Defendant pleaded non Assumpsit and the issue was found for the Plaintif and now Gawdy spoke iâ— 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 keâ—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 VVindham 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 eâ—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 Verdicâ—â— 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 VVindam 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 Assigâ—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 VVindham 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 aâ—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 theâ— by assâ—â—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 Recordâ—◠〈…〉 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
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 tâ— 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. Mariâ—â— 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
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 Lâ—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 Râ—plevin Boss against Huntley 31 3 Trespass VVilgus against VVelch 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 VVild 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 VVallinger 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 VVhorwood 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
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 injuriâ— 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 Curâ—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 hathâ— 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
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 Waâ—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 VValmisley 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
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 â—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 faciaâ— 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 Râ—theâ—â—â— 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 devastavâ—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 VValtons 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 vvas 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 Provisâ— 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 â—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 wâ—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
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 beatâ—â— Mariae brought an action by name of Prior beatâ—â— 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 â—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 VVelcome Error Executor of Anthony VV. Executor of John VVelcome brought a Writ of Debt against S. S. in the Common-place and Judgement was given and entred quod praedictus Johannes VVelcome recuperet where it should have been quod praedictus Thomas VVelcome 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 paâ—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 â—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 mâ—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 dâ—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 founâ— 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 Pembrâ—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 Plaâ—ntif was seised in Fee of the Mannor of D. in comâ—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 â—â—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
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 opiniâ— 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 Arrerageâ— 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
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 Assisâ—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 â—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 overâ—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 determineâ—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 persoâ— 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
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 Coniâ—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
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 VVrit 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 Custâ—s bâ—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
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 VVast 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
Plaintif replyed that it was made upon good consideration and traversed the delivery of the Copperas which was an evill issue clearly Issue misâ—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 beâ—â—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 â—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 fresâ— 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 jurâ—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 VVast 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. Importâ— 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
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 oâ— his own Land by Deed indented Estopple this is an Estopple whereto the Court agreed But VVindham and Peryam sayd if the Lease be made for life by Indenture Livâ—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 Staâ—â— chamber 6. DEbt was brought by Lassels upon an Obligation Hill 1â— 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 Etheldredâ—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 VValmisley Whatshall we in the mean time plead in bar to the Scire facias Curia Demur in Law if you hold the matter insufficient VValmisley 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 Quaâ—re But quâ—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
possession of the land 11. BRet Plaintif against Shepheard Apparaâ—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 inâ—eoff B. Feâ—ffâ—â—ent in see to their use they are then tenants in common of this use Diffâ—â—â—nâ—â— per Tenants â—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 Fâ—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 1â— 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 agreemâ—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
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 Redisseâ—â— 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 â—odem teneâ—â—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 Exâ—cutorâ—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
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 Herrioâ— 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
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 Mannâ—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 VVrit 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 Deâ—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 VVrit 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 shoâ—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 VVe 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 preâ—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 Iâ—â—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 bâ— 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 brougâ—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 weâ—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
in the Fleet Appearance was brought to the Common place bar by habâ—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 Brâ—â—keâ— 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 Heâ— 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 â— 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 VValter 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 VVilloughby Wife to the late Sir Francis VVilloughby 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 Erâ—â—â— 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 uâ—on an exteâ—t of a Remainder And the case was this that there was Tenant for liâ—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 Coâ—â—so◠〈◊〉 â—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 Bâ—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
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. placiâ— 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 Sherbâ—â—â— 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 Shelbâ—â—â— 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 vitiouâ— 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 Hâ—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 â—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
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 Shâ—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 Deâ—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
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 Liveriâ— 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 conditioâ—â— 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. Mistrâ—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
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 Blackaâ—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 VVhere an Advowson shall pass where not pag. 42. pl. 20. Admittance VVhat is a good Admmittance to a Copyhold what not pag. 95 96. pl. 9. Advantage VVhere one shall not take advantage of a thing for lack of pleading it pag. 106. pl. 11. pag. 161. pl. 92. Addition VVhat Additions do hurt what not pag. 123. pl. 7. 9. pl. 15 Assets VVhat 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 VVho shall have an Aliens Lands pag. 29 pl. 4. Amendment VVhere 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 VVhat 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 VVhere 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. VVhat is a good appearance what not pag. 67. pl. 12. pag. 118. pl. 1. Arbiterment VVhat 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 VVhat is a good arrest what not pag. 30. pl. 5. VVhat is good matter to arrest Judgement what not pag. 186 187. pl. 135. Assumpsit VVhat 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. VVhere an Assumpsit is broken and where not pag. 146. pl. 65. Assise VVhere an Assise lies and where not pag. 64. pl. 3. pag 154. pl. 80. Attornment VVhere an Attornment is necessary where not pag. 38. pl. 14. VVhat is a good Attornment what not pag. 55. pl. 13. pag. 95. pl. 9. pag 95 96. pl. 9. Attaint VVhere an Attaint lies and where not pag. 42. pl. 18. Attorney VVhat Acts an Attorney may do without VVarrant and what not pag. 49. pl. 2. Assignment VVhat may be assigned and what not pag. 89. pl. 16. pag. 186. pl. 134. Avowry VVhat is a good plea in an avowry what not pag. 65. pl. 6. Averment VVhere 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 VVhere an audita quaerela lies where not pag. 171. pl. 101. pag. 174 175. pl. 108. pag. 176. pl. 111. Aide VVhat prayeing in aid is good and what not pag. 40. pl. 18. B. BAr vide Plea