot hold Court alone : Stewardship . And if one of them may sell , to what intent was the Statute of 21 Hen. 8. cap. 4. that those which take the Administration may sell ?

Windham

The Statute will not prove the case , but it seemeth the sale to be naught ; And there is a difference where one giveth an interest to two , and when he giveth but an authority ; Interest . for an interest may survive , but an authority cannot . Authority .

Rodes to the same intent , and cited M. 4 & Eliz. fol. 219. a. & 177. & 210. & 371.

5.

BAttery , Battery . by Webster against Pain , the Action was layd in London , and in truth the Battery was committed at Uxbridge in Midlesex , the Defendant pleaded that such a day and year at A. in the County of Huntington , 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. the Plaintif made an assault upon him , and the hurt &c. absque hoc , that he is guilty in London . Snag moved that the Traverse should not be good .

Anderson

Will you have him to say , absque hoc , that he is guilty ? that he ought not ; for by the speciall matter he hath confessed the Battery , and you will not deny , but that if his Plea be true , he hath good cause to bar the Plaintif ; wherefore if we shall not allow this Plea , we shall take the Defendant from his remedy to plead , which God forbid : And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London , where the Action was brought in Midlesex . Tota Curia , Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded , wherefore the Plea is good .

6.

NElson , Trespass . Prothonotary , brought a Writ of Trespass against another , in effect the case was thus ; The Abbot of Westminster was seised of Lands , Vnity of possession of Common ▪ to which he had common in the Lands of a Prior ; afterwards , by the Statute of Dissolutions , as well the Lands of the Abbot , as of the Prior , were given to King Hen. 8. And after that , the Dean of Westminster had a grant of the Mannor which the Abbot had , and Nelson had the other Mannor which the Prior had , into which a Tenant of the Deans put his beasts , 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass . pl. 20. claiming Common , as once it was in the hands of the Prior , and Nelson brought his Action of Trespass . Walmisley moved that the Tenant should have his Common .

Peryam

Is this a new case ? It hath been adjudged heretofore , that by the union of possession the Common is gone .

Anderson to Walmisley

Have you any reason why the Common shall not be gone ?

Walmisley

No , my Lord , if the Statute will not help us ; for the Statute is , that the King shall have it in the same plight as the Abbot had it , and the Abbot had Common , ergo , &c.

Windam

So is the Statute , but the Statute doth not say , that it shall continue so in the hands of the King , and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot , therefore the Common is gone .

Rodes assented .

7.

MOor brought a Quare impedit , Quare impedit . & after Judgment had a Writ to the Bishop of Norwich , and at the alias the Bishop returned , that after the awarding of the first Writ , and before the receipt of the second , the Queen had presented the same Defendant by her Letters Patents , who is admitted , instituted , and inducted , so that , &c. Shuttleworth moved that the Ordinary might be amerced for his evill Return ; for when he had Judgement to Recover , he ought to have the effect of his Judgement ; for else it shall be in vain to sue a Quare impedit , and thereupon he avouched the case in 21 Hen. 7. 8. & 21 Eliz. 364. Dyer , that the other Clerk shall be removed .

Anderson

the Return is not good ; for me seemeth in a Quare impedit , when one which hath title Paramount presents , Title Paramount en qu. imp. hanging the Writ , then allthough the Plaintif hath Judgement to Recover , yet his Clerk shall not be removed ; but if it be under , or after the title of the Plaintif or Defendant , then his Clerk shall be removed ; and here he hath returned , that the Queen hath presented the same man which is Defendant , and therefore he shall be amerced .

Windham to the same intent , and cited the case of Long , 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert , Quare non admisit , fol. 47. k. and Bassets case in 9 Eliz. Dyer , Alit . en pr. quod reddat . fol. 260.

Anderson

In a Praecipe quod reddat , if the Sherif return upon the habere facias seisinam , that another hath recovered by title Paramount against the Defendant , and hath execution , he shall be amerced .

Peryam

How doth it appear to us , that he which the Queen hath presented , is the same Defendant ?

Shuttleworth

By the Return .

Peryam

No , Sir ; and therefore it is good to be advised :

And after Windham doubted for the same cause . Et adjornatur .

8.

TRistram Ayscough , Dower . and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband ; the Defendant pleaded in bar , that an Annuitie was granted to her first Husband and her self , in recompense of her Dower , which she after his death accepted ; and the Plaintif replyed , quod recusavit praedict. annuitatem , after the death of her husband .

Gawdy

The Plea is nor good .

Anderson

Your intent is , Disagreement in pais . for that she disagreed in the Country , and not in a Court of Record , that the disagreement shall not be good ; but I think not so : for if she say in the Country , that she will not have the sayd Annuity , this is a good refusall ; and if she once disagree , she can never agree afterwards ( quod tota Curia concessit ) but peradventure recusavit is no good pleading .

9.

FRancis Windham , Quid juris clamat . one of the Justices of the Common Pleas , brought a Quid juris elamat against the Lady Gresham , to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read : The Lady pleaded , that certain persons were seised of those Lands , and held them of King Hen. 8. by Knights service , and enfeoffed W. Read , and the Lady then his Wie , to have and to hold to them and the heirs of the husband , who devised the reversion after the death of the Lady to the sayd R. Read in tayl , the remainder , &c. and that the said R. Read levyed the Fine , &c. whereupon Windham demurred in Law .

Gawdy

The Plea is not good for divers causes ; the one is for the pretence of the Tenant , for that the Lands were held by Knights service , the Devise is voyd for the third part , so that therein the Conisor hath nothing , but she doth not shew who had the reversion of the third part , which she ought to shew , and thereupon he vouched 30 Ed. 3. fol. 7. & 34 Ed. 3. quid juris clamat . 14 E. 3. Fitzh . Quid juris cl. The Defendant said that he held not of the Conisor , he ought to shew who had the inheritance ; and 30 Hen. 6. fol. 8. in Wast brought by Radford . Another cause is , for that in the end of her Plea she demandeth Judgement , Eisdem . si pro eisdem duabus partibus , she ought to Attorn , and she doth not speak of any two parts before , and therefore it is not good , and vouched 7 Ed. 6. in the Comentaries , Parliament held praedict. 28 Ap. & 9 Edw. 4. bona praedict . J. S. and doth not speak of any J. S. before . Then for the matter in Law , for that the Conisor was but Tenant in tayl , this notwithstanding it seemeth she ought to Attorn , and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia , & 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine , the Tenant for life ought to Attorn. And 3 Ed. 3. quid juris , &c. It is there ruled , that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl ; and therefore she , &c.

And by the opinion of the Court , the exception , si pro eisdem duabus partibus made the Plea evill without question , and therefore gave judgement for Windham , that he should have Attornment , but they said nothing to the other points .

10.

SHuttelworth came to the Bar , Verdict . and shewed how an Ejection firm was brought of an entry into certain Lands , the Defendant pleaded not guilty , and thereupon the Jury found , that he entred into one moity , and not into the other ; and this he alleged in Arrest of Judgement .

Anderson

It seemeth that Judgement shall not be given ; for this is an Action personall , and is not like to a Praecipe quod reddat .

Rodes

It seemeth the contrary by 21 Edw. 4. fol. 16. b. & fol. 22. see there the case intended .

Anderson

The cases are not alike .

11.

IN the Exchequor Chamber before all the Justices , &c. the case was such , John Capell gave the Mannor of How-Capell , and Kings-Capell in the County of Hereford , to Hugh Capell in tayl , the remainder to Rich. Capell in tayl , with divers remainders over ; the Donor dieth , Hugh hath issue , William , and dieth , Richard grants a rent charge of fifty pound to Antony his son ; William selleth the Land to Hunt by fine and recovery with Voucher , and dieth without issue , Antony distreineth for Arrearages , and the Tenant of Hunt brings a Replevin , and A. avows the taking , whereupon the Plaintif demurs in Law .

Fenner

It seemeth that the Avowant shall have Return ; and first I will not speak much to that which hath been agreed here before you , that a Remainder may be charged well enough ; for by the Statute the Remainder is lawfully invested in Richard ; and I agree well that no Formdone in a Remainder was at the Common Law , and so are our Bookes , in 8 Ed. 2. and Fitzh . in his Nat. brev . saith , that it is given by the equity of the Statute . At the Common Law there was no Formdone in discender , now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum . And I have taken it for Law , that when a thing is once lawfully vested in a man , Lawful vesture . it shall never be devested without a lawfull Recovery ; and here the Recovery doth not touch the Rent ; and I think that allthough the Remainder was never executed in possession , yet the Grantee of the Rent shall confess and avoyd it well enough . The Fine is not pleaded here with proclamation , and therefore it is but a bare discontinuance , in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance , Distress per grantee , before entrie of the grantor . yet he in Reversion may distrein for his service . And if there be Tenant for life , the Reversion to a stranger , and he in Reversion grant a Rent charge , Tenant for life is disseised and dye , the Grantee of the Rent shall distrein , allthough that he in Reversion will never enter : And so if Tenant in tayl , the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue , Droit heir de I. S. the right heir of I. S. shall enter well enough : And he put Plesingtons case in 6 R. 2. Fitzh . quod juris clamat 20. & 8 R. 2. Fitzh . Annuity 53. And the case in Littleton , & Dyer fol. 69. a. pl. 2. & 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age , Rent ch. sur . cond. that the Rent shall cease during the minority , yet his Wife shall recover her Dower when the heir cometh to full age , Dower . Perk. 327 Which cases prove , that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect , yet the grant shall take effect well enough ; and if Tenant in tayl , and he in remainder had joyned , this had been good clearly . And 8 Ed. 3. & 43 Ed. 3. Tenant in tayl to hold without service , the remainder to another to hold by service , if Tenant in tayl in this case had suffered a Recovery , and dyed without issue , I think the Lord ( in this case ) shall distrein for the service , then I suppose that the fine in the principall case shall not exclude the Grantee from his rent ; for there is a difference between jus in terra , Jus in terra . Prox. advoc . and jus ad terram ; for I think that no fine shall defeat jus in terra , and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem , and after suffer the Advowson to be recovered , the Grantee shall falsifie in a Quare impedit , Then whether this recovery shall avoyd the rent or no , and I think no ; for this case differs , and now the recovery is had against Tenant in tayl , for the remainder here is out of him by the fine , and in the Coni●ee , and the recovery doth not disprove the interest before , for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued : And 44 Ed. 3. recovery of the rent is not a recovery of the homage , Rent & homage . unless it be by title : And here there is not any recompense to him in the remainder , and therefore there will be a difference in this case , and where there is a recompense , Annuity for Tithes . fol. 7. Hen. 6. if a person grant an Annnity for Tithes , Nomine paenae it is good , but if there be a nomine paenae , it is not good ; and 7 lib. Ass . an Annuity granted untill he be promoted to a benefice , Promotion to a benefice . it ought to be of as great value as the Annnity , and 26 Edw. 3. the Church ought not to be ligitious ; and 22 Ed. 3. two men seised in Fee-simple exchange for their lives , &c. and 14 Hen. 4. the King may grant a thing which may charge his people without , Rent for a release . &c. And 44 Ed. 3. rent granted for a release by Tenant in tayl , is good , and shall bind and charge his issue . And so he seemeth that the Avowant shall have return . Walmisley to the contrary ; For first it hath been held , that the charge at the beginning is good , and so I hold the Law , bnt how , Charge contingent . or in what manner , that is the question . 38 Ed. 3. If Tenant for life be , and he in reversion grant a rent charge , it is good ; but it shall be quando acciderit . 33 lib. Ass. & 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred ; for there the remainder nunquam accidit , and therefore shall never be charged ; for as I hold when he in remainder chargeth , he chargeth his future possession , and not his present interest ; Sci fa. de rem . View . for if a Sci. fa. should issue to execute this remainder , he shall demand the Land , and before the remainder falleth he hath but quasi jus , Attornment al rent ch. Priority . which is not corporall , neither ought it to be put in view in Assise ; and 21 Hen. 6. a. Tenant of the Land shall Attorn upon the grant of a rent charge ; and 33 Ed. 3. Priority shall hold place when the remainder falleth , and not when it is granted , 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then , Sir , when the foundation out of which the rent is issuing is gone , the rent is allso gone ; and therefore let us see what authority Tenant in tayl hath in the remainder . At the Common Law , there was no Formdone in descender or remainder ; and the Statute of W. 2. cap. 1. provides but for two persons , viz. he in reversion and the issues ; but Formdone in remainder is taken by the equity . 50 Ed. 3. If Tenant for life be , the remainder in tayl to another , the remainder in fee to the Tenant for life , and he makes wast , Wast . Bargain de remain . Tenant in remainder shall punish him : and Fitzh . nat. br . fol. 193. a. Cui in vita , by a wife which was Tenant in tayl upon the alienation of her husband : And I think that if he in remainder bargain his remainder that it is voyd , and he cannot grant to another that he shall dig in the soyl , for by 2 Hen. 7. he in reversion cannot doe so . 12 Ed. 4. Recovery suffered shall bind the issue . 7 Ed. 3. no attaint lieth for him in remainder of a verdict given against Tenant for life , Nul attaint pur tenant in rem . then in this case he in remainder cannot enter , and the Grantee shall not be in a better estate than his Grantor , and then if he shall never enter , frustra est illa potentia qua nunquam reducitur in actum . The reason for the grant is good ; for when Tenant in tayl dyeth without issue , he in remainder shall be in by the first gift in proof whereof is 33 Hen. 6. he in remainder shall be in ward ; Ward . and in 11 Hen. 4. in Formdone in descender , Formdone . he shall say that the possession was given to his father . Prebendary . And a Prebendary cannot charge before induction . Ioyntenants . But if two Jointenants be , and the one charge all , and the other disclaimeth , the charge is good from the beginning : And the Recoverer here is not under the charge ; for allthough he hath that estate which he in remainder should have if Tenant in tayl had not aliened , yet is he a meer stranger , and in by another title , 10 Ed. 3. If two Jointenants be , Charge per Ioyntenant . and the one charge , this is good , conditionally that he which chargeth shall survive . And if Tenant pur auter vie charge and die , occupans shall hold it discharged : So in this case ; for he is not in of this possession . Moreover , there is a mischief if this charge be good ; for then the Land may be charged by two severall persons at once , which shall not be suffered ; but yet if cestui que use charge , and the Feoffees charge , both are good , for the one is by the Common Law , Charge per cest . que use & Feoffees . 28 Ed. 3. 10. b. and the other by the Statute Law . So if Lessee for years charge , and he in reversion charge , and after Lessee for years surrender ; but this is in severall respects , and I put this case for Law , Ch. per lessee , & per enreversion . that if he in the remainder bind himself in a Statute Merchant , Stat. Merch. per test . en rem . ne charge le poss. this shall not charge the possession . And if in this case he will grant the rent over , none ought to Attorn , and therefore voyd ; and Littleton saith , that he in remainder shall not falsifie ; No attornment . Falsifying . and 26 Hen. 8. the Grantee of lessee for years shall not falsifie ; for the nature of falsifying is properly to find a fault , wherefore it should not be good ; and what fault can he find in this case ? surely none . Successor lie per confession . 4 Hen. 7. 1. a. & 20 Hen. 6. Abbot confesseth an Action , the Successor is bound : And further , it is within the Statute of 27 El. for fraudulent deeds ; and we need not to plead the covin ; for the Statute is generall , Fraudulent faits . and vouched Wimbish case in the Comentaries , and so the Replevin is maintainable .

And after at the motion of the Justices the Defendant agreed that the Plaintif should amend his Plea , and allege the Covin . Et adjornatur untill Michaelmas Term following , because there were so many Demurrers hanging to be argued in Trinity Term next . But afterwards judgement was given against the Rent charge .

12.

KIng Hen. 8. gave certain lands to Sir Edward Bainton , Trespass . Knight , and to the heirs males of his body engendred , who had issue Andrew and Edward , and dyed . Andrew afterwards convenanted with the Lord Admirall Thomas Seymer , that he would convey an Estate of those Lands to himself for life , the remainder to the Lord Seymer in Fee ; and in like manner the Lord Seymer convenanted to convey an Estate of other Lands to himself for life , the remainder to Andrew Bainton in Fee . Afterwards Andrew Bainton levyed a Fine , and executed the estate according to the covenant on his part . Afterwards the Lord Seymer , before performance of the covenant on his part , was attainted of High Treason , and all his Lands forfeited to King Edward the sixth , who dyed without issue , and the Lands descended to Queen Mary , to whom Andrew Bainton sued by Petition , and shewed how she had those Lands to the disinherison of him and his heirs : and Queen Mary , by her Letters Patents , ex certa scientia , & ex mer● motu , &c. granted to Bainton all those Lands and Tenements which he had covenanted to convey to the Lord Seymer , and all reversions thereof , in as ample manner as she had them ; Et ulterius ex uberiori gratia sua she granted all reversions , claims , and demands , qua ad manus suas devenerunt ratione , &c. aut in manibus suis existunt , aut existere deberent . Afterwards Andrew Bainton levyed a Fine of those Lands to one Segar in Fee , and dyed without issue ; then Edward Bainton entred , and Segar brought his Action of Trepass .

Puckering

It seemeth that the entry of Edward Bainton is congeable , and so the Action not maintainable . First let us see what passeth by this Grant of Queen Mary to Andrew Bainton ; and then whether a Fine levyed by Tenant in tayl , the reversion being in the Queen , be a bar to the tayl by the Statute of 4 Hen. 7. The first Fine as it is pleaded is not pleaded with proclamations , and therefore but a discontinuance , and remains but as at the Common Law . At the Common Law before the Statute of D●nis conditionalibus , a Fine levyed was a bar to all men ; for all Inheritances were Fee simples , then by that Statute it was ordained , Quod neque per factum , neque feofamentum , of the Tenant in tayl , the issue should be barred . After which Statute , as I intend , the Law was such , that when Tenant in tayl levied a Fine of such a thing as he might discontinue , and the Fine executed in possession , allthough the words of the Statute were Ipso jure sit nullus , yet the issue was put to his Formdone ; but if it were a Fine Executory , then by the death of the Tenant in tayl the issue was remitted , and the Fine voyd : But now by the Statute of 4 Hen. 7. the Law is made otherwise ; and for that here it is to be granted , that he cannot discontinue the estate tayl , because the reversion is in the King , as it was now lately adjudged in the Exchequer in the case of Gillebrand , ergo , here the estate doth not pass to the Feoffees by the first Fine , when he took an estate again to himself for life , the remainder to the Lord Seymer in Fee , but a Fee simple determinable , then when the Lord Seymer was attainted , Queen Mary had such an estate as the Lord Seymer had , which was a Fee determinable , and she had another Fee absolute in jure Coronae : After when he sued by Petition he did not shew to the Queen what estate he had , nor what estate the Queen had , but that it was to the disinherision of him and his heirs ; then the Queen grants reversionem inde adeo plene libere & integre as she had it , or as it came to her by the Act of Parliament . And I think when the Queen gives by generall words , she doth not give any special Prerogative : And for that 8 Hen. 4. fol. 2. A grant to the Bishop of London to have catalla , &c. and 9 Eliz. 268. in Dyer , the case of the Dutchy of Cornwall , & 8 Hen. 6. the King pardons all Felonies , this is no pardon of the Outlawry , and especially when the Queen hath two interests it shall be construed beneficially for the Queen , as 9 Edw. 4. Grant of an Office where the Grantee was no denison , see there Baggots Assise , and 38 Hen. 6. the King grants Land to J. S. for the life of himself and J. D. and after grants the reversion upon the life of one of them . And further the case in Dyer , where Queen Mary grants in Manerium de Bedminster in Com. Somerset , 5. 13 El. fol. 306. a. Then , Sir , the Patent is , that the Queen intendens dare congruum remedium in praemissis , &c. and when he iueth to the Queen by Petition , Petition certain all titles ought to be in the Petition . 3 Hen. 7. & 1 H. 7. a Latin case , the case of the corody , and this is in nature of a Petition , & therfore ought to be certain , then the Patent is , Et ulterius ex uberiori gratia sua concessit omnes reversiones quae ad manus suas devenerunt ratione actus Parliamenti , &c. aut in manibus suis existunt , vel existere deberent , &c. and they are not to be expounded so largely , as to make the reversion to pass ; for if those words , ratione , &c. were before admanus suas , &c. or after in manibus suis existunt , then it cannot be intended but the reversion shall not pass to Bainton . Now when in manibus suis existunt come after these words , References . ratione , &c. for references are to be intended according to the meaning of the parties , Devise . 29 lib. Ass . & 14 Eliz. Dyer . Devise of all Acres , except a Lease for 30 years : And those words , aut existere deberent , ought to have some relation , ergo , it ought to be intended , quae in manibus suis existunt ratione attincturae , &c. and this will not make any grant of the reversion . For the meaning of the Queen was , because Bainton had no recompense of the other Lands , No use . to give him these , for no use was in him by the covenant of Seymer , as it is agreed 1 Maria fol. 96. so nothing passed but that which was in the Queen by reason of the atteynder of Seymer . For the other matters ; I think that A. Baynton is not Tenant in tayl by the grant again ; but admit him so , yet he cannot discontinue , neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to such things which are touched by the Fine , & things which are not touched doe not pass , as Commons , Rents , Wayes , Claim per lessee pur●ans . alit . postea si soit en post . &c. Br. Fines , 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders case , 21 Eliz. that Lessee for yeares need not to make claim within five years , and vouched the opinion of Br. tit . Fines 121. accordingly , that the issue shall not be barred . And as the King is privileged , so are his possessions , allthough that afterwards they come into a subjects hands . Generall restraint . And where one hath a special Grant allthough a general Restraint come after , if he doe not speak specially of this , the Grant shall be good in many cases , as 19 Hen. 6. fol. 62. the Parson of Edingtons case , Br. Patents 16. and the case of the Abbot of Waltham , 21 Ed. 4. fol. 44. Br. tit . Exemption 9. & in 19 Hen. 8. it was doubted if the issue of a common person should be barred , ergo , the issue in tayl , the reversion being in the King , is not barred . And the Statute of 32 Hen. 8. is generall , as well for those which were of the gift of the King , as others ; and therefore afterwards there was another Statute made , which excepted those which were of the gift of the King , as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception , if it were a bar before by the Statute of 4 H. 7. And for authority I have a report delivered me by a Sage antient in the Law , that in 16 & 17 El. in Jacksons case , where Lands were given in tayl , the remainder to the King in fee , the Ten●nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court , Difference per enter rem . & reversion in le Roy. this was a bar , but the Court then sayd , that otherwise it should be if the reversion were in the King , as our case is , wherefore seeing there is neither discontinuance , nor bar in the case his entry is congeable , and the Action not maintainable . Walmisley to the contrary ; I will agree that it is not any discontinuance , yet he may admit him out of possession if he will , as in 18 Edw. 3. Where Tenant in tail , the Reversion in the King , makes a Lease for life , and hath two Daughters and died , and Lessee for life was impleaded , and upon his default the two daughters prayed to be received , and so they were ; and as me seemeth the Petition made by him to the Queen , shall not prejudice or hinder the Grant , ex mero motu● , and vouched 3 H. 7. fol. 6. the Priors case .

Note that Puckering then said privily to Shuttelworth , is not the book contrary to that which he hath vouched ? for he vouched the Book contrary to that which Puckering had done before .

Shuttelworth

No , Sir , but the record is contrary to the Book , quod nota , and when she granteth ex certa scientia , it shall be taken beneficial for the party , 1 H. 7. 13. omnia debita released to the Sherif , and 29 Ed. 3. the King seised the lands of a Prior alien , &c. Difference per enter interest & prerogative . Touts droits poss. per fine . Fine puis disseisin ou discont . alit de recovery . and there is a difference between the cases put , and this case ; for when the Queen makes a Grant , all matters of interests may pass by the words , but matters of prerogative , as in the cases put by my brother Puckering , cannot pass , for they are not within the words , but interests are . To that which hath been sayd , that he was not seised of any estate tayl , this is not any argument ; for if he had three rights , by the Fine all are gone and passed to the Conisee ; for if he be disseised , or discontinue , and then levy a Fine , this is a bar , but otherwise it is of a recovery ; Lessee pur●ans en reversion & poss. diversity . for that is no bar , but of an estate tayl . And as to the case of Saunders , that lessee for years need not to make claim , the case was not so , but the case was of a lease inreversion , and he had never entred , and therefore it was but as a common , or a rent ; but if it be a lease in possession , he is bound , as in Zouches case . Then because the King is in possession , it hath been sayd that it is no bar ; but this seemeth to be no reason ; for the Statute began with the King , and the Preamble seemeth to induce it ; and the third , saving of the Statute , is by force of any gift in tayl , so this is generall : And because he cannot discontinue , therefore can he not make a bar ? Non sequitur : For he cannot discontinue , and yet a Fine levyed is a good bar ; and the Statute of 32 Hen. 8. doth not impair this opinion , but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case , as it was agreed by all the Judges in Stowels case ; and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar , doth not extend but to the words going before , as in the case in Dyer , that a man had not done any act but that , &c. And the Queen in this case hath not any prejudice ; for she shall have the rent with the reversion : And as for Jacksons case ; that maketh for me ; for the question of the case there was , that the remainder shall be gone , and we ought not to take regard to that which is sayd indirectly in the case , but the point of the Judgement is the matter ; and for authority it is direct in Dyer , fol. 26. pl. 1. and therefore it seemeth that the entayl is barred ; and so the action maintainable .

Anderson

You have well argued , but for any thing that I see , none of you shall have the Land ; Grant . for the Queen is deceived in her grant , and therefore the Patent is voyd , and then it shall be seised into the Queens hands : And therefore you had best to be advised , and we will hear what can be sayd for this point at another day . And note , that it was sayd by the Justices , 3 Costs in forcible entry . that if a man recover in a Writ of forcible entry , upon the Statute of 8 Hen. 6. by confession , or by default , he shall recover his treble costs . 22 Hen. 6. 57.

13.

ONe Colgate brought a Replevin against Blyth . who avowed the taking , Replevin . and thereupon they were at Issue in Kent , and the Jury found a speciall Verdict . The case in effect was this ; Husband and Wife are seised of Lands in right of the Wife : And she by Indenture in her own name agrees that a Fine shall be levyed , and limits the uses by Indenture . After the Husband by another Indenture agrees that a Fine shall be levied , and limits other uses , and afterwards a Fine is levied by them both ; now whether the uses limited by the Husband shall bind the Land of the Wife in Perpetuity , The Jury prayed the advise of the Court , &c. For if they be good , they found for the Plantif , if not , then they found for the Defendant .

Shuttleworth Serjeant

It seemeth that Judgement shall be given for the Plantif ; For the use limited by the Husband , shall be a good limitation in Perpetuity , Rent ch. ou Lease per feme covert . and first the Wife only cannot limit any use , for her Acts are of no Validity . And therefore if a Wife grant a Rent charge , or make a Lease , and the Grantee enter , this is a Disseisin , & 43. Ed. 3. Deeds given by a Feme Covert are void . & 17. lib. Ass. a Wife levies a Fine Executory , Fine executory executed . per feme covert . sur grant & render , as a sole Woman , and after a Scire fac . Is brought to Execute this Fine , the Husband shall extort the Execution , and if it were a Fine Executed , then it is a Disseisin to the Husband . Vse quod . For an use is a Declaration how the Land shall continue in Perpetuity , and the Feoffees are nothing but Instruments , or Organs to convey the use , for the Land yields the use and not the Feoffees ; then when the Wife which is under the Power of her Husband , Limitation per infant quaere . limits an use , this is void , for I hold for Law , if an Infant limit uses , and after levy a Fine , and do not Reverse it during his Nonage , yet the limitation shall not bind him , and so of a man non compos mentis . Non compos mentis . And so it was ruled in the Court of Wards , where a naturall Ideot made a Declaration of uses , and levied a Fine accordingly , Ideot naturall . that yet it shall be to the use of himself . And then in our case the Limitation by the Wife cannot be good , but her Will depends upon the Will of her Husband , and the expressing of the use by the Husband shall be good . Estate , disseisin , & assumsit al feme . For if an Estate be made to a Wife , if the Husband seaven years after agree , it is good , and so it is of a Disseisin to a use , so ofan Assumpsit to the Wife , 27 Hen. 8. in Jordans case , & 1 Hen. 7. in Doves case , and in a Pra●cipe quod reddat , the default of the Wife shall be the default of the Husband , Default del feme . because she is Compellable to the Will of her Husband by the Intendment of the Law . 21. lib. Ass . A man seised of Land in Right of his Wife , makes a Feoffment in Fee , Livery per baron . and would have made Livery , but the Wife would not agree to the Livery , yet notwithstanding the contradiction of the Wife , the Livery was Adjuged good . & 33 Hen. 6. Husband and Wife are Plantifs in an Assise , Nonsuite del feme . and the Husband would Prosecute , but the Wife would be Nonsuite , the act of the Husband shall be accepted , and the act of the Wife rejected . So if the Husband will make an Attourny and the Wife wil dissavow him , Attourny . yet he shall be their Attourny . And as I think this Limitation by the Husband shall bind the Wife in perpetuity : Case per fine & indentare Difference . Juris clamat . For if the Husband make a Lease of the wifes Land for 100 years , the Wife may avoid it after his death ; but if after they both Levy a Fine , the Lease shall be good-for ever . And 11 Hen. 4. He in Reversion , and one which hath nothing , Levy a Fine , & quid juris clamat shall be brought against them both . And as I conceive it , it shall be counted her folly , Reentry per condition . that will take such a Husband as will Limit such uses . For if a Wife hath an Estate in Land , upon condition for not payment of Rent that the Feoffor shall reenter , if she take a Husband , which doth not pay the Rent , whereby the Feoffor or his Heires reenter , the Estate of the Wife is utterly defeated . And in 4 Ed. 2. A woman Tenant takes a Husband , Cessavit . who ceaseth by two yeares , whereby the Lord bringeth a Cessavit , and recovereth the Inheritance of the Wife , she shall be bound . And this appeareth in Fitzh . in Cui invita . 21. And it shall be so if the Wife hath but a Freehold , Wast . as it is in 3 Ed. 3. A woman Lessee takes a Husband , who maketh Wast , whereby the Land is recovered , and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife , this is onely the sale of the Husband ; but if after they Levy a Fine , this shall bind the Wife . And for express Authority it is the case in Dyer , Joynture . fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands , takes a Wife who hath a Jointure in his Land , and he makes a Limitation of uses , and after they both Levy a Fine , this shall be the Limitation by the Husband , because it shall be intended that the Wife consented , if it doth not appear to the contrary . Whereby the Declaration of the use here by the Husband , shall be good to bind the Wife , and therefore Judgement ought to be given for the Plantif . Fe●ner to the contrary , for here the Inheritance is in the Wife , and where the Husband limits further than he hath Authority , there the Law shall make a Declaration of the uses , for the Husband cannot Limit uses of that which he hath not , 21 Ed. 3. A man takes a Wife seised of Lands in Fee , Atteynder del feme . and before that the Husband was intitled to be Tenant by the Curtesie , the Wife was attainted of Treason , Homage . the Land shall be forfeit ; and 44 Ed. 3. He shall not make Homage , Conusans . before he be intitled to be Tenant by the Curtesie . 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife . Warranoy . And in this case the Conisee is in , in the per by the Wife , and Warranty made to the Husband shall inure to the Wife ; and 18 Ed. 3. A man seised of a Mannor in right of his Wife , Villain . to which there is a Villain regardant , the Villain Purchaseth Lands , the Husband shall be seised of the Perquisite in right of his Wife . And yet otherwise it is where a man is Lessee for years of a Mannor , to which , &c. For he shall be seised of the Perquisite in his own Right . Divorce . 12. lib. Ass . If he be Divorced , his Estate is gone . Lease & Rent ch. diversity . And I agree to the case , put by my Brother Shut . Where the Husband makes a Lease for years , and after he and his Wife levy a Fine , there the Lease shall be good , but if the Husband grant a Rent charge , and after he and his Wife Levy a Fine , I do not agree that this is good , for in the first case the Conisee found one which had an Interest in the Land , but not in the last . Then , Sir , here the Husband hath no power to Limit the use for the Land of his Wife to indure for ever . Feoffee al use . 28 Hen. 8. The Feoffece to use at the Common Law , Limits an use to a stranger , this Devesteth the first use , but if he limit is to cestui que use , then it is an ancient use , and not new . And so it is if Tenant for life , and he in Reversion levy a Fine , this sha●l be to the use of him in Reversion . 2 Loyntenants . And so if two Joyntenants be in Fee , and they limit severall uses , this shall be good according to their limitations for the Moities of either of them , and for no more . And if Husband and Wife levy a Fine to the use of the Husbands Sonne , Fits del baron : yet this is to the use of the Wife , but if he be the Wifes Sonne allso , then this is a good consideration , and the use shall be accordingly . And these cases I put to this intent , that when a man limits an use which is repugnant , Vse repugnant . or further than he hath Authority , the Law shall make a Declaration of the same use , for Bracton saith , Nemo potest ad alterum plus juris tranferre , quam ipse habet . And I take the Law , if Husband and Wife levy a Fine of the Lands of the Wife , and render back to the Wife in Tail , Fine levie de terres del feme O●e r●eder al feme en tail . and the Husband dye , and the Wife discontinue , that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case . And I agree to that which hath been said ▪ that the Wife only cannot limit uses ; but because the Jury hath found for ●he Defendant , if the limitation by the Husband be not good ( as I think it is not ) then Judgement shall be given for the Defendant . Concessum .

Adjornatur .

14

WIlliam Knight , Eject . firm . as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman , brought an Executione firme against W. Bre●h , of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell , the Defendant pleaded not guilty , and the Jury appeared at the Bar , and Evidence given on both sides ; And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant , Demurrer al evidence . and thereupon the Jury were discharged . And now Gawdy the Queens Serjeant came to the Bar , and demanded Judgement for the Plantif , The case . and rehersed the case in this sort . The Prior of St Johns of Jerusalem in England by deed Indented , A. 29 H. 8. Devised a Mesuage called the high House , 13 Cotages , one Stable , and 14 Gardens , for 59 yeares to one Corda●l , rendring 5. l. 6. s . 11. d. viz. For the 13 Cotages , iij. l. And for the high house xiiij . s . and for the Stable xx . s . and for , &c. And if it happen the Rent to be behind by three months , then the Prior to reenter ; after by an act of Parliament , An. 31. Hen. 8. the Priory was given to the King , and hee Vested in actuall Possession thereof , with all Conditions and Covenants &c. as the Lessor had . Afterwards the King 29. Sept. An. 36. by Letters Patents gave the St●ble to the same Cordall , and one H. Audley in Fee , and the Reversion of the other Parcells descended to the Queen which now is , whereupon 8 die Maii , An. 23. Issued a Commission out of the Exchequer to enquire , si praedict. Cordall & assign . sui perimplevissent & performassent omnes conventiones & promissiones , fact . & reservat . super praedict. Indent dimissionis & praemissis fact . &c. And the Commission was retourn'd in Michaelmas Term after , and it was found that the four usuall Terms in London are the Feasts of St. Michael , the Birth of our Lord , the Annunciation , and the Birth of St. John Baptist , for the Rent was to be paid , ad quatuor terminos Anni infra Civitatem London usuales . Vsuales terminos . And further by the same Iury , being a Iury of Middlesex , it was found that 37. s . 5. d. ob . Part and Parcell of the said Rent , were behind not paid , by three Months next after Michaelmas last past before the taking of the said Inquisition . Cordall made Burnell his Executor , and died . Burnell granted all the Term to Brech the Defendant . Afterwards the Queen 5 Augusts An. 23. ( which was before the return of the Inquisition ) and before any Entry or Seisure made by her , or by any other , to her use , granted the high House to Sir John Fortescue and Thekston in Fee , and they entred upon Berch and made the Lease to the Plantif for three yeares , &c. And first it is to be considered if they be severall Rents in this case or no ; Severall Rents . because he saith , viz. For the high house 14. s . &c. For that I take the Law to be very strong , Co●cessum per Fenner , Rodes . that they be severall Rents , for allthough that he saith first , requiring 5. l. 6. s . xj . d. which is an entire summe , yet when he saith afterwards , for the high House so much , and for the Stable so much , &c. This maketh a severance , and for that I will remember the case in Dyer , fo. 308 , Feoffment per deux . so I hold the Law , if a Feoffment be made by two , rendring xx . l. a year , viz. x. l. to the one , and x. l. to the other , these are severall Reservations ; but because I hold the Law clear in this point , I will speak no more to it . Another matter is when the Commission issueth to enquire of all Covenants and Promises conteined in the Indenture to be performed by Cordall , Conc. per Rodes . Lease sur condicion en un proviso . if the finding by the Jury be conteined within these words , Covenants and Promises , &c. And I think they be ; for if a man make a Lease to one for years , and if it happen the said Rent to be behind , that then it shall be lawfull to the Lessor to reenter , as I think this is a Proviso for the Rent ; so the case in 22 Hen. 6. A Lease was made for years , Rent an agreement . rendring Rent , the Lessee is bound to perform all covenants and agreements ; if he do not pay the rent the obligation is forfeit ; Co●cess. per Fenner . for the payment of the rent is an agreement : So in this case the proviso doth extend to the payment of the rent . And as for the exception which was taken , viz. That the Jury find that 37 s . of the rent was behind , and doe not say expresly , for the house which is now in question , I hold that a vain exception ; for when they have found that more was behind than that which was now in question , allthough that it be in generality , yet it is good for the particularity ; and for that matter I could remember many cases , but I will not doubt of a matter ( as I think ) without doubt . But for the condition , which is the great matter of the case , First , the condition is vested in the King , by the express words of the Statute and , Condition . as I think , grant of parcell shall not extinguish the whole condition . In the case of a common person the condition shall be utterly gone , and so are our Books ; otherwise , peradventure , I would doubt of that allso ; but because the Book is so , in Dyer 14 Eliz. fol. 309. I will speak no more of it ; but the case of the King differs from a common person ; Rent charge to the King . rent seck . for as he is the Head , and supreme Governour of the Commonwealth , so he is the superior in Prerogatives and Preheminences . 13 Ed. 3. & 14 Ed. 3. A rent charge granted to the King , he shall distrein for it in all the lands of the Grantor : and 8 Hen. 5. if a rent seck cometh to the King , he shall distrein for it , and yet it is called seck , because no distress is incident thereto : And there the principall case was of a Fieri facias . No demand by the King . & 2 Hen. 7. the King shall not demand his rent . But it hath been sayd , that because conditions go to the destruction and determination of estates , Cond . strictly taken . that therefore they shall be t●ken strictly ; to which I agree ; but not in the case of the King , as in Bro. Apportionment 23. & 168. and so are the presidents in the Exchequer , if a man be bound in a Statute Merchant , and after the Conisor enfeoffes the King of parcel of the land , Conisor enfeoffes le Roy. and enfeoffes a stranger of another parcell , and afterwards the Statute is forfeit to the King by atttainder , the King shall have execution against the other feoffee : And in many other cases the King is privileged , especially in things entire : For if there be two Coparceners , and one be in ward to the King , Entire presentation . he shall have the entire presentation of all . And in this case , I think , that before the condition shall be destroyed , that the Patent made to Cordall shall be voyd ; for it is not ex certa scientia , & mer● mot● , but it is generall , and it was not the intent of the King to take away the intire condition : And allthough the King grants the reversion , yet the condition which was once vested in the King , as I think , remains in him still ; for in 31 Edw. 3. an advowson descended to three persons , and the youngest is in ward to the King , and he granted it to Queen Philip his Wife , Advoson to 3 parceners . and she granted it over to the Earl of Arundell , who granted it to the eldest parcener , the Church became voyd , the King had the presentation ; for when the King was possessed of the wardship of the youngest , he was intitled to present for all ; and when he granted the ward over , this did not devest the title of the two eldest which was vested in him before : and 37 Hen. 6. the Grant of the King upon a false suggestion is voyd ; False suggestion and in Littleton , he shall have account against Executors ; and yet the Law is clear , Account . that an Action of Account will not lie against Executors ; & so for all those Reasons Judgment shall be given for the Plaintif . Several reser●ations . Fenner to the contrary : And first , I agree that they are severall reservations ; and so is the case which hath been remembred in 8 Ed. 3. A Lease was made of eight Acres of land , reserving eight shillings of rent , viz. for every Acre 12 d. thi● is severall ; and to that which hath been sayd , that the condition is a proviso , I deny that ; for a proviso , Provisio quid sit as me seemeth , either is in the affirmative , that a thing shall be done ; or in the negative , that it shall not be done ; but here it is neither directly affirmative , nor negative , and therefore they have found it without commission ; Agreement . but I confess that agreement extends to rent , 22 Hen. 6. & 14 Hen. 8. then the Jury which was of Mtdlesex have found the four usuall Feasts in London , viz. St Johns , &c. and this as it seemeth they cannot doe , because it is a thing in another County ; especially they being but an Inquest of Office . Further , they have found that 37 s . was behind at one Feast , and this is impossible ; for then the entire rent should amount to 7 l. And further , the Lessors have purchased the reversion , before the return of the Inquisition and Commission , and then the Queen cannot be intitled , because she hath not the Freehold ; for it hath been adjudged here , that if a man fell his lands , and afterwards makes livery thereof , and after inrolls the sale , this shall not have relation to the date of the deed , because it takes effect by the livery which was before the inrolment : And 8. Edw. 3. Feoffment puis atteynder . A man attainted of Treason makes a feoffment of his land after he is restored , yet he shall not have the land ; yet if he had not made the feoffment , he should have been restored to the land with the mean profits . Then if the King grants the reversion , if he shall have the condition remaining , and I think not ; for the King hath it by express words of the Statute , as the Prior had it ; and if the Prior had granted parcell of the reversion , De percell de Reversion . the entire condition had been gone , and the King shall be in the same case ; for Cessavit is given by the Statute of Westminster 2. cap. 21. eodem modo as in the Statute of Gloucester , cap. 4. This doth not ly of an estate tayl , no more than a Cessavit by the Statute of Glouc. 8 Ed. 2. And so I think Judgement shall be given for the Defendant .

De Term. Trinitat . Anno xxviij . Eliz. Reg.
1. ROd●s Justice

Judgement shall be given for the Plaintif . First , I agree that they are severall rents ; and yet this question doth not goe to the overthrow of the Action ; in proof whereof both great reason and authority is copious : For if the Lessor had entred into parcel , this had not suspended the entire rent ; or if the reversion of parcel thereof were granted , this shall carry no more than that which is granted ; ( & so it was held by the Justices ) when it was granted to Cordall . Parcel entred into . And 2 H●n. 6. if I reserve an entire rent , and the Lessee will pay but parcell , &c. & 17 Ed. 3. fol. 52. by Sharde . & 11 Ed. 3. lib. Ass . If I make a Lease of two Acres , reserving for the one Acre x. s . to me and to mine heirs ; and for the other Acre x. s . generally : And Dyer , fol. 308. b. & Lib. Ass . pl. 23. If three Coparceners be , and rent be reserved for equality of partition , but one Scire fac . shall be brought ; for it is brought but upon one record ; 1. Scire fac. and Littleton pl. 316. but one action of debt for Tenants in common , but severall Avowries ; so I hold that they be severall rents in this case , and yet but one condition : And for that let us see if by grant of parcel , the entire condition be gone . In the case of a common person , it is all gone , as it was adjudged here in Hill. last , where a man makes a Lease for years , reserving xx l. for rent , Sum in gross , and rent reserved upon cond. and allso a sum in gross of xxvl . was to be paid to the same Lessor , upon condition , if the rent , or sum in gross were behind , then a re-entry to be made . Afterwards the Lessor took an Estate back again of parcell of the term , the sum in gross was not payd , and it was adjudged that he shall not take advantage by the condition ; for when he took an estate back again , the rent was suspended , and then for the sum in gross he shall not re-enter , because the condition was entire ; Cond . entire . but all though that the case of a common person be so , yet the Princses case differs ; for she shall have her Prerogative ; and for the Preheminence which the Queen shall have , I referre you to the argument of Iustice Weston in the case of the Lord Barkley : Coment . And that the Queen shall have her Prerogative in a condition , I will remember the case of the Abesse of Sion , & 38 Hen. 6. & 21 Hen. 7. the King may make a feoffment in fee upon condition that the Feoffee shall not alien , Feoffment in fee upon cond. reservation . and 2 Hen. 7. & 35 H. 6. he may reserve a rent to a stranger ; and 21 Eliz. the Queen grants her debt to another , and he in reasonable time will not prosecute , the Queen may take it again , gain , Gr●●t of a debt and may sue : And allso Cranmers case , where King Hen. 8. gave lands to the use of him for life , and after to the use of his Executors for twenty yeares , Rent charge after atteynder . after he was attainted , the Queen shall have this rent as a rent charge , and yet she had the reversion before . And in reason it seemeth the Queen may apportion her condition ; for if this condition by the grant to Cordall shall be avoyded , four principles shall be overthrown ; for it is a principle That the King shall not be deceived in his grant . 2. Item , that when concourse and equality of titles come together , 4 Principles for the King . that King shall be preferred . 3. Item , in entire things he shall have all . 4. Item , that his grant shall not extend to severall intents or purposes : For the first , if the King be deceived in the operation of the Law , his grant shall be voyd , as where he grants to a man and his heirs males , Release several . this shall be voyd . 6 Hen. 7. release of all demands . 11 H. 7. 10. release of all action , and yet in those cases there is matter of interest and not prerogative , and yet nothlng passeth if she be deceived . For ▪ the concourse of title , 4 Ed. 6. a man makes a feoffment in fee , upon condition that the feoffee shall not commit treason , after the feoffee commits treason , the King shall have the land , Treason . & 44 Ed. 3. per Thorp , tenant of the King , &c. he shall have the rent again : And for the case of the Lady Hales in the Comentaries , where lands descend to a villain . For entireties , 44 Ed. 3. the King and others give lands to a Monastery , the King shall be sole Founder , The. King sole founder . 19 Hen. 6. he shall have the intire obligation where the one obligee is outlawed : Obligation . and in 11 Hen. 7. & 2 R. 3. two are indebted to the King , Release to the oblige . and he releaseth to one of them , then his grant shall not inure to two purposes , Bagg●ts Ass . And so if the King give lands to his villain , this shall be no enfranchisment to him . So for all those reasons I hold the condition may ▪ well enough be apportioned . Vill●in . Then for the third matter , when the commission issueth to enquire of all covenants and provisoes , if the condition be within those words ; and for that point I think that the Plaintif shall recover ; for allthough it be not within the words , yet the commission is generall after ; but yet I hold that is within the words , 21 Hen. 7. fol. 37. per Fineux . If I let land for term of years , rendring , &c. I shall have debt or covenant at my election : and Dokerayes case , 27 Hen. 8. Proviso is a condition , and so it was held here in the case of the Lord Cromwell and Andrews . Then when the Jury found that 37 s . 5 d. ob . were behind , if this office be good or no ? and in my conscience that which is good , shall be taken for the Queen , and the rest shall be voyd ; for offices between party and party may be voyd for uncertainty , as the case is in Dyer , 3 & 4 Eliz. Office in Beverley , &c. fol. 209. Or they may be avoyded for falsity , Proviso is a condition . 1 M. Culpepper fol. 100. b. Or for insufficiency , as in my Lord of Leicesters case in the Comentaries , Offices voyd . but this is only for the Queen , and therefore shall be taken favourably , and therefore I will ●ompare it to a verdict where surplusage is found , 3 Hen. 6. Plene administravit , Superplusage in a ●erdict . and the Jury found that they have more than Assets . 47 Ed. 3. the Jury found that he which prayed to be received had nothing in the land , where the issue was joyned , whether the particular tenant had a fee. And 39 Hen. 6. 9. surplusage in an Inquisition . & 5 Hen. 5. fol. 2. Resceit . Cobhams case , where they found a Divorce in Kent , &c. Inquisition . Allso , Sir , Offices may be good for that which is certain and voyd , for that which is uncertain , and good for the King , and not for a subject , Strenes case , in 15 Edw. 4. & 14 El. Office found after the death of the tenant by the curtefie , & 29 H. 8. Br. tit . Office devant Escheetr , 58. Dyer . And if a commission be awarded , and the lury say , that d● quo tenetur ignorant , then a melius inquirend . shall goe forth ▪ but if they say , per quae servicia ignorant , then nothing shall be done , but it shall be intended Knights service , and so is the experience of the Exchequer . And here they have found that more was behind , ergo , they have found that so much was behind , Quia omne majus continet in se minus . Then if this be within the Statute of 18 H. 6. c. 16. And it seemeth that it is not ; for that Statute as I think is but an exposition of 8 H. 6. and that speaketh of Leases by Treasurer and Chancellor , and for that see the case of the Duke of Suffolk 3 & 4 Ph. & Mar. Dyer , fol. 145. And so I think for all these causes judgement shall be given for the Plaintif . Peryam Justice to the contrary . For the first matter , I agree that they be several rents for the viz. here doth expound the matter , and when the viz. may stand with the premises , Videlice● . then it is good , and otherwise not , and for that the case in 17 lib. Ass . which hath been vouched , Difference between an annuity and a rent charge . and disseisin of one is not disseisin of the other rent : And there is a plain difference between an annuity and a rent service , because for an annuity it is the book in 29 Edw. 3. fol. 51. & 29. lib. Ass. 3 Parceners , and rent reserved for equality of partition , &c. vouched by Rodes ; but if I grant you xl s . out of my Mannor , viz. x s . out of parcel in the tenure of A. and x s . out of another parcell , Rent limited out of an intire mannor . this is voyd ; for first there was a grant out of the entire Mannor , 9 lib. Ass . yet this is one lease , & but one reversion , & but one condition , & the condition is entire , and that is wel proved by the express words of the condition ( totaliter reentrare ) and this proved by Winters case in 14 El. and Rawlins case adjudged , Totaliter . where the sum in gross was behind , Dyer . the case vouched by Rodes , Cond . is undevidable . 33 Hen. 8. in a common persons case it cannot be divided , neither by title , nor by the act of the party . If surrender be made of parcell , Surrender of parcel . the rent shall be apportioned , but the condition is utterly gone : Dyer . But peradventure it will be objected ▪ that in 17 Eliz. the condition there was divided , where he aliened parcell with the consent of the Lessor , and the other parcell without consent , and in that the Lessor entred for the condition broken ; Cond , ●pportioned . I grant this case , and yet this doth not prove that a condition may be apportioned ; for the reason in that case is , when he made such a condition , the condition extended but to that which he aliened without license , and to no more , and so I hold the Law where a lease is made of twenty Acres , with condition , Eviction . &c. and parcell is evicted . And warranty at the Common Law cannot be divided ; for if two Coparceners were who had warranty to detain , Garr●nty . and they made partition , the one could not vouch without the other , V●u●her . and therefore she should pray in ayd , and then both to vouch Paramount , and so the Statute which giveth p●●tition between Joyntenants saveth their warranty , otherwise it were gone . And so if two Joyntenants make a lease for years , reserving rent upon condition , Partition of a 〈◊〉 and after they make partition ( as they well may , having the reversion and the freehold in them ) I hold the Law clearly , that the one nor the other shall enter for the condition broken : Then in the case of the King , I hold the Law that it shall not be apportioned ; and yet I agree that the King shall have his Pre●●gatives for his present lands and goods , Prerogative . but he shall never have Prerogative when wrong shall be done to any man . Rent charge app●rtioned . If the King have a Rent chage , and after Purchase parcell of the Land charged , it shall be apportioned , 21 Hen. 7. he may well condition that his Feoffee shall not alien ; for in those cases there is no prejudice to others , but all those cases run upon other grounds . And in Bartlets case , the King is bound by the Statute of donis conditionalibus , for it was a wrong that the Donee at the Common Law should alien the inheritance . And this case as me seemeth is not within the concourse of Title , C●●●●urse of ●itle . as my Brother Rodes hath argued , neither is the King deceived as hath been said . For when the King enters , he shall be seised in pristino statu suo , Dyer . and this is a principall reason in Winters case ; & 16 Eliz. a person makes a Lease reserving Rent , upon condition , that if it be behind & lawfully demanded , that then he shall re-en●er , De●and . after the reversion cometh to the King , he shall not ma●● demand , I agree well thereto ; the reason is , because the demand is a thing which goeth to the person of the King . Then , Sir , the Statute is , that the King shall have it as the Prior had it , which is meant of the estate and not of the person of the King : Then , Sir , it is impossible that the King should have the land as the Prior had it , ut in pristino statu suo , if he doe not utterly defeat the grant made to Cordall ; then here the condition is gone , The Kings grant against the Law is voyd . but not by any grant as it hath been moved , but by the operation of the Law : And 49 Ed. 3. the King grants that lands shall be devisable , it is voyd , because it is against the Law ; and it is against the Law , that a condition should be apportioned , ergo , the King shall not apportion it . But admit this question against me , then let us see what title the Queen hath by this commission . First , the commission is to enquire if Cordall his Assigns and Farmers have performed all covenants and provisoes contained in the Indenture ; Proviso . as for that I hold the law clear that they have au●hority , by those words , to enquire of the condicion , but for other reasons I think the Commission void . For the Commission is to enquire per bonos & legales homines de Com. nostre M●dd . and it doth not appear here that the Jurors were of Middlesex , and therefore the inquisition is not good . Further , Severall & spespecial finding . they have found a thing in another County , and this they cannot find , but I hold that the Jury in one County , may find the generall issue in another County . Allso I hold that when the party cannot plead that which is the great matter of the Action , they may find it in an another County because the party cannot pleade it , as in 9 Ed. 2. in debt against Executors , &c. And for these reasons I hold judgement is to be given for the Defendant .

2.

RIchard Heydon , Misre-cital in Letters , Patentt . Gentleman , demands against Benjamin Ibgrave , Gentleman , the third part of 40. Acres of Land with the appurtenances , in three parts to be divided , in Sarrot in the County of Hartford , as his right and Inheritance , and to hold of our Lady the Queen in Capite , and Laies the Esples in the time of Ed. the sixth , and that such is his Right he offers himself , &c. And the aforesaid Benjamin put himself upon the great Assise whether it be his right or no , &c. And now the Assise made by the four Knights appeared at the Bar , Challenge . Snagg Serjeant for the Plantif , we challenge A. B. for that , &c. Nelson chief Prothonotary & all the Court , you cannot challenge , because it was made by the four Knights , and the Assise is now at the Bar.

Snagg

well Sir , then we will give evidence .

Anderson

for whom are you ?

Snagg

for the Plantif .

Anderson

then you shall not give evidence first , for the Tenant affirms that he hath more right , Evidence . and that ought to be first proved .

Rodes and all the Court

So it was here rul'd five years ago in Nowells case , and thereupon Puckering gave evidence for the Tenant , that it was Parcell of the Mannor of Sarrot , which Mannor the Tenant hath , and this was granted by the Counsell of the Defendant . And in conclusion upon the evidence given , the ▪ Defendant would have had the Tenant ▪ to have Demurred upon his evidence , and discharge the Inquest , but the Tenant would not ; in effect this was the doubt . K. H. 8. by his Letters Patents , gave among other things , all the Lands which were in the Tenure of one Whyton , and demised to Johnson in the Parish of Watford . And it was true that the Lands were in the Tenure of Whyton , but not demised to Johnson ▪ Misre-citall . and allso they were not in the Parish of Watford ; if this shall be helped by the Statute of Misrecitall , and not Recitall , is the question , and the party did not aver that the intent of the King was to pass this Parcell now in question to the Patentee , and the opinion of all the Court , was , that it is not within the Statute clearly , but they said to the Jury , that they may find all this matter if they will , or otherwise say what they will . And thereupon after they were agreed , they came again to the Bar , and then all the Court told them , that yet they might give a speciall Verdict . The Jury said we are all agreed that the Tenant hath more right to hold these Lands as he now holdeth , then the Demandant as he demands them .

Anderson

then are you discharged , and as I think you have done well .

So they gave their Verdict according to the opinion of the Court for the Statute of Misrecitall , and yet Peryam was well content to have them give a speciall Verdict , and the Demandant was demanded , who appeared , and thereupon Judgement finall was given for ever against him .

3.

ONe Tirrell brought an Action of Debt against a Hundred in Essex , H●e and Cry . for that he was robbed and made hue and cry according to the Statute of Winchester , the. Defendant pleaded that he was not robbed , and a full Jury appeared at this day , and upon the giving of the evidence Shuttleworth moved for the Defendant , that it appeared by the Plantifs own evidence that the money was my Lady Riches , and that the Plantif was but her receiver , and then as he thought the Action should have been brought by the Lady , and not by Tirrell .

Anderson

in my opinion without question the Action is well brought , for when he had the money , and was robbed ; the money was taken from him , Receiver . and he was her receiver , and Vouched a case in 3 Ed. 3. where a man takes my Corn from me , and after , &c. the King shall have it , and so of money , for it cannot be known from other money . Rodes to the same intent , for if my servant be possessed of my goods , and be thereof robbed , Appeal . he shall have an appeal .

Windham

I have seen that a man sent his servant to London with money , and he was robbed coming from thence , and the opinion of the Court was , that the servant should have an Action against the Hundred .

Peryam

So I think clearly ,

whereby the Jury found for the Plantif .

4.

THe Quare impedit by Moor was moved again , and the opinion of the Court was , Quare impedit . that the Bishop , as well for his contempt in not retournig the first Writ , as for his evill retourn made upon the second Writ ( for it appeared that he which he said was inducted of the presentation of the Queen , was Defendant in this Action ) should be amerced , and so he was amerced at x. l. and a new ▪ Writ awarded to admit the Clerk of Moor.

5.

AN Action upon the case was brought in the King Benchs for saying that the Plantif was a forging knave , Slander . and a Verdict given for Plaintif . And it was spoken in arrest of Judgement , Gawdy Justice inchit capiat per billam , for the Action is not maintenable .

6.

WAlmysley came to the Bar & shewed how Lennard Cust●s b●evium , had brought an Action of Trespass against another , the Defendant justified , by reason that Sir Christo . Heydon was seised in Fee , and infeoffed him , Feoffment . & gave a colour to the Plaintif . The Plaintif replied that Sir Christofer Heydon died seised , and it descended to his Son , who enfeoffed the Plaintif . Absque hoc , that C. H. enfeoffed the Defendant . And the Iury found a speciall Verdict , viz. That C. H. was seised and made a lease for years to the Defendant , and afterwards by his Deed conteyning dedi , concessi , & confirmavi , gave it to the Defendant and his Heirs with Letters of Attorny to make livery ; if this were a Feoffment or but a confimation was the doubt . Feoffment .

Walmysley

It is but a confirmation when it is by deed and hath words of confimation .

Anderson

Then by your reason , he in Reversion cannot enfeoffee his Lessee for years by deed , as he may without deed , but I think the Lessee is at liberty to take it as a Feoffment , or as a confirmation .

Walmysley

Sir I think that when the Lessee takes the deed , immediately this is a declaration of his meaning , to have it as a confirmation , by your favour .

Anderson

And by your favour , when the Lessor sheweth his meaning , to make livery , and the Lessee his meaning , to accept livery , and livery is made accordingly , is not this an express declaration that he will take it by the livery ? and shall this livery be idle ? no Sir , and see Bracebridges case in the Commentaries , where Tenant in tail makes a bargain and sale , and makes livery , and within six months Enrolls it , this is adjudged a discontinuance , and yet the bargain and sale is not any discontinuance , and if you well mark the cases you shall find but little difference ▪ Disseisin .

Walmysley

If Tenant in tail bee disseised , and it is agreed between the disseisor and the disseisie , that the disseisee shall make a Feoffment to the disseisor , and make such a deed as this , the disseisor shall not have election to take it as a Feoffment . Anderson & tota Curia , the cases differ , for thedisseisee hath not any power to make a Feoffment .

Walmysley

Well , will you give us a day to argue this matter , and the other .

Feryam

For the other if you will .

Walmysley

No Sir , if this point be no hotter than the other .

Peryam

The other is cold enough .

And so the Court held the Feoffment good clearly . And they laughed upon Lennard , because he had profited so well by his action .

7.

LAnds were given by fine , to one Jones and his Wife , and to the Heirs of Jones upon his Wife ingendred , the Remainder to one Owen in Fee . Scire facias . Afterwards Jones only without his Wife suffers a Common Recovery with Voucher , Recovery . the Wife dies , Jones dies without Issue , and Owen brought a Scire facias to execute this fine , and the Tenant pleaded the Recovery in Bar.

Snagg

the Recovery is good to Bar Owen : For if there be a sufficient Tenant , against whom the Praecipe is brought , then is it good . And as I think here the Husband is a sufficient Tenant . The case in 16 Hen. 6. in a purchase to the Husband and Wife , during the Coverture there are no Moities , and the case in 23 Hen. 8. Meuies . Recovery against Husband and Wife where the Wife is Tenant in tail , and they Vouch over , it shall be a Bar to the intail , vide Bro. titulo Recoverie in value . 27. and yet the Husband had nothing but in right of his Wife , so in this case .

Walmysley

to the contrary . For if the recompence here doth not go to the Estate of him which brought the Scire facias , then it shall be no Bar , & in 9 Edw. 4. an Action was brought against two Executors , when there were four , and a Recovery had against them two , the other shall falsifie , for that they had equall Authority , Falsifying of recovery per executors . and here the Husband and Wife have equall Authority , & 10 Ed. 4. the Wife shall have an Assise , if a Recovery be had only against the Husband , & 2 Ed. 4. he in Reversion prayed to be received , Resceit per def. de un Joynt . he shall plead that the Tenant held joyntly with another , and the reason is , if he should be received only upon the default of one of them , then he cannot have his recompence over Paramount , Grant de reversion de un Joynt . & 18 Hen. 6. 1. & 13 Edw. 3. Husband and Wife Ioyntenants for life , and he in Reversion will grant the Reversion of the Husband only , this is void , for he hath not any such Reversion . And here the Estate of Husband and Wife and he in Remainder is all but one , and then the Estate of the Husband only , is not the same Estate , and the case in 23 Hen 8. vouched by Snagg , seemeth to make for me , for the reason wherefore he shall be barred is , because the recompence goeth according to the Estate which the Wife had , and then it is reason that he shall be barred , but in the same case , if the Husband survive , it is said in the same Book , that the Issue shall be at large , for that the recompence goeth to the Survivor , but let it be as it may be , the reason of the case is for the recompence . And I think , Com. 5. 14. that this case here will be proved by Snowes case in the Commentaries ▪ Recovery had against Husband and Wife , where the Wife had nothing , all the recompence shall be to the Husband . 10 Edw. 3. Dower brought against husband and wife , Dower : and the husband vouch to warranty , &c. & 38 Ed. 3. Praecipe against Tenant in tayl , & 8 Eliz. in Dyer , fol. 252. where the husband was tenant for life , the remainder to the wife in tayl , the remainder in fee to a stranger , and a recovery suffered ; and about 15 El. was a case in the Exchequer , where lands were given to Norrice and his wife , and to the heirs of the body of Norrice , Remainder . the remainder in fee to a stranger , and a recovery suffered against Norrice , he in remainder was attainted , and Norrice and his wife were dead before , and by the opinion of Sanders then chief Baron , Recompences . the moity shall be forfeit by the atteynder : And recompences are but as exchanges ; Exchange executed . and Bracton calleth them Excambia ; and I think if an exchange be executed in the one part , and not in the other , it is not good , and so I think the recovery shall be no bar .

8.

IN a Writ of Dower brought , Joynture . Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture , upon condition that she should make her election with in three moneths after his death , and she made her election to have the Joynture , and now she had brought her Writ of Dower against the heir by covin , Covin . and he hath confessed the Action , to the intent that Thynne who had a lease for yeares of the first husband should lose his term , and prayed ayd of the Court.

Fleetwood for the demandant

There is not any such Joynture as you speak of ; for that which was given to the wife was but a lease for yeares , and that ( you know ) cannot bar her of her Dower .

Rodes Justice ▪

If the case be so , then is there no cause to bar her of her Dower ; for a lease for years cannot be a Joynture . Ease for years .

Quod Peryam concessit clearly , and sayd that the Joynture ought to be a freehold at the least , or otherwise it is no bar to the Dower , whereby Gawdy moved another matter .

De Term. Mic. An. Reg. Eliz. xxviij . & xxix .
1.

AN Action upon the case was brought for calling the Plaintif false perjured Knave ; Jeofayle . the Defendant justified , because the Plaintif had sworn in the Exchequer that the Defendant had refused to pay the Subside , where in truth he had notso done . The Plaintif replyed , de injuri● sua propria absque tali causa , the Action was brought in London , and there it was tryed for the Plaintif , and great damage found ; and this matter was alleged in Arrest of Iudgement because the triall was in London , whereas the Perjury was supposed to be made in the Exchequer : Triall locall . The Court said , that the matter is tryable in both Counties ; and it was answered again , London cannot joyn . that London cannot joyn with any other County .

Anderson

Then is your Issue vitious ; for when an Issue is tryable by two Counties , if they cannot joyn , then ought you to make such an Issue as may be tryed by one onely . And by all the Court , this ought to have been tryed in Middlesex , for there the Perjury is supposed to be committed , whereupon the Issue is taken .

Peryam to the Serjeant of the Plaintif

See if you be not ayded by the Statute of Jeofayles .

Walmisley

It hath been allwayes taken , that if the triall be evill , it is not ayded by the Statute of Jeofayles .

Peryam

Then are ye without remedy ; for you shall have no judgement .

Et sic fuit opinio Curiae .

2.

GAwdy came to the Bar , Joyntenancy . and shewed how a man devised his lands to his two Sons , Partition . and their heirs , and they had made partition by word without writing : 18 Eliz. 350. Tota Cur●a , What question is there in it ? the partition is naught without doubt .

Rodes

It hath been adjudged here , that if the partition be of an estate of inheritance , it is not good by paroll . Joyntenant by devise .

Gawdy

But I think that when a man deviseth his lands to his eldest Son , and his youngest Son , in my opinion they are Tenants in common , because the eldest son shall take it by descent .

Peryam

But I think not so ; for if a man make a gift in tayl to his eldest son , Devise in tayl of an heir . the remainder in fee , &c. Is not he in by the devise ?

Gawdy

This is another case .

Peryam

In my case he shall take by the devise for the benefit of the issues , and in your case he shall it take by the devise for the benefit of the survivor , and therefore I think that they are Joyntenants .

Anderson

There is but small doubt but that they shall be Joyntenants ; and there is authority for the case :

And this at length was the opinion of the whole Court .

3.

IN an Action of Debt for Rent , Apportionment . it was sayd by Anderson , If a man make a lease of years reserving rent , and the Lessee for years make a feoffment in fee of parcell of the land , the rent shall be apportioned .

4.

FEnner came to the Bar , Alien . and sayd to Anderson , that in his absence he had moved this case . An Alien born purchaseth Lands , and before office found , the Queen by her Letters Patents maketh him a denison , and confirms his estate , the question is , who shall have the lands ?

Anderson

The question is , if the Queen shall have the lands of an Alien before office found ?

Fenner

True , it is , my Lord .

Anderson

I think they are not in the Queen before office , and then the confirmation is good .

Rodes

It seemeth that he shall take it onely to the use of the Queen , Neis purchase lands . and then the confirmation is voyd .

Fenner

In 33 lib. Ass . is this case ; If the Neise of the King purchase lands , and takes a husband who hath● issue by her , and she dye , he shall be tenant by the curtesie .

Anderson and all the Court denied that case of the Neise .

Fenner

I have heard lately in the Exchequer , that an English man and an alien purchased lands joyntly , Joynt purchase by an alien . and the alien dyed , it was adjudged that the other should have all by surviving .

Anderson , and all the Court

Surely this cannot be Law ; for it is a maxim , Nullum tempus occurrit Regi .

Peryam

If the Freehold be in the Alien untill office found , Trespass . if a trespass be committed , who shall punish it ? for he shall have no Action .

Fenner

That is true ; and so it is of a Monk if he be a disseisor , Monk . and yet the freehold is in him .

Shuttelworth

And so it is of a person atteinted , Atteynted person . and yet before office found the freehold is not in the Queen .

Rodes

It is , Dyer 11 Eliz. fol. 283. Feoffment to use . If a man enfeoffee an Alien and a Denison to his use , that the Queen shall have the moity , whereby it seemeth that the confirment is voyd .

Anderson

I hold this rule for certain , that in every feoffment there is feoffer and feoffee ; and if there be a feoffee , he must of necessity take , wher by I think the confirmation is good .

Rodes

Is this case hanging in this Court .

Fenner

No , Sir .

Windham

Wherefore then doe you move it in this Court ?

And afterwards the question being demanded of Shuttelworth by divers Barristers , he made answer ; Truly in my opinion it is not in the Queen before office found , and therefore I think the confirmation is good . Quaere .

5.

AN Attorney of the Common Pleas brought an action of debt against another , Misdemeaner . whereupon he was arrested in the Country , and when he came to London , the Attorney caused him to be arrested in London for the same debt , and this was shewed to the Court , and the Attorney called , to whom Anderson said , if a man be sued here for a debt , and after be arrested in another Court for the same debt , the penaltie is fine and imprisonment , and that is both the law and the custom of this Court , wherefore then have you done this ? surely we will send you to the Fleet for your labour .

Attorney

I beseech you , my Lord , consider my estate .

Anderson

I have well considered it , and that is , that you shall goe to the Fleet , and therfore Warden of the Fleet take him to you .

Windham

We will punish such gross faults in you more severely than in others , because you are an Attorney here , and your fault is so much the greater , by how much you are skilful in the law and customs of this Court , wherefore you shall goe to the Fleet.

De Term. Mic. Anno xxix . Eliz.
1.

IN the case of Sellenger , Annuity . it was said by Anderson , and agreed by the Court , that if a man grant an Annuity out of Land , and hath nothing in the Land , that yet this shall be good to charge the Grantor in a Writ of Annuity ; and in the same case it was allso agreed by the Court , that if a man grant an Annuity to a Woman , who takes a Husband , and after Arrerages do incur , and the Wife dye , so that the Annuity is determined , that the Husband shall have an Action of debt for the Arrerages , by the Common Law .

Shuttleworth

This is not remedied by the Statute of Arrerages of Rents , and then at the Common Law it is but a thing in Action .

Peryam

An Annuity is more than a thing in Action .

Windham

He may grant it over , and so the opinion of the whole Court was , that debt was maintenable .

2.

AT the same day it was said by Anderson , Executor . and not gainsaid , that if an Executor plead ne unque administer come executor , yet afterwards he may take the Administration upon him , and well enough be Executor .

3.

IN a Replevin by Bosse against Hawtrey , Triall by provise . they were at Issne , Termino Mic. An. 28. & 29. And Bosse had a venire facias in Termino Mic. retournable in Termino Hill . and after in Termino Hill . took an alias retournable in Termino Pasch . and so awarded it in the Roll of Mic. to the intent that the matter should not be tried at the Assises in Kent , and thereupon Hawtrey which was Avowant , moved the Court and prayed expedition , whereupon the Court caused the Roll to be brought in , and notwithstanding that it was a Roll of Mic. Term , yet because it was awarded the same Term , they mended the Roll , and awarded the alias retournable the same Term of Hill .

4.

WYlgus brought an Action of Trespass against Welche quare clausum fregit . Travers . Welche said , Trin. 28. Eliz. rot. 537. that I. W. was seised and enfeoffed May , and so conveyed a title to himself , the Plantif replyed that A. his Auncestor was seised , and so the Land descended to him , Absque hoc that I. W. was seised , and upon this Issue the Court was moved .

Anderson

the seisin is not traversable , but where it is materiall , and therefore clearly the Traverse is not good ;

but Fenner cited a book in 2 ▪ Edw. 6. that the Travers shall be good , but he stood not much upon it . Snagg 27 Hen. 8. 4. Bro. pleadings 1. is contrary , but the opinion of all the Court clearly was that the Travers is not good .

5.

A Man makes a Feoffment in Fee to the use of himself and his Wife , Wast . & alterius eorum diutius viventis absque impeticione vasti durantibus vitis ipsorum , the Husband dies , if the Wife shall hold without impeachment of wast or no was moved by the Serjeants . And the opinion of all the Court was , that she shall not be impeached of Wast , because of the severance , but otherwise if it had been Joyntly .

6.

FUlwood brought an action upon the case against Fulwood , Action upon 〈◊〉 case . and declared that whereas a motion of mariage was between the Defendant and a Widow in London , in consideration that the Plaintif should give his assent , that the Father of those Fulwoods should convey to the Defendant all his Lands and Chattells , the Defendant promised to pay the Plaintif such a sum of money as their Father should assign ▪ Ac licet that the Plaintif had given his consent , and that their said Father had assigned him to pay 37. l. yet the Defendant , &c. and he pleaded non assumpsit , and it was found for the Plaintif , and now Fenner spoke in arrest of Judgement for four causes . First there is no consideration , for the declaration is assensum suum daret , so that he is at liberty to give his assent or no : and so no perfect consideration . The second is ac licet the Plaintif , &c. and doth not say in facto that he gave his assent . The third is , that he doth not say that he gave his assent when the Father had those Lands and Chattells . The fourth is , that in consideration the conveyance should be made to the Defendant , and it appeareth that it was made to the Defendant and his Wife .

Shuttleworth

To the contrary , we have alleged in deed , that he gave his assent , and that is as much as if he had said in consideration that he gave his assent . And allthough that the conveyance be to both , yet it is in tayl to them , and so the inheritance given to both . And therefore that which you allege is against you .

And the Wife of the Defendant being in Court was very importunate , whereupon the Court moved an agreement , and the Plaintif was content upon condition that the Defendant would enter into bond , but the Defendant seemed unwilling by his silence .

Anderson

Wee have made stay to the intent to do the Defendant good , and he will not be content when more than reason is offered him , wherefore let Judgement be entred for the Plaintif .

7.

IN a replevin by Gybson against Platlesse , Revocation of a Will . the Defendant made Conusance as Baylif to Anne Wingfield , and the Issue was whether the Land descended to Anne Wingfield , Norfolk Trin. as Daughter and Heir to I. W. and upon evidence this was the case . 28 Eliz. rot. 2●30 . The said I. W. was seised of the Lands in question , and divers other Lands , and by his last Will devised all his Lands and Tenements to Anthony Wingfield of London Goldsmith in Fee ; and after and before his death , he made a Feoffment in Fee of the same Lands which he had devised to the same A. W. and when he sealed the Feoffment he demanded , will not this hurt my Will , and it was answered again that it would not , and he said , if this will not hurt my Will , I will seal it , and then he sealed it , and a Letter of Attorny to make livery , and in some of the Lands the Attorney made livery , but not of the Lands now in question , and after the Testator died , now if the Devisee shall have the Lands or no , was the question ; for if this Feoffment be Revocation of the Will , then the Devise is void . And it was said by the Counsell of Anne Wingfield , that it is a Revocation . For if the Testator had said that this shall not be his Will , then it had been a plain Revocation , quod fuit concessum per Curiam , and then the making of the Feoffment is as much to say , as that the Will shall not stand : but it was answered by the Court , that it appeared that the mind of the Testator was , that his Will should stand , and when he made the Feoffment this was a Revocation in Law , and if no Feoffment had been made , there had been no Revocation in Law , and there is no Revocation in deed , for he said if this will not hurt my Will , I will seal it , and allthough that the Attorney made livery in part , Feof●ent perfect in part . so that the Feoffment was perfect in part , yet for the Lands in question , whereof no livery was made , the Will shall stand , Will . for a Will may be effectuall for Part , and for Part it may be revoked , and the Court told the Jury that this was their opinion , and thereupon the Jury found accordingly , that the Land did not descend to A. W. quod nota . And Fenner who was of Counsell with the Plaintif , before the coming again of the Jury to the Bar , said to the Counsell of the Defendant , that the Law was clear against them . Allso he said to divers Barresters afterward privately , that in the case of Serjeant Jeofres it was adjudged , that where one had made his Will , and after one of his friends came unto him , and demanded of the Testator if he had made his Wil , and he answered no. And he demanded again , will you make your Will , and he answered no , and yet this was adjudged no Revocation .

8.

ONe Lea of Essex , Privelege . was sued in an Action of Battery in the Common pleas , Battery . and upon non culp . pleaded , it appeared upon the evidence , that the Defendant and others had thrown daggers at the Plaintif , and grievously hurt and maimed him in outragious manner , and Peryam said to the Jury that they ought to consider , that the Plaintif was put in fear of his life , and had one of his hands maimed , and what damage he had susteyned by his Mayhem , and that they ought to give damage as well for the fear and assault as for the Mayhem , and when the Jury was gone from the Bar , the Defendant caused the Plaintif to be arrested in the Kings Bench , for a battery done to him by the Plaintif before , and this was shewed to the Court , and thereupon they sent for Lea , and were grievosly offended with him , for they said that when a man is sued here , Privelege de Court. he ought safely to come and go by the privilege of this place without vexation elsewhere . And Lea pleaded that he was ignorant of the Law , but the Court answered that ignorantia juris non excusat , and therefore they said that they would punish him , and discharge the other . Then the Plaintif said that he had put in bayl to the arrest , and the Court answered , if you had not done so we would have discharged you , but now we cannot , but they commanded Lea to release his arrest , or otherwise he should smart for it , Fine . and Lea was well content to do so .

Anderson

yet you shall pay a fine here allso , for otherwise we shall be perjured , wherefore because you are ignorant , you shall be fined at vj. s . and Lea payed the vj. s . incontinently , and went for to release his arrest .

Rodes

You have escaped well , therefore let this be a warning .

9.

BEtween Smyth and Lane the case was such . Copyhold Mith. 27. & 28. Eliz. Rot. 1858. Radford . A. was a Copyholder in Fee according to the custom of a Mannor , whereof the Queen was Lady . And she by her Letters Patents let the Copy hold to B. for years , and he granted his Term to the Copyholder , if by this the Copyhold be determined or no was the doubt . And it was agreed by the Court and all the Serjeants , 28 H. 8. 30. b. that if the Lease had been made immediately from the Queen to the Copyholder , then it had been a plain determination , but some put a diversity because the Patentee was not Lord of the Mannor ,

Peryam

I think the Copyhold is not gone , for when the Copyholder hath an interest in possession , and the other in the Freehold , and the Patentee grants his interest to the Copyholder , what surrender can this be ?

Anderson

I will not have it a surrender , but I will have his interest to be determined . For when he is a Copyholder , this is by Custom , and when the Land is left , this is by the Common Law , and when this is granted to the Copyholder , surely he shall not have both . For he cannot have a Copyhold in the Land , and have the Land also , wherefore in my opinion the Copyhold is gone .

Peryam

Peradventure by the grant to the Patentee the Rent shall pass if there be any , but it shall be hard to make it a determination of the Copyhold , for they are two distinct and two severall interests .

Anderson

By the grant made to the Patentee the Rent shall not pass , for he hath no Reversion .

& adjornatur .

10.

A Quare impedit was brought by Specot and his wife against the Bishop of Exeter , Pasch. 28 El. rot. 2091. and declared how A. F. was seised of the Manner to which the Advowson is appendant , and presented , and devised the Mannor to his wife now one of the Plaintifs , and she after took to husband Specot , and then the Church became voyd , and they presented their ▪ Clerk , and the Bishop disturbed them . The Bishop pleaded that he claims nothing but as Ordinary , and that the Church is with cure of soules , and confesseth the title of the Plaintif : And that they presented , but he alleged in bar , that he examined their Clerk , and upon the examination , Invenit eum fore schismaticum inveteratum , so that by the Law of holy Church he could not admit him . Whereupon the Plaintif demurred in Law .

Shuttelworth

The Plaintif ought to recover . Certainty . First , I agree , that if it had been alleged in certain wherein he had been a Schismatick , this had been a sufficient plea to excuse him , but as this is , it is otherwise . For a Schismatick is he which divides and separates himself from the Religion and the Faith established . Schismatick . But this plea is insufficient for the uncertainty , and therefore in 38 H. 3. fol. 2. Fitzh . Quare imped. 124. The Earl of Arundell brought a Quare impedit , and the other sayd , that he presented one to him who was perjured for certain causes , Perjury . and shewed for what , whereby he was not a person capable , and so it should be in this case ; and in 12 Eliz. Dyer fol. 293. he ought to set down the disability of the Clerk , Notice of disability certain . and give notice to the Patron . And allso in Dyer 9 Eliz. fol. 254. the Bishop refused the Clerk because he was a haunter of Taverns and unlawfull ▪ Games , Tavern and gaming . &c. Et ob●ea & diversa alia criminafuit criminosus & inhabilis , &c. And there the Plea was thought not good , Evil in it self . because that the faults alleged were not evill in their own nature , Evil forbidden . but by the prohibition of the Law . And allso the Plea was naught , because he had not shewed what the other faults were . And the reason wherefore the Ordinary ought certainly to allege what faults the Presentee hath , is , because the Patron may present another unto him , who is not infected with the same faults , and how can the Patron tell that his Clerk is disabled for such a fault , when he doth not know certainly what the fault is ? Then if the Plea of the Ordinary be insufficient , whether he shall be a disturber by his evill Plea , Disturber by evil pleading . Triall . and it seemeth that he shall ; for so is the Book in 14 Hen. 7. fol. 21 b. & . 5. Hen. 7. 20. ▪ Allso for another reason the Plea is not good , for it is too general for the trial ; and all though that it may be sayd that it shall not be tryed by a Jury , but by the Metropolitan , as perchance it shall be , yet it is too generall ; for how can he know wherein he is a Schismatick , Ravishment of a Ward . so that he may examine him thereof ? as in Ravishment of Ward , supposing that the Infant holdeth of him by Knights service , 12 H. 8. f. 6. a. f. 11. it must be shewed in certain by what service : And allso in the case of Winbish the Plea was not good , because he did not shew in certain how she was heir to the other ; Coment . f. 42. b. and so I think the Plaintif ought to recover .

Walmisley

to the contrary : And it seemeth the Plaintif shall be barred ; First , when a Parson is presented to the Bishop it appears fully that the examination of him appertains fully to the Bishop , Examination . as it is expressed in the Statute De Articulis Clers , de ideoneitate personae present at ae ad beneficium Ecclesiasticum pertinet examinatio ad judicem ecclesiasticum , & ita hactenus usitatum est , & fiat in futurum . For the cure of the Parson is the cure of the Ordinary , as it is expressed in 32 Hen. 6. He shall say to him , Accipe curam tuam , & curam meam . Then if we shall be driven to shew wherein he is a Schismatick , and I think not ; for the Book of 38 Ed. 3. fol. 2. which is vouched against me , is with me ; Perjury . for there he shewed before what Judge he was perjured , which is very necessary ; for if it be not before a Judge it is no perjury ; but there he did not shew wherein he was perjured : Allso he sayd , that in 12 Eliz. in the Bishop of Norwich's case , the opinion of Walsh , Manners , Learning , difference . that those things which touch the manners of the Clerk , shall be tryed by the Temporall Court , but that which toucheth the learning or sufficiency of the Clerk , shall be tryed by the Spirituall Court . And in vain it shall be to allege wherein he is a Schismatick ; for this Court cannot judge of it , in proof whereof he cited the Statute of 2 Hen. 8. Schism . And he defined a Schism to be Recens dissentio congregationis jure aliquo , but an Heretick is he which hath a habit therein , Heretick . and is invetorate ; so he concluded , that Schismaticus inveteratus est Haereticus , & Haereticus est Schismaticus inveteratus ; and he defined inveteratus to be , qui est multi & veteris usus in malitia . And if the Bishop had sayd that he was an Heretick , he should not need to shew wherein , and for that he cited the case in 9 Edw. 4. 24. Bro. Deposition 5. Deposition . Where a Deposition of A. was pleaded , there he ought to shew before what Judges he was deposed , but not wherein . And what is the reason that he must shew before what Judge it was ? Surely , because this Court may know to what Court to write ; and allso the case in 11 Hen. 7. fol. 8. Bro. 9. of the Union of Wamborough , where it is pleaded , that concurrentibus hiis , &c. and allso he cited 8 Ed. 4. 24. where a divorce was pleaded , causa consanguinitatis prout patet in recordo , and yet well : And allso he cited the opinions of Fitzherbert and Shelley , 27 Hen. 8. 14. that an Action upon the case doth not lye at the Common Law , Heretick . for calling one Heretick , because the Judges at the Common Law cannot discuss it , and he granted the cases put by Shuttelworth , Matter issuable . that where the matter is issuable , there it ought to be certain , but not as this case is where it shall not be tryed by a Jury ; And that which hath been sayd , that the Archbishop cannot examine him , because he knoweth not wherein he was a Schismatick ; this is not so , for the Bishop which accuseth him may inform the Archbishop , so that he may be well advised thereof , and so I think judgment shall be given against the Plaintif .

Anderson

I doubt if the Writ be wel brought in the name of the Husband and Wife : Advowson in right of the wife . For if the Husband have an Advowson in right of his Wife , and the Church become voyd , and the Husband dye , the Executors shall have the presentation ;

and the Serjeant sayd that there be many Books in that point .

Anderson

I know it well , but I doubt of the Law in the case . Allso I would have you to argue if this be within the Statute of Demurrers , in 27 Eliz. For if this be not matter of substance , then it shall goe hard with the Plaintif ; therefore let it be argued again another time .

11.

ONe Brook was Plaintif in a Replevin , Copyhold . the Case was such : Tho. Speek was seised of a Mannor , in which were Copyholds according to the Custom , and the place in which the taking was supposed , was a Copyhold ; and the sayd Tho. Speek being so seised , took to wife one Anne B. and died seised , after whose death the sayd A. in the time of King Edw. 6. demanded the third part of the Mannor for her Dower , by the name of Cent. Messuagiorum , Cent. Gardinorum , tot acr . terrae , tot acr . prati , &c. and was endowed accordingly of parcel of the Demesns , and parcel of the services of the Copyholds , and after she granted a Copyhold , and if this be good was the question ; for if she had a Mannor the Grant was good , and otherwise not . And the opinion of all the Court clearly was against the Grant ; for when she demanded her Dower , she was at liberty to demand the third part of the Mannor , or the third part of Cent. Mes. Cent. Gard. Cent. acr . &c. and when she demanded it per nomen Cent. Mes. &c. Mannor a corporation . she could have no Mannor : For a Mannor cannot be claimed except by his name of Corporation , as Anderson termed it , and not otherwise ; and then Cent. Mes . and Cent. acr . &c. cannot be sayd a Mannor ; and then the Grant of a Copyhold by her which had no Mannor was utterly voyd ; and this was the opinion of the Court clearly . Quod not a.

12.

SHuttelworth shewed how one Knight was Plaintif in a Replevin , Visne . 〈◊〉 Ass . pl. 42. and they were at issue upon a prescription for Common in Newton appendant to land in another place , and the venue was of Newton onely , and it was found for the Plaintif , and he prayed his judgment , for the tryall may be in the one place as well as in the other , as in annuity where the seisin is alleged in one County , Annuity . and the Church in another , it may be tryed in any of the Counties .

Anderson

But we think otherwise , for it ought to be of both places , when the matter ariseth in both ; and if they had been in severall Counties , Counties joyn . the Counties ought to have joyned .

Shuttelworth

So is 10 Ed. 4. fol. 10. But our case being after a verdict , I think we ought to have judgement .

Anderson and Windham

The verdictdoth not amend the matter , if it be mis-tried , as this case is . Rodes agreed that it was a mis-triall , Mis-trial . and therefore evill , and that mis-trialls are not helped by the Statute of Jeofayles .

Shuttelworth

I agree to that , if you say that the triall is not good .

Windham

So we say . New Venire facias .

Then Shuttelworth advised his Client to take a new Venire facias .

13.

WAkefield brought a Replevin against Costard , The Lord . who avowed for damage fesaunt . Comptons case . and the Plaintif prescribed for Common , that all the inhabitants of Dale , except the Parson and infants , and such a house , Prescription for Common . have used to have Common in the place . The Avowant sayd that the house whereunto the Plaintif claimed Common , was built within thirty yeares last past , and if he may have Common to this new house by prescription or no was demurred in judgement in Michaelmas Term , and then Shuttelworth argued for the Plaintif that he should have his Common by prescription , but not of common right . And Gawdy argued for the Avowant , that the Plaintif shall not have Common , because the prescription is against all reason , that he should have Common time out of mind to that which is but of thirty years continuance : And allso he excepteth the Parson , and infants , and such a house , and by the same reason he may except all , which is not good . Then one of the Judges sayd that if this be good , Antient inhabitants . hereafter there shall be no Common for the ancient inhabitants . Improvement .

Peryam

By such a prescription he shall for ever barre the Lord from improving any Common , Common entire , which is no reason .

Anderson

All Common is intire ; for if a man have Common to three Mesuages , and he infeoffee one man of one Mesuage , and another of the second , and another of the third , the Common is gone . And by this reason allso the new house cannot have Common . And now this Term Gawdy demanded of the Court if they were resolved in the poynt .

Anderson ▪

We are all agreed that the prescription is utter●y voyd ; for it is impossible to have Common time out of mind for a house which was built within thirty yeares , and then he commanded to enter judgement , if nothing were sayd to the contrary by the next day .

Shuttelworth

We have sayd all that we can say , my Lord .

Anderson

Then let judgment be entred against the Plaintif .

14.

SNagg shewed how the Earl of ●Kent had brought an action of debt against a Londoner for rent behind , Grant . and shewed how the Countes● ▪ of Derby was tenant in Dower of this land , and took to husband the Earl of Kent , and that Henry Earl of Derby had granted it to the Earl of Kent habendum after the death of the Countess for certain yeares , and he shewed how the grant was made by the name of a reversion also , Lease in reversion , Grant in reversion , difference . and that the Tenant had attorned , and alleged the death of the Countess . And the Court said that the Attornment is not necessary , for it is but a lease in reversion , and then no rent passeth thereby .

Anderson

If you had been privy to the case of Talboys in the Kings-bench , you would not have moved this doubt .

Peryam

It is allso the very case of Throckmorton in the Commentaries .

Snagge

But here in my case he hath granted it by the name of the reversion allso , and then the reversion will carry the rent .

Curia

Then is your grant voyd ; for a man cannot grant his reversion , habend. after the death of another ; and therefore , quacunque via data , you shall have no rent .

And thereupon Snagge conticuit cum rubore .

15.

MOunsay was Plaintif in debt upon an obligation against Hylyard , Jeofayle . and the Defendant pleaded the Statute of Usury , because it was made for the sale of certain Copperas , and he took more than was limited by the Statute , and that it was made by shift and chevisance , and other matter he alleged to prove it within the Statute ; the Plaintif replyed , that it was made upon good consideration , and traversed the delivery of the Copperas , which was an evill issue clearly , Issue mis●oyned . and it was found for the Plaintif , and this was alleged in arrest of judgement , and yet for that there was an issue tryed , allthough it was mis-joyned , the exception was disallowed , and judgement was given for the Plaintif .

16.

AN Action of Debt was brought upon the Statute of Purveyors , Issue . because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty , and it was moved that this was an evill issue ; for he ought to have pleaded nil debet ; and the Court commanded him to plead nil debet .

17.

WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild , Ayd prier . who was Tenant for life , and they were at issue , and the Venire fac . issued in Michaelmas Term , and now this Term the Defendant prayed in ayd , which he sayd he ought not to doe , be●●use they have furceased their time ; for they ought to pray it when the Venire facias is awarded , or otherwise they shall not have it ; and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion , that he ought then to pray it , or not at all .

18.

A Writ of Error was brought upon a judgement given in London , ●orfeiture . and this was the case ; Sir Wolstan Dicksey Alderman , brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus , who afterwards granted the reversion to Dicksey , and the Tenant attorned , and the rent was behind , &c. Spenser pleaded in bar , that before the grant of the reversion to Dicksey , Bacchus was seised , and shewed the custom of London , to make inrolments of deeds indented , and then shewed that before the bargain to Dicksey , he bargained the reversion to him by paroll , and so demanded judgement , si actio , &c. and this plea was entered upon record , and hanging this suit , Dicksey entred into the Land for a forefeiture of the term , because he had claimed a Fee simple , and Spenser re-entered with force , and his servant with him , but not with force , and thereupon Dicksey brought an Assisse of fres● force against them in London , and all this matter was there pleaded , & adjudged that it was a forfeiture of the term , & the Jury gave damages , and the Court increased them , and the judgement trebled as wel the damages increased as the others , and allso the Iudgement was quod praedicti defendentes capiantur , &c. Increase of damages . and thereupon Spenser brought a Writ of Error , and assigned Error in the point of the Judgment , because it was no forfeyture . And allso because the Damages increased by the Court were trebled . And allso because the judgment was Capiantur where but one was a Disseisor with force , & therfore it should be Capiatur .

Shuttleworth

There is no forfeyture made by this Plea before triall had thereof . Wast . For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another , this is no forfeyture , so in Cleres case , if he say that another is next Heir , this is no forfeyture . Quid juris clam . And in 26 Eliz. here was a case in a quod jur●s clamat , the Defendant pleaded an Estate tayl , and after at the Assises , he confessed but an Estate for Life , and yet this was no forfeiture .

Curia

None of us do rememember any such case here .

Walmisley

Surely the case is so , and I can shew you the names of the parties .

Anderson

I will not believe you before my self , and I am sure that I never heard of any such case .

Peryam

If any such case had been here we would have made a doubt therof , for ther are Authorities against it , as in 8 Eliz. & 6. R. 2. Plesingtons case .

Shuttleworth

Allso theyhave said that the fresh force was brought infra quarentenam , silicit quadraginta septimanas , Quarentenae . Scilicet a surplusage . and the quarentena is but 40 dayes .

Curia

That is no matter , for the silicet is but surplusage , and so no cause of Error .

Shuttleworth

If a man disseise another without force , he shall not be taken and imprisoned , and therefore for this cause the Judgement is erroneous , and allso the costs encreased are trebled , and therefore erroneous , Aydin Trespass . and cited 22. Hen. 6. 57.

Anderson

In an Action of Trespass , If the Defendant pray aid of a stranger , this is a forfeiture , and if it be counterpleaded , yet it is a forfeiture , then shall the deniall thereof make any change in the case ? surely no , Proper acts . in my opion . And I say that Acts which come from himself are forfeitures , Collaterall . but Collaterall Acts , Difference , as in the case of Wast are not .

Walmisley

In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him , the Judgement shall be but that he shall Attourn . And allso he cited 3 Ed. 3. & 33 Ed. 3. & 18 Ed. 3. & 36 Hen. 6. & 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall . Quid juris clamat .

Anderson

If one who hath no Reversion , bring a quid juris clamat against Tenant for life , this is a forfeiture of his Estate , and as you have said , if in Wa st the Tenant plead the Feoffment of the Plaintif , or non dimisit , true it is that these are no forfeitures , for you know well enough that a Feoffment is no Plea , and then it is void , and to say non dimisit is no forfeiture .

Peryam

The Judgement given in Plesingtons case is not well given , for it ought to have been , quod pro seisina sequatur si volunt . as in the case of Saunders against Freeman , and he cited 10 Edw. 3. fol. 32. to that intent .

Wyndam

The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented , and he sheweth that his bargain was by parol , and therefore void , and then no forfeiture , as if in Trespass a man prays ayd , as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void . Praying in ayd .

Anderson

Allthough that it be so , yet the pleading is , that he bargained the Reversion , and then this is good by parol in London , therefore there is no doubt in that point .

Walmisley

The Books in 15 Ed. 2. & 25 Ed. 3. Import● that Judgement ought to be given before any forfeiture can be . Forfeiture before Judgement .

Curia

Without doubt he may take advantage thereof before Judgement , as well as after , if the plea be entred upon record .

Wyndam

For the point of capiantur , the Book is in 2. lib. Ass. Pl. 8. Br. imprison . 30. & in 9. lib. Ass . & 12. lib. Ass. Pl. 33 Br. imprison . 40.

Anderson

Two may be Disseisors , Present Disseisor , absent , Differance . and the one with force and the other not , as if I command one to make a Disseisin , and he makes a disseisin with force , and allso if one enter with force to my use , and after I agree , he is a Disseisor with force and I am not so , and those cases will answer the Books of Assises , for in those cases they were present , Present ▪ but in these not , and so I hold that he which is present when force is made , is a Disseisor with force .

Then it was moved if the Statute of 8 Hen. 6. doth extend to fresh forces .

Wyndam

It doth extend to them by express words ,

and Fleetwood cited a case in 44 Edw. 3. 32. that an Attaint lieth of fresh force . Then for the other matter of trebling of damages increased , the Court made no doubt but that they shall be trebled , and they said that so it was lately adjudged here in a case of Staffordshire .

19.

PUckering shewed how an Attaint was brought upon a false Oath made in a Replevin , Challenge . where the Defendant made Conusance as Bayley to one Hussey , and in the Attaint surmise was made that the Sherif was Cosen to Hussey , and thereupon prayed Process to the Coroners , and Puckering moved that no Process should issue to the Coroners , for Hussey was not party to the Attaint , and then this is but matter of favour , and he cited 3 Hen. 7. And all the Court accorded with him , that it is but matter of favour onely , and no surmise to have a Writ to the Coroners , but Walmisley would have put a difference between Lessee for years and a Bayley , Lessee pur ans . for as he pretended , in the case of a Bayley , it shall be a principall challenge , but not in the other case ; but all the Court was against him , and that it is no principall challenge in the one case nor in the other . The last day of the Term it was moved again , and the Court was of the same mind as before .

20.

IN a Quare impedit , Adverson . it was said by Anderson , and agreed by all the Court , that if a man make a Feoffment in Fee of a Mannor without deed , and without saying ( with the appurtenances ) yet the Advowson shall pass , and cited 15 Hen. 7. where it is adjudged that it is parcell of the Mannor , and lieth in Tenure .

21.

IN an Action of debt Anderson cited a case which was before him at the Assises in Somersetshire , Pleading . an Action of Battery was brought in London , and a Justification made in Somersetshire , Absque hoc that he was guilty in London , and the Plaintif replyed de injuria sua propriae absque tali causa , and Anderson said that a man shall never plead , de son tort . demeasne : where the matter ariseth in a Forein Country .

22.

AN ejectione firme was brought by Clayton against Lawson , Bar. the Defendant pleaded in Bar , a Recovery had in the Kings Bench against the Lessor of the Plaintif . And Fenner moved that it should be no Bar no more than in Trespass .

Anderson

I think it to be a good Bar. For this Action is as strong to bind the possession , as a Writ of right is to bind the right .

Wyndam

I think it is no Bar no more than in Trespass .

Anderson

This is more than an Action of Trespass , for in this he shall recover his Term.

Rodes

This case was moved the last Term , and the opinion of the Court then was , that it was a good Bar.

Fenner

True it is , if it were between the parties themselves ; but here the Plaintif is but Lessee to him which was Barred .

Anderson

Allthough that it be so , yet he claymeth by the Lease of him which was Barred , and during the Lease of the other his Lessor could have no right , and what shall he have then ?

Fenner

That which is between the parties cannot be an ▪ Estoppell to the Plaintif here which is but a stranger . Estoppell .

Anderson

I know that he shall not plead it by way of Estoppell , but he shall conclude Iudgement si Actio ,

Peryam

If in an Assise a Recovery in another Assise be pleaded in Bar , Assise . he shall not conclude by way of Estoppell ▪ but Iudgement si Actio , and there he is driven to a higher Action , and so here ; and the Law shall never have end , if after a man is Barred in his Action , he may bring the same Action again , therefore I think it a good Bar , and that he is driven to a higher Action .

Wyndam

Lessee for years can have no higher Action .

Anderson & Peryam

If one which hath a Lease for years and no more , Tenant for years disseisor of tenant in Fee simple . enter upon him which hath a good title , he is a disseisor of all the Feesimple .

Wyndam

If two claim by Lease from one man , and one bringeth an Ejectione Firme , and is Barred , what Action shall he have then ?

Anderson

None , for he hath no Right .

Wyndam

That is hard .

Anderson

What Action shall he have which is Barred in Formdone ? surely none .

Fenner

This is another case .

Anderson

Aliquantulum incensus , truly it is a plain case that he shall be Bared , whereunto Peryam and Rodes agreed clearly .

23.

IN a praecipe quod reddat , View . the Tenant demanded the view , and an habere facias visum issued , and the Tenant came not to the Sherif to take the view , it was said by the whole Court , that the Sherif may ret●urn , that none came to take the view , and he shall never have the view again .

Anderson

The habere fac . visum is the suit of the Tenant , and then when he doth not come to take the view , this is a default , and then good reason to exclude him from the view .

Gawdy

Such a retourn was never seen before , and therefore it is to be noted , the case was between Ho● and Hoo for Lands in Norfolk .

24.

IOhn Wiseman of the Inner Temple , Apportionment . brought an Action of debt against Thomas Wallenger , the case was this . A man seised of three acres of Land in Fee , makes a lease , reserving xxx . s . of Rent , and after devised the Reversion of two acres to a stranger , and the third acre descended to the Heir , and he brought an Action of debt for xij . d. being behind , and Puckering moved if they were agreed of their judgement in the case . Rent extinct by the grant of part of the Reversion .

Anderson

If a man let two Acres of Land rendring Rent , and grant the Reversion of one of them , all the Rent is gone , as it is in Dyer , and at the Common Law , before the Statute of W. 3. there was no apportionment , and the Statute speaketh of no such apportionment as this is .

Rodes

Surely no Book in all the Law will warrant this apportionment .

Fenner

Yes Sir , 5 Ed. 3. If a man have a Rent of xx . s . and grants parcell thereof , and the Tenant Attourns , this is good .

Rodes

This is another case . But shew us the case which was in the Kings Bench against the next Term.

& adjornatur , but the Plaintif said then to divers Barresters that such a case was adjudged with him in the Kings Bench. Pasch xxviij . Eliz. Rot. 341. between ▪ Wiseman and Brewer , and another case in the Common place , London , Rogers versus Hunt , Pasch. 16 Eliz. Rot. 1544.

25.

A Quare impedit was brought by Beverley against Cornwall , Vtlary . which was the Presentee of the Queen , and the Plaintif had Judgement to recover , and now the Queens Serjeant shewed that the Plaintif is outlawed , and prayed that he Writ to the Bishop might be stayed , and that they may have a scire facias for the Queen , to shew wherefore she shall not have Execution of this Judgement .

Walmysley

This cannot be debated now , for the Plaintif hath no day in Court , after Judgement , and this is but a surmise .

Curia

The Record here before us testifies that he is outlawed .

Walmysley

Yet it is but their surmise that he is the same person .

Wyndam

In debt upon an Oblig : If the Plantif be outlawed , the Queens Serjeants may pray the debt for the Queen ; and yet this is but a surmise . And the opinion of three Justices was ( for Anderson was absent ) that they ought to stay Execution , but how ▪ Processe shall be awarded , or if a Scire sacias shall issue against the Plaintif or no , they would be advised for the course thereof , but Peryam thought that they might have a Scire facias against the antient Incumbent .

4.

A Quare impedit was brought by Gerard , Travers . and declared that his Ancestor was seised of the Mannor , to which the Advowson is appendent , and presented , and died seised , and the Mannor descended to him , and so he ought to present , the Defendant pleaded in Bar , that the Ancestor of the Plaintif was joynt ly seised with his Wife , and that she survived , & for default of her Presentation th● Lapse accrued to the Bishop , who did collate . Absque hoc that he died sole seised , and it was moved by Gawdy that the Traverse shall be naught , for he ●ad sufficiently answered to him before . And the opinion of the Court ( Anderson being absent ) was that the Traverse is void , because he had confessed and avowed him before , and cited 5 Hen. 7. 11. 12. Bro. tit . Traverse sans ceo 13.

27.

BYngham brought an Action of debt upon an Obligation against Doctor Squire , Cond . impossible . and the Condition was , that if the Defendant did obtein a good grant of the next avoydance of the. Archdeaconry of Stafford , so that the Plaintif might enjoy it , that then , &c. and the Defendant pleaded that he had obteined a good grant of the next avoydance , and in truth so he had , but the antient Incumbent was created a Bishop , whereby it perteined to the Queen to Present , so that the Plaintif could not enjoy it , and therefore the Plaintif moved the Court that the Defendant should amend his plea , and the Court ( Anderson absente ) commanded him to do so , for it seemed unto them that the Obligation was forfeit . Gawdy moved for the Defendant that when the Archdeacon was made a Bishop , the avoidance perteined to the Queen by her Prerogative , so that it was become impossible , but nevertheless he took day to amend his Plea .

De Term. Pasch. Anno Eliz. xxix .
1.

THE First day of this Easter Term , Sir Christopher Hatton , Knight , late Vicechamberleyn to the Queen , and Captain of the Guard , rode from his house in Holborn , the Lord Burghley Lord Treasurer being on his right hand , and the Earl of Leicester on his left hand , and the Gentlemen Students of the Inner Temple attending upon him , ( because he was one of the same House ) and with great Honor he was brought to Westminster Hall , and there in the Chancery sworn Lord Chancellor of England , according to the Patent and Seal delivered unto him the Sunday before .

2.

THe Queen brought a Quare impedit against the Incumbent and the Bishop , Abatement . the Bishop pleaded that he claimed nothing but as Ordinary , and thereupon Judgement Formall was given against him , The incumbent dyeth . sed cesset executio , &c. the Incumbent pleaded in bar , whereupon they were at issue , and this issue depending , the Incumbent died , and now Gawdy moved if the Writ should abate against the Bishop or no ? and Wyndam and Peryam clearly that it shall abate ; but if the Plaintif had averred the Ordinary to be a disturber , then Judgement should have been executed ; but now he claiming nothing but as Ordinary , and thereupon Iudgement given , which is but conditionall upon the Plea of the Incumbent , it seemeth that the Writ shall abate , for there is none now to plead against the Queen ; But if the Bishop had been averred to be a disturber , Patron . then it had been othe●wise , and Peryam resembled it to the case of 9 Hen. 6. where it is brought against the Patron and the Incumbent , and the Patron dieth , or the Incumbent , the Writ shall not abate against the other . But they commanded him to move it again , when the Lord Anderson was present .

3.

EJectione Firme was brought by King against King and others , Surrender . who pleaded not guilty , and now the Jury appeared , and the Plaintif declared upon the Lease of one West . Gawdy for the Defendant shewed that before the said Lease , West had made a Lease for six yeares , so that during that time this Lease could not be good : the Counsell of the Plaintif confessed the said Lease for six years , but said further that it was surrendred . Wyndam demanded where that surrender was made , and it was answered in London , and the Land lay in Essex . Was the surrender ( said Wyndam ) made in London , Out of possession . and he out of possession , and the Land in Essex ? What surrender call you this ? And the Justices laughed at this evidence , and so did the Serjeants for the Defendant , concluding that it was not good without question . And so the Plaintif was Nonsuite , and the Iury discharged incontinently .

4.

SHuttleworth shewed how Hurleston was Plaintif in an Ejectione Firme , Trave●s . and declared upon the Lease of one Pinchine , to which the Defendant said , that before P. had any thing &c. one E. Roberts was seised in Fee in right of Fayth his Wife , and so being seised , made a Lease to the said P. If the said E. R. so long should live , whereby P. being possessed , made a Lease to the Plaintif , and shewed that the said Roberts was dead , and the Defendant as servant to the said Fayth entred and Ejected him , now he demanded what he should Tra●erse in this Plea .

Wyndam

This is a shifting Plea .

Peryam

Is this Plea true ?

Shuttleworth

No Sir .

Peryam

Then you may trice him upon this Plea , for you may Traverse the seisin in the right of his Wife without doubt , or you may Traverse any other part thereof ,

and Wyndam and Rodes agreed clearly thereunto for the seisin ( Anderson absente )

5.

AN Action of the case was brought upon an Assumpsit , Jeofayl . the Defendant pleaded non ▪ Assumpsit , and the issue was found for the Plaintif , and now Gawdy spoke i● arrest of Judgement , because the Plaintif had alledged no place of the Assumpsion , No Place of the assumpsion . and he said that when an Issue is mis-tried , it hath been adjudged here that it is not helped by the Statute , and here is no place alledged , whereupon the Tryall may be .

Peryam

The opinion of many hath been , that the Statute shall be taken most strictly , but in my opinion it shall be taken most liberally , so that if a verdict be once given , it shall be a great cause that shall hinder judgement , wherefore allthough no place be shewen , yet when it is tryed and found , it seemeth , that he ought to have judgement ; and so was the opinion of the Court , Anderson absente .

6.

AN Action upon the case was brought in Staffordshire by Whorwood against Gybbons , Consideration . how in an account between them , the Defendant was found in Arrerages , and in consideration that the Plaintif differreret deem solutionis debiti praedicti per parvum tempus , the Defendant did assume to pay it , and upon Non assumpsit pleaded , it was found with the Plaintif , and it was alleged in arrest of judgement , that this was no consideration . And the opinion of the whole Court ( Absente Anderson ) was , that insomuch as the Proviso was made by him by whom the debt was due , that it is a good consideration , and that it is a common course in Actions upon the case against him by whom the debt is due , to declare without any words in consideratione . And allthough that Gawdy moved that parvum tempus may be three or four hours , or dayes , which is no consideration , yet for the cause alleged , the Court sayd that they saw no cause to stay judgement .

7.

AN Action upon the case was brought for these words , Scandal . Thou dost harbour and maintain Rebels and Traitors ; and the issue was found for the Plaintif , and the judgement was entred by the Pregnotary ; yet notwithstanding Walmisley moved the Court to have regard unto it , for the Action was not maintainable ; for if a man ke●p Theeves , and do not know them to be Theeves , he is in no fault , and an Action for these words will not lye , and the Plaintif hath not averred that the Defendant sayd that the Plaintif knew them to be Traytors .

Peryam

The Action in the Kings-bench was , that the Plaintif kept Theeves ; and there if there be no such averment , the Action is not maintainable , Maintain . but here is the word Maintain , and that word implyeth a thing prohibited , and therefore not sufferable , and therefore I think the Action is maintainable , and by the opinion of Windham , Peryam , and Rodes the Action was well brought ( Anderson absente propter agritudinem . )

8.

AN Action upon the case was brought by Richard Body against A. Consideration . and declared that whereas Kary Raleigh was indebted to Body in 14l . and the said A. was indebted to Raleigh in 50l . in consideration that the said K. R. allocavit eidem A. 14l . & promisit ei ad exonerandum e●ndem A. de 14l . parcell praedict. 50l . the Defendant did assume to pay to the said Plaintif the said 14l . and the Court was moved if this were a good consideration to bind the Defendant , And the opinion of all the Court ( Anderson absente ) was , that the Consideration was good , for that he was discharged of so much against Raleigh , and Raleigh might also plead payment of the 14l . by the hands of the Defendant .

9

AN Action of Assault and Battery was brought , Assault . and the Defendant was condemned by nihil dicit , and a Writ to enquire of damages went forth , and then the Attourney of the Plaintif died , and another Attourney without Warrant prayed the second Judgement and Execution , Warrant . if this shall be error or no it was moved by Fenner ; And the Court gave their opinion that if in an action after Judgment the Attourney dye , a new Attourney may pray Execution without Warrant , but in this case because that he died before the second Judgement , it seemeth that he ought to have a Warrant of Attourney , for the first Judgment is no finall Judgement . And the Pregnotaries said , that if after the first Judgement one of the parties had died , the Writ should abate , quod fuit concessum per curiam . And also Fenner moved that this shall not be within the intent of the Statute of Jeofayles which speaketh of Verdic●● , Verdict . for this shall not be said a Verdict ; whereto the Court agreed , for a Verdict is that which is put in issue by the joyning of the parties .

10

A Woman brought an action , Covenant . and she Covenanteth that she shall not do any act , to repeal , to discontinue , to be nonsuit , or countermand this action , and hanging the Writ , she takes a husband , whereby the Writ abateth . Now Fenner moved if she had broken the Covenant .

Windam

If one be bound that he shall not attorn and he make an Attornment in Law , Attornment . the Obligation is forfeit without question . Assignment .

Rodes .

If I be bound not to make in Assig●ment of such a thing , and I devise it by my will , this is a forfeiture , as it is in 31. H. 8.

Fenner

there is a case in Long 5. E. 4. If one be bound to appear at the Sessions , &c. and. I am to make a plea in this case , and I would know your opinions .

Windham

You may plead according to the truth of your cause , for that shall not change the Law , therefore plead what you list .

11.

DEbt was brought upon an Obligation , Condition . the Condition was to perform Articles contained in an Indenture , and one Article was , that the Defendant Sir William Drury should plead the generall Issue , or a●issuable Plea , or such a Plea in quo staret aut persisteret , within seven dayes next ensuing . The Defendant sayd that he pleaded such a Plea , and shewed what , and averred that it was sufficient , and issuable within seven dayes . The Plaintif demanded judgement if to this Plea he shall be received , for he appeared in Michaelmas Term , in which he ought to have pleaded , and took imperlance over unto Hill . Term , And Fenner shewed , that in truth an issuable Plea was pleaded , and drawn in paper in Mich. Term , and the Plaintif replyed , and the Defendant rejoyned , and the Plaintif surrejoyned , and the● by ass●●t in Hill ▪ Term all this was waved , and an imperlance of the other Term entered forfear of a discontinuance ; and now he would have the Obligation of five hundred pound forfeited by this . And the opinion of the Court ( Anderson absente ) was , that the Obligation 〈◊〉 was forfeit , for the Plea ought to have been entred of Record●● 〈…〉 be bound in an Obligation to appear here at a certain day , Appearance entred . allthough he do appear at the same day , yet if his appearance be not entred upon Record , his Obligation is forfeit .

Peryam

If the Plaintif deny that he did not plead a sufficient Plea , this shall be trued by the Record , and how can that be , when it is not entred of Record ▪ But the Court sayd further , that it was hard that he should have the forfeiture ; and sayd that there was great negligence , and oversight in the matter .

Peryam

You may plead all this matter specially , and how by his assent the Plea was waved , and peradventure his assent ( if any thing ) will help you .

12.

PArtition was brought between Coparceners , Estrepment . and hanging the Writ the Tenant made Wast , and Gawdy moved the Court for a Writ of Estrepment .

Peryam ]

Where you are to disprove the interest of the Tenant , Estrepment will lye , but here you confess an equall interest in him , how then can you have it ?

Whereunto Windham agreed ; and after it was shewen how they were Tenants in common , whereby his motion was at an end .

13.

NOte that in the Starchamber this . Perjury . Term it was over-●uled by the Lords , that if in an Action at the Common Law , a man wage his Law , allthough that he make a false Oath , yet he shall not therefore be impeached by Bill in the Starchamber ; and the reason was , because it is as strong as a Tryall . And the Lord Chancellor demanded of the Judges , if he were discharged of the debt by waging of his Law , and they answered , yea . But 〈…〉 said , that it was the folly of the Plaintif , because that he may 〈◊〉 his Action into an Action of the case upon an Assumpsit , wh●● in 〈◊〉 Defendant cannot wage his Law .

14.

AT another day in the Starchamber between Hurlestom and Glaseour , Conspiracy . it was over-ruled by the Lords , that if a Jury at the Common Law give their verdict , Perjury , allthough that they make a false Oath , yet they shall not therefore be impeached by Bill in the Star-chamber : But if any collaterall corruption be alleged in them , as that they took Money , or Bribes , a Bill shall lye thereof well enough . And allso in the same case it was ruled , that where Glaseour had brought a Bill of Conspirary against Harlestone , and others , and divers of the ▪ Jury , for that they had indicted him of Perjury , that before the Indictment be traversed , or otherwise avoyded by Error , he cannot have a Bill of Conspiracy , because this shall quash the tryal at the ▪ Common Law , and shall prevent it . And allso before a man be acquitted , a Writ of Conspiracy doth not lye for him by the Law .

De Term. Trinitat . Anno xxix . Eliz. Reg.
1.

THe Quare impedit brought by Specot and his Wife was moved again by Gawdy , Quare imp. and it seemed to him , that because the Bishop did not shew in what thing he was a Schismatick , the Plea was therefore uncertain , and so insufficient , and he cited 33 Edw. 3. 2. & 9 Eliz. Dyer 254 b.

Anderson

If he had certainly shewed in what thing he was Schismaticus inveteratus ut ea occasione inidoneus sit & inhabilis , &c. This had been a good Plea without doubt , but as it is here , sure it is no Plea ; for it is even as if he had sayd , that he was criminosus ,

whereunto all the other Judges agreed .

Anderson

All that I doubt is , whether this be helped by the Statute of Demurrers 27 Eliz. For otherwise the Plea is insufficient without doubt .

Gawdy

The Statute helpeth onely matters of form , and this is the substance of his Plea , that he is a Schismatick .

Anderson

Allthough it be the substance of his Plea , yet it is but form to plead it certainly . And if one demur generally to a double Plea , Double plea. it is not good at this day , and so here .

And so was the opinion of Peryam , and the other Justices by their silence seemed to agree thereunto , yet they gave day to the Serjeants to argue this matter . And Peryam sayd that he would help the Plaintif in the best sort that the Law would suffer him ; for the Bishops are grown so presumptuous at this day , that they will make question of all the patronages in the Realm , and if it be against their pleasure , none shall have his Presentation . And allso now Anderson was agreed that the Action was well brought in the name of the Husband and Wife , allthough he had once moved to the contrary . Allso in this case it was moved , Demurrer is a confession but of things sufficiently alleged . that by the Demurrer it shall be confessed , that the Plaintif Clerk was a Schismatick : Whereunto Anderson said , that if a thing be sufficiently alleged , it is confessed by the Demurrer , but otherwise not .

2.

A Replevin was brought by Brode against Hendy , Replevin . of his own wrong . the Defendant made Conusance as Baylif to the Queen for Rent behind , wherunto the Plaintif sayd , De son tort demeasne sans tiel cause , and the Court was moved whether this be a good Plea , and by the opinion of three Judges it is no Plea in a Replevin ( Anderson absente ) but in Trespass it is good , notwithstanding that it was objected at the Bar , that there is a diversity in our books taken , that when the Action is brought against the Baylif , there it shall be a good Plea , but not against the Master . But the Court over-ruled it ; for in a Replevin he ought to make a title .

3.

THe Queen brought a Quare impedit against the Bishop and Themas Leigh Incumbent , Discontinuance . and they both pleaded severally speciall Plea● , and so it depended , whereupon Fenner shewed the Court that the Queen did not prosecute the Suit , but let it depend still , and therefore he prayed that she might be called Nonsuit : But all the Court , The Queen cannot be Nonsuit . and the Pregnotaries said , that the Queen cannot be Nonsuit .

Fenner

Shall we then which are Defendants always be delayd ?

Peryam

After a year passed you may have it discontinued , but she shall not be Nonsuit . And in the case of a common person the Plaintif may discontinue it within a year , but the ▪ Defendant cannot discontinue it untill after a year .

4.

WAlmisley moved for Judgement in the case of Kimpton . Common extinct by purchase .

Rodes

We have given Judgement allready .

Walmisley

No , Sir , I have not heard of it :

Peryam

What is the case ?

Rodes

The case is this ; a man was seised of a 140 acres of land , and had Common appurtenant to them in 46 acres of land , and the 46 acres of land were in the occupation of severall men , viz. two in the occupation of A. and the rest in the occupation of B. and he which had Common purchased the sayd two acres , now if this entire Common be extinct or no , so that they which were Tenants of the residue of the 46. acres shall take advantage thereby was the question . And all the Justices sayd that they were agreed of this case long agoe . For allthough that the acres be severall , and in severall occupations , yet the Common concerning that is intire , and so by purchase of parcell it is extinct .

Rodes

Surely I have noted my book that Judgement is given , and so I supposed that it had been .

5.

SHuttelworth moved that whether a Lease is made to a man o● his own Land by Deed indented , Estopple . this is an Estopple , whereto the Court agreed . But Windham and Peryam sayd , if the Lease be made for life by Indenture , Liv●ry . that yet this shall be no Estopple , because the Lease takes effect by the Livery , and not by the Deed ; but Rodes did not fully assent to that ; Anderson was absent in the Sta●● chamber .

6.

DEbt was brought by Lassels upon an Obligation , Hill. 1● Eliz. tot. 1 511. with condition , that if the Defendant did personally appear in the Kings-bench such day , Stat. 23 ▪ Hen. 6 that then &c. the Defendant pleaded the Statute of 23 H. 6. & said that he was taken by the Plaintif being Sherif then , by force of a Latitat , and that the Bond was not made according to the Statute : For being made for his deliverance , this word ( personally ) was inserted in the condition more than is in the Statute . And it seemed by three Justices ( Anderson absente ) that if it were in such an Action where a man may appear by Attourney , that then it shall be voyd ; but now the question is whether the party ought to appear in proper person by force of a Latitat or no ; And some said yea , and some said no. And the Plaintif shewed a Judgement given in the Kings bench for Sackford against Cutt. where Cutt. was taken by a Latitat , and made such an Obligation as this is for his deliverance , Sackford being Ballivus sanct. Etheldred●e in Suff. and adjudged for the Plaintif that the Obligation was good . And this was in the Kings-bench , Mic. 27 & 28 Eliz. Rot. 575. but Peryam doubted of that judgement ; for peradventure he might appear by Attourney ; Ideo quare ; for that was the reason of the judgement given in the Kings-bench , as it was sayd , because he could not appear but in proper person .

7.

AN Action of Trover was brought for Goods , Jeofayle . and the Defendant pleaded a bargain and sale in open Market , thereupon they were at issue , and found for the Plaintif ; and now the Defendant spake in arrest of judgement , because the Plaintif had shewed no place of conversion ; No place of conversion . yet notwithstanding by the opinion of the Court the Plaintif shall have his judgement by the Statute .

Peryam

If in Debt upon an Obligation he doe not shew the place , 36 El. rot. 266. yet if the Defendant plead a collaterall bar , as a release , or such like , judgement shall be given for the Plaintif notwithstanding , by the Statute , if it be found for him by Verdict .

8.

THe case of Beverley was moved again at this day , Utlary . how the Queen had brought a Scire facias against him , to shew wherefore she should not have the Presentation .

Walmisley

It seemeth that she shall not have the Presentation ; for allthough we have recovered our Presentation , Disseiser outlawed . yet before execution we have but a right . As if a man be disseised , and after outlawed , he shall not forfeit the profits of the land . And allso she hath brought a Scire facias , and this will not lie , except for him which is party , or privy .

Peryam

After that you have recovered , it is a chattle , and then forfeited by the Utlary .

Anderson

The judgment that he shall recover , doth not remove the Incumbent , and as long as he remains Incumbent , the Plaintif hath nothing but a right .

Then Peryam sayd to Walmisley , argue to that point , whether he hath but a right or no , but for the other point , that she shall not have a Scire facias , for want of privity , that is no reason , Recoverer in debt outlawed . for in many cases , she shall have a Scire facias upon a Record between strangers .

Anderson

If I recover in debt , and after am Outlawed , Recovery in quare impedit . shall the Queen have this debt ?

Windham

If I recover in a Quare impedit , and dye , who shall have the presentation , my Executor or my Heir ?

Sed nemo respondit .

Curia

It is a new , and a rare case , and therefore it is good to be advised :

Walmisley

Whatshall we in the mean time plead in bar to the Scire facias ?

Curia

Demur in Law if you hold the matter insufficient .

Walmisley

Sowe will .

9.

ONe Combford was robbed within the Hundred of ▪ Offlay in Stafford-shire , Hue & Cry . and he and his servant pursued the Felons into another County , and there one of the Felons was taken , and the Hundreds did nothing . And now Puckering moved that he might have an Action against the Hundred , Plaintif a Hundreder . allthough that he himself was resiant within the same Hundred ; Hue and Cry by strangers . but the opinion of the Court was against him ; for they sayd that if a stranger make Hue and Cry , so that the Felons be taken , the Hundreds are discharged . Another question he moved , because that but one of the Felons was taken . Qua●re . But qu●re what was sayd to that ; for I heard not .

10.

FRancis Ashpool brought an Action against the Hundred of Evenger in Hampshire , Hue & Cry . for that he was robbed there . And the Jury found a speciall Verdict , viz. that he was robbed after the setting of the Sun , & per diurnam lucem , and that afterwards the same night he came to Andever , which is in another Hundred , and there gave notice of the robbery , and the morning following , the men of Andever came into the Hundred of Evenger , and there made Hue and cry about ten a clock in the morning , and that there were many Towns nearer to the place where he was robbed than Andever was , and allso within the same Hundred of Evenger , and that the Melafacters escaped , and they prayed the advise of the Court. Now this matter rested on two points , Robbery after Sunset . the first was , if he which is robbed after the Sun-set , shall have the benefit of the Statute , and the other was , if he had made Hue and cry accordingly , Hue and cry or whether any Hue and cry be needfull . And Walmisley argued that he which is robbed after the Sun-set , shall be helped by the Statute , for they are bound to keep watches in their Towns to take night-walkers . And to the second he said , that the Statute doth not speak of any Hue and cry , but only recens insecutio , and that ought to be done by the Hundreders .

Shuttleworth

to the contrary ; No distcess .

and that it ought to be in the day , and cited Stamf. fol. 35. and after the Sun-set it cannot be said to be day . For the Lord cannot then distreyn for his Rent per 11 Hen. 7. 4. nor demand Rent , for he is not bound to be there after the Sun-set , and he vouched Fitz. titulo core . 302. but at this time the Judges seemed to hold for the Plaintif .

Anderson

The Countries are bound by the Statute to keep their Country in such sort , so that men may safely travell upon their way .

So that at this time the Court held that he should be aided by the Statute , and also that no Hue and cry was necessary or convenient to be made by the party , but they were not resolved , and therefore they gave a day to have it argued again .

11.

AN Action upon the case was brought for these words , Normans case . thou wouldest have stoln a piece of cloth , or else thou wouldest have delivered it to my Wifes Daughter , and thou art a thief and an arrant thief , and I will prove it , and upon not guilty pleaded , it was found for the Plaintif . And the Defendant spoke in arrest of Judgement , because the former words proved but onely an Intent , Words . which was no Flony , and the last words shall be referred thereunto , and therefore the Action not maintenable . But now Shuttleworth moved for Judgement for the Plaintif , because the last words are sufficient by themselves , and shall not be referred to the former , because they were spoken absolutely by themselves , and so was the opinion of three Justices ( Anderson absente )

Rodes

Otherwise it is if the words had been , Therefore . and therefore thou art a thief .

12.

SAmuell Hayles brought an Action of debt upon an Obligation , the Condition was , that if the Defendant did pay to the Plaintif 40. l. within twenty dayes after the retourn of one Russell into England from the City of Venice in the parts beyond the Seas , that then , &c. and the Defendant pleaded in Bar , that Russell was not at the City of Venice , whereupon the Plaintif demurred in Law , and at this day the Record was read and clearly per 3. Justices ( Anderson absente ) it is no good Plea . For in such cases , where parcell is to be done within the Realm , and parcell without the Realm , they ought to plead such a Plea as is triable in this Realm , and therefore they commanded the Serjeant to move for Judgement when Anderson was present , and so he did the last day of the Term , and Judgement was given for the Plaintif by all the Court.

13.

IN Trespass by Moor against Hills , Attornment the Defendant pleaded that the Dean and Chapter of Westminster , made a Lease t● one Payn , who , made Leases out of it , first to A. for certain years rendring Rentand after the end of that Lease , then to B. rendring Rent ; and afterwards sold all the entire interest to the Defendant , to whom the second Lessee ( which had no possession ) Attorned ; Possession . And the Plaintif moved that he might plead a better Attornment , for this is not good , because it is no Attornment . And so was the opinion of the Court , and therefore they gave him day to amend his Plea , or else let a Demurrer be entred .

14.

VPon a wager of Law , Payment by estranger . it was said by Anderson , that if I am bound to you to pay you a certain sum of money , and a stranger deliver you a Horse by my assent , for the same debt , this is no satisfaction . So if I be indebted upon a simple contract , and a stranger make an Obligation for this debt , the Debtor cannot wage his Law , for this doth not determine the Contract . Et nullut dedixit .

15.

BEtween Peirce and Davy this was the case . Legacie . A man covenants with I. S. to pay to A. B. and C. every of them x. l. at the age of twenty four years , and makes an Obligation to perform the Covenant ; And afterwards makes his Will in this sort . Item , I will that every one of my Wifes Children , viz. A. B. and C. shall have every of them x. l. at their severall ages of 21 years , in performance of my Bond and Covenant , in that behalf made at the time of my Mariage , and not otherwise , and dyeth . Then A. B. and C. sued in the spirittuall Court , Prohibition . for these Legacies , and Peirce brought a Prohibition , and they prayed a consultation , and the Court seemed to encline to their demand , because they were all strangers to the Covenant , but yet they would not absolutely grant it ; And afterwards in Termino Pasch. 30. it was moved again , and then the Court doubted , because it was not given as a Legacy , allthough that it was payable before , for that it was given in performance of the Covenant , and not otherwise , and Anderson and Rodes said precisely that a consultation should not be granted , sed alii haesitabant . But yet they all thought it good reason and conscience that it should be payd , wherefore they compounded the matter , and gave day to Peirce to pay the money , and 2 pound 8 pence , to them which had sued in the Spirituall Court for their costs . The same Testator allso devised diverse summs of money to his Wife , to pay to the said A. B. and C. in performance of his Covenant , who had the money accordingly . And in debt brought upon the Obligation for the same Covenant the Executor pleaded plene administr ▪ 〈◊〉 . and upon the Evidence all this matter appeared , and the opinion of the Court in the Exchequor was , that it shall be assetz . and so adjudged there .

16.

BUrnell of Shrewsbery was robbed in Buckinghamshire , Hue and cry . and thereupon he brought his Action against the Hundred , who pleaded not guilty , and the Jury found a speciall Verdict , viz. that he was robed the day and year specified in the Declaration , but in another place within an other Parish than he had alleged , but they found allso that both the Parishes were within the same Hundred , and thereupon they prayed the advise of the Court. And three Justices ( Anderson being in the Starchamber ) held clearly that the Plaintif shall have Judgement , and they said , that so was the opinion of my Lord Anderson allso , for it is not materiall within what Parish he is robbed , so that it be within the same Hundred .

17.

RIchard Hamington Administr . of the goods and Chattels of Isabell Oram brought an Action of debt against James Richards and Mary his Wife , Future charge by possibility . Administraterix of the goods and Chattells of Laurence Kydwelly , upon a bond for performance of covenants , and the case was such . Tenant for 31 one years deviseth to his Wife as long as she shall be sole and Widow , the occupation and Profits of his Term , and after her Widowhood expired all the Lease and interest to Reignold his Son , and dieth , and the Wife hath the Term by force of the Devise , and he in the Reversion by Indenture bearing date . quinto Decemb. An. Mari●● primo , did give and grant , bargain , and sell , all that his Tenement to the Wife and to her Heirs for ever . And also did covenant to make further assurance , and that at the making thereof , it should be discharged of all former Bargains , Sales , Titles , Rights , Joyntures , A Feoffment . to her and after also . Dowers , Morgages , Statutes Merch. Statutes Staple , intrusions , Forfeitures , Condemnations , Executions , Arrerages of Rents , and all other charges , ( except Rents and Services which shall be due after , &c. to the chief Lord ) And afterward he made and levyed a fine ; And after the Wife maried , and then the Son entred , and the Administrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion , and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares .

Walmisley

It seemeth that Judgement shall be given for the Plaintif , because it was not discharged at the time of the Feoffment . For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age , Com. fo. 539. after at his full age the Son shall have it , so that there it was chargable to the Entry of the Son hereafter . And here allthough that it be not presently charged , yet when there is a charge arise , the Covenant is broken . And for that in 8 Eliz. a man bargains and sells Land , Rent charge future . and Covenants that it shall be discharged of all charges , and he had granted a Rent before to begin twenty years after , when the Rent begins it shall be said a breach . And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land ▪ &c. And so I think Judgement shall be given for the Plaintif .

Fenner

to the contrary ,

and here the Term was extinct by the grant end sale , and then the Feoffment void , and therefore no charge , and thereupon no charge at the time of the Feoffment , and for that he cited 42 Ed. 3. & 11 Hen. 7. 20. where Tenant in Dower infeoffs the Heir without deed , &c. so here , in that she took nothing by the Feoffment , there was no charge at the time of the Feoffment . And this possibility of a remainder doth not make an interest , and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35 , Resceit upon Cond . where Tenant for life lets the Land to one upon condition , that if he dye in the life of the Lessor , that it shall retourn to the Lessor , &c. upon such a matter he may be received , and he cited for that the case of Wheler , 14 Hen. ● . fol. 17. and a title suspended is no title , 3 Hen. 7. 12. & 30 Ed. 3. Lease for life upon condition , that if the Rent be behind , then he shall retain the Land , &c. and he said that the opinion of B●omley in Fulmerstons case was contrary thereunto ; but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley . And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso . And so it seemed to him that the Plaintif shall be barred .

18.

THE case of Fr. Ashpool was moved again by Fenner , Hue and cry . and it seemed to him that the Plaintif ought to make Hue and cry , for as he said it hath allwaies been the manner of pleading , and allso it hath been allwaies parcell of his issue to prove . Allso he argued that he should not have remedy by the Statute , post occasum solis ; For Stamford saith expresly , that if a man be robbed in the day , that he shall have remedy , and the day shall be said but from the rising of the Sun to the fall thereof , for the words of the Statute are , that the Gates of the walled Towns shall be shut , ab occasu usque ad ortum solis , and then if the Gates be shut , and that walled Town be within a Hundred , how can they make Hue and cry ? And the case in 3 Ed. 3. is not like to this case , Fresh suit by the Hundreders . for there it was enquired and found of the Dozen .

Anderson

The fresh suit mentioned in the Statute , ought to be made by the Inhabitants , and not by the parties , and I am of your opinion , that Hue and cry was at the Common Law , but what of that ? But look the Statute , and there is no word of Hue and cry . And the Statute of 28 Ed. 3. is an exposition of that Statute , and there is no mention thereof , but Fresh suit is there mentioned , which ought to be made by the Inhabitants . And by those Statutes it seemeth clearly that the Inhabitants ought to guard the Country in such sort , as men may safely travell without robbing . And for the night , Sir , wee ought to construe it , as it is most reasonable , and about the setting of the Sun is the common time of robbing , and therefore if this shall not be intended by the Statute , nothing shall be intended ; and allthough the walled Towns cannot persue , Walled Towns may keep the ▪ waies . yet they may keep the waies so , that no robberies shall be committed , and this is both day and night as I think . And if a man be slain in the robbery so that no Hue and cry can be made , I doubt not but the Country shall answer for the robbery , A man is robbed slain and bound . and so if he be bound : And if Hue and Cry ought to be , when ought it to be ? For if a man be bound two dayes together , he had as good make no Hue and cry , as make Hue and cry afterwards , and yet I hope you will agree that this man shall be relieved by the Statute ; which case was agreed by all the Court.

Peryam

The day without doubt is after the Sun-set . Day after Sun-set .

Rodes cited the case of waging Battail in an Appeal in Stamford . And so by agreement of all the Justices , Judgement was entred for the Plaintif ; but Fenner sayd privately , that in his conscience it was against the Law ; yet notwithstanding all the Judges were clear in opinion , and the Serjeants of the other part allso .

So that it seemed to the Judges , that no Hue and Cry is necessary by the party ; for they all agreed that the Country ought to be kept so that no Robberies be committed . And Anderson and Rodes affirmed precisely , that it is not necessary , and the other agreed in the reason thereof , and sayd that it is not mentioned in the Statute , but sayd that the waies ought to be kept so that men may travell safely , or otherwise it is against the Statute .

19.

IN a Writ of False Judgement brought against the Mayor , Tryall . Sherifs , Citizens , and Commonalty of Norwich , it was moved where the Issue shall be tryed , and per Curiam it shall not be tryed there , but yet the Action may be used there . And in the same case it was demanded , Summons . if the Sherif may summon himself , and the Court answered that he could not , and Peryam sayd that so it hath been adjudged here many times .

20.

THe ●ast day of the Term the matter of Lassels was moved again , and it seemed to Anderson that the Obligation is voyd , in that there is an express form limited by the Statute , and this varying from the form in substance , is voyd ; for in his opinion he excludes the party from his advantage given him by the Statute . But all the other Justices held opinion against him ; for they sayd , that a man ought to appear in proper person upon a Latitat , which Anderson denyed , and sayd that the Latitats are not but of threescore yeares continuance , which the other day Peryam had affirmed , and he seemed to mislike with the Latitats . And the Serjeant moved for their resolution in the case .

Anderson

All my Brethren are of opinion against me , wherefore take your judgement accordingly . And so judgement was entred for the Plaintif .

21.

GAwon brought Debt upon an Obligation against White , Traverse . with condition that if the Defendant suffer the Plaintif his Tenants and Farmers to enjoy such a Common , that then , &c. And the Defendant pleaded conditions performed , and the Plaintif assigned for breach , that he did not suffer A. B. his Tenant to enjoy , &c. Absque hoc , that he performed the condition . And it was sayd by the Court , that this Traverse was not good , no more than if one be bound to perform the covenants in an Indenture , and the Defendant pleads that he hath performed all , generally , if the Plaintif assign his breach , he shall not say further , Absque that the Defendant hath performed the covenants ; for so much he had sayd before . But Walmisley would have put a difference between the cases , because in the one there were divers covenants to be performed , but not so here .

Anderson

If a man plead a Plea which is sufficient of it self , and take a traverse allso , you will grant that this Plea is not good , quod fuit concessum , and this Plea had been sufficient of it self onely , quod fuit concessum , ergo the traverse was not good without question .

Et sic opinio totius Curiae .

22.

GOverstone brought a Replevin against B. Rent charge who avowed the taking for a Rent charge granted to him by the Duke of Suffolk , And this was the case , The Duke was seised of three parts of a Mannor , and granted a Rent charge to the Avowant ; And one Pole was seised of the fourth part ; and Hatcher purchased the Dukes three parts , and the part of Pole allso , and demised a fourth part to the Plaintif ; but the Serjeants could not agree whether it was Poles fourth part , or otherwise the fourth part generally ; and as it seemed to the Court , if it were the fourth part of Pole , then the Avowry is not maintainable ; but otherwise if it were the fourth part generally . And after in Michaelmas Term the case was rehearsed again , and it was that he demised eandem quartam partem to hold at will . And all the Justices agreed that it shall be discharged , because it was never charged , allthough once he might have distreined in all the Mannor ; Vnion of possession . for that then there was no fourth part , for all was alike in the hands of the purchaser , but now when the fourth part is in the hands of a stranger , it is no reason that it shall be charged .

Walmisley

But the Tenant at will hath nothing but the profits by the way of taking , Tenant at wil. and not any land ; but if Hatcher had made a Feoffment , then I agree that it shall be discharged .

●eryam

And as well shall Tenant at will take the profits in his own right , as long as the will doth continue ,

wherefore judgement was given for the Plaintif .

23.

LEssee for years , Wast . the reversion in fee to Constance Foster , and the Lessee granted over all his term and interest to A. B. Pasch. 18 El. reserving and excepting all trees growing in and upon the premisses , Rot. 420. the Lessee makes wast and destruction in the trees , and C. F. brought Wast against the assignee , and if this action will lye or no , was the question , wherein it was disputed , whether this exception and reservation made by the Lessee be good or no ; for if the reservation be voyd , then the action will lye well against the Assignee , and thereupon these cases were put , to shew both what interest the Lessor and Lessee have in the Trees , viz. 33 Hen. 8. 2 Hen. 7. 42 Ed. 3. 21 Hen. 6. 46. 27 Hen. 6. Wast in Slatham , & 2 Eliz. fol. Danseyes case , & 7 Hen. 6. & 12 Ed. 4. but to prove the reservation voyd Fenner took this ground , That thing which a man cannot grant , he cannot reserve ; and the Lessee cannot grant the Trees , ergo , he cannot reserve them . And afterwards judgment was given for the Plaintif , for default of pleading on the part of the Defendant ; but for the matter in Law two Judges were against the other two , so that they could not agree .

De Term. Mic. An. Reg. Eliz. xxix . & xxx .
1.

AN action of Debt was brought by Bret against Andrews upon an Obligation indorced with condition to stand to the arbitrement of A. B. Request . who did arbitrate that the Defendant should pay to the Plaintif xx●l and appointed no certain day of payment ; and the Defendant in pleading confessed the arbitrement ; but he sayd further , that the Plaintif did never require him to pay it , and thereupon the Plaintif demurred in Law , and upon reading of the Record , the Court held clearly , that it was no plea , because the Defendant at his peril ought to make payment within convenient time , and the Plaintif needeth not to make any request . And Anderson commanded to enter judgment accordingly .

2.

FEnner moved this case , Possibility of Interest . a man deviseth lands to his Wife for term of her life , and if she live untill his sonne come to the age of 24 yeares , that then he shall have the lands ; and if she dye before he come to that age , that then I. S. shall have it , untill his sonne come to that age , and dyed ; then I. S. dyed before the wife , and after she dyed before the sonne came to 24 years , if the Executors of I. S. shall have the land untill the sonne come to that age or no , was the question . And the opinion of all the Court was , that they shall not have it , because their Testator had never any interest vested in him .

Fenner

But here was a possiblity of an interest .

Curia

But that is not sufficient .

Rodes cited the case of Bret and Rigden in the Commentaries . Grant .

Anderson

If I grant you , that if you pay me xxl. at Easter , then you shall have an Annuity of xl s . to you and your heirs , if you dye before Easter , now your Heir shall never have it , and so in this case .

3.

THatcher recovered in an Assise of Novel disseisin against Elmer for Lands in Hackney in Middlesex , Redisseisin . and after Elmer re-disseised him , and Thatcher re-entred , and Elmer disseised him again . And Fleetwood moved the Court if Thatcher may have re-disseisin , because that after action accrued to him he had re-entred .

Anderson

What is the Judgement in this Action ? Judgement . Surely it is not that he shall recover any land , but double damages , and that the Defendant shall be taken , and shall make a Fine ; wherefore forasmuch as he shall recover no land , the entry into the land cannot purge the offence and wrong , which is made punishable by the Statute ; and so was the opinion of the whole Court .

And the Court then held opinion likewise , that if a man be disseised , and after re-enters , and is disseised again , Assise . that he ought to have an Assise of the last entry , and not of the first , 27 Ass. pl. 42.

4.

ONe Powell was sued in the Common-Pleas , Privilege . and as he was coming to Westminster , he was arrested in London , and thereupon had a common Writ of Privilege surmising that he was coming to retain Counsell ; and Walmisley prayed that he might be examined whether he did so or no , but the Court would not .

Walmisley

It is no reason that if he be going about other matters he should have the privilege of this place .

Curia

A hundred Writs have been allowed without any examination .

Walmisley

In 10 Hen. 6. & 4 Hen. 7. such an examination was made .

Anderson

But that was not de rigore Juris ,

and all the Court refused utterly to examine him . But Walmisley sayd privily , that it was against the Law .

5.

DOrothy Millington brought Debt against J. Burges for 9 l. and declared that he bought certain Oad ; Wager of Law . and the truth of the case was , this Oad was sold to him upon condition , that if she did not prove it to be good and sufficient , then he should pay nothing for it , and all this was disclosed by the Defendant upon his Wager of Law . Detinue .

Windham

If the case be so , then you may wage your Law ,

and it was sayd , that she must have detinue for the Oad .

6.

IN an Avowry made by the Lady Rogers , Title in avowry . it was sayd by the Court ( Anderson absente ) that it is sufficient for the Avowant to plead his Freehold , but if the Plaintif will traverse the same , he ought to make himself a title . Nelson Pronotary , so are all our Presidents .

Peryam

It is not sufficient to make it of his own seisin , but he must make it Paramount his own seisin .

7.

WAlmisley moved for Judgement in the case of Richard Hanington for the Plaintif . For he sayd that it was not clearly discharged , because of the possibility of the charge ensuing , allthough the charge were not then presently executed ; in proof whereof , he sayd that it is not all gone by the acceptance of the Feoffment , and then it is a bargain , for a Lease for years is a bargain ; for there he hath quid pro quo . Allso it is a Title , as in Nichols case in the Commentaries : And then allthough he had nothing which he could release , because it was casuall whether it shall happen or no , yet now when it happens it is a charge ab initio , and thereupon he cited 9 H. 6. where one which had nothing but a possibility may maintain . And so where a man makes a Feoffment , and covenants that it shall be discharged , as here ; and afterwards his Wife recovers her Dower , the Covenant is broken , and yet it was but a possibility . And 8 Eliz. where a man covenants that it shall be discharged , and he had granted a Rent charge to begin twenty years after , this was not discharged . Fenner argued to the contrary for the reasons moved by him before .

Peryam

Here allthough it be no charge at the time of the Feoffment , yet it is not discharged ; for if it were discharged , then it shall never be charged afterwards .

And so was the opinion of all the Court ( Anderson absente ) and after at the end of the Term when Anderson was present they were all agreed that it was an incumbrance , and not discharged of the incumbrance , and therefore they gave Judgement for the Plaintif .

8.

IN Avowry by Johns of Surrey Esquire , Tenure . it was sayd by Anderson for Law , that if a man before the Statute of quia emptores terrarum , makes a gift , and reserveth to himself upon every alienation the value of the Land by a year , this shall be adjudged according to the value of the Land at the time of the tenure , and not that whereunto it is enhau●ced at this day , for a tenure ought to be certain when it is made .

9.

●Aven brought Debt upon an Obligation against Stockdale who pleaded non est factum , Statute 23 H. 6 and the Jury in Norfolk found this specially Verdict , that the Defendant was sued by the Plaintif , and made a Bond to the Plaintif endorced with Condition , that if the sayd S. did personally appear in the Queens Majesties Court called the Kings bench , and then and there make answer to such matter as the Plaintif should object against him , the sayd Plaintif giving him warning , that then , &c. And the Plaintif was neither Sherif nor Sherifs Officer , for the pretence of the Defendant was to avoyd it by the Statute of 23 Hen. 6. And now the Plaintif prayed Judgement .

Anderson

The case is no more than this ; A man is bound to another to appear at his suit in the Kings-bench , and doth not so , if this Obligation shall be avoyded , and I see no colour to avoyd it ; for it is not within the Statute ,

and all the Judges agreed clearly , that it is not within the Statute , and therefore they gave Judgement for the Plaintif .

10.

BLosse brought Trespass vi & armis against Halmon for taking of his Goods , Possession . the Defendant pleaded not guilty , and the Jury found a speciall Verdict , that the Plaintif at the time of the Trespass supposed was of the Mystery of the Grocers , and that the Defendant was his servant , and put in trust to sell res & mercandisas detempore in tempus in shopa sua existen . and he took those goods and carried them away , &c. and they prayed the advise of the Court . The doubt was because the action was vi & armis , whereas the Defendant had the custody , or if this shall be called a custody . Shuttleworth for the Plaintif , and he cited the case in Littleton fol. 15. if I deliver my sheep to compost your land , Sheep . and you kill them , I shall have trespass , whereto the Justices agreed , and held clearly that he shall have this action well enough . Auctority .

Peryam

he hath but an auctority only , and not any custody or possession . v. 2. E. 4. 22. 2 E4 . 8. 22 E. 4. 5. 13 E. 4. 9. Tenant at will ought not to cut down trees nor abate . 3. H. 7. 12. 21 H. 7. 14. the case of Butler .

11.

TRespass by Foster against Pretty and his wife , Title . who justified that I was seised and made a lease to them for yeares , &c. the Plaintif replied de son tort demeasne , Absque hoc that he leased , &c.

Peryam

Will you take a Traverse and not make your self a title ?

Curia

without question you ought to make your self a title , otherwise it is if the Defendant claym a Common , or such like , and no possession of the land .

11.

BRet Plaintif against Shepheard , Appara●ce . the Condition of the Obligation was to appear at his Suit in the Kings-bench , and upon Condition performed pleaded , Triall by the Record . the issue was found for the Plaintif . And now he spake in arrest of judgement , for that the triall ought to have been by the Record , and not by the Country . And so was the opinion of the Court . But Radford Pregnotary said that the triall was good enough , for it may be that he appeared there , and yet there is no Record made thereof ; to whom it was answered , that then it is no appearance if it be not recorded ; and Radford replied , suppose that there is not any such suit there ? how then can it be recorded ? but the rule of the Court was ut supra , for then the Obligation seemeth to be single .

13.

THe case of Calgate against Blyth was now again argued by Fletewood for the Plaintif . And first he said that the limitation by the Wife is not good , for which he took this ground , that alwaies when a man shall gain a fee simple by matter of conclusion of Record , that he shall be seised to his own use , And here the Husband had a fee by conclusion by the fine , and therefore his limitation good only . Carill . And there upon he put a case reported by Carill , who was a grave man , Fine levied and very learned in the law . That if Husband and Wife levy a fine to B. who rendereth to them again for life , the reversion shall remain in the Conisor to his own use , Also he put another case put by Baldwin in the time of H. 8. Grant of all Estate . that a man seised in right of his Wife grants totum statum suum to another , the grantee shall have it no longer than during the life of the Husband if his Wife overlive him , but if she have issue by him , then he shall have it during the life of the Husband absolutely . Fine . And if two tenants in common in●eoff B. Fe●ff●●ent . in see to their use , they are then tenants in common of this use , Diff●●●n●● per Tenants ●n common . but if they levy a fine to B. to their use , then they are Joyntenants . And in Queen Maries time a parson of a Church , by licence of his patron and ordinary levied , fi Parson levies a F●e . a fine of a portion of his Rectory , and it was adjudged that it shall be to his own use in his naturall capacity ; Bishops . the same law is if a Bishop levy a fine , and he cited 1● . H. 4. 1. the first case , and so he prayed judgment for the plaintif . Anderson chief justice rehearsed the case , and first he said that the Wife without her Husband cannot limit the use without doubt , And here the case is no more , but whether the husband may limit the use without the privity of his Wife , and I think it a strong case that he cannot . Notice of a use . If Husband and Wife have an use , and they grant it over to one who hath notice of the Use , this shall be to the use of the Wife again ; What a use is . and he defined an Use to be an intent and trust to convey lands , and cited 6. H. 7. and that when the interest of the inheritance is in the Wife , Fine . if Husband and Wife levy a fine , this shall be to to the use of the Wife , for the use ariseth out of them which give the land , and not by the Conises or Feoffees , for they neither grant nor give the use , Feoffment by he Husband alone . and then it shal be to the use of the Wife again . But if the Husband alone make a Feoffment , this shall be to his own use , and the Wife after his death shall be driven to her action . And if the wife had been privy or assenting to the limitation , Assent without naming . although she had not been named , yet it should be a good limitation , but the Jury have found that she was not privy ; And a case was here adjudged , Indenture after a fine levied . that where a fine was levied , and the limitation made after by Indenture , that this shall be to the use of the Indenture , if there be no other against it ; but in this case it is found expresly by the Jury , that shee never agreed , which doth impugn that which otherwise should be intended ; then now the case is no otherwise but that a fine is levyed , and no use is limited , but if the fine had been levied , Silence is an agreem●ni . & the Husband only limited the use , and nothing els had been done against it , then it should have been to the use limited by the Husband , because it should have been intended that the Wife had consented thereunto , and so I think judgment shal be given against the Plaintif .

Windham

I am of the same opinion , and it seemeth that their difference and disagreement in the limitation is the cause that both the limitations are void . First let us see who hath auctority to limit the use ? surely the principall owner of the land hath the principall auctority to limit the use , and here the Wife is the principall owner , What a use is . and therefore hath chief power to dispose of the use ; And , Sr. the use is the chief profit and commodity of the land , and cannot be severed from the land , no more than the shadow from the body , and this was the reason of the Statute of 27. H. 8. which draweth the possession to the use , and not the use to the possession , for the use is the principall , for by the common law by bargain & sale enrolled the land shall pass without livery , Bargain and sale . for this was a contract for the use , and then the law shall make the land to pass , The Law erects . the use . and whithersoever the use is now carried , the land and possession shall follow , but when the Law carrieth the use , it is to the owner and proprietary of the Land . The mothers heir . For if a man seised of Lands on the part of his Mother , levy a fine thereof , the use shall pass according as the land shall , because the law carrieth the use . And here the Wife cannot limit the use without her Husband , and therefore that is void , but yet it is good to this intent , to shew her disagreement . Silence Consent And if the Husband limit the use , and she doth not disagree , the law intendeth that she consenteth thereunto , because she hath joined in the fine . Sale in London by Husband and Wife . And therefore in London , sale of the lands of the Wife by deed enrolled by the Husband only is good if she assent , or if she do not disagree . And although that she shall not be examined concerning the use , yet the Law will not have her defrauded of her land by joyning in the fine , without her consent to the use ; for by that meanes every Wife may be defrauded of her land by joyning in a fine , which were a great inconvenience , and contrary to this ground in Law , that the Husband cannot dispose of the Wifes lands without her consent . And although that if the Wife had not shewed her agreement or disagreement , then it should have been to the use limitted by the Husband , yet here she hath shewed an express disassent , and so by their variance , both their declarations are void , Quare impedit . as in a Quare impedit by two , if both make severall titles , both shall be barred , and so judgment shall be given against the Plaintif . No Vse limited .

Peryam

to the same intent . First it is a plain case that if a Husband and Wife levie a fine and limit no use , then the use is to them as the land was before , Vse what it is . for the use is the profit of the land , and the Wife alone cannot limit the use , for during the coverture she hath submitted her will to the will of her Husband . Silence . And if they both levie a fine , and he onely by Indenture limits uses , Limitation after fine . if she do nothing , then his limitation is good , and the case of Vavisour adjudged here that a limitation after the fine is good . And here the Husband hath limited the use to himself for life ; Who shall limit uses . and afterwards they both agree in the limitation , now if the residue in which they agree shall be good ? I will shew my opinion therein likewise , because that also may come in question hereafter . And I think that this shall not bind the inheritance , for it is a ground in Law , that limiters of uses shall be such as have power interest and auctority of the land , and no further ; As if Tenant for life and he in reversion joyn in a fine , Fine . Tenant for life shall limit but for his life , but here by the death of the Wife the ability of the Husband is gone , for he had no issue by her , and therefore his use shall bee gone allso , for otherwise it should be a great inconvenience ; but if they had joyned in the limitation , then the inheritance of the Wife had been bound , Inheritance . shall be bound by agreement . and so it is if the Law can intend that she had agreed ; And to say that the Conisees shall take it from the Husband and Wife , and therefore the Wife to be concluded , is but small reason , for she may confesse the Record well enough , as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land , and here the limitation for the inheritance after the death of the wife cannot be good , and for their variance both are void . And so I think judgment shall be given against the Plaintif . Rodes to the same intent , for the Jury hath found that the Wife did not agree , and this speciall finding shall avoid all other common intendments . Intendment . And the intendment of the party shall overthrow the intendment of the Law , and he cited Eare and Snowes case , where it was found that the wife had nothing . And he cannot limit uses farther than he hath estate in the land , and therefore judgment shall be given against the Plaintif .

Anderson

then enter judgment accordingly .

14.

AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex , Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light , and thereupon prayed the advise of the Court , And now all the Judges were agreed , that for because the Robbery was done in the night , and not in the day , therefore the Hundred shall not be charged , and they commanded to enter iudgment accordingly .

15

BEtween Cogan and Cogan the case was , Copulative . that the Defendant had sold certain land sowen with oad to the Plaintif , and that if any restraint shall be by proclamation or otherwise , that it should not be lawfull to the Plaintif to sow and make oad , then he should have certain mony back again , and after proclamation came that no man should sow oad within four miles of any market Town , or clothing Town , or City , or within eight miles of any Mansion House of the Queen , and the Plaintif shewed the Land was within foure miles of a Market Town , and because he did not averr that it was a Cloathing Town also , the Defendant demurred in law , And all the Judges held , that he had shewed sufficient cause of his Demurrer , for the meaning was to restrain by the proclamation aswell all manner of market Townes , as those market Townes which were clothing Townes . And after Puckering shewed that the restraint was onely from sowing oad , and not from making , and their Contract was that if any restraint should be from sowing and making , in the copulative , whereby he thought the Plaintif should be barred , quod Curia concessit .

16.

BEtween Cock and Baldwin the case was , Pas . 29. Eliz. that a lease was made for 21 yeares to one Tr●w penny and Elizabeth his wife , Rot. 1410. if he and shee , Copulative . or any child or children between them lawfully begotten , should live so long ; And after they were married the wife died without issue ; if the lease be thereby determined or no was the question ? because it is in the conjunctive ( he and she ) and now one of them is dead without issue ; and this case is not like Chapmans case in the Commentaries ; where one covenants to infeoff B. and his heires , for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live , and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life , if one dye , the other shall have all by survivour , because they took it by way of interest ; Difference . but if I let land to two to have and to hold for the lives of two other , if one of them dye , the lease is gone , quod fuit concessum , and here the lease shall be determined by the death of one , because so was the intent .

Rodes

the meaning seemeth to be conrrary , for by the ( or ) which commeth afterward , it appeareth that they should have their lives in it .

Peryam

Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward , that the intent was that the lease shall not be determined by the death of one of them , and the reason which moved the Lord Anderson to think so was , because the state was made before the marriage , and so it is as a joynture to the wife , and therefore not determined by the death of the one .

And after they all gave judgment accordingly .

17.

WAlgrave brought trespass quare vi & armis against Somersetbeing Tenant at will , Trespass vi & armis against Tenant at Will Wast . and the Defendant demurred in law whether such an action will lie against him or no , it was for cutting down of trees , And at this day Anderson rehearsed the case , and said that they were all agreed , that the action will lye well enough vi & armis , for otherwise he shall have no action , for wast is not maintainable , and Littleton saith that Trespass lyeth , & so seemeth the better opinion , in 2 E. 4. 33. for otherwise this being a common case , it shall be a common mischief ; And he commanded the Pregnotary to enter judgement for the Plaintif .

18.

Snagg moved to stay Judgdment in the case of Blosse , Property . and he cited 2 Ed. 4. 4. If the servant of a Mercer take his goods , Trespass will not lie , ( sed vide librum ) and he cited 3 Hen. 7. 12. that it shall not be Felony in a Shepherd or a Butler .

Windam

If he had imbezeled the goods , it is Felony , and for the case of 3 Hen. 7. it is Felony without question , Property .

quod fuit concessum .

Anderson

The servant hath neither generall nor speciall property in the goods , Taking Embezeling . and he shall have no Action of Trespass if they be taken away , and therefore if he take them , Difference . Trespass lieth against him , and if he imbezell them , it is Felony ,

wherefore he commanded to enter Judgement for the Plaintif .

19.

THomas Taire and Joane his Wife brought an Action of Wast against Pepyat , Pas . 25. Eliz. and declared how that the Defendant was seised in Fee , Rot. 602. and made a Feoffment to the use of himself for life , Wast . and after to the use of the Mother of Joane in Fee , who died , and it descended to her , and after the Defendant made Wast , &c. The Defendant pleaded that he was , and yet is seised in Fee , Absque hoc that he made the Feoffment in manner and form , pro ut , &c. And the Jury found a speciall Verdict , that the Defendant made a Feoffment to the use of himself for life , but that was without impeachment of Wast , the Remainder in Fee as before . And the Plaintif prayed Judgement , and the doubt was , because they have found their issue , and more , viz. that it was was without impeachment of Wast .

Anderson

Whether it were without impeachment of Wast or no , was no part of their issue , and then the Verdict for that point is void , and the Plaintif shall have Judgement .

Windham

The doubt is for that they have found that the Defendant , is not punishable , and where a Verdict discloseth any thing , whereby it appeareth that the Plaintif ought not to Recover , Judgement thereupon ought to be given against him ; As in detinue , the Plaintif counts upon a Bailment by himself , Bailment . and the Jury findeth , that another Bailed to his use , the Plaintif shall not Recover .

And a Serjeant at the Bar said , that the issue , is not found .

Anderson

That which is found more than their issue is void , Assise . and therefore in 33 Hen. 6. where the Tenant in Assise pleades nul Tenant de franktenement nosme en lasise & ●i tro●● ne so it . &c. and the Jury found that he was Tenant , but that he held jointly with another , and there the Plaintif Recovered , and so he shall here .

And at length by the opinion of all the Court , Judgement was entred for the Plaintif ; for he might have helped the matter by pleading .

16.

IN debt by May against Johnson , Payment . the Condition was to pay a 100. l. to Cowper and his Wife , and by all the Court , if he plead payment to Cowper alone , it sufficeth , for payment to him alone sufficeth without naming the Wife .

15.

IN a Quare impedit by Sir Thomas Gorge , Avoydance . against the B. of Lincoln and Dalton Incumbent , the case was that a Mannor with an advowson appendant was in the hands of the King , then the Church becoms void , and after the King grants the Mannor with the advowson ; now the question was , if the Patentee shall have this presentation , or the King ? And all the Judges held clearly that the avoydance doth not pass , for it was a Chattell vested in the King , and they cited 9 Edward 3. 26. and Dyer fol. 300. but Fitzh . nat. br . is contrary . fol. 33. 11.

22.

DEbt was brought by Goore Plaintif for 200. l. Bailiwick . upon such a Bill ; Be it known unto all men by these presents , that I , Ed. Wingfield , of H. in the County of Midd. Esq do acknowledge my self to be indebted to William Goore , in 200. l. for the payment whereof I , mine Heirs , and Assigns , do licence the said G. to have and use the Baliwick of Dale ; to the use , &c. untill , &c. the Defendant pleaded in bar , that the Plaintif had used the said Bailiwick , and said no more , nor at what place he had received the money ; and Suagg moved that the Plea was not good , because he had not shewed the value , which he ought to have done : Value . and the Judges were of the same opinion , and they said moreover that this Plea is not good in bar of this specialty , for payment is no plea upon a single Bill , Licence . and he might have brought his Action upon this Bill , without using the Bailiwick ; for this Licence is no Condition . & 〈◊〉 .

De Term. Hill . Anno Eliz. xxx .
1.

AN Ejectione Firme was brought by Dorothy Michell against Edmund Dunton , Covenant . and the case was this . A man maketh a Lease for years , rendring Bent upon Condition , with a Covenant that the Lessee shall repair the Houses , with other Covenants . And after he deviseth the same Lands to the same Lessee for more years , rendring the like Rent , and under the like Covenants , as in the first Lease ; the remainder over to another in Fee , and dyeth . Then the first Lease expires , and the Lessee held in , by force of the Devise , a●d did not repair the Houses , so that if the first Lease had been in esse , Condition . he had broken a Covenant , now if this shall be a Condition , so that he in Remainder may enter , was the question .

Shuttleworth

This is a Condition , for he cannot have an Action of Covenant , and then the intent was , that it shall be a Condition . But all the Court was against him , and that the intent was not so , for the words are ( under like Covenants ) which words do not make a Condition , allthough they be in a Will.

Anderson

The nature of a Covenant is , 〈◊〉 ▪ to have an Action , and not to enter , and so all the Court held it no Condition .

And Per●●● said , that ( under like Covenants ) were void words , and therefore Judgement shall be given against you .

2.

PUckering the Queens Serjeant moved , Fee determinable . that one Adams was indebted to the Queen in a great sum which was stalled to pay yearly so much , untill all werere paid . And for security he levied , a a fine to William Lord Burghley Lord Treasurer , and others that they should stand seised to the use of Adams untill he made default of paiment of the said sum , and then they should stand seised to the use of the Queen untill she were satisfied and payed , and then to the use of Adams and his Heirs ; And after Adams by deed enrolled , sold the Land to a stranger in Fee , and after the said stranger failed in paiment of the said yearly sum , whereby the Queen seised the Land , and so continued untill she was satisfied , now the question was , who should have the Lands , Adams , or the Bargainee ?

Anderson

Ifyou will take the case according to the words , it is short , tell me , what Estate had Adams by this Limitation ?

Puckering

A Fee determinable .

Anderson

How then can the Bargainee have it when the Estate is determined ?

Puckering

But the Fee was limited to Adams and his Heirs . Possibility cannot be granted , nor released .

Anderson

This is but a possibility which cannot be granted over . And if I were a Chancellor , Adams should not have the Land , but upon the words I tell you my mind , & alii Justie . conticuerunt .

3.

DAniel Bettenham Plaintif against Debora Harlackendon ; Reversion upon a devise . the case was this , one Harlack was seised , and deviseth it to the Plaintif for years , the Remainder to the Defendant being his Wife for life , and provided that the Lessee should pay the Wife xx . l. a year for Rent , at two Feasts , and after the Plaintif failed of payment , wherby the Wife entred for the Condition broken .

Anderson

Wherefore may not a man make Reservation upon a Devise ?

Peryam

A man may reserve to himself or to his 〈◊〉 , but this is to a stranger .

Anderson

Every man which takes by a Devise , is in , in the per by the Devisor , quod fuit concessum , wherefore then shall not this be as a Reservationto the Devisor , and as a grant of the Reversion to the Wife .

Gandy .

If it shall be a firm in gross , Sum in gross . yet I think that she ought to demand it , which she hath not done .

Anderson

and Rodes denyed that case clearly , and that the contrary hath been adjudged ,

Anderson

If I Devise Lands to a man for years , rendring Rent to me and mine Heirs , Devise of a Reversion after a Term. And after I Devise the Reversion , he shall have the Rent as incident to the Reversion .

Peryam

This may be agreed , but the cases are not like .

& adjornatur .

4.

IN debt by Rostock , Waging of Law . the case was , that the Plaintif and , another made a Contract with the Defendant , and the Plaintif alone brought the Action and Walmisley moved the Court , if the Defendant may wage his Law , for it is not the same Contract , and he cited 20 Hen. 6. account before Auditors , where it was but before one Auditor , he may wage his Law , & 35 Hen. 6. is an express case in the point . And so was the opinion of the Court . Anderson absente .

5.

A Writ of Entry sur diss . Voucher . was brought by Sir Thomas Sherly , against Grateway , who vouched one Brown , and he entred into the Warranty , saving to himself a Rent issuing out of the same Land , and this was allowed by the Court , and the Voucher was in a Writ of entry for a Common Recovery to be had .

6.

EDward Smith brought his Action of the case against Winner , Slander . for words , viz I was robbed of goods to the value of 40. l. & they were stollen by Smith and his Houshold ( ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo ) and the issue was found for the Plaintif . And the Defendant spake in arrest of Judgement , because S. alone brought the Action . But all the Court said , that the Action is well brought , for the slander is severall . And Peryam that if 〈◊〉 a man say that three have robbed him , Vno flatu . and name them , uno 〈◊〉 , every of them may have a severall Action .

7.

IN an Assise by Thatcher where he was Redisseised , Redisseisin the Redisse●● was found in part , and thereupon the Court was moved , if Redisseisin will lie , in as much as it is not but of part , and the Writ is , if he be Redissesitus de ●odem tene●●nto , then Redisseisin lieth ; but the Court held that Redisseisin lieth of part , and that he shall recover damages , as they are assessed by the Jury , and not by the 〈◊〉 . Then it was moved , if Redisseisin lieth in Middlesex or 〈…〉 Fleetwood saith , that the ancient Expositors have taken it , that it doth not lie there , because it is not coram lustic . itinerant but all the Court held the contrary . And Walmisley said , that there be Writs in the Register accordingly .

8.

THe Earl of Kent brought debt upon an Obligation indorced with Condition , Time convenient . that if the Defendant do permit the Plaintif his Ex●cutor●s and Assignes not onely to thresh the Corn in the Defendants Barn , but allso to cary it away , from time to time , and at all times hereafter convenient , with free Egress and Regress , or else to pay 8 l. upon request , that then , &c. and in truth the Defendant permited the Corn to be there two years , in which time , Mice and Rats had devoured much of it , and then the Defendant threshed the Residue , and the Earl brought his Action , and there was a demurrer entred .

Walmisley

the Bond is not forfeit , for the Earl hath not taken it out in time convenient , for he ought to take it in time convenient , and time convenient is that which is not prejudiciall to any person , ( which the Justices privily denyed , ) and here it is a prejudice to the Defendant , if the Plaintif will not carry away his Corn , and thereupon he cited many cases , that things shall be done in time convenient , Arbitrement . as in 21 Ed. 4. arbitrement ought to be made in time convenient .

Anderson

Your cases are by act in Law , but here you have bound your selves , and the Condition is ( at time convenient ) and if he will come in the night , or on the Sabbath day , this is no convenient time , but allthough that he come in a long time after , yet it may be ( at ) time convenient , and the words are not ( within ) time convenient , and so was the opinion of the Court.

And Windham said , that if it had been ( within ) time convenient , there would have been a difference .

9.

MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit , Trespass . and Assigned the place in sixteen Acres of Land called Churchclose , Contents of a new assignment . and the Defendant pleaded not guilty , and the Jury found a speciall Verdict , that Churchclose conteyneth fixty Acres , whereof those sixteen were parcell , and that diverse men were seised of divers other parcells of the said close , and that Hare only was seised of the said sixteen Acres , in which , &c. & exposuit eas to the three other Plaintifs to be sown , and that he should find half the seed , and they three should find the other half , whereby the Land was sown accordingly , and that the Bore of Okely came and destroyed the Corn. Sed utrum , &c. And the doubt rested upon two points , 1. because the Verdict saith , that it conteineth sixty Acres , and so shall be intended not the same place , and the Court varied in opinion thereof , insomuch that the sixteen Acres are found to be within the close conteining sixty Acres , but for the 2 which was , that they all four joyned in quare clausum fregit , and it appeareth that three have nothing there , Verdict shall abate the Writ . but that Hare is sole seised , And for that , the Court held opinion that the Verdict shall abate the Writ , for the Defendant cannot break their close where three of them have nothing , but Hare onely .

Rodes

A Case hath been adjudged a where Che●ey brought Partition against Bury , Partition . who pleaded that they did not hold in Common , and the Jury found that he and his Wife held in Common , and yet the Verdict abated the Writ .

Windham

You will all grant that the other three have no interest in the Land ( quod Walmisley concessit ) how then can they have quare 〈◊〉 fregit ?

Fenner

Executors shall have quare clausum fregit , Executors . and yet they have no interest in the Land .

Rodes

There they have an interest for the time .

Anderson

Here is but a bargain , and no interest , and then the three have no colour to bring Trespass , quare ela●sum fregit .

10.

THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law , Avoydance . and now the Record was read , and day given over to hear the Arguments , but 〈◊〉 said , that it is all one case with that which hath been adjudged here , viz. that the Queen hath title of Lapse , and doth not present , but the Patron presents , and after the Church becomes voyd by the death of the Incumbent , that now the Queen shall not present ; but the Court answered , Difference between Death and Privation . that there the avoydance came by death , but here it cometh by privation , and whether this will make a diversity was the question .

11.

HArper brought Trespass against Spiller and Drew , Estate . upon not guilty pleaded , a speciall Verdict was found , and the case in effect was this , F. gave Lands to a woman , to have and to hold to her , & to the heirs of F. of the body of the woman ingendred ; what estate the woman had was the question ; and now the Record was read , and day given over to argue it .

12.

SHuttleworth moved the Court , Amendment . and shewed , that one Brokes by had brought a Quare impedit against the Bishop of Lincoln , and others , and the Writ was , suam spectat donationem , and this word ( 〈◊〉 ) was omitted , and he prayed the Court that it might be amended , and he cited 11 Hen. 6. 2. where it was ( imaginavit ) and it should have been ( imaginat . fuit ) and 13 Hen. 7. where the teste was omitted , and the Court took time of advisement , and at length by the opinion of all the Justice it was amendable , and then a Clerk of the Chancery came into the Court of the Common-pleas , and amended it .

13.

IN an Avowry for an Amercement in a Leet , By-law . a Prescription was made for making of By-lawes , and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants , and not for the private commodity of any particular man , as J. S. onely , or the Lord onely . As if a By-law be made that none shall put in his beasts into the common-field before such a day , this is good ; but if a By-law be made , that they shall not carry hay upon the lands of the Lord , or break the hedges of J. S. this is not good , because it doth not respect the common benefit of all : And Windha●● sayd , that some Books are , that they shall bind no more than such as agree to them .

14.

HAre brought Debt against Curson for a great sum , Capias utl●gatum . and Process continued untill Capias ●tlog . And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ , because they doubted thereof , and the Writ was delivered to the Sherif in Court ; and he sayd that he would doe his endeavour , but Curson hath long kept his house , so that he cannot come at him .

Peryam

You may take the power of the Country with you , and break his house , and take him out ; for so it hath been adjudged here ,

which the Court granted .

15.

PUckering shewed how an Action of Debt was brought against an Administrator , Asset● . who pleaded plens administra●it , and thereupon the Jury found a speciall Verdict , that certain Obligations made by the Testator to the value of a hundred pound were forfeit , and the Administrator took in the said Bonds , and gave his own Bond for the Debt , and retained the money in his own hands , besides which , &c. he had nothing , &c. and if that hundred pound shall be liable to this Action of the Plaintif , they prayed the advice of the Court ; and by the opinion of Windham and Peryam it shall not be Assets , because the property is changed in giving his own Bond for the same , Payment with Proper r●●ds . and it is , as if he had payd the Debts with his own goods ; but if he had compounded for less , Surplusage . then the surplusage should have been Assets . But Rodes was of a contrary opinion in the principall case , forasmuch as he had payd no money , but onely given his Bond for in and Anderson was absent at this day . And after at another day , the case was moved again by Shuttelworth , and then he shewed that for part thereof the Administrator had given his Bond , and for another part his promise , Promise , and he sayd that this is no payment but a composition , and therefore no change of property .

Anderson

For so much as he hath given his promise , I think it not good , because that by this promise this first debt being due by Bond is not discharged , but for so much as he hath given his Bond for , I hold it good enough , because the first Debt is discharged thereby , allthough that the Obligation be made to a stranger , Estranger . by the appointment of the Debtee , and allso before the Debt due ; for by this the first Debt is gone .

And Windham and Peryam were of the same opinion , that the Debt was discharged , and that it should not be Assets in his hands , but Rodes doubted thereof , and it was adjorned .

16.

JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants , Abatement . and after a Verdict found for the Plaintif , and before Judgement one of the Defendants died , and the Writ was adjudged to stand good against the other .

17.

IN Debt by Saunderson , Wager of Law . the Defendant pleaded nil debet per legem , and in truth the money was due to the Plaintif , but the Plaintif was allso indebted to the Defendant in the like sum , and before the Action brought , they were agreed , that each of them should be acquitted against the other , and thereupon the Defendant would have waged his Law , Concord . and Anderson and Peryam doubted much whether he might do so , or no ; for an accord without satisfaction is no plea● and Debt cannot be discharged by paroll ; No discharge by word . but Rodes sayd that it is good by consent of the parties , and so sayd some Serjeants , and Fenner cited 11 Rich. 2. tit . Bar. 242. where a man hath a Rent by way of Retainer , and Rodes cited 22 Hen. 6. & 37 Hen. 6. Payment by way of Retainer .

18.

EDward Sibill brought Debt against George Hill , Rent suspended . for Rent reserved , upon a Lease for years , and the Defendant pleaded , that the Plaintif had entred into part before any rent due , and the issue was , expulit & amovit & adhuc extra tenet , whereby it is plain , that entry into part suspends all the rent . And in Hill . Term before in the like case for rent reserved , Pleading . the Defendant pleaded nil debet per priam . and he would have given in evidence an entry before any rent due , & per Curiam , he could not doe so , but ought to plead it , ut supra ; for it doth not maintain the Issue , no more than in the case of Wast , 12 Hen. 8. 1.

19.

IN a Quare impedit by Agnes Kemp against the Bishop of Winchester , Joynt Advowson . Anderson told the Jury upon the Evidence given , that if there be four Joyntenants of an Advowson , and one of them grants over his interest , this is good , and the survivor shall not hold place . And Windham and Rodes did not gain-say it ; and Peryam was absent , but Fenner spake against it , because it is a thing entire , but Anderson clearly to the contrary .

20.

CUnuy brought an Action of Debt upon an Escape against Sir James Harrington Sherif of the County of Huntington , Escape . who pleaded that the Plaintif dedit concensum eidem Jacobo , that the prisoner should goe at large , whereby he did so .

Walmisley

He ought to plead it by way of licence , and not by consent .

Curia

The Plea is good without question , and he may take issue thereupon .

21.

TAylor brought an Action upon an Assumpsit against Fulham for payment of money , Release by word . and the Defendant pleaded that after the Assumpsit , the Plaintif released to him all Assumpsits , and this he pleaded without Deed , and the Court sayd that this Plea is not good , and they commanded Shuttelworth to demur to it , and they would give him expedition ; and he demurred to the Plea ; and Anderson was very angry with the Serjeant which set his hand to the Plea .

22.

IAne Plain was Plaintif against Sams , Tenant by curtesie . and the Jury found a speciall Verdict , viz. that one Jane Plain the Mother was seised in fee , and had issue Elizabeth and Jane now Plaintif , and by Indenture upon consideration of naturall affection to her two Daughters , covenanted to stand seised to the use of Elizabeth in tayl , upon condition following , viz. that the sayd Elizabeth the heirs of her body or their Assignes should pay to Jane ( now Plaintif ) thirty pound within one year after the death of Jane the Mother , or within one year after that Jane ( now Plaintif ) should accomplish the age of eighteen years , and for default of issue in Elizabeth , the remainder to Jane ( now Plaintif ) in tayl ; Elizabeth takes a Husband , and hath issue of her body , which dyeth without issue , and Elizabeth did not pay the thirty pound within the year after the death of Jane the Mother ; and then Jane ( now Plaintif ) came to the age of eighteen years , Disability of performance . and after Elizabeth dyed within the year after that Jane came to the age of eighteen years , without issue , and after the year passed , and no money was payd , whereby the Plaintif entred , and if the Husband shall be Tenant by the curtesie , was the question ; and upon the motion , the Court was clear in opinion , that he shall be Tenant by the curtesie ; for the condition was gone ; because Eliz. dyed within the time which she had limited to her for performance therof . And Anderson sayd , that if an estate be determined by limitation , this will not avoyd a Tenancy by the curtesie , Limitation , condition , difference . but otherwise it is if the estate be determined by a condition ; for this shall relate to the defeasance of the estate .

23.

EJectione firme was brought by Stapley against Lark , Use . and upon Evidence the case was , that Feoffees seised to the use of B. before the Statute of 27 Hen. 8. by consent of B. made a Feoffment to another and his heirs , to the use of the sayd Feoffee and his heirs , and the Feoffee had notice of the first use ; now if he shall be seised to his own use or no was the question , and all the Justices held , that he shall be seised to his own use , because the use was so expressed upon the Feoffment . And so is the Law if the second Feoffment had been in consideration of money , Consideration of mony . allthough no use had been limited , yet it should have been to the use of the Feoffee and his heirs , and not to the first use .

24.

IT was the opinion of three Justices , Disseisin . that if a man levy a Fine , sur conisans de droit come ceo que il ad de son don . &c. and after continue possession , that yet he is a Disseisor , and not Tenant at will or sufferance , and that a Praecipe lyeth against him .

De Term. Pasch. Anno xxx ▪ Eliz. Reg.
1.

IN a Writ of Annuity , it was the opinion of the Justices , that if one grant a Rent charge to B. which is paid to him , Rent charge . and after B. grants it over to C. and the Tenant of the Land attourneth , that now C. shall not have his election to make this an Annuity , but ought to take it as a Rent charge .

2.

THomas Michell brought debt upon an Obligation against Stockwith and Andrews , Seal fall off after issue . and the Jury found a speciall Verdict , viz. that after the issue joyned , and before the nisi prius , the seal of Andrews was fallen off , & si , &c.

Windham

A case hath been adjudged here , that where a Bond was delivered to the Custos brevium to be kept , and the Mise broke the seal , Custos brevium . and the Court adjudged that the Plaintif should be at no prejudice thereby .

And here insomuch that no fault was in the Plaintif , the Court awarded that he should recover , and Judgement was entred accordingly .

3.

WIghtman is Plaintif against Chartman . Conjunctim . And the case was this , two were bound in an Obligation & quilibet eorum conjunctim , and the Action was brought against one alone , and the opinion of the Court was , that it is not maintainable , by reason of this word conjunction .

4.

WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover , Avoidance . for the avoidance is by Privation , and the same party is presented again , and and if these shifts may be used , the Queen shall never have a Lapse , for then the Incumbent shall be deprived , and the same Incumbent presented : Fenner to the contrary , and said that where her title is restrained to a time , there she shall have no Prerogative , to the prejudice of a third person , nor to alter their Estates . And for that in 1 Ed. 3. if the King have a Lordship and Rent , and he grant the Lordship over , and retain the Rent , and after the Land escheats , the Rent is gone , The year day and Wa●t . as in the case of a common person , and the Queen shall have the year , day , and Wast ; but if Tenant for life dy , she shall not have it ; Dower against Guardian . And in Dower against the Guardian , if the Heir come to full age the Writ shall abate .

5.

AN Action upon the case was brought for calling the Plaintif Bankrupt , Bankrupt . and a Verdict passed for the Paintif . And now Shutleworth shewed in arrest of Judgement , that the Plaintif had not declared that he was a Merchant , or of any Mystery or trade . And the Court held the Declaration insufficient for the same cause , and made a rule for stay of the Judgement accordingly .

6.

IN a Replevin brought by Mary Colthirst against Thomas Delves , Discent of a third part . it was agreed by three Justices ( Anderson being in the Starchamber ) that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir ; And therefore they overruled it upon evidence to the Jury , that where one Barners was seised of the Mannor of Toby , in the County of Essex , and was allso seised of the Mannor of Hinton in the County of Gloucester , Entire Mannor . and all those were held by Knights service in chief , and deviseth the Mannor of Toby to his Wife for life , that his Heir at the Common Law shall have no part thereof , if the Mannor of Hinton amounteth to the third part of all his Lands . Allso they overruled , that if a man after Mariage convey a Joynture to his Wife , and dy , that after the Wife may refuse the Joynture , Refusall of Joynture . and demand her Dower at the Common Law . Allso that by refusall in the Country , she may wave her Joynture , and hold her to her Dower , and that this is a sufficient Election . Allso they held that if a man makes a Joynture to his Wife during the Coverture , Devise for Joynture . and after by his Testament deviseth other Lands to her in stead of her Joynture , that she may refuse the Joynture , and hold her to the Devise , and that this shall be good by the Statute , ( and yet Gawdy moved to the contrary , because the Statute is , that she may refuse the Joynture and hold her to the Dower , ) but the three Justices overruled it clearly , and said , that such was the meaning of the Statute , No wayving after agreement . but they agreed , that if she have once agreed to the Joynture , that she cannot waive it afterwards . Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants , and not to the Heir , that yet this is a good Refusall . And Peryam said for Law , that where a Joynture is conveyed to the Wife during the Coverture , Refusall by bringing Dower . and after the death of her Husband she say nothing , but bringeth a Writ of Dower , that this is a good Refusall , aud so he hath seen in experience .

7.

AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court , Slander . for these words , viz. John Cutts was one of those which robbed Humphrey Robbins . And they were at issue , and it was found for the Plaintif . And it was alleged in arrest of Judgement , that the words were spoken in Queen Maries time , as appeareth by the Declaration . And yet the opinion of the Court was , that he should have his Judgement , allthough peradventure robberies were pardoned by Parliament after that time .

8.

CArleton brought Entry sur disseisin against Carre , Abatement for part . who for part pleaded that he had nothing but in Right of his Wife , not named , &c. and so demanded Judgement of the Writ , and for the rest he pleaded in bar , and they joyned issue for both , and the Jury appeared at the bar , and found both the issues for the Defendant . And now the question was , whether the Writ shall abate for all or no , because for part it was found that the Defendant had nothing but in right of his Wife , or whether it shall abate but for this part onely ? And Shuttleworth argued that it should abate for part onely , and he resembled it to Joyntenancy , in which case it shall abate but in part , and he cited Dier. 291. & 7 R. 2. titulo joint . 8. & E. 1. titulo breif 860. Severall Tenancy . And Walmisley said , that it was more like to a severall Tenancy , in which case all shall abate , as in non tenure ; but Peryam said to him , put a case , where severall Tenancy shall abate all the Writ .

Anderson

Joyntenancy , and seised in right of his Wife is all one to this effect and intent , Joyntenancy . for in Joyntenancy he confesseth that he is sufficient enough , but that another hath right as well as himself allso . And so where he confesseth that he is seised in right of his Wife , he confesseth that he is Tenant , but that another ought to be named with him .

Peryam

True it is , that there is no difference concerning this purpose and intent , and if the Recovery be had against the Husband sole , he shall be bound , And at length , all the Iustices agreed , that the Writ shall abate but in part , and that Judgement shall be given for the rest , and so for that residue the Judgement was , nihil capiat per breve . vide 3 Hen. 4. 2. 13 Eliz. fol. 301.

9.

AT this day Walmisley prayed Judgement in the Quare impedit for the Queen . Lapse .

Anderson

we are all agreed that the Queen shall have Judgement for the reason of the mischief ; For otherwise , when the Queen hath a Lapse divolved unto her , one shall be Presented , and afterwards deprived , so that the Queen shall never have her Lapse . And it differeth much from the case of that avoidance which cometh by the Act of God ; for this is by the Act of the party , and the refore Covenous . And so let Judgement be entred for the Queen .

10.

A Writ was ( ad respondendum I. S. & Fidei uxori ejus ) and the Defendant pleaded in abatement of the Writ , because the name of the Wife was Faith in English , therefore they pretended that it should be Fidi .

Rodes

I know a Wife which is called Troth in English , and she was called Trothia in Latin , and it was good .

And all the Court adjudged this Writ good here .

11.

AN Action upon the Statute of Winch. was brought against a hundred in Gloucester , Hue and 〈◊〉 . and the Jury found a speciall Verdict , viz. that the money was delivered to a Carrier of Bristow , to be carried to London , who packed it up ; And as he was on his journey , certain Malefactors came to him , in an another Hundred , and there took his Horse and Pack , and led him into a Wood , within this Hundred , against which the action is brought . And if this Hundred be guilty or no , they prayed the advise of the Court ; And all the Justices agreed , that this was a robbery in the first Hundred , and not in the second , for upon the first taking he was robbed ; but if the Carrier had led the Horse himself , Possession . then it should be adjudged to be in his own possession , and no robbery untill he came into the second Hundred , and if a man have money , and the Malefactors take him in one Hundred , and carry him unto another . Hundred , and there Rifle him , this shall not be a robbery in the first , but onely in the second Hundred , for he is allwaies in possession , per totam Curiam , and Judgement was given accordingly . So of the purse picked in the Kings Bench , and the thief taken with the manner , but a key being fastened to the purse , still stuck in the pocket , and 2 Justices against two , that the man was still in possession of his purse , and so no robbery .

12.

WAlmisly shewed , Termor . how a woman brought Dower against her two daughters and another , and in truth the third was but a Termer , and the Wife hath no cause of dower but that this was onely to make the Termer to lose his term , for they all have made default at the grand cape , and now he prayed to be received , and shewed cause that the Husband made a lease for yeares , and after the Lessee levied a fine to the Lessor , and they granted and rendred back again to the Lessee for the same yeares rendring the same rent , and the Statute of Gloucester is , if the Farmour have , &c. that is , if he may have covenant , as in 19 Ed. 3. and here he may have covenant , Ejectione firme . and prayed to be received , and shewed his plea.

Shuttleworth

You are at no mischief , for you shall have an ejectione firme if you be ousted , where she hath no cause of Dower .

Walmisley

But we shall be put out of possession , which shall be no reason .

Anderson

I hold that a Termer may falsify by the Common law . Falsify .

Shuttleworth

But his lease is after our title of dower . Lesser may plead destruction of dower .

Peryam

although that it be after , yet if he have matter which goeth in destruction of the Dower , he shall falsify well enough , as if she have title of Dower and five yeares pass after the fine levied .

And Anderson and Peryam said that the Statute of Gloucester was made that a Termer should not be put out of possession , but here the Termer is named , ideo quare , And after at another day Shuttleworth moved it again , Resceit of the partie to the Writ . and said that the Termer shall not be received , because he is named in the Writ , and the Court was of the same opinion then , but they said that he might plead speciall non tenure .

Shuttleworth

first he ought to save his default , for he commeth in upon the grand cape . Rodes by 33 H. 6. 2. he may plead non tenure before default saved by Prisot there .

Shuttleworth

Then I shall have judgement against the two which made default at the grand cape . Conusance

Curia

you had best be advised , lest the Writ should abate by non tenure of parcell . Cemurier

Shuttleworth

by my Conusance of non tenure of parcell , Difference . all shall abate , but if I demurr upon his plea , then it shall abate but for one parcell .

13.

LEonard White brought a Formdon in Discender , and declared of a gift in tayl made to his father , Estoppell . who died , and the land descended to the elder brother of the Demandant , who also died without Issue , and so conveyed to himself as heir in tayl , &c. The Tenant pleaded that the elder brother had Issue a Daughter , who levied a fine to him , and he relied upon the fine and proclamation . Inducement doth 〈◊〉 make a plea double .

Walmisly

this Plea is double , the one is the Issue , the other the fine .

Curia

forasmuch as he cannot come to the one without shewing the other , it shall not be double , & also here he relieth upon the Estopple , vide 18. E. 3. 25. Tit. Gard. per Wylly .

14.

A Formdon in descend by three brethren for lands in Gavelkind , they were at Issue upon Assetz descended to the Demandants , Assets in Gavelkind . And the Jury found a speciall Verdict , that the Father of the Demandant was seised of those lands , and by his Testament devised them to his three sonnes now Demandants , and to their heires equally to be divided , And if this shall be said a descent to them or no was the question , because the Law would have done as much , and therefore it shall be said Assetz . But all the Court held the contrary , and that they shall be joynt-Tenants or Tenants in common , and then they shall not be in by the descent , and so no Assetz ; and Anderson said , that if a man devise to his sonne and heir in tayl , he shall not take it by descent .

Peryam

if a man may have any more benefit by the Devise than by the descent , then he shall take by the Devise , Eadem lex per Curiam if he devise his lands to his two daughters and heires , they shall be joynt-Tenants and no coparceners , è contra if he have but one son or one daughter only .

15.

IN the Exchequer Chamber all the Justices of the Common Pleas , and the Barons of the Exchequer , Venus . were assembled according to the Statute of 27. Eliz. to reform errors in the Kings bench . And Smaleman of the inner Temple shewed how an Action of Debt was brought upon an Obligation against one Cheney as administrator , who pleaded plenè administravit , and the action was laid in Barkshire at Newbery , and the Plaintif averred that the Defendant had Assetz at Westwood in the same County , and the venire facias was of Newberry , whereas it should have been of Westwood . And this he assigned for Error , And all the Court agreed una voce that it was Error , and so the judgement was reversed , but the Assetz being transitory might have been assigned at Newbery .

17.

ANother Writ of Error was there brought by the Lord Seymour against Sr. John Clifton upon a judgement given against him , Amendment . and assigned for error that the judgement was quod recuperet versus Edward . Seymour , and did not say praedict. Edward . Seymour . And all the Justices agreed that this was amendable , And so the first judgement was affirmed .

18.

ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench , Rent suspenpended . and the Case was such . A man makes a lease of ten acres for ten yeares rendring rent upon a Condition ; the Lessee grants 5. acres thereof to a stranger for five years ; and after grants the residue of the years in the five acres to the Lessor . And after the Lessee broke the Condition , whereby the Lessor re-entred ; and if he may do so , or if the Condition was suspended , or no , was the question , because he accepted a future interest in parcell ; Future interest . Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended , and now this was assigned for error , And all the Justices ( except . Anderson and Peryam ) held that it is not suspended before he had entred by force of his lease

Anderson

If I make a lease ( as here ) upon Condition and waive the possession , this may be suspended before his entrie .

Cook

This is another case .

Peryam

But the reason thereof commeth well to this case ; And afterwards because the said two Justices dis-assented from the rest , it was adjourned over .

19.

ANother Writ of Error was there brought upon a judgment given in the Kings bench . Trover . And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices . If a man lose his goods , which come to the hands of another , & he converteth them to his own use , and after the owner dye , Day and place of conversion . whether his Executors shall have an action of the Case for this Trover , and whether he ought to shew the place and the day of the Conversion , or no ; And the Counsellours at the bar said that he ought to shew both , for so it was adjudged , where an Alderman of London brought an action upon the Case against one Staynsham upon Trover of an Obligation , and it was found that he had broken the seales , &c. and because he did not shew the time and place of the Conversion , he could never get Judgement . And now the Justices were of the same opinion , but yet Anderson seemed to doubt .

Peryam

Executors at the Common Law shall not have Trespass for a Trespass done in the life of their Testator , and the doubt is if they shall have an Action upon the Case .

Manwood

if a man hath another in Execution for debt , and the Gaoler suffer him to escape , and after the Recoverer dyes , shall his Executors have an action against the Gaoler ?

Cook

No.

Peryam

So it seemeth . But Anderson Manwood and Windam clearly to the contrary , and that they shall have debt upon this Escape .

Cook

But not an Action upon the Case at the Common Law ; and here by his own shewing he might have Trespass vi & armis , and therefore not this action .

De Term. Trinitat . An. Reg. Eliz. xxx .
1.

RAlph Heidon brought a Writ of Right against Smethwick and his Wife , Droit . of two parts of forty Acres of Land in Surret , and they pleaded that one Ibgrave was seised , and devised it to his Wife , now one of the Tenants for term of her life , the remainder to Benjamin Ibgrave in fee , Praying ayd in an Assise . which was his heir , and dyed , and they prayed in ayd of B. I. who came and joyned to them , and thereupon they came and pleaded to the grand Assise , and the first day of this term the Assise appeared , and sixteen were sworn , whereof four were Knights , and the residue were Squires and Gentlemen , and the title was all one , as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part . And the opinion of all the Court clearly , that it is not ayded by the Statute ; for there is not any certainty in the Grant ; Name certain . but if he had given it a certain name , as green Acre , then allthough he had mistaken the Parish , yet it had been good enough .

Peryam

The Assise may goe their way , and they did so , and after they being agreed came again to the Bar , and the Demandant was called , and did not appear , whereby the Tenant prayed the Court to record the Nonsuit , and it was done .

Curia

All is one as if he had appeared ; Non-suits . for this Non-suit is peremptory for ever ; the issue being joyned upon the meer droit , aliter if the issue had been joyned upon any collaterall poynt .

2.

IN Trespass by Blunt and Lister against Delabere they were at Issue ' and now the Inquest appeared ready to pass . Challenge .

Walmisley

This Inquest you ought not to take , for it is favourably made by the Sherif , which is within the distress of one of the Plaintifs , and shewed , how the Sherif held certain lands of a Mannor now in question , whereof Lister hath possession , and allso hath certain lands for term of years of him ; and the Plaintifs moved that he ought to take one cause onely . 1 Cause .

Curia

He may allege both ; for the challenge is , that he is within the distress , and the allegations are but evidence to prove it ; and then the Plaintif sayd , not within his distress , whereupon the Court appointed Tryers ; and the Defendant sayd that all the Jury are favourable , Tryors refused . and prayed Tryers de circumstantibus .

Gawdy

That cannot be , but onely in an Assise , and cited 9 Edw. 4.

Curia

We cannot appoint other Tryers in this case but only of the Jurors , wherefore let the fourth and seventh be Tryers , but you may refuse them , and take others if you will ,

and thereupon the Defendant refused the fourth whereby the third was appointed , and they found the Array favourably made , and therefore it was quashed .

3.

A Recovery was had by Arthur Mills against Sir Owen Hopton , of divers lands twelve years passed , Amendment and by the negligence of the Attorney , Warranty of Attorney . no Warrant of Attorney was entred for him , and now suit was made to the Justices that it might be entered ; and they all consented thereunto , and so it was entered incontinently ; but first the party made a corporall Oath , that he had retained an Attorney , and that this was the negligence of his Attorney .

4.

IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor , Arbitrement . and sayd that there was an Error in the Record , Error not assigned . which was not assigned , and prayed that it might be examined , allthough that it was not assigned , because that it appeared in the Record , which was agreed to by the Court. And then he shewed the case , that two had submitted themselves for all quarrels ultimo die Novembris An. 24. to stand to the Arbitrement of two others , and they Arbitrated that the Plaintif in this Writ of Error , should release to the now Defendant all Actions which he might have against him untill the 24 of June then next following , which was half a year after , and because he had not performed this , an action upon an Assumpsit was brought , and Judgement given for the Plaintif , and all the Justices agreed that this was Error , because that this thing arbitrated was out of the submission , and so voyd ; for they have no authority to arbitrate that which is not submitted unto them , Submission . and the submission is onely of things passed , and not to come ; but because that the Defendant had not heard of this Error before , therefore they gave him day . Afterwards the case was moved again ; and Anderson sayd that damages recovered doe not lye in arbitrement . Damages recovered .

Peryam

Amongst other things they will lye well enough , quod Anderson non negavit . But they all sayd , that they may well assume upon consideration , and an Action will be maintainable for it .

5.

THomas Mounson Esquire , Term extinguished . sonne and heir apparent to Sir Iohn Mounson , Knight , brought an Action of Trespass against West , who pleaded not guilty , and upon Evidence it appeared , that Sir Iohn Mounson had an estate for years , the Remainder in tayl to the Plaintif , with divers Remainders over , and the Lessee made a Feoffment to divers , and a Letter of Attorney to others , with commission to enter into the lands , and to seal the Feoffment , and deliver it in his name to the use of the sayd Thomas and his heirs , and another by commandement , or Letter of Attorney of the sayd Thomas entred in his name . And the Court held this a good Feoffment , notwithstanding that both the Lessee and the Attorney were disseisors ; Disseisors . for it is good between the Feoffor , and the Feoffee ; for they sayd that by the Feoffment to the use of him in the remainder and his heirs , if he in remainder enter , he is remitted , and the estate for years is gone implicatively ; Freehold joyned to the term . Morgage . for Peryam sayd , that in all cases where the Freehold cometh to the term , there the term is extinguished . And therefore if a man morgage his reversion to the Lessee for years , and after perform the condition , yet the Lease for years is utterly extinguished : And the Evidence on both parts was very long , and the chief matter was , whether a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas ; by which Devise lands were conveighed to him by William Mounson his Father , whose heir at the Common Law Sir John Mounson is , viz. the Sonne of Roberts eldest brother , and the Deed was shewed by West , and it was perished with Mice , all the Seal , and part of every side ; but yet by the last Will of the sayd William Mounson , and by divers other proofs , it was evident that the Deed was good , and but little in effect was shewed to prove the Deed forged ; Misdemenour . yet the Jury went together , and tarryed there all night , and in the mean time some of them had victualls with them ; for one had Cheese , and another had Pruens , another had Pippins , and another had an Orange , but he which had the Orange swore that he brought it onely for the smell , and therefore he was excused ; and he which had Pruens , had given half a Pruen to one of his companions , which eat it , and he which had Cheese had eat thereof , therefore all those which had victuals , Fine and imprisonment . were fined at 40 s . and they which had eaten at 5 l. every of them , and all committed to the Fleet ; but because they were agreed , therefore the Verdict was taken , and the Verdict was given for the Plaintif , viz. that the Deed was forged by Justice Mounson , and the Verdict taken de bene esse , and all this matter commanded to be entred ; for the Justices doubted whether it were a good Verdict . This matter was moved divers Terms afterwards , and at the last adjudged a good Verdict .

6.

IN an Ejectione firme by Ashby against Laver for Lands in Westminster , Countermand . it was sayd by all the Justices to the Jury , that if a man hath a Lease , and disposeth of it by his will , and after surrenders it , and takes a new Lease , and after dyeth , that the Devisee shall not have this last Lease , because this was a plain countermand of his Will.

7.

IN Trespass by Johnson against Astley , it was said by the Justices to the Jury , that if there were a Chauntery in reputation , allthough it be none in right ( as if it be gone by disseisin ) yet the Queen shall have the Lands .

8.

AT Serjeants-Inne in Fleet-street , Rent suspended . the Justices of the Common Pleas , and Barons of the Exchequer , were assembled for divers Errors in the Kings-bench , and the case of Rawlins was moved again , and Anderson and Peryam retained their former opinions , and Peryam sayd , that he would differ from all the cases of collaterall conditions , Feoffment upon condition . which may be put ; for he sayd that if a man make a Feoffment in fee of 20 Acres of land , upon condition , that if he pay to the Feoffee xx l. at Easter , that then it shall be lawfull for him to re-enter , allthough that he be re-enfeoffed of 10 Acres , yet he ought to perform the condition , because it is collaterall . But Cook the famous Utter-barrister sayd , Truly it hath been adjudged to the contrary , and I was privy to it ; for when he took as high an estate again as he had before , by that the condition is confounded , and the case of the Corody in 20 Ed. 4. will prove this case .

Rodes

I see no diversity .

Peryam

It is collaterall there , but so it is not here , but afterwards those two Judges changed their opinions , and so the first Judgement was affirmed .

9.

BRown recovered against Garbrey in an Assumpsit , Consideration . and thereupon Garbrey brought a Writ of Error , and assigned for Error , that there was no Consideration ; for the Declaration was , that whereas there was a communication between Brown and a woman , for Mariage between them , that the Father of Brown had promised to the Wife , that if she would marry his Son , he would make a Feoffment of his land to the use of himself for life , and after to the use of them two in tayl , the remainder , &c. and that Garbrey assured to the Wife in consideratione praemissorum , that if the Father did not doe so , then he would give the Wife a hundred pound ; ac licet , the Father did not give to them in tayl , secund. agreament . praedict . yet Garbrey refused , &c. And Cook moved that this should be no Consideration ; for the communication of Mariage was not by him , but between strangers to him ; but if the Father had assumed in consideration of Mariage , then that should have been good against the Father ; but against Garbrey it is ●o otherwise than as if one promise to you to Enteoff you , and I say that if he doe not so , then I will give you a hundred pound , this is without consideration , and so here . But the Justices held the contrary , and that the consideration is good ; for in considerations praemissorum , is in consideration of the Mariage , as well as of the refusall of the Father ; and allso it was alleged , that Garbrey was Cosen German to Brown , and therefore , &c.

Anderson

If a communication be between two , and the Father promise to make a Joynture , and a stranger say that if the Father will not , then he will doe it , this is a good consideration ; and there is no necessity to be so curious in the consideration ; for that is not traversable . Consideration executory traversable . But Cook sayd , that if it be Executory , then it is traversable .

Another Error Cook assigned , because they had not alleged a not performance in the Father ; for the promise of the Father was to make a Feoffment to the use , &c. and they averre that allthough that he did not make a gift in tayl , which cannot be the same thing which the Father should doe ; for an estate to use in tayl , and a gift in tayl is not all one . But the Justices held it good , for by the Statute of 27 H. 8. the use is executed , and so the estate executed . Also the Declaration was that he had not made a gift in tayl secundum agreamentum praedictum . But Cook moved that it should not be good , for if a man be bound to make an estate to another in the per , and he make it in the post , this is no performance , and here by the Statute he is in , in the post , and the not performance is alleged to be , because he did it not in the per , and saith , that he which is in by the Statute , shall not vouch , for he is in , in the post , and he cited Winters case , which was not denyed ; but Peryam said , that considerations in actions upon the Case , and Conditions , are not all one .

9.

IN the Kings bench the case was such , Coppyhold . John Kipping being a Copiholder , devised it to his Wife for life , the Remainder to William his son in Fee , and made a Surrender to that use , and the Wife is admitted generally , Generall admittance . now if this be an admittance of him in Remainder also , was the question . And Godfrey argued that it was not , for it is not like to the case of descent , where the reversion should have descended , for in this case William cannot Surrender before admittance , but he agreed that one which hath it by discent may surrender before admittance for in that case it shall be said possessio fratris , Surrender . but when it is by purchase then that cannot be surrendred , whereof admittance ought to be , Meseu . because the Lord ought to have a fine of him , & therefore he likened it to the case in 18 E. 4. where the Mesne graunts the Mesnality for life , the remainder in fee , and the Tenant attornes to the Tenant for life , if he had cause of acquittance against the Mesne this shall not be an attornment to him in remainder ; so here , if this shall be good to him in remainder then is the Lord without remedy for his fine . Vesting of a remainder . But Cooke the famous Utter-Barrister argued to the contrary ; for the Remainder vested when the particular estate vested , or els it shall never vest , but it shall not be void , ergo it is excuted when the particular estate , &c. And therefore he said clearly that an admittance of the particular Tenant is an admittance of him in Remainder , and that the Lord cannot have his fine , if it be agreed that the Heir may surrender before admittance , Scire facias upon a fine . and yet the Lord ought to have a fine of him . And in 7 Ric. 2. Fitzherbert scire facias 3. where Tenant for life sueth execution , this is an execution for him in Remainder . Audita quaerela And in Fitzherbert . Na. Br. fol. 201. where one deviseth for life , the Remainder in tayl , and an ex gravi querela was sued , this shall serve as well for Tenant in Remainder as for Tenant for life , Attornment . and 18 Ed. 4. 7. and the time of Ed. 4. Fitzherbert Attorn . 21. that attornment to the Tenant for life is good to him in Remainder and Weldons case in the Commentaries , Assent to the Devisee . that assent to the Devisee for life , is an execution of the devise to him in the Remainder .

11.

THe case of the Resceit was moved again , Resceit . and Shuttleworth said , that he cannot be resceived because he is named in the Writ , And said , that he had searched all the books , and there is not one Case where he which is named in the Writ , may be resceived .

Anderson

What of that ? Reason . shall not we give judgement because it is notadjudged in the bookes before ? wee will give judgement according to reason , and if there bee no reason in the bookes , I will not regard them .

Shuttleworth

Hee is at no mischief here , for in 33 H. 6. the Tenant came at the grand cape , and said that he had nothing , Nihil habet . and the Court said that it was no plea , for if he hath nothing he can lose nothing , And so here , if he be ousted where he hath good right , Reentrie . he may re-enter , and falsify the recoverie .

Peryam

But he shall be put out of possession , which is a mischief and remedied by the Statute .

Shuttleworth

I hold clearly that a Termer cannot falsify at the Common Law , because a term was not regarded .

Peryam

The books doubt thereof , but Anderson seemed to assent to Shuttleworth , and that the Covyn shall be traversable ,

which Peryam denyed clearly , and said that he ought to averr the Covyn .

12.

A Man was condemned in an action of Debt , and brought an Audita querela upon a release , Supersedeas . and had a supersedeas .

Peryam

If the Sherif take him before that he hath notice of the Writ , although it be after the Teste , yet it is well done , but otherwise of an Utlary .

But Fenner and Walmisley held to the contrary , and Fenner said that he had seen a President to the contrary .

13.

AN Action upon the Case was brought against Mathew late Under-Sheriff of Hampshire , Declaration double . that where an Execution was directed to him , by vertue whereof he had taken goods to the value of the execution , and sold them for less , and that he hath not retorned the Writ ; and upon this Declaration the Defendant demurred in law , because it was alleged to be double . But Fenner held the contrary , & said , that an Action upon the Case is like to an Action of Covenant , where a man may shew all the covenants broken .

Curia

If the one matter be depending upon the other , it shall not be double , and here all is , Dependance is not double . for not retourning of the same Writ .

Wherefore Fenner said , that he would not amend his Declaration , let the other Demur if he would , ( sed quaere ) for the Declaration ought to agree with the Writ .

14.

A Writ of false Judgement was brought upon a Judgement given in a Court of the Deane and Chapter of Westminster , Administrators . in an Action upon the case brought against one as Administrator ; And did not shew by whom the Administration was committed , which he ought to have done by 32 Hen. 6. & 35 Hen. 6. 50. a. and the Assumpsit was laid to be in consideration that Assets came to the hands of the Defendant , And whether this were a good consideration , was another doubt , and it was not averred that the Administrators had goods sufficient after the Debts and Legacies were paid . And at this day it was held , that when an Action is brought against an Administrator , it need not be shewed ; but in an Action brought by them clearly , they ought to shew it . And for the other matter , whether the Plaintif needed to aver that they had Assets besides the Debts , &c. it was said , that this ought to come and be shewn on the other part . And for that Woodwards case in the Commentaries was cited . And the next morning Puckering shewed , that he had a report of a Judgement given in the Kings Bench , that it is not necessary to shew that they had Assets besides the Debts and Legacies , &c. And therefore he prayed that the Judgement may be affirmed . And so it was , for Rodes had seen the report of Puckering , according to his saying , and testified the same , whereby Judgement was here given against the Administrator , Anderson being in the Starchamber .

15.

IT was agreed by all the Justices , Herriot . that for a Herrio● service , the Lord cannot distrein out of his Fee , no more than for a Rent , but he may seise a Herriot Custom out of his Fee .

16.

A Man was outlawed , Vtlary . and the Sherif retourned the Proclamation ( tali die omnes & singulas proclam . fieri feci ) And did not shew that such a day he made the first , and such a day the second , &c. and this was assigned for Error , and prayed that the Utlary night be reversed , and so it was .

17.

FLeetwood shewed that this case came in pleading . Rent-service . A man had a Rent service payable at the Feast of St. Michael , And on Michaelmas day he died about ten of the clock in the morning ; now he demanded whether his Heir or his Executor shall have the Rent ?

Anderson

Hath he not all the day to pay it ? and upon condition to pay such a sum , he may tender it any time before Sun-set .

Peryam

But if the party accept the payment in the morning , it is good .

Curia

If it be a case in this Court , you ought to demur as your case is , and not to be thus Politick .

18.

A Writ of Error was brought upon a Judgement in the Kings Bench , Abatement . and one of the parties died , hanging the Writ ; And the Court held this to be an abatement of the Writ , and that he ought to purchase a new Writ .

De Term. Mic. Anno Reg. Eliz. xxx . & xxxj .
1.

AFormdon was brought against Haselwood and Haselwood , Abatement . and the one took the Tenancy of the one Moity , Dier 3. & 4. Phil. & Mar. 134. Absque hoc that the other had any thing therein , and pleaded in abatement of the Writ , and the other took the Tenancy of the other Moity , and vouched .

Shut .

Shall I maintain my Writ , or answer to the Bar of the other ?

Tota Curia

You must needsmaintain your Writ .

Anderson

Where the pleading is such , as your Writ cannot be good , there it is a ground that you ought to maintain your Writ ; Praecipe quod reddat . but if a praecipe quod reddat be brought against two , and the one plead Nontenure , and the other accepts the entire Tenancy , Absque hoc , &c. and doth plead in Bar , there you may answer to the Bar , because there peradventure the Writ is good , notwithstanding ; As if a Writ be brought against the Feoffor and Feoffee upon condition , or Morgagor and Morgagee ; and so there is a diversity .

2.

IN a Quare impedit brought by the Queen against the Archbishop the disturber , Vtlary . and the Incumbent , the disturber pleaded , that long time before he had any thing in the Advowson , by whose Utlary the Queen is intitled , King Ed. 4. was seised of the Honor of Haststings , and granted it to the Lord Hastings in Fee . and further granted omnia bona & catalla omnium teneutium ejusdem honoris sive manerii residentium & non residentium qui forent utlagati , &c. and so conveyes the Honor by descent to the now Lord Hastings , and did not aver that he which was Utlawed , Averment . was a Tenant of the Honor.

Curia

It is not good without doubt , for otherwise he is not within compass of the Grant , and therefore a day was given , by which , if the Defendant did not shew better matter , the Queen should have Judgement .

3.

IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford , Devise . and other Defendants , Glocester . And upon not guilty pleaded , Hit . 30. Eliz. rot. 188. the Jury found a speciall Verdict , viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell , and of divers other Tenements within the same Parish , and within a place known in the same Parish , which is neither Town nor Hamlet , called Ebney , in which Samford had a Tenement , which hath Lands time out of mind perteining thereunto , lying as well in Ebney as in Stone-house , which Tenement is in the Tenure of one Bucher by Copy of Court-roll , according to the custom of the Mannor , Afterwards William Samford deviseth to his Brother , after the death of Bucher , all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney , Now the question was , whether the Lands in Stone-house perteining thereunto shall pass or no ? And the famous Cook argued that it should pass , for this word Tenement referreth to his dwelling which is in Ebney , and not to the place where the Lands lie , And therefore he said that words ought to have relation , ut ne impediatur sententia , sed ut res magis valeat quam pereat , Quare impedit . and he cited 4 Ed. 3 in a Quare impedit quod permittat praesentare ad ecclesiam de Mourton Majorem , and the Defendant demanded Judgement of the Writ for false latin , because of Majorem , and yet it was adjudged good , for it shall be referred to ecclesiam , and he cited 19 Ed. 3. & 3 Ed. 4. Allso it passeth by this word appurtenances ; for there was such a Chambridgshire case here within this Twelve-month , where a man gave instructions to another to make his Will in this form , I will that B. shall have my House , with all my Lands thereto apperteining ; And the other made it in these words , I devise to B. my house , with the Appurtenances ; and it was adjudged that the Land should pass by this words Appurtenances . For allthough that in late Books , Lands shall not pass by this word Appurtenances , yet this is good authority to prove that they shall pass , as 7 Hen. 5. 41. & T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning , and here upon this devise 4. l. Rent is reserved , and the antient Rent is but 45. s . and if the Land should be racked , it is all worth but v. l. a year , and because they are held in Capite , therefore by the Statute we shall have but two parts . And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney , Valew . wich are not worth so much , therefore somtime the valew is considerable in a Will , and cited 4 Ed. 6. & 7 Ed. 6. and so he thought the Plaintif ought to recover . And at this time the Court seemed to be of the same opinion , for they gave day over to the Defendant , at which day , if nothing were said , Judgement shall be given for the Plaintif .

4.

GAwdy prayed Judgement in an Action of Trespass by Hambledon against Hambledon , Survivor . the case was such . H. was seised in Fee , and had issue , Mic. 29. & 30 three Sonnes , Eliz. r●t . 2325. John , William now Plaintif , and Richard now Defendant , And by his last Will devised Lands to Iohn , and to the Heirs Males of his body ingendred , and devised other Lands to William in like sort , and other Lands to Richard in like sort , And that if any of his Sonnes died without issue Male , that then the Survivor shall be each others Heir , Afterwards the eldest died without issue Male , And if William shall have all his part alone , or else he and Richard between them , was demurred in Law , and day was given over to argue it .

5.

WAlmisley shewed how an Action was brought by Berdsley against Pilkington , Impounding . upon the Statute of 2 & 3 P. & Mary , for driving a Distress out of the County , And shewed the truth of his case , that the Distress was taken in the Hundred of Offlay in Staffordshire , and the City of Lichfield was sometime within this Hundred , And by Letters Patents of 1 Mariae , the City was made a County of it self , and he which took the Distress impounded them within a pound in the County of the City of Lichfield ; now whether he hath incurred the penalty of the Statute , or no , was the question ? And because the Court had not a Statute Book there , to see the Preamble , therefore they would give no resolution .

Anderson

The meaning of the Statute was , because the Bailif of the Hundred might make deliverance . Allso I think it is within the compass of the Statute , because the City was a County severed before this Statute made .

And the Serjeants at the bar said , Same Hundred . that the party may drive the Distress as far as he will within the same Hundred , but he ought not to drive it above three miles without the Hundred .

6.

IOhn Slywright exhibited an information upon the Statute , Champerty . for buying of Titles , Pasch. 30. Eliz. rot. 1532. against Page , and declared how Joane Wade demised to Page for 60 yeares ; the Defendant pleaded not guilty ; And now a Jury of Sussex appeared at the bar . And upon Evidence it was moved , ●if a man have a lawfull Title to enter into Lands , Lawfull title . but hath not been in Possession , and he entreth and makes a Lease for yeares thereof , if this be within compass of the Statute .

Anderson

It is within the Statute , for the mischief was , that when a man had a Title to Land , he would let it to another , to have maintenance and imbracery , and make contentions , and Suites , for remedy whereof the Statute was made . For if a man have a Title , he may recover according to his Title . Recovery .

Peryam

The mischief hath been truly recited , and therfore it is reason to restrain such bargains . But if a man Recover by Formdon or Cessavit , and make a Lease , this is not within compass of the Statute , A pretended Right . allthough that he hath not been in Possession by a year ; and in my opinion the Plaintif need not prove that it is a pretented Right , because the Statute expoundeth what is a pretented Right , viz. if he hath not been in possession . And so I have delivered my opinion before this time .

Anderson

If a man hath not been in Possession , and cometh to me , and saith , that he will make me a Lease , and demands if I will take it , and I agree thereto , whereby he maketh me this Lease , Ignorance . if I do not know that he hath not been in possession , I am not within the Statute .

And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor , whereby he might take the Lease well enough . For Fleetwood cited 6 Ed. 3. if one brother maintain the other , this is not within the Statute of Champerty , which case the Court agreed , this is for speciall cause . vide statut . de articulis super cartas . Maintenance Champerty Difference ,

Anderson

One brother may travell for another , and maintain him , but if he take a Lease of him , he is within the Statute of 32. Hen. 8. for this is a generall mischief , and the mischief is as great , if the brother take a Lease , as if another take it , The case .

quod Periam coucessit clearly , but because it was the case of the Defendant , the Jury found a speciall Verdict , viz. that the Lands were conveyed by the Husband of Joane Wade , to the use of himself and his Wife in Tail-speciall , the Remainder to the Husband in generall-Tail , the Remainder to the Wife in Fee , and after the Husband Enfeoffed diverse men thereof , and the Feoffees continued in Possession diverse years , After the Husband died , and then the Wife by indenture sealed and delivered , of the Land , made a Lease to Page which knew all this matter , Knowledge . from the fift day of Jenuary last past , for 60 years , if the Wife should live so long , and that the Wife was Sister to Page the Defendant by the Mother , and found the valew of the Land as if it should be sold , and they prayed the advise of the Court , &c.

And the morow after , the like information being brought against the woman being Lessor , the like Evidence was given , and the like case found .

7.

FEnner moved this case to the Court. Recovery . An Alien born purchaseth Lands in Tail , the Remainder to a stranger in Fee ; The Alien suffereth a Common Recovery to his own use in Fee , And after an Office is found of all this matter , if the Remainder shall be to him which had it before or no was the question .

Anderson

I think the Queen shall have a good Fee-simple , Tenant sufficient to the praecipe . for if there be a good Tenant to the praecipe , then is the Remainder gone , and you will not deny but that he is Tenant sufficient before Office found .

Fenner

True , Sir , but when the Office is found , by relation thereof the Recovery is avoided . Relation .

Anderson

Truely the Office hath relation for the Possession of the Alien , but it hath no such relation to say that the Alien never had it , for then the Queen shall not have it ; but if the Alien were Tenant sufficient at the time of the Writ brought against him , then the Remainder is utterly gone .

And all the Justices said that it is a strong case that the Queen shall have it , and that the Remainder is gone . And Rodes cited 27 Ass. fol. 50.

8.

PLympton brought an Action of Trespass against Dobynet , Copyhold . the Defendant pleaded , that the place in which , &c. is Copyhold , and pleaded a Grant to Southey , which granted it to him , &c. The Plaintif replyed , that long time before the Grant pleaded by the Defendant , Alice Gooding was Lessee for life , secundum consuetudinem manerii . &c. and that the Custom is , that the Lord may grant Copies as well in Reversion as in Possession . And that in 5 Eliz. the Lord Morley being Lord of the Mannor , The Lord Morleys case . granted to him a Copy in Remainder before the grant made to Southey , which now came in Possession , and that he entered , untill , &c. The Defendant rejoyned that there is a custom in the Mannor , that the Lord may grant Copies in reversion , with the agreement and consent of the Tenant in possession ; and if any Copies be granted , without consent of the Tenant in possession , that then there is such a custom , that such Grants shall be alltogether voyd , absque hoc , that they are devisable modo & forma , &c. whereupon the Plaintif demurred in Law .

Walmisley

This Plea of the Defendant is repugnant ; for by these words , If any be granted , he implyeth , that there is such a custom ; and then when he saith absque hoc that there is such a custom , this traverse is voyd , and the Plaintif shall have Judgement , by 9 H. 6.

Allso he argued that this custom shall be voyd , and cited 19 Ass. the case of the command of St Johns , and 2 Hen. 4. & 19 Eliz. Custom what it is . the Ejectione firme by Bill anu Attorney ; and he defined usage to be , Constitutio ex diversis actionibus saepius iteratis . Shuttelworth argued to the contrary , and cited 37 Hen. 6. the case of Common , and 26 Ed. 3.

9.

GAwdy the Queens Serjeant rehearsed the case of Beverley in this manner ; Utlary . Thomas Beverley brought a Quare impedit against the Ordinary , and Gabriell Cornewell the Incumbent , which was in , of the presentation of the Queen ; and upon pleading , there was a Demurrer entred up , and before that was discussed , Beverley was Outlawed at the suit of another , The Case . in an Action of Debt ; then Cornwell resigned his Benefice , and the Queen presented him again , whereupon he was instituted and inducted ; Then Beverley brought a Writ of Error in the Kings-bench , and reversed the Outlary , because that he was named of Hamby , where there were two Towns of the same name , and neither of them without an addition , and now he brought a Scire facias to execute his first judgement against Cornwell , who pleaded all the matter in bar , and it seemed to him that the Plaintif shall be barred ; for by the Outlary of the Plaintif , the presentation was forfeited to the Queen , allthough that it was but a thing in action , and thereupon he cited 2 Hen. 5. where a man had a Patronage with his Wife , Patronage in right of his wife . and was Outlawed , &c. then , if by the reversall of the Outlary , he shall be restored to the presentation ; and he sayd that he shall not , for that it was a thing once lawfully executed , and vested in the Queen , and he cited 4 Hen. 7. where a man is attainted by Act of Parliament , &c. Allso the opinion of Brian there , is a strong proof of this case . And further he sayd , that he was of counsell with a case in 26 Eliz. Restitution after a Scire fa●● where Debt was brought by Hanmer against Luddington , and the Defendant was condemned , and a Fieri facias issued to the Sherif , who by virtue thereof sold a term of the Defendants , and levyed the money thereupon , and afterward the Defendant brought a Writ of Error , and refused the Judgement , the question was if he shall be restored to his term ; and it was adjudged , that he shall not , but onely to the money for which it was fold , because the sale was once good , and so he thought that the Plaintif ought to be barred .

Walmisley

to the contrary : For in our case , Patronage . when the Queen presenteth , she hath gained a Patronage to her self , untill we recover it again , and this is the case of Ratcliffe , in 35. For so long as the Incumbent which is presented continueth by that Induction in possession , so long he which presented him is Patron , Possession . per Collow , in 20 Ed. 4. and by 46 Edw. 3. tit . Incumbent . & 19 Ed. 3. tit . Quare impedit . If the King bring a Quare impedit , and hath title to recover , yet the other is Patron untill his Clerk be removed , a fortiore where the Writ is brought against the Incumbent of the King , he is Patron untill he be removed , then if nothing shall be forfeit to the Queen , then it is to be considered , because the Queen hath presented the same Defendant of new , whether he shall be removed or no , Acts done hanging the Writ . and it seemeth clearly that he shall , because he claimeth under this estate , and this is done hanging the Writ ; and no act done hanging the Writ shall extort the Plaintif from his execution , and surely the Writ is hanging untill execution be done ; and he cited 31 Hen. 6. Attorney . If one make an Attorney , he shall be Attorney untill execution be done ; and 21 Hen. 7. if the Defendant resign , and a stranger is presented , hanging the Writ , yet the Plaintif shall remove the stranger , Presentment . and 20 Eliz. in Dyer accordeth with that , notwithstanding that some there held the contrary : If he come in by title , by mony : And to the like purpose is the case in 11 Hen. 4. of traverse of an Office . Then for the Outlary that was avoydable by Plea , Plea by the Statute . by the Statute of 2 Hen. 5. per the Books , in 22 Hen. 6. and 38 Hen. 6. Then if by the Outlary reversed he shall be restored , and it seemeth that he shall ; for a man shall see a great difference between this case and the cases put : For if a man in an Action deny his Deed , and therefore pay a Fine to the King , if after he reverse the Judgement , yet he shall not be restored to the Fine , because it is a by-thing , and a thing collaterall , and therefore he denyed the opinion of Brian , Collateral thing in 4 Hen. 7. for it cannot be Law : But if a man be indebted to me , and after I am Outlawed , and then the King releaseth this debt , Release of ▪ the King of the debt of one outlawed . and then I bring a Writ of Error , and reverse this Outlary , I shall be restored to my action again . And here he hath shewen to us a peece of cunning ; for when he pleads the Outlary in us , he hath pleaded the Record specially , for otherwise we would have sayd , Speciall pleading . nul tiel record , and then it being reversed it should have been certified for us , as there is a case in Dyer . Then here , allthough that be in by a new presentation , yet all the words of our Writ are true in this Scire facias ; but I grant that Executors shall have a Qnare impedit for a disturbance done to their Testator . Executors shal have a Quare impedit .

Anderson

The case in Dyer is thus reported , That I when I was the Queens Serjeant , and Gerrard now Master of the Rolls , then being Attorney of the Queen , were of opinion that the Clerk of another shall not be removed , and concerning that matter , I held then , as I doe still , that in some cases the Clerk shall not be removed , and in some cases he shall ; for if he come in under the title of the Plaintif , Title peramont . and since the same , then he shall be removed , but if he come in by title Paramont he shall not be removed ; and here , for that this is done hanging the Writ , it seemeth that he shall be removed : For if a man bring a Praecipe , and hanging the Writ the Tenant alien , yet the recovery is good against him , Tenant in a Praecipe aliens . and shall allso bind every one under him .

Peryam

That point is clear enough , but the question is if by the Outlary the Plaintif hath forfeited his presentation to the Queen ? For if it be so , then this is a new title for the Queen .

Anderson

What reason is there in that ? when it was an apparent practise of the Defendant to resign ; for otherwise she could not have presented , Plenarty . the Church being full before .

Peryam

The practise is not good without doubt , but what is the Law ?

Anderson

The Law is , that the Defendant by his resignation , shall never extort the Plaintif from his execution .

Peryam

The point is if by the Outlary the Queen have a new title , by reason of the Plaintif , and I doubt much thereof , if by the judgement she shall have the presentation .

Anderson

I am resolved that there is not any colour in the case , but what say you ?

Rodes

Truly I hold that the Plaintif shall remove the Clerk .

Windham

And in my opinion it is clear enough , that by the reversall of the Outlary the Plaintif shall have his presentation . Reversal .

Anderson

Then let Judgement be entred for the Plaintif .

Peryam

In the name of God , if you be agreed against me .

10.

A Writ of Partition was brought by Henry Tannworth , Partition . and Christian Tannworth , against John Tannworth their elder brother ; for lands in Hawlesteed , alias , Elsted in Leicester-shire , because that Halsteed is parcel of the Soak of Rothelay , wherein there is such a custom , Members of a Mann●r . that the lands shall equally descend to all the heirs males , and in giving of evidence , Walmisley sayd that the members of a Mannor are other Towns in which the Mannor extends , and Puckering sayd , Soak quid . that at this day the Queen may make a Soak : For it is nothing else but a Precinct , to which divers Mannors come to doe suit ; and as a great Leet containing divers other Courts ; and the Evidence was strong for the Tenant ; for he shewed by plain proof , that this was never parcell of the Soak , allthough that it was within the ancient Demeasne of Rothelay , Domesday . as it was proved by the Book of Domesday , which was there shewen , and a Clerk of the Exchequer read it ( for other Clerks could not ) and he sayd , and so sayd the Serjeants ; and the Tenant delivered to Anderson and Peryam an ancient Book of the time of Ed. 2. for their remembrance , wherein , in 4 Ed. 2. in a nuper obiit , it is sayd , that if the Lands which have been departible and departed , come into the Lords hands by Escheat , they shall not be departible in his hands , Partible lands Escheat . vel in manibus alicujus alius perquisitoris non possunt partiri . And he sayd that such was the opinion of Sir Thomas Bromley the last Lord Chancellor upon hearing of the matter there ; whereby when the Jury came to give their Verdict the Plaintif was Non-suit .

11.

SHuttelworth shewed how Robert Hughson brought an Action of Debt against B. Office of the Court. as Administrator of F. and declared upon a simple contract made by the Intestate , Pasch. 30 El. rot. 421. and the Defendant pleaded plene administravit , and it was found by Verdict against him . And now in arrest of Judgement the Defendant alleged , that the Action is not maintainable against him upon a simple contract . And Shuttelworth thought that now he is past that advantage , because he did not shew it in pelading , and cited the opinion of Cottesmore in 13 H. 6. And whether the Court ex officio ought to bar the Plaintif or no was the question .

Rodes

It appeareth to us judicially that no action will lie upon a simple contract against Executors or Administrators , wherefore then ought the Plaintif to have Judgement ?

Shuttelworth

Because by his Plea he took upon him notice of the contract , and by 46 Ed. 3. where the Administrator was privy to the retainer of a servant , he was charged by a simple contract .

Rodes

Here he did not take notice , and in 15 Edw. 4. The Court ex officio , abated the Writ .

Shuttelworth

This is by Littleton onely .

Rodes

The case is ruled , and Littleton gave Judgement ; so is the case in 11 Hen. 4. where an Action upon the case is brought against an Inne-keeper , A common Ianholder . if he be not named Hospitator , allthough he plead in bar , yet we ex officio ought to abate the Writ .

Peryam

If he be no Hosteler , the Action lyeth not against him . And if an Action of Debt be brought , and doe not shew the place of the Obligation , if the other plead a release , this is good enough .

Shuttelworth

So is 18 Edw. 4. A De●d not shewed in Court .

& 6 Hen. 7. Rodes

If a man bring an Action , and the Defendant plead in bar by Deed , and do not shew the Deed , and the other pleads in bar , and doth not except thereunto , but they were at Issue , this is Error ; for we ex officio ought to have adjudged it evill ; and so is the Book in 22 Hen. 6. or 28 Hen. 6. and I can shew the case .

Then Shuttelworth sayd privily to his Client , I doubt we shall doe no good by our Action . ( Anderson being then in the Star-chamber . ) After at another day Anderson rehearsed the case , and sayd , it appeareth to us , that Executor or Administrator cannot be charged upon a simple contract , and the Court ex officio ought to stay the Judgement , and the Writ at the first ought to have been abated , and this is reason , and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly .

12.

RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme ; Fine . and upon not guilty pleaded the Jury found a speciall Verdict , Hil. 29 El. rot. 824. that William Grant was seised in fee of the Lands now in question being held in Socage , and devised them to his Wife for term of her life ; and when John his sonne came to the age of 25 years , then he sho●ld have those Lands to him and to his heirs of his body ingendred , and dyed ; afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee , and after came to 25 years , and had issue a Daughter , and dyed , and after the Wife dyed , then the Daughter entered , and made a Lease to the Plaintif ; the question was no more , but whether this Fine levyed by the Father before any thing was in him , shall be a bar to the Daughter .

Rodes

The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed ? and so by this means Fines shall be of small force .

Windham and Peryam

We have adjudged it lately in Zouches case , that the Issue shall not have this averment . Parties and privies shall have no averment .

Shuttelworth for the Plaintif

If it were in Pleading , I grant it well , but here it is found by Verdict .

Curia

This will not help you ; for by the Fine the Right is extinct .

Windham

When my Lord Anderson cometh , you shall have a short rule in the case .

Shuttelworth

Too short , I doubt , for us .

After at another day Shuttelworth moved the case again .

Anderson

May he which levyed this Fine avoyd it by this way ?

Shuttelworth

No Sir .

Anderson

How then can he which is privy avoyd it ?

Shuttelworth

By Plea he cannot .

Anderson

The Verdict will not amend the matter .

Fenner

If I make a Feoffment upon condition , Feoffment upon condition . and after levy a Fine of the same land to a stranger , and after I re-enter for the condition broken , the stranger shall not have the land .

Curia

We have given Judgement clearly to the contrary in the case of Zouch . And your opinion is no authority .

13.

A Writ of Dower was brought by John Hunt and Ioan his Wife , late the Wife of Austin , Dower . for the third part of Lands in Wolwich ; the Defendant pleaded that the Lands are Gavelkind , Trin. 30. Eliz. rot. 156. And that the Custom of Gavelkind within the County of Kent is , that the Wife ▪ shall have the Moity during her Widowhood , according to the Custom , and not any third part according to the Common Law ; upon which Plea the Defendant demurred in Law ; Negative pre●cription . And one question was , whether this Prescription in the Negative be good with the Affirmative ; And the other doubt was , if the Wife may wave her Dower by the Custom , and take it according to the Common Law . And the Justices held the Prescription good enough , being in the Negative with the Affirmative . I●●eritance .

Windham

This Custom shall bind the Heir and his Inheritance , and by the same reason it shall bind the Wife and her Dower ;

which Peryam granted expresly . Rodes was absent , and Anderson spake not to that second point . But all the Court agreed clearly that as this Custom is alleged , she shall be barred of her Dower . And so they commanded to enter Judgement accordingly ; but if the pleading had been in the Affirmative onely without the Negative , then the second point had come in question .

14.

WAlmisley prayed the opinion of the Court in this case . Extent . The Sherif extendeth Lands upon a Statute Staple , and whether the Conusee shall b● said to be in Possession thereof , before they be delivered to him or no ?

Anderson

Allthough that they be extended , Refusall . yet the Conusee may refuse to receive them .

Walmisley

True Sir .

Anderson

Then hath he nothing in them , before he have received them , for he may pray , that the Lands may be delivered to the Praisors , according to the Statute of Acton Burnell .

Windham

Your meaning is to know , if the Rent incurres when the Land is in the Sherifs hands , if you shall have it ?

Walmisley

True Sir , that is our very case .

Anderson

Then this is the matter , whether you shall have the Rent , or the Conusor , or the Queen , but how can you claim it ?

Windham

The Lands are in the Queens hands .

Peryam

The Writ is , Cape in manum nostram .

Rodes

This is like to the case of disceit , where he shall not have the mean issues . So as it seemed to them , Disceit . the Conusee shall not have it , but they did not say expressly who should have it .

15.

TRespass quare clausum fregit , was broug●t ' against two , the one appeared , Simul cum Dyer 239. and the other was outlawed , and the Plaintif declared against the one onely , who by Verdict was found guilty , and now Walmisley spake in arrest of Judgement , that he should have declared against them both , or against the one simuleum , &c. But the Court thought that this was helped by the Statute of Jeofailes , but at this time they were not resolved .

16.

A Speciall Verdict was found , Disability of the Devisor at the time of his death . that a Woman sole was seised of certain Lands held in Socage , and by her last Will devised them to I. S. in Fee , and after she did take the devisee to Husband , and during the Coverture she Countermanded her Will , saying that her Husband should not have the Land , nor any other advantage by her Will , and then died . Now whether this be a sufficient Countermand , so that the Husband shall not have the Land , was the question .

Shuttleworth

For as much as she was Covert-Baron at the time of her death , therefore the Will was void , for a Feme-Covert cannot make a Will , and a Will hath no perfection , untill after the death of the Devisor .

Gawdy

In Wills , the time of the making is as we●l to be respected , Taking a Husband is no Countermand of the Wife . as the death of the Devisor ; And then she being sole at the time of the making , allthough that ▪ afterwards she took a Husband , yet this is no Countermand , and so is Bret. and Rigdens case in the Commentaries .

Anderson

If a man make his Will , and then become non compos mentis , Not of sound mind . yet the Will is good , for it is Common that a man a little before his death , hath no good memory .

Shuttleworth

I do not agree the Law to be so ,

and so Rodes seemed to agree , but Anderson affirmed as before .

Windam

I doe not doubt but such a Will shall be good .

Rodes

If a man make his Will , and after do become non compos mentis , and then live three or four years after , Long life maketh difference . it is no reason that such a Will shall be good , and he cited 3 Edw. 3. it in . Northt . for this case .

Gawdy

If the Proviso in the Statute of Wills had not been , then every Will made by a Feme-Covert should have been good .

Tota Curia

That is nothing so , for allthough the Proviso had not been , Reasonable construction . yet the Statute should have had a reasonable construction .

But for the principall case , the Court was not yet resolved . After at another day , Gawdy moved the case again , and held strongly , that by taking of a Husband ; this is not Countermanded , and cited 2 R. 2. and then during the Coverture , she hath s●bmitted her Will to her Hu●band ; For by 3 Ed. 3. it in . Roteland she cannot devise to her Husband , whereby he concluded that the Will is good . Shuttleworth to the contrary , because she hath no ability at the time when it should take perfection , and every Will ought to have three things , Inception , Progression , and Consummation . And he cited Bret. and Rigdens case .

Anderson

I am of my first opinion that this Will is not good , for I think this Countermand by the Wife is sufficient , ●●u●termand by one not of found mind . ▪ and if non compos mentis say that he doth revoke his Will , this is a sufficient Countermand . And whereas it hath been said , that a Feme-Covert hath no Will ; Sir that is not so , for she hath a Will in many cases , Wills of fe●e 〈◊〉 as if she be Executrix she may make a gift , &c. So if I be bound to do such an Act , if such a Feme-Covert will consent , in this case if the Husband onely consent , it is not sufficient , but the Wife ought to assent allso . And if this Will shall be good , then this mischief will ensue , that after a Will is once made , the partie shall have no power to controll it , Controlement . therefore I think the Will is not good .

Wyndham

I am of the same opinion . For a Will is not perfect untill after the death of the Devisor , No countermand and when she is disabled at the time of her death , the Law saith , that such a Will is void . But I think that a Feme-Covert cannot Countermand her Will , for the same reason which doth disable her to make a Will , doth allso disable her to Countermand that which is made before ; for by 3 Edw. 3. Consummation . which was cited before , she cannot devise to her Husband , and by the same reason she cannot Countermand that which is devised to her Husband ; but because the Wife was not a person able at the time of the Consummation thereof , therefore it is not good . Mar●iage no countermand . Peryam to the same intent . First the Mariage is not any Countermand , and for the case in 2 R. 2 I think it good Law . And I have allwaies taken this diversity , that if a woman grant the Reversion after Tenant for years , Reversion . and before Attornment had she take a Husband , that this is a Countermand , but if that it be a Reversion after Tenant for life , then it is no Countermand , For in the first case his Title of Tenant by the Curtesie begun by the intermariage , Allthough that it was not consummate before issue had ; And it seemeth a clear case that a Feme-Covert cannot Countermand a Will , for she cannot make a Will. And whereas it hath been said by my Lord , that a woman hath a will , Will by custom● or by some by-matter . true it is ; but that is either by custom , or by reason of some by-matter , as in the cases put . But Wills ought to take effect at the time of the death , and if then she be disabled , it is not good ; for it is not consummate before ; as if there be Husband and Wife , and the Husband be seised of Lands in Fee , and levy a Fine thereof , and then dye , and after the levying of the Fine five yeares pass , yet she shall not be Barred ; but if after the death of the Husband five yeares pass , she is barred by a Fine , because her title was not conmsumate untill after the death of the Husband , whereby &c. Rodes to the same intent , for if I devise the Mannor of Dale as it is in the Com. for &c. and then have nothing in it , but afterwards purchase it , Perfection . now it shall pass , which proveth that the perfection of a Will is at the time of the death , and in 39 H. 6. a man devised lands , and before his death was disseised , Disseisin after Will . nothing passed by the Will , because it was no Will , untill death ; and here in our case because she was disabled at the time of her death , it is void .

Anderson

Then let judgement be entred accordingly .

17.

A Proclamation was directed to the Sherif of Cheshire against John Hockenhall , Proclamation . and the Writ was retorned , Tale die ad comitat . meum tent in le Shirehall &c. Dyer fol. 206. proclamationem feci , ac eodem die ad generalem Sessionem &c. proclamationem feci &c. And now this matter was pleaded in avoidance of the Utlary to reverse it , because those proclamations were made one day , whereas the Writ was ( tribus seperalibus diebus &c. And the Sherif was amerced to forty shillings for his evill retorn . And at another day he was amerced to other forty shillings because he had retorned divers Writs in Secretary hand , Secretary hand . And commandment was then given to the Custos brevium , to receive no Writs retorned in Secretary hand , for the Court said that writing in Secretary hand would be so worn in a dozen yeares that no man can read it .

18.

HOcker brought debt upon an Obligation against Gomersale and his Wife Executrix of the last will of Henry Gooderd ●●perdict . Common intendment . Hen. Gooderd de London Tayler , Trin. 30. Eliz. And they pleaded in bar a recoverie had against them in the Kings bench as Executor testamenti H. G. nuper dicti H. G de Lond. Rot. 2●03 . Barber Chirurgeon , whereupon the Plaintif demurred , And the Defendant did not aver that the said G. Tayler & G. Barber Chirurgeon was allone person , and they also omitted this word praedictum , And whether this were good or no was the doubt , And it seemed to the Justices that it was not good , although it was alleged that it shall be intended all one person ▪ and then if a plea in bar be good to common intent , it is good enough . And therupon John Pastons case was cited in 21 H. 7. Where it was Westmonasteriu● , & doth not say praedictum , Common intent what it is . yet it shall be intended the same Westm . mentioned before . Whereunto the Court answered ▪ that here by common intent he shall not be intended the same person , but rather to the contrary , For common intent is that which shall be intended more strong than any other , and not that which resteth indifferent , As if a man Plead a Feoffment in fee , it shall be intended that the Feoffer was of full age , but here common intent is that he was another person , because Barber Chirurgeon , and Tayler , are divers functions by common intent , And as to the case put , by common intent it shall be intended the same Westm. because the place is so notorious , that common intent will nor intend any other . But Peryam would not grant that case of 21 H. 7.

At another day Gawdy said that they have a President in 16. Eliz. where an action was brought here against the Administrator of Francis Fitzherbert Mercer , And they pleaded likewise a Recovery in the Kings bench against them as Administrator of F. F. Grocer , and allowed for good , and in 10 H. 7. wast is brought and doth not say , praedict. and yet good

Peryam

For the cases in 10. H. 7. & 21 H. 7. It was all in one Plea , but it is not so here .

And for his President Anderson and Peryam said that they would not regard it , if it do not appear that Exception was taken thereunto if the Presidents be shewen for matter , Matter 〈◊〉 Form 〈◊〉 Presidents . but if they be shewen for form then otherwise it is .

Anderson

If I. S. bring a Praecipe against me , and I vouch I. S. it shall not be intended the same person , ●oucher . if he do not say expresly that he is the same person , therefore a Fortiori here it shall not be intended the same person .

Afterwards the next Term Shuttleworth argued again that it shall be intended the same person , but all the Court was against him , and so they gave judgement for the Plaintif .

19

FEnner shewed how Bartholmew Brooksbie hath brought a Quare impedit , A thing in action released . and declared how A. was seised of the advowson in fee , and graunted to him and another the next avoidance , and after the church became void , and the other released to him all his right &c. and the Defendant disturbed him . And after they pleaded to issue which was found with the Plaintif , and this matter alleged in arrest of judgement , that the Release was void , and then he hath no cause of action , for when the Church became void , then it was a thing in action or actionary , and therefore could not be granted over by 28 H. 8. Interest shall survive . and by the same reason it cannot be released , as 1 and 2 P. and M. and 2 and 3 P. and M. in Dyer .

Anderson

If it be an interest it shall survive , and by the same reason it may be released , And it shall goe to his Executors , wherefore then may it not be released ?

Et adjornatur .

De Term. Mich. Anno xxxix ▪ & xl . Eliz. Reg.
1.

TIsdale , Maintainance . one of the Attorneyes of the Common pleas , brought an Action upon the Statute of Maintainance against John al Tree in Chancery lane , for Maintainance in a Spirituall Court ; and by all the Court , an Action is not Maintainable for Maintainance in an inferiour Court ; for this word , alibi , being in the Statute , was expounded to be meant of the Kings Court onely , and in the argument of the same case , Drew remembred the Court of a Judgement given there in the like case for one Constantine of Wiltshire .

2.

BEtween Brown and Lother an Action was brought in the Spiritual Court , Consultation . for these words , Thou art a forsworn Knave ▪ for thou madest a false account when thou wert Churchwarden , and thereupon the Defendant brought a Prohibition , supposing the discussing of Perjury to belong to the Temporall Court , and upon the opening of the matter to the Court , the Plaintif had a consultation , because the Perjury was supposed to be committed , about the execution of his Office of Churchwarden , which doth belong to the Spirituall jurisdiction : But otherwise it had been if the Perjury had been supposed to have been committed concerning a Feoffment or other Temporall act , per Walmisley & Owen .

3.

BRoughton against Flood , Amendment the originall Writ was returned by Needham , Esquire , Sherif , and his Christian name left out . Williams moved the Court to have the Christian name of the Sherif put into the Writ , but the Court denyed it , because the Record was made up , and likewise by this means they should make an Outlary good , which was now erroneous .

4.

IN an Advowry the Defendant saith , Venue . that locus in quo , &c. is parcell of the Manner of Dale , and avows for suit of Court , the Plaintif by replication saith , that locus in quo , &c. is parcell of the Mannor of Sale , and maketh to himself a title , absque hoc that it is parcell of the Mannor of Dale , and the Venire facia● was of Dale onely , and upon motion all the Court adjudged that it ought to have been of both Mannors , and made a rule for stay of Judgement after Verdict . This was the case of Atwood of the Middle-Temple .

5.

IT was sayd by Anderson and Owen , Prohibition . that a Prohibition will not lye after a sentence in the Spirituall Court , and that if the Libell be for such a matter as may be determined in the Spirituall Court , no Prohibition will lye , unless some Plea be pleaded by the Defendant in that Court , which the Judge will not allow : For if a Suit be in the Court of Admiralty upon a contract made upon the Sea , and the Defendant pleaded a release , or a gift , after the coming to Land , that Court may enquire and try this issue ; the like for Tythes , 2 Rich. 3.

6.

IT was sayd by Drew in the Argument of the case between R●the●●● and Green , Common . that if a Commoner take a Lease of one Acre , out of which his Common is issuing , that his whole Common is suspended ; Rent . allso where a Lease for years is , rendring Rent , and for default of payment a re-entry , if the Lessor grant the reversion of one Acre , Condition . the whole condition is gone : Also that an entry by the Lessor into any parcel , suspends the whole rent during his occupation , and Anderson sayd , that there is no Common by common right , but Common appendant .

7.

ADams brought an Action of Debt upon an Obligation against Oglethorp , Restitution . the Defendant pleaded that after the making of the Obligation , Trin. 39 Eliz. 〈◊〉 . 1803. the Plaintif was attainted of Treason for Coyning , and pleads the Attainder at length ; the Plaintif confesseth the Attainder , and saith , that afterwards the Queen by Letters Patents did pardon him , and did restore unto him omnia bona & cattella sua , and thereupon the Defendant did demur in Law , the question was , whether Debts by specialty be included in those words .

8.

EVeling against Leveson Executor of the Testament of Walton , Assets . in effect the case was this ; The Queen was indebted to Walton in a hundred pound for Muskets and Callivers delivered into the Tower , for which money Walton took a Debenter from the Queen in the name of a stranger , and afterwards dyed , and made Leveson Executor , who procured the stranger to release and surrender the former Debenter to the Queen , and took a new Debenter for the same hundred pound to himself , this was adjudged no Assets , nor devastav●t in the hands of the Executor Leveson upon a speciall Verdict , but otherwise it should have been if the first Debenter had been taken in Waltons own name , for then it had been a devastavit by the Executor .

9.

BAcon Plaintif against Selling in an Ejectione firme , Assets de judgement . the originall bare teste 13 Aprilis An. 39. and the Plaintif declared upon a Lease made to him 22 Apr. An. 39. Trin. 39 Eliz. rot. 1345. so that it appeared to the Court , that the Plaintif brought his Action before he had an interest in the Land , and by all the Court a Rule was given for stay of Judgement after a Verdict ; but afterwards the Plaintif came , and shewed that after Improlance he filed a new originall .

10.

HEnry Earl of Lincoln brought a Scandalum magnatum against one Michelborn for these words , Scandalum magnatum . viz. The Earl of Lincolns men by his commandement did take the Goodt of one Hoskins by a forged Warrant , &c. And the Earl recovered great damages by Verdict , and now it was spoken in arrest of Judgement , that the words were not sufficient to maintain the Action , because it was not averred that the Earl knew the Warrant to be forged , and of the same mind was the Court at this time .

11.

WIlloughby brought an Action of Debt against Milward , Debt . and declared that the Defendant bought Timber of him for ten pound , solvend . modo & forma sequenti , viz. five pound ad festum Pasch. proxime sequentem , and saith nothing when the other five pound should be payed , and the Plaintif recovered the whole ten pound by Verdict ; and now it was spoken in arrest of Judgement for the cause aforesaid , but yet by all the Court it was good enough ; for the Law intendeth the other part of the money to be due presently , if no certain day of payment bee alleged .

12.

KItchin brought an Action of Debt against Dixson , Debt . Executor of Craven , Mich. 36 & 37 El. rot. 1028. or 1021. the Defendant pleaded ( ne unques Executor . ) and the Jury found a speciall Verdict , viz. That Craven in his life time made a Deed of Gift of all his Goods to Dixson , and they found likewise that this Deed was to defraud Creditors , against the form of the Statute , and that the Defendant by colour of this Deed did take the Goods after the death of Craven , and if this Deed was good , then they found for the Defendant , if not , then they found the Defendant was Executor of his own wrong , and so for the Plaintif , and by all the Court Judgement was given for the Plaintif .

13.

IT was sayd by Drew ( arguendo ) That if the Grantee of a Rent charge release parcell of the Rent to the Grantor or his heires , Rent charge the residue may be apportioned , and the Land shall remain chargeable still for that residue , but if he release in one Acre parcell of the Land charged , then all the Rent is gone .

14.

IT was said by Glanvile in the argument of the case ▪ between Cromwell and Andrews , Provis● . that a Proviso in a conveiance to be performed on the part of the Lessee , implies a re-entry , allthough there be no speciall words of re-entry , but otherwise it is when it ariseth on the part of the Lessor , and Vouched bendlowes case , where there was a Covenant going between the Habendum and Proviso . But where the Proviso standeth substantively , as where I grant a Rent charge , Proviso that he shall not charge my person , Condition . this is no Condition but a Qualification . Allso where a Feoffment is made upon Condition to grant me a Rent Charge payable at Easter and Christmas , if the grant be not made before the first Feast which shall next happen , the Condition is broken , and he put a difference where the Condition must be performed by none but himself , and where it may as well be performed by his Executors , as himself . And Drew said then , that if there be a Feoffment upon Condition to Re-enfeoff the Feoffer , there ought the Feoffor to make a request , otherwise if it be to enfeoff another .

15.

SMith against Bonsall , Common . in effect the case was such ; In an Action of Trespass the Defendant pleaded his Freehold , Hil. 39. Eliz. rot. 1753. and the Plaintif replyed that A. was seised of a Yard-land , to which he had Common of Pasture for all maner of Beasts Levant and Couchant upon the same Yard-land , and of the Moity thereof did enfeoff the Plaintif ; the question was , whether this Common may be apportioned , or else it be extinct alltogether . In the argument whereof Drew said , that Common sans number cannot be granted over , because if it should be granted to a rich man , he may surcharge the Common then , and leave none for the rest of the Commoners , so of estovers uncertain , for so the Grantee may burn all the Wood , ( quod Walmisley concessit ) and he vouched 17 Eliz. in Dyer , that a Commoner may purchase parcell of the Land ▪ out of which his Common is issuing , Purchase , after that it be improved by the Lord , and not extinguish his Common thereby . And he said , that if parcell of the Common be inclosed , Inclosure . a Commoner ought to make but one gap to put in Cattell ; but Anderson said , that he may make as many gapes as he will . And it was said by Anderson and Beamont , Appendant may be apportioned . that Common appendant cannot be for all manner of Cattell , but onely for such ●attell as compass the Land , and that such Common may be apportioned into twenty parts , Append. quid . as any Common certain may be .

Walmisley & Owen

If my Land to which I claim Common belonging , can yield me stover to find a hundred Cattell in Winter , then shall I have Common in Summer for a hundred Cattell , in the Land out of which I claim Common , and so for more or fewer proporitionably , which they did expound to be the meaning of pertinen . Moity of a Mannor . levan , and cuban .

Walmisley

If I grant away the moity of my Mannor , we shall both keep Courts , so if I be disseised of a Moity , or that the Moity be in Execution by elegit , and we shall both have Common , and in apportionment of Common respect ought allwaies to be had to the quality of the Land unto w●ich it is alloted . Copiholder . And a Copyholder may prescribe for Common in the Lords Land within the same Mannor by usitatum fuit , but , if he claim any other Common , he must lay the prescription in the Lord .

De Term. Hill . An ▪ Reg. Eliz. xliii .
1.

WAlter Ascough prisoner in the Fleet , Appearance . was brought to the Common place bar by hab●as corpus , to the intent to have him appear to an Originall in debt brought against him ; And being demanded by Goldesburg Clark , whether he were the same party against whom the Originall was brought , confessed it , but denied to appear to the Action : Br●●ke● Prothonotary said , the Court ought to record his appearance , confessing himself to be the same person ; but the whole Court said this was no appearance , whereby he was remanded to the Fleet ; And Tamworth the Plaintif proceeded to the outlary against him .

2.

PRice brought an Action of Trover against Sir Walter Sands ; Frandulent deeds . Trin. xxxviii . Eli. And this was for finding of Corn. And the first point of the case was , That a man had a Lease in Reversion , and granted it to another by fraud , and his Grantee granted that over to Sir Walter Sands , bona fide . And if this Grant over bona fide being derived out of a Fraudulent Estate shall be void , per the Statute of 27 Eliz. or not , was the question .

Harris Serjeant

It seemeth the Grant to Sir Walter Sands to be good ; And not within the Statute of 27 Eliz. For 33 He● . 6. 28. If a man make a Feoffment in Fee by Collusion , to the intent to defraud the Lord of the Wardship ; And after this Feoffee by Collusion make a Feoffment over , bona fide , Now the Lord is without remedy , for the Collusion is gone . And in this case there is an ignorance in Sir Walter Sands , the which is not willfull , and for that it is not punishable : Notice . But if the other had taken the profits , so that the purchaser might have notice , there it should be otherwise . The ● cause was , non constat whether the Grant were before the Statute of 27 Eliz. or not . For if it were before , then the party shall not answer the mean profits . Allso a third matter is , ten yeares of the Term was granted for money ; But when he granted the Residue of the Term and no Consideration expressed , Consideration expressed . then there shall be no , consideration intended . And if there were no Consideration given , he is not holpen by the Statute : For that helpeth a Frandulent Conveyance against purchasers for Consideration given or paid , Et non constat that any thing was paid by the Plaintif . Allso it appeareth that Sir Walter Sands was in possession at the making of the Statute . Allso here the party is charged with a speciall fraud ; And the other saith , that it was made bona fide . And this is a good course of pleading without any Traverse , per 4 Ed. 4. 24.

3.

HUgh Hall brought an Action upon his case for words , and declared , Slander . that where he himself was robbed of divers parcels of Cloth , per quendam ignotum ; and made his integrity and indeavour to apprehend the said thief , praedictns tamen defendens praemissorum non ignarus dixit de praefato Hugone , viz. Hugh Hall hath received three parcells of his Cloth again of the thief ; And if I receive any hurt henceforth , I will charge him with it . And by Judgement of the Court the words are not actionable .

4.

THe Lady Willoughby Wife to the late Sir Francis Willoughby , Caveat . sued in the Chancery as Administratrix of her said Husband , against Percivall Willoughby , which had maried one of the Daughters of the said Sir Francis ; And the Defendant pleaded , that before any Administration commited to the said Plaintif , he himself put in a Caveat in the Spirituall Court , hanging which Caveat she hath attained these Letters of Administration , Appeal . whereby the Defendant hath appealed , 〈◊〉 which appeal is not yet determined , for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix . And it seemed to Egerton then Lord Keeper of the great Seal , that the Defendants plea is good to stay the suit untill the appeal be determined ; But not to be dismissed out of the Court , Appeal , Er●●● ▪ Difference . no more than an excommunication . And he said there is difference between an appleal in Spirituall Law , and a Writ of Error in our Law : For by the purchasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed ; But the very bringing of an appeal is a suspension of the first Judgement in the Spirituall Court for the principall matter , but not for the costs , and for to prove that he cited 2 R. 2. Quare impedit 143. & vide 27 H. 6. Gaud. 118. & . 2 M. 105. & Dyer 7 Eliz. 240.

5.

IN the Chauncery a speciall Verdict was retorned upon an extent , Execution u●on an exte●t of a Remainder . And the case was this ; that there was Tenant for li●e , the Remainder in Tail , and the Tenant in Remainder in Tail made a Statute Staple , and after granted his Remainder . And after the Tenant for life died , 〈◊〉 Bull 〈◊〉 . and the Grantee of the Remainder entered ; And whether Execution shall be sued of this land upon the said Statute , insomuch that the said land was never in Demeasne in the hands of the Co●●so● , 〈◊〉 ●ames 〈◊〉 . and so not extendable in his hands , was the question . And Sr. Thomas Egerton Lord Keeper of the great seal said , that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life : For to a Remainder are no services due nor incident , and for that it is termed Seck ; But a Reversion hath services incident , and those may be extended , and by consequence the Reversion when it commeth in possession . B●t it seemed unto him that all was one , for one may charge a Remainder when it happeneth , aswell as a Reversion ; and a Statute is in the nature of a charge . Cook the Queenes Attourney said there was no question in the Case ; for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question : for if he in the Remainder make a lease for yeares , to commence at a day to come ; Yet if he grant over his Remainder , the Grantee shall hold that charged with his lease ; And every Statute is a charge Executory . By which the said Lord Keeper awarded that there should be a liberate made to the Conusee , upon the retorn above .

6.

OVerton brought an action of Debt against Sydall . Debt by a Successor against an Executor after assignment . And the case was , that Prebendary made a lease for yeares rendring rent , and the Lessee died , and the Executors of the Lessee assigned over the Term , and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over , and the opinion of three Justices was that the action would not lye . But Popham the chief Justice held the contrary : For the Successor is privie to the Contract of the predecessor ; And so the Executor to the contract of the Testator .

7.

SHerborn against Lewis , Trin. 39. Eliz. The case was that the Hospitall of Donington was founded by the name of Minister Dei pauperis domus de Donington ; The name of a Corporation mistaken in a lease . And they made a lease in English by these words , Minister of the Almes-house of God of Donington besides Newbery . And whether there be such variance between the name of the Foundation , and this name by which the lease is made , to make the lease void , or not , is the question .

Cook Attourney generall seemeth that the misnomer in this case makes the lease void , for the place of the Foundation is misnamed , and the place is the most materiall thing in the Foundation that may be , and for that if that be mistaken all is void . And yet he agreed that small variances in such Corporations shall not hurt . Small variances . For Almeshouseand poor-house doth not make any materiall variance , for they are all one in substance . But it may be that this addition de juxta Newbery is of substance , For there may be two Doningtons , viz. the one by himself , and the other juxta Newbery , without averment that it is not another ; also in the Foundation this word Dei hath relation to Minister , and pauperis shall go to domus , and that appeareth plainly by the Kings licence of creation , and then the Foundation that explaineth it , and the ordinances also , and if the Corporation be not according to the licence , then it is void , also it cannot be intended that this word ( Minister ) ●hall be referred to domus , for the words which give them auctority to elect one that he may be President above the others , and he may not precede the others , if he shall be a servant . And now to prove that a materiall difference , in 17 E. 3. Friars Carmelites would have purchased land , & for that they had no place of Foundation they might not . And also the Dean and Chapiter of Chester made a lease , and this word ( Cestria ) was omitted , and for that it was adjudged void , and so here . Atkinson all co●tr . For here there is no misnomer of the Corporation , but an interposition of words one for another ; And they ought to be reasonably construed , and howbeit they are placed one before another , yet they may be construed according to the Foundation , having a favourable construction , the which ought to be in every grant .

Gaudie

It seemeth that the lease is good , for there is no materiall variance , for variance in letter and not in substance shall not hurt , and here in substance they agree , as if one say that one is Bayly of I. S. of the Hundred of D. It may be properly said that he is Bayly of I. S. So here if he be Minister pauperis Dei de Donington ▪ he is the Minister of God . For if the house be the house of God , and he the Minister of that , then he is the Minister of God , and in the case of the Savoy-after judgement given in the Exchequer , Error was brought in the Exchequer chamber , according to the Statute of 31 E. 3. ca. 12. And there it was agreed by the Barons before all the Judges of England , that the lease was good , notwithstanding the misnomer of the Foundation . And in some case variance in name of the Corporation should never hurt , where such variance in name of Baptism shall hurt . And to prove that , he cited 11 H. 4. and also he said that the other variance juxta Newbery is not materiall , for in 9 E. 4. that warranteth it , and it may be Donington is juxta Newbery .

Fenner

I am of the same opinion , but yet I will be advised .

Popham

I am resolved , and I think that the argument of my brother Gawdie had need to be well answered ; and after in Termino Mich. 39. & 40. Eliz. this case was argued again , and it was said that in 24. Eliz. inter Wilgate & Hall , the case was , that the Dean and Chapiter of Windsor were founded by the name of Decanus Reginae capella de Windsor , And they made a lease by the name Decanus Regina capelle de Windsor , and for that this word Reginae was added to the lease , which was not in the Foundation , therefore the lease was adjudged void .

Gawdie

It seemeth the lease is good , and that the variance shall not hurt , for we ought to make suck construction if we may , that the lease should be good , and for that 11 Eliz. 278. Incorporation per name de Dean & Chapter Ecclesiae cathedralis sanct●e & individue Trinitatis Carlill made a lease for yeares by name Decanus Ecclesiae cathedralis sanctae Trinitatis in Carlill , et totum capitalium de Ecclesia praedicta , and the better opinion was that the lease was good , notwithstanding the variance , because it is not in substance of name , and 5 Ed. 4. 20. Obligation was made Abbati Monasterii de M● extra mur●● Eborum . And in debt brought the Writ was quod reddat Abbati Monasterii de M. Ebor. leaving out these words extra muros , and holden good , notwithstanding the variance , and yet then the party might have had a new Writ ; Et a fotiori in this case , for here he can never have a new lease , and if a lease agree in effect and Substance with the Foundation , albeit there be variance in words between the grant and the Foundation , yet the lease is good . As if one said that T. K. is Executor , of the Testament of I. S. It may be said that that T. K. is I. S. Executor , and in this case if it had been Minister Dei p●●peris domus Dei de Donington , there the Addition of this word Dei , after the word domus , shall never hurt . Fenner Justice said it should hurt , for it cannot be intended the same Corporation , and for that it is a materiall variance , for there are two Genitive cases , & the last of them may not be governed by the first Substantive , for in construction it may never be so construed . And when the King puts a name upon a Corporation , this name ought to be strictly observed : For they have no other capacity than by this name . And every Corporation consisteth of two parts , Two parts of every Corporation . That is to say of Persons , and of the place of their Foundation , and here Minister Dei is the Person , and pauperis domus de D. is the Foundation ; by which , when part of the name of the Person is omitted , viz. this word Dei , and added to the Foundation , there is a materiall variance . Clynch said the Lease was good , for sayd he the Minister of God of the poor house of D. and the Minister of Gods poor house of D. are all one ; for when our Saviour Christ came to Jerusalem , and there saw the buying in the Temple , he sayd to the buyers , you have made the house of God the den of Theeves ; for the house of God is the place where God is served .

Popham contra

For if the Corporation had been Minister domus Dei de D. and a Lease had been made by name de Minister domus de D. omitting this word Dei , every one will agree that this is voyd ; but if a further addition be made to the Corporation , the Lease is true , Addition superfluous shall not hurt . allbeit that it be varying , as if the Lease had been Minister Dei omnipotentis , the addition of this word omnipotent , shall not hurt , & sic de similibus .

And allbeit that it be not agreeing in words , yet if it agree in common understanding , Common understanding ▪ it is good ; but if in common understanding , the grant may not be taken according to the Foundation , if it be not wrested to an unexpected understanding , there it is not good ; and if the Foundation had been in English words , Minister of God of the poor house of Donington , and the Lease by name of Minister of the poor house of God of Donington , every one will agree that this is palpable variance , and the Lease not good . And I doubt of the case of Everwick , for there the Prior beat●● Mariae brought an action by name of Prior beat●● Mariae extramures civitatis Ebor ▪ and if this case were now to be adjudged , that would be variance , as the case of Bristoll , Prior beatae Maria de Bristoll , made a Lease by name of Prior beatae Maria juxta Bristoll ; and this Lease was adjudged voyd ; but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance , for it had been but an explanation , which will never hurt ;

and for that the Court was so divided in opinion , that is to say , two against two , and the case concerned a poor house , They moved the parties to comprimise .

8.

RUswell brought disceipt against Vaughan , Disceipt . and declared that the Defendant sciens that he had no title to the Advowson of D. took upon him to be owner of that , and sold the profits of the sayd Advowson to the Plaintif , pro quadam pecunia summa . And it was pleaded in arrest of Judgement , for that the Plaintif did not aver , ubi revera the Defendant had no title , & non allocatur .

9.

THe case was that the Queen made a Lease for years , Burrough versus Taylor . rendring rent at the receipt of her Exchequer , or to the hands of her Baylif , upon condition , that if the rent be not payd , that the estate shall cease ; Payment of rent the reversion being granted away by the Queen . after the Queen granted over the reversion ; and whether the rent shall be now tendered upon the land , or at the receipt of the Exchequer , or to the person of the Assignee of the reversion , was the question ; and it was adjudged that the Grantee of the reversion ought to demand the rent upon the Land , or otherwise he shall not re-enter for the condition broken , & that for two causes , the one , for that that when the reversion was in the Queen , Election . the Lessee had election to pay it at the receipt of the Exchequer , or to the hands of the Queens Baylif , and when the Queen had granted over the reversion , the election of the Lessee is tolled , by which now the rent shall ensue the nature of other rents reserved by common persons , The common receipt of the Exchequer . and those are payable upon the lands : another reason is , every rent reserved by the Queen is of common right payable at the receipt of the Exchequer , or to the Baylifs of the Queen , without words appointing at what place it shall be payd ; for these are the usuall receipts of the Queen , and so the words which appoint that to be payd at the receipt of the Excheq ▪ ●r to the hands of the Baylif of the Queen , are idle words , for that the Law appointeth so much of common right , ex praerogativa Regis ; but when the reversion is transferred into the hands of a common person , No prerogative can be granted over . there this Prerogative ceaseth , for it cannot be granted to a common person ; and by consequence the rent shall be payd upon the Land .

10.

THomas Welcome , Error . Executor of Anthony W. Executor of John Welcome , brought a Writ of Debt against S. S. in the Common-place , and Judgement was given , and entred , quod praedictus Johannes Welcome recuperet , where it should have been , quod praedictus Thomas Welcome recuperet , No amendment in point of judgement . and for that Error was brought , and Serjeant Heale moved that the Record might be mended , for that it was the mis-entring of the Clerk , but adjudged to the contrary , for the Judgement is the act of the Court , and not of the Clerk .

11.

EDmund Nevell brought an Action of Trespass against J. Sayle , Abuttals . and declared Quare clausum fregit in quodam loco vocato Claveringfield , abuttan . super quoddam molend . in tenura J. S. Opinio ▪

Curiae

If the Plaintif do not prove his Buttals , he is gone .

And for that he could not prove that the Mill was in the tenure of J. S. the Jury being at bar was discharged ; and howbeit that there be a way between the Close and the Mill , yet the Buttall is good .

12.

RIchard Somerstailes brought an Action upon the case for slanderous words , Slanderous words . that is to say , R. S. is a very bad fellow , for he made J. S. drunken in the night , and consened him of an hundred Marks ; and upon not guilty pleaded it was found for the Plaintif , and Judgment was stayed , for the words are not sufficient to maintain an Action .

13.

IF the Heir of the Morgagee is in Ward , Mortgage . and the Morgager payeth the mony , his entry is not lawfull upon the King , but shall be put to monstrans de droit , per Popham chief Justice .

14.

HAmond brought Debt upon an Obligation against Hatch , Award of pa●t onely . and the Condition was , That if the Obligor do well and truly perform and keep the Award of J. S. Arbitrator indifferently chosen between the Plaintif and the Defendant , for , and concerning the matters contained in 9 severall Articles , bearing date the day of these presents , So that the same be given up under the hand and seal of , &c. And the Arbitrator made an award of 7 of the sayd Articles , omitting the other two ; and whether the Obligor ought to perform this Award , was the question .

Man .

I think he ought to perform the Award , for that he is bound by Obligation to perform it , and to prove that he cited 5 Edw. 4. 19 Hen. 6. & 17 Edw. 4.

Gawdy

The words of the Condition are , so that the same Award be given up in writing before such a day ; and that shall have reference to all the Articles ; for the Submission was conditionall , as 14 Elizab.

And after Judgement was given quod quer . nihil capiat per billam .

15. How against Broom and others .

A Man leased a House and a Close , rendring rent , and the Lessor entered into the house , and pulled that down , and after the Lessee re-entered into the Close , Rent extinct by empairing the estate . and whether the rent were revived or not , was the question . And

Popham and Gawdy

The rent is not revived ; and that the Lessee shall hold the Close discharged of any Rent , by the folly of the Lessor to impair the estate of the Lassee .

16.

DOwnall brought a Writ of Formdon against Catesby in the Common-place , Error . and there was a speciall Verdict found , and Judgement given , for a default in the Writ , against the Plaintif , and the Plaintif brought Error , and alleged for Error , that after Verdict given no default in the Writ shall prejudice the party , per le Statute de 18 Eliz. cap. 14. Popham chief Justice sayd , if there be no Writ , it is holpen by the Statute , Insufficient Writ ●ot holpen . but it is otherwise if there be an insufficient Writ in matter , for that is not holpen ; but a Writ that is insufficient in form , and sufficient in matter , is holpen : And in every Writ of Formdon there are two things requisite , the one is the gift , the other the conveyance to the Demandant ; and if either of these two fail , the Writ is insufficient in substance , and is not holpen by the Statute .

17.

PEter Palmer of Lincolns Inne brought an action upon the case against one Boyer , Slander of a Counsellor at Law . and declared how he was an Utter-barrester of the Law , and got his living by practising of the Law , and was Steward of divers Courts , and namely of one John Petty Esquire , and the Defendant praemissorum non ignarus , to the intent to prejudice the Plaintif in his good name and practise , sayd of the Plaintif these English words , viz. Peter Palmer is a paltry Lawyer , and hath as m●ch Law as a Jackanapes ; and it was pleaded in arrest of Judgement , that the words would not maintain an action , for they are not slanderous ; for it is not sayd , he hath no more Law than hath a Jackanapes , for then it had been clear that the action is maintainable , for by that he had abated the opinion of his Learning , but it is not so in this case ; for the words are , that he hath as much Law as hath Jackanapes , and this is no impeachment of his Learning , for every man that hath more Law than Jackanapes , hath as much ; Et non allocatur , for the comparison is to be taken in the worst sense , and tant amounts that he hath no more Law than Jackanapes , per quod Judgement was given for the Plaintif , for this is a slander in his profession by which he doth acquire his living .

18.

ONe libelled in the Spirituall Court for Tithe of Billet , Prohibition . Faggot ' and Talwood , And averred that it came of Birch , Maple , Hasell and Hume , and thereupon a Prohibition was sued , surmising that they came of Oke , Ash , Elm , and Birch . And in the Spirituall Court allbeit one Libell for wood of one nature , and that is found of another nature ; yet sentence shall be given for the Plaintif . The Court said that was absurd , Absurd practise of the spirituall Court . and therefore they would hear a Civilian speak to that point .

Cook Attorney Generall

If consultation shall not be granted , then farewell all Tithe of Wood , for in truth in every faggot of Birch , there is put a great stick of Oak , or Ash , intending by that to privilege the whole faggot of Tithe . Nam crescit in orbe d●lus . Webb , Clark , said , the cunning is of your side to Libell for fagot ; For if you had Libelled for Maple , Birch , or Hasell , no Prohibition would have been sued . And it was adjudged in this Court in Molins case , one Libbelled for billet and fagot generally , without shewing of what Wood they were made , And upon pleading upon the Prohibition , Partable tithable . it appeared to the Court that part was tithable , and part not . And for that they could never obtain a Consultation .

Cook

It doth not appear here that there was any mixture , so the case is not like .

Webb

You have no Right to have Tith of fagot , for that part thereof is not tithable being Oak , so by your Covetousness to have more than is your Right , you have lost that that is your Right ,

Et adjornatur . And after at another day in the same Term , it was moved again by Savile , Lanes case . which said , that it was adjudged in Lanes case , that tith shall never be paid for Hasell-wood wich is mixt with Oak in fagots , quod Gawdie negavit .

Fenner

He ought to have pleaded the speciall matter to have had a Consultation , Seeciall pleading . viz. how much of the fagot was Hasell , for so it was done , inter Molius & Dames . And therefore forasmuch as it is not so done , Consultation shall not be granted for no part of that , and of this opinion were all the Justices ,

quod nota .

19.

NOta per Master Kemp Secondary of the Kings Bench Office , Appearance . if a Latitat goeth forth against the Husband and Wife , and the Husband onely is taken , The Husband shall find surety for himself and his Wife , or otherwise he shall lie in Prison untill he find bail as well for his Wife as for himself , and said , that this hath been the use of the Kings Bench by the space of forty years of his knowledge .

20.

SCire facias was brought by Middleton against Hall , Usury after Judgement . to execute a Judgement . The Defendant pleaded that he borrowed of the Plaintif 100. l. to give him 120. l. for the loan thereof for a year ; And the Plaintif for his assurance would have the Defendant confess this Judgement of 120. l. And so he pleaded the Statute of Usury in bar to this Scire facias , and upon that the Plaintif demurred in Law , Godfery prayed Judgement for the Plaintif . The words of the Statute of Usury are all Bonds , Contracts , and assurances Collaterall , or other , made , &c. shall be utterly void ; But here this Judgement may not be said any assurance for the money , but is a Judgement upon the assurance , for which , &c. Clark contra . But the whole Court being twise moved , held clearly that this is no plea to defeat a Judgement ; But if such matter had been , the Defendant ought to have pleaded that , upon the first Action in bar , and so not to suffer the Judgement .

Popham

Here are two inconveniences , one to defraud and defeat the Statute of Usury , the other to avoid Judgements upon such suggestions which might be pleaded in bar in the first Action ; and after the Plaintif had Judgement to recover .

21.

MArtin , Slander of an Attorney , Attorney of the Kings Bench , brought an Action of the case against Burling for slanderous words , viz. Martin , is he your Attorney ? he is the foolishest and simplest Attorney towards the Law ; And if he do not overthrow your cause I will give you my ears , he is a fool and an ass , and so I will prove him . If these words be actionable or not was the question , in arrest of Judgement after Verdict for the Plaintif , and the Court seemed prima facie , that they are not . But after the case was moved by Harris for the Plaintif , and then by the consent of all the Court Judgement was given for the Plaintif ; And Popham said , that to say that an Attorney will overthrow his Clients cause is an Actionable slander .

22.

COllet brought a Writ of Error against Marshe , Error for non summons . upon a Judgement given in the Common place in a praecipe quod reddat , And assigned for Error , for that by the Statute de 31 Eliz. cap. 13. it is inacted for the avoiding of secret summons in reall Actions , without convenient notice of the Tenants of the Freehold , that after every summons upon the Land in any reall Action , fourteen daies at the least before the Retorn thereof , Proclamations of the summons shall be made on a Sunday , at , or near the most usuall door of the Church or Chapell of that Town or Parish where the Land , whereupon the summons were made , doth lie , and these Proclamations so made as aforesaid , &c. ut in Statuto . And in this case , there was not any Proclamation made at the Church door ; And whether the Plaintif shall have an Averment against the Sherifs Retorn was the question . And adjudged that the party shall not have the Averment against the Retorn of the Sherif : No averment against a Sherifs retorn . For if the Retorn be false , the party shall have an Action upon the case against the Sherif .

23.

POrtman brought an ejectione firme against Willis , and a speciall Verdict was foun● , that Roger Hill was possessed of a Lease for years , and gave divers personall Legacies to severall persons , and gave all his other goods and Chattells to his Wife , and whether the Wife shall have this Term , being a Chattell reall , or not , was the question .

24.

GRay brings Trespass against Trowe , Fish in a pond . for entring into his Close , and taking of Fish out of a Fish-pond with nets and other Engines ; The defendant pleaded that long time before the Trespass was done , one Thomas Grey was seised of the Close and Pond , and put the Fishes into the Pond , and after the said Thomas Grey made the Defendant his Executor , and died ; And he as Executor took the said Fishes , Chattells descendable . and upon that the Plaintif demurred , and it was adjudged that the Heir shall have the Fishes in the Pond , and not the Executors , Felony . for they are Chattells descendable , but by Clinch it is Felony to take them .

Popham

If they be in a Trunck so that they may be taken out by the hands of men , without nets or other Engins , there it is Fellony , but otherwise it is not Fellony .

25.

THynn brings Debt against Cholmeley for 300. p. of arrerages of a nomine poenae , Nomine poenae against an Assignee . and declared of a Lease for years made by him to one Agar , rendring Rent , And if default of payment be made of payment of the said Rent , at any day in which it ought to be paid , that then & so often the said A. his Executor and Assignes shall pay 3. s . 4. p. for every day , untill the aforesaid Rent so behind shall be satisfied , And shewed how the Rent was behind and not payed for two years ; But doth not say that he demanded the Rent .

Jackson

The sum demanded , is by computation more than is due , reckoning but iij. s . iiij . d. for every day that the Rent is arrear . And if that be his intent he demands too little , for in two years that will be infinite .

Gawdy

It seemeth that he shall not have but onely iij. s . iiij . d. for every day .

Fenner

I think he ought to make demand of the Rent , or otherwise he shall never have the nomine poenae .

Gawdy

No truly , no more than in debt upon an Obligation , and he cited 21 Hen. 6. 21 Edw. 4. & 22 nomine poenae .

Fenner

The cases are not alike , In demand . for in debt upon an Obligation there is a duty , but otherwise it is of Rent . And it was agreed that the action well lieth against an Assignee in this case .

26.

HUmphrey Parlor brought an Action upon the case for words against I. S. And the words were these , Slander . viz. Parlor was in Prison in a Jail for stealing of Mr. Piggots Beasts ; and it was pleaded in arrest of Judgement , that the Action doth not lie , forasmuch as it is not presciely alleged and affirmed that he stole the Beasts : But by Implicatior . Nevertheless Judgement was given for the Plaintif , for by Fenner , if he had said he had been in Prison for suspition of stealing Mr. Piggots Beasts , no Action will lie , for a treue man may be suspected : But here is a direct affirmance of stealing ; For a man cannot be imprisoned for stealing , if he do not steal .

27.

THe Earl of Pembr●ok brought an Action upon the case against Henry Barkley militem ; Proviso . and the case in effect was such , that the late Earl of Pembrook , Father of the now Pla●ntif , was seised in Fee of the Mannor of D. in com●tatu Somerset , and by reason of that , he had the Office of Liuetenantship in the Forrest of Cromcelwood , and of all the Walks in that . And by reason of the said Office , had all the commandement of the game within the Forrest , and he so seised , the Earl granted to Sir Maurice B. Father of the now Defendant , and to the Heirs Males of his body , the Keepership of a walk called S. in the West part of the Forrest , and in the said Deed of grant were such words , Provided allwaies , and the said Sir Mawrice B. doth Covenant and grant , to , and with the said Earl of Pembrook , that it shall and may be lawfull to and for the Earl , his Heirs and Assignes , to have the preheminence of the game within the said Walk ; Provided allso , and the said Sir M. B. doth further Covenant and grant to and with the said Earl , That neither he , the said Sir M. his Heirs or Assignes , shall or will cut down any Timbertrees growing within the said Walk . And after Sir M. B. died , and the said Sir H. was his Son and Heir , and cut down Trees within the Walk . And the Lord of P. commanded his servants to enter into the said West-walk , and there to Walk ; And Sir H. B. did disturb them , and upon that the Action was brought , and the point of the case was , if the wordes in the second Proviso make a Condition , or but a Covenant .

Gawdy

I doubt of the case ; for all the question of the case is , if it be a Condition , or but a Covenant ; And as I am now advised , ●●hit is but a Covenant , and no Condition . For in all cases where this word ( Proviso ) ought to make a Condition , there ought to be a perfect sentence to explain the meaning of the parties , or otherwise it is no Condition . As if the wordes are provided allwaies that if the Rent be behind , and say no more now , this is no Condition And here all the sense comes in after the words of Covenant , and these words are the words of Sir M. B. And for that it seemeth no Condition ; for if the words had been , And it is provided by Sir M. B. there it is clear no Condition . But if in a Lease for yeares be words , and the Lessee do provide , that if the Rent be behind , that then the Lessor shall re-enter , there I agree that this makes a Conditon . And in the case put by my Brother Williams , a Lease made , & provisum est quod non licebit to the Lessor , to grant over upon pain of forfeiture , there is a good Condition ; But otherwise it shall be , if sub poena forisfacturae were omitted .

Fenner

I think it is a a Condition , for all the words put together , explain the meaning of the parties , as if he had said upon Condition , And the Lessee doth Covenant and grant , and none will deny but that this is a Conditidition . Clinch seemed that it is no Conditon , for the words may not be used as a Covenant , and allso as a Condition . As where a grant is by Deed , by words of Dedi , concessi , & confirmavi , the Deed may be used as a Grant , or confirmation , at the Election of the party ; But it cannot be used in both sorts .

Popham

I think that the Proviso as it is here placed will make a Condition , and yet I will agree , that a Proviso shall be sometimes taken for a Condition , and sometimes for Explanation , and sometimes for a Covenant , and sometimes for an Exception , and sometimes for a Reservation ; and it is taken for a Condition ; As if a man Lease Land , provided that the Lessee shall not Alien without the Assent of the Lessor , sub poena forisfactura , here it is a Condition ; and if I have two Mannors , both of them named Dale , and I Lease to you my Mannor of Dale , Provided that you shall have my Mannor of Dale in the Occupation of I. S. here this Proviso is an Explanation what Mannor you shall have ; and if a man Lease a house , and the Lessee Covenanteth that he will that maintain , Provided allwaies that the Lessor is contented to find great Timber , here this is a Covenant ; and if I Lease to you my Messuage in Dale , provided that I will have a Chamber my self , here this is an Exception of the Chamber ; and if I make a Lease rendring Rent at such a Feast as I. S. shall name , Provided that the Feast of St. Michael shall be one , here this Proviso is taken for a Reservation ; and in our case , if the words had been provided allwaies that the Donees shall cut down no Trees , and the Lessee doth Covenant he will not fell any , here every one will agree that it is a Condition , and allso a Covenant ; And in this case in my opinion , this tant amounts .

Serjeant Williams and Cook Attorney for the Plaintif . Atkinson and Tanfield for the Defendant .

28.

LAssels the Father , S●ander . brought an Action upon the case against Lassels the Son , for words , viz. he , quendam Thomam Lassels fratrem ejusdem Def. innuend . stole a Mare , and you , innuend . querent . knowing the same , conveyed her into the Fenns to my Brother B. his house . Clinch and Gawdy seemed the Action maintainable . Fenner econtra .

29.

A Man was indicted for stealing of a hat and a band , and other such things ; Indictment . And the Prisoner said , that he was before that time indicted for goods stolen the same day and time , and acquitted . Gawdy said , he may not be severally indicted for goods stolen at one time . As if a man steal a dozen of silver spones , he may not be indicted for two in one Indictment , and for other two in another , & sic de singulis . Clinch accord .

Fenner

Yes truly , for it was the case of Thomas Cobham , the which was indicted for goods taken in two shipps , and acquitted , and after condemned for other goods taken at the same time .

30.

PEarce brought an Action upon the case against Barker , Prescription by a Copy-holder . and delared how within the Mannor of Dale , time out of mind , there had been divers Copyholders , and during the same time , there hath been a usage within the said Mannor , That every Copyholder for every Acre of Land shall have Common in such a Wast of the Lords for two Beasts ; And shewed how the Plaintif is possessed of twenty Acres , and by reason of those , ought to have Common for forty Beast● . And there hath the Defendant being Lessee for years of the same Mannor , one Conigray within the same Wast , by which the Conies have so digged the ground , that his Beasts cannot have Common as they were wont to have .

Fenner

A Copyholder may not prescribe but in right of his Lord ; but now the Lord pro tempore , is party to the action , and whether this will alter the case or not , I doubt .

Glanvile

Albeit the Copyholder may not prescribe but in right of his Lord , yet by way of usage , as this case is , it hath been adjudged that he may make his title .

31.

A Ruudell was heretofore arraigned upon an Indictment of willfull Murder for the death of one Parker , Indictment . and was found not guilty of Murder , but guilty of Manslaughter , for which he pleaded the generall pardon , de 35 El. And the Queens Attorney alleged , That in the sayd generall pardon there is an exception of all persons being in prison by the commandement of one of the Privy-counsell ; and said , that the sayd Arundell was committed by the Lord Chamberlain for suspition of the sayd Felony , and for the same in prison at the time of the Parliament , Commitment . and so a person exempted . To which it was sayd by the Defendant , that long time before the sayd Parliament , and after the sayd commitment by the Lord Chamberlain , there went out of this Court a Corpus eum causa , by force of which he was sent into this Court , with the cause of his commitment , and was for the sayd offence committed by this Court to the Marshalsey , and there was remaining at the time of the Parliament by force of the commitment of this Court , and it seemed by the better opinion of the Court if a man be committed by a Privy-counsellor , and removed by Habeas corpus ; and committed by this Court , he shall be now sayd imprisoned by commitment of this Court , and not of the Privy-counsellor .

32.

STaugnton brings a Writ of Error against Newcomb upon a Judgement given in Debt in the Common-place , Error . and the first Error assigned was for that the originall Writ was xx l. and all the mean Process were so likewise , but when the Defendant appeared to the Exigent , the entry was , quod defendens obtulit se in placit● debit● decem librarum , where it ought to be xxl.

Dodderidge

I think it shall be amended ; for it is the misprision of the Clerk , and to prove that , he cited 37 Hen. 6. 44. Ed. 3. 18.

But upon view of the Record it appeared that no originall was certified , and therefore could not be amended .

33.

EJectione firme inter Bulleyn & Bulleyn . Devise .

Cook Attorney Generall

The case is , that Simon Bulleyn being cestui que use , before 27 H. 8. Devised to his Wife certain Land for her life ▪ & that after her decease Robert Bulleyn his eldest sonne shall have the land ten pound under the price it cost , Limitation . and if he dyed without issue , that Richard Bulleyn his second sonne shall have the land ten pound under the price it cost , and if he dye without issue of his body , then his two Daughters A. and B. shall have the land , paying the value thereof to the Executors of his Wife ; and allso by the same Will he desired his Feoffees at the request of his Wife to make Estates accordingly . The chief question , and knot of the case is , whether Robert Bulleyn the Devisee hath an estate tayl or not ; and he sayd it seemed to him , he had but an estate tayl : and for that we are to see whether the payment ought to precede , or is subsequent to the estate ; and I think it is subsequent to the estate ; For the words are , my sonne Robert shall have my laud ten pound under the price it cost , and so by the words he ought to have the land before any payment ; and I think he shall have the land by course of limitation ; Limitation . and if he doe not pay the money , that R. B. shall have the land as Heir by limitation ; Crickmores case and for that purpose he cited Crickmores case in 3 Elizab. where a man had two Daughters , and devised his land to his eldest daughter , paying to the youngest ten pound ; there the eldest had all the land till she failed of payment of the ten pound , and then it was adjudged that the youngest should have the moity by way of limitation . Vellock & Heymonds case . And 32 Eliz. it was adjudged in this Court inter Vellock & Heymond , where a man devised Burrongh English land to the eldest brother , paying to the youngest ten pound , and after the elder failed of payment , and the youngest entered by way of limitation . And in this case these words , that Robert my son shall have my land ten pound under the price it cost , will make a condition , as well as if he had sayd , paying ten pound ; and to prove that he cited Sir Edward Cleres case , Sir Edward Cleres case . that these words upon trust and confidence will not make a Condition , by reason that the Devisor had a speciall trust and confid●nce in the Devisee ; but it is otherwise here , and in this case the estate of necessitie ought to precede the payment ; for it is appointed that the payment shall be made to the Executors of the woman , and so if the estate doe not precede the payment , then during the life of the woman the Devisee shall have no estate ; for during her life she cannot have Executors ; and so by consequence can there be no payment : Allso the words of the Will are , I desire my Feoffees to make an estate at the request of my Wife , so that his meaning was plain , that there should be an estate made in the life of the Wife , for after her death she may not make request ; but it hath been sayd , that the state should be Fee simple , for that the words are , that he shall have the land ten pound under the price it cost , and so these words paying shall carry the Fee simple : And as to that , I say that it shall not against an expressed estate : Expressed estate And for that 2 El. 117. a Frenchman devised lands to his Wife for life , the remainder to C. F. and to the heirs Males of his body , and if he dye without heirs of his body , the remainder over , and it was taken clearly , that the generall limitation , if he dyed without issue of his body , shall not alter the speciall tayl , for that the intent is apparent , and allso he cited Claches case , and Atkins case 34 Eliz. 33. Allso in this case Robert Bulleyn the Devisee is made Executor to the woman , so that if it were a condition subsequent , he may not make payment to himself , but shall have the land discharged of the condition , by reason of the impossibility ; as if the woman had dyed intestat , there is no person to whom the payment ought to be made , and so the Devisee is discharged of the condition : Allso in this case the Devisee being eldest sonne , may not forsake the Devise , and take by descent , as in 3 Hen. 6. 46. it is for the benefit of him in remainder ; but if he might waive , he may not waive in pais , as 13 Rich. 2. Joyntenancy is adjudged : And allso when he enters at the first , he is seised by the Devise , for he hath no other right ; for if he might waive , he in remainder shall not take .

Et adjornatur ; but the Court seemed to lean that the estate should be a Fee simple .

34.

BUry brought an Action upon his case for words against Chappell , Slander . viz. He hath been in Fowlers Tub ( innuendo the Tub of one Fowler a Chirurgeon , in which Tub no person had been but those which were layd of the Pox ) I will not say of the Pox , but he lay in the Tub that time that Lagman his Wife was layd of the Pox ; and tell thy Master his hair falls from his head , and he is a pilled Knave , and a Rascall Knave , and a Villain , and no Christian , and thinks there is neither heaven nor hell ; and adjudged that the Action is not maintainable .

35.

A Man is arraigned of Felony and acquitted , Flight for Felony . but it is found , that he fled for the Felony , he shall not lose his goods that he had at that time of his flying , but at the time of the acquittall , tit . Coronae Fi●zh . 296. Bro. tit . relation 31. 3 Ed 3.

36.

WIlkinson brought Error upon a Judgment given against him in the Common place . Variance between emparlance and judgment roll for date of the Obligation . And the case was that in Debt brought against Wilkinson in the Common place , upon an Obligation bearing date 1● . die Novembris , the Defendant imparled , and in the next Term the Plaintif declared a new , prout patet , upon an Obligation bearing date 12. Februarii , and upon nihil dicit had judgment . And now in the Writ of Error brought by the Defendant the Plaintif prayes that it may be amended . Gawdie & Fenner said it could not be amended , but the Lord Popham and Clinch said it might be amended .

37.

SKelt brought an Assumpsit against Wright , and declared that the Defendant in consideration of 10l . assumed to make two lights into one , New triall . and upon non assumpsit pleaded , they were at issue , and the Record of nisi prius was to make two lights and one , where it ought to be into one , and upon that at the nisi prius the Plaintif was non suit . And it was now moved whether the Plaintif ought to have a new venire facias upon the first issue , insomuch as the first venire facias did not issue forth upon the first Record , and no non suit : Et opini● Curiae , that he may go to a new triall , but whether he shall have a venire facias de novo , or that the old venire facias should serve , the Court doubted , for that the first Jury was sworn .

38.

FOrd brought an Action of Debt against Glanvile and his Wife Administratrix bonorum & Catellorum qua fuerunt Johannis S. durante minore aetate T. S. Abatements . The Defendant pleaded that hanging this action against them , the said T. S. during whose nonage the Wife was Administratrix , came to full age : and if this were a good Plea or no was the question , And adjudged a good Plea .

39.

UPon an information against Sr. Christopher Blunt a Juror was challenged for want of Free-hold , Free-hold of a Juror . and by examination was found that he had 20 shillings a year . Fenner and Gawdy doubted whether this be sufficient Free-hold or not , Popham and Clinch held it is sufficient , for the Statute binds not the Queen , and by the Common law if he had any Free-hold it was sufficient .

Fenner

This is a Statute made for the benefit of the Common-wealth , and therefore the Queen shall be bound by it , though she be not named in it .

Gawdy

Me thinks every Juror ought to have 40. s . Free hold at the least , by the Common-Law . No bill of enception against the Queen .

Cook

No certainly , and if they doe take the Law to be so , they may have a bill of exception .

Tanfield

Wee cannot have a bill of exception against the Queen ; see the Statute of 1 Hen. 5. cap. 3. that that is between party and party , and the Statute of 8 Hen. 6. the preamble is between party and party .

But Popham commanded the Jury to be sworn , but Gawdy would have sent to the Justices of the Common Pleas for their opinion , but the Juror was sworn by Commandment of Popham , against the opinion of Justice Fenner .

40.

PEr Cook ; Proxime future . If I am bound in an Obligation in Lent upon Condition to pay a lesser sum , in quarta septimana quadragesima proximae futurae . This money shall be paid in Lent Twelvemonth after ; And so it is upon the Feast day of St Michael , I am bound to pay a lesser Summe upon the Feast day of Saint Michaell , prox . futur . without question said he , it shall be paid the Twelvemonth after , and not the instant day .

41.

THE Duke of Norfolk Morgaged certain Lands to Rowland Haward , Demand . Alderman of London , upon Condition , that if the said Duke do repay to the said Alderman a certain Sum of money ; That then the Duke might re-enter , and after the Duke was attainted before the day of payment , Condition given to the Queen . and all his Lands , Tenements , and Conditions were given to the Queen ; And the question moved at the Table in the Serjeants Inne , was , whether Sir Rowland ought now to make a Demand of the money upon the Land , or to demand that at the Receipt of the Exchequer , or that the Queen ought to make the tender upon the Land ; And it was agreed by all the Judges and Serjeants at dinner , that the Queen ought to make no tender ; But the Alderman ought to make his Demand at the Exchequer , and not upon the Land .

42.

REdfrein agaiust I. S. an Action of the case was brought for words , Slander . viz. I was robbed , and you were privy thereunto , and had part of my money . It was pleaded in arrest of Judgement , that the words will not maintain an Action ; For that a man may be privy to a robbery after that it is made , and have part of the money by honest meanes , and therefore it is no slander ; but the whole Court held the contrary ; Infected . Smell of robbery . as well as you are infected with a robbery and smell of the same , will maintain an Action , so will these words , therefore Judgement was given for the Plaintif .

43.

MEggs against Griffyth brought an Action for these words , Slander . viz. A woman told me , that she heard say , that Meggs Wife poysoned her Husband in a mess of milk ; and Judgement given for the Plaintif .

44.

REvell against Hart , A Parsons Lease . the case was upon the Statute of 13 Eliz. of Leases made by a Parson . Serjeant

Harris

A Lease made by a Parson is not void against the Parson himself , no more than a Lease made by a Bishop , which is not void against the Bishop himself , as was judged in the case of the Bishop of Salisbury .

Fenner

The Law is as you said , in a case of a Bishop , but the case of a Parson percase will differ .

Popham

If Rent be reserved , Rent reserved . it is good against the Parson himself , otherwise not .

Clinch and Gawdy

It is good against the Parson himself .

45.

WInch brought a Writ of Error against Warner , Space in the roll . upon a Judgement in a Writ of Debt in the Common place upon Arrerage● upon an account ; and it was assigned for Error , for that the Plaintif in the Common place , The emparlance roll is the Warrant . in the first Declaration left a space for the day and year , And after imparlance , he put in a new Declaration which was perfect . But for that the two Declarations did not agree ; and the first Declaration is the Warrant of all , and therefore ought to be perfect , therefore the Judgement ought to be Reversed for this default .

46.

IT appeared in Evidence inter Petties and Soam , Foractor . upon an Assumsit for ware bought by the Factor of Soam , per opinionem Cur. If one be Factor for a Merchant , to buy one kind of Stuff , as Tin , or other such like ; and the said Factor hath not used to buy any other kind of wares but this kind onely for his Master , If now the said Factor buy Saies or other Commodities for his Master , and assume to pay money for that , Now the Master shall be charged in an Assumpsit for the money , and for that let the Master take heed what Factor he makes .

47.

A. B. being seised in Fee , Devise . made his Will , and devised his Land to his Wife for life , the remainder to his Son in Tail , and if he died without issue , the Land to remain to R. W. and his Wife for their lifes ; and after their deceases , to their children . The question is , whether the children of W. take by descent or as Purchasers . Popham & Gawdie were of opinion , that they had an Estate Tail , But Fenner & Clinch , but for life .

48.

WIlliam Gerrard was arrested by a Latitat , and put in bail by the name of William Gerrat , Bail by a false name . and the Plaintif declared against him by the name of Gerrart , and all the proceedings and issue was accordingly , and Judgement was had by Verdict tryed for the Plaintif . And Gerrard pleaded in arrest of Judgement , for that there is no bail entred : for the bail is for Gerrat , and his name is Gerrard .

Cook Attorney

He may be known both by the one name and the other : For in Norfork there is a Knight , which in Common speech is called Barmeston , but his right name is Barnardiston ; And if he by the name of Barmeston put in bail in this Court , it is good , being knowen by the one and other ; and so it seemed the Court did incline for the dangerousness of the : President For otherwise every man impleaded may give a false name to his Attorney , by which he will be bailed , and then Plead that in arrest of Judgement , but Judgement was giuen for the Plaintif .

49.

IN debt upon an Obligation , Notice of a retorn from beyond sea . the Condition was , that if the Obligee retorned from beyond Sea before the 22 of Aprill , and the Obligor pay to the said Obligee 200. l. before the twenty seventh of Aprill , then the Obligation to be void ( Otherwise to stand in force ) Cook moved that the Obligee ought to give notice to the Obligor of his retorning from beyond Sea before the two and twentith day of Aprill , or otherwise the Obligor is not bound to pay him the money : For when a thing resteth in the will of another to be done , and the time is uncertain when it shall be done , Then notice ought to be given to him which ought to do the thing , as 18 & 19 Eliz. 354. placi● . 32. & 17 Eliz. A man made a Lease for years , And after made a new Lease to Commence after determination , Forfeiture , or Surrender of the first Lease , with clause of Re-entry for non payment of the Rent , And after the Lessor took a secret surrender of the first Lessee , and after that surrender a Rent day incurred , and the Rent was not paid by the second Lessee , and yet adjudged that his Estate is not void , because the other ought to give him notice of the Surrender .

Gawdy

The case is not alike , for 8 Edw. 4. a man ought to take notice of an Abitrement .

Fenner

It shall be as dangerous for the Obligee , if he ought to give notice , as for the other to take notice .

50.

STafford brought an Action of Trespass against Bateman , Distress for issues for of a strangers beasts Levant . for taking of a Cow ; The Defendant said , that the Land where the Trespass was supposed to be made , is the Land of one Iohn Dean ; The which I. D. hath lost iiij . l. issues to the Queen , and there came a Warrant out of the Exchequer to the now Defendant , being undersherif , to levy the said iiij . l. in the Lands of the said I. D. And because this Cow was Levant and Couchant within the said Land , he took her , as lawfull was for him to doe .

Gawdy & Fenner

The Sherif may not take Beasts of a stranger in the Land of him that hath lost issues to the Queen .

Popham

By way of distress , he may take Beasts of a stranger , if they be Levant and Couchant upon the Land of him that hath lost issues , but not to sell them , and so to levy the Issues .

51.

ERror was brought by An. Latham , Error . upon a Judgement given against him in a Writ of Debt in the Common place , and the Error assigned was , for that the Originall Writ was purchased against him by the name of A. L. nuper de London Yeoman , alias A. L. de Sherb●●● in Com. Ebor. Variance in the alias no error . Yeoman . And upon that , the said An. L. appeared and pleaded , and was condemned , and after a Capias ad satisfaciend . issued against him by the name of A. L. nuper de L. Yeoman , alias A. L. de Shelb●●● in Com. Ebor. Yeoman , and so he assigned the variance between the first Originall , and the Capias ad satisfaciendum , Shelbone for Sherbone , but for that this variance was not in the first name , but in the first Addition , therefore it was adjudged no Error by the opinion of the Court.

52.

LAugford and Bushy did present by turns to the Advowson of Norwinkfield ; Quare imp. Langford presented one A. which was instituted , Pasch. 43 Eliz and inducted , and dyed ; Bushy presented one C. which C. was lawfully deprived by the Bishop of Coventrey and Lichfield , without giving any notice to Langford who had the next turn : The Bishop made Collation , and after Collation Langford sold his moity to Lee , Collation before notice . and Lee to the Earl of Shrewsburie : The question was , whether by the Collation Langford hath lost his turn . The Court seemed to incline , that by the Collation the turn is lost , for if it had been by usurpation it had been lost without any question . And yet it seemeth , that upon deprivation the Patron ought to have notice . Vide Statut. de 13 Eliz.

53.

YElverton the Queens Serjeant demanded the opinion of the Court , Devise . if a man be seised of land in Fee , and have two Daughters onely , and deviseth his land to his Daughters in Fee , if now the two Daughters shall be Joyntenants , or take by descent as parceners ; and the opinion of the Court was , that they are in by the Devise , and not by descent , and so they shall be in as Joyntenants , and not as Parceners ; but otherwise it shall be if there were but one Daughter , and the Father devise the land to her ; so if he devise the land to his Son and Heir in fee.

54.

NEcton and Sharp Executors of Throward sued a Prohibition against Gennet and others , Prohibition for a Legacy . and the case was , that one that had a Legacy devised unto him , sued the now Plaintifs being Executors , for the sayd Legacy , in the Spiritual Court , and the Executors there pleaded , that the Testator in his life time made a certain Obligation sufficient in Law to J. S. the which is not yet satisfied , and the Spirituall Court would not allow this Plea , for which he had a Prohibition . Makin , Attorney of Essex , sayd to me , that this is the second case in question of this point , but he doubted that the pleading was so vitiou● , that the matter in Law would not come in question .

Executors represent the person of their Testator , and therefore if a release be made by one of them , Action confessed by one Executor by admittance . this shall bind all ; and so if an Action is brought against one Executor where there be divers Executors , and he admit the Writ , and confess the Action , this shall bind all the goods of the dead as well as if they were all named , Per H●rn .

55.

GReningham brought an Action of Debt upon an Obligation against Ewer ; Election . The Condition was , that if the said Ewer doe deliver unto the said Greningham certain Obligations which the said Ewer hath of the sayd Greninghams , or else doe seale such a release as the said G. shall devise , before Mich. that then , &c. The Defendant pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance .

Gawdie

The Obligation is void ; for in so much as the Obligee hath not tendred to him any acquittance , therefore he hath tolled from him the election , whereof he shall not take advantage .

Fenner è contra

for the election is not in the Partie , for the making ●o the acquittance resteth in the will of the Obligee , and so the Obligor hath no election .

Popham was of the same opinion .

56.

IF a Sheriff doe execute his Writ , the same day that the Writ is retornable , Execution of a writ done the day of the retorn . it is a good execution , per Yelverton , and he cited these cases . A Judgement given in a quare impedit , 18. Eliz. and the Writ of dammages was executed the same day that it was retornable , and this matter pleaded in arrest of judgement , and notwithstanding the partie had judgment , and if a capias ad satisfaciendum goe forth , and the Sheriff take the Partie the same day that the Writ is retornable , and send him into the Court , who will say that this is not a good execution ?

57.

WOodcock brought an Action of Debt against Heru , Assets Executor of I. S. The Defendant pleaded , that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing ; And if this Plea be good or not is the question .

Fenner

The Plea is good without question .

Gawdie

I have heard divers learned men doubt of that ; for , if the Testator were bound in a Statute to perform Covenants which are not yet broken , and it may be they will never be broken ; and then he shall never be chargeable by this Statute , and yet he shall never be compelled to pay any debts , which will be a great inconvenience . And again ; I think there will be a greater mischief of the other part ; for , put the case if the Executors doe pay this debt , and the Statute is broken , after he shall be chargeable by a devastavit of his own proper goods , the which will be a greater inconvenience .

58.

BRough against Dennyson brought an Action for words , Slander . viz. Thou hast stoln by the high-way side .

Popham

The words are not actionable , for , it may be taken , that he stole upon a man suddenly , as the common proverb is , that he stole upon me , innuendo , that he came to me unawares : And when a man creepeth up a hedge , the common phrase is , he stole up the hedge .

Fenner

When the words may have a good construction , you shall never construe them to an evill sense . And it may be intended he stole a stick under a hedge , and these words are not so slanderous , that they are actionable .

59.

A Copy-holder was not upon his Land to pay his rent , Forfeiture of a copy-hrld . when the Lord was there to demand it : And whether this were a forfeiture or not was the question .

Fenner

It is no forfeiture if there were not an express denyall ; for , the non-payment here is but negligence , the which is not so hainous an injurie as a willfull denyal ; for , it may be that the Copy-holder , being upon the Land , hath no money in his purse , and therefore it shall be a very hard construction to make it a forfeiture . But if he make many such defaults it may be it shall be deemed a forfeiture .

Popham

If this shall not be a forfeiture , there will grow great danger to the Lord , and the Copy-holders estate was of small account in ancient time , and now the strength that they have obtained is but conditionally ( to wit ) pay their rent , and doing their sevices , and if they fail of any of these the Condition is broken , and it seemeth cleer if the rent be payable at our Lady day , Demand after the day . and the Lord doth not come then , but after the day , to demand the rent , there is no forfeiture .

60.

THe Case was that there was Lessee for life , Sir Henry Knevit against Poole interest of Corn. the Remainder for life , and the first Lessee for life made a lease for years , and this Lessee was put out of possession by a stranger , and the stranger sowed the Land , and the first Lessee for life dyed , and he in remainder for life entred into the Land , and leased it to Sir Henry Knevit , and who should have the corn was the question . Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder , shall have the corn ; for the reason for which a man , which hath an uncertain estate shall have the corn , is , for that he hath manured the land , and for that it is reason that he that laboureth should reap the fruit ; but he said that the stranger that sowed the land , shall not have the corn , Lease of ground sowed . because his estate begun by wrong ; for if a man make a lease for life of ground sowed , and before severance the Lessee dyed , now his Executor shall not have the corn , Assignment after sowing concess. per Popham cont. per Gawdy . for that they came not of the manurance of their Testator ; so it is if the Lessee for life sowe the land , and assign over his interest , and dye , now the Assigne shall not have the corn , cansa qua supra : and for this reason in our case , neither the Executors of the first Tenant for life , nor the Lessee of the first Tenant for life shall have the corn , here , for that it comes not by their manurance ; and the stranger which sowed them , he shall not have them ; Vncertainty necessarie , unnecessary difference . for albeit he manured the land , and howbeit his estate was defeasable upon an uncertainty , yet he was a wrong doer , and the incertainty of his estate came by his own wrong , for which the law will never give any favour to him ; and for that when he in remainder for life entreth , it seemeth that he shall have the corn , for he hath right to the possession , and the corn are growing upon the soile , and by consequence are belonging to the owner of the soile ; but it hath been said , that here there was no trespasse done to him in remainder , and for that he shall never have the corn . Sir , as to that I say , if an Abator after the death of the Ancestor , enter , and sowe the land , Abator soweth . and after the right heire enter , in this case the heire shall have the corn , and yet no trespasse was made to him , and it hath been adjudged in this Court , where a man devised land sowed , to one for life , and after his decease the remainder to another for life , and the first Tenant entred and dyed before severance , and he in remainder entred , that there he in remainder shall have the corn , and by consequence the same Law shall be in our case . Godfrey è contra ; and he argued that the Lessee for yeers , Devise of land sowne . of the first Lessee for life , shall have the corn ; for if Lessee for life , leaseth for years , and this Lessee for yeers sowe the land , and the Lessee for life dye , now the Lessee for yeers shall have the corn , by reason of his right to the land at the time of his sowing , and never lawfully devested by any Act done by himself , and he denyed the cases put by Mr. Tanfield , and so concluded .

Gawdie

The lessee for yeers of the Tenant for life shall have the corn , and he denyed some of the cases put by Mr. Tanfield , for in the case where Tenant for life sowes the land , and after assigns over his esttae , now if Tenant for life dye , the Assigne shall have the corn as well as the Executors of the Tenant for life , if he had not assigned over his estate . But I agree the case of the devise for life , of land sowed , with the remainder for life , for there he in remainder shall have them , and the laches of the not entry of the Lessee for yeers shall not prejudice him ; Lessee for years ousted . for , it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted , and after the Tenant for life dye , yet the Lessee for yeers shall have trespasse , with a continuando for all the mean profits ; The which proves that they belong to him , so is it in 38. H. 6. Lessee at wil ousted . If Lessee at will be ousted , and after the Lessor dye , now the Lessee shall have a trespasse with a continuando without regress , for , when he may not enter , Regress . the law supplyeth it , and the mean profits do belong to him . And by consequence in this case the corn belongeth to the Lessee for yeers , Ground let for life after sowing . of the Tenant for life .

Popham

Sir Henry Knevit shall not have the Corn ; for if a man lease for life ground which is sown , and the Lessee dye , now the Lessor shall have the Corn , and not the Executors of the Lessee for life . And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life , of ground sowed , and the Tenant for life dye , that he in Reversion shall have the Corn : Disseisor sow the land of tenant for life . And if a Disseisor sow the land of Tenant for life , and the Tenant for life dye , now the Executors of the Tenant for life shall have the Corn , and not the Disseisor , nor he in Reversion ; and by consequence the Lessee for years of the first Lessee for life in this case . Fenner was of the same opinion ; and after it was adjudged that Knevit should have the land , and that Poole should have the Corn , because of his possession .

61.

RAme sued a Prohibition against Patteson , Prohibition for Dotards . and the question was , if Trees which are above the age of twenty years become rotten , and are cut down for fuell shall pay Tyths or not , and the opinion of the Court was , that they shall not ; for Tythes are payable for an increase , and not for a decrease ; and being once privileged in regard of hie nature , this privilege shall not be lost in regard of his decrepitage .

62.

PArtridge brought an Action of Debt against Naylor upon the Statute of 1 & 2 P. & M. 12. Empounding . For taking of a Distress in one County , and driving it into another ; and the case was , that three men distreined a flock of Sheep , and them impounded in severall places , and if every of them shall forfeit a hundred shillings severally , or but all together a hundred shillings . Common place . The Court was divided , for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings , and treble damages ; but Walmisley thought that every one should forfeit a hundred shillings , and he put a difference between person and party , for many persons may make but one party .

63.

BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10. Fine for Error in inferior Courts . Erroneous Judgement in London was a forfeiture of their . Liberties , but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated , and was made finable ; as in Chester , if they give an erroneous Judgement they shall forfeit an hundred pound ; for these inferior Courts which have peculiar Jurisdictions ought to do justly , for if these Courts shall not be restrained with penalties , Justice will be neglected ; and before the Statute of 28 Ed. 3. those of London might not reform Errors in London .

64.

NOta per Doctor Amias in the Lord Souch his case , Caveat . if a Church become voyd , and a stranger enters a Caveat with the Register of the Bishop , that none be instituted to that Church untill he be made privy thereunto , and the Bishop before that he have notice of the Caveat institutes an Incumbent , the Institution is meerly voyd in the Spiritual Law ; for the Register ought to notifie the Caveat to the Bishop , and his negligence in that shall not prejudice him that entered the Caveat ; and if the Bishop have notice of the Caveat , and gives day to him that puts that in , and before that day he institutes an Ineumbent , this is meerly voyd ; for the entering of the Caveat is as a Supersedeas in our Law .

65.

THornton brought an Action upon an Assumpsit against Kemp , Day of payment . and declared that the Testator was indebted to him in ten pound , and in consideration that the Plaintif would give day to the Defendant , being Executor , to pay that , until Michaelmas , he assumed to pay that , & in facto dicit , that he hath given day , and yet the Defendant hath not that payd : The Defendant pleaded in bar that post praedictam assumptionem factam , and before Michaelmas , the Plaintif did arrest him for the same Debt , and demands Judgement , and upon that the Plaintif demurred .

Gawdy

When he hath given to him day of payment , usque ad Michaelmas , allbeit he arrest him before that time , yet if he do not receive the money before Michaelmas , the consideration is performed .

Fenner

I deny that , for to what purpose is the giving of day of payment untill Michaelmas , if in the mean time he may sue him .

Popham

I agree with my brother Gawdy , for insomuch that he onely forbears the payment untill Michaelmas , and doth not promise to forbear to sue him , the payment is forborn if the money be not received .

66.

SHerington ●ued a Prohibition against Fleetwood Parson de Orrell , Prohibition . in Com. Linc. for that , that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments , and the now Plaintif being Defendant in the Spirituall Court , pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pasture , and for this payment he had been discharged of payment of Tythes for all Agistments in that land . Payment for one thing shall not discharge another .

Popham

This payment of money for Milch beasts shall not discharge him for the payment of Tythes for other beasts , and Tythes shall not be payd for beasts fed for the occupation of the house of the owner ; No tyths for things spent in the house . but if a man feed to sell , there shall Tyths be payd for those , for with the first people live , which manure the land of which the Tythes are payd , for so is Fitzh . Nat. brev . 53. Q. to be intended .

67.

WIldgoose versus Wayland in Cancellar . Notice of trust . This question arose , If A. be seised upon trust and confidence to the use of B. and his Heirs , and A. selleth the land to one that hath notice of the trust , to whose use shall the Vendee be seised ? Also it was moved if before the sale one come to the Vendee , & say to him , take heed how ye buy such land ; for A. hath nothing in that but upon trust to the use of B. and another comes to the Vendee , and saith to him , It is not as he is informed , for A. is seised of this land absolutely , by which the Vendee buyeth the land ; if this first Caveat given to him , ut supra , be a sufficient notice of the trust or not : And the Lord Keeper sayd it is not , for flying-reports are many times fables and not truth ; and if it should be admitted for a sufficient notice , then the Inheritance of every man might easily be slandered . Notice of Forgery .

Cook

It was holden in Bothes case in the Starchamber , that if a man sayd to another , take heed how you publish such a Writing , for it is forged , and notwithstanding the party doth publish it , this is a sufficient notice to the publisher that the Deed was forged : And upon that the Lord Popham at the same time put this case , Notice of Felony . If one say to me , take heed how you entertain or receive A. B. for he hath committed such a Felony , and I giving no credit to the report receive the party , where in truth he had committed the Felony , now I am accessary to this Felony . To which the Lord Keeper answered , that he would not draw blood upon such an opinion .

68.

IF a man make a Lease reserving Rent to the Lessor , Reservation of Rent . if he say no more , the Rent shall goe but to the Lessor ; but if it be reserved generally , and doe not say to whom , it shall goe as well to the Heir of the Lessor , as to the Lessor himself . Per Gawdy .

69.

IT was sayd by Fell , Hue and Cry . an Attorney of the Kings-bench , that it hath been adjudged in the same Court , that an Action upon the Statute of Hue and Cry against Inhabitants of any Hundred , will never lye by Bill , but ought to be sued by Writ , and the reason is , for that the Action is brought against Inhabitants , which are a multitude , and for that may not be in custodia Marescalli , as another private person may .

70.

A Judgement was had in an Action of Debt of 80 l. And the Plaintif had a Fieri facias , Capias after a Fieri sacias executed for parcell . and the Sherif levyed 20 l. of the goods of the Defendant , and retorned that of Record , but non constat by the Record whether the Plaintif had received the 20 l. or not , and the Plaintif took forth a Cap. ad satisfaciend . for the whole Execution , being 80 l. and upon that the Defendant was Utlawed ; and now he brought a Writ of Error to reverse that Utlary , which was reversed , for that it did appear upon Record that execution was made by Fieri fac . of 20 l. of the 80 l. and therefore the Cap. ad satisfaciend . should have been but 60 l.

71.

IF the Husband sell his land by Fine , Claim of Dower . with Proclamations , and live five years , and after dye , his Wife being sole , of full age , of sound memory , out of prison , and within the four Seas , and doe not make any demand , or claim of her Dower within five years after the death of her Husband , she shall be barred .

72.

A Feofment was made before the Statute of 27. to the use of a Man and Woman unmarried , Moities in Tail . and of the Heires of their two bodies begotten , and after they intermarried , and after marriage the Husband bargained and sold all the land in fee , to one of his Feoffees , and died without issue , and after the Statute of 27 was made the Wife claymed the whole by Survivor as Tenant in tayl after possibility of issue extinct . And by the opinion of all the Court without argument she can have but the Moity , because the Husband and Wife had Moities as Joyntenants , by reason of the Joyntenancy made before marriage , And yet by the Court as to the issue in tail if any had beeen , he shall have a Formdon of the whole .

73.

IF Land be holden of a Subject , Tenure and Wardship extinct . and the Tenant sells the land by Fine , with Proclamations , to I. S. in tail , the Remainder to her Majesty in fee , The Tenant in tail dyes his Issue within age , The Opinion of the Court was that the Issue shall not be in ward to the Subject if the Queen do not assent to her Remainder , for that the tenure and services are gone and extinct by the Fee simple to the Queen , which may hold of none . And so the issue in tail shall be in ward to none .

74.

IF a man have goods to the value of 100l . and is indebted in 20l. and he deviseth and bequeatheth to his Wife by his Testament the moity of all his goods to be equally divided between her and his Executors , Legacy of a moity of all his goods . and make his Executors , and dieth , And the Executors pay the 20l. yet the Wife shall have the moity of the whole estate , viz. 50l . without any defalcation , so that the Executors have Assets besides .

75.

IN a Prohibition and the Case was this , Benefield against Feek . Tithe of Saffron . the Farmor of a Parsonage sued in he Spirituall Court for Tithes of Saffron against a Vicar ; The Vicar pleaded that time out of memory of man , the Vicar and his predecessors have had the Tithe of all Saffron growing within the parish . A Prohibition for the Pla●ntif in the Spirituall Court upon his own lihell . The Plaintif pleaded that the land , where the Saffron was growing this year , by the space of 40 yeares next before had been sown with Corn , whereof the Parson and his predecessors have had the Tithe . And the Spirituall Court would not allow this Plea . For which the partie prayed a Prohibition .

Tanfield .

The right of the Tithe commeth in question between the Parson and Vicar , Howbeit that the Farmor be made partie to the suit , and for that the right of Tithes being in question between two Spirituall men , Suit between persons spirituall . This Court hath no Jurisdiction . And this very point was adjudged 30. Eliz. inter Hunt and Bush , in this Court , that in such case the partie shall have a consultation .

Popham

The one of the parties is a man temporall , and so was it not in your case . Sic nota , that by the Spirituall law , the Vicar shall have Tithes of Saffron of land newly sown with Saffron , albeithat before the Parson had the Tith of that land being sowen with Corn.

76.

NOta , that by the course of the Kings-bench a man may have Oyer of the deed after imparlance , Oyer of a deed . but not in the Common place . Q.

77.

BEckford brought an ejectione firme against Parnecote , Devise before purchas● . and the Case upon the speciall Verdict was found to be this , That one Parsons was seised of certain land in A. and had issue four Daughters , viz. Barbera , Johan , E. and Mary , and made his Will in writing , And by the same Will , he devised all his land in Aldeworth to Barbera and Johan two of his daughters , and made them two his Executors , and after he purchased other land in Aldworth , and a stranger was desirous to purchase this land of him newly purchased , And he said that that land should goe with the residue of his land to his Executors , as his other land should go ; After the said Testator made a Codicill and caused it to be annexed to his Will , But the Codicill was of other things , and mentioned nothing of this land , and whether this new purchased land shall pass by the Will , without new publication of the Will for this land , was the question .

Moor

I think that the land newly purchased shall pass , and to prove that he said , that the reason in Bretts case 340. Com. for which land newly purchased shall not pass , is by reason that there is no manner of new publication , but in our case there is new publication , and in Trivillians case 4 M. 143. where cestui quae use made a Will , And then the Statute of 27 H. 8. of uses came , now this Will was comptrouled , The Statute of Wills . but by a new publication it may be made good , and he cited 44. E. 3. 12. and 44 Ass. 36.

Atkinson è contra .

For this Will ought to be warranted by the Statute , otherwise it is not good , and the Statute doth not enable him which hath no land at the time of the devise , to devise land , and the words of the Statute manifest this , which are , Where any person or persons having any land , holden &c. So by the express words , Want of apt words . if he have no lands at the time of the Devise , he may not Devise , as appears plainly in Brets case , allso it appears that words out of a Will , will never make that to pass which was intended before , and with that agreeth the Lord Cheney his case , and the case of Downhall and Catesby lately adjudged , and in this case , allbeit the Testator allowed this Will after to be his Will , Things not expressed in the Wil must be expressed in the publication . yet this shall never make this land newly purchased to pass without express publication of this land .

Clinch Justice sayd , it seemed to him that the land newly purchased shall pass ; for after that he had made his last purchase , the Testator heard the Will read , and by that he devised all his lands in Aldworth , and then knew that the land newly purchased lay in Aldworth , and upon reading of the Will he allowed it , and so I think that the new purchased land shall pass as well as the other , and that this allowance upon the reading is a new publication

Gawdy Justice è contra

For if I make my Will , and by that devise all my land in Dale , and after I purchase other land there , and one afterwards shews me the Will , and demands of me if it shall be my Will , and I answer , it shall , I say that this land newly purchased shall not pass ; Hearing and allowance is a publication . and in this case howbeit that the reading of the Testament , or annexing of the Codicill be a new publication , yet it doth not manifest the intent to be that more shall pass by that than he intended at the first ; and allso the new reading of the Will , and the annexing of the Codicill may not properly be termed a new publication as this case is ; Where there it no controlment there needeth no new publication . for here was not any Controlment , and for that the Will needs not any new publication , by which it seemeth that without any express publication for this land newly purchased , this land shall not pass ; for the things which are found to be done are but allowances , and no new publications .

78.

HArecourt brought a Writ of Error upon a Judgment given in the Common-place , Amendment and assigned for Error for that the Judgement was that the now Defendant should recover xx l. assessed to him per Jnr. nec non x l. bassessed to him hic per Jur. where it ought to be per Cur. Yelverton prayed that it might be amended , for that the Record in the Common-place was right , and the Misprision which made this Error was in the Clerk which certified the Record ; and the opinion of the Conrt was , that if it were so , it should be amended ; and therefore they sayd they would have the Record it self brought out of the Common-place thither to be viewed whether it were so or not . The Record it self shall not be sent out of the Court.

Worley Clerk

The Justices of the Common-place will not suffer the Record to be brought hither .

Popham

That is no new President that the Record shall be brought hither ; for I have seen it done before this time : But after in truth the Justices of the Common-place would not send their Record into the Kings-bench ; and therefore Cook the Queens Attorney prayed that it might be amended .

Popham

It may not be amended , for that I have spoken with the Justices of the Common place , and they say , that the Record was at the first as it was certified , viz. Iur. pro. Cur.

and after the Record was certified , it was amended by a Clerk without any Warrant .

Cook

Allbeit that it was so , yet under Correction it is amendable , for it is the misprission but of a Clerk , and that of a Letter onely , viz. of I. for this letter C. for the word is written Jur. short , where it ought to have been Cur , No amendment in ●●int of Judgement . and so amendable by the Statute of 8 Hen. 6. Curta è contra , for it is parcell of the Judgement , and you never saw the Judgement of the Court amended , for which it cannot be amended here .

79.

EAst Executor of I. S. brought an Action upon the case of finding and Converting of certain goods , Trover . against Newman , And upon not guilty pleaded , the Jury found this speciall Verdict , viz. That the Testator was possessed of divers goods , and them lost , and the Defendant found them , And knowing them to be the goods of the Testator upon demand denied to deliver them , And if this deniall was a Conversion they prayed the discretion of the Court.

Fenner

I think that the deniall is a Conversion ; Denial is a Conversion . for when I lose my goods , and they come to your hands by finding , and you deny to deliver them to me , I shall have an Action of Trespass against you , as 33. Hen. 6. is . Keeping is an Administration . And the very keeping of goods by an Executor shall be counted as an Administration ; and by the same reason , the deniall here shall be counted a Conversion .

Gawdy

I am of the same opinion , for by 2 of Hen. 7. If I deliver to you Cloth to keep , and you keep it negligently , I shall have detinue or an Action upon the case , at my pleasure , and by 20 Hen. 7. if a Baker contract for Corn , and the party do not deliver it at the day , the party may have Debt or an Action of the case .

Tanfield

There was a case in this Court , 30 Eliz. for the finding and Conversion of a horse . But here was no request made by the Plaintif to deliver the horse ; For which Judgement was given against the Plaintif .

Curia

This is not like our case , for the request and deniall makes all the wrong in this case .

& Adjornatur .

80.

WIseman brought a Writ of Error against Baldwin , Limitation . upon a Judgement given in Trespass in the Common place upon a speciall Verdict , which was , that Baldwin was seised of 24 Acres of Land , and made his Will , and by the same devised his said Land to Henry his youngest Sonne when he should accomplish the age of 24 years , upon Condition , that he should pay 20. l. to the Daughter of the Devisor ; And if he shall happen to dye before his age of 24 years , then he willed that Richard his eldest Sonne shall have the same Land , upon Condition , that he should pay to the said Daughter 20. l. And he willed further by the said Will , that if both his Sonnes failed of payment of the said 20. l. to his Daughter , that the said Land should remain to his Daughter . And after this Devisor died , and Henry his younger Son entred after the age of 24 years , and did not pay the said 20. l. to the Daughter , and Richard the eldest Son did enter upon him ; and whether his entry were lawfull or not was the question . Cook Attorney said , it was a meer Limitation and no Condition , and by consequence the entry of the eldest Sonne is not lawfull , and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son , upon Condition of payment of a certain sum of money to his Daughter , as our case is , The Remainder over to another of his youngest Sonns , and the first Devisee entred , and did not pay the money ; and he in Remainder took advantage of that , and so in our case , by the Devise Richard is to have nothing , if Henry the youngest Son did not die before 24 yeares , and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money ; And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor ; And therefore the entry of the eldest Son is not lawfull .

Godfery

I think it is a meer Condition , for so are the words . And then when the word subsequent , limit a Remainder to the Daughter for default of payment , that is not good , and he denyed the case cited out of Justice Dallison , for he said he was dead long before An. 9 Eliz.

Gawdy

I take the case of 29 Hen. 8. 33. to be a Limitation , and no Condition , for there a man devised to the Prior and Covent of St. Bartholomewes , Ita quod reddant decano & capitulo sancti Pauli 16. l. per An. And if they failed of paiment , that their estate should cease , and that the Land should Remain to the said Dean and Chapter , and their Successors . And it seemeth there , that the Dean and Chapter for non payment shall not enter ; But I think the contrary , and I think in this case it is a Limitation and no Condition . A remainder and a recovery may be created by one deed .

Fenner

If I make a Lease for life upon Condition , with Remainder over , may my Heir enter for the Condition broken ?

Godfry

Yes Sir .

Fenner

Nay truly , for then he shall defeat the Remainder , which is well limited by me before , the which I may not do , and this is the reason ; if I make a Lease for life upon Condition , and after grant the Reversion over , that before the estate the Condition was gone , for that , if I re-enter I shall defeat my own grant

Gawdy

Per 29. Ass . If a man devise to one upon Condition , that if he shall be a Chaplin , to remain over to a Corporation , and the Tenant was made Chaplin , by which the Heir entred , and an Assise was adjudged maintainable against him , for his entry was not lawfull .

Clinch

The intent of the Devisor appears , that for default of payment , the Daughter shall have the Land , and therefore the Sonne shall not enter . And Wilcocks case in this Court , was , that a man seised of a Copyhold in the nature of Burrough English , surrendred that to the use of his Will , and by his Will devised the Land to his eldest Sonne , upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the youngest Sonne entred , and his entry was adjudged lawfull .

Gawdy

Wee three are agreed , that it is a Limitation and no Condition , by which the first Judgement was reversed .

81.

PYne of Lincolns Inne brought an Assumpsit against Widow Hide as Executrix of her Husband , Assumpsit of the testator . and declared , that the Testator in Consideration that the Plaintif had leased to him certain Copyhold-land , he assumed to pay to him 100. l. And the Defendant demurred in Law , for that the Action is not maintainable against any Executor upon an Assumption of the Testator .

Popham

For the Contrariety of opinion in this Case between the Judges of the Common-place and us , we will make it an Exchequer-Chamber case , and so try the Law .

82.

ONe Jackson prayed a Prohibition , Prohibition for a Parsons lease . and shewed for his Cause , th● the Parson sued him in the spirituall Court for tithes , And ho wt the Statute of 13 El. cap. 20. &c. That if any Parson make a Lease for years of his Parsonage , and absent himself by the space of 80 daies , that the Lease shall be void , And the Parson shall forfeit the profits of his benefice for a year , and the Statute of 14 Eliz. cap. 11. &c. That all bonds and Covenants for suffering or permiting any Parson to enjoy any Benefice , or to take any Benefice , or to take the profits and fruits thereof shall be adjudged of such force and Validity , as Leases made by the same persons of benefices and not otherwise , and after the Statute of 18 Eliz. cap. 11. &c. appoints , that the Ordinary after complaint made , and sentence given against any such incumbent , whereby he ought or shall lose one years profits of his Benefice , shall grant Sequestration to one of the inhabitants of the same Parish , as he shall think meet ; And upon default there in by the Ordinary , that it may and shall be lawfull to every Parishoner where the Benefice is , to retein , and keep his or their tithes , and likewise for the Church-wardens to enter and take the profits of the Glebe lands , and other Rents and duties of every such Benefice , to be imployed to the use of the poor , and he shewed how that the Parson made a Covenant and a Bond , that he would permit I. S. to take the profits of his Benefice for a year , And whether this were such a Lease , for which the Parson ought to forfeit the profits , ut super , he prayed the opinion of the Court , and it seemed to them it is not ; the reason seemeth to be , because he doth not aver him to be absent above 80 daies in the same year .

83. PEr Popham

If a man find my horse , Conversion . and after ride him , and then delivers the horse unto me , and I bring an Action of Trover for the Conversion , It is no plea that you have delivered the horse to me before the Action brought , for you ought to answer to the Conversion .

84.

CHesson brought an assumpsit against D. K. Abatement of debt . and declared that where I. S. was indebted to him in 64l . The Defendant in consideration that the Plaintif would abate 10l . parcell of the said Debt , and also would give day to the said I. S. untill Michaelmas then next following for payment of the said 54 l. residue , That the next day after she the said Defendant would become bound to the now Party for the payment of the said 54. l. at the said Feast of St. Michael , and the Plaintiff in facto saith , that he hath abated 10. l. parcell of the said 64. l. and yet the Defendant did not become bounden for the payment of the said 54. l. residue , per quod actio accrevit . The Defendant pleaded in Barre , That after the said day given , and before Michaelmas , scil. tali die , the Plaintiff entred a plaint in London , for the Debt aforesaid of 64. l. Arrest before the day given for payment . and then caused the said I. S. to be arrested , and demanded judgement , si actio .

Tanfield

The Declaration is sufficient , for you have delared , that you have abated part of the debt , but you have not shewed how that was defaulked , and therefore not good , for we may take issue upon that if we will ; and if a man be bound in an Obligation , to discharge me of certaine rent , it is no plea for him to say , that he hath me discharged , without shewing how ; for that , that I may take issue upon tha● . Also to the second matter , the Plaintiff ought not onely to give day of payment , but also to forbeare to molest I. S. untill the day be come .

Cook to the contrary ,

And as to the first poiut it seemeth , that the discharge ought to be upon the entring into bond ; Bond for parcell of a contract . for , if a man make a Contract for 10. l. and after enter into bond for 5 l. parcell of that , all the Contract is gone , as appears per 3. H. 4. And as to the second point , I think the promise is broken by the Defendant , for that he did not enter into Bond the next day after the assumption made .

Gawdie

I doubt whether the Declaration be good or not ; for , it seems to me that the Plaintiff ought to shew how he hath defaulked the 10. l. part of the 64. l. for , it may not be intended a defaulking in Law , but of a defaulking indeed , and for that it is not like the case cited in 3. H. 4. But the Plaintiff ought to doe an Act himselfe , And 17. Eliz. A man was bound to allow , ratifie , and confirm a term for yeers , And it is no Plea to say that he hath that confirmed , But he ought to shew how , because every Confirmation must be by Deed ; but if the Declaration were good , then perchance the Barre would not be good : And howbeit that Mr. Attorney hath said , that there is a breach for not entring into Bond , yet the Plaintiff may not sue , Every discharge to be by writing . if he have not performed his promise .

Fenner

It will be hard to make the Declaration good ; for , when one promiseth to defaulk his debt , this shall be intended a lawfull discharge , which cannot be otherwise than by writing , and per 20. E. 3. Accompt . If a man be bound to acknowledge a Statute , For the intent must also be performed . and he doth acknowledge the same , but yet keeps the same in his own hands , this is no performance . And as to the second point , when one promiseth , in confideration of one thing to doe another , there ought to be performance of the first , as if a man be bound to make a new Pale , Disturbance of the consideration . as 9. Edw. 4. 20. & 15. Edw. 4. 2. 3. is , having the old pale for his labour , there if the old pale be taken from him , he is not bound to make the new pale .

Popham

I am of the same opinion .

85.

DIxon brought an Action upon the case against Adams , Assump●it in consideration that a man will voluntarily do that act which otherwise he should have been compelled to doc. and declared that whereas I. S. was indebted to the said Adams in 60. l. forwhich the said Adams arrested the said I. S. and the said Dixon was 〈◊〉 for the said I. S. in the said suit , and the said Adams recovered in the said suit , and after sued forth a Scire facias against the said Dixon being bail , whereupon the said Adams , in confideration that the said Dixon would pay him the 60. l. the said Adams assumed to assigne over unto him the said first Obligation , in which the said I. S. was bound unto him , and upon which the first action was brought , and the judgement thereupon had , and the Plaintiff dixit in facto that he had paid the 60. l. to the Defendant , Sed ●radictus defend , promissionem & assumptionem suas minime curans , hath not assigned over to the Plantiff the said Obligation and Judgement , per quod act . accrevit , and Judgement was given for the Plaintiff , for the consideration was holden good .

86.

ROsse brought an Ejectione firme against Thomas Ardwick , Limitation . and the case was such , that one Norwood was seised in see , and leased to one Nicholas Ardwick and his Assignes for his own life , and for the lives of Thomas , Andrew , and John Ardwick , and after Norwood the Lessor leased the Reversion to Rosse the now Plaintif for 21 years , and after Nicholas Ardwick made a lease of the same land to Thomas Ardwick to hold at will , and dyed ; and if the estate of Tho. was determined by the death of Nich. was the question .

Johnson

There are two points in the case ; the first , if by this word Assignee an Occupant shall have the land , and I think he shall not : And the second point is when a lease is made to one , and his Assignees , for his own life , and the lives of two others , if now his own life confound the other two lives , for that that it is greater to the Lessee than the other two lives , and he said the Lessee hath no estate but for his own life , and when he dyed the state is determined ; and to prove that he cited the opinion of Knightley in 28 Hen. 8. 10. Where he saith if a lease be made to one pur auter vie , without impeachment of Wast , the remainder to him for his own life , that now he is punishable of Wast , for that , that when the remainder is limited unto him for his own life , Wast against the surviving Joyntenant . this drowneth the estate pur auter vie , which was in him before . And by 3 Edw. 3. If a lease be made to two for their lives without impeachment of Wast , and one of them purchase the Fee simple , and dye , now his heir shall have Wast against the Survivor . And I have heard that this was the case of the Lord Aburgaveney for a house in Warwick lane .

Cook è contra

And the case is no more but that a lease is made to one and his Assignes for his own life , Remainder for years to the tenant for life . and for the lives of two others ; and I think that all may stand together ; for a man may have an estate for his own life , the remainder for yeares , and both may stand together in him simul & semel ; for that , that albeit that the Lessee may not have that during his own life , yet he may dispose of that , and by that means shall have the benefit , and so in this case , and allso an estate pur auter vie shall be in esse in the Lessee for the benefit of the Occupant , and the inconveniencies shall be exceeding many in this case , if the estate doth not endure for all their lifes , for the Statute of 32 H. 8. inableth Tenant in tayl to make leases for 3 lives or 21 years , and usually Tenants in tayl make such leases as these be , and for that the generality of the case ought greatly to be regarded ; and there was a case adjudged in the Common place between Chambers and Gostock , Chambers against Gostock . where a lease was made to two for their lives , and the life of a stranger , and one of the Lessees dyed , and the Survivor granted the land for his life , and the life of the stranger , Burdels case . and it was no forfeiture ; and allso it was Burdels case in the Common-place , 32 Eliz. where a lease was to him for his own life , and the lives of two others , and a good lease for all their lives : Occupant . And for the point of the Occupant there is no question but that the state of him that first enters is better than the state of him that enters under the state of the Lessor .

Gawdy .

The cases put by Mr. Johnson are not like to the case in question , The greater estate preceding the less , both may stand . and I will agree them ; for here the greater estate precedeth the lesser ; I hold that a lease made to one for his life , the remainder to him for anothers life , is good , for he may it grant over ; and so I think in this case , that so long as any of the lives remain living , that the estate remains .

Fenner

I am of the same opinion , for I think that the state pur auter vies is in the party to dispose at his pleasure ; so Judgment was given for the Defendant .

87.

HArding brought an Action of Trover of goods against Sh●rman , Visne . and declared of a Trover at D. in the County of Hunt . The Defendant pleaded that he bought the goods of one I. S. at Roiston , in the County of Hertford in open Market , and demanded Judgement ; The Plaintif replied that the Defendant bought the same goods of the said I. S. at D. aforesaid in the County of Huntington by fraud and Covin , And after bought them again at Roiston , as the Defendant supposeth ; the Defendant rejoines , that he bought the same goods bona fide at Roiston , Absque hoc that he bought them by fraud , apud D. in Com. Hunt . Glanvile pleaded in arrest of Judgement , that the Visne ought to be of both Counties . Gawdy seemeth to agree , but for that that Clinch and Fenner held strongly that the Visne was well awarded in one of the Counties , therefore Gawdy gave Judgement for the Plaintif , for by this speciall Traverse the buying at Roiston shall not come in question

88.

PAyton being High-Sherif , Keep harmless . brought Debt upon an Obligation against his under-Sherif ; and the Condition was to perform all Covenants in a pair of Indentures conteined , and one Covenant was , that the under-sherif shall keep all the Prisoners committed to him , untill they be delivered by the Law , and allso to save Mr. Payton harmless of all escapes made by the said Prisoners . And the Defendant pleaded performance of all Covenants .

Godfry

The Plea is not good , for one part is in the Affirmative , and the other in the Negative . By which the Defendant ought to plead , that the Plaintif non fuit damnifieatus , and so was the opinion of the Court ; by which day was given to the De●endant to amend his plea.

89.

A Man brought an Action of Trespass , for entring into an house , and breaking of his close in Dale ; Variance between the declaration and the new assignment , or the title of the Plaintif . The Defendant said , that the said house and close in which the Trespass is supposed to be done , conteins twenty Acres , and is , & at the time of the Trespass supposed , was his Freehold . And the Plaintif replyed , quod locus & clausa in quo supponitur transgressio , est anum messuagium , and makes him a Title to it . To which the Defendant pleaded non Cul. And it was found for the Plaintif , and for that that the Plaintif by his Replication made to him Title but to a messuage , and doth not maintain his Declaration which was for the messuage and the close ; therefore it was awarded quod querens nihil capiat per Billam , sed quare , if this do not amount to a discontinuance of the close onely , and so helped by the Verdict .

90.

THomas Allen brought a Writ of Debt against William Abraham , upon an Obligation bearing date in October . Counterbond for an Obligation allready forfeited . The Condition , was , that whereas the sayd Thomas Allen , at the request of the above bounden William Abraham , standeth bound together with the sayd William unto one J. S. in an Obligation for the true payment of 11. l. the 15. day of May ( the which May was before the date of the sayd Obligation whereof the Action is brought ) if the said W. A. do save and keep harmless the sayd T. A. of and from the said Obligation , that then , &c. The Defendant pleaded payment secundum formam & effectum condition is praedictae , and upon this Plea the Plaintif demurred in Law , and Judgement given for the Plaintif , for the Defendant ought to plead non damnificatus .

91.

HUntley brought a Writ of Accompt against Griffith , Account . Baron & Feme and the case was , that one devised a certain sum of money to a Feme covert , And the Husband and Wife made a Letter of Attorney to the Defendant to receive the same money of the Executor , who did receive it accordingly to the use of the woman , And the Husband and Wife both dye , and the Administrator of the Womans Husband brings this Action . Tanfeild argued that the Action is not maintainable , for when the Legacy was devised to the woman , the Husband and Wife ought to joyn in the Action , and if the Wife dye , the Husband hath no remedy . And when the Husband and the Wife make a Letter of Attorney to receive the money , this principally is to be sayd the act of the woman , and the Husband joyneth with her but for conformity , and for that it appears in 19 Eliz. 354. if Baron and Feme levy a Fine of the Wives land , and the Wife onely declares the use of the Fine , it is good ; and by 16 Ed. 4. 8. If a man be a Receiver to a woman sole , which afterwards takes a Husband , and he and his Wife assign Auditors to the Receiver , they both shall joyn in an Action of Debt for the Arrerages . Altam è contra , and sayd that the concourse of all our Books are , that when money is delivered to deliver over to another , Letter of Attorney by the Husband only . Debt due to a Feme sole . that other shall have an Action of Accompt , allbeit that before that time he had not any property ; And 6 Ed. ● . 1. that proveth .

Gawdy

It seems to me the Action is well brought , for the matter whereupon you stand is the Letter of Attorney , and I say if the Husband sole had made the Letter of Attorney , For by the entermartage the duty became the husbands , if he could attain it in the life of the wife , which he did by the receipt of his Bayly . it had been well enough ; and when the money is received to the use of the Husband and the Wife , now by that the Husband hath interest .

Popham

I am of the same opinion ; for if Debt be due to a woman sole upon an Obligation , and after she take an Husband , and the Husband sole makes a Letter of Attorney to J. S. to receive that , and J. S. receives the same , now the Husband sole shall have an accompt against J. S. Fenner accord . so Judgement was given for the Plaintif .

92.

THe Lady Gresham brought a Scire facias upon a Recognisance against William Man as terr. Verdict in a Scire fac . upon Recognisance . Tenant . The Defendant pleaded in abatement of the Writ , that one Bedingfield was seised in Fee of three Acres of land not named , Judgement , si execut . &c. And the issue was if the aforesaid three Acres of land were the land of the aforesaid Bedingfeild or not , and the Jury found that B. and J. S. were Jointenants of the said three Acres , and whether this Verdict hath found for the Plaintif or Defendant was the question . Whether Joyntenancy shal be sayd a Seisin .

Gawdy

I think it may never be said the Land of Bedngfield onely . And to prove that he vouched 28 Hen. 8. Dyer 32. in debt for Rent , the Plaintif declared of a demise of 26 Acres rendring the said Rent ; The Defendant pleaded that the Plaintif demised to him 26 Acres , and 4 Acres more , without that that he demised the twenty Acres onely , And the Jury found that he Leased but 22 Acres , and there that was good , for the Defendant hath confessed a demise of 26 Acres , and then the Verdict should have been , that the 4 Acres ultra were not demised ; and allso he said , when two men made a Feoffment , the Feoffee shall be in by both , the which is a strong proof , that the one sole is not seised .

Fenner

According to the matter in question , I think it is found for the Plaintif , for the pretence of the Defendant is , to have a companion , against whom the Scire facias shall be as well brought as against himself . And in 46. Edw. 3. That in casu proviso , if issue be taken upon an Alienation in Fee , Forfeiture by alienation . and the Jury find an Alienation pro Termino vitae , this is a Verdict good enough , and the Plaintif shall recover , for the Alienation to the Defendants Inheritance is the question . And whether it be in Fee or for life , it is but form , and so in this case .

Popham

by pleading of the truth the Defendant might have been holpen , but not as he hath pleaded here ; as if one plead his Freehold , and another say his Freehold absque hoc that it is the Freehold of the Plaintif , and upon that , they are at issue , And the Verdict finds that the Plaintif and Defendant are Tenants in Common , Now this Verdict is found for the Plaintif ; for he that makes the first lie shall be triced , and this was the Defendant .

Fenner

In this case , one Tenant may not have an Action against an other , Iointenants make a statute . and it was agreed in this case , if there are two Jointenants , and the one make a Statute , and after joines with his companion in a Feoffment of that Land , now the moity of the Land may be extended upon this Statute .

Godfry

When it appears unto the Court , that there is another against whom the extent shall be , then the Plaintif his Writ shall abate .

Gawdy

No truly , for by 44 Edw. 3. if a Writ of Dower be brought against the issue in tail which is remited , and the Defendant plead ne unques seisi que Dower , and the Verdict find the remitter , yet the Plaintif shall have the Judgement , for the Tenant if he will have advantage of that ought to plead it .

93.

THe Parson of Ramesey ●ued in the spirituall Court for Tithes of Asp , Prohibition for Asp . and a Prohibition was awarded . And Fenner said that it was adjudged before that time that Asp should not pay Tithes , and also it was agreed if a man cut trees for Housboot , No Tithes for housboots &c. or other usuall bootes . Hedgboot , Ploughboot , Cartboot , and Fireboot , Tithes shall not be paid of them .

94.

NOta per Fenner Justice , Account . that an Action of accompt shall be maintainable against a servant , but not against an Apprentice .

95.

HOme was indicted for that he had spoken against the book of Common prayer . Depravation upon endictment .

Yelverton

The Indictment as it appears is taken before the Lord Anderson and Baron Gent , Justices of the Gaol delivery , and hath not shewed that they are Justices of Oyer and Terminer , nec de Assize , as the Statute appointeth , and for that it is void , Also the Indictment is quod recusavit uti communi precatione et Administrare sacramenta , and doth not say appointed by the book of common prayer , also the Defendant was twise indicted , and upon the second Indictment the Judgement was given before the said Justices , that he should be deprived of his Benefice , and this is a Spirituall act , the which the Temporall Judges have not to deal withall .

Fenner

I doubt whether they may give Judgment of deprivation , albeit the Statute say that the Offendor shall be deprived ipso facto , no more than the Statute of 5. Ed. 6. which saith thatfor the striking in the Church the Offender shall be excommunicated ipso facto . Also it doth not appear whether the Defendant be Curate of the parish where he refused to say divine service or not , and if he be not , then his refusall is not punishable by the Statute .

96.

COok Attorney generall demanded this question of the Court , Disseism . if there be Disseisor and Disseisee , and during the Disseism , the Disseisee when he hath nothing but a right , levies a Fine to a stranger ▪ If by this Fine the right of the Disseisee be gone , and if the Disseisor shall take advantage of that .

Popham and Gawdy

Nay truly .

97.

RObins brought an ejectione firme against Prince , and upon the speciall Verdict Mr. Frauncis Moor arguing for the Plaintif did observe three points in the case , Qualification and non residence . The first was , when a Chaplin which is beneficed above the value of 8l . is admitted and instituted into another benefice , 1 point . and before induction gets a qualification , and after is inducted , If now the benefice which he had first , be void , for that , that the qualification comes between the Admission and the induction . The second point is , when the dispensation is entred in the Chancery in a paper book , 2 point . and not enrolled in parchment , If this be a sufficient enrollment , for that that the usuall manner of inrollments is in parchment . And the third point was , when a Parson is inhibited by the Arch-Bishop that he shall not intermeddle with the Benefite , 3 point ad●●dged . by meanes whereof the Parson is absent by the space of lxxx daies , If such absence shall make a lease made by the Parson void . And as to the last point all the Judges agreed , that such absence doth not make the lease void : For it must be a voluntary absence , for such an absence the Statute doth intend , and this absence is by reason of an inhibition . And the case was argued for the other side by Mr. Crook , but I could not hear him , and the next Term it was argued again by Mr. Tanfield for the Plaintif , and lie said that the principall point of the case is whether the first benefice be void , insomuch that the incumbent hath gotten a qualification before induction into the second benefice ; And I think the first is void , for the intent of the Statute was that the cure might be well served , and that poor people might be well relieved ; And as no man may serve two masters , so no man may serve two Cures , and before induction the Church is full , Parson before induction . and the Parson hath Curam Animarum , and is rector Ecclesiae before induction ; and if a gift be made to such a Parson before induction , it is good ; and so if he alien by consent of the Patron and Ordinary it is good . Presentation excuted before induction . And if the grantee of the next Presentation present a Clerk that is admitted and instituted , and dyes before induction , yet the graunt of the grantee is executed , and he shall not present again . Colchils case death of the presentee before induction . 2 point . And so it was adjudged in Colsills case M. 10. & 17. Eliz. Rot. 4. And the wordes of the Statute of 22. H. 8. cap. 13. are , that every Dutchess , Marquess , Countess , and Baroness , being Widowes , may have two Chaplins , whereof every one of them may purchase licence or dispensation to receive have and keep two benefices , with care of Souls , And before induction he recepit , habuit & custodivit two benefices , and then he was not quallified , So the first was void ; and as to the point of the enrollment it is clear , there ought to be a parchment roll , for that was the meaning of the law , and not to make an entry in the paper book . Lawton contra , for all the body of the act of 22. H. 8. extendeth to the possession of the benefice , and the Proviso ought to be construed according to the body of the act , and before induction he doth not offend the law , and therefore the dispensation which comes before the induction comes in good time , for if the Kings Tenant make a Feoffment , and Letter of Attorney to make Livery and seizin , Licence of alienation . this is no offence , for if he after purchase a Licence of Alienation , and then Livery and seisin is made , this Licence is good .

Gawdy

Before induction the first Benefice is not void . And you shall find 2 & 3 Mar. 130. that issue was taken upon the induction ; but a Common person may not change his presentment after admission and before induction , Plenarty against a common person . and Plenarty is a good plea against a Common person in such a case ; But yet before induction he is not a full Parson to all intents , for a grant of an Annuity before induction is not good , Com. 526 for the induction makes it notorious that he is Parson ; then when he after his admission gets a qualification , The Commencement of the fault . it seems to me that the qualification shall not help him : for the Commencement of the fault was before the qualification , and the Induction after relates to the admission , and to prove that he cited 1 Mar. 99. where a man bought beasts out of the Market , and gave 5. s . to have election to have the refusall in the Market the next day , and in the Market he agreed to have the beasts , and paid Toll , and holden clearly that this shall relate to the contract out of the Market ( so in this case ) Allso here the words are , shall take , receive , and have ( after qualification ) two Benefices . And before the induction he takes the benefices , in this case , for before the induction , Death or departure after qualification and taking another benefice . and at the time of admission , the Ordinary said to him , Accipe curam tuam & meam . And if a Parson be once qualified , and after take a second Benefice , and then his Master dies , yet his qualification remaines , so is it if he depart from the service of his Master . Then for the second point for the enrollment , it seemeth it is good , for that it hath been allwaies so used . For the Statute which saith , a man arraigned of Treason shall be tried by people of like condition ; yet if an Esquire be arraigned of Treason , he shall be tried by people of meaner condition , as appears by 1 Mar. 99. for that it hath been allwaies put in ure , and therefore shall be intended that it was the meaning of the Law .

Fenner Contra

For before inductionthe Incumbent hath no interest in the Parsonage , and the Parishoners have no notice of him , and he may not serve the Cure before Induction , and then if our Law do not repute him Parson , then the Statute doth not intend to make the first Benefice void , before that he is full Parson in another Benefice . Allso this word ( have ) in the Statute , is a word Possessory , and ought to be full to all entents .

Popham

I think the dispensation will not help , for by the Admission as to the Cure of souls he is a full Parson , and allso such a Parson is a sufficient Parson as to the Patron , and to devest the interest into the Parson . No laps for want of induction . Allso he is a full Parson as to a stranger , for if 7 years incurr between the Admission and institution before Induction , no Laps shall acrew ; No taking of fruits before induction . But as to the matter of the possession and fruits of the Benefice , he is not Parson before Induction . And if the Law no not make the first Benefice void in such a case , then one Parson may retain 20 Benefices together , for first he may be admitted into one , & before Induction into that , admitted into another , & sic in infinitum , the which was never the meaning of the makers of the Law , and if before the Statute of 21 Hen. 8. a man had taken two Benefices , that had not been good without a perinde valere in the spirituall Law , Hunting Chaplins . and the meaning of the Law was , to help one that was a Chaplin to Noble men , and not such which are hunting Chaplins which hunt after Benefices .

Then to the second matter , I think the enrollment is good , and but an offence in the Clerk which is finable , and not in the party , for the party may not procure the Clerk to make his entry in an another course than the custom is , And therefore no fault in the party .

At another day in Mich. 39 & 40 Eliz. this case was moved again , and Cook Attorney seemed that the dispensation which comes after Admission and Institution , and before Induction , comes to late , and is not holpen by the Proviso of the Statute of 21 Hen. 8. for the words of the Statute are , shall have , retein , and take a second Benefice . And after admission and institution he may not take his Benefice , the which he had before , for he is Parson to make a plenarty , and to many other purposes , before Induction . Gawdy seemed that the admission and Institution made him full Incumbent , as to the Patron and to the Parson himself , But as to the possession of the Church he is not full Parson before Induction , for 5 Eliz. in an issue upon plenarty , it is there taken , that the Church is plena & consulta per admissionem & institutionem before Induction . And if any other construction shall be made in this case , the Letter of the Law shall not be observed , viz. shall have , receive , and keep , for he may not have a thing the which he had before . And it seemes to me , that neither by the intent nor by the Letter of the Statute it is holpen .

Fenner è contra

For 14 Eliz. fuit adjudged upon an issue , Prebend . or not Prebend . that before Induction he was not Prebend . But the reason for which a Quare impedit doth not lie after the Admission and Institution after six months , is for that , that against every Patron , the Presentation is onely excepted , Refusall before induction . and before Induction the Parson if he will , may refuse a Benefice , for a Parson which is absent , may be presented and admitted to a Benefice ; A Parson absent may be presented and admitted . and if he may not refuse it , it is very mischievous to him . And the Presentation is the Act of the Patron , and the Admission is the Act of the Ordinary , But the Induction is the Act of the Parson himself , for by that he is known to all his Parishoners , and his free consent by that is testified to accept of the Benefice to which he was presented .

Gawdy

If I grant to you prox . praesentationem , and the Incumbent die , and the grantee present onewhich after admission and Institution dies before Induction , whether is the grant executed or not , quasi diceret quod sit .

Fenner

I have asked the opinion of the Judges of our house , and they are of my opinion . But I agree with my Brother Gawdy for his last opinion , for after admission and Institution , Plenarty against himself before induction . the Church is full against himself before Induction . Gawdy Truly it is full against all Common Persons .

Clinch

The Induction is like to a livery of seision , and therefore before the Induction , the Parson is as a Feoffee is after a Deed of Feoffment delivered unto him , and before livery and seisin he is but Tenant at Will.

Popham

I agree with my Brother Gawdy , for if the spirituall Law be well understood , it will make an end of this matter and case . A sentence declaratory upon a deprivatio● ipso facto . For by their Law , if a man take two Benefices , the one is void , ipso facto , without deprivation ; Yet there ought to be a sentence declaratory of the deprivation , to give notice to our Law , and by the admission and institution , the Incumbent is a Parson to many purposes , So it seemeth upon an execution . but not to all profits , but as to the exercising of his Function he is Parson , and hath Curam animarum , and if by the admission and institution before induction , He may exercise his Fanction before induction . the presentee shall not be perfect Parson , great inconvenience will ensue , for put that a man grant prox . praesentationem to one , and he present , and his presentee is admitted and instituted , and then the presentee obtaines of the Bishop a fequestration of the profits , and will never be inducted , in this ca●e the grantor may lose his patronage . And if I bargain and sell my land , and before enrollment of the deed I purchase a licence of the Queen , this licence shall not avail , for he ought to have a pardon , and so in this case .

Gawdie

I am not of the same opinion of my Lord chief Justice that if a man that hath a benefice take another benefice that that is void before deprivation by the spirituall law : For under correction their law is otherwise ; this case is now reported by Cook , and adjudged that the dispensation came to late .

66.

HOO Executor of Hoo brought a Scire facias against Felix Marshall , Scire facias sur recogn . and the case was this , Hoo the Testator commenced a suit in the Kings-bench against one Fuller , And the said Felix Marshall became Bail for the said Fuller in the said suit , Scilicet , That if the said Fuller should be condemned in that Action , and did not either pay that condemnation , or yield his body to prison , that then Felix Marshall should pay the condemnation for him , according to the ordinary course of Bailes . But yet in pleading of this Recognisance he said further Et si defecerit in solutione tuuc vult & concedit quod pradictum debitum levetur de terris et tenementis suis . And Gawdy Justice said he did not use any such wordes when he took Bail . And after this Bail taken , and before Judgement given in the said suit , the said Hoo the Testator released to the said Marshall all actions and demands , And after , Judgement was given for the said Hoo the Testator , against Fuller , and thereupon the Testator brought a Scire facias against M. as appears before , and M. pleaded the said release , and hanging this Plea , Hoo the Testator dyed , and then the Executors brought another Scire facias against the said M. And he pleaded this release again in barr . Learning for releases .

Gawdy

I doubt of the case , for 5 Eliz. 217. the Covenantee released all actions , suits , quarrels , debts , executions , and trespasses , and this was before any Covenant broken . And it is there holden that it is no barr to an action of Covenant afterwards brought upon a Covenant after broken , Annuity . And per. 4. Ed. 4. 40. If a Grantee of an Annuity release all actions to the Grantor before the day of payment , Read against Bullock . this will discharge the arrearages before accrued , but not those payments after . And by Read and Bullocks Case a release is not available to any other right or action , than such as a man hath at the time of the release , for it is against the nature of a release to take effect in tempore futuro , and in the case in question there was no action nor demand before judgement given against Fuller . Difference where the first delivery is void and where not . And I doubt of the case cited in 27 H. 6. 7. where an Obligation is delivered as an escrowl , and the Obligee release to the Obligor all actions & after the Obligation is delivered as the deed of the party , whether this release do that discharge or not , it shall not by P. 5. H. 7. fo. 27. Infant . So there are many other cases there put , as if an Infant deliver a deed as an Escrowl to be delivered as his deed when he comes of full age , There I take the Law clear , that if the condition be performed at ful age of the Infant , yet this is not his deed . And so of a Feme Covert which delivers a deed as an Escrowl to be delivered upon Condition when she is sole , Feme ●ove●t . if after the deed be delivered when the Woman is sole , yet this is not her deed , for in these two last cases the first act which was the delivery as an Escrowl was meerly void . And if a man be indicted by conspiracy , and after release to the conspirators all actions , and after that the party indicted is arraigned upon this Indictment , and by Triall is acquitted , I doubt whether this release shall barr him in an action of conspiracy , or not . Fenner said that the Recognisance is immediatly a Debt , and for that this release shall be a Barr , for by Lytt . a release of all actions is no bar in a fieri fac . to have execution within the year , but in a Scire fac after the year it is a good bar , Release after delivery is an Escrowl . and so in this case it is a barr , which was not a bar at the first . And I see not any reason forwhich if the King release a Recognisance which is not yet broken , it should not be a discharge of the Recognisance , Except it be for that , that the generall words in the Kings grant shall not extend to discharge such a Recognisance without speciall words . And I think that a deed which is delivered as an Escrowl is not a deed , but onely after the delivery of that as a deed , and shall not relate to be a deed ab initio . And for that , a release made before the delivery as a deed , albeit that after that it is delivered as an Escrowl shall not discharge it . Pas . 5. H. 7. 27.

Clinch

I think that this release shall be a good barr , for if the Defendant at the time when he entered bail had had his land , and had sold it afore the Judgement given against Fuller for whom he was b●il , none will deny but that this land shall be lyable , which proves that this is a Recognisance and a Debt immediately .

Popham

This is aprettie case , but there will be a difference between a duty upon a contingent , and a duty absolute , for if I covenant to ●ufeoff you of the mannor of Dale before such a day , Duties absolute contingent , differece . and bind my self by Obligation to perform the covenants , and before the day you release to me all actions , there the Obligation is discharged , but not the Covenant for the Obligation was an absolute duty , and the Covenant but contingent ; Obligation to perform covenants discharged , but not the covenant . and it seemeth that a deed delivered as an Escrowl may not be discharged by release made before that the Escrowl be delivered as a deed . And in the case at bar there is no duty but upon a Contingent , that is to say if the party be condemned and do not satisfie the Debt , nor render his body to prison . And for that before that it become a duty , such a release will never be a discharge , being but a possibility , for it hath been adjudged , that where a lease hath been made to two for their lives , A possibility cannot be discharged or surrendred . the Remainder , which shall first happen to dye , for forty yeares , that neither the one , nor the other nor both together may grant this term of 40. yeares before it be setled , & if I release all demands before that the rent is due , the rent is gone . But it is otherwise of a release of all actions .

Gawdie

I agree that a release of all demands will discharge rent due . Release of demands actions , difference .

Popham

If I make a lease to I. S. for so many yeares as I. K. shall name , this I. S. may not surrender his term before that I. K. name the yeares . And he denyed that the land of Marshall the manucaptor which he had at the time of the Bayl should be bound being sold before the Judgement against Fuller , as Justice Clinch did affirm in his argument .

Fenner

There is a difference between an Action and an Interest . And after Judgement was given that the release was no bar .

99.

MAckerell brought an Assumpsit against Bachelor , Necessary apparell . and declared , that in consideration that the Plaintif did deliver unto the Defendant divers Suits of Apparell , that is to say , a Sattin Dublet and Hose , with silver and gold lace ; and one velvet Jerkin and Hose , and one fustian Dublet and cloth Hose , to-his own proper use , the Defendant promised to pay to the Plaintif forty pound when he should be required . The Defendant pleaded , that temp●re assumptionis , he was within age , and the Plaintif replyed , that at the same time the sayd Defendant was servant and attending upon the Earl of Essex in his chamber , and that this Apparel was delivered unto him for his necessary apparel during the said time of his said service ; and upon that the Defendant demurred , and the Court caused the Declaration to be read openly in Court to see of what degree the Defendant was of his Addition , and upon reading of the Record it appeared by the Declaration , that the Defendant was there written Gentleman , for which the Court agreed clearly , that Sattin with gold and silver lace , or Jerkin or Hose of Velvet , are not necessary Apparel for a Gentleman ; Severa prises good in a declar . and so an Infant is not bound to pay for such Apparell ; and therefore the Action for so much will not lye ; but for the residue , to wit , for the Dublet of fustian , and Hose of cloth , it seemeth the Action is well maintainable , for the prices of every of them is set down severally in the Declaration . Satisf . of parcel

Popham

The Plaintif in his Declaration hath confessed he is satisfied of part of his contract , but non constat for what part of the clothes the mony received was payd , that is , whether for the necessary , or unnecessary .

Gawdy

Truly it shall be intended for the necessary Apparel .

100.

GOodale brought an Information against one Butler , Non-residence . upon the Statute of 21 Hen. 8. cap. 13. for not being resident upon his Benefice whereof he was Parson , by the space of six moneths , for which the Defendant ought to forfeit for every moneths absence 10. l. And it was found by speciall Verdict , that the Defendant had demissed his Parsonage-house to another , excepting one chamber for himself , And within the same Parish had hired another house , and there kept Hospitality , and was allwaies dwelling there , And whether this be a Non-residence within the Statute , for that he doth not dwel within the Parsonage-house , but inhabiteth within the Parish in another house , is the question . Clinch & Fenner were of opinion , that if he be resident within his Parish , albeit he doth not dwel within the Parsonage-house , that yet this is a sufficient residence within the Statute ; for the Glebe land , and other profits within the Parish makes the Benefice , Beneficium . for a Benefice is derived of this word Beneficium , the which is a profit , or a commodity , and if he be resident in any part of his Parish , he may well enough execute all the Functions Spirituall , and Temporall , and keep Hospitality to relieve his Parishioners ; and these were the chiefest points that the makers of the Statute intended to provide for . Proviso . And Fenner sayd , the Proviso helpeth not ; and that the words of the Statute are , That every Spirituall person ought to be resident at , in , or upon his Benefice , in the disjunctive ; and if that be performed in any of those points , then that sufficeth . Cont. per Popham 68. But if the words were , that he shall be resident upon his Benefice , there peradventure he ought to dwell in the Parsonage-house onely .

Popham and Gawdy to the contrary ;

For Residence is a commorancy , and where he hath his Tithes , that is a profit ; but yet it is no Benefice intended by the Statute ; for when the Statute saith that he shall be resident upon his Benefice , this shall be expounded upon the Parsonage-house ; for the Statute may not be so unreasonably construed , that only will compel the Parson to be resident in any other place of the Parish , than where he hath his house . And for that Colthurst , and Be●ishins case in the Comment 20. Le Prior of Bath was seised of a Grange or Farm , called Barton , near Bath , in Fee , and he and the Covent leased that by Deed indented to H. B. and to his Wife for life , the remainder to W. B. their Son , for his life , si ipse inhabitare vellet & residens esse omnino de & super praedict. Grangium . And if it shall be intended in this case that the Lessee may be resident upon any other place than in the Grange-house , then by possibility the intent of the Lessor might be defeated utterly , which was , that the Grange-house should be repaired . Allso a reason that moved the makers of the Statute to be of opinion to make the Parsons resident , was , for that by this means the Parsonage-house should be well kept in reparations , Reparations . and should not be left to the successor in Delapidations . And the Proviso in the end of the Statute will not help the matter ; Proviso . for the Proviso is , that it shall be lawfull for any Spirituall person to take to farm any Mansion-house , having but an Orchard or Garden , in any City , Burrough , or Town ; so that by that they have no liberty of Non-residence by colour of the sayd Proviso . Absence compulsary . And Popham sayd , if a man be Non-resident by compulsion , that is not within the Law : And if a Parson purchase a parcell of Land within his Parish , and dwell upon that he purchased , and lease out his Parsonage-house , this is a means to make the Parsonage-house to come to destruction , and ruin .

And the meaning of the Law-makers was , Three things provided for by the Statute . to provide for three things . For Hospitality ; for Divine service ; and to prevent Delapidations ; and so in this case the Defendant is within the penalty of the Statute . And to that my brother Fenner hath sayd , That these words , in , at , or upon , will make a difference , truly that is not so , for those words are all of one substance in this case ,

Et adj●rnatur .

101.

NOta that in a Scire fac . between F●e and Balton of the County of Norfolk it was holden by Popham and Gawdy , Fieri facias executed , but not returned . and not denyed by any , if a Fieri fac . goe forth to a Sherif , and he levy the Debt of the goods of the Defendant , but doth not retorn his Writ , if the Plaintif after sue another Scire fac . against the Defendant , upon the Judgement , he may plead this matter , and the Plaintif shall be put to his remedy against the Sherif ; for the sale of the Defendants goods by the Sherif is good , and not to be defeated ; and so is a good Plea in bar of the other Execution , otherwise the Defendant shall be put to a great mischief , vide 20 Hen. 6. 24. & 29. & 19 Edw. 3. Scire facias , & 44 E. 3. 18. Quaere if he shall not have an audita querela , if the Plaintif take out a new Scire facias within the year .

102.

NOta per Mr. Cook Attorney generall , Alienation by a Bishop . that he said in an argument in the Exchequer , if a Bishop with consent of the Dean and Chapter , alien land belonging to his Bishoprick in fee , that a contra formam collocationis doth not lye , and so he said he could shew the resolution of all the Judges of England , the reason is , for that , that the Statute of Westm. 2 cap. 41. whereupon this is founded , speaks only of Abbots , Priors , or Masters of Hospitalls , and albeit there are other words general , to wit or Masters of other Religious or Ecclesiasticall houses , yet that doth not extend to Bishops , which is an higher diginity than an Abbot , but the generall words after ought to be supplied with intention of other houses inferior to those named before . So hath it been ruled , that a Lease by a Bishop is out of the Statute of 13 Eliz. cap. 10. which commenceth with Dean and Chapter , howbeit there are generall words after , to wit , or any other having any Spirituall or Ecclesiasticall living , which is intended of any other inferior to those named before , and never was intended to extend to superiors , but as I think the contrary hath been since adjudged .

103.

VPon an Evidence in an Ejectione firme by Cootes against Atkinson for land in the County of Derby , Whether a lease be bound by the Statute of 4 H. 7. It appeared that a Lease for yeares was made of the said land , 20. H. 8. for 80. yeares , and after the Lessee was ousted and died intestate , And after in 4. and 5. P. & Mar. a Fine was levied of the said land with Proclamations , and the Conusee enjoyed it untill 37. Eliz. in which year letters of Administration of the goods of the Lessee was granted to I. S. which entered and made the Lease to the Plaintif . Godfrey moved that this Fine with non claim for five yeares shall bind the right of the term by the Statute of 4. H. 7. which hath a saving of title and interests , So as they make their claim within five yeares , A good distinction . otherwise their title and interest is bound .

Cook and Tanfield

A right of a term is not within the Statute of 4 H. 7. but right of Free-hold or inheritance , and so it was agreed in Stamfords case 21 Eliz. and sure hath been diverse times holden .

Godfrey

Stamfords case was a lease to commence at a day future , and then a Fine and non claim for 5 yeares before the day of the commencement shall not bind the right of that Lease , but a Fine levied after the day of commencement , although before any entry of the Lessee , shall bind . Saffins case . Gawdy & Fenner absent . caeter . Justic . held that a Lease for years shall never be bound by the Statute of 4 H. 7. and therefore the Administrator may lawfully enter . This was the Title of the Countess of Shrewsbury against Rowland Ayre for the mannor of Hassop in Com. praedict . But the Jury gave a speciall Verdict , and Justice Fenner the next day said that he demanded this question of the Lord Anderson .

And he is clear of opinion that the Statute of 4 H. 7. extends to bind a right of a term if the Lessee were or might have been ever in possession before the Fine .

104 ,

POllard and his Wife brought an Action upon the case against Armshaw for these words , Slander . Thou art a whore , for I. S. Goldsmith hath the use of thy body , the cart is too good for thee .

Popham , et tota Curia

The Action will not lye , for the Common-law cannot define who is a Whore , but if one keep a victualling house or Inne , and one say that she keeps a house of Bawdry , A Victualing house . an action lyes , and so was Ann Davies case , because it may be a meanes to make honest guests to forbear the house , and so breed a temporall loss to the owner .

105.

INter Palmer & Humphrey , Inquisition upon an elegit . the case was such , upon an Elegit a Sherif impannelled an Inquest , which found that one Henry Fry against whom the Elegit was taken out was possessed of a Lease for 100. yeares to begin at the Feast of St. Micb. Anno 2 & 3. P. & M. when in truth ( as it was found by speciall verdict in this action ) the Lease was to begin at the Feast of St. Mich. Anno 3. & 4. Phi. & Ma. Cujus quidem Henrici Fry Statum interesse & terminum in ten . prae . ( & ne dit praedict. ) Juratores praedict. appreciaverunt to 80. l. and the Sheriff sold the Lease as a chattell for lxxx . l. The question was , if the sale by the Sheriff be a good sale .

Popham

It seems to me the sale is good , for albeit the Lease is misrecited , and He●ery Fry hath not any such Lease , yet when the Jury comes to praise it , and the Sherif to sell his estate in the land , they do not referr that to the recitall before , but generally that they shall sell all the state , interest , and term of Henry Fry . But if this word ( praedict. ) had been in the inquisition & sale it had been otherwise , as if the Sherif had said all which said estate & term , then he had referred that to the recitall before , which being false will make the sale void , & for that he said that it was agreed in the time of Sr. Christopher Wray about 21 yeares past , between Sr. G. Sydnam and Rolls upon a Fieri facias , where the Inquest found , that the party against whom , &c. was possessed of a certain term bearing date , &c. which did not ●ear such date , and the Sherif sold the sayd term And it was ruled that the sale was not good ; But the Court did then advise the party to take a new Fieri fac . A good form of finding a term by inquisition . and that the Inquest should find generally that he was possessed of a term for years yet enduring , and the Sherif upon that made sale accordingly , and that sale was holden good , for that the Extendors and Sherif could not come to the knowledge of the certainty of the term ; so in the principall case , the sale being of a term , and the state of the party in the Tenements , and not of the term and estate aforesayd , which was falsly recited , this is a good sale , which was in a manner agred by all the Justices ; but adj●rnatur . At another day Tanfeild moved this case again .

Popham

I have considered of the Record with advise , and I think as this case is , that the sale of a term by an Elegit is voyd ; The difference between a Fieri fac . and an Elegit . and for that the difference between a Fieri fac . and an Elegit is to be considered : For the Elegit is , that per Inquisitionem & sacramentum 12 bonorum hominum per rationabile precium & extent . the Sherif should apprise the goods and chattels , and extend the land ; so without inquiry the Sherif may not sell , quod fuit concessum , as primo Mar. 100 is . Then if the Sherif inquire of one term , and sell another , as our case is , the term sold was never found by our Inquisition , and for that the sale not good , quod Fenner concessit , yet the Lord Popham sayd , that if it had been found by the Inquistion generally , that he is possessed of such land for term of divers years , adhuc ventur . which they have prised to such a sum , this had been good , insomuch as they have not any means to come to the knowledge of the certainty of the term , But when by Inquiry a Term in particular is found , Que estate , refers as well to the estate as to the person . they may not vary from that , and sell another ; and he sayd that these words , Cujus statum Henrici Fry shall be referred as well to the state precedent found , as to the person of Fry . And so is the common intendment in pleading of a que estate . And he said to Mr. Tanfield , that if he had taken any note of their first opinions , that he should raze that out of his Book again ; and after the parties agreed in Court , that Hauger should give to Fry 200 Marks more for his term , and then Fry should make assurance to him of the term , for confirmation of the sale .

106.

NOta per Cook Attorney Generall . Difference between Feoffmen● to an use , and covenant to raise an use . If a man Covenant in consideration of naturall love to his son , to stand seised of certain Land to the use of himself for life , the Remainder to the same son in Fee , with a Proviso , that it shall be lawfull for himself to make Leases for 21 years or three lives . Now he may not make such Leases , notwithstanding this Proviso being by way of Covenant to raise the use . And so it hath been resolved .

Contra

Peradventure if it were by way of Feoffment to uses . After Mr. Walter said , that now lately in one Sharingtons case , it was adjudged in this Court upon a Writ of Error , That if a man Covenant with his Eldest son in consideration of naturall love , A proviso with speciall limita●n good . to stand seised to the use of himself for life , the remainder to his Eldest Son in tail , with Proviso , that he himself might make Leases to his second son , or to any other of his kindred for 21 years or 3 lives , and he made Leases to him accordingly , this was holden good ; for they to whom the Leases are made , are within the consideration , to wit of the blood , and for that , the use may well rise to maintain those Leases ; But if the Proviso had been to make Leases to any man , howbeit , that after he made Leases by force of that to his second son , These Leases are void , for they are not within the consideration of the Covenant by Intendment of Law at the first , for the Law at the beginning adjudged the Proviso meerly void , quod nota .

107.

RObinson brought Debt upon an Obligation against May , Counterbond . the Condition was , that the Defendant should discharge or save harmless the Plaintif of an Obligation , for which the Plaintif as surety with the now Defendant was bound to I. S. The Defendant by way of bar pleaded , Vsury . that the Obligation made to I. S. by him , and the Plaintif , was upon a corrupt and usurious bargain , and pleaded the Statute of Usury , and concluded & sic non da●●ificatus . It was moved at the bar , that this was no plea , for the Condition is , that the Defendant shall discharge or save harmless , &c. And the Plaintif was impleaded by I. S. for that debt , and hath paid the condemnation .

Tanfield Contra

For if this shall not be allowed for a good plea , the Statute of usury will be utterly defeated . For by a compact between the surety and the Usurer , the surety shall pay the usurer , and the surety by that counterbond shall have double recompence against the Principall , which will be mischievous . But the whole Court held the plea not good . sed quare .

108.

HObbs sued an Audita querela in the Kings Bench against Tedcastle , Audita querela , for a speciall bail . and upon a demurer , the case was recited by Moor of the Temple , to be this , Tedcastle sued a bill of debt in this Court , against one Hallaway , in Custodia Marescali , which found bail , the said Hobbs , and an another , which entred bail according to the common course of bail , And after Hallaway was condemned in the said Action , and then the said Hallaway died without paying the condemnation , or rendring his body to Prison , for which a scire facias was sued against the bail , and upon two nihils retorned , Execution , was awarded against them ; Whereupon they sued this Audita querela , supposing that the death of Hallaway hath discharged the bail . Moor argued for the Plaintif , that the bail ought to be discharged upon the matter , for Hallaway had Election to discharge the bail by paying the condemnation , or rendring of his body to Prison ; Now by the Act of God it becomes impossible to perform the one , to wit , to yield his body to prison , And therefore the Law will discharge him of the other , and by consequence his bail . And that he proved by Arundells case , 9 Eliz. 262. & 6. & 7 Eliz. 231. Sir Edw. Walgraves case .

Popham

Quemodo constat here but that there was convenient time after the Judgement , to perform the one or the other .

Kemp Secondary

The course is allwaies here , after Judgement to award a Capias against the Defendant , and if upon that he do not render himself , or pay the condemnation , then to sue Execution against the bail , and not before ; but here there was never any Capias awarded against Hallaway the Defendant in his life time .

Popham Gawdy & Fenner

This seemeth very reasonable , not to sue Execution against the bail , untill a default be retorned against the Principall , and the recognisance of the bail , which is , that the Principall shall yield himself , &c. is intended to be upon Process awarded against : him But no Process was awarded against him in his life ; and now it is impossible that he should yield himself to Prison being dead , Iudgement . and therefore the bail is discharged .

And so they awarded Judgement for the Plaintif in the Audita querela .

109.

MAtures brought an Action of Covenant against Westwood . And the case was such , Covenant . for an assignee of a reversion for years . Adams Lessee for 20 years , made a Lease for 10 years of the same Land to Bowes by indenture , whereby Bowes did Covenant at the end of his Term of ten years , to avoid and to leave peaceable possession to Adams , his Executors or Assignes ; Adams granted over his Reversion to Matures the now Plaintif . The question is , if the Plaintif by the Statute of 32 Hen. 8. cap 34. as Assignee may maintain an Action of Covenant for his Covenant broken , or not . Nota , that this case was moved divers times ; And first it was moved , if a Grantee of a Reversion for years be within the Statute or not .

Gawdy

Well enough : For the words of the Statute extend to that ( quod fuit concessum )

Then it was moved that this was a meer collaterall Covenant between the persons , and not concerning the estate of the land , and for that not within the Statute . Popham sayd , Covenant reall which concerneth the estate . If nothing be sayd to the contrary , intretur Judicium for the Plaintiff ; afterwards the case was moved again .

Gawdie

It seems the case is , Assigne , which in regard of his reversion , as of a Covenant , may well maintain this action by the Statute of 32.

Fenner

This Covenant is not any Covenant to be performed , during the estate or terme of the Defendant , but it is a Covenant to doe a thing in the end of his term , and for that is not a Covenant , of which the Assignee of the reversion shall have benefit by the Statute , for that he hath not any reversion depending upon any estate , when the Covenant is alledged to be broken ; for the Defendant when he breaks that Covenant , is but Tenant at sufferance .

Gawdie contra ,

the Covenant is not to doe a thing after the terme determined , but at the instant of the determination of the term , and therfore it is a Covenant annexed to the State , and runnes with the Land , and therefore the Plaintiff shall have advantage over it .

110.

TRespasse and assault was brought against one Sims by the Husband and the Wife for beating of the woman . A Child born living but bruised . Cook , the case is such , as appears by examination , A man beats a woman which is great with child , and after the child is born living , but hath signes , and bruises in his body , received by the said batterie , and after dyed thereof , I say that this is murder . Fenner & Popham , absentibus cateris , cleerly of the same opinion , and the difference is where the child is born dead , and where it is born living , for if it be dead born it is no murder , for non constat , whether the child were living at the time of the batterie or not , or if the batterie was the cause of the death , but when it is born living , and the wounds appeare in his body , and then he dye , the Batteror shal be arraigned of murder , for now it may be proved whether these wounds were the cause of the death or not , and for that if it be found , he shall be condemned .

111.

GOodale against Wyat in trepasse . The speciall verdict found that Sr John Pagginton was seised of the land in question in Fee , Mortgage . and morgaged it to one Woodliff upon condition , that if he or his Heires did pay to the Heires , Executors , or Administrators of the said W. within one yeer after the death of the said Woodliff 50 l. That then the said deed of Feoffment , and the Seisin thereupon given , should be void , and afterwards Woodliff infeoffed Goodale of the same land , and gave notice of the said Feoffment , to Sr J. P. and after Woodliff dyed , and Sir J. agreed with the heir of W. to wit , one Drew Woodliff , to take 30 l. for the said 50 l. but when the 30 l. was to be paid , Sir J. paid to the said Drew W. all the fifty pounds , and after such payment made , Drew W. gave back to the said Sr. J. 20 l. parcel of the 50 l.

Altam

2. points are in the case . The first is to whom the payment of the money , as this case is , ought to be made , and I think to the Feoffee , because the Heir hath nothing to do in the land , and to prove that he cited fundamenta legum , 17. Ass. 2. 6. R. 2. Plesingtons case , and the case of one Ramsey 19. Eliz. was such , a man infeoffed three , Ramseys case upon condition , that if the Feoffor paid to them or their heires 100 l. that then he might re-enter , and after one of the Feoffees dyed , and the Feoffor tendred the money to his Heir , and adjudged a void tender , : And also Littleton proves that ; but tif the condition might be performed , to the Heirby payment , that ought to be precisely performed , for he is now as a stranger , having nothing in the land , and the Covin between the Feoffor and the Heir , must not hurt my Olient , for by 4. E. 2. c●i in vita 22. If cui in vita be brought against a Prior , and hanging the action , he is deposed by Covin , this shal not abate the Writ , and it was adjudged in this Court , where a man was bound by Obligation to deliver a bond , and after he got a judgement upon it , and then delivered the bond , and holden no performance of the condition , because the intent was not performed ; and 20. E. 3. accompt 29. in accompt the Defendant pleaded a Deed , whereby the Plaintiff granted that if the Defendant made a Recognisance to him , that then the Writ of accompt shall be made void , and he shewed how he made a Recognisance , But the Plaintiff said that after the making and before deliverie of that to him , Composition by Executors . the Defendant took it from the Clerk , and therefore was adjudged to accompt , Precisely named . and by 18. E. 4. 20. If a man be bound to license another to carrie a 100. Oakes , if he do license him , and then disturb him , the condition is broken , and the common case of Executors will prove this , for , if an Executor have but 20 l. assets in his hands , and is in debt to two men , in 20. l. to either of them ; if he pay but 10 l. to the one , and have an acquittance of him , for the whole debt of 20 l. yet the other 10. l. that remains in his hands shall be assets to the other ; for no compacting between strangers shall prejudice my right , per quo &c. Payment upon a m●rgage good to the Executorrs cleelry

Gawdy

I think cleerly , if the payment had been intirely made to the Heir , without collusion , it had been good , for that he is preisely named , for none will deny but that if the payment had been made to the Executors , it had been good , but the Covin between the Heir and the Feoffor peradventure will make no payment ; Father enfeoff the son . and for that 34. E. 1. Warrantie 88. If the father infeoff the Son , to the intent that this land shall not be assets to the Sonne , to bar him in a Formdone , this Covin will not serve to aid him , Covin by administration . and 2 & 3 Mar. the Husband dyed intestate , and administration was committed to the wife , which tooke another husband , and the second husband and his wife as Administrators brought an action of Debt , hanging which suit , the Sonne of the intestate , by fraud and covin between him and a Debtor , obtained other letters of Administration to him and the woman joyntly , and after judgement , the sonne by covin to defeat the execution released to the Debtor all demands and executions , and after the Husband and Wife sued execution , and the Debtor upon this release brought an audita querela , and adjudged against him , because of covin ; but there is a third matter , which makes an end of all , for it is found that Sir John Pagginton entred upon Goodale , and Goodale re-entred , and then the Defendant entring is a Trespassor to the Plaintiff , because no title is found for him to make his entrie lawfull ,

Finner

I thinke no payment ought to be made to the heir in this case , no more than it shall be where a man is bound by obligation to pay a lesser sum to the Obligee , his Heires or Executors ; there payment shall be to the Executor , and not to the Heir . And I think in this case , Conusee by Starute grants over his estate . that the payment ought to be to the Feoffee , for that that he is to have the losse , for by 22. E. 3. & 15. E. 3. if a man have exeution by Statute , and grant his estate over , if the Conusor will pay the money , and have the land again , it shall be paid to the Grantee , and not to the Conusee . But I am cleer in opinion , that for another cause judgement ought to be given against the Defendant , for the words of the condition are , sub conditione , That if Sir John Pagginton pay 50. l. to the Heires , Executors , or Administrators of W. That the said Deed of Feoffment , Liveri● cannot be void without a reentire . and the seizin upon that given , shall be void . And I think it is no condition for livery of seisin may not be void without a re-entry , as 15. H. 7. is , but for the matter of the Covin , it seems to me that if the Heir may receive the money , that shall not prejudice ; for if he have right to have the money , who hath any wrong , if he give part of that to another ?

Clinch

The payment of the money to the Heire is good ; for when a man departeth with his estate , it is in his dispose to annexe what condition he will , and for that when he appointeth to the Heires , Executors , or Administrators , payment to any of them is good : And he said it was a good condition , Possession a good title against all which have not a better . and no fraud , for the duty was due to the Heir , but for the last matter that is not to be cured ; for when one title is found for the Defendant , and it is found that the outed one that had elder possession , his entry is torcious .

Popham

I think the condition is not good ; for whensoever you will have an estate of inheritance to cease , Estates beginning by liverie , and otherwise . you ought to have apt words to make it cease ; for an estate which beginneth by liverie , may not cease by words , but it is otherwise of an estate that beginneth by contract without any liverie and seisin ; but in the point of fraud I am of opinion with my brother Gawdy : Fraudulent recoveries are void , although they be by a good title . For fraud in our law is not favoured , albeit the partie have right , for if he that hath right is of covin with one to disseise him that is in possession , to the intent that he will recover against him , now this recoverie , albeit he hath right , will doe no good to him , but the last makes all without question , and so judgement was given for the Plaintiff .

112.

SAyer brought an Eejectione firme against Hardy , A Lease determinable made good , for the insensibility of words . and a speciall verdict was found , to wit , that a Lease was made to a widow for 40. yeers , sub hac tamen conditione , quod si ipsa tam diu sola fuerit , & inhabitabit in the same house , the woman continued sole all her life , and dwelt all her time in the said house , and dyed within the term , the question was , whether the term be determined or not , and whether the words make a condition or limitation .

Morgan

It is no condition , and cited Colthursts case , but if it were a condition here is no breach alleged , for the death is the Act of God , which no man may resist , and the Act of God may not prejudice any man .

Bromly

I think the word makes a Limitation , and not a Condition , and he tited the Lord Barkly's case .

Gawdie

If a Lease be made to a feme sole , if she so long live sole , and continue unmarried , now if she dye the Lease is determined , Differences between conditions and limitations . and per Litl . If an Abbot make a lease for 40. yeers , if he so long be Abbot , if he after be deposed or dye , the lease is determined : So is it of a lease made by the Husband , if he so long continue Husband of such a woman ; but in this case the words are insensible , and for that it is neither condition nor Limitation , vide 3. E. 6. Dyer 65. & 66.

Popham & Clinch .

It is neither Condition nor limitation , but if this word ( si ) had been omitted , it would have been a condition ; Or if the words ( sub conditio●● quod ) had been omitted , it would have been a limitation . And if I make a Lease for 40. yeers , if the Lessee dwell upon the thing let , during the term there if the Lesse dye , the Lease is determined , for that the point of limitation goeth to all the term , but if it be a lease for 40. yeers , if the Lessee dwell upon that during his life , there if he dye , the Lease continueth : So they all concluded that the terme yet continueth , per quod judicium intretur pro quer .

113.

IN the case between Walter and Walter for 20. l. per annum to be paid to a Justice of Wales for the Office of the Clerk of Fines : Assumpsit in consideration of an Office sold . For a Justice of Wales may by Prescription take notice of Fines of Land lying in certain Shires in Wales , and this 20 l. per annum was to be payd by the Servant to the Master for the sayd Office , for the Clerks Fee was v. s . iiij . d. of every Fine . The Action for not paying the xx l. Mistr●all . was brought , and tried in comitatu Gloucest . And therefore Mr. Attorney said it was mis-tryed , for properly it ought to be tryed in one of the three Shires in Wales .

John Walter

I think the Tryall good ; for 30 Eliz. there was a Case in this Court between Beveridge and Conney , Reveridge against Conney . And the case was , that a Lease was made in the County of Northampton , of lands in the County of Cambridge , and the Lessee was bound by Obligation to pay his rent in the County of Northhampton , The Defendant pleaded payment in the County of Cambridge , and this was found in the County of Northampton .

Gawdy

This is a good Case , let us see the Record .

Walter

You shall Sir . But the Court seemed to incline against Walter . Cook said that in this case the Assumption is voyd , per le Statute de 5 Ed. 6. cap. 16. For it is not lawfull to sell such an Office .

114.

IN an Action of Debt upon an Escape , Escape . Popham , Clinch , and Gawdy sayd , P. 36. Eliz. if a Prisoner in Execution escape , and the Jaylor make fresh suit , and before the re-taking the party bring his Action against the Jaylor , now the Jaylor may not re-take the Prisoner , as to be in execution for the Plaintif again , but onely for his own indempnity ; but if the party doe not bring his Action , then the Jaylor may re-take his Prisoner , and he shall be in Execution again for the Plaintif . Wast . For by Popham , this Case is like to Wast , the which if it be repaired before the Action brought , the party shall not have an Action .

115.

A. B. was Utlawed after Judgement , Elegit after V●lary . and an Elegit was awarded against the Defendant , Mr. Godfrey prayed a Supersedeas , quia erronice emanavit , for the party may not have any other manner of Execution but a Capias ; for a Fieri fac . he may not have , for the Queen is intituled to all his goods , and an Elegit he may not have , for by the Utlawry , the Queen is intituled to all the profits of his Lands . Feoffment by an outlaw .

Gawdy

It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment , and so out the King of the Profits ; and so it seemeth in this Case . But it is good to be advised .

116.

SR . Henry Jones Knight , Error in fine and remedy . and I. his Wife , the Wife being then within age , levied a Fine of the lands of the Wife , and a precipe . quod reddat was brought against the Conusee , which vouched the Husband and the Wife , and they appeared in person , and vouched over the common Vouchee , which appeared , and after made default , whereby a Recovery was had , and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine , and another Writ of Error to reverse the Recovery , by reason of the nonage of the woman , and the court was of opinion to reverse the Fine , but they would advise upon the Recovery , for that the said Henry Jones Knight , and his Wife , appeared in person and vouched over , and so the Recovery was had against them by their appearance , and not by default , and so it seemeth no Error , Generall warranty destroieth titles and conditions . and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty , the Error upon the Fine is gone , as where a man hath cause to have a Writ of right , or title to enter for a Condition broken , or any other title to land , and in a praecipe quod reddat of the same land is vouched , and entreth generally into warranty , by that the condition or other title is gone , but upon examination it was found that the Recovery was before the Fine , for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine .

117.

IN Evidence between Tutball and Smote the case was such , Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void & after the Grantor died and made the Grantee his Executor , and whether the Condition be extinguished or not was the question . Popham and Gawdy said the Condition is extinguished , for it is impossible for the Executor to enter upon himself . Clinch & Fenner è contra , The debtor marrieth the Executor . for he hath the Term jure proprio , and the Condition as Executor , and so he hath them as in severall capacities .

Cook

It hath been adjudged where a man is indebted and marryeth with the Excutor , and the Executor dyes yet this is no devastavit , for the Husband hath been charged .

118.

RIchard Thorn , Administrator of an Administrator . and Jane his Wife , as Administratrix of one I. Gime brought Debt of xx . l. against I. S. And alleged that the Testator was Administrator of one Mary Gime , which Mary Gime lent the money to the now Defendant , Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error , Error was assigned , for that that the now Plaintif as Administrator of an Administrator , brought this Action , where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin , and he to whom the Administration of the goods of the first Administrator is committed , hath nothing to doe with them . And so the Iudgement was Reversed .

119.

HUmble brought Debt against Glover for arrearages of rent , Privity determined of both parts . and the case was this , that a man made a lease for term of years , and after granted the Reversion to the Plaintif , and after the Lessee for yeares assigned over his whole estate and interest , and after this assignment rent was behind , and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over , and whether Debt will lye against the Lessee after the assignment , was the question , and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term , for when the privily of the estate is determined of both parts , no Debt lyeth , and so the Plaintif was barred .

120.

IN Evidence between Maidston and Hall , Maintenance . Popham said , that it was agreed in the Star Chamber , if two are at issue in any Action , It is not lawfull for any stranger to labour the Jury to appear , for , for such an Act one Gifford was fined in the Star-Chamber . Giffords case .

Gawdy

Truly the Law is so , for labouring of Juries is maintenance .

121.

DIck●ns brought an action of trespass against Marsh , Esta●e by Devise . and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children , to wit John , Toby , and Mary , and by his Will devised , that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them

Altam

There are two matters to be considered in the case , the first is what estate the children have by this devise , whether Fee simple , or but for life ; the second is whether Joyntenants , or Tenants in commn ; and as to the first point I think they have but an estate for life , for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have , Dyer 23 Eliz. 371. he is but Tenant for life , but if it be expressed in the devise , No estate expressed . that the Devisee shall pay 20. s . to John S. there , as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple . For the second point he said they were Joyntenants and not Tenants in common , Consideration . but if the wordes of the Will had been , Part and part like . that they shall have part and part alike , there they are Tenants in common , and not Joyntenants .

Tanfield è contra

For if they were Joyntenants for life , Reversion descendeth to a Joyntenant . and the reversion descend to one of them , that will never drown the estate for life for the benefit of the Survivor . And if a man give land to two men for their lives , the Remainder to the right heires of one of them , yet they are Joyntenants , and the Survivor shall hold place , and albeit the words are equally between them , yet this shall be intended equally during their estate , and it hath been taken for a difference , if I devise my land to two equally divided between them , there they are immediately Tenants in common , and not Joyntenants , but if the words had been equally to be divided between them , there they are Joyntenants untill division be made , for that that it is referred to a future time .

Gawdy Justice

I think they have but estates for life , for consideration of blood is not so effectuall as consideration of money ; Blood , Money , Difference . for if I bargain and sell my land for money , without expressing any estate , the Bargainee hath a Fee simple , but if in consideration of naturall affection , I covenant to stand seised to the use of my son , and do not express any estate , there my son is but Tenant for life ; and for the second point I think they are Tenants in common , and not Joyntenants , for the case is no other , but as if he had said I give my land to my children by moities amongst them , By moities . and then there had been no question but that they had been Tenants in common .

Popham & Clinch

For the first point no estate but for life passeth , if any estate pass , for it is doubtfull if any estate pass or not , for the Will is , that after his debts paid , Only Lands lyable . he giveth all his lands , goods and moveables , &c. And therefore Popham thought that such Lands which were liable to Debts should pass , A Term. and no other . For if the Devisor had had a Term , then it seemeth no Land should pass : But admit the Land do pass , then if I devise Land to two , equally divided between them , they are Tenants in Common ; But if I devise Land to two , equally to be divided between them , by I. S. now untill Division , they are Joyntenants ; So I think where the Devise is equally to be divided between them , that they are Joyntenants quousque Division , because of the reference future .

142.

IOhn Cole made a Lease for years to one Taunton , Devise is a demise . Hil. 36 ●liz . rot. 376. upon Condition , that if the Lessee shall demise the Premises , or any part of it , other than for a year , to any person or persons , then the Lessor and his Heirs may re-enter , the Lessee after devised it by his Will to his son .

Popham Gawdy & Fenner

It is a breach of the Condition , and the case of 31 Hen. 8. 45. ruleth the Law in this case , for a Devise is taken for a breach of the Condition , v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor .

123.

A Man seised of a Wood , granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor , Grant before property vested . and before Assignment the Grantee granted that over , and whether this Grant be good or not , being before Election , was the question . And the better opinion was , that it is not grantable over , for no property was Vested in him before the Assignment ; and if the Grantor die before Assignment , the Grant is void , and his Executors if he die shall not have it .

124.

BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin , A Jur●rs name in the distringing mistaken . and it was Assigned for Error , for that that Kidman was retorned in the Venire fac . and Bidman ▪ was retorned in the Distringas & habeas corpora . Tanfield said , it was apparent Error , and to prove that he cited Parkers case , where in an appeal Palus was retorned in the Venire fac . and Faulus was in the Habeas corpora , and Paulus was sworn , and therefore Error . And between Cobb and Paston , a Juror was named Hantstrong in the Venire fac . and Hartstrong in the Distr . and adjudged ill . Cook said , that it might not be amended . And to prove that he cited 9 Edw. 4. 14. & 27 Hen. 65. where it is said , no Amendment after Judgement ; for thereby the Attaint of the party shall be tolled ; and in a case between Crosby and Wilbet , George Thompson was retorned in the Venire fac . and Gregory Thomson was in the Distr . and could not be amended after Judgement .

Gawdy

It is hard to amend the Distr . for the Book of 27. Hen. 6. is , that it shall not be amended , for the Distr . is the Awarding of the Court , and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd , and in the Habeas Corpora was named Lord , and when the default was espied , they awarded a new Habeas Corpora . But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended , but not the Writ . And 34 Hen. 6. 20. The Prior of St. Bartholomews case , where in the Fenire fac . there were 24 retorned , and in the Habeas Corpora but 23. and so a Juror omited , and holden that it could not be amended . But after the opinion of the Justices of England was , that it should be amended , insomuch that it appears by examination the same party in the Venire was sworn , and so no damages to any .

125.

PAnnell brought Trespass against Fenn , Devise to execute . And the case was such , that a man was Possessed of a Term , and made M. his Wife and G. Fenn his Executors , and devised all his Term to them , and that they shall have the Term untill all his Debts and Legacies were paid , and all such charges in suit of Law as they should expend , the Remainder to John Fenn in tail ; the question was , whether the Executors take as Devisees or as Executors . Gawdy said , if they take as Devisees , then if the one of them grant all the Term , no more but the Moity passeth , and then the Grantee and the other Executors shall be Tenants in Common : But if they take as Executors , then when one Granteth the Term , all passeth , as 29 Hen. 8. is , Clinch & Fenner said , they shall take as Executors , for it is the proper function of an Executor to entermedle with the Will .

Gawdy

If I make two my Executors , Proper benefit . and devise the profits of my Land to them untill my Debts and Legacies be paid , and untill they have levyed 100. l. after that to their own use , I say they shall take that as Legatees , and not as Executors , in respect of the 100. l. which they are to have to then proper use .

126.

NOta , Second deliverance . if a man have Judgement to have Retorn upon a Nonfuit in a Replevin , and the Plaintif bring a second Deliverance , this is a Supersede as of the Retorn ; yet the Defendant in the first Replevin shall have a Writ to enquire of the damages , which shall not beestaid by the second Deliverance , but if he have Iudgement in the second Deliverance , then shall be retorn Irreplevisable , and shall recover damages .

127.

STitch against Wisdom , Thoughts are not to be uttered . an Action upon the case was brought for words ( viz ) he did better than many an honest man did : For there is many a truer and honester man hang'd , and there was a Robery committed , whereof I think him to be one , and I verily think him to be an Horse-stealer , and upon non Cul. pleaded , It was found for the Plaintif , and pleaded in arrest of Judgement , for that it is not expresly affirmed that the Plaintif was one of the Robbers , neither that he was a Horse-stealer precisely , but that he thought him to be one , and thought is free for every man , and no slander ; but this notwithstanding Judgement was given for the Plaintif , for thoughts tending to slander may not be uttered .

128.

NOta per Gawdy , Felony . That a man may be accessary to the stealing of his own goods , As if he confederate with an other to steal goods from his Bayly , to the intent to charge his Baily , this is Felony .

129.

THynn brought Debt against Cholmley for 300. l. Arrerages of a nomine poenae , Nomine poene against an Assignee . And declared of a Lease for years made by him to one Ager rendring Rent , and if default of payment be made of the said Rent at any day , Trin. 36. E. rot. 842. in which it ought to be paid , Quod tunc & toties the said Ager his Executors and Assignes , shall pay iij. s . iiij . d. pro quolibet die donec praedictus reddit . so behind shall be satisfied , And shewed how the Rent was behind and not paid by the space of two years , but did not shew that he demanded the Rent .

Jackson

The sum demanded is by computation more than should be true : But it seems that the Plaintif intends to have every iij. s . iiij . d. doubled for every day that the Rent is behind ; And if that be his intent , then he demands too little , Demand . for in 2 years that will be infinite .

Gawdy

He shall have but iij. s . iiij . d. for every day .

Fenner

I think that he ought to make a demand of the Rent ; Or otherwise he shall not have the nomine poene .

Gawdy

Nay truly , no more than in Debt upon an Obligation , and he cited 21 Hen. 6 21. Edw. 4. & 22. Edw. 4.

Fenner

Not like , for in debt upon an Obligation it is a duty , but otherwise of Rent ; and it was agreed that it lies against the Assigne in this case .

130.

HArbin against Barton . A Jointenants Lease to begin after his death . The case was , that two Jointenants for life , the one made a Lease for 80 years , to begin after his death , and after died . And whether the Lease is good against the Survivor or not , is the question . Gawdy said that the Lease was good , and cited 2 Eliz. 187.

Popham & Fenner è contra

After , this Lease was adjudged a good Lease by all the Judges of England ; for every Jointenant hath interest during his life , and the life of his companion . Ewdalls case . For it was Ewdalls and Paramores case , 31. Eliz. Where a Lease was made to the Father during his life , and the life of two of his Sons ; The Father assigned over , and adjudged to continue after the death of the Father . The like between Gutter & Locrofts , and between Orwin and others

131.

Baddock against Ja. S. and declared in an Action upon the case for words , Insufficient declar . for words . quod in praesentia diversorum leigiorum dixit de praefat. quer . haec verba Anglicana ( viz. ) Thy Father ( praedictum quer . innuendo ) is a thief ; for he stole my sheep . The Defendant justified the words , and at the Assis●s it was found for the Plaintif , and exception was taken in arrest of Judgement ; For that it is not shewed in the Declaration , Substance , Form in a Declaration . that the words were spoken to the son of the Plaintif .

Gawdy

I think it is good , for that the Defendant hath Justified the words spoken of the Plaintif , tota Cur. è contra . But if the Declaration be uncertain in form , yet the bar may make it good : But if the Declaration want substance , as in this case it doth , there the bar cannot make it good .

132.

RObert Sharples and Grace his Wife , Debt . brought Debt upon an Obligation against N. Hankinson , the Obligation boar date xiij . die Octobris , An. xxxj . Eliz. The Condition was , if N. H. did pay viij . l. of lawfull money , &c. in the year of our Lord God 1599. At or upon the 13th day of October , which shall next ensue the date herof . The Defendant pleaded that the day of payment was not come .

Gawdy

I think the day of payment is the 13th day of October , next after the date of the Obligation , And that these words in the year of our Lord God 1599. are meerly ●oid .

Fenner Justice

I think that the payment shall be in the year of our Lord 1599. For when a certainty appears , allbeit afterwards an incertainty come , yet that shall not hurt the certainty , but the first certainty shall stand , and the incertainty shall be void , And in this case the An. Do. 1599. is sufficicient certainty , and therfore the subsequent words are void .

Popham

I think that the payment shall be the 13 day of October prox . post An. Dom. 1599. For the words are , that the Obliger shall pay viij . l. of lawfull money of England in the year of our Lord God 1599. And if the payment shall be before this time , none may know but by the spirit of Prophecie , what money shall be current in England that year before the year come , and it is impossible to pay that before ; and if I am bound to enfeoff before Easter , Impossible condition void . him that comes first to Pauls upon Michaelmas day next , this is void , because it is impossible .

133.

BOyer brings a Writ of Error against Jenkings , Teste of the Venire mistaken . and the Error assigned was , for that the suit was commenced 35 Eliz. And the Venire fac . to try this issue bore , Teste 33 Eliz.

Gawdie

a Venire fac . which bears Teste 33 Eliz. cannot possible be to try an issue in 35 Eliz. which is two years after , and therefore here is no venire fac . and so holpen by the Statute of 18 Eliz. after Verdict .

Tunfield

This very case was Yorks case , adjudged in this Court that it was not holpen by the Statute .

134.

NOta per Cook Attorney Generall , Distinct grants . that the Lord Keep 〈◊〉 that is , was of Counsell in a case inter Harlakenden , and A. where it was adjudged , that if a man make a Lesse for years of Land , excepting the Wood , and after the Leasor grants the Trees to the Lessee , and the Lessee assigned over the Land to another , not making any mention of the Trees , now the Trees shall not pass to the Assignee , as annexed to the Land , for the trees and Land are not conjoined , for the Lessee had severall interests in them by severall Grants .

135.

THomas against King , Ejectment . and the Title of the Land was between Sir Hugh Portman and Morgan , And the Ejectment was supposed to be of 100. Acres of Land in Dale & Sale , and the Jury found the Defendant guilty of 10 Acres , but did not shew in what Town they lay , whereupon Haris Serjeant moved in arrest of Judgement , for that it doth not appear where the Sherif may put the Plaintif in Possession . Et non allocatur , for the party at his perill ought to shew unto the Plaintiff the right land , for which Judgement was given for the Plaintif .

136.

O Land against Bardwick , and the case was this , that a woman being possessed of Coppihold land for her Widowes estate sowed the land , Forfeiture of a particular tenant . and after took the Plaintif to Husband , and the Defendant being Lord of the Mannor entred and took the Corn , and the Husband brought an action of Trespass .

Clinch

I think , the Woman shall not have the corn , Lease by Tenant for life . but if the Wife had Leased the Land , and the Lessee had sown it , and after the Wife had maried , and the Lord had entred , yet the Lessee shall have the Corn. But in the case at bar , the Woman her self is the cause of the Determination of her estate , for she committeth the Act , and therefore shall not have the Corn , no more , Forfeiture . than if Lessee for life sow the Land , and after commit forfeiture , and the Lessor enter , in this case the Lessor shall have the Corn.

Fenner

At the first the State of the Woman was certain , viz. for her life , but yet determinable by Limitation if she mary . And if a man which hath an Estate determinable by Limitation sow the ground , and before severance the Limitation endeth the state , yet the party shall have the Corn which he hath sown . And in the case at the bar , there is no Forfeiture committed which gives course of Entry , nor no dishinheritance or wrong made to the Lord , as in the case where Tenant for life after his sowing commits forfeiture ; and if a man enter for breach of a Condition , Entry for condition broken . he shall have the Corn , and not he that sowed the same , for that his entry over-reacheth the state of the other ; but in this case the entry of the Lord doth not over●ach the Title of the Woman ; for he shall take that from the time that the Limitation endeth the Estate , and not by any relation before , For the Act of the Woman is Lawfull , and therefore no reason he shall lose the Corn ▪

Popham Chief Justice

It is cleare , Forfeiture . if Tenant for life sow and after commit a Forfeiture . And the Lessor enter , he shall have the Corne ; 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor , Surrender . or he to whom the Surrender was made , shall have the corn ; but if Tenant for life make a lease for yeares , Lease by Tenant for life . and after commit a Forfeiture , and the Lessor enter , now the Lessee shall have the Corn ; and in the case at bar , if the woman had Leased for yeares , and the Lessee had sowed the land , and after she had taken Husband , now the Lessee and not the Lord shall have the corn , for the act of the Woman shall not prejudice a third person , but when she her self is the party , Knowledge . and hath knowledge at the time of the sowing what acts will determine●er estate , then is it reason if she by her own act will determine her estate , that she shall lose the Corn : For if Lessee for life sow the land , Lessee praies in aid . and after pray in aid of a Stranger , now if the Lessor enter he shall have the Corn , And so if Tenant at Will sow the Land , Tenant at will determines his own Will. and after determine his own Will , the Lessor shall have the Corn , but otherwise it is if the state be determined by the act of law , or of a third person , so that no folly was in him that sowed .

Fenner

If the Husband and Wife were Lessees during the coverture , Determination by the act of the Law of a third perso● . and after the Husband sowes the land , and then the Husband and Wife are divorced , yet the Husband shall have the Corn , for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest . Divorce . So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest , and therefore no rason she should lose the Corn , for the Corn is a Chattell in her ; Grant . for if she had either granted them , or been outlawed after the sowing , and then had taken a Husband , Now the Queen in the case of the outlary , or the Grantee in the other case , and not the Lessor , Outlary . shall have the Corn.

Popham

I will agree the case of the divorce to be good Law : For that is not meerly the Act of the party , but allso of the Court ; but in the case at bar , the taking of the Husband is the Voluntary Act of the Woman per que .

And after Judgement was given against the Husband , which was the Plaintif .

137.

A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant , Statute Merchant . And the case was that Ascough came before the Maior of Lincoln , and put his seal to the same Statute , and the Kings seal was also put thereunto , but one part did not remain with the Maior , according to the Statute of Acton Burnell , And it was adiudged a good Obligation against the Partie , albeit it is no Statute .

Godfrey

I think the Judgement ought to be affirmed , and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent , and good to another , by 10. Eliz. but Popham and Fenner were of opinion , that it was hard to make it an Obligation , for in every contract , the intent of the parties is to be respected . Intent in every contract . And here the intent of the parties war , to make it a Statute , for the Kings seal is put to it , and a Statute needs no deliverie , butan Obligation ought to be delivered , otherwise it is not good , Delivery . and being void as a Statute , it is void in all ;

And after Judgement was given , That the first Judgement shall be eversed if other matter be not shewed .

128.

BOdyam against Smith in Trespas for the taking of an Ox in Dale . The Defendant justified the taking in Blacka●re , Heriot servise may be seised . and that it was his Freehold , for damage feasant . The Plaintif made a new assignment , That the place whereof he hath complained the taking to be is Green-acre in Dale , and the Defendant justified there for Herriot service . Seasure makes a seisin

Gawdy

I think the Lord may seise Heriot service , and when the Lord hath seised that is a seisin by the hands of his Tenant , Plowd . fo . 45. And for the last point , there is not any colour or question , for when in trespasse the Defendant pleads a plea in bar , New assignment . and then the Plaintiff makes a new Assignment , reason will that now the Defendant shall have answer to this new assigned wrong for per 27. H. 8. 7. after a new assignment , the old barre is waved , and out of the book , and the Defendant shall plead to the new assignment , as if he had never pleaded before .

Popham , Fenner & Clinch concordaverunt cum Gawdy .

139.

BAstard a good name of purchase , Bastard . for it is a sufficient denomination who shall take , per Popham & Fenner .

140.

GAwdy Justice said a man cannot be perjured by an innuend . Popham said , Perjury . that no man is to be touched for a perjurie upon the Statute of 5. Eliz if he be not deposed upon some matter depending in suit , in some Court of Record , and if he be perjured in circumstance , and not in the point in question , that is not materiall , and is not punishable by the Statute of 5. As if a man doe swear , that he saw such a man steal , and deliver such a deed , and when he did it , he was in blew coat , where indeed he was not in a blew coato .

141.

POpham Chief Justice said , there will be a difference between disjunctive absolute , and disjunctive contingent , as if a man be bound to pay ten pound , or to enfeoff one upon the returne of I. S. from Rome ; there if I. S. dye before he return from Rome , then the obligation is saved , although the ten pound be never payed : but if it be a voluntarie Act , as to pay you ten pound , or to enfeoff you before Michaelmas , there if the Obligor dye before Mic. yet hit Executors ought to pay the money .

A Large Table of all the Remarkable things conteined in the whole Book . A ABatement of a Writ , see Writ . Account , where an Acount lies , and where not . pag. 17 pl. 14. pag. 43. pl. 2 pag. 160. pl. 91. Action upon a case , see case and words . Action , who cannot have an Action , pa. 29. pl. 4. pag. 43. pl. 22. pag. 161. pl. 92. Where one may have one Action after another , and what Actions they must be , and where he shall have none . pag. 43. pl. 22. Who ought to joyn in an Action , who not , pag. 76. pl. 6. pag. 83. pl. 3. pag. 160. pl. 91. What Action Executors may have , what not , pag. 105. pl. 9. What Action lies against an Administrator , what not , pag. 106. pl. 11. pag. 119. pl. 4. Account . Against whom an Account lies , against whom not , 161. pl. 94. pa. 177. pl. 111. Administration and Administrator . When letters of Administration may be taken , pag. 31. pl. 2. What shall be said an Administration of goods , what not , pag. 152. pl. 79. Where it must be shewed , by whom Administration was granted , where not , pag. 96 , 97. pl. 13. Where one ought to Administer , where not , pag. 182. pl. 118. What Actions are maintainable , by , and against an Administrator , and what not , pag. 106. pl. 11. pag. 119 pl. 4. pag. 182. pl. 118. Advowson . Where an Advowson shall pass , where not , pag. 42. pl. 20. Admittance . What is a good Admmittance to a Copyhold , what not , pag. 95 , 96. pl. 9. Advantage . Where one shall not take advantage of a thing for lack of pleading it , pag. 106. pl. 11. pag. 161. pl. 92. Addition . What Additions do hurt , what not , pag. 123. pl. 7. 9. pl. 15 , Assets . What shall be Assets , and what not , pag. 58. pl. 15. pag. 7 80. pl. 15. pag. 88. pl. 14. pag. 115. pl 8. pag. 177. pl. 111. Alien . Who shall have an Aliens Lands , pag. 29 pl. 4. Amendment . Where a Record may be amended , where not , pag. 1. pl. 3. pag. 31. pl. 3. pag. 78 , 79. pl. 12. pag. 89. pl. 17. pag. 113. pl. 3. pag. 124. p. 10. pag. 133. pl. 32. pag. 136. pl. 36. 140. pl. 51. pa. 151 , 152. pl. 78. pag. 184 , 185. pl. 124. Amercement . For what things severall persons are to be amerced , pag. 3. pl. 7. pag. 4. pl. 7. pag. 24. pl. 4. pag. 1 11. pl. 17. Annuity . What Annuity is good , what not , pag. 7. pl. 11. pag. 8. pl. 11 pag. 30. pl. 1. pag. 64. pl. 2. pag. 83. pl. 1. Apportionment . Where a thing may be apportioned , where not , pag. 21. pl. 14. pag. 44. pl. 24. pag. 116. pl. 13. pag. 116. pl. 15. Appearance . How one ought to appear in Court , pag. 61. pl. 20. What is a good appearance , what not , pag. 67. pl. 12. pag. 118. pl. 1. Arbiterment . What shall be a good Arbiterment , and what not pag. 77. pl. 8. pag. 91 , 92. pl. 4. pag. 125. pl. 14. Arrest and arrest of Judgement . What is a good arrest , what not , pag. 30. pl. 5. What is good matter to arrest Judgement , what not , pag. 186 , 187. pl. 135. Assumpsit . What Assumpsit is good , what not , pag. 32. pl. 6. pag. 48. pl. 6. pag. 94 , 95. pl. 4. pag. 97. pl. 14. pag. 138 , 139. pl. 46. pag. 154. pl. 81. pag. 156 , 157. pl. 85. pag. 168. pl. 99. pag. 180. pl. 113. Where an Assumpsit is broken , and where not , pag. 146. pl. 65. Assise . Where an Assise lies , and where not , pag. 64. pl. 3. pag 154. pl. 80. Attornment . Where an Attornment is necessary , where not , pag. 38. pl. 14. What is a good Attornment , what not , pag. 55. pl. 13. pag. 95. pl. 9. pag 95 , 96. pl. 9. Attaint . Where an Attaint lies , and where not , pag. 42. pl. 18. Attorney . What Acts an Attorney may do without Warrant , and what not , pag. 49. pl. 2. Assignment . What may be assigned , and what not , pag. 89. pl. 16. pag. 186. pl. 134. Avowry . What is a good plea in an avowry , what not , pag. 65. pl. 6. Averment . Where an Averment is necessary , where not , pag. 71. pl. 15. pag. 97. pl. 14. pag. 99. pl. 2. pag. 111 pl. 18. pag. 123. pl. 8. pag. 155. pl. 83. Where an averment may be received , where not , pag. 107. pl. 12. pag. 129. pl. 22 Audita quaerela . Where an audita quaerela lies , where not , pag. 171. pl. 101. pag. 174 , 175. pl. 108. pag. 176. & pl. 111. Aide . What prayeing in aid is good , and what not , pag. 40. pl. 18. B. BAr , vide Plea : What shall be a good plea in bar , what not , pag. 43. pl. 22 , 44. pag. 43. pl. 21. pag. 42. pl. 22. pag. 43. pl. 22. Bargain and Sale . What shall be said a good bargain , what not , pag. 65 , 66. pl 7. pag. 69. pl. 13. Bayl. Where one must find Bayl , wherenot , pag. 127. pl. 19. What is good bayl , what not , pag. 139. pl. 48. Where the bayl is discharged , where not , pag. 174. 175. pl. 108. Battery . Where an Assault and Battery lies , where not , pag. 176. pl. 110. Benefice . What a Benefice is , and whence derived , pag. 169. 170. pl. 100. By-laws . What By-laws are good , and what not , and who they shall bind , and who not , pag. 79. pl. 13. C. CAse . For what words or other cause an Action upon the Case lies , for what not , pag. 25. pl. 5. pag. 36. pl. 10. pag. 48. pl. 5. pag 56. pl. 11. pag. 84. pl. 5. pa. 85. pl. 7. pa. 119. pl. 3. pag. 125. pl. 12. pag. 126. pl. 17. pag. 128. pl. 21. pa. 129. pl. 22. pa. 130. pl. 26. pag. 132. pl. 28. pag. 132 , 133. pl. 30 , 135. pl. 34. pl. 137. pl. 42. pa. 138. pl. 43. pa. 143. pl. 58. pa. 186. pl. 131. pa. 168 , 169. pl. 99. pa. 172. pl. 104. pa. 185. pl. 27. pag. 186. pl. 131. Cessavit . Upon what a Cessavit is grounded , and where it lies , and where not , pag. 18. pl. 14. pag. 23. pl. 14. Challenge . Where a Juror may be challenged , where not , pag. 23. pl. 2 , What shall be a principall Challenge , what not , pag. 42. pl. 19. What Challenge is good , what not , pag. 91. pl. 2. How a Challenge of a Juror shall be tried , pag. 91. pl. 2. Chancellour . The Solemnity of the Lord Chancellour in taking his place . pag. 46. pl. 27. Charge . Where land shall be said to be charged , where not , pag. 59 , 60 , pl. 17. pag. 62. pl. 22. pag. 65 , 66. pl. 7. pag. 116. pl. 13. pag. 119. pl. 5. pag. 168 pl. 98. Chattel . What shall be a Chattel , what not , pag. 189. pl. 136. Claim . Where Claim ought to be made , and where not , pag. 10. pl. 12. pag. 12. pl. 12. pag. 148. pl. 71. pag. 171 , 172. pl. 103. Common . Where Common is extinguished , where not , pag. 1. pl. 6. pag. 30. pl. 13 & 17. pag. 114 pl. 6. pag. 117. pl. 15. Where one shall have Common , and where not , pag. 38. pl. 13. pag. 117. pl. 115. Common is a thing entire , pag. 38. pl. 13. What is Common by common right , and what not , pag. 114. pl. 6. What acts a Commoner may do , what not , pag. 117. pl. 15. Condition . How a Condition shall be expounded , pag. 137. pl. 48. Condition . By what acts a condition is broken , by what not . pa. 177. pl. 14. pag. 117. pl. 111. pag. 184. pl. 122. Where a Condition is extinguished , and where not , pag. 17. pl. 14. pag. 18. pl. 14. pag. 19. pl. 14. pag. 20. pl. 14. pag. 21. 135. pl. 33. What Condition not to be performed , pag. 45. pl. 27. What shall be said a Condition , what not , pag. 74. pl. 1. pag. 131. pl. 27. pag. 134. pl. 33. pag. 152 , 153 , 154 , pl. 80. pag. 178. pl. 111. pag. 179. pl. 112. Conspiracy . Where an Action of Conspiracy lies , where not , pag. 51. pl. 14. Copyhold . Where a Copyhold is extinct , where not , pag. 39. pl. 9. Who may grant a Copyhold , who not , pag. 37. pl. 11. Confirmation . What shall be sayd a Confirmation , what not , pag. 26. pl. 6. pag. 26. pag. 29. pl. 4. pag. 156. pl. 84. Costs . Where there shall be treble Costs , pag. 12. pl. 12. Covenant . What words make a Covenant , what not , pag. 16. pl. 14. pag. 74. pl. 1. pag. 131 , 132. pl. 17. What shall be a breach of Covenant , what not , pag. 49. pl. 10. pag. 59. pl. 17. pag. 58. pl. 15. pag. 65 , 66. pl. 7. pag. 74. pl. 1. Covin . Where Covin must be pleaded , where not , pag. 8. pl. 17. Where Covin shall hurt , where not , pag. 177. pl. 111. County . What Counties may joyn in Trials , what not , pag. 28. pl. 1. Consideration . What is a good Consideration to ground a promise , what not , pag. 94 , 95. pl. 9. pag. 97. pl. 14. pag. 156 , 157. pl. 85. Common Intent . What Common Intent is , and where it may be , and where not , pag. 111. pl. 18. Consent . What shall be a Consent , what not , pag. 68. pl. 13. pag. 69. pl. 13. Covenant . How a Covenant shall be construed , pag. 71. pl. 16. Where an Action of Covenant lies ; where not , pag. 175 , 176. pl. 109. Construction . How doubtfull words shall be construed , pag. 98. pl. 3. Countermand , vide Revocation . What shall be a Countermand of a will , what not , pag. 93. pl. 6. Court . Where the Court may take notice of things ex officio , and where not , pag. 106. pl. 11. For what things an Action is to be brought in the Spirituall Court , for what at the Common Law , pag. 113. pl. 5. pag. 119. pl. 4. pag. 162. pl. 95. Who may keep Courts , and who not , pag. 117. pl. 15. Consideration . What is a good consideration to create an estate , what not , pag. 182. pl. 121. Contract . Who may be said privy to a Contract , who not , pag. 120. pl. 6. What is an usurious Contract , what not , pag. 128. pl. 20. How a Contract shall be construed , pag. 189. pl. 137. Corporation . Of what a Corporation doth consist , pag. 122. pl. 7. Contra formam collationis . Where a Contra formam collationis lies , where not , pag. 171. pl. 102. Consultation . Where a Consultation lies , and where not , pag. 127. pl. 18. Curtesie of England . Who shall be tenant by the curtesie , who not , pag. 14. pl. 13. pag. 81. 82. pl. 22. Custom . What shall be a good custom , what not , pag. 102 , 103. pl. 8. What a custom is , pag. 103. pl. 8. D. DAmages . Damages given in Battery , and how , pag. 33 , 34. pl. 8. Where Damages may be trebled , where not , pag. 41 , 42. pl. 18. Where Damages lie , where not , pag. 92. pl. 4. Day and Day in Court . Who hath Day in Court , who not , pag. 45. pl. 25. What time is Day , and what Night , pag. 60 , 61. pl. 18. Where the Day of doing a thing must be shewed , where not , pag. 89 , 90. pl. 9. Demand . Who ought to make a Demand , who not , pag. 17. pl. 14. pag. 56. pl. 10. pag. 75. pl. 3. pag. 129 , 130. pl. 25. What is a good Demand , what not , pag. 124. pl. 9. pag. 185. pl. 29. Where a Demand is to be made , pag. 137. pl. 41. pag. 185. pl. 129. Demurrer . What is a good Demurrer to an Evidence , what not , pag. 15 , 16. pl. 14. What is a good Demurrer to a Plea what not , pag. 52. pl. 1. What things are confessed by a Demurrer , what not , pag. 52. pl. 1. Debt . Where Debt lies , where not , pag. 30. pl. 1. pag. 31. pl. 7. What is a good bar in Debt , pag. 51. pl. 13. pag. 79 , 80. pl. 15. pag. 80. pl. 17. Deed. What is a good Deed , what not . pag. 167. pl. 66. Delivery . Where a Delivery of a thing is necessary , where not , pag. 189. 5. pl. 137. Detinue . Where an Action of Detinue lies , and where not , pag. 65. pl. pag. 152. pl. 79. Deed. What shall be a good Deed , what not , pag. 83. pl. 2. pag. 116. pl. 12. Devise . What things may be Devised , what not , pag. 84. pl. 6. What is a good Devise , what not , pag. 88. pl. 14. pag. 99. pl. 3. pag. 100. pl 3. pag. 111. pl. 15. pag. 129. pl. 23. pag. 139. pl. 47. pag. 149. pl. 74. pag. 150 , 151. pl. 77. pag. 153. pl. 80. pag. 184. pl. 122. pag. 185. pl. 125. Debt . Where an Actiou of Debt lies , where not , pag. 119. pl. 6. pag. 130. pl. 26. pag. 152. pl. 79. pag. 182. pl. 118 , 119. pag. 185. pl. 29. Declaration , What shall be a good Declaration , what not , pag. 97. pl. 12. pag. 109. pl. 15. pag. 111. pl. 18. pag. 115. pl. 19. pag. 155. pl. 84. 156. pag. 186 pl. 135. Devastavit . What shall be said a Devastavit , what not , pag. 113. pl. 8. pag 14. pl. 57. pag. 181. pl. 117. Determination . Where an estate is determined , where not , pag. 157 , 158. pl. 86. pag. 178. pl. 111. pag. 179. pl. 112. Dispenation . What is a good Dispensation to hold divers livings , and what not , pag. 162. pl. 97. Discontinuance . What shall be said a Discontinuance , what not , pag. 25. pl. 6. Where and when one may discontinue his Action , when not , pag. 53. pl. 3. Distress . Where a Distress lies for rent or service , where not , pag. 6. pl. 11. pag. 62. pl. 29. pag. 97. pl. 14. When a Distress ought not to be taken , pag. 56. pl. 10. pag. 140. pl. 50. How a distress must be used , pag. 100 , 101. pl. 5. Disseisor and Disseisin . Who shall be a Disseisor with force , who not , pag. 42. pl. 18. Who shall be a Disseisor , who not , pag. 82. pl. 24. Discent . What lands shall Discend to the heir , what not , pag. 84. pl. 6. pag. 88. pl. 14. Where one shall take by Discent , where not , pag. 139. pl. 47. Discharge . What is a good Discharge of a debt or duty , pa. 156. pag. 84. pl 174. pl. 108. Dower . What shall be a good plea in bar of Dower what not , pag. 4. pl. 8. pag. 27. pl. 8. pag. 108. pl. 13. pag. 148. pl. 71. Where the feme may waive her Dower , where not , pag. 108. pl. 13. E. EJectione firme . Who may have an Ejectione firme , and who not , pag. 87. pl. 12. Where Election of Action lyes , or other things where not , pag. 20. pl. 4. pag. 25. pl. 6. pag. 83. pl. 1. pag. 124. pl. 9. pag. 131. pl. 27. pag. 142. pl. 55. pag. 175. pl. 108. Elegit . Where an Elegit lies , where not , pag. 180. pl. 115. Enrolment . To what time an Enrolment of a Deed shall relate , pag. 18. pl. 14. What shall be a good Enrolment , and what not , pag. 162 , 163 , 164. pl. 97. Entirety and Severality . Where a thing is Entire , and where Severall , pag. 18. pl. 14. pag. 19. pl. 14. Entry . What Entry into lands is a ground for an Ejectione firme , pag. 5. pl. 10. Where an Entry is lawfull , where not . pag. 6. pl. 1. pag. 125. pl. 13. pag. 153. pl. 80. pag. 178. pl. 111. pag. 188. pl. 136. What Entry of Record is good , what not , pag. 91. pl. 3. Error . What is Error to Reverse a Judgement , what not , pag. 138. pl. 45 pag. 140. pl. 50. pag. 184 , 185. pl. 124. Who may reform Errors in Judgements , who not , pag. 14. pl. 63. Where a writ of Error lies , where not , pag. 181. pl. 116. Escape . Where an Escape lies , where not , pag. 180. pl. 114. Estople . What shall be an Estople to parties , what to strangers , pag. 43. pl. 22. pag. 53 , 54. pl. 5. Estrepment . Where an Estrepment lies , and where not , pag. 50. pl. 12. Evidence . Who must first give Evidence , pag. 27. pl. 2. What matter may be given in Evidence , what not , pag. 80 , 81. pl. 18. What is good Evidence , what not , pag. 124 , 125. pl. 11. Executor . What Acts done by an Executor are good , what not , pag. 2. pl. 4. pag. 141. pl. 54. pag. 184. pl. 25. What things an Executor shall have , what not , pag. 64. pl. 2. pag. 98. pl. 17. pag. 112. pl. 19. pag. 129. pl. 24. pag. 143. 144 , 145. pl. 60. pag. 84. pl. 123. pag. 185. pl. 125. What Actions an Executor may have , and what not , pag. 90. pl. 19. pag. 105. pl. 9. What Actions may be brought against an Executor , what not , pag. 106. pl. 11. pag. 154. pl. 81. Exchange . What is a good Exchange , what not ▪ pag. 27. pl. 8 Extinguishment . By what Acts a thing may be extinguished , pag. 43. pl. 24. pag. 53. pl. 4. pag. 92 , 93. pl. 5. pag. 93 , 94. pl. 7. pag. 84. pl. 4. pag. 107. pl. 12. pag. 114. pl. 6. pag. 116. pl. 13. pag. 116. pl. 15. pag. 125 , 126. pl. 16. pa. 140. pl. 73. pag. 156. pl. 84. pag. 157. pl. 86. pag. 181. pl. 116 , 117. Examination . Where one shall ●e examined , where not , pag. 64 , 65. pl. 4. Exposition . How Statutes shall be expounded , pag. 137. pl. 40. How a condition shall be expounded . pag. 137. pl. 40. Execution . Where Execution shall issue forth , where not , pag. 120. pl. 5. What is a good plea in bar of an Execution , what not , pag. 170. pl. 101. pag. 174 , 175. pl. 108. pag. 108. pl. 114. What is a good Execution , what not , pag. 180. pl. 115. Extent . Where a Statute shall be Extended , where not , pag. 120. pl. 5. What is a good extent , what not , pag. 161. pl. 92. Exeption . Where a bill of exception lies , where not , pag. 137. pl. 39. F FAlsifying . What falsifying is , and who may falsifie , and who not , pag. 8. pl. 11. pag 26. pl. 7. pag. 96. pl. 1. pag. 87. pl. 12. Fee Simple Divers sorts of Fee Simple , pag. 9. pl. 12. What words will create a fee simple , what not . pag. 135. pl. 33. pag. 183. pl. 211. Feem Covert . What Acts done by seem covert are void , what not , pag. 13. pl. 13. 14. What Acts done to a feem covert are good , what not , pag. 13. pl. 13. Felony . What shall be accounted felony , what not , pag. 72. pl. 18. pag. 129. pl. 24. pag. 185. pl. 28. Feoffment . What is a good feoffment , what not , pag. 92 , 93. pl. 5. Fine of lands , &c. What right in lands a Fine shall bar , what not , pag. 6. pl. 11. pag. 107. pl. 12. pag. 110. pl. 15. pag. 148. pl. 71. pag. 162. pl. 96. pag. 171 , 172. pl. 103. pag. 181. pl. 116. How a Fine shall inure whereno use limited , pag. 67 , 68 , 69 , 70. pl. 13. Of what a Fine may be levied , of what not , pag. 107. pl. 12. Fine and Imprisonment . For what offences a Court may Fine and Imprison pag. 30. pl. 5. pag. 34. pl. 8. pag. 93. pl. 5. What offences are Finable , and what not , pag. 146. ▪ pl. 63. pag. 165. pl. 97. 182. pl. 120. Forfeiture . By what acts a lease for years , or other estate shall be forfeited , by what not . pag. 40. pl. 18. pag. 41. pl. 18. pag. 158. pl. 86. By what acts an Obligation shall be forfeited , by what not , pag. 49 , 50. pl. 10 , & 11. What shall be forfeited to the King by Utlawry , what not , pag. 55. pl. 8. pag. 103 , 104. pl. 9. pag. 105. pl. 9. pag. 189. pl. 136. Where one shall forfeit his goods , where not , pag. 135. pl. 35. By what acts a copyhold is forfeited , by what not , pag. 143. pl. 59. pag. 188. pl. 136. By what acts a liberty may be forfeited , by what not , pag. 146. pl. 63. Fresh suite . Where fresh suit is required , and where not . pag. 60 , 61. pl. 18. Fraud vide covin . What shall be said fraud , what not , pag. 116. pl. 12. pag. 118. pl. 2. pag. 176. &c. pl. 111. G GRrants of the King , and common persons : Where an incertain grant may take effect afterwards , pag. 7. pl 11. Whaet grant by the King is good , what not , pag. 7. pl. 11. What grant by Tenant in tail shall bind the issue , pag. 7. pl. 11. What things are grantable over , what not , pag. 31. pl. 1. pag. 74 , 75. pl. 2. pag. 81. pl. 18. pag. 112. pl. 19. pag. 117. pl. 15. pag. 184. pl. 123. pag. 186. pl. 134. What grant of a reversion is good , what not , pag. 26. pl. 7. What construction grants shall have , pag. 121. pl. 7. H HEretick . Who is an heritick , who not , pag. 36. pl. 10. Heir . What things the Heir shall have , what not . pag. 98. pl. 17. pag. 129. pl. 24. Heriot . What Remedy the Lord hath for his Herriot . pag. 189. pl. 138. Homage . Where one shall not do Homage , pag. 14. pl. 13. Hue and cry . Where Hue and cry is requisite , where not , pag. 56. pl. 10. pag. 60 , 61. pl. 18. Hundred . Where an Action lies against an Hundred , where not , pag. 55 pl. 9. pag. 56. pl. 10. pa. 58. pl. 16. pag. 60 , 61. pl. 18. pa. 70. pl. 74. pag. 86. pl. 11. pag. 148. pl. 69. Husband and Wife . What Acts of the Husband shall bind the Wife , and what not . pag. 13 , 14. pl. 13 , 14. In what Actions the Husband and Wife may joyn in , and what not , pag. 52. pl. 1. pag. 159. 160. pl. 91. What Acts the wife may do without her Husband , what not . pag. 110. pl. 15. pag. 160. pl. 91. What Acts the husband is compellable to do for the Wife , pag. 127. pl. 19. I IEofail . What things are helped by the Statute of Jeofailes , what not , pag. 38. pl. 10. pag. 47 , 48. pl. 7. pag. 49. pl. 9. & 16. pag. 90. pl. 1. pa. 109. pl. 157. pag. 126. pl. 16. pag. 159. pl. 89. pag. 181. pl. 32. How the Statute of Jeofailes shall be interpreted , pag. 48. pl. 5. Imprisonment . By what warrant one shall be said to be committed by , what not , pag. 133. pl. 31. Inquest . What Inquest is good , what not , pag. 172 , 173. pl. 105. Infant . What Acts of an Infant shall bind him , and what not , pag. 168. pl. 99. pag. 169. pl. 9. Incumbent . Who shall be an Incumbent in a Church , who not , pag. 162. &c. pl. 97. Interpretation . How a Proviso shall be interpreted , pag. 116 , 117. pl. 16. Indictment . What is a good Indictment , and what not , pag. 132. pl. 29. pag. 162. pl. 95. Institution . What is a good Institution to a church , what not , pag. 146. pl. 64. Interest . What shall make an interest in Land , what not , pag. 59. pl. 17. Who have an interest in Land , and who not , pag. 78. pl. 9. Intendment . How Intendments shall be taken to inure , pag. 70. pl. 13. Jointenants . Who shall be Jointenants , who Tenants in common , pag. 28. pl. 2. pag. 29. pl. 2. pag. 141. pl. 53. Jointure . Where a woman may refuse her Jointure , where not , pag. 84 , 85. pl 6 Issue and Issues . What shall be a good issue , what not , pag. 39. pl. 16. Where an issue ought to be tried , where not , pag. 61. pl. 19. How issues ought to be levied , pag. 140. pl. 50. Jury . Who is a sufficient Juror , and who not , pag. 136 , 137. pl. 39. Judgement . How a Judgement ought to be entred , pag. 41. pl. 18. pag. 42. pl. 2. pag. 64. p. 3. Where Judgement shall be for the Plaintif , where for the Defendant , pag. 73. pl. 19. What Judgement is good , what not , pag. 119. pl. 4. pag. 162. pl. 95. How a Iudgement ought to be avoided , pag. 128. pl. 20. Iurisdiction . Where the temporall court hath Iurisdiction , where not , pag. 149 , 150. pl. 75. L LApse . Who shall present by Lapse , who not , pag. 78. pl. 107. pag. 83 , 84. pl. 4. pa. 86. pl. 9. Lease . Where a Lease shall be determined , and where not , pag. 71. pl. 16. pag. 179. pl. 112. What Leases are good , what not , pa. 120. pl. 7. pa. 138. pl. 44. pa. 154 , 155. pl. 82. pag. 157. 158. pl. 86. pag. 162. &c. pl. 97. pa. 171. pl. 102. pag. 173. p. 106. pag. 186. pl. 130. Levy . What is a good Levy , what not , pag. 140. pl. 50. Liberate . Where a Liberate shall issue forth , where not , pa. 119. pl. 5. Licence . What is a good Licence to do a thing , what not , pag. 163. pl. 97. 166. pl. 97. Livery and seisin . How a Livery and seisin must be defeated . pag. 178. pl. 111. What Livery and seisin is good , what not , pag. 1. pl. 4. pag. 13. pl. 13. Limitation . Where one shall take Lands by way of Limitation , where not , pag. 134 , 135. pl. 33. pag. 152 , 153 , 154. pl. 80. What words make a Limitation , what not , pag. 179. pl. 112. M Maintenance . What shall be said Maintenance , what not , pag. 101 , 102. pl. 6. pag. 113. pl. 1. pag. 118. pl. 120. Where an Action for maintenance must be brought where not , pa. 113. pl. 1. Melius inquirendum . For what cause a melius inquirendum issueth forth , pag. 2. pl. 14. Mean profits . Where one shall answer the mean profits , and where not , pag. 118 , 119. pl. 2. Member . What is a member of a thing , what not , pag. 105 , 106. pl. 10. Misnameing . What Misninameing shall hurt , what not , pa. 120 , 1211 , 122 , 123. pl. 7. Monstrans de droit . Where one is put to his Monstrans de droit , where not , pag. 125. pl. 13. Murder . What shall be accounted murder , what not , pag. 107. pl. 110. N Notice . Where Notice ought to be given of a thing to be done , and where not , pag. 34. pl. 10. pa. 139 , 140. pl. 49. pa. 141. pl. 52. pag. 146. pl. 64. pag. 147. pl. 67. What shall be a good Notice , what not , pag. 147. pl. 67. Nonsuit . Who may be Nonsuit , who not , pag. 53. pl. 3 Nonresidency . What is Nonresidency , what not , pag. 169 , 170. pl. 100. O Obligation . What Obligation is good , and what is not , pag. 61. pl. 20. pag. 54. pl. 6. pag. 66. pl. 9. pag. 186 , 187. pl. 132. pag. 189. pl. 137. Occupancie . Where there shall be an occupancy , where not , pag. 157. 158. pl. 86. Office . How Offices shall be taken to inure in the case of the King , and how in the case of a Common person , pag. 20. pl. 14. pag. 21. pl. 14 , & 15. What Offices may be sold , what not , pag. 180. pl. 113. Ordinary . When the Ordinary shall be a disturber , when not , pag. 35 , pl. 10. Oyer of a Deed. Where one shall have Oyer of a Deed , where not , pa. 150. pl. 76. P. PArtition . What Partition of lands is good , what not , pa. 28. pl. 2. pa. 156. pl. 10. Payment . What shall be a good Payment , what not , pa. 73. pl. 20. pa. 135. pl. 33. pag. 176. &c. pl. 111. pag. 186. pl. 132. Where one may plead payment in a discharge , of a debt , where not , pa. 73 , 74. pl. 22. How payment shall be made where no time is expressed , pag. 116. pl. 11. Where rent is to be payd , pag. 124. pl. 9. Patron and Patronage . By what acts a Patronage is gained and continued , pag. 104. pl. 9. Pardon . How the Kings pardon shall be construed , pag. 114 , 115. pl. 7. Parson . Where a man shall be Parson of a Church , where not , pa. 162 , &c. pl. 97. Perjury . For what Perjury a bill in the Star-chamber did lie , for what not , pag. 51. pl. 13. What shall be accounted Perjury , what not , pag. 189. pl. 40. Petition . How a Petition for lands to the King must be framed , pag. 10. pl. 12. Peremptory . What things shall be peremptory , what not , pag. 90. pl. 1. Performance . What is a good performance of a thing , what not , pag. 156. pl. 84. Penalty . Who is liable to the penalty of a Statute , and who not , pag. 145. pl. 62. Plea . How one ought to plead to an action , pag. 57. pl. 12. pag. 73. pl. 20. pag. 87. pl. 12. pag. 127. pl. 18. Where one may plead a Record specially , pag. 104. pl. 9. Plea . What shall be a good Plea , what not , pag. 2. pl. 5. pag. 35 , 36. pl. 10. pag. 43. pl. 21. pag. 50. pl. 11. pag. 52. pl. 1. pag. 5● , 53. pl. 2. pag. 4 ▪ 5. pl. 9. pag. 35. pl. 10. pa. 36. pag. 73. pl. 20. pl. 22. pa. 93. pl. 22. pag. 81. pl. 20 , 21. pag. 88. pl. 13. pag. 97. pl. 13. pag. 102 , 103. pl. 8 pag. 106. pl. 11. pag. 111. pl. 18. pag. 119. pl 2. pag. 136. pl. 38. pag. 142. pl. 57. pag. 155. pl. 83. pag. 155. pl. 84. pag. 158 , 159. pl. 88. pag. 159. pl. 90. pag. 167. pl. 66. pag. 174. pl. 107. pag. 189 pl. 138. By what a Plea shall be tried , pag. 50. pl. 11. Place . Where the place where a thing was done must be shewed , and where not , pag. 54. pl. 6. pag. 89 , 90. pl. 19. Plurality . Where plurality of livings is good , where not , 162 , &c. pl. 97. Possession . Who hath the possession of goods , who not , pag. 67. pl. 10. pag. 82. pl. 18. Where one shall be said to be in possession of lands , where not , pag. 108. pl. 13. Posse comitatus . Where the Sherif may have a Posse comitatus to execute a Writ , pag. 79. pl. 14. Pound . Where a Distress is to be Impounded , and where not , pa. 100 , 101. pl. 5. Prohibition . Where a Prohibition to the Spirituall Court doth lye , and where not , pag. 58. pl. 15. pag. 113. pl. 2. pag. 113. pl. 5. pag. 127. pl. 18. pag. 141. pl. 54. pag. 149 , 150. pl. 75. pag. 161. pl. 93. Praecipe . Against what Tenant a Praecipe lyes , against what not , pag. 82. pl. 24. Predecessor and Successor . What acts of the Predecessor shall bind the Successor , and what not , pag. 8. pl. 11. Prescription . What Prescription is good , and what not , pag. 38. pl. 13. pag. 73. pl. 21. pag. 108. pl. 13. pa. 117 , 118. pl. 15. pag. 132 , 133. pl. 30. pag. 180. pl. 113. Process . To whom Process must be directed , to whom not , pag. 42. pl. 19. Priority . Where Priority shall be preferred , pag. 7. pl. 11. Proviso . What a Proviso is , pag. 18. pl. 14. pag. 20. pl. 14. How a proviso shall be interpreted , pag. 116 , 117. pl. 14. pag. 130 , 131 , 132. pl. 27. pag. 163. pl. 97. What is a good proviso , what not , pag. 174. pl. 106. Privilege . Where privilege of Court lies , pag. 33 , 34. pl. 8. Presentation . Who shall present by lapse , who not , pag. 78. pl. 10. pag. 83 , 84. pl. 4. pag. 86. pl. 9. What presentation is good , what not , pag. 104 , 105. pl. 9. pag. 162 , &c. pl. 97. Prerogative . Prerogative what it is , and why due to the King , pag. 17. pl. 24. pag. 19. pl. 14. pag. 22. pl. 14. Where the Kiug shall have his prerogative , where not , pag. 83 , 84. pl. 4. pag. 86. pl. 9. pag. 124. pl. 9. Property . Who hath a property in goods , who not , pa. 72. pl. 18. pag. 184. pl. 123. By what acts the property of things may be altered , by what not , pag. 79 , 80. pl. 15. Presidents . Of what validity prefide●ts are , pag. 112. pl. 18. Privity . Where there shall be said to be privity , and where not , pag. 120. pl. 6. Proclamations . How proclamation upon a summons ought to be made , pa. 128 , 129. pl. 22. Profits of lands or other things . Who shall have the profits of lands , who not . pag. 143 , 144. pl. 60. pag. 145. pl. 60. pag. 188. pl. 136. Principall and Accessory . Where one shall be Accessory , where not , pag. 147. pl 67. pag. 185. pl. 27. Purchase . Where one shall take by purchase , where not , pag. 139. pl. 47. What is a good name of purchase , what not pag. 189. pl. 139. Publication . What is a good publication of a Will , what not , pag. 150 , 151. pl. 77. Q. QUalif●cation . Who may Qualifie a parson to hold two livings , and what shall be a good Qualification , and what not , pag. 162 , &c. pl. 97. R. REsceit . Where the Tenant shall be received , where not , pag. 60. pl. 17. pa. 65. pl. 11. pag. 87. p. 12 , Who may have Rent of land , who not , pag. 60. pl. 17. pag. 75. pl. 3. pag. 108. pl. 14. pag. 148. pl. 68. Reservation . What shall be a good Reservation , and what not , pag. 63. pl. 23. pag. 75. pl. 3. Request . Where a Request to doe a thing is necessary , where not , pag. 63. pl. 1. pag. 117. pl. 14. Redisseisin . Where a Redisseisin lies , where not , pag. 62. pl. 3. pag. 76. pl. 7. Recitall . What Mis-recitall , and Non-recitall is helped by the Statute , and what not , pag. 23. pl. 2. pag. 24. pl. 2. pag. 172 , &c. pl. 105. Recompence . What a Recompence invalue is , pag. 28. pl. 8. Recovery . What interest in land a recovery shall bind , and what not , pag. 6. pl. 11. pag. 7. pl. 11. pag. 26. pl. 7. pag. 27. pl. 7. pag. 102. pl. 7. How a Recovery differs in its operation from a Fine , pag. 12. pl. 12. Who shall be bound by a Recovery , who not , pa. 86. pl. 8. pa. 105. pl. 9. pa. 181. pl 116. Relation . To what time the inrolment of a Deed shall relate , pag. 18. pl. 14. To what time induction into a living relates , pag. 162 , &c. pl. 97. How things done shall relate , pag. 167. pl. 66. How words shall relate , pag. 173. pl. 105. Remaiuder . What Remainder is chargeable with a rent , what not , pag. 5. pl. 11. What acts shall inure to one in Remainder , pag. 95. pl. 9. By what acts a Remainder is destroyed , by what not , pag. 102. pl. 7. What is a dry Remainder , and why so called , pag. 119. pl. 5. Rent . What is a good Rent-charge , and what not , pag. 8. pl. 11. pag. 13 , 14. pl. 10. Where Rents are severall , and where intire , pag. 16. pl. 14. A rent seck , why so called , pag. 27. pl. 14. Where rent shall be apportioned , where not , pag. 29. pl. 3. By what words a Rent shall pass by , what not , pag. 35. pl. 9. Replication . What shall be a good Replication , what not , pag. 154. pl. 89. Retorn . What retorn of the Sherif is good , what not , pag. 1. pl. 2. pag. 97. pl. 16. pag , 111. pl. 17. pag. 128 , 129. pl. 22. pag. 185. pl. 26. Refusall . Where one may refuse a thing , where not , pag. 84. pl. 6. pag. 108. pl. 13 What shall be a good Refusall of a thing , what not , pag. 84 , 85. pl. 6. Reversion . Where a Reversion will pass , where not , pag. 39. pl. 14. Revocation . What shall be a good Revocation of a Will , what not , pag. 32. pl. 7. pag. 33. pl. 7. pag. 93. pl. 6. pag. 109 , 110 , 111. pl. 16. Record . Where a Record may be amended , where not , pag. 78 , 79. pl. 12. pag. 124. pl. 10. pag. 133. pl. 32. pag. 136. pl. 36. pag. 151 , 152. pl. 78. Where a Record may be removed out of one Court into another , and where not , pag. 151 , 152. pl. 78. Remitter . What shall be a Remmitter , what not , pag. 92 , 93. pl. 5. Restitution . To whan things one shall be restored upon reversall of an Utlawry , to what not , pag. 103 , 104. pl. 9. Release . What is a good Release , what not , pag. 112. pl. 19. pag. 141. pl. 54. pag. 166. &c. pl. 66. Reviver . By what Acts a thing may be revived by , what not , pag. 125. pl. 15. Robbery . For what Robbery an Action lies against the Hundred , and for what not , pa. 60 , 61. pl. 18. pa. 55. pl. 9. pa. 56 : pl. 10. pa 24. pl 3. pa. 70. pl. 14. pa. 86. pl. 11. What is a Robbery , what not , pag. 86. pl. 11. S SAtisfaction . What is a good satisfaction of a debt , and what not , pag. 57. pl. 14. pag. 80. pl. 17. Sale . What Sale of things is good , what not , pag. 140. pl. 50. pag. 172. &c. pl. 105. pag. 180. pl. 113. Scire facias . Where a Scire facias lies . where not , pag. 44 , 45. pl. 25. pag. 55. pl. 8. pag. 170. pl. 101. Scismatick . Who is a Scismatick , who not , pag. 35. pl. 10. pag. 36. Scandalum magnatum . For what words a scandalum magnatum lies for , what not , pag. 115. pl. 10. Seisure . Where one may seise a thing , where not , pag. 97. pl. 14. pag. 189. pl. 138. Services . Where Services are due , where not , pag. 119. pl. 5. Sherif . The power of the Sherif in executing writs , pag. 79. pl. 14. Soak . What a soak is , and how it is created , pag. 105 , 106. pl. 10. Statute . To what forces the Statute of 8 Hen. 6. doth extend . pag. 42. pl. 18. What is a good Statute Merchant , &c. what not , pag. 189. pl. 137. Steward . What steward of Courts cannot hold Courts alone , pag. 2. pl. 4. Summons . What summons is good , what not , pag. 61. pl. 19. pag. 128 , 129. pl. 23. Surplusage . What surplusages do hnrt , what not , pag. 11. pl. 14. What shall be said a snrplusage , what not , pag. 41. pl. 18. pag. 168. pl. 98. Surrender . What is a good surrender of Lease for years , what not . pa. 47. pl. 3. What is a good surrender of a copihold , what not , pag. 95 , 96. pl. 9. Suspension . By what acts a rent or other thing is suspended , by what not , pag. 19. pl. 14. & 1. pag. 80 , 81. pl. 18. pag. 89. pl. 18. pag. 114. pl. 6. Supersedeas . What is a supersedeas , what not , pag. 96. pl. 10. pag. 146. pl. 64. pag. 185. pl. 25. Where a supersedeas is grantable ▪ where not , pag. 180. pl. 115. Survivor . Where is , and where there is no survivorship , pag. 29. pl. 4. pag. 148 , 149. pl. 72. pag. 183 , pl. 121 pag. 186. pl. 130. What thing may survive , what not , pag. 2. pl. 4. pag. 112. pl. 19. Suit . Of what force Acts done hanging a suit are , and of what not , pa. 104. pl. 9. T TAil . Where an estate tail cannot be discontinued , pa. 9. pl. 12. pa. 10 , 11. pl. 11. What words create an Estate tail , what not , pag. 134 , 135. pl. 33. Tender . What is a good Tender of a thing , what not , pag. 98. pl. 17. pag. 124. pl. 9. pag. 177. pl. 111. Where a tender is requisite , where not , pag. 137. pl. 41. pag. 142. pl. 55. Tenant . What Acts a Tenant at will cannot do , pag. 67. pl. 10. Who are Tenants in Common and who jointenants , pag. 68. pl. 13. pag. 86. pl. 14. pag. 183. pl. 121. Who may be a tenant to a praecipe , who not , pag. 82. pl. 24. Who is Tenant in fee or for life , pag. 183. pl. 121. Title . What shall be a good title to land , what not , pa. 60. pl. 17. pa. 65 , 66. p. 7. Who ought to make a title , who not , pag. 65. pl. 6. pag. 65. pl. 11. How one ought to make a title , pag. 133. pl. 30. Where afine shall bind a title to land , where not , pag. 171. 172. pl. 103. Triall . Where a triall ought to be , and where not , pag. 61. pl. 19. pag. 18. pl. 1. pag. 180. pl. 113. What trialls are helped by the Statute of Jeofailes , and what not , pag. 28. pl. 1. pag. 47. pl. 5. What things are triable by the spirituall Court , what not , pag. 36. pl. 10. What triall ought to be by the Country , what not , pa. 67. pl. 12. How a challenge to a Iuror shall be tried , pag 91. pl. 2. Where there may be a new triall , where not , pag. 136. pl. 37. What triall is good , what not , pag. 163. pl. 97. Traverse . What shall bee a good Traverse , what not , pag 62. pl. 21. pag. 31. pl. 5. pa. 45. pl. 4. & 26. pa. 47. pl. 3. pa. 67. pl. 11. pa. 96. pl. 10. pa. 103. pl. 8. Trespass . What is a good plea in bar to an Action of Trespass , pa. 43. pl. 22. For what an Action of Trespass lies for , what not , pag. 66 , 67. pl. 10. pag. 90. pl. 19. pag. 152. pl. 79. pag. 188. pl. 136. Where an Action of Trespass vi & armis lies , where not , pa. 72. pl. 17. pa. 72. pl. 18. pag. 77 , 78. pl. 9. pag. 144. pl. 60. pag. 142. pl. 79. pag. 176. pl. 110. Trust . Where one is bound to take notice of a trust , where not , pa. 147. pl. 67. Trover and conversion . Where a Trover and conversion lies , where not , pa. 89 , 90. pl. 10. pag. 152. pl. 79. pag. 155. pl. 83. What is a c●nversion of goods , what not , pag. 15● . pl. 79. Time . What shall be accompted atime convenient to do a thing , and what not , pag. 76 , 77. pl. 8. Tithes . Of what things tithes shall be paid , of what not , pag. 127. pl. 18. pa. 145. pl. 61. pa. 147. pl. 66. pag. 161. pl. 93. What shall be a good modus of tithing , what not , pag. 147. pl. 66. What tithes the Parson shall have , and what the Vicar , pa. 149 , 150. pl. 75. V Valne . What shall be said to be the Value of lands , pag. 66. pl. 8. Variance . What is a materiall variance from a thing recited , and what not , pa. 121 , 122. pl. 7. pa. 140. pl. 51. pag. 173. pl. 105. Venue . Whence the Venue shall come , whence not , pag. 37 , 38. pl 12. pa. 88. pl. 15. pa. 114. pl. 4. pa. 158. pl. 87. Where a new Venire is to be awarded , where not , pa. 38. pl. 12. pa. 136. pl. 37. What Venire facias is good what not , pag. 186. pl. 133. Verdict . Where the Jury may find a speciall verdict , pag. 24. pl. 2● ▪ What a verdict is , pag. 49. pl. 9. What is a good Verdict , & what not , pa. 72 , 73. pl. 19. pa. 93. pl. 4. 〈…〉 101. p. 92. What Verdict finds for the plaintif , what for the defendant , pag. 160 , 161. pl. 92. Vesting . How a thing Vested lawfully , must be devested , pag. 6. pl. 11. What shall be a good Vesting , what not , pag. 95. pl 9. pag. 184. pl. 123. View . What shall be put in view in an Assise , what not , pag. 7. pl. 11. Where the View shall not be granted , pag. 44. pl. 23. Voucher . What shall be a good Voucher to warranty , what not , pag. 76. pl. 5. Use . What shall be a good limitation of Uses , and what not , and how they shall inure , pag. 12 , 13 , 14 , 15. pl. 13. pag. 67 , 68 , 69 , 70. pl. 13. pag. 82. pl. 23. pag. 147. pl. 67. pag. 174. pl. 106. Who may limit a Use , who not , pag. 67 , 68 , 69 , 70. pl. 13. What a Use is , pag. 68. pl. 13. pag. 69. pl. 13. Out of what a Use ariseth , pag. 68. pl. 13. Usury . What is an Usurious contract , what not , pag. 128. pl. 28. Utlary . Where an Utlary is ceroneous , where not , pag. 97. pl. 16. pag. 103 , 104. pl. 9. pag. 148. pl. 70. What thirgs are forfeited by Utlary , what not , pa. 103 , 104. pl. 9. pa. 189. pl. 136. W. WAst . Where an Action of Wast lies , where not , pag. 63. pl. 23. pag. 1. pl. 1. pag. 31. pl. 5. pag. 72. pl. 17. pag. 157. pl. 86. pag. 108. pl. 114. Who may punish Wast , who not , pag. 7. pl. 11. Wager of Law . How Wager of Law may be avoided , pag. 51. pl. 13. Where one may wage his Law , and where not , pag. 65. pl. 5. pag. 75 , 76. pl. 4. pag. 80. pl. 17. Warrant . What entry of a Warrant of Attorney is good , what not , pag. 91. pl. 3. Waiver . Where one may waive a thing , and where not , and how , pa. 135. pl. 33. Ward . Where one shall be in Ward , where not , pag. 149. pl. 73. Will and Testament . Where a Will may be good in part onely , pag. 33. pl. 7. What is a good publication of a Will , what not , pag. 150 , 151. pl. 77. How a doubtfull Will shall be construed , pag. 100. pl. 3 , 4. pag. 109. pl. 15. pag. 110. pl. 15. pag. 182 , 183. pl. 121. What Will t s good , what not , pag. 109. pl. 15. pag. 150 , 151. pl. 77. Where lands shall pass by a Will , where not , pag. 150 , 151. pl. 77. Words . For what Words an Action upon the case lies , for what not , pag. 48. pl. 7. pag. 84. pl. 5. pag. 85. pl. 7. pag. 115. pl. 10. pag. 119. pl. 3. pag. 125. pl. 12. pa. 126 pl. 17. pag. 128. pl. 21. pag. 130. pl. 16. pa. 132. pl. 28. pag. 135. pl. 34. pa. 137. pl. 42. pag. 138. pl. 43. pag. 143. pl. 58 pag. 172. pl. 104. How words are to be construed , pag. 98. pl. 3. pa. 185. pl. 27. pa. 186. pl. 131. Writ . What shall abate a Writ , what not , pag. 77 , 78. pl. 9. pag. 46. pl. 2. pag. 49. pl. 9. pag. 84. pl. 4. pag. 86. pl. 10. pag. 87. pl. 12. pag. 98. pl. 18. pag. 106 , 107. pl. 11. pag. 126. pl. 16. pag. 161. pl. 92. pag. 177. pl. 111. Where a Writ shall be abated in all , and where in part only , pag. 80. pl. 16. pag. 85 , 86. pl. 7. pag. 87. pl. 12. Where a Writ is well executed , where not , pag. 142. pl. 56. pag. 185. pl. 26. Where one must maintain his Writ , where he need not , pag. 98. pl. 1. When a Writ is depending , when not , pag. 104. pl. 9. FINIS .